Exhibit 4.7
XxXxx and Company, LLC
000 0xx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
April 13, 2005
Xxxxxx Xxxxxx, President
Branded Media Corporation
000 Xxxxxxx Xxxxxx - Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
Pursuant to our discussions, the purpose of this letter is to confirm an
agreement made in March 2005 regarding the scope and terms for the retention of
XxXxx Capital, Inc. ("XxXxx") as the non-exclusive financial advisor to Branded
Media Corporation, and any subsidiaries and affiliates ("Branded Media" or the
"Company"). XxXxx will assist the Company, on a best efforts basis, with regard
to the sale by the Company of up to $1 million of Convertible Notes to
institutional or accredited investors (as defined in Regulation D of the
Securities Act of 1933) in connection with the execution of Branded Media's
business plan (the "Offering"). Said Convertible Notes shall be in a form and
shall contain the terms as negotiated between XxXxx and Branded Media. The term
of this Agreement shall be until the closing date of the Company's Offering or
until March 31, 2006, whichever occurs first.
As an advisor to the Company pursuant to this Agreement, XxXxx will provide
the services necessary to assist the Company and its agents including the
following:
A. Assisting in the evaluation of the Company's current and prospective
financial condition;
B. Assisting in the performance of such financial or business analyses as are
needed to properly advise the Company in its sale of the Convertible Notes
(all legal analysis and opinions are the sole responsibility of the
Company);
C. Assisting in the introduction and negotiation of potential institutional
and individual investors for the Convertible Notes financing being offered
and sold by the Company.
Any additional services shall be subject to further negotiation and
agreement between the Company and XxXxx, including a provision for additional
fees.
In conjunction with the steps outlined above, the Company agrees to provide
XxXxx with necessary assistance and information required at all steps and to
have management available as required. XxXxx will be entitled to rely on
information provided by the Company, and its directors, officers, employees,
counsel, accountants and/or other advisors, which XxXxx reasonably deems
appropriate, without assuming any responsibility for independent investigation
or verification thereof. XxXxx agrees that all activities on behalf of the
Company are confidential.
XxXxx'x compensation for acting as advisor to the Company in connection
with this Agreement shall be comprised of the indemnity described below and the
following terms:
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1. XxXxx shall receive a 10% cash fee for any monies raised from investors who
are identified by XxXxx ("Prospective Investors") and who subsequently
participate in the Offering ("Actual Investors") within eighteen (18)
months following the termination of this Agreement. A complete list of any
potential investors already identified by the Company will be provided to
XxXxx within 10 business days of the execution of this Agreement.
2. In addition, XxXxx shall receive warrants to purchase 10% of the number of
shares of common stock into which the Convertible Notes sold by the Company
to Actual Investors is convertible, exercisable at 105% of the sales or
conversion price of the Convertible Notes. The warrants will be
satisfactory in form and substance to XxXxx and the Company's respective
counsel. The warrants will expire seven years from the date of issuance,
will have appropriate cashless exercise rights and will be able to be
allocated among XxXxx'x members.
Upon completion of a minimum of $1,000,000 of the Offering, the Company
shall agree to inform XxXxx for a period of 18 months about all private
financing arrangements for the Company (other than conventional banking
arrangements, borrowing and commercial debt financing and discrete unrelated
transactions of not more than $250,000). XxXxx shall have the right to present
the company with comparable alternative financing options in writing within
fifteen business days of receipt of a written term sheet describing such
proposed transaction in reasonable detail.
Since XxXxx will be acting on behalf of the Company, the Company agrees to
indemnify and hold XxXxx harmless for its reasonable and customary activities
related to its advisory services for the Company in accordance with the terms
set forth in the separate indemnification agreement attached hereto and dated
the date hereof. Notwithstanding the foregoing, XxXxx shall at all times be an
independent contractor hereunder, rather than a co-venture, agent, employee or
representative of the Company.
This Agreement may be terminated either by XxXxx or by the Company after
two months from execution by the Company upon 30 days' written notice to the
other party. In the event of any such termination by either party, XxXxx shall
be entitled to receive all compensation described herein. The indemnification
and reimbursement provisions contained herein shall remain in full force and
effect in case of termination by either party.
In the event of a dispute between XxXxx and the Company with regard to any
of the terms of this Agreement that results in litigation or arbitration, both
parties agree that reasonable attorney's fees and costs shall be awarded to the
prevailing party.
If this Agreement is determined to be void or otherwise unenforceable, the
Company understands that XxXxx will be entitled to recover for its services
under the equitable theory of unjust enrichment or "quantum meruit." Such a
theory permits recovery for the equitable value of products or services where
there is no contract in place expressly providing for such a recovery.
If the terms of this Agreement are acceptable to you and you believe you
may have an interest in pursuing this transaction, please sign and return one of
the originals to us. Please feel free to contact me directly at (000) 000-0000
if you have any questions. We very much look forward to working with you on this
important assignment.
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Sincerely,
XxXxx & Company LLC
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
CEO
Agreed to and Accepted by:
Branded Media Corporation
By: /s/ Xxxxxx Xxxxxx Date: 4/29/05
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Xxxxxx Xxxxxx
President
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