▇▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇; ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TEL: ▇▇▇ ▇▇▇ ▇▇▇▇ E-MAIL: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Member NASD/SIPC
December 9, 2003
PRIVATE AND CONFIDENTIAL
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ By Overnight Delivery and
CEO E-Mail
Home Director Inc
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Engagement Agreement
Dear ▇▇▇▇▇▇:
This letter agreement (this "Agreement") confirms our understanding that
Home Director, Inc and its subsidiaries ("HMDR" or the "Company") has engaged
▇▇▇▇▇▇▇▇▇▇▇ Securities, Inc. and its successors and assigns ("BGTN" or the
"Advisor") to act as its non-exclusive financial advisor and investment banker.
Retention
For the term hereof, HMDR hereby appoints BGTN as HMDR's non-exclusive
financial advisor and investment banker. Though not hereby retained by the
Company in that capacity, BGTN may also act as a sub-agent in the placement of
Securities in the First Offering (as defined below), if and only to the extent
that the Adviser is retained as a dealer or sub agent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Ventures,
Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") in connection with the First Offering. The Adviser agrees
that any compensation from acting as sub-agent in the First Offering will be due
only from ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Subject to the terms and conditions of this Agreement, BGTN accepts this
appointment. The Advisor agrees that in its capacity hereunder, it will use its
commercially reasonable best efforts, consistent with his business judgment, to
advise the Company. In no event shall the Advisor be obligated to purchase the
Securities (as defined below) for its own account or for the accounts of the
Investors (as defined below).
Services
The services to be performed by BGTN shall include:
(a) Meeting with management of the Company to review the Company's
historic, current and prospective operations, business and financial
condition;
(b) Completing a due diligence review of the Company to determine the
Advisor's view of expected cash flow, borrowing capacity, current
and potential enterprise value;
(c) Advising the Company as to appropriate structure, terms and
conditions to be included in any debt or equity securities offerings
or other financing transactions (the "Financing Transactions");
provided, however, that Financing Transactions shall not include the
Company's private offering (the "First Offering") of units ("Units")
on the terms set forth in that certain Private Placement Memorandum
dated November 10, 2003, pursuant to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ has been
engaged as the Company's exclusive placement agent;
(d) Subject to any "Quiet Period Restrictions" (as defined below),
identifying and contacting prospective investors ("Investors") in
the Company's securities (the "Securities") and/or parties
interested in a merger or acquisition transaction (a "Business
Combination") with the Company and
(e) To the extent specific compensation (aside from the Warrant (as
defined below)) is agreed upon, from time to time, issuing fairness
opinions ("Fairness Opinion"), effecting Financing Transactions and
Business Combinations.
BGTN hereby agrees that, during any public or private offering by the
Company of shares of its capital stock (a "Quiet Period"), BGTN will not (i)
contact any prospective investor (other than to sell shares pursuant to a
registration or its separate engagement to place or sell such shares in such
offering) or any parties interested in a Business Combination or (ii) except for
normal activities as a market maker of the Common Stock, subject to applicable
securities laws and regulations, purchase or sell any shares of Common Stock
((i) and (ii), the "Quiet Period Restrictions"). The Company shall notify BGTN
in writing of the beginning and end of any Quiet Period; provided, however, that
BGTN hereby acknowledges that a Quiet Period is currently in effect and will
remain in effect until the Company completes the First Offering, at which time
the Company will provide BGTN with written notice of the end of the current
Quiet Period.
For the avoidance of doubt, the Adviser has not been retained by the
Company to provide any services in connection with the First Offering nor as a
placement agent of any of the Company's Securities. If and to the extent that
the Adviser wishes to assist ▇▇▇▇▇▇▇ ▇▇▇▇▇ in placing the Units in the First
Offering, the Adviser shall arrange to be retained as a dealer and/or sub agent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the terms of the Agency Agreement dated
November 10, 2003 between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇. If and to the extent
the Company desires to retain the Advisor as a placement agent (other than as to
the First Offering), the parties
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agree that a separate placement agreement setting forth the duties and
obligations of the parties must be negotiated and executed before any rights
arise.
Fee Structure
Upon execution of this Agreement, BGTN shall receive, as full compensation
for the enumerated services rendered, hereunder, a three-year warrant
("Warrant") to purchase 100,000 shares of the Company's common stock, par value
$0.01 per share ("Common Stock"), at an exercise price of $1.15 per share. The
Warrant shall be immediately exercisable with respect to 50,000 shares of Common
Stock and become exercisable as to the remaining 50,000 shares of Common Stock
at such time, if ever, as the Common Stock is qualified for listing on the
American Stock Exchange. The Common Stock underlying the Warrant shall have
customary "piggyback" registration rights (subject to customary limitations and
holdbacks and the requirements of existing contracts) so long as such shares are
not otherwise saleable pursuant to Rule 144(k) under the Securities Act.
BGTN represents and warrants to the Company that it is an accredited
investor within the meaning of Rule 501 under the Securities Act and covenants
and agrees that it will not assign or otherwise transfer the Warrant or the
underlying shares except in compliance with the registration requirements of the
Securities Act and state securities laws or an appropriate exemption from such
requirements. BGTN acknowledges that the Warrant will bear a legend to the
foregoing effect
For the avoidance of doubt, the Adviser shall not be entitled to any
compensation from the Company in connection with the First Offering. If and to
the extent that the Adviser is retained as a dealer or sub agent of ▇▇▇▇▇▇▇
▇▇▇▇▇ in connection with the First Offering, the Adviser will seek any
compensation it may be owed from ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, the Company
acknowledges and agrees that the Warrant is not the only compensation for any
fairness opinion or services as a placement agent in a context other than the
First Offering.
Term
The term of this Agreement shall, except as otherwise mutually agreed, run
for a period of one hundred eighty days (180) days from the date this Agreement
is executed (the "Term").
Termination
The engagement hereunder may be terminated by the Company or the Advisor
at any time upon thirty (30) days prior written notice to the other.
Information
HMDR will furnish to BGTN on a timely basis, and in a satisfactory format
and detail to the Advisor, such data and information as the Advisor may
reasonably request. The Company represents and warrants that such data and
information is or will be accurate and complete in all material respects. The
Company acknowledges that the Advisor is relying, without independent
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verification, on the accuracy and completeness of all information furnished. The
Company further agrees that its failure or inability to expeditiously provide
such data or information, or to secure timely access to key personnel and
facilities, may have a material adverse affect on the scope, timing and success
of this engagement.
Confidentiality
To the extent that the Company provides any non-public information to BGTN
in connection with the services provided hereunder, BGTN agrees to keep
non-public information about the Company confidential so long as it remains
non-public, unless disclosure is required by law or requested by any
governmental or regulatory agency or body (and if so required shall promptly
notify the Company), and will not make any use thereof, except in connection
with their services hereunder and in any case in compliance with Regulation FD
under the Exchange Act.
Other than as agreed or as required by the execution of a Business
Combination, HMDR shall not convey to the public through advertising, public
relations, news, sales, mail, direct transmittal, or other media, nor through
any offering circular or registration statement, prospectus, appraisal, loan or
other agreements or documents all or any part of written or oral presentation
with respect to the placement of the Securities and/or execution of a Business
Combination, nor other communication or documentation delivered, nor any
reference to the Advisor or to any individuals assigned by the Advisor to this
engagement, without the prior written consent of the Advisor.
Indemnification
If either party to this Agreement brings an action based on this
Agreement, the prevailing party shall be entitled to recover reasonable expenses
therefor, including, but not limited to, attorneys' fees, expenses and court
costs.
In addition, except in connection with the First Offering, HMDR agrees to
indemnify and hold harmless BGTN and its affiliates, counsel and other
professional advisors, the respective directors, officers, agents and employees
of each of the foregoing or any of their affiliates within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities and Exchange Act of 1934, as amended, (individually, a "BGTN
Indemnified Party" and collectively, the "BGTN Indemnified Parties"), from and
against all losses, claims, damages, expenses or liabilities resulting from,
relating to, or arising out of action taken or omitted to be taken by the
Company in connection with a sale of Securities or a Business Combination as
contemplated hereunder; provided, however, that the Company will not be liable
in any such case to the extent that any such claim, damage or liability results
from (x) an untrue statement or alleged untrue statement of a material fact made
in any offering material or an omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in
reliance upon and in conformity with information furnished to the Company by
BGTN or its affiliates or (y) any violations by BGTN or its affiliates of the
Securities Act, the Exchange Act or any state securities law. In addition, with
respect to claims for indemnification by the Company required hereunder, the
Company agrees to reimburse each BGTN Indemnified
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Party for all reasonable out-of-pocket and direct expenses (including reasonable
fees and expenses of counsel) as they are incurred by such BGTN Indemnified
Party in connection with investigating, preparing or defending any such action
or claim, whether or not in connection with litigation in which any BGTN
Indemnified Party is named party.
Notwithstanding the foregoing, HMDR shall not be liable to a BGTN
Indemnified Party in respect to any loss, claim, damage, liability or expense to
the extent the same is determined, in a final judgment by a court of competent
jurisdiction, to have resulted primarily and directly from the gross negligence
or willful misconduct of that BGTN Indemnified Party.
BGTN agrees to indemnify the Company and its affiliates, counsel and other
professional advisors, the respective directors, officers, agents and employees
of each of the foregoing or any of their affiliates within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
(individually, an "HMDR Indemnified Party" and collectively, the "HMDR
Indemnified Parties"), from and against all losses, claims, damages, expenses or
liabilities resulting from, relating to, or arising out of action taken by BGTN
in connection with a sale of Securities or a Business Combination as
contemplated hereunder; insofar as such losses, claims, damages, expenses or
liabilities are based upon (i) an untrue statement or alleged untrue statement
of a material fact made in any offering material or an omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, in reliance upon and in conformity with information
furnished to the Company by BGTN or its affiliates or (ii) any violations by
BGTN or its affiliates of the Securities Act, the Exchange Act or any state
securities law. In addition, with respect to claims for which indemnification by
BGTN is required hereunder, BGTN agrees to reimburse each HMDR Indemnified Party
for all reasonable out-of-pocket and direct expenses (including reasonable fees
and expenses of counsel) as they are incurred by such HMDR Indemnified Party in
connection with investigating, preparing or defending any such action or claim,
whether or not in connection with litigation in which any HMDR Indemnified Party
is a named party.
Notwithstanding the foregoing, BGTN shall not be liable to an HMDR
Indemnified Party in respect of any loss, claim, damages, liability or expense
to the extent the same is determined, in a final judgment by a court of
competent jurisdiction, to have resulted primarily and directly from the gross
negligence or willful misconduct of that HMDR Indemnified Party.
In the event of the assertion against any indemnified party of any claim
or the commencement of any action or proceeding, the indemnifying party shall be
entitled to participate in such action or proceeding, and in the investigation
of such claim, and after written notice from the indemnifying party, to assume
the investigation or defense of such claim, action or proceeding with counsel of
its choice at its expense; provided however, that such counsel shall be
reasonably satisfactory to that indemnified party. Notwithstanding the
indemnifying party's election to assume the defense or investigation of such
claim, action or proceeding, any indemnified party shall have the right to
employ separate counsel (and local counsel, if necessary) and to participate in
the defense or investigation of such claim, action or proceeding, and the
indemnifying party shall advance and bear the expense (including reasonable fees
and disbursements) of such separate counsel. In the event that the indemnifying
party shall have assumed the defense or investigation of any claim, action or
proceeding, the indemnifying party
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may not settle any such claim, action or proceeding without the written consent
of any indemnified party named as defendant therein.
If for any reason the foregoing indemnification is unavailable to an
indemnified party or is insufficient to hold it harmless as contemplated herein
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as result of such loss, claim, liability or expense in
such proportion as it appropriate to reflect not only the relative benefits
received by HMDR and its affiliates, on the one hand, and BGTN and its
affiliates, as the case may be, on the other hand, but also the relative fault
of the Company and its affiliates and BGTN and its affiliates, as the case may
be, as well as any other relevant equitable considerations.
If any personnel of a BGTN Indemnified Party appears as a witness, are
deposed or are otherwise involved in the defense of any action against any BGTN
Indemnified Party, HMDR or any officer or director of the Company, the Company
will reimburse such BGTN Indemnified Party for all reasonable out-of-pocket and
direct expenses (including the reasonable fees and expenses of counsel for such
BGTN Indemnified Party) incurred by it by reason of any of its personnel being
involved in any such action and will compensate BGTN for time spent, by its
employees preparing for and testifying as witnesses in any deposition or
proceeding at BGTN's customary daily rates.
Governing Law
This Agreement shall be governed by and construed in accordance with the
internal substantive laws, and not the choice of law rules, of the State of New
York. Any suits, claims, causes of action, or disputes arising under this
Agreement shall be brought in the courts of the State of New York or in the
United States District Court of the Southern District of New York.
Survival
The fee, expense reimbursement and indemnification obligations of the
parties contained herein shall survive the termination hereof.
Company or Corporate Obligation
The obligations of HMDR and BGTN hereto are solely company or corporate
obligations, and no officer, director, employee, agent, member or controlling
person shall be subject to any personal liability whatsoever, nor will any such
claim be asserted by or on behalf of the Company or the Advisor or any person
relying on the written or verbal conclusions of the Company or the Advisor.
Notice
Notice given pursuant to any of the provisions of this Agreement shall be
in writing and shall be mailed or delivered to (a) Home Director Inc, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ CEO; and
(b) ▇▇▇▇▇▇▇▇▇▇▇ Securities, Inc. at ▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, President.
Sole and Entire Agreement; Binding Effect
This Agreement is the sole and entire Agreement between the parties
pertaining to its subject matter and supersedes all prior agreements,
representations and understandings of the parties. No modification of this
Agreement shall be binding unless agreed to in writing by BGTN and HMDR. This
Agreement shall be binding on and shall inure to the benefit of the successors
and assigns of the parties hereto provided that neither this Agreement nor any
of the Advisors' rights, undertakings or obligations hereunder may be assigned
by the Advisor without the prior written consent of the Company.
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Kindly indicate your assent to the terms and conditions of our
understanding by signing this Agreement, whereupon this Agreement shall
constitute a binding contract between HMDR and BGTN. Please return one copy of
this Agreement (the other copy of which is for your files) to the Advisor.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President
The foregoing has been read, understood and approved, and the undersigned does
hereby agree to retain ▇▇▇▇▇▇▇▇▇▇▇ Securities, Inc. upon the terms and
conditions contained herein. By execution hereof, the undersigned represents
full power and authority to bind Home Director, Inc. to the terms and conditions
hereof.
Agreed and accepted this _____ day of December, 2003:
HOME DIRECTOR, INC
By
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▇▇▇▇▇▇ ▇▇▇▇▇▇
CEO
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