EXHIBIT 10.8
_______________, 1998
Xxxxxxxx X. Xxxxxx, President
Host America Corporation
Two Broadway
Hamden, Connecticut 06518
RE: MERGER AND ACQUISITION AGREEMENT
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Dear Xx. Xxxxxx:
You have agreed that Xxxxxx Xxxxx Securities, Inc., (the "Finder") may
act as a non-exclusive finder or financial consultant for you in various
transactions in which Host America Corporation (the "Company") may be
involved, including but not limited to, mergers, acquisitions, business
combinations, joint ventures, debt or equity placements or other on-balance
or off-balance sheet corporate transactions. The Company hereby agrees
that in the event that the Finder shall first introduce to the Company
another party or entity, and that as a result of such introduction, a
transaction between such entity and the Company is consummated
("Consummated Transaction"), then the Company shall pay to the Finder a
finder's fee as follows:
a. Five percent (5%) of the first $1,000,000 of the consideration
paid in such transaction;
b. Four percent (4%) of the consideration in excess of $1,000,000
and up to $2,000,000;
c. Three percent (3%) of the consideration in excess of $2,000,000
and up to $3,000,000;
d. Two percent (2%) of any consideration in excess of $3,000,000 and
up to $4,000,000; and
e. One percent (1%) of any consideration in excess of $4,000,000.
The fee due the Finder shall be paid by the Company in cash and/or in
stock at the closing of the Consummated Transaction as mutually agreed
between the Company and the Finder, without regard to whether the
Consummated Transaction involves payments in cash, in stock, or a
combination of stock and cash, or is made on an installment sale basis. By
way of example, if the Consummated Transaction involves securities of the
acquiring entity (whether securities of the Company, if the Company is the
acquiring party, or securities of another entity, if the Company is the
selling party) having a value of $5,000,000, the consideration to be paid
by the Company to the Finder at closing shall be $150,000.
However, both parties agree that it is the purpose of the
Company to use the proceeds of the offering in the acquisition, merger,
purchase of shares or any other kind of association with
foreign companies as described in the prospectus. To the extent that the
Company has any prior relationships with such foreign companies these
foreign companies are specifically excluded from this Agreement.
In the event that for any reason the Company shall fail to pay to the
Finder all or any portion of the finder's fee payable hereunder when due,
interest shall accrue and be payable on the unpaid balance due hereunder
from the date when first due through and including that date when actually
collected by the Finder, at a rate equal to two (2) points over the prime
rate of Citibank, N.A. in New York, New York, computed on a daily basis and
adjusted as announced from time to time.
This agreement shall be effective on the date hereof and shall expire
on the fifth anniversary of the date hereof.
Notwithstanding anything herein to the contrary, if the Company shall,
within 180 days immediately following the termination of the five year
period provided above, conclude a Consummated Transaction with any party
introduced by the Finder to the Company prior to the termination of said
five year period, the Company shall also pay the Finder the fee determined
above.
The Company represents and warrants to the Finder that the engagement
of the Finder hereunder has been duly authorized and approved by the Board
of Directors of the Company and this letter agreement has been duly
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company.
This agreement has been executed and delivered in the State of Florida
and shall be governed by the laws of such state, without giving effect to
the conflicts of laws rules thereunder.
This agreement shall be binding upon, and enforceable against, the
successors and assigns of each of the undersigned.
Please sign this letter at the place indicated below, whereupon it
will constitute our mutually binding agreement with respect to the matters
contained herein.
Very truly yours,
XXXXXX XXXXX SECURITIES, INC.
BY:___________________________________
Xxxxxx X. Xxxx, President
Agreed to and Accepted:
HOST AMERICA CORPORATION
BY:___________________________________
Xxxxxxxx X. Xxxxxx, President
