March 4, 1998
Xxxxxx Xxxxxxxx Esq.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, X.X. 00000
This letter shall constitute the Consulting Agreement
(including Exhibit A hereto. this "Agreement") between you ("Consultant") and
Educational Video Conferencing, Inc. (the "Company").
1. The Company hereby retains Consultant and Consultant hereby
agrees to perform such consulting and other services relating to the business of
the Company's as are described in Exhibit A attached hereto (the "Description of
Services and Compensation").
2. For the full and faithful performance of the Services, the
Company shall pay Consultant the fees in the amounts and manner set forth in
Exhibit A.
3. The Company represents and warrants to Consultant that its
Board of Directors has approved the Company's entering into this Agreement and
the transactions contemplated hereby and the Shares, when issued to Consultant,
will have been duly authorized and validly issued fully paid and non-assessable.
4. Consultant represents and warrants to the Company that
Common Stock issued to him pursuant to this Agreement (the "Shares"), will be
acquired by him solely for his own account for investment purposes; that he does
not have the present intention of reselling or distributing the Shares; that he
understands the Shares have not been and will not be registered under the
Securities Act of 1933 (the "Act") in reliance upon an exemption from such
registration; that the Shares cannot be resold or otherwise transferred unless
registered under the Act or exempt from such registration and that the
certificate(s) representing the Shares will bear a restrictive legend to such
effect; that he has received and read the Company's Confidential Offering
Memorandum dated December 24, 1997, and has had the opportunity to ask questions
of and obtain information about the Company to his satisfaction, including
information he deemed necessary to verify and up;date the information contained
in such Memorandum; and that he is an "accredited investor," as defined in
Regulation D under the Act. Consultant also represents and warrants that he is
permitted to enter into this Agreement and perform the obligations contemplated
hereby and that this Agreement and the terms and obligations hereof arc not
inconsistent with any other obligation he may have.
5. This Agreement shall have an initial three-year (3) term
commencing today and ending January 31, 1998 unless this Agreement is not
previously terminated, as provided herein. The expiration or termination of this
Agreement shall not relieve Consultant or the Company of any obligations
hereinafter which by their terms are intended to survive the termination of this
Agreement, including pursuant paragraphs 7, 9, 10 and 11 below.
6. Except as otherwise provided in Exhibit A hereto,
Consultant agrees to make himself available to render the Services at such time
or times and location or locations as may be requested, from time to time, by
the Company and at such other times reasonably required to perform the services.
Consultant agrees to devote his reasonable efforts to performing the Services.
7. So long as this Agreement continues in effect and for a
period of 24 months following the termination of this Agreement Consultant shall
not, solicit any employees, customers, educational providers of the Company or
engage in any employment, consulting or business activity that is or is intended
to be competitive with the business of the Company (i.e., educational video
conferencing), as being conducted at the time of such termination, or any
products or services which are being considered, developed, marketed and/or sold
at the time of such termination provided, however, that the Consultant's
ownership of any investment in any security shall not be deemed to be a
violation of this Section 9 if such investment does not constitute over one
percent (1%) of the outstanding issue of such security.
8. It is understood and agreed that Consultant's relationship
to the Company is that of an independent contractor and that neither this
Agreement nor the Services to be rendered hereunder shall for any purpose
whatsoever or in any way or manner create any employer-employee relationship
between the parties.
9. (a) Subject to such 9(b) below. Consultant agrees that he
will not at any time publish or disclose to others or use for his own benefit or
the benefit of others any business plans and strategies, trade secrets,
financial information, customer or vendor lists or other information
(individually or collectively, "Information") that becomes known to him as a
result of his consulting relationship with the Company and which is the property
of the Company or any of its clients, customers, consultants, licensors,
licensees, or affiliates, except as may be necessary in the ordinary course of
performing in good faith his particular duties as a consultant of the Company.
(b) The provisions of subparagraph 9(b) shall not apply
(i) to the extent the Information was previously known to Consultant without
breach of subparagraph 9(a); (ii) to the extent Information becomes publicly
available by action of the Company or third parties; (iii) to the extent
Consultant receives such Information from a third party who has rightfully
received such Information and is not under any duty to keep such Information
confidential, and (iv) to the extent Consultant is required to provide
Information to a court of law or pursuant to lawful subpoena or summons.
(c) Upon termination of this Agreement, Consultant shall
return to the Company any and all documents and materials containing Information
that are the property of the Company or its customers, licensees, licensors or
affiliates.
10. Consultant agrees that he will not make any notes or
memoranda relating to the business of the Company otherwise than for the benefit
of the Company and will not at any time use or permit to be used any such notes
or memoranda otherwise than for the benefit of the Company.
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11. Consultant agrees that any breach of this Agreement by him
could cause irreparable damage to the Company and that, in the event of such
breach. the Company shall have the right to obtain injunctive relief, including,
without limitation, specific performance or other equitable relief to prevent
the violation of his obligations hereunder. It is expressly understood and
agreed that nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available for such breach or threatened
breach, including, without limitation, the recovery. of damages by the Company.
12. The Services to be rendered by Consultant are personal in
nature. Consultant may not assign or transfer this Agreement or any of his
rights or obligations hereunder except to a corporation of which he is the sole
stockholder. In no event shall Consultant assign or delegate responsibility for
actual performance of the Services to any other natural person.
13. Notwithstanding anything to the contrary contained herein,
either party shall have the fight to terminate this agreement at any time on
five days notice, with or without cause.
14. All notices and other communications hereunder shall be
deemed given when delivered by hand against receipt (which shall include
delivery by Federal Express or similar service) or three business days after
being sent by registered or certified mail, return receipt requested, in each
case addressed to the party at his or its address set forth above, or to such
other address as such party may designate in writing to the other.
15. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and permitted assigns.
16. This Agreement constitutes the entire Agreement between
the parties regarding the subject matter hereof. No provision of this Agreement
shall be waived, altered or cancelled except in writing signed by the party
against whom such waiver, alteration or cancellation is asserted. Any waiver
shall be limited to the particular instance and the particular time when and for
which it is given.
17. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflict of laws.
18. The invalidity or enforceability of any provision hereof
as to an obligation of a party shall in no way affect the validity or
enforceability of any other provision of this Agreement. provided that if such
invalidity or unenforceability materially adversely affects the benefits the
other party reasonable expected to receive hereunder, that party shall have the
fight to terminate this Agreement. Moreover, if one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to scope activity or subject so as to be unenforceable at law, such provision
or provisions shall be construed by limiting or reducing it or them, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
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Please indicate your Agreement to the foregoing by signing a copy of this
Agreement where provided below and returning such copy to the Company.
Very truly yours,
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Xx. Xxxx X. Xxxxxxxx
--------------------------------
Xx. Xxxx X. Xxxxxxxx, Chief
Executive Officer
AGREED:
/s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx, Consultant
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Exhibit A
Description of Services and Compensation
Consultant shall help the Company obtain financing and
corporate customers along with helping the Company indemnify and acquire
proprietary educational providers. Consultant shall also be available to help in
strategic planning and corporate development.
For the full and faithful performance of the Services, the
Company shall pay Consultant the fees in the amounts and manner set forth below:
(a) 5% percent of all revenue received from any activities with
New York Institute of Technology (NYIT).
(b) 50,000 options exercisable over a seven-year period at a price
of S3.50 per share. Of these options, 25,000 options shall vest after
6 months.
(c) Up to 150,000 options exercisable over a seven-year period at
a price of $3.50 per share. Said options shall vest ratably at the rate
of 50,000 per year long as either party has not canceled the contract.
The options shall contain the customary anti-dilution and payment in kind
provisions.
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XXXXXX X. XXXXXXXX
00 XXXXXXX
XXXXX XXXXX, XX 00000
March 4, 1998
Xx. Xxxx X. Xxxxxxxx
Educational Video Conferencing, Inc.
00 X. Xxxxxx Xxxxxx Xxxx - Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
RE: Consulting Contract dated March 4, 1998
Dear Arol:
It is understood that you have retained the law firm of Ruskin, Moscou, Xxxxx &
Faltischek to act as counsel to the company. I am affiliated with the law firm
in an "of counsel" capacity. It is understood that I will only xxxx for my time
spent on company matters if it is in the nature of legal matters and not matters
for which I am consulting. Partners and associates of the firm will xxxx for
their time in the normal course.
Sincerely,
Xxxxxx X. Xxxxxxxx
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