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EX-10.(l)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), effective as of January
12, 1996 is entered into by and between ED NET, INC., a Colorado corporation
(herein referred to as the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS,
INC., a California corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded on the NASDAQ Electronic Bulletin Board; and
WHEREAS, Consultant has experience in the area of corporate finance,
investor communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist
and consult to the Company in matters concerning corporate finance and to
represent the company in investors' communications and public relations with
existing shareholders and brokers, dealers and other investment professionals as
to the Company's current and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual
covenants and' agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1. TERM OF CONSULTANCY. Company hereby agrees to retain the Consultant to
act in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company, for a term of twelve (12) months commencing on
January 12, 1996 and ending on January 11, 1997.
2. DUTIES OF CONSULTANT. The Consultant agrees to provide the following
specified consulting services through its officers and employees during the term
specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans, strategy and
personnel, as they may evolve during such period, and advise and assist the
Company in communicating appropriate information regarding such plans, strategy
and personnel to the financial community;
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(d) Assist and advise the Company with respect to its (i)
corporate finance activities, (ii) stockholder and investor relations, (iii)
relations with brokers, dealers, analysts and other investment professionals,
and (iv) financial public relations generally;
(e) Perform the functions generally assigned to
investor/stockholder relations and public relations departments in major
corporations, including responding to telephone and written inquiries (which may
be referred to the Consultant by the Company); preparing or reviewing press
releases, reports and other communications with or to shareholders, the
investment community and the general public; advising with respect to the
timing, form, distribution and other matters related to such releases, reports
and communications; and consulting with respect to corporate symbols, logos,
names, the presentation of such symbols, logos and names, and other matters
relating to corporate image;
(f) Disseminate information regarding the Company to shareholders,
brokers, dealers, other investment community professionals and the general
investment public;
(g) Conduct meetings, in person or by telephone, with brokers,
dealers, analysts and other investment professionals to advise them of the
Company's plans, goals and activities, and assist the Company in preparing for
press conferences and other forums involving the media, investment community
professionals and the general investment public;
(h) At the Company's request, review business plans, strategies,
mission statements budgets, proposed transactions and other plans for the
purpose of advising the Company of the investment community implications
thereof;
(i) Otherwise perform as the Company's financial relations and
public relations consultant; and,
(j) Make public communications and disclosures regarding the
Company only within the scope of the authorizations conferred by the Company and
not make any such communications or disclosures of information not provided or
authorized by the Company.
3. ALLOCATION OF TIME AND ENERGIES. The Consultant hereby promises to
perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and investor public relations and communications activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required, Consultant and the Company agree that Consultant will perform the
duties set forth hereinabove in a diligent and professional manner. At the
request of the Company, the Consultant will inform the Company of its specific
activities concerning the Company. The parties acknowledge and agree that a
disproportionately large amount of the effort to be expended and the costs to be
incurred by the Consultant and the benefits to be received by the Company are
expected to occur upon and shortly after, and in any event, within four or five
months of the effectiveness of this Agreement.
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4. REMUNERATION. As full and complete compensation for services described
in this Agreement, the Company shall compensate Consultant as follows:
4.1 For undertaking this engagement and for other good and
valuable consideration, the Company agrees to issue and deliver to the
Consultant a "Commencement Bonus" payable in the form of 390,000 unregistered,
restricted shares of the Company's Common Stock (the "Common Stock"), which for
this purpose have been valued by the Company's Board of Directors and the
Consultant at $ 2.125 per share. This Commencement Bonus shall be issued to the
Consultant promptly following execution of this Agreement and shall, when issued
and delivered to Consultant, be fully paid and non-assessable. The Company
understands and agrees that Consultant has foregone significant opportunities to
accept this engagement and that the Company derives substantial benefit from the
execution of this Agreement and the ability to announce its relationship with
Consultant. The 390,000 shares issued as a Commencement Bonus, therefore,
constitute payment for Consultant's agreement to represent the Company and are a
nonrefundable, non-apportionable, and non-ratable retainer; such shares are not
a prepayment for future services. All shares issued pursuant to this Agreement
shall be evidenced by stock certificate(s) issued in the name of Liviakis
Financial Communications, Inc. Consultant shall have demand registration rights
at the end of this Agreement to require the Company to use its best efforts in a
timely manner to register the 390,000 shares issued to it under this Agreement.
4.2 Consultant acknowledges that the shares of Common Stock to be
issued pursuant to this Agreement (the "Shares") have not been registered under
the Securities Act of 1933, and accordingly are "restricted securities" within
the meaning of Rule 144 of the Act. As such, the Shares may not be resold or
transferred unless the Company has received an opinion of counsel reasonably
satisfactory to the Company that such resale or transfer is exempt from the
registration requirements of that Act. It is also understood that the
certificates will bear a legend reflecting the fact that the securities have
been issued without registration under the Securities Act of 1933 and may not be
sold or transferred except upon registration or an exemption therefrom and
compliance with any applicable state securities laws.
4.3 In connection with the acquisition of Shares hereunder, the
Consultant represents and warrants to the Company as follows:
(a) Consultant acknowledges that the Consultant has been
afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning an
investment in the Shares, and any additional information which the Consultant
has requested.
(b) Consultant's investment in restricted securities is
reasonable in relation to the Consultant's net worth, which is in excess of ten
(10) times the Consultant's cost basis in the Shares. Consultant has had
experience in investments in restricted and publicly traded securities, and
Consultant has had experience in investments in speculative securities and other
investments which involve the risk of loss of investment. Consultant
acknowledges that an investment in the Shares is speculative and involves the
risk of loss. Consultant has the requisite
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knowledge to assess the relative merits and risks of this investment without the
necessity of relying upon other advisors, and Consultant can afford the risk of
loss of his entire investment in the Shares. Consultant is (i) an accredited
investor, as that term is defined in Regulation D promulgated under the
Securities Act of 1933, and (ii) a purchaser described in Section 25102 (f) (2)
of the California Corporate Securities Law of 1968, as amended.
(c) Consultant is acquiring the Shares for the
Consultant's own account for long-term investment and not with a view toward
resale or distribution thereof except in accordance with applicable securities
laws.
5. EXPENSES. Consultant agrees to pay for all its expenses (phone,
mailing, labor, etc.), other than extraordinary items (travel required by/or
specifically requested by the Company, luncheons or dinners to large groups of
investment professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, etc.) approved by the Company prior to
its incurring an obligation for reimbursement.
6. INDEMNIFICATION. The Company warrants and represents that all oral
communications, written documents or materials, other than those designated by
the Company to the Consultant as "confidential" or "Company private", furnished
to Consultant by the Company with respect to financial affairs, operations,
profitability and strategic planning of the Company are accurate and Consultant
may rely upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against any claims
or litigation including any damages, liability, cost and reasonable attorney's
fees with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials not designated by
the Company to the Consultant as "confidential" or "Company private", excluding
any such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company.
7. REPRESENTATIONS. Consultant represents that he is not required to
maintain any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant acknowledges
that, to the best of his knowledge, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant. Consultant acknowledges that, to the
best of his knowledge, Consultant is not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or securities laws.
Consultant further acknowledges that he is not a securities Broker Dealer or a
registered investment advisor.
8. LEGAL REPRESENTATION. The Company acknowledges that it has been
represented by independent legal counsel in the preparation of this Agreement.
Consultant represents that he has consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent the Consultant deemed
necessary.
9. STATUS AS INDEPENDENT CONTRACTOR. Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement shall
represent or hold itself out to be the
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employer or employee of the other. Consultant further acknowledges the
consideration provided hereinabove is a gross amount of consideration and that
the Company will not withhold from such consideration any amounts as to income
taxes, social security payments or any other payroll taxes. All such income
taxes and other such payment shall be made or provided for by Consultant and the
Company shall have no responsibility or duties regarding such matters. Neither
the Company or the Consultant possess the authority to bind each other in any
agreements without the express written consent of the entity to be bound.
10. ATTORNEY'S FEE. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs in
connection with that action or proceeding, in addition to any other relief to
which it or they may be entitled.
11. WAIVER. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
12. NOTICES. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
To the Company: Xxx Xxxxxxxxx
President & CEO
Ed Net, Inc.
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
To the Consultant: Liviakis Financial Communications, Inc.
Xxxx X. Xxxxxxxx, President
0000 "X" Xxxxxx; Xxxxx X
Xxxxxxxxxx, Xxxxxxxxxx 00000
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change to the
other party in the manner set forth in this paragraph.
13. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of
California. The parties agree that Sacramento County, CA. will be the venue of
any dispute and will have jurisdiction over all parties.
14. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this
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Agreement, shall be settled by binding arbitration in California, in accordance
with the applicable rules of the American Arbitration Association, and judgment
on the award rendered by the arbitrator(s) shall be binding on the parties and
may be entered in any court having jurisdiction thereof. The provisions of Title
9 of Part 3 of the California Code of Civil Procedure, including section
1283.05, and successor statutes, permitting expanded discovery proceedings shall
be applicable to all disputes that are arbitrated under this paragraph.
15. THIRD PARTY FEES. Consultant will not accept from any third parties any
fees or other remuneration related to services to be performed under this
Agreement, except with the prior written consent of the Company.
16. COMPLETE AGREEMENT. This Agreement instrument contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
and its terms may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
AGREED TO:
"Company" ED NET, INC.
Date: 1/12/96 By:/s/Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
President & CEO
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 1/12/96 By: /s/Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President
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