Exhibit 4.13
▇▇▇▇▇ and Company, LLC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
August 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇,
President
Branded Media Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
Pursuant to our discussions, the purpose of this letter is to confirm our
agreement regarding the scope and terms for the retention of ▇▇▇▇▇ Capital, Inc.
("▇▇▇▇▇") as the non-exclusive financial advisor to Branded Media Corporation,
and any subsidiaries and affiliates ("Branded Media" or the "Company"). ▇▇▇▇▇
will assist the Company, on a best efforts basis, with regard to the sale by the
Company of up to $6 million of Preferred Stock 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 Preferred Stock shall be in a form and shall contain the terms as
negotiated between ▇▇▇▇▇ and Branded Media. The term of this Agreement shall be
until the closing date of the Company's Offering or until October 31, 2005,
whichever occurs first.
As an advisor to the Company pursuant to this Agreement, ▇▇▇▇▇ 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 Preferred Stock
(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 Preferred Stock financing being offered
and sold by the Company.
Any additional services shall be subject to further negotiation and
agreement between the Company and ▇▇▇▇▇, including a provision for additional
fees.
In conjunction with the steps outlined above, the Company agrees to provide
▇▇▇▇▇ with necessary assistance and information required at all steps and to
have management available as required. ▇▇▇▇▇ will be entitled to rely on
information provided by the Company, and its directors, officers, employees,
counsel, accountants and/or other advisors, which ▇▇▇▇▇ reasonably deems
appropriate, without assuming any responsibility for independent investigation
or verification thereof. ▇▇▇▇▇ agrees that all activities on behalf of the
Company are confidential.
▇▇▇▇▇'▇ 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:
1. ▇▇▇▇▇ shall receive a 8% cash fee for any monies raised from investors who
are identified by ▇▇▇▇▇ ("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
▇▇▇▇▇ within 10 business days of the execution of this Agreement.
2. In addition, ▇▇▇▇▇ shall receive warrants to purchase 10% of the number of
shares of common stock into which the Preferred Stock sold by the Company
to Actual Investors is convertible, exercisable at l05% of the sales or
conversion price of the Preferred Stock. The warrants will be satisfactory
in form and substance to ▇▇▇▇▇ 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
▇▇▇▇▇'▇ members.
Upon completion of a minimum of $5,000,000 of the Offering, the Company
shall agree to inform ▇▇▇▇▇ 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). ▇▇▇▇▇ 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 ▇▇▇▇▇ will be acting on behalf of the Company, the Company agrees to
indemnify and hold ▇▇▇▇▇ 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, ▇▇▇▇▇ shall at all times be an
independent contractor hereunder, rather than a co-venturer, agent, employee or
representative of the Company.
This Agreement may be terminated either by ▇▇▇▇▇ 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, ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 (646)
521-8572 if you have any questions. We very much look forward to working with
you on this important assignment.
Sincerely,
▇▇▇▇▇ & Company LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
CEO
Agreed to and Accepted by:
Branded Media Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
President