Exhibit 4.5
H. G. CAPITAL, INC.
ACQUISITION FINANCE ENGAGEMENT AGREEMENT
This Agreement is entered into by and between H. G. Capital Inc., whose office
is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereafter
"Capital") and Call Solutions, Inc. or assigns, whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereafter "Client"). The parties agree as
follows:
1. RETENTION: Client retains Capital to for the purposes of assisting in
negotiations, structuring transaction, preparing proposal and locating financing
for approximately $3,500,000.00 for the acquisition of ▇▇▇▇▇▇ Communication
Limited
2. SCOPE OF PROFESSIONAL SERVICES: Capital undertakes: 1. Assist client in
the negotiation of the acquisition financing and ,(i) to assist the Client in
the preparation of proposals and documentation and other materials required for
marketing the Financing (all of which will be subject to the Clients and
Capital's approval and will be based entirely on information supplied or
approved by the Client without independent verification by Capital); (ii) to use
our best efforts to place the Financing on terms approved by the Client; and
(iii) to provide the appropriate advisory services to enable the Client to
evaluate various financing alternatives and proposals. Capital will, of course,
treat all aspects of the transaction in a highly confidential manner. During
the term of our engagement you will refer all offers and inquiries with respect
to any financing for the project.
Capital, acting jointly as your financial adviser and exclusive
representative, will work closely with your personnel and with other
outside advisers responsible for the assignment.
The scope of our services will include, but not be limited to, the following:
A. STRUCTURE ANALYSIS - Analyze the terms of potential transaction
structures relative to market conditions, the Company's/Owner's financial
objectives, and the relative merits of other possible structures.
B. OFFERING MATERIALS - Assist you in the preparation of definitive
offering documents describing the transaction or transactions including a
summary of acceptable terms and market information. You shall provide us
with all information and material relevant to the transaction to the extent
they are available to you.
C. MARKETING STRATEGY - Develop a marketing strategy to most efficiently
and expeditiously target prospective lenders or investors.
D. NEGOTIATIONS - Working jointly with you, initiate discussions and
conduct negotiations with prospective investors. During the analytic phase
of an assignment, we develop a judgment as to values and a thorough
understanding of the legal and financial implications of a proposed
transaction. Such knowledge, combined with the perspective of a third
party, can be very valuable in negotiations. If it develops that the
Company and a prospective investor have differing initial assessments as to
value, Capital can be helpful in bridging early disagreements and
preventing premature termination of discussions. It is our experience that
an intermediary provides considerable assistance in maintaining momentum
throughout the negotiating process.
E. CLOSING - Work with you and your legal and accounting consultants in the
final implementation phases to ensure a timely closing. These tasks, which
are often the most time-consuming aspects of a transaction, require
experienced coordination of attorneys, appraisers, accountants and other
experts. This aspect of the assignment is extremely important. Our
experience has shown that timely anticipation and solution of problems
between the time when an agreement in principle is reached among parties
and the closing can increase materially the chances of bringing the
transaction to a successful conclusion.
3. TERM OF AGREEMENT - This Agreement shall remain in effect from the date
of the Client executing this Agreement and shall continue in effect thereafter
until terminated by either Capital or the Client. Termination shall become
effective 30 days after written notice of termination (by registered or
certified mail, return receipt requested) is received by the other party,
subject to those provisions of this Agreement which have application subsequent
to the termination of this Agreement.
A. Capital is authorized to hire and retain for the benefit of Client such
professional services, including but limited to accountants and attorneys,
as may be necessary to completely and properly represent Client in regard
to the transaction. However, such hiring and the terms of same shall be
within the sole discretion of the Client, which upon approval, shall also
be responsible for the hourly charges and costs of such professional
services.
4. ACKNOWLEDGMENT & PROMISE TO PAY: The Client hereby acknowledges that
this Agreement has been carefully reviewed and admit that the stated amount in
Section 4 above is a just and correct amount and agrees that there are no
defenses, setoffs, or counterclaims against such amount and that the payment of
such amount is due and payable as stated in Section 7 below. The Client further
agrees that the stated amount will be paid as stated in Section 7 below and that
all legal and/or collection expenses incurred by Capital or its assignee in the
enforcement of this Acknowledgment and Promise to Pay will be paid by the
Client.
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5. OBLIGATIONS SURVIVING TERMINATION OF AGREEMENT: Capital will be entitled
to its Transaction Fee as set forth in paragraph 7 with respect to any
Transaction consummated either: (A) during the term of this Agreement; or (B)
within 24 months after the termination of this Agreement as to which a Buyer (or
any affiliate or related party thereto) during the term of this Agreement (i)
negotiated with the Client or with Capital on behalf of the Client or (ii)
contacted Capital or the Client or was contacted by Capital or the Client
regarding a possible Transaction.
6. OBLIGATIONS LIMITED: Capital shall be under no obligation to make an
independent appraisal of assets or investigation or inquiry as to any
information regarding or any representations of, the Client or any other
participant in a Transaction, and shall have no liability in regard thereto.
7. COMPENSATION OF CAPITAL: Capital agrees to provide the services referred to
in Section 2 hereof and the Client agrees to pay Capital as follows:
A. RETAINER FEE: A fee of $3,500.00 (United States Dollars) for assisting
in negotiations, valuations, and preparation of any material necessary in
the completion of this transaction. Capital shall invoice at the rate of
$200.00 per hour to be applied toward the retainer. The retainer is due
upon the execution of this agreement.
B. SUCCESS FEE - A fee in cash (United States Dollars) at closing equal to
4% of any consideration (cash, Letters of Credits) thereafter to be
received by the Client or affiliated companies in a Financing Transaction.
C. EXPENSES - The Client shall pay all of Capital's out-of-pocket expenses
in connection with this Agreement, including but not limited to legal fees,
mailing, air travel, car rental and lodging.
8. INDEMNITY: The Client agrees to indemnify and hold harmless Capital,
including any affiliated companies, and their respective officers, directors,
controlling persons and employees and any persons retained in connection with
the performance of the services described herein (whether or not a consummated
transaction results from said services) (the "Indemnities"), from and against
all claims, damages, losses, liabilities and expenses as the same are incurred
(including any legal or other expenses incurred in connection with investigating
or defending against any such loss, claim, damage or liability or any action in
respect thereof), related to or arising out of its activities hereunder.
Notwithstanding the foregoing, the Client shall not be liable under this
Agreement with respect to any loss, claim damage, liability or expense if a
court having jurisdiction shall have determined by a final judgement that such
loss, claim, damage, liability or expense solely resulted from Capital's willful
misconduct or gross negligence in performing the services described above. If
for any reason the foregoing indemnification is unavailable to the Indemnities
or insufficient to hold them harmless, then the Client shall contribute to the
amount paid or payable by the Indemnities as a result of such claim, damage,
loss, liability or expense in such proportion as is appropriate to reflect not
only the relative benefits received by the Client on the one hand, and Capital,
on the other hand, but also the relative fault of the Client and Capital as well
as any relevant equitable consideration; provided, that the Company's
obligations to make contribution shall be such that the Indemnities shall not be
liable for more than the fee Capital receives hereunder. The provision shall
survive the termination of this Agreement, including the consummation or
abandonment of any Transaction
9. DOCUMENT VERIFICATION: The parties acknowledge that at some point Client
and buyer and/or lender may deem it advisable to communicate and exchange
certain information directly. In this event, copies of all such information
shall be provided to Capital without need of demand.
10. AUTHORITY: Each person signing this Agreement warrants and represents
that he or she has the capacity, power and authority to enter into and
consummate the transaction contemplated herein on his or her behalf of the party
that he or she represents, as the case may be.
11. ENTIRE AGREEMENT AND GOVERNING LAW: This Agreement sets forth the
entire understanding of the parties and supersedes any prior communications,
understanding and agreements between the parties. This Agreement cannot be
changed, nor can any of its provisions be waived, except by a writing signed by
all parties. This Agreement shall be governed by the laws of the State of
California without regard to its conflict of laws provisions, and venue shall be
in the State of California.
12. DUE CONSULTATION: Client warrants and represents that Client has either
had this Agreement reviewed by a competent professional advisor or that he or
she has such experience or business ability as would make such consultation
unnecessary, and this Agreement has been executed only after complete and
satisfactory negotiation of same by Client.
The Headings contained in this Agreement are for reference purposes and shall
not affect in any way the meaning or interpretation of this Agreement. If the
foregoing is acceptable to you please so indicate by signing and returning to us
the enclosed copy of this Agreement. H. G. CAPITAL, INC.
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BY:
▇▇▇▇▇▇ ▇▇▇▇▇, Chairman/CEO
DATE:
CLIENT:
Call Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BY:
ITS:
DATE:
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