____________, 1999
Xxxxxxx X. Xxxxxxxxx, President
Oregon Baking Company
0000 X.X. Pettygrove
Portland, Oregon 97210
RE: MERGER AND ACQUISITION AGREEMENT
--------------------------------
Dear Xx. Xxxxxxxxx:
You have agreed that Xxxxxx Xxxxx Securities, Inc., (the "Finder") may
act as a non-exclusive finder or financial consultant in various transactions in
which Oregon Baking Company (the "Company") may be involved, including but not
limited to, mergers, acquisitions, business combinations, joint ventures, debt
or equity placements or other on-balance sheet 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 the 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 finders fee 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
Xxxxxx to and Accepted:
OREGON BAKING COMPANY
BY:________________________________
Xxxxxxx X. Xxxxxxxxx, President
