[EXHIBIT 10.1.29]
EXCLUSIVE FINDER'S AGREEMENT
This Exclusive Finder's Agreement (this "Agreement") is made as of
August 8, 2005, between, Film And Music Entertainment, Inc., a Nevada
corporation (the "Company"), and The Shemano Group, Inc., a California
corporation (the "Finder"). The Finder and the Company agree:
1. Engagement of Finder: The Company hereby engages the
Finder, and the Finder hereby accepts such engagement, to
act as the Company's exclusive finder with respect to
sales by the Company in a private placement transaction
(the "Offering") of up to $10 million aggregate principal
amount of Equity, Equity-Related or Debt Securities (the
"Securities") of the Company to the investors during the
term of this Agreement as set forth in Section 6. This
agreement will remain exclusive until October 8, 2005.
2. Offering Procedures: The Finder will introduce the Company
to investors who the Finder reasonably believes to be "accredited
investors," as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the
"1933 Act"), with whom the Finder has a pre-existing substantive
relationship (the "Offerees").
3. Finder's Compensation: In consideration for the services
rendered by the Finder hereunder, the Company shall pay to the
Finder, or cause the Finder to be paid, compensation as provided
in this section within 3 days of the Company's receipt of funds
from the Offerees.
(a) Cash Compensation: The Company shall pay to the Finder
cash compensation equal to Ten percent (10%) of the gross
Offering funds received in the Offering.
(b) Gross Revenue Receipts: The Company shall pay to the
Finder cash compensation equal to two percent (2%) of the
gross revenue receipts for the Domestic Theatrical, Domestic
DVD/Video, Cable/Pay Per-View, Television markets, gross
revenue receipts for International markets that are
currently not accounted for, and any other ancillary gross
revenue receipts paid to the Company for the movie "The
Aryan Couple" if a minimum of Two Million Dollars is raised
by The Shemano Group or affiliates.
(c) Warrants: The Finder shall receive four percent (4%)
warrant compensation. The warrant calculation translates to
40,000 warrants per $1 million raised. The warrant's strike
shall equal twenty cents (.20) per share, and have a
five-year term and cashless exercise. The warrant shares
shall be subject to equitable adjustment for stock splits,
stock dividends and similar events. The warrant shares shall
have "piggyback" registration rights.
For purposes of determining the Finder's compensation
under this Section 3, the gross offering funds received
in the Offering(s) shall include any amounts paid to
the Company by investors in respect to an exercise or
conversion of
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any of the Securities or Warrants, including the value
allocated to any securities not issued pursuant to a
"cashless exercise" or similar provision, whenever actually
received by the Company.
4. Certain Matters Relating to Finder's Duties:
(a) The Finder's responsibilities shall be limited to introducing
potential investors to the Company, and the Finder shall not have
authority to offer or sell the Securities to any potential
investor. Finder shall not use any general solicitation or general
advertising within the meaning of the applicable securities laws in
connection with any offering. The Finder shall have no
responsibility to participate or assist in any negotiations between
any potential investor and the Company. The Finder will have no
responsibility to act, and the parties contemplate that the Finder
will not act, as a broker or dealer with respect to the offer or
sale of the Securities. Further, the finder shall have no
responsibility for fulfilling any SEC reporting or filing
requirements as relates to the Company provided however, Finder
agrees to provide Company with reasonable assistance related to any
registration, qualification or other requirements of applicable
securities laws and other regulatory matters, upon request of the
company.
(b) The Finder agrees to introduce the Company to Offerees
only in states in which the Finder has been advised by the
Company that offers and sales of Securities can be legally
made by the Company.
(c) The Finder shall perform its duties under this
Agreement in a manner consistent with the instructions of
the Company. Such performance shall include, but not be
limited to, the delivery to each Offeree a current copy of
the Private Placement Memorandum, Subscription Agreement and
any Offering, Questionnaire and/or similar documents
provided to the Finder by the Company, as such documents may
be amended from time to time by the Company and delivered
to the Finder. The Finder shall consecutively number each
copy of the Private Placement Memorandum (which will include
the first letter of the Finder's name or other identifying
xxxx sufficient to designate an Offeree introduced by the
Finder); keep a log of when and to whom each copy of the
Private Placement Memorandum is given, with the Private
Placement Memorandum numbers; maintain a copy of any written
information the Finder obtains regarding the suitability of
each Offeree; and only use the Private Placement Memorandum
in introducing Offerees to the Company. The Finder shall
provide this log and all such written information to the
Company at any time and promptly upon request of the Company
at the termination of this Agreement. The Company shall,
promptly following execution of this Agreement, provide the
Finder with a written list of prospective Offerees which the
Company does not want the Finder to contact.
The Finder agrees to not contact the persons on such
list, and the Finder shall not be entitled to the
compensation set forth in Section 3 with respect to any
investment made by such person in the Company's
Securities.
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(d) The Finder is and will hereafter act as an independent
contractor and not as an employee of the Company and nothing
in this Agreement shall be interpreted or construed to
create any employment, partnership, joint venture, or other
relationship between the Finder and the Company. The Finder
will not hold itself out as having, and will not state to
any person that the Finder has, any relationship with the
Company other than as an independent contractor. The Finder
shall have no right or power to find or create any liability
or obligation for or in the name of the Company or to sign
any documents on behalf of the Company.
5. Right of First Refusal. In consideration for the Finder
acting as the finder in connection with the proposed offering,
the Company hereby grants the Finder a right of first refusal to
serve as the Company's exclusive financial advisor and investment
banker in connection with any financial transaction for a period
of 1 year from the closing of the transaction. In the event the
company advises the Finder that it desires to effect any
financial transaction, the Company and the Finder will negotiate
in good faith the terms of the Finder's engagement in a separate
agreement which would set forth, among other matters,
compensation for the Finder based upon customary fees for the
services provided.
6. Termination of Agreement. Either party may terminate this
Agreement by notifying the other party in writing upon a material
breach by that other party, unless such breach is curable and is
in fact cured within 15 days after such notice. This Agreement
will otherwise terminate upon completion or termination of the
Offering The Company may terminate this Agreement following
ninety (90) days after the date hereof upon written notice.
Notwithstanding the foregoing, all provisions of this Agreement
other than section 1, 2 and 4 shall survive the termination of
this Agreement with respect to Offerees who the Finder introduces
to the Company prior to any 'termination with respect to the
Offering. The Finder shall be entitled to compensation under
section based on investments made by such Offerees prior to the
termination of this Agreement or at any time within one year
thereafter.
7. Indemnification. The Company and the Finder each shall
indemnify and defend the other and the other's affiliates,
directors, officers, employees, agents, consultants, attorneys,
accountants and other representatives (each an "Indemnified
Person") and shall hold each Indemnified Person harmless, to the
fullest extent permitted by law, from and against any and all
claims, liabilities, losses, damages and expenses (including
reasonable attorney's fees and costs), as they are incurred, in
connection with the Offering, resulting from the indemnifying
party's negligence, bad faith or willful misconduct in connection
with the Offering, any violation by the indemnifying party (not
caused by an Indemnified Person) of Federal or state securities
laws in connection with the Offering, or any breach by the
indemnifying party of this Agreement. In case any litigation or
proceeding shall be brought against any Indemnified Person under
this section, the indemnifying party shall be entitled to assume
the defense of such litigation or proceeding with counsel of the
indemnifying party's choice at its expense (in which case the
indemnifying party shall not be responsible for the fees and
expenses of any separate counsel retained by such
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Indemnified Person, except in the limited circumstances
described below in this section); provided, however, that
such counsel shall be reasonably satisfactory to the
Indemnified Person. Notwithstanding the indemnifying
party's election to assume the defense of such litigation
or proceeding, (a) such Indemnified Person shall have the
right to employ separate counsel and to participate in the
defense of such litigation or proceeding, and (b) the
indemnifying party shall bear the reasonable fees, costs
and expenses of separate counsel if (but only if) the use
of counsel selected by the indemnifying party to represent
such Indemnified Person would present such counsel with a
conflict of interest under applicable laws or rules of
professional conduct.
8. Confidentiality of Offeree Information. The Company
acknowledges that the identity of the Offerees, and all
confidential information about Offerees received by the Company
from an Offeree or the Finder, is confidential information of the
Finder and may not be shared with any other person without the
consent of the Finder.
9. Notices. Any notice, consent, authorization or other
communication to be given hereunder shall be in writing and shall
be deemed duly given and received when delivered personally, when
transmitted by fax, three days after being mailed by first class
mail, or one day after being sent by a nationally recognized
overnight delivery service, charges and postage prepaid, properly
addressed to the party to receive such notice, at the following
address or fax number for such party (or at such other address or
fax number as shall hereafter be specified by such party by like
notice):
(a) If to the Company, to:
Xxxx Xxxx
Chairman
0000 Xxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: Xxxx@xxxxxxxx.xxx
(b) If to the Finder, to:
Xxxx Xxxxx
Vice President
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxxxx.xxx
10. Company to Control Transactions. The prices, terms and
conditions under which the Company shall offer or sell
any Securities shall be determined by the Company in
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the opening of the market on the business day following the
Company's receipt of executed agreements binding Offerees to
purchase Securities in at least the amount of the minimum
Offering (if there is any such its sole discretion. The Company
shall have the authority to control all discussions and
negotiations regarding any proposed or actual offering or
sale of Securities. Nothing in this Agreements shall obligate
the Company to actually offer or sell any Securities or
consummate any transaction. The Company may terminate any
negotiations or discussions at any time and reserves the right
not to proceed with any offering or sale of Securities.
Compensation pursuant to this Agreement shall only be paid to
the Finder in the event of an actual Closing of the Offering
to an Offeree introduced by Finder.
11. Confidentiality of Company Information. The Finder,
and its officers, directors, employees and agents shall maintain
in strict confidence and not copy, disclose or transfer to any
other party (1) all confidential business and financial
information regarding the Company and its affiliates, including
without limitation, projections, business plans, marketing plans,
product development plans, pricing, costs, customer, vendor and
supplier lists and identification, channels of distribution, and
terms of identification of proposed or actual contracts and
(2) all confidential technology of the Company. In furtherance
of the foregoing, the Finder agrees that it shall not transfer,
transmit, distribute, download or communicate, in any electronic,
digitized or other form or media, any of the confidential
technology of the Company. The foregoing is not intended to
preclude the Finder from utilizing, subject to the terms and
conditions of this Agreement, the Private Placement memorandum
and/or other documents prepared or approved by the Company
for use in the Offering.
All communications regarding any possible transactions,
requests for due diligence or other information, requests for
facility tours, product demonstrations or management meetings,
will be submitted or directed to the Company, and the Finder
hall not contact any employees, customers, suppliers or
contractors of the Company or its affiliates without express
permission. Nothing in this Agreement shall constitute a grant
of authority to the Finder or any representatives thereof to
remove, examine or copy any particular document or types of
information regarding the Company, and the Company shall retain
control over the particular documents or items to be provided,
examined or copied. If the Offering is not consummated, or
if at any time the Company so requests, the Finder and its
representatives will return to the Company all copies of
information regarding the Company in their possession.
The provisions of this Section shall survive any
termination of this Agreement.
12. Press Releases, Etc. The Company shall control all
press releases or announcements to the public, the media or the
industry regarding any offering, placement, transaction or
business relationship involving the Company or its affiliates.
Except for communication to Offerees in furtherance of this
Agreement and the provision of the Private Placement Memorandum,
the Finder will not disclose the fact that discussions or
negotiations are taking place concerning a possible transaction
involving the Company, or the status or terms and conditions
thereof. Notwithstanding the foregoing, the Company agrees to
issue a press release prior to
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opening of the market on the business day following the
Company's receipt of executed agreements binding Offerees to
purchase Securities in at least the amount of the minimum
Offering (if there is any such minimum) setting forth the
material terms of the Offering.
13. Due Diligence. Neither the Company, nor any of
its directors, officers or shareholders, should, in any way
rely on the Finder to perform any due diligence with respect
to the Company. It is expressly understood and agreed that to
the extent due diligence is conducted; it will be conducted by
the investors.
14. Expenses, Etc. The compensation described in Section
3 of this Agreement shall be the Finder's sole compensation
for all of its services and efforts to the Company and its
affiliates, in connection with any offering or placement of
Securities. However, while the Finder shall pay all of its own
costs and expenses exceeding ten thousand ($10,000) in
carrying out its activities hereunder; the Company will
reimburse the Finder for the first $10,000 of aforementioned
expenses after they have been incurred by the Finder, and an
itemized accounting has been provided to the Company. The
Company further agrees to reimburse the Finder a flat fee of
$25,000 for legal expenses. The Finder shall be exclusively
responsible for any compensation, fees, commissions or
payments of its employees, agents representatives, co-finders
or other persons or entities utilized by it in connection with
its activities on behalf of the Company, and the Finder will
indemnify and hold harmless the Company and its affiliates
from the claims of any such persons or entities.
15. Compliance with Laws. The Finder represents and
warrants that it is a duly registered broker/dealer and in
good standing with the SEC, NASD and the State of California
and has and shall maintain such registrations as well as all
other necessary licenses and permits to conduct its activities
under this Agreement, which it shall conduct in compliance
with applicable federal and state laws relating to a private
placement under Regulation D of the 1933 Act. The Finder
represents that it is not a party to any other agreement which
would conflict with or interfere with the terms and conditions
of this Agreement.
16. Assignment Prohibited. No assignment of this Agreement
shall be made without the prior written consent of the other
party.
17. Amendments. Neither party may amend this Agreement or
rescind any of its existing provisions without the prior
written consent of the other party.
18. Governing Law. This Agreement shall be deemed to have
been made in the State of California and shall be construed,
and the rights and liabilities determined, in accordance with
the law of the State of California, without regard to the
conflicts laws rules of such jurisdiction.
19. Waiver. Neither Finder's nor the Company's failure to
insist at any time upon strict compliance with this Agreement
or any of its terms nor any continued course of such conduct
on their part shall constitute or be considered a waiver by
Finder or the Company of any of their respective rights or
privileges under this Agreement.
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20. Severability. If any provision herein is or should
become inconsistent with any present or future law, rule
or regulation or any sovereign government or regulatory
body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be
rescinded or modified in accordance with such law, rule
or regulation. In all other respects, this Agreement
shall continue to remain in full force and effect.
21. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original, and will become effective and binding upon the
parties at such time as all of the signatories hereto
have signed a counterpart of this Agreement. All
counterparts so executed shall constitute on Agreement
binding on all of the parties hereto, notwithstanding
that all of the parties are not signatory to the same
counterpart. Each of the parties hereto shall sign a
sufficient number of counterparts so that each party
will receive a fully executed original of this
Agreement.
22. Entire Agreement. This Agreement and all other
agreements and documents referred herein constitutes the
entire agreement between the Company and the Finder. No
other agreements, covenants, representations or
warranties, express or implied, oral or written, have
been made by any party hereto to any other party
concerning the subject matter hereof. All prior and
contemporaneous conversations, negotiations, possible
and alleged agreements, representations, covenants and
warranties concerning the subject matter hereof are
merged herein. This is an integrated Agreement.
23. Arbitration. The parties agree that this Agreement
and all controversies which may arise between the Finder
and the Company, whether occurring prior, on or subsequent
to the date of this Agreement, will be determined by
arbitration. The parties understand that:
a. Arbitration is final and binding on the parties.
b. The parties are waiving their right to seek
remedies in court, including the right to a jury
trial.
c. Pre-arbitration discovery is generally more
limited than and different from court
proceedings.
d. The arbitrators' award is not required to
include factual findings or legal reasoning and
any party's right to appeal or to seek
modification or rulings by the arbitrators is
strictly limited.
e. The panel of arbitrators will typically include
a minority of arbitrators who were or are
affiliated with the securities industry.
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The parties agree that any arbitration under this Agreement will
be held at the facilities of and before an Arbitration Panel appointed
by the National Association of Securities Dealers, Inc. ("NASD"), or
if the NASD refuses to accept jurisdiction, then before JAMS/ENDISPUTE
in San Francisco, California. The award of the arbitrators, or of the
majority of them, will be final, and judgments upon the award may be
entered in any court, state or federal, having jurisdiction. The
parties hereby submit themselves and their personal representatives to
the jurisdiction of any state or federal court for the purpose of such
arbitration and entering such judgment.
Any forbearance to enforce an agreement to arbitrate will not
constitute a waiver of any rights
under this Agreement except to the
extent stated herein.
THIS AGREEMENT IS GOVERNED BY A PRE-DISPUTE ARBITRATION CLAUSE
CONTAINED IN PARAGRAPH 23 OF THIS AGREEMENT
The Shemano Group, Inc.
(the "Finder")
By: Xxxx Xxxx (Sig.) 8/10/05
------------------------------
Xxxx Xxxx
Title: Senior Managing Partner
Film And Music Entertainment, Inc.
(the"Company")
By: Xxxx Xxxx (Sig.)
------------------------------
Xxxx Xxxx
Title: Chairman and Chief
Executive Officer
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