EXHIBIT 10.8
Pacific Resource Group, Inc.
(Dba Global Stock Exchange)
0000 Xxxx Xxxxx Xx.
Xxxxxx, XX 00000
Tel: 801-553-215-
Fax: 000-000-0000
Email:xxxxx@xxxxxx.xxx
Web: xxx.xxxxxx.xxx
June 21, 2001
By Facsimile (000)000-0000
Xx. Xxxxxx X. Xxxx
Chief Financial Officer
Small Town Radio
00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Re: Finder Agreement
Dear Xx. Xxxx:
This letter confirms the agreement ("Agreement") between Worldwide
PetroMoly Inc. (OTCBB:MOLY) d/b/a Small Town Radio Inc. (STRI), Inc. and its
affiliated companies (the "Company") to retain Pacific Resource Group, Inc.
("PRG") to provide the services described below.
1. Services
1.1 No representation or promises are made by PRG other than as
expressly set forth herein.
It is imperative that all parties understand and acknowledge that PRG does not
negotiate transactions involving securities, engage in other activities to
consummate transactions in securities, advise whether to enter into securities
transactions, or participate in the sale of securities, nor does PRG hold itself
out as a broker or dealer. PRO is acting strictly as a "finder", simply
introducing the parties and collecting a fee based on that introduction. PRG
will not be engaged in any further involvement with any party beyond that
extent.
1.2 PRG shall use its reasonable best efforts to introduce the Company
to corporations, partnerships, mutual funds, hedge funds, accredited investors,
investment partnerships, securities firms, lending and other institutions and
entities (collectively "Entities") which may engage in or provide a
"Transaction" (as defined below) to the Company. As used herein, the term
"Entities" also means and includes any party, which is directly or indirectly
connected with or related to one of the Entities described above including,
without limitation, all affiliates as well as any referral from any of the
Entities, any client or customer of any of the Entities, and any investor in any
of the Entities.
1.3 Except as set forth below, all services provided by PRG under this
Agreement shall be at PRG's cost and risk. PRG's sole compensation, if any,
shall be a "Finder's Fee" (as set forth in Section 4 below) upon consummation of
a Transaction in any form with any Entity.
1.4 The Company acknowledges that PRG's responsibilities shall be
limited to the foregoing, and that PRG (i) shall not have authority to offer or
sell the Securities to any potential Entity, (ii) shall have no responsibility
to participate or assist in any negotiations between any potential Entity and
the Company, and (iii) shall have no responsibility for fulfilling any reporting
or filing requirements of the Company pursuant to applicable federal and state
securities laws. In addition, the Company expressly acknowledges and agrees that
PRG's obligations hereunder are on a reasonable best effort basis only and that
the execution of this Agreement does not constitute a commitment by PRG to
purchase the Securities or any other securities of the Company and does not
ensure the successful placement of the Securities or any portion thereof.
1.5 Notwithstanding anything in this Agreement to the contrary, the
Company shall have the sole and absolute discretion to accept or not accept the
terms of any Transaction. Neither the Company nor any of its affiliates shall
have any liability whatsoever to PRG or any other person or entity resulting
from its decision not to enter into a proposed Transaction, regardless of the
terms of the proposed Transaction.
2. Term
This Agreement shall take effect immediately and shall continue for a
minimum term of six (6) months. Thereafter, the Agreement will remain in effect
until terminated by either party upon 30 days prior written notice to the other.
3. Information
In connection with PRG's engagement hereunder, the Company will furnish
PRG and any prospective Entity with any information concerning the Company that
PRG reasonably deems appropriate and will provide PRG and prospective Entities
with reasonable access to the Company's officers, directors, accountants,
counsel and other advisors, subject to the Company's non-disclosure agreement.
In addition, PRG shall be kept fully informed of any events that are reasonably
likely to have a material effect on the financial condition of the Company. The
Company represents and warrants to PRG that all such information concerning the
Company and all private placement materials, whether in the form of a letter,
circular, memorandum, notice or otherwise to be used in placing the securities,
to the extent that the Securities are placed in a private placement, or an
appropriate subscription agreement, to the extent that the securities to be
placed have been publicly registered ("Materials") will be true and accurate in
all material respects and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances under which such statements
are made. The Company acknowledges and agrees that PRG will not undertake any
"due diligence" investigation and will be using and relying upon the information
supplied by the Company and its officers, agents and others, the Materials, and
any other publicly available information concerning the Company.
4. Finder's Fee.
------------
In consideration of PRG's services, PRG shall be entitled to receive,
and the Company hereby agrees to pay to PRG, the following:
4.1 PRG shall receive a Finder's Fee payable by certified check or wire
transfer equal to 5% of the principal amount of the Transaction Amount (as
defined below, and shall be paid as proceeds are received by the Company from
each Transaction; provided however, if the Transaction is in the form of an
equity line of credit; PRG shall receive a Finder's Fee equal to 2% of the
amount of money the Company draws down on the equity line. Any portion of PRG's
Finder's Fee that is attributable to proceeds to be received by the Company upon
the occurrence of a future event, or the satisfaction of a contingency shall be
paid when the event occurs or the contingency is satisfied.
4.2 In addition to the foregoing, upon consummation of a Transaction,
the Company will issue to PRG and/or its designee(s) warrants (the "Warrants")
to purchase such number of shares of the Company's common stock as shall be
equal to 2% of the aggregate number of fully diluted and/or exercised or
converted shares of common stock of the Company as are purchased by the
Entities. The Warrants shall be exercisable for a period of five years from the
date of closing with an exercise price equal to the effective per share or unit
price paid by the Entities engaging in the Transaction. The terms of the
Warrants shall be set forth in one or more agreements (the "Warrant Agreements")
in form and substance reasonably satisfactory to PRG and the Company. The
Warrant Agreements shall contain customary terms, including without limitation,
provisions for change of control, weighted-average price based anti-dilution,
and customary demand and piggyback registration rights consistent with the
registration rights granted to the Entities.
4.3 PRG's Finder's Fee shall have been earned and shall be payable to
PRG upon consummation of any Transaction which occurs as a result of this
Agreement with any Entity in which a Transaction was made in whole or in part
(1) during the term of this Agreement (hereafter "Phase I"); or, (2) within 24
months following the termination date of this Agreement (hereafter "Phase II")
with regard to an Entity which PRG or the Company has had any communications
during Phase I.
4.4 As used herein, the term "Transaction Amount" shall mean the gross
amount of all consideration, including without limitation to, all cash, cash
equivalents, stock, warrants, and/or assets that is exchanged or provided to or
by the Company or its shareholders, affiliates, or subsidiaries in a
Transaction, or any entities formed in or which results from a Transaction. The
Transaction amount shall be cumulative (e.g., if the Company receives initial
consideration and then subsequently received royalty and/or licensing fees,
warrant exercise funds; etc,.) such that the Transaction Amount shall include
all such consideration.
4.5 For the purposes of the transactions contemplated herein, this
Agreement supercedes any other Finder's Fee Agreements that have previously been
agreed to by the parties.
5. Transaction.
-----------
5.1 As used herein, the term "Transaction" means any business
agreement, arrangement or transaction or series or combinations thereof which
may include sales or exchanges of stock, warrants, or assets, or the making of
loans, leases and other arrangements of every type and description, by which,
directly or indirectly, an interest in the Company, its affiliates, or any
business with common management with the Company, or any of their respective
assets, capital stock or other securities is transferred to another Entity,
including, without limitation, by way of or in the form of, a merger,
acquisition, sale or exchange of stock or assets, lease of assets, with or
without purchase option, joint venture, licensing arrangements, minority
investment or partnership.
5.2 As used herein, the term "Transaction" also means any business
agreement, arrangement or transaction or series or combinations thereof which
may include sales or exchanges of stock, warrants, or assets, or the making of
loans, leases and other arrangements of every type and description by which,
directly or indirectly, an interest in any Entity is transferred to the Company,
its affiliates, or any business with common management with the Company, or any
of their respective assets, capital stock or other securities, including,
without limitation, by way of and in the form of a merger, acquisition, sale or
exchange of stock or assets, lease of assets, with or without purchase option,
joint venture, licensing arrangements, minority investment or partnership.
6. Non-Circumvent
In order to prevent the Company from circumventing PRG's position with
an Entity, the Company agrees that whether or not any Transaction concerning the
Company is completed, for a two-year period commencing from the date of this
Agreement, without the prior express written consent of PRG, neither the Company
nor any of its officers, employees, or agents will (a) contact directly or
indirectly any person or Entity introduced to the Company by PRG during the term
of this Agreement; or (b) circumvent PRG's position with respect to the Company
or Entity in any manner whatsoever.
7. Non-Exclusive.
-------------
Each party acknowledges and agrees that the rights granted to the other
in this Agreement are non-exclusive, and that, without limiting the generality
of the foregoing, nothing in this Agreement shall be deemed or construed to
prohibit either party herein from participating in similar business arrangements
as those described herein.
8. Indemnification.
---------------
The Company shall indemnify PRG under its standard indemnification
provisions attached hereto as Schedule A and made a part hereof.
9. General Provisions.
------------------
9.1 Any and all claims, disputes, or controversies arising out of this
Agreement will be resolved by arbitration before the American Arbitration
Association ("AAA") and that with respect to this Agreement, a party may seek
injunctive relief and ancillary damages before the AAA. Each party irrevocably
consents to subject matter jurisdiction before the AAA. The parties shall
restrict themselves to claims for compensatory damages and no claims shall be
made by any party for punitive or similar damages. The parties agree that any
award or decision by the AAA shall be final and binding upon the parties and a
judgment may be entered in a court of competent jurisdiction upon such award or
decision. The parties agree that the sites of any arbitration or legal
proceedings hereunder shall be the City of New York.
9.2 This Agreement may not be amended or modified except in writing
signed by both parties to the Agreement.
9.3 All notices and other communications hereunder shall be deemed
given upon (a) the sender's confirmation of receipt of a facsimile transmission
to the recipient's facsimile number set forth below, (b) confirmed delivery by a
standard overnight carrier to the recipient's address set forth below, or (c)
delivery by hand to the recipient's address set forth below (or, in each case,
to or at such other facsimile number or address for a party as such party may
specify by notice given in accordance with this Section 9.3):
(a) If to the Company, to:
Xxxxxx X. Xxxx
Chief Financial Officer
Small Town Radio
00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000)000-0000
(b) If to PRG, to:
Xxxx Xxxxx
President Pacific Resource Group, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Fax: (000) 000-0000
9.4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and assigns. 9.5 PRG
shall perform its services hereunder as an independent contractor and not as an
employee of the Company or an affiliate thereof. It is expressly understood and
agreed to by the parties hereto that PRG shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any manner, except as
may be agreed to expressly by the Company in writing from time to time.
9.6 The Company hereby represents that it is a sophisticated business
enterprise that has retained PRG for the limited purposes set forth in this
letter, and the parties acknowledge and agree that their respective rights and
obligations are contractual in nature. Each party disclaims an intention to
impose fiduciary obligations on the other by virtue of the engagement
contemplated by this letter.
If the foregoing is acceptable to you, please sign and return the
enclosed copy of this letter to my attention.
Very truly yours.
Pacific Resource Group, Inc.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: President
AGREED AND ACCEPTED:
WORLDWIDE PETROMOLY, INC.
By: /S/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Title: Chief Financial Officer
----------------------------
6-22-01
--------------------
Schedule A
Pacific Resource Group, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Ladies and Gentlemen:
In connection with our engagement of Pacific Resource Group, Inc,
("PRG") as a Finder, we hereby agree to indemnify and hold harmless PRG and its
affiliates, and the respective directors, officers, shareholders, agents and
employees of PRG (collectively the "Indemnified Persons"), from and against any
and all claims, actions, suits, proceedings (including those of shareholders),
damages, liabilities and expenses as incurred by any of them (including the
reasonable fees and expenses of counsel) which (A) relate to or arise out of (i)
any actions taken or omitted to be taken (including any untrue statements made
to any Indemnified Person in connection with our engagement of PRG, or (B)
otherwise relate to or arise out of PRG's activities on our behalf under PRG's
engagement, including any action by PRG to collect amounts owed to it in
connection therewith, and we shall reimburse any Indemnified Person for all
expenses (including the reasonable fees and expenses of counsel) as incurred by
such Indemnified Person in connection with investigating, preparing or defending
any such claim, action , suit or proceeding (collectively a "Claim", in
connection with pending or threatened litigation in which any Indemnified Person
is a party. We will not, however, be responsible for any Claim which is finally
judicially determined to have resulted exclusively from the gross negligence or
willful misconduct of any person seeking indemnification hereunder. We further
agree that no Indemnified Person shall have any liability to us for or in
connection with our engagement of PRG except for any Claim incurred by us solely
as a direct result of any Indemnified Person's gross negligence or willful
misconduct.
We further agree that we will not, without the prior written consent of
PRG, settle, compromise or consent to the entry of any judgment in any pending
or threatened Claim in respect of which indemnification may be reasonably sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person against whom such
claim may be brought hereunder from any and all liability arising out of such
claim.
Promptly upon receipt by an Indemnified Person of notice of any
complaint or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify
us in writing of such complaint or of such assertion or institution but failure
to do so notify us shall not relieve us from any obligations we may have
hereunder, unless and only to the extent such failure results in the forfeiture
by us of substantial rights and defenses, and will not in any event relieve us
from any other obligation or liability we may have to any Indemnified Person, we
will assume the defense of such Claim, including the employment of counsel
reasonably satisfactory to such Indemnified Person and the payment of reasonable
fees and expenses of such counsel. In the event, however, that such Indemnified
Person reasonably determines that having common counsel with the Company and/or
another Indemnified Person would present such counsel with a conflict of
interest or if the defendant in, or target of, any such Claim, includes an
Indemnified Person and us, and such Indemnified reasonably concludes that there
may be legal defenses available to it or other Indemnified Persons different
from or in addition to those available to us, then such Indemnified Person may
employ its own separate counsel to represent or defend it in any such Claim and
we shall pay the reasonable fees and expenses of such counsel. Notwithstanding
anything herein to the contrary, if we fail timely or diligently to defend,
contest, or otherwise protect against any Claim, the relevant Indemnified Person
shall have the right, but not the obligation, to defend, contest, compromise,
settle, assert crossclaims, or counterclaims or otherwise protect against the
same, and shall be fully indemnified by us therefore, including without
limitation, for the reasonable fees and expenses of its counsel and all amounts
paid as a result of such Claim or the compromise or settlement thereof. In any
Claim in which we assume the defense, the Indemnified Person shall have the
right to participate in such Claim and to retain its own counsel therefore at
its own expense.
We agree that if any indemnity sought by an Indemnified Person
hereunder is held by a court to be unavailable for any reason, then (whether or
not PRG is the Indemnified Person), we and PRG shall contribute to the Claim for
which such indemnify is held unavailable in such proportion as is appropriate to
reflect the relative benefits to us, on the one hand, and PRG on the other, in
connection with PRG's engagement referred to above, and the relative fault, as
between us and the Indemnified Person in respect of the Claim, subject to the
limitation that in no event shall the amount of PRG's contribution to such Claim
exceed the amount of fees actually received by PRG from us pursuant to PRG's
engagement. We hereby agree that the relative benefits to us, on the one hand,
and PRG on the other, with respect to PRG's engagement shall be deemed to be in
the same proportion as (a) the total value paid or proposed to be paid or
received by us or our stockholders as the case may be, pursuant to the
transaction (whether or not consummated) for which you are engaged to render
services bears to (b) the fee actually paid to PRG in connection with such
engagement; provided, however, that under no circumstances whatsoever shall PRG
be required to contribute to any such claim any amount in excess of the fee
actually paid in connection with such engagement.
Our indemnity, reimbursement and contribution obligations under this
Agreement shall be in addition to, and shall in no way limit or otherwise
adversely affect, any rights that any Indemnified Party may have at law or at
equity.
Should PRG or its personnel be required or requested by us to provide
documentary evidence or testimony in connection with any proceeding arising form
or relating to PRG's engagement, we agree to pay all reasonable expenses
(including fees incurred for legal counsel) in complying therewith.
Any and all claims, disputes, or controversies arising out of this
Agreement will be resolved by arbitration before the American Arbitration
Association ("AAA") and that with respect to this Agreement, a party may seek
injunctive relief and ancillary damages before the AAA. Each party irrevocably
consents to subject matter jurisdiction before the AAA. The parties shall
restrict themselves to claims for compensatory damages and no claims shall be
made by any party for punitive or similar damages. The parties agree that any
award or decision by the AAA shall be final and binding upon the parties and a
judgement may be entered in a court of competent jurisdiction upon such award or
decision. The parties agree that the situs of any arbitration or legal
proceedings hereunder shall be the City of New York.
It is understood that, in connection with PRG's engagement, PRG may be
engaged to act in one or more additional capacities and that the terms of the
original engagement or any such additional engagement may be embodied in one or
more separate written agreements. The provisions of this Agreement shall apply
to the original engagement, any such additional engagement and any modifications
of the original engagement or such additional engagement and shall remain in
full force and effect following the completion or termination of PRG's
engagement(s).
Very truly yours,
WORLDWIDE PETROMOLY, INC.
By: /S/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Title: Chief Financial Officer
----------------------------
Confirmed and agreed to:
Pacific Resource Group, Inc.
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: President
