Exhibit 10.8
Xxxxxxx Communications Corporation
0000 - 00xx Xxxxxx, XX
Xxxxx Xxxxxx, XX 00000
Gentlemen:
We are writing this letter to confirm our agreement ("Agreement") that
Xxxxxxx Xxxxxx & Company Financial Services, Inc. ("Berthel") has been engaged
by Xxxxxxx Communications Corporation (the "Company") as exclusive financial
advisor and placement agent in connection with the proposed offer and private
placement to institutional investors of up to $50 million of the company's
senior debt, subordinated debt preferred stock, common stock or related
securities (the "Securities") and provide merger and other advisory services.
This Agreement shall become effective upon the execution hereof by both the
Company and Berthel, and the term of this agreement and the exclusive
appointment provided for herein shall end eighteen months from the date of such
execution by the company (the "Term").
I. Performance of Services
Berthel shall act as financial advisor and exclusive agent only with
respect to the offer of the Securities on a best efforts private placement basis
to qualified institutional Ienders/investors and/or the sale of assets and/or
subsidiaries of the Company (the "Financing"), and the merger of the Company
("Merger").
II. Compensation for Services
A. In partial payment for its services hereunder, Berthel shall receive from the
Company (i) a nonrefundable $30,000 retainer fee as compensation for services
performed prior to this agreement, payable upon the execution hereof, (ii)
$15,000 retainer fee each month of the engagement, payable beginning on the
fifteenth day of January, 2000, and on the 15th day of each subsequent month of
the engagement, which amounts shall be credited in full against the initial
Private Placement Fees and other Advisory Fees (as hereinafter defined) payable
under this Agreement.
B. Upon closing of any Financing (including any partial drawdown of any
commitment received by the Company in connection therewith), the Company agrees
to pay to Berthel in cash a fee (the "Private Placement Fee") in an amount that
is equal to (i) two percent (2.0%) of the aggregate gross proceeds of any senior
debt, five percent (5.0%) on any subordinated debt, nine percent (9.0%) on any
equity related securities, or any similar securities, raised in the Financing.
The Company will also pay to Berthel warrants in the Company's common stock
equivalent to ten percent (10.0%) of the equity or subordinated debt securities
priced at a level of one hundred ten percent (110.0%) of the market price of the
common stock as of the Closing date of the Financing. The fee on a conversion of
any current debt into equity securities or the exercise of any outstanding
warrants shall be two percent (2.0%) of the face amount of the converted debt
and/or any warrant related proceeds. There will be no fee charged upon a
conversion of debt held by Company insiders and directors. Aggregate gross
proceeds shall include the amount of any definitive commitment for availability
of funds from any bank or other financial institution entered into by the
Company, or any part thereof. It is understood that if the Financing is
consummated by means of more than one closing, Berthel shall be entitled to the
fees provided herein with respect to each such closing. The Company shall also
pay to Berthel a fee of three percent (3.0%) on the sale of any assets or
subsidiaries of the Company (with the exception of the PIC/ATN subsidiary to
Actel), and a fairness opinion fee of $100,000 for the sale of any individual
Company assets or subsidiaries (including to affiliates).
C. Upon the closing of any Merger wherein the Company merges with or sells to
another entity (including specifically, but without limitation, Xxxxxx.xxx) in a
transaction involving either a stock or asset purchase transaction, the Company
shall pay Berthel a Success Fee for a completed merger or sale, in whole or in
part, calculated as a percentage of the Aggregate Merger or Sale Price according
to the following schedule: 5% of the first $1 million, 4% of the second $1
million, 3% of the third $1 million, 2% of the fourth $1 million and 1% above $4
million of the Aggregate Merger or Sale Price.
As used in Section II(C), the term Aggregate Merger or Sale Price shall be
defined as the present value of the sum of consideration paid by the Acquiror to
or for the Company or its shareholders including (i) cash, (ii) the face amount
of any installment notes, (iii) the amount of any debt, including long-term or
current debt issued in connection with the transaction, (iv) the balance of any
debt assumed by the Acquiror, (v) the fair market value of equity or any equity
interest(s) issued to the Company or its shareholders, and (vi) the value of any
subsequent or contingent payments including, but not limited to, earnouts,
non-compete payments and any other compensation paid to the Company, its
shareholders or employees in excess of standard amounts paid. For earnouts and
other payments that are not readily ascertainable at closing, Berthel will be
due its applicable Success Fee as those amounts are paid, unless otherwise
mutually agreed upon by both parties to this Agreement.
D. The Company agrees to reimburse Berthel for all reasonable out-of-pocket
expenses incurred in carrying out the terms of this Agreement, including travel,
telephone, facsimile, courier, computer times charges, attorneys' fees and
disbursements. These out-of-pocket expenses will be payable from time to time
promptly upon invoicing by Berthel therefor.
The provisions of this section II shall survive the termination and
expiration of this agreement.
III. Indemnification
The Company and Berthel, hereby agree to the terms and conditions of the
Indemnification Agreement attached hereto as Appendix A with the same force and
effect as if such terms and conditions were set forth at length herein. The
Company represents and warrants that it has the right to enter into this
Agreement and that it is not bound by any prior agreement(s), which conflict
with or are violated by this Agreement.
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IV. Coordination of Efforts
In order to coordinate the efforts of Berthel and the Company, and to
maximize the possibility of consummating a Financing during the terms of this
Agreement, Berthel shall have the sole and exclusive authority to initiate
discussions with potential purchasers of the Securities. In the event the
company, its directors, officers, employees or shareholders receive any
inquiries or conduct any discussions concerning the availability of the
Securities for purchase, such inquiries and discussions shall be promptly
referred to Berthel.
V. Disclosure
Any financial or other advice, descriptive memoranda or other documentation
rendered by Berthel pursuant to this Agreement may not be disclosed, quoted or
otherwise referred to publicly, to any third party or in any document in any
manner without the prior written approval of Berthel. All non-public information
provided by the Company to Berthel will be considered as confidential
information and shall be maintained as such by Berthel, except as required by
law or as required to enable Berthel to perform its services pursuant to this
Agreement, until the same becomes known to third parties or the public without
release thereof by Berthel.
The Company agrees to provide to Berthel, among other things, all
information reasonably required or required by Berthel or a potential
lender/investors, including, but not limited to, information concerning
historical and projected financial results and possible and known litigious and
other contingent liabilities of the Company. The Company also agrees to make
available to Berthel such representatives of the Company, including, among
others, directors, officers, employees, outside counsel and independent
certified public accountants, as Berthel may reasonably request. The Company
will promptly advise Berthel of any material changes in its business or
finances. The Company represents that all information made available to Berthel
by the Company, including, without limiting the generality of the foregoing, any
private placement memorandum or other information materials prepared by or
approved by the Company, will be complete and correct in all material respects
and will not contain any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statement therein not misleading in
light of the circumstances under which such statements are made. In rendering
its services hereunder, Berthel will be using and relying primarily on such
Information without independent verification thereof or independent appraisal of
any of the Company's assets. Xxxxxx does not assume responsibility for the
accuracy or completeness of the information.
The Company authorizes Berthel to make public notice in the form of a
"tombstone," at Xxxxxxx'x expense, of any Financing concluded under this
Agreement.
VI. Certain Offering Procedures
The Company and Berthel each represent to the other than, it has not taken,
and the Company and Berthel each agree with the other that it will not take, any
action, directly or indirectly, so as to cause the Financing or the Merger to
fail to be entitled to rely upon the
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exemption from registration afforded by Section 4(2) of the Securities Act of
1933, as amended (the "Act"). In effecting the Financing or Merger, the Company
and Berthel each agree to comply in all material respects with applicable
provisions of the Act and any regulations thereunder and any applicable state
laws and requirements. The Company agrees that any representations and
warranties made by it to any lenders/investors in the Financing or Merger shall
be deemed also to be made to Berthel for its benefit. The Company agrees that it
shall cause any opinion of its counsel delivered to any lenders/investors in the
Financing or Xxxxxx also to be addressed and delivered to Berthel or to cause
such counsel to deliver to Berthel a letter authorizing it to rely upon such
opinion. It is understood that, once a lender/investor group becomes identified,
customarily special counsel of the Iender/investor group is appointed at the
Company's expense to represent all lenders/investors. This means, in practical
terms, that the final terms of the Financing or Merger may be modified by
negotiation between the Company and the lenders/investors.
VII. Obligations of Xxxxxxx Xxxxxx to the Company
The services herein provided are to be rendered solely to the Company. They
are not being rendered by Berthel as an agent for or as a fiduciary of the
shareholders or the Company, and Berthel shall not have any liability or
obligation with respect to its services hereunder to such shareholders or to any
other person, firm or corporation.
VIII. Termination
This engagement may be terminated by the Company or by Berthel at any time
after 180 days with or without cause upon written notice to that effect to the
other party, but no such termination shall effect Xxxxxxx'x rights to
compensation earned on or prior to such termination (including, without
limitation, the Private Placement Fee or the Success Fee described in Article II
hereof), and Berthel shall be entitled to reimburse of any reasonable expenses
not previously reimbursed. Berthel also shall be entitled to the compensation
hereinafter provided in the event that at any time prior to the expiration of
eighteen months after expiration or termination of this Agreement a Financing or
a Merger is consummated (i) with a lender/investor or merger partner introduced
to the Company by Berthel or contacted by Berthel or the Company during the term
of this Agreement or (ii) as a result of the use by the Company of materials or
other work product prepared by Berthel.
IX. Entire Agreement, Etc.
This Agreement sets forth the entire understanding of the parties relating
to the subject matter hereof and supersedes and cancels any prior
communications, understandings and agreements between the parties. This
Agreement cannot be terminated or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties hereto. This Agreement
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Company and Berthel. A facsimile of a signed
original of this Agreement shall be sufficient to bind the parties whose
signatures appear hereon.
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X. Governing Laws and Jurisdiction
This Agreement shall be governed by and construed to be in accordance with
the laws of the State of Iowa applicable to contracts made and to be performed
solely in such state by citizens thereof. Any dispute arising out of this
Agreement shall be adjudicated in the courts of the State of Iowa or in the
federal courts sitting in the Northern District of Iowa, and the Company hereby
agrees that service of process upon it by registered or certified mail at the
address shown in this Agreement shall be deemed adequate and lawful. The parties
hereto shall deliver notices to each other by personal delivery or by registered
mail (return receipt requested) at the addresses set forth above.
XI. Prior Agreement
Berthel, Xxxxxxxxx Xxxxxxxx & Co. Inc. ("Ladenburg") and the Company signed
a letter agreement pertaining to the appointment by the Company of Berthel and
Ladenburg as exclusive agents for the Company. The letter agreement was signed
by Berthel and Ladenburg on October 13, 1999, and by Xxxxxxx on November 3,
1999. In a letter from Ladenburg dated December 10, 1999, Ladenburg stated that
the letter agreement was never effective because it was not accepted by the
Company in accordance with its terms. As between the Company and Berthel, the
letter agreement is hereby terminated in all respects.
XII. Acceptance
Please confirm that the foregoing is in accordance with your understanding
by signing on behalf of the Company and returning an executed copy of this
Agreement, together with a check for $30,000 drawn in favor of "Xxxxxxx Xxxxxx &
Company Financial Services, Inc.", whereupon after execution by Berthel it shall
become a binding agreement between the Company and Berthel.
Very truly yours,
XXXXXXX XXXXXX & COMPANY FINANCIAL
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX,
Chief Executive Officer
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Accepted and agreed to:
XXXXXXX COMMUNICATIONS CORPORATION
By: /s/
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(signature)
Name & Title:
---------------------
Date:
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