Financial Life Planning
Exhibit
10.4
Financial Life
Planning
LLC
December
18, 2009
PERSONAL
& CONFIDENTIAL
Xxxxx
Xxxx
CEO
Accelerize
New Media, Inc.
00000
Xxxxxxxx Xxxxxxxxx., Xxxxx 000
Los
Angeles, CA 90025
Dear
Xxxxx:
Financial
Life Planning LLC ("Financial Life Planning," unless otherwise indicated) is
pleased to submit this letter of engagement ("this Agreement") setting forth the
terms and conditions whereby Financial Life Planning will act as the
non-exclusive financial advisor and financing agent for Accelerize New Media,
Inc. (OTCBB: ACLZ.OB) ( the "Company"), in advising, seeking, arranging and
negotiating the private placement of securities ("Equity")
(collectively, the "Transaction").
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1.
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Services
of Financial Life Planning
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Financial
Life Planning will endeavor, on a best efforts basis, to obtain one or more
commitments for the Transaction in the form of a commitment letter or binding
agreement or definitive agreement or other similar document (individually a
"Commitment" or collectively the "Commitments") from one or more financial
institutions, institutional investors, or other sources (each, a "Financial
Source"). The major terms of the Transaction must be deemed
acceptable to the Company as evidenced by the Company's written acceptance of a
Commitment. During the term of the Agreement, Financial Life Planning
will be prepared, upon your written request, to:
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1.1
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Assist
the Company in the preparation of materials (collectively, "Documents")
that include select business and financial information about the Company,
a description of the proposed Transaction with proposed terms and
conditions, and other relevant information as a Financial Source may
request.
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1.2
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Contact
and seek to elicit interest from one or more Financial Sources to
participate in the Transaction.
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| Page 1 of 8 | Confidential | Not for Disclosure |
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1.3
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Coordinate
inquiries from and assist in the preparation of additional Documents
providing such information and analyses as may be requested by Financial
Source.
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1.4
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Advise
the Company as to the procedures to obtain a favorable Transaction, and
assist the Company in evaluating the terms and conditions of any
Commitment; provided, however, that Financial Life Planning will not be a
material participant or negotiator in any
Transaction.
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The Company hereby grants
Financial Life Planning the right and authority to perform these services, to
locate Financial Sources and to obtain Commitments during the term of the
Agreement. If the Company accepts or otherwise enters into any
Commitment from a Financial Source during the term of this Agreement and the
Company closes the Transaction under such Commitment, the Company expressly
agrees that Financial Life Planning's services have been fully performed as
outlined herein, and the Company shall pay Financial Life Planning compensation
as outlined herein.
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2.
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Terms
and Conditions
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2.1
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Authority. The
Company represents and warrants that the Company is in all respects
qualified and authorized to accept the Commitments being arranged by
Financial Life Planning. Financial Life Planning is not
responsible for the qualifications of the Company, the vesting or quality
of title or any other matters affecting the consummation of the
Transaction.
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2.2
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Completion. If,
within twelve months from the earlier of the expiration date or
termination of this Agreement, the Company accepts and closes any
Commitment for a Transaction from any Financial Source introduced to the
Company by Financial Life Planning, the Company and Financial Life
Planning expressly agree and understand that Financial Life Planning has
performed its services and is entitled to compensation as provided
herein to the
Company, the Company agrees that it will fully disclose discussions and
activities with Financial Sources introduced by Financial Life Planning,
initiated by the Company to secure financing during the term of this
Agreement.
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| Page 2 of 8 | Confidential | Not for Disclosure |
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2.3
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Company
Information. The Company represents and warrants that
all information (a) made available to Financial Life Planning by the
Company or (b) contained in the Documents will to the best of the
Company’s knowledge, at all times during the period of the engagement of
Financial Life Planning hereunder, be complete and correct 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 the light of the circumstances under which such
statements are made. The Company further represents and
warrants that any projections provided to Financial Life Planning or
contained in the Documents will have been prepared in good faith to the
best of the Company’s knowledge and will be based upon assumptions which,
in light of the circumstances under which they are made, are
reasonable. The Company acknowledges and agrees that, in
rendering its services hereunder, Financial Life Planning will be using
and relying on such information and additional information available from
public or other sources without independent verification, that Financial
Life Planning will not assume responsibility for the accuracy or
completeness of such information (included in the Documents or otherwise),
and that Financial Life Planning will not undertake to make an independent
appraisal of any of the assets of the Company or any of its
subsidiaries.
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2.4
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Indemnification. The
Company acknowledges that Financial Life Planning, in the performance of
its duties under this Agreement, must rely upon the accuracy and
completeness of information that the Company and its personnel and agents
supply to the Financial Life Planning. Accordingly, the Company agrees to
indemnify, hold harmless and defend the Financial Life Planning, its
officers, agents and/or employees from any claims, costs, expenses and
damages sought in any legal proceeding or suit that arises out of or is
based upon any breach of any representations or warranties made by the
Company pursuant to this Agreement, including without
limitation any based on inaccurate or incomplete material information that
the Company supplies Financial Life Planning; provided, however, that the
Company shall not be obligated to indemnify Financial Life
Planning for any damages against the Company based on proven
intentional material misstatements, misrepresentations, or negligence
by Financial Life
Planning.
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3.
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Compensation/Payment for
Services Performed
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As
compensation for Financial Life Planning's services, the Company will pay, or
cause to be paid, the following fees to Financial Life Planning:
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3.1
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Compensation
to Financial Life Planning
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3.1.1
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A
contingent cash transaction fee (the "Success Fee") equal to eight percent
(8%) of the amount of any Commitment from Financial Sources introduced by
Financial Life Planning, which has closed and became a part of the
Transaction. The Success Fee shall be due and payable to
Financial Life Planning, only from proceeds of the Transaction actually
received by the Company, on the date of the first closing or funding of
the Transaction with any Financial Source introduced by Financial Life
Planning. Success Fee(s) for funding of the Transaction
actually received by the Company in the future from Financial Sources
introduced by Financial Life Planning are due and payable to Financial
Life Planning at the time they are received by the Company, and will be
paid from the proceeds of that funding activity. The Success Fee shall be
reduced by the amount of the fees actually received by Financial Life
Planning. The Success Fee shall be based on the value of the
Transaction or a series of Transactions with the Financial Source. The
Success Fee shall be earned once the Company enters into a Transaction
which the parties agree is defined as the selling of stock, and/or
creating a debt instrument for cash actually received by the
Company. All earned Success Fees shall be payable to
Financial Life Planning by wire contemporaneously from the proceeds of
funds provided at closing of each
Transaction.
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| Page 3 of 8 | Confidential | Not for Disclosure |
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3.1.2
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In addition, the
Company agrees to issue to Financial Life Planning or its designees,
Warrants to purchase the number of shares of the common stock of
the Company that have an aggregate value (based on the equity price per
share established at the closing of the Transaction) equal to eight
percent (8.0%) of the amount of proceeds from the Transaction with the
Financial Source introduced by Financial life Planning (the
"Warrants"). The Warrants shall be earned as of the first
closing of the Transaction, and shall contain terms and conditions which
mirror those of the Transaction.
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4.
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Representations and
Warranties
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4.1
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Each
of the Company and Financial Life Planning hereby agrees, warrants and
represents to conduct the Transaction in a manner intended to qualify for
the exemption from the registration requirements of the Securities Act of
1933, as amended (the “Act”), provided by Section 4(2) of the
Act. Each of the Company and Financial Life Planning hereby
agrees, warrants and represents to limit offers to sell, and solicitations
of offers to buy, securities of the Company in connection with the
Transaction to persons reasonably believed by it to be “qualified
institutional buyers” as such term is defined in Rule 144A under the Act
and “accredited investors” as such term is defined in Rule 501(a) of
Regulation D promulgated under the
Act.
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4.2
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Each
of the Company and Financial Life Planning hereby agrees warrants and
represents that any offers made in connection with the Transaction will be
made only to prospective purchasers on an individual basis and that no
form of general solicitation or general advertising (within the meaning of
Rule 502 under the Act) will be used in connection with the
Transaction. Each of the Company and Financial Life Planning
hereby agrees, warrants and represents to conduct the Transaction in a
manner intended to comply with the registration or qualification
requirements, or available exemptions there from, under applicable state
“blue sky” laws and applicable securities laws of other
jurisdictions.
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4.3
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Financial
Life Planning represents and warrants that it understands that the
availability of a securities law exemption for the Transaction may depend
on it being a registered broker/dealer. Accordingly, Financial
Life Planning hereby indemnifies and holds harmless the Company and its
affiliates, controlling persons, directors, officers, representatives and
agents against any and all losses, claims, damages or liabilities
(including, without limitation, reasonable attorneys fees and expenses) to
which the Company and such persons may become subject arising out of or in
connection with Financial Life Planning's failure to be so registered or
any breach of representations or warranties made by Financial Life
Planning in this Agreement.
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| Page 4 of 8 | Confidential | Not for Disclosure |
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4.4
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The
Company may decline to consummate the Transaction with any Financial
Source or any other party, in the Company's sole and absolute
discretion.
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5.
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Miscellaneous
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5.1
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Term. This
Agreement will become effective upon the date of its acceptance by the
Company (the "Effective Date") and will continue thereafter for a period
ending February 28, 2010. Thereafter, this Agreement may be
extended for an additional ninety (90) day period if the parties shall
agree to such extension in writing . It is expressly agreed
that the provisions of paragraphs 2.3, , , and 3.1 of this Agreement shall
survive any expiration or termination of this Agreement for five years
from the date thereof and that paragraphs 2.4, 4.1, 4.2 and 4.3 shall
survive any expiration or termination of this Agreement
indefinitely.
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5.2
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Confidentiality. Except
as contemplated by the terms hereof or as required by applicable law,
Financial Life Planning shall keep confidential all material non-public
information provided to it by the Company, and shall not disclose such
information to any third party, other than such of its employees and
advisors as Financial Life Planning determines to have a need to
know. The documents and any other information or data about the
Company, its subsidiaries or their assets will only be made available to a
Financial Source upon the execution of a confidentiality agreement
prepared by Financial Life Planning and acceptable to the
Company.
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5.3
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Nature of
Engagement. Financial Life Planning is being retained to
serve as the non-exclusive financial advisor solely to the Company, and
the engagement of Financial Life Planning shall not be deemed to be on
behalf of and is not intended to confer rights or benefits upon any
shareholder or creditor of the Company or its subsidiaries or upon any
other person. Unless expressly agreed to in writing by
Financial Life Planning, no one other than the Company is authorized to
rely upon this engagement of Financial Life Planning or any statements,
conduct or advice of Financial Life Planning. No opinion or
advice of Financial Life Planning shall be used for any other purpose or
reproduced, disseminated, quoted or referred to at any time, in any manner
or for any purpose, nor shall any public or other references to Financial
Life Planning (or to such opinions or advice) be made without the express
prior written consent of Financial Life Planning, which consent shall not
be unreasonably withheld.
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5.5
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Parties. This
Agreement shall be binding upon the parties and their successors and
assigns and shall also inure to the benefit of the Indemnified Persons
designated herein and their heirs and assigns. By signing this
Agreement, the signing party represents that such party has unconditional
authority to enter into and bind that party to its obligations set forth
in this Agreement.
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| Page 5 of 8 | Confidential | Not for Disclosure |
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5.6
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Arbitration. Any
dispute related to this Agreement, any transaction contemplated hereby, or
any other matter contemplated hereby shall be settled by arbitration in
the County of New York, New York in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association
("AAA"), by a single arbitrator selected in accordance with the rules of
the AAA. Any award entered by the arbitrator shall be final,
binding and nonappealable with judgment may be entered thereon by any
party in accordance with applicable law in any court of competent
jurisdiction. On reasonable notice after the commencement of
the arbitration and before any hearing, each party shall produce to the
other all documents relevant to the subject matter of the
dispute. Any dispute as to the relevance of material or any
other dispute of whatever nature arising out of or connected with or
related to discovery of materials shall be determined by the
arbitrator. This arbitration provision shall be specifically
enforceable. The fees of the American Arbitration Association
and the arbitrator and any expenses relating to the conduct of the
arbitration shall be split and paid equally between the Company and
Financial Life Planning.
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5.7
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Modifications and
Amendments. This Agreement represents the entire
understanding between the Company and Financial Life Planning with respect
to the Transaction, and all prior discussions are merged
herein. It is understood that Financial Life Planning's
obligations under this Agreement is to use its best efforts throughout the
period for which it acts as the Company's exclusive agent as described
herein. Financial Life Planning' engagement is not intended to
provide the Company or any other person or entity with any assurances that
any Transaction will be
consummated.
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5.8
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Independent
Contractor. Financial
Life Planning is an independent contractor in performing its services
hereunder and cannot be considered an employee or partner of the
Company. Financial Life Planning will not have any right or
authority to bind the Company or otherwise create any obligations of any
kind on behalf of the Company and will make no representation to any third
party to the contrary.
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5.9
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Other. The
Company acknowledges that Financial Life Planning may provide similar
services to other clients in the Company's industry including but not
limited to public relations, investor relations, road shows, consulting
and/or communications services; this Agreement shall not be assigned by
either party without the written consent of the other party;
and the Company's signature to this Agreement will also
acknowledge that the Company has disclosed to Financial Life Planning any
prospective Financial Sources with whom the Company has had conflict and
they are listed on a separate schedule signed by the parties hereto, or
none exist.
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| Page 6 of 8 | Confidential | Not for Disclosure |
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5.10
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This
Agreement may not be amended or modified except pursuant to a writing
signed by all parties and shall be governed by and construed in accordance
with the laws of the State of New
York.
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If the
foregoing correctly sets forth the entire understanding and agreement between
Financial Life Planning and the Company, please have an authorized person of the
Company so indicate by signing and dating in the spaces provided for that
purpose below and return an executed copy to Financial Life
Planning.
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SIGNATURE PAGE TO FOLLOW ------
| Page 7 of 8 | Confidential | Not for Disclosure |
IN
WITNESS WHEREOF:
The
parties have caused this Agreement to be executed in duplicate by their duly
authorized representatives.
FINANCIAL
LIFE PLANNING
By: /s/ Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx, President
ACCELERIZE
NEW MEDIA, INC.
00000
Xxxxxxxx Xxxxxxxxx., Xxxxx 000
Los
Angeles, CA 90025
By: /s/ Xxxxx
Xxxx
Xxxxx
Xxxx
Chief
Executive Officer
December 18,
2009
Date
| Page 8 of 8 | Confidential | Not for Disclosure |
ENGAGEMENT
LETTER AGREEMENT AMENDMENT
This
ENGAGEMENT LETTER AGREEMENT AMENDMENT (the “Amendment”) is effective as of
February 18, 2010 by and between Xxx Xxxxxxx and his firm Financial Life
Planning LLC, and Accelerize New Media, Inc.( "Company") Together, Xxx Xxxxxxx
and his firm Financial Life Planning LLC and Company are referred to as the
"Parties:"
W I T N E
S S E T H:
WHEREAS, the Parties entered into an
Engagement Letter Agreement dated December 18, 2009 (“the Agreement”), whereby
Financial Life Planning LLC was appointed non-exclusive financial advisor and
financing agent of the Company during the Term of the Agreement for the purpose
of advising, seeking, arranging and negotiating the private placement of
Company’s securities.
WHEREAS, the Parties desire to amend
certain provisions of the Agreement pertaining to the entity name listed on the
Agreement.
NOW, THEREFORE, in consideration of the
foregoing premises, the mutual covenants herein contained and each act performed
hereunder by the parties, Financial Life Planning LLC and Company agree that the
Agreement is amended as follows:
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1.
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Incorporation of
Recitals. The above recitals are hereby incorporated
into this Amendment as if fully set forth
herein.
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2.
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Amendment of Opening
Paragraph of Agreement. The Opening Paragraph of the
Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
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“Xxx
Xxxxxxx and his firm Financial Life Planning LLC ("Financial Life Planning,"
unless otherwise indicated) is pleased to submit this letter of engagement
("this Agreement") setting forth the terms and conditions whereby Financial Life
Planning will act as the non-exclusive financial advisor and financing agent for
Accelerize New Media, Inc. (OTCBB: ACLZ.OB) ( the "Company"), in advising,
seeking, arranging and negotiating the private placement of
securities ("Equity") (collectively, the
"Transaction").”
[SIGNATURE
PAGE FOLLOWS.]
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed as of the Effective Date.
| For: Xxx Xxxxxxx and his firm Financial Life Planning LLC | |||
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By:
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/s/Xxx Xxxxxxx | |
| Xxx Xxxxxxx | |||
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For: Accelerize
New Media, Inc.
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By:
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/s/ Xxxxx Xxxx | |
| Xxxxx Xxxx | |||
| Its: | Chief Executive Officer | ||
