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EXHIBIT 10.7
VMR CAPITAL MARKETS U.S.
1901 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
FINANCIAL CONSULTING AGREEMENT
This Financial Consulting Agreement (the "Agreement") is made as of
October 11, 1999, by and between, Xxxx Xxx Media, Inc., a Colorado corporation,
having its business address at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000 (hereinafter the "Company"), and VMR Capital Markets U.S.,
having its principal place of business at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter the "Consultant").
In consideration of the mutual promises contained herein and on the terms
and conditions hereinafter set forth, the Company and Consultant agree as
follows:
1. Provision of Services
(a) Consultant agrees, to the extent reasonably requested by a duly
authorized officer of the Company and reasonably required in the conduct of the
business of the Company, to place at the disposal of the Company its judgment
and experience and to provide business development services to the Company,
including the following:
(i) assist the Company in its financing and marketing
efforts by;
A. on or before October 12, 1999, securing from VMR
Xxxxxxxxx X.X., Convertible Debentures in an
aggregate principal amount of $500,000, to be
dated October 12, 1999, to mature on April 11,
2000, to bear interest at 8% per annum, and to be
substantially in the form attached hereto, in
partial consideration for the issuance to the
holder of the Convertible Debentures of 25,000
warrants to purchase the Company's Common Stock at
the closing ask price as reflected on the OTC
Electronic Bulletin Board upon the date of
closing.
B. structuring an Equity Private Placement in the
minimum offering amount of $6 million to close not
later than December 31, 1999, upon terms deemed
reasonably acceptable by the Company, including
the preparation of a private placement memorandum
subject to the Company's prior reasonable
approval. The Company shall not be responsible for
expenses incurred in connection with such private
placement offering in excess of $25,000.
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C. structuring a secondary offering to the general
public for a minimum of $15 million and delivering
to the Company on or before December 15, 1999, a
duly executed letter of intent from a major German
bank committing to said secondary offering. Said
secondary offering will be undertaken by
underwriter(s) reasonably acceptable to the
Company to close not later than June 30, 2000. The
secondary offering will be linked to Company's
performance and will take place on an exchange
mutually acceptable to the Company and Consultant.
(ii) provide access to the Consultant's retail sales force
and introduction to institutional investors in the
United States and Europe through roadshow stops and
conference calls;
(iii) [intentionally omitted.]
(iv) on or before November 7, 1999, list the Company for
trading on the third segment of the Frankfurt Stock
Exchange, and develop a trading market for the Company's
Common Stock thereon (e.g., number of market makers,
trading volume, etc.) as determined in the Company's
reasonable discretion. Consultant represents and
warrants that said listing will permit duly licensed
firms to actively solicit purchasers for the Company's
Common Stock.
(v) advise with regard to stockholder relations and public
relations matters.
All such services shall at all times be at the request of the Company.
(b) Consultant agrees to use its best efforts at all times in the
furnishing of advice and recommendations, and for this purpose Consultant shall
at all times maintain or keep available for the Company an adequate organization
of personnel or a network of outside professionals for the performance of its
obligations under this Agreement.
2. Compensation. In consideration for services to be rendered under this
Agreement, Company will issue in the name of the Consultant, and place into
escrow with Xxxxxxx X. Xxxxx, A Professional Corporation ("Escrow Holder"),
subject to delivery to the Consultant in accordance with the provisions set
forth in this Section, 100,000 shares of the Company's "restricted" Common Stock
in lieu of any monthly retainer fee, which shares shall possess piggyback
registration rights. Consultant and Company acknowledge and agree to exculpate
and indemnify Escrow Holder in the manner provided for in Exhibit A hereto, the
terms of which are incorporated herein as if set forth at length herein.
The escrowed shares shall be delivered to Consultant solely in the amount
and upon the occurrence of the following events:
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(i) 10,000 shares of the Company's "restricted" Common Stock concurrent
with the funding of the Bridge Loan described in Section 1(a)(i)(A)
above;
(ii) 10,000 shares of the Company's "restricted" Common Stock concurrent
with the approval of listing of the Company's Common Stock upon the
Frankfurt Stock Exchange and the development of a trading market for
the Company's Common Stock thereon as determined in the Company's
reasonable discretion;
(iii) 10,000 shares of the Company's "restricted" Common Stock concurrent
with the closing of a private placement reasonably acceptable to the
Company covering the Equity Private Placement in an amount not less
that $6 million described in Section 1(a)(i)(B) above; and
(iv) commencing as of January 31, 2000, and monthly thereafter, ending
October 31, 2000 (subject to earlier termination in accordance with
the provisions hereof), 7,000 shares of the Company's "restricted"
Common Stock based upon Consultant's satisfactory performance of its
duties hereunder as determined by Company in its reasonable
discretion.
In addition to the foregoing stock compensation, Company shall issue in
the name of Consultant, and place into escrow with Escrow Holder, 100,000
warrants to purchase the Company's Common Stock at a price not less than 110% of
the closing ask price of the Company's Common Stock on the OTC Electronic
Bulletin Board determined as of the date of funding the Convertible Debentures,
which warrants shall possess piggyback registration rights, subject to the
following delivery terms and conditions:
(a) 50,000 of the escrowed warrants shall be delivered to Consultant on
April 11, 2000 provided that Consultant has fulfilled its
obligations pursuant to Section 1 of this Agreement, including
without limitation, securing the requisite financings described
therein; and
(b) the remaining 50,000 of the escrowed warrants shall be delivered to
Consultant on October 11, 2000 provided that Consultant has
fulfilled its obligations pursuant to Section 1 of this Agreement,
including without limitation, securing the requisite financings
described therein.
The Company further agrees to the following compensation:
1. 2% cash placement fee for the Bridge Loan, payable by Company
substantially contemporaneous with its receipt of such loan
proceeds.
2. 9% cash placement fee and 5% warrant coverage on Equity
Private Placement in an amount not less than $6 million,
payable by Company substantially contemporaneous with its
receipt of such offering proceeds.
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3. up to 10% cash placement fee and 3% cash non-accountable
expense fee (subject to good faith negotiations by Company and
Consultant based on offering size), and 8% warrant coverage,
on secondary offering in an amount not less than $15 million,
payable by Company substantially contemporaneous with its
receipt of such offering proceeds.
3. Expenses Payment Schedule. Consultant shall seek Company's prior
approval prior to incurring any expenses aggregating more than $500 monthly in
furtherance of its obligations hereunder. Consultant will invoice the Company
for its actual expenses for each month within fifteen (15) days of the end of
the month and submit proper substantiation therefor to Company. Payment of
invoices will be due upon receipt.
4. Liability of Consultant. In furnishing the Company with management
advice and other services as herein provided, neither Consultant nor any
officer, director or agent therefor shall be liable to the Company or its
creditors for errors of judgment or for anything except willful malfeasance, bad
faith or gross negligence in the performance of its duties or reckless disregard
of its obligations and duties under the terms of this Agreement.
It is further understood and agreed that Consultant may rely upon
information furnished to it that is reasonably believed to be accurate and
reliable and that, except as herein provided, Consultant shall not be
accountable for any loss suffered by the Company by reason of the Company's
action or non-action on the basis of any advice, recommendation or approval of
Consultant, its partners, employees or agents.
5. Status of Consultant. Consultant shall be deemed to be an independent
contractor and, except as expressly provided or authorized in this Agreement,
shall have no authority to act for or represent the Company.
6. Other Activities of Consultant. The Company recognizes that Consultant
now renders and may continue to render management and other services to other
companies which may or may not have policies and conduct activities similar to
those of the Company. Consultant shall be free to render such advice and other
services and the Company hereby consents thereto. Consultant shall not be
required to devote its full time and attention to the performance of its duties
under this Agreement, but shall devote only so much of its time and attention as
it deems reasonable or necessary for such purposes.
7. Control. Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Articles of Incorporation or Bylaws,
or any applicable statute or regulation, or to deprive its Board of Directors of
their responsibility for any control of the conduct or the affairs of the
Company.
8. Term. Consultant's retention hereunder shall be for a term of 12 months
commencing upon the execution of this Agreement, subject to earlier termination
by Company for cause, including without limitation, Consultant's failure to
timely assist the Company in its
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financing and marketing efforts by failing to satisfy the timing deadlines set
forth in Section 1 of this Agreement. Upon such election to terminate by the
Company, Consultant acknowledges and agrees that Company shall have no further
obligation to compensate Consultant whatsoever. In addition, the Company shall
have the unfettered right to use the services of other financial consultants
and/or investment banks in which case the Company may terminate this Agreement
upon payment to Consultant of all accrued and unpaid compensation as of the date
of such termination, and the parties agree to negotiate in good faith concerning
the payment to Consultant of any unearned portion of the compensation provided
for in this Agreement.
9. Provision of Information; Confidentiality. Company shall cooperate
fully with Consultant in connection with its financial review and analysis of
the Company and shall provide Consultant with such information concerning
Company as Consultant deems necessary or appropriate for such review and
analysis (collectively, the "Information). Consultant shall keep in confidence
and shall not, without the Company's consent, disclose to any person (except its
own counsel or as such counsel has advised is required by applicable law) any
nonpublic Information furnished by Company to Consultant, and Consultant shall
execute and deliver a confidentiality and nondisclosure agreement in favor of
Company.
10. Miscellaneous. This Agreement sets forth the entire agreement and
understanding between the parties and supersedes all prior discussions,
agreements and understandings of every and any nature between them. This
Agreement shall be construed and interpreted according to the laws of the State
of California.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers or representatives duly authorized the day and year
first above written.
XXXX XXX MEDIA, INC.,
By: /s/ Gill Champion
------------------------------------
Gill Champion, Vice President & COO
Acknowledged and Accepted: VMR CAPITAL MARKETS U.S.
Dated: October 11, 1999. By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
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EXHIBIT A
Exculpation and Indemnification of Escrow Holder
Xxxxxxx X. Xxxxx, A Professional Corporation (the "Escrow Holder") shall
have no duties or responsibilities other than those expressly set forth in the
Financial Consulting Agreement dated October , 1999 (the "Agreement") attached
thereto, between Xxxx Xxx Media, Inc. and VMR Capital Markets U.S. The Escrow
Holder shall have no duty to enforce any obligation of any person, other than
the Escrow Holder, to make any payment or delivery, or to direct or enforce any
obligation of any person to perform any other act. The Escrow Holder shall be
under no liability to anyone by reason of any failure on the part of any party
hereto or any maker, endorser or other signatory of any document or any other
person to perform such person's obligations under any such document. Except for
the Agreement and any instructions to the Escrow Holder under the Agreement, the
Escrow Holder shall not be obligated to recognize any agreement between any or
all of the persons referred to herein, notwithstanding its knowledge thereof.
The Escrow Holder shall not be liable for any action taken or omitted by
it, or any action suffered by it to be taken or omitted, in good faith and in
the exercise of its own best judgment, and may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Escrow Holder), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and acceptability of any information therein contained) which is believed by the
Escrow Holder to be genuine and to be signed or presented by the proper person
or persons. The Escrow Holder shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of the Agreement or any of the
terms hereof, unless evidenced by a writing delivered to the Escrow Holder
signed by the proper party or parties and, if the duties or rights of the Escrow
Holder are affected, unless it shall give its prior written consent thereto.
The Escrow Holder shall not be responsible for the sufficiency or accuracy
of the form of, or the execution, validity, value or genuineness of, any
document or property received, held or delivered by it hereunder, or of
signature or endorsement thereon, or for any description therein, nor shall the
Escrow Holder be responsible or liable in any respect on account of the
identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any document or property of the Agreement. The
Escrow Holder shall not be liable for any loss that may be incurred by reason of
any investment of any monies that it holds hereunder which investment is
authorized by the Agreement pursuant to the provisions thereof.
In the absence of written notice to the contrary from the proper person or
persons, the Escrow Holder shall have the right to assume that a fact or an
event, by reason of which an action would or might be taken by the Escrow
Holder, does not exist or has not occurred without incurring liability for any
action taken or omitted, or any action suffered by it to be
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taken or omitted, in good faith and in the exercise of its own best judgment, in
reliance upon such assumption.
The Escrow Holder shall be indemnified and held harmless against any
liability for taxes and for any penalties or interest in respect of taxes, on
such investment income or payments in the manner provided below.
The Escrow Holder shall be indemnified and held harmless by the parties to
the Agreement from and against any expenses, including counsel fees and
disbursements, or loss suffered by Escrow Holder in connection with any claim or
demand, which, in any way, directly or indirectly, arises out of or relates to
the Agreement, the services of the Escrow Holder thereunder or any income earned
from investment of such monies; except, that if the Escrow Holder shall be found
guilty of willful misconduct, fraud or gross negligence under the Agreement,
then, in that event, Escrow Holder shall bear all such losses, claims, damages
and expenses. Promptly after the receipt by Escrow Holder of notice of any
demand or claim or the commencement of any action, suit or proceeding, the
Escrow Holder shall, if a claim in respect thereof is to be made against any of
the other parties hereto, notify such other parties thereof in writing; but the
failure by Escrow Holder to give such notice shall not relieve any party from
any liability which such party may have to Escrow Holder hereunder. For the
purposes hereof, the terms "expense" and "loss" shall include all amounts paid
or payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the parties hereto, and all costs and expenses, including, but not
limited to, reasonable counsel fees and disbursements, paid or incurred in
investigation or defending against any such claim, demand, action, suit or
proceeding.
If any legal action or proceeding is brought by any party to this
transaction, including but not limited to, the parties to the Agreement, the
Escrow Holder, or any other related or interested party, the Escrow Holder has
the absolute right, solely within its discretion, to interplead into any such
action. In such event, the Escrow Holder may, in its sole discretion, withhold
or stop all proceedings, and withhold any funds or documents pending the
resolution of the controversy. If no action has been filed, Escrow Holder in its
sole discretion, may file a suit in interpleader and obtain an order from the
court requiring the parties to interplead and litigate in such court their
several claims and rights amongst themselves. If any dispute arises, regardless
of whether or not suit is filed, Escrow Holder is ipso facto released and
discharged from all obligations to further perform any and all duties or
obligations imposed upon it in the Escrow Account pursuant to the Agreement. If
the Escrow Holder incurs any costs or fees in connection with any such dispute
or proceeding, the parties to the Agreement each agrees to fully indemnify the
Escrow Holder and reimburse it for any costs and expenses occasioned by such
controversy or litigation, including reasonable attorneys' fees.
