EXHIBIT 10.7
Legend ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Merchant Group, Inc. 38th. Floor
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FAX (▇▇▇) ▇▇▇-▇▇▇▇
Member NASD . SIPC
December 3, 2003
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Chairman, Pres, CEO
WORKSTREAM INC.
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Re: Business Advisory Agreement
Dear ▇▇. ▇▇▇▇▇▇▇▇▇,
This letter confirms our mutual understanding and agreement ("Agreement")
relating to the business advisory fees ("Fees") payable to Legend Merchant
Group, Inc. ("LMG"), a New York corporation, by Workstream Inc. ("Company"), for
LMG's business advisory services rendered in connection with any equity and/or
debt investment, merger, acquisition, partnership, joint venture, investment,
strategic alliance or any other business combination (any such transaction is
referred to herein as a "Transaction"), entered into by the Company with a
business entity and/or individual ("Entity") that was introduced, directly and
in writing to the Company and confirmed in writing by the CEO to LMG.
Additionally, LMG agrees to use its best efforts to assist the Company in
formulating and deploying strategies designed to enhance shareholder value. It
is anticipated that such efforts may be broad in scope and include advisory
services such as capital introductions in the institutional community,
shareholder / investor relations, and exposure to industry analysts.
LMG herby agrees to provide such business advisory services to the company on a
"BEST EFFORTS, NON-EXCLUSIVE" basis for a term ("Term") of 12 months in
accordance with the terms and conditions of this Agreement. LMG makes no
assurances that the provision of its business advisory services hereunder will
be beneficial to the Company under any circumstances.
It is further understood and agreed by the parties hereto that the Company is
entering into this Agreement for the purpose of inducing LMG to provide business
advisory services in connection with the Company's business interests with
investment banking firms, brokerage firms, investors, financiers, buyers and/or
sellers who may participate in a Transaction with the Company. While LMG
represents and warrants to use its best efforts to provide business
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advisory services, it is specifically understood that no assurance can be made
as to the benefit to the Company of such services.
Now, therefore, in consideration of the mutual promise and covenants made herein
and for other good and valuable consideration, the receipt and sufficiency or
which are hereby acknowledged by the parties hereto, the parties hereto hereby
agree as follows:
1. The Company shall pay to LMG the business advisory Fees related to its
business advisory services upon the Company consummating a Transaction during
the Term of this Agreement with an Entity introduced by LMG to the Company
during the term of this Agreement. The Company acknowledges that during the Term
of this Agreement, the Company shall have an affirmative obligation to promptly
notify LMG when and if it is formally negotiating with an Entity, entering into
a Letter of Intent with and Entity and/ or consummating a Transaction with an
Entity introduced by LMG to the Company during the term of this Agreement.
2. LMG shall be deemed to have introduced the Entity to the Company if (a)
the Company has no prior knowledge of the interest by the Entity in the proposed
Transaction and/or (b) LMG provides an introduction to a representative of such
Entity who is in a position to evaluate the Transaction and whose normal
function is to recommend or commit to such Transactions on behalf of such
Entity. The introduction must be confirmed in writing and pre approved by the
CEO of the company.
3. In the event of such equity and/or debt investment, merger,
acquisition, partnership, joint venture or other business combination by and
between the Company and the Entity, in which the LMG was instrumental in
introducing, directly, to the Company, the Company shall pay to LMG the business
advisory Fees as set forth in the formula appended hereto as Schedule A. The
Fees shall be paid in cash or stock at the companies choice and shall be due and
owing on the date and at the time the Transaction is first consummated.
4. The Term "Gross Aggregate Consideration" as used in this Agreement and
the appended Schedule A means:
(a) in the event of a purchase of the Company's assets, the price paid
for the assets acquired and the interest bearing indebtedness
assumed by an Entity;
(b) in the event of a purchase of the Company's stock or a merger with
an Entity, the price paid to the selling stockholders plus the
interest bearing indebtedness assumed by the Company or Entity;
(c) in the event of an investment in an Entity, the total investment in
the Entity by the Company; or
(d) in the event of an investment by an Entity in the Company of any and
all currency, full fair market value of securities, and any other
assets received from any combination of the above accepted by the
Company,
In determining the Gross Aggregate Consideration paid in shares of stock
or other property, such stock or property shall be valued at its fair market
value as determined in good faith by the Company. If any of the Gross Aggregate
Consideration is payable in currency other than U.S. dollars, for the purpose of
calculating the Fees payable, the Gross Aggregate
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Consideration will be converted into U.S. dollars at the exchange rate
prevailing on the date the Transaction is consummated and/or the agreement
between the Company and the Entity is executed, regardless of whether any of the
Gross Aggregate Consideration payable by the Company is earnout payments or
otherwise contingent in nature or payable in installments or otherwise deferred.
5. LMG agrees that it will use its best efforts to assist the Company with
its business advisory services. However, LMG is not an agent of the Company.
Rather, LMG is an independent contractor and business advisor who is doing
business with the Company as a non-exclusive, independent business advisor. Both
the Company and LMG recognize and acknowledge the LMG has no authority to
execute any agreements on behalf of the Company.
6. The Company shall issue to LMG, upon the signing of this agreement
100,000 WSTM warrants to purchase 100,000 WSTM common shares for a period of 2
(two) years commencing upon the date hereof and based on the following schedule:
-50,000 warrants exercisable at 1.50 per share
-50,000 warrants exercisable at 1.75 per share
The shares issuable upon exercise of the warrants are to be registered under the
Securities Act of 1933, as amended.
During the Term of this Agreement, LMG shall be reimbursed by the Company for
its reasonable out of pocket costs and expenses, which are related to the
rendering of the business advisory services pursuant to this Agreement, if pre
approved by the CEO prior to being spent, all expenses will be paid, if expenses
were pre approved in writing.
7. Either party hereto may terminate the Agreement at any time upon 30
days written notice, without any liability or continuing obligation. The
termination of this Agreement shall not affect the business advisory Fees
payable to LMG.
8. Any controversy, dispute or claim between the parties relating to this
Agreement shall be resolved by binding arbitration in accordance with the rules
of the American Arbitration Association. If either party to this Agreement shall
bring a complaint against the other party for relief, declaratory or otherwise,
arising out of this Agreement, the prevailing party shall be entitled to recover
its legal, accounting and related costs and expenses as may be determined.
9. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement is the sole and entire
agreement between the parties hereto pertaining to its subject matter and
supersedes all prior oral and written agreements, representations and
understandings of the parties hereto. No modifications of the Agreement shall be
binding unless agreed to in writing by the parties hereto. This Agreement shall
be binding on and inure to the benefit of the successors and assigns of the
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parties hereto provided that neither this Agreement nor any of LMG's rights
hereunder may be assigned by LMG with out the prior written consent of the
Company.
Very truly yours,
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Chairman
LEGEND MERCHANT GROUP, INC,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. Dated: 12/9/03
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Chairman
AGREED AND ACCEPTED:
WORKSTREAM INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Dated: 12/3/03
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Chairman, Pres, CEO
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Very truly yours,
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Chairman
LEGEND MERCHANT GROUP, INC,
By: Dated:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Chairman
AGREED AND ACCEPTED:
WORKSTREAM INC.
By: Dated:
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Chairman, Pres, CEO
SCHEDULE A
The amount of the business advisory Fees that the Company shall pay to LMG
in Connection with a Transaction in which the Company was directly introduced by
LMG shall be determined as follows:
o Five percent of the Gross Aggregate Consideration less than $5 million;
plus
o Three percent of the Gross Aggregate Consideration over $5 million to $10
million; plus
o Two percent of the Gross Aggregate Consideration over $10 million to $15
million; plus