As filed with the Securities and Exchange Commission on July 25, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EDnet, Inc.
(Exact name of registrant as specified in its charter)
Colorado ------------- 84-1273795
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Union Street
San Francisco, California 94111
(415) 274-8800
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
-------------
EDnet, Inc.
Shares Issued Pursuant to Charles W. Clark Consulting Agreement
(Full title of the plan)
Alan Geddes
Chief Financial Officer
EDnet, Inc.
One Union Street
San Francisco, California 94111
(415) 274-8800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------
Copies to:
Robert B. Ajemian, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of offering aggregate Amount of
securities to be registered Amount to be registered price per share (1) offering price (1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 400,000 shares $0.9375 $375,000 $113.64
$0.001 per share
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h)(1). The above calculation is based on
the average of the bid and asked price of the Common Shares on the
Nasdaq Bulletin Board on July 23, 1997.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this Registration
Statement:
(a) The Company's Post-Effective Amendment No. 3 to Registration Statement
on Form 10-SB filed under the Exchange Act;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since June 30, 1996; and
(c) The description of the Company's Common Shares contained in the
Company's Post-Effective Amendment No. 3 to Registration Statement on Form 10-SB
filed under the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act shall be deemed to be incorporated by
referenced herein and to be a part hereof from the date of filing (except that
no document shall be deemed to be incorporated by reference if filed after the
filing of a post-effective amendment which deregisters securities then remaining
unsold).
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 7-108-402(1) of the Colorado Corporation Business Act provides that
a corporation may, if it so provides in its articles of incorporation, eliminate
or limit the personal liability of a director to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director;
except that any such provision shall not eliminate or limit the liability of a
director to the corporation or to its shareholders for monetary damages for any
breach of the director's duty of loyalty to the corporation or its shareholders,
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, an unlawful distribution, or any transaction from
which the director directly or indirectly derived an improper personal benefit.
Article XIII of the Company's Articles of Incorporation provides that the Board
of Directors of the Company shall have the power to indemnify its directors and
officers against expenses and liabilities they incur to defend, settle or
satisfy any civil or criminal action brought against them on account of their
being or having been company directors or officers unless, in any such action,
they are adjudged to have acted with negligence or engaged in misconduct.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-1.
<PAGE>
Item 8. Exhibits.
Number Exhibit
------ -----------------------------
5 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5)
24 Powers of Attorney of the Company's directors and officers
(see Part II, page 5)
99 Charles W. Clark Consulting Agreement
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act"), (unless the
information required to be included in a post-effective amendment by this
paragraph is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement).
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement (unless the information required to be included in a
post-effective amendment by this paragraph is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this registration
statement). Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities
II-2.
<PAGE>
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
EDnet, Inc., certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on July 23,
1997.
EDnet, Inc.
By /s/Tom Kobayashi
------------------------------
Tom Kobayashi
Chairman of the Board and
Chief Executive Officer
II-4.
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Tom Kobayashi his
true and lawful attorney-in-fact with authority to execute in the name of each
such person, and to file with the Securities and Exchange Commission, together
with any exhibits thereto and other documents therewith, any and all amendments
(including without limitation post-effective amendments) to this registration
statement necessary or advisable to enable the registrant to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, which amendments
may make such other changes in the registration statement as the aforesaid
attorney-in-fact deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/Tom Kobayashi Chairman of the Board, Chief July 23, 1997
- ------------------------- Executive Officer and Director
Tom Kobayashi
/s/Alan Geddes Chief Financial Officer July 23, 1997
- -------------------------
Alan Geddes
/s/Avi A. Fogel Director July 23, 1997
- -------------------------
Avi A. Fogel
/s/David Gustafson Director July 23, 1997
- -------------------------
David Gustafson
/s/Robert J. Wussler Director July 23, 1997
- -------------------------
Robert J. Wussler
/s/Charles W. Clark Director July 23, 1997
- -------------------------
Charles W. Clark
II-5.
<PAGE>
EXHIBIT INDEX
Sequntial
Number Exhibit Page No.
- ------ ----------------------------- ---------
5 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP
(included in Exhibit 5)
24 Powers of Attorney of the
Company's directors and officers
(see Part II, page 5)
99 Charles W. Clark Consulting Agreement
II-6.
Cooley Godward LLP
ATTORNEYS AT LAW Palo Alto, CA
415 843-5000
Menlo Park, CA
One Maritime Plaza 415 843-5000
20th Floor
San Francisco, CA San Diego, CA
94111-3580 619 550-6000
July 25, 1997 Main 415 693-2000
Fax 415 951-3699 Boulder, CO
EDnet, Inc. 303 546-4000
One Union Street
San Francisco, CA 94111 Denver, CO
http://www.cooley.com 303 606-4800
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by EDnet, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of 400,000 shares of the Company's Common
Stock, $.001 par value, (the "Shares") issuable pursuant to that certain
Consulting Agreement, dated as of June 30, 1997, between the Company and Charles
W. Clark (the "Agreement").
In connection with this opinion, we have examined the Registration Statement,
your Certificate of Incorporation and Bylaws, as amended, and such other
documents, records, certificates, memoranda and other instruments as we deem
necessary as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Agreement and the
Registration Statement, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/Samuel M. Livermore
-----------------------
Samuel M. Livermore
EXHIBIT 23.1
Coopers Coopers & Lybrand L.L.P.
& Lybrand a professional services firm
CONSENT OF INDEPENDANT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of EDnet, Inc. on Form S-8 (File No. 333-_______) of our report,
which includes an explanatory paragraph regarding the Company's ability to
continue as a going concern, dated October 21, 1996, on our audits of the
consolidated financial statements of EDnet, Inc. as of June 30, 1996, and
for the years ended June 30, 1996 and 1995, which report is included in
the Company's Post-Effective Amendment No. 3 to Registration Statement on
Form 10-SB filed under the Exchange Act.
/s/ Coopers & Lybrand L.L.P.
San Francisco, California
July 24, 1997
Coopers & Lybrand L.L.P. is a member of Coopers & Lybrand International a Swiss
limited liability association
EXHIBIT 99
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective the 30th day
of June, 1997 by and between Charles W. Clark, ("Consultant"), with principal
offices at 465 California St., Suite 435, San Francisco, California 94104 and
EDNET, Inc, ("Company"), with principal offices at One Union Street, San
Francisco, CA 94111.
RECITALS
WHEREAS, the Company is desirous of obtaining financial advice and
consulting services from Consultant;
WHEREAS, Consultant is experienced in providing financial and other
advisory services;
WHEREAS, Consultant will incur substantial time and expense in
connection with the fulfilling of its duties under and pursuant to the
terms of this Agreement; and
WHEREAS, in consideration for Consultant agreeing to incur the time and
expense of performing the services called for in this Agreement, the
Company agrees to pay the considerations called for in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which is expressly
acknowledged, Company and Consultant agree as follows:
AGREEMENT
I. ENGAGEMENT OF CONSULTANT - Company hereby retains Consultant to serve
Company in the following areas:
(A) Advising and assisting in the Company in the structuring of debt and
liabilities consistent with and for the purposes described in, Company's
Business plan, and revisions thereto.
(B) Advising and assisting Company with business development to promote the
business goals of Company;
(C) Advising and assisting in the execution of plans for the expansion and
growth of the operations of the Company.
(D) Determining the structuring and the evaluation at any debt proposals;
(E) Establishing escrow arrangements.
(F) Participating in selecting and supervising legal counsel and auditors,
which are deemed qualified by Consultant to perform the services
required, for the Company;
(G) Shareholder or investor relations, including, hiring a financial and
public relations firm, and participating in the preparation of annual
reports and other press or public releases of information;
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<PAGE>
(H) Developing long term financial plans;
All of the foregoing services collectively are referred to herein as
"Consulting Services".
II. ADDITIONAL SERVICES - In connection with the services to be provided by
Consultant, Consultant shall compile all due diligence related to the
Company. Consultant shall assist in the accumulation of any due
diligence and the preparation of any due diligence and the preparation
of any documents on behalf of the Company as deemed necessary and
appropriate in connection with the services to be rendered by
Consultant. Notwithstanding the foregoing Consultant shall be under no
obligation to provide services hereunder more frequently than ten (10)
hours during each month during the term hereof. Any services, if
requested, such as rendering opinions on specific transactions, will be
the subject of separate agreements between the parties hereto, if not
otherwise covered by the terms hereof.
III. TERM OF AGREEMENT - This Agreement shall become effective as of the date
of execution of this Agreement, and shall continue for the period of
Five Years (the "Term"), at which time this Agreement shall
automatically terminate, unless written notice by either party hereto is
given, stating such parties intend to renew.
IV. SCOPE OF RETENTION - The Company hereby retains Consultant as its sole
financial consultant and advisor durlng the Term of this Agreement. In
the event the Company does not call upon Consultant's services during
the Term of this Agreement, the Company shall remain liable to pay the
fees and costs set forth in Sections V, VI, and VII.
The Company further agrees to that as of the date of execution of this
Agreement to use best efforts repeal, annul and terminate any and all
outstanding written, verbal or other financial consulting agreements,
contracts, and relationships, that are within the Company's ability to
do so, that may now be in existence, and to refrain from entering into
any other financial consulting agreements, contracts or relationships
with any third parties, other than Consultant during the Term of this
Agreement.
V. COMPENSATION FOR CONSULTING SERVICES - For the advisory services set
forth herein, Consultant shall be compensated as follows:
(a) For re-structuring and re-organizing the Company's senior notes and
debts on the Company's balance sheet Consultant shall be issued Common
stock or convertible stock warrants of the Company equal to Four Hundred
Thousand (400,000) shares. Said securities to be issued to Consultant in
full, with all warrants convertible at the option of the Consultant.
Said shares shall be due and payable to Consultant at the time initial
re-structuring agreements are secured or such later date that the shares
are registered on form S-8. All common stock issued to the Consultant
shall be registered with the Securities and Exchange Commission pursuant
to a registration on form S-8. All shares issued to Consultant are
non-refundable and the Company will not request or demand return of any
of the shares issued to Consultant should this Agreement terminate prior
to the Term.
(b) In addition to section V(a), Consultant shall be issued shares equal to
Ten Percent (10%) of the net reduction or reclass from current to
long-term of all other debt or liabilities as re-stated in the Company's
balance sheet. Said fee shall be due and payable upon execution of
re-structured liability agreements, and shall be payable in cash,
preferred or common stock, at the discretion of the Consultant. All
common or preferred stock issued to the Consultant shall be registered
with the Securities and Exchange Commission
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<PAGE>
pursuant to a registration on form S-8.
(c) In the event that Consultant has to employ a re-organization team on
behalf of the Company, for the purposes of restructuring and
re-organizing Company's balance sheet and debt, all costs of said team
shall be paid by Company.
VI. ADDITIONAL COMPENSATION - As additional compensation for the advisory
services set forth in Section's I and II, the Company shall pay
Consultant the sum of Five Thousand Dollars ($5,000.00) in cash per
month with the first payment due on July 15, 1997, and the remaining
months to be due and payable in full on the first of each month
thereafter for the Term of the Agreement.
1. All payments will be due and payable on the first day of each
consecutive month, beginning after the execution of this agreement.
VII. EXPENSES - The Company shall be responsible for all expenses associated
with completing the Consulting Services contemplated herein, for which
an initial/deposit of Five Thousand Dollars, ($5,000.00) shall be placed
in an Escrow Account ("fund") towards said expenses. This is in addition
to the Fee discussed above. Should the Escrow Account funds set aside
for expenses concerning this Agreement fall below $500.00, Company shall
promptly replenish the fund so that the fund maintains a balance of Five
Thousand Dollars ($5,000.00). All expenses above five hundred dollars
($500.00) shall be pre-approved by Company. All unused monies in the
fund upon the conclusion of the services shall be promptly returned to
Company. The Expenses include but are not limited to the following:
A. All fees associated with the filing of any forms required by state or
federal agencies to bring about the intent of this Agreement.
B. All long distance telephone facsimile costs incurred by Consultant, all
copylng & mail and Federal Express costs incurred by Consultant, and all
other expenses reasonably incurred by Consultant in rendering the
Consulting Services contemplated by this Agreement.
C. Any and all travel, airfare, hotel, and entertainment expenses which
Consultant may reasonably incur in relation to the performance of the
Consulting Services contemplated herein. In addition, Consultant shall
be paid a per them travel expense of one hundred dollars ($100.00) for
each day of travel related to the Consulting Services contemplated in
this Agreement.
VIII. EXPERT TESTIMONY - Should Consultant or any of its employees,
contractors or affiliates be required to testify in the event of any
litigation relating to matters with respect to which Consultant has
provided services hereunder, the Company agrees to pay to Consultant, or
its designee, at the per day rate (based upon a seven-hour day) of
$2,500, plus reasonable out of pocket expenses for the time required to
prepare for such testimony, court waiting time and the time required for
such testimony.
IX. BEST EFFORTS - Consultant agrees that it will at all times faithfully
and to the best of its experience, ability and talents, perform all the
duties that may be required of and from Consultant pursuant to the terms
of this Agreement.
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<PAGE>
X. INDEPENDENT CONTRACTOR - Consultant and the Company hereby acknowledge
and agree that Consultant is an Independent contractor and is not a
licensed broker-dealer. Consultant shall not hold itself out as, nor
shall it take any action from which others might infer that it is, a
partner or agent of, or a Joint venturer with the Company. In addition,
Consultant shall take no action which binds, or purports to bind, the
Company.
XI. CONSULTANT'S EMPLOYEES - In the event Company hires any of Consultant's
personnel at any time within two years from the termination of this
Agreement, Company agrees to pay Consultant three (3) times that
person's annual salary, within thirty (30) days after the commencement
of that employment.
XII. COMPANY'S REPRESENTATIONS - Client represents, warrants and covenants to
Consultant that each of the following is true and complete as of the
date of this Agreement:
A. Entity Existence. Company is a corporation or other legal entity duly
organized, validly existing, and in good standing under the laws of the
state of its formation, with full power and authority and all necessary
governmental authorizations to own, lease and operate property and carry
on its business as it is now being conducted. Company is duly qualified
to do business in and is in good standing in every jurisdiction in which
the nature of its business or the property owned or leased by it makes
such qualifications necessary.
B. Involvement In Proceedings or Investigations by Securities Regulatory
Authorities. Company or its officers and two or more owners, and any
entity which Company or its affiliates or officers control, has not been
previously involved in any litigation, investigations or proceedings
with the United States Securities and Exchange Commission or any other
State or Foreign Securities Regulatory organization, and is not
presently indicted and/or was never convicted of fraud or any singular
crime involving any allegation of dishonesty or theft, nor found guity
or is currently involved in legal proceedings of such conduct in a civil
context, with the exception of full and complete details attached
hereto.
C. Disclosure Documents. Company, including subsldiaries as requested, has
or will cause to be delivered, concurrent with the execution of this
Agreement, copies of its entity records as requested to effectuate any
transaction contemplated hereln.
D. Company Authority for Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by the Company. The Agreement has been duly
executed and delivered by Company and constitutes the valid and legally
binding obligation of Company enforcable in accordance with its terms,
except to the extent that enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditor's rights generally. To the best of Company's
knowledge, after due inquiry, the execution and delivery of this
agreement and the consummation of the transactions contemplated herein
will not conflict with any mortgage, indenture, lease, contract,
commitment, agreement, or other instrument, permit, concession, grant,
franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Company or any of its properties or
assets.
E. Consents and Authorizations. Any consent, approval, order or
authorization of, or registration, declaration, compliance with or
filing with any governmental or regulatory authority required in
connection with the execution and delivery of this Agreement to permit
the consummation by
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Company and Consultant of the transactions contemplated herein shall be
accomplished in a timely manner and in accordance with federal and/or
state laws where applicable.
F. Minute Books. The minute books of Company contain full and complete
minutes of all meetings (or written consents in lieu thereof) of the
entity of Company.
G. Nature of Representations. No representetlon or warranty made by Company
in this Agreement, nor any document or information furnished or to be
furnished by Company to the Consultant in connection with this
Agreement, contains or will contain any untrue statement of material
fact, or omits or will omits to state any material fact necessary to
make the statements contained therein not misleading, or omits to state
any material fact relevant to the transactions contemplated by this
Agreement.
H. Independent Legal and Financial Advice. Consultant is not a law firm,
neither is it an accounting firm. Consultant does however employ
professionals in that capacity to better able Consultant to provide
consulting services. Company represents that it has not nor will it rely
upon any legal or financial representation made by Consultant, and that
Company has and will continue to seek the independent advice of legal
and financial counsel regarding all material aspects of the transactions
contemplated by this Agreement, including the review of all documents
provided by Consultant to Company and all opportunities Consultant
introduces to Company. Company acknowledges that the attorneys,
accountants and other advisors employed by consultant represent the
interest of Consultant solely, and that no representation or warranty
has been given to Company by Consultant as to any legal, tax,
accounting, financial or other aspect of the transactions contemplated
by this Agreement.
I. Coordination of Financial Advice Activities - Company agrees that from
the date of the execution of this Agreement that all Financial Advice
Activities of the Company will be coordinated with, controlled by, and
subject to the discretion of Consultant. Further, any and all Financial
Advice Activities that were in existence on or before the date of this
Agreement will be disclosed to Consultant and will cease to continue
unless expressly authorized by Consultant.
XIII. NON-CIRCUMVENTION - Company agrees not to enter into any other
agreements to provide services for which Consultant has provided
services, or enter into any transaction involving a business opportunity
or asset introduced to Company by Consultant, without compensating
Consultant pursuant to this Agreement. Neither will Company terminate
this Agreement solely as a means to avoid paying Consultant compensation
earned or to be earned, or in any other ways attempt circumvent
Consultant.
XIV. TERMINATION OF AGREEMENT BY CONSULTANT - Consultant may terminate this
Agreement if any of the following occurs:
A. Payments due under this Agreement are not timely made.
B. In the judgment of the Consultant, Company's actions or conduct make it
unreasonable for Consultant to perform under this Agreement. Such acts
include, and are or may be perceived as being in the nature of
dishonesty, illegal activities, harmful to the reputation of the
Consultant, and activities which may create civil or criminal liability
for the Consultant.
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<PAGE>
C. Consultant makes a bona fide decision to terminate its business and
liquidate its assets.
D. Company misrepresents its corporate standing, power to enter and bind
itself to this Agreement, or any of its guarantees as indicated below,
or conceals or misrepresents any other material fact which would
decrease the binding effect of this Agreement on Company and/or
Consultant.
F. An unanticipated material change in federal or state laws and/or
regulations makes continued performance under this Agreement
unreasonable.
G. Breach of any provision of this Agreement
H. Notwithstanding the termination of this Agreement, Consultant shall be
entitled to receipt of a minimum fee of all fees due and payable under
Section V, VII, or the charges for the work actually performed at its
normal consulting rates, whichever is more. Consultant shall also be
entitled to reimbursement of any expenses incurred, up to the time of
termination of this Agreement along with any expenses incurred as a
result of the termination.
I. Consultant may terminate this Agreement for any other reason upon a
showing of good cause to the Company. Consultant must provide Company
with Thirty Day (30) written notice of termination and a written
statement of the Consultants good cause for termination. Company will be
provided thirty days from the date of written notice to cure any defects
set forth in Consultants notice of termination for good cause.
XV. TERMINATION OF AGREEMENT BY COMPANY - Company may terminate this
Agreement under the following conditions:
A. Consultant fails to follow Company's reasonable instructions. Company
must advise Consultant that its actions or inactions are unacceptable
and give Consultant thirty (30) days within which to comply. If
Consultant fails to comply withln thirty (30) days, Consultant may be
terminated hereunder by Company's service of notice of termination to
Consultant.
B. If, in the judgment of the Board of Directors of Company, Consultant's
actions or conduct would make it unreasonable to require Company to
retain Consultant. Such acts include and are in the nature of
dishonesty, illegal activities, activities harmful to the reputation of
the Company and activities which create civil or criminal liability for
the Company.
C. Notwithstanding the termination of this Agreement, Consultant shall be
entitled to receipt of all compensation owed pursuant to Section "H"
Article X above up to the time of termination of this Agreement.
Consultant shall also be entitled to reimbursement of any expenses
incurred, up to the time of termination of this Agreement, along with
any expenses incurred as a result of the termination.
D. Company may terminate this Agreement for any other reason upon a showing
of good cause to the Consultant. Company must provide Consultant with
Thirty Day (30) written notice of termination and a written statement of
the Company's good cause for termination. Consultant will be provided
thirty days from the date of written notice to cure any defects set
forth in Company's notice of termination for good cause.
XVI. UTILIZATION OF ATTORNEYS - Consultant utilizes attorneys to assist it in
preparing the
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documentation required to effectuate the transactions contemplated by
this Agreement. The attorneys utilized by Consultant represent only
Consultant and Consultant's interest in providing consulting services
and do not in any way represent the interests of any party to this
Agreement other than Consultant's. Company is advised, and has
represented, that it will seek independent legal counsel to review all
documentation provided to it by Consultant,
XVII. NONDISCLOSURE OF CONFIDENTIAL INFORMATION - In consideration for the
client entering into this Agreement, Consultant agrees that the
following items used in the Company's business are secret, confidential,
unique, and valuable, were developed by Company at great cost and over a
long period of time, and disclosure of any of the items to anyone other
than Consultant's officers, agents, or authorized employees will cause
Company irreparable injury.
A. Non-publlc financial information, accounting information, plans of
operations, possible public offerings public announcements;
B. Customer lists, call lists, and other confidential customer data;
C. Memoranda, notes or records concerning the technical and creative
processess conducted by Company.
D. Sketches, plans, drawings and other confidential research and
development data.
XVIII. LIABILITY OF CONSULTANT - Consultant shall have no liabilty to the
client with respect to the use or disclosure to others not party to this
Agreement of such information as Consultant can establish to:
A. have been publicly known;
B. have become known, without fault on the part of Consultant, subsequent
to disclosure by Company of such information to Consultant, have been
otherwise known by Consultant prior to communlcation by the Company to
Consultant;
C. have been otherwise known by Consultant prior to communication by the
Company to Consultant of such information, or;
D. have been received by consultant at any time from a source, other than
Company, lawfully having possession of such information.
XIX. PLACE OF SERVICE - The Consulting Services contemplated to be performed
by Consultant will be performed through Consultant's offices; however,
it is understood and expected that Consultant may make contacts with
persons and entitles in any other place deemed appropriate by
Consultant.
XX. NONEXCLUSIVE SERVICES - Company ackowledges that Consultant is currently
providing services of a singular nature to other parties and Company
agrees that Consultant is not prevented or barred from rendering
services of a similar nature to any other individual or entry.
XXI. ALL PRIOR AGREEMENTS TERMINATED - This Agreement comprises the entire
agreement and understanding between the parties hereto at the date of
this Agreement as to the subject matter hereof and supersedes and
replaces all proposals, prior negotiations and agreements, including
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but not limited to that of June 30. 1997, whether oral or written,
between the parties hereto in connection with the subject matter hereof.
None of the parties hereto shall be bound by any conditions,
definitions, warranties or representations with respect to the subject
matter of this Agreement other than as expressly provided in this
Agreement unless the parties hereto subsequently agree to vary this
Agreement in written & duly signed by authorized representatives of the
parties hereto.
XXII. CONSULTANT IS NOT AN AGENT OR EMPLOYEE OF COMPANY - Consultant's
obligations under this agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered to
act as the employee or agent of Company or otherwise represent or bind
Company. For the purposes of this Agreement, Conaultant is an
independent contractor. All final decisions with respect to acts of
Company or its affiliates, whether or not made pursuant to or in
reliance on information or advice furnished by Consultant hereunder,
shall be those of Company or such actions or decisions.
XXIII. CONTINUE OPERATIONS IN SUBSTANTIALLY SAME MANNER - Company will not
transfer, sell or hypothecate, assign or distribute any of the assets
currently in its possession except upon the written agreement of the
parties to this Agreement, and will continue operations in substantially
the same manner as it is presently functioning, until the closings of
the transactions mutually acceptable to the parties are entered into and
this agreement has been consummated.
XXIV. MISCELLANEOUS.
A. Authority. The execution and performance of this Agreement has been duly
authorized by all requisite corporate action. This Agreement constitutes
a valid and binding obligation of the parties hereto.
B. Amendment. This Agreement may be amended or modified at any time and in
any manner only by an instrument in writing executed by the parties
hereto.
C. Waiver. No term of this Agreement shall be considered waived and no
breach excused by either party unless such waiver or excuse is made in
writing. No consent, waiver or excuse by either party, express or
implied, shall constitute a subsequent consent, waiver or excuse.
D. Assignment.
1. The rights and obligations of the Consultant under this Agreement
shall inure to the benefit of and shall be binding upon its successors
and assigns. There shall be no rights of transfer or assignment of this
Agreement by Company except with the prior written consent of the
Consultant.
2. Nothing in this Agreement, expressed or implied, is intended to
confer upon any person other than the parties and their successors, any
rights or remedies under this Agreement.
E. Notices. Any notice or other communication required or permitted by this
Agreement must be in writing and shall be deemed to be properly given
when delivered in person to an officer of the other party, when
deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public
telegraph company for transmittal or when sent by facsimile
transmission, charges prepaid, provided that the communication is
addressed:
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1. In the Case of Consultant to:
Charles W. Clark
465 California Street, Suite 435
San Francisco, California 94104
2. In the Case of Company to:
EDNET, Inc.
One Union St.
San Francisco, CA 94111
Attention: Tom Kobayashi
F. Heading and Captions. The headings of paragraphs are included solely for
convenience. If a conflict exists between any heading and the text of
this Agreement, the text shall control.
G. Entire Agreement. This instrument and any exhibits to this instrument
contain the entire Agreement between the parties with respect to the
transaction contemplated by the Agreement. It may be executed in any
number of counterparts but the aggregate of the counterparts together
constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Agreement, but this Agreement shall be construed as if it never
contained any such invalid, illegal or unenforceable provisions.
I. No Strict Construction. The language of this Agreement shall be
construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who
drafted or was principally responsible for drafting the Agreement or
terms or conditions hereof.
J. Execution Knowing and Voluntary. In executing this Agreement, the
parties severally acknowledge and represent that each: (a) has fully and
carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprised by its attorneys of the legal
effect and meaning of this Agreement and all terms and conditions
hereof, (c) has been afforded the opportunity to negotiate as to any and
all terms hereof; and (d) is executing this Agreement voluntarily, free
from any influence, coercion or duress of any kind.
K. Controlling Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State ef California,
without regard to its law on the conflict of laws. Any dispute arising
out of this Agreement shall be brought in a tribunal of competent
jurisdiction in San Francisco, California. The parties excluded any and
all statutes, law and treaties which would allow or require any dispute
to be decided in another forum or by other rules of decision than
provided in this Agreement.
L. Arbitration. All questions and disputes with respect to rights and
obligations of the parties arising
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under the terms of this contract shall be resolved by arbitration.
1. Demand for Arbitration. If a dispute arises under this contract,
either party may demand arbitration by filing a written demand with the
other party within 60 days after occurrence of the dispute.
2. Appointment of Arbitrators. The parties may agree on one arbitrator.
If they cannot agree on one arbitrator, there shall be three; one named
in writing by each of the parties within five days after demand for
arbitration is given, and a third chosen by the two appointed. Should
either party refuse or neglect to join in the appointment of the
arbitrators or to furnish the arbitrator(s) with any papers or
information demanded, the arbitrators may proceed ex parte.
3. Hearing. A hearing on the matter to be arbitrated shall take place
before the arbitrators in the city of San Francisco, county of San
Francisco, state of California, at the time and place selected by the
arbitrator(s). The arbitrators shall select the time and place promptly
and shall give each party written notice of the time and place at least
days before the date selected. At the hearing, any relevant evidence may
be presented by either party, and the formal rules of evidence
applicable to judicial proceedings shall not govern. Evidence may be
admitted or excluded in the sole discretion of the arbitrators. The
Arbitrators shall hear and determine the matter and shall execute and
acknowledge the award in writing and cause a copy of the writing to be
delivered to each of the parties.
4. Award. If there is only one arbitrator, his or her decision shall be
binding and conclusive on the parties, and if there are three
arbitrators, the decision of any two shall be binding and conclusive.
The submission of a dispute to the arbitrators and the rendering of a
decision by the arbitrators shall be a condition precedent to any right
of legal action on the dispute. A judgment confirming the award may be
given by any Superior Court having jurisdiction, or that Court may
vacate, modify, or correct the award in accordance with the prevailing
provision of the California Arbitration Act.
5. New Arbitrators. If three arbitrators are selected, but no two of the
three are able to reach an agreement regarding the determination of the
dispute, then the matter shall be decided by three new arbitrators who
shall be appointed and shall proceed in the same manner, and the process
shall be repeated until a decision is agreed on by two of the three
arbitrators selected.
6. Costs of Arbitration. The costs of the arbitration shall be bore by
the losing party or shall be bore in such proportions as the
arbitrator(s) determine(s).
M. Time is of the Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
N. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as
may be necessary or convenient to effect the transactions described
herein.
O. Indemnification. Company and Consultant agree to indemnify, hold
harmless and, at the party seeking indemnification's sole option, defend
the other from and against all demand, claims, actions, losses, damages,
liabilities, costs and expense, including without limitation, interest,
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penalties, court fees, and attorney's fees and expenses asserted against
or imposed or incurred by either party by reason of or resulting from a
breach of any representation, warranty, covenant condition or agreement
of the other party to this Agreement. Neither party shall be responsible
to the other party for any consequential or punitive damages.
P. No Third Paid Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties
hereto and their successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically states such
intent.
Q. Facsimile Counterparts. If a party signs this Agreement and transmits
an electronic facsimile of the signature page to the other party, the
party who receives the transmission may rely upon the electronic
facsimile as a signed original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
herein above written.
CONSULTANT
/s/ Charles W. Clark
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Charles W. Clark
7/23/97
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Date
COMPANY
/s/ Tom Kobayashi
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Tom Kobayashi
EDNET, Inc.
7/13/97
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Date
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