<PAGE>
As filed with the Securities and Exchange Commission on July 17, 1997.
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------------
THINK New Ideas, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4578104
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
45 W. 36/th/ Street - 12/th/ floor
New York, New York 10018
(212) 629-6800
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Consulting Agreement by and between
THINK New Ideas, Inc. and Jason H. Pollak
(Full Title of Plan)
------------------------------
Scott A. Mednick, Chief Executive Officer
THINK New Ideas, Inc.
8000 Sunset Boulevard
Penthouse East
Los Angeles, CA 90046
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
------------------------------
Copies to:
Ralph V. De Martino, Esq.
De Martino Finkelstein Rosen & Virga
1818 N Street, NW
Washington, DC 20036-2492
(202) 659-0494
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Amount to Aggregate Price Per Aggregate Offering Registration
Title of Securities to be Registered be Registered Share (1) Price (1) Fee (1)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options ---- ---- ---- ----
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 par value(2) 350,000 $ 5.19 $ 1,816,500 $ 550.45
==========================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, based upon the average of the bid and asked prices for the
Common Stock on July 14, 1997.
(2) Represents shares of Common Stock issuable to Jason H. Pollak pursuant to
the terms of the Consulting Agreement (the "Consulting Agreement") by and
between THINK New Ideas, Inc. and Jason H. Pollak, which issuance is to
occur on or after the time of filing and effectiveness of this Registration
Statement on Form S-8. Includes the shares of Common Stock issuable upon
exercise of the above-referenced options.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
This Registration Statement (the "Registration Statement") relates
to the issuance of common stock purchase options (the "Options") and shares
of common stock, par value $.0001 per share (the "Common Stock") of THINK
New Ideas, Inc. (the "Company") to Jason H. Pollak (the "Consultant")
pursuant to the terms of a Consulting Agreement, dated June 30, 1997, by
and between the Company and the Consultant (the "Consulting Agreement").
Pursuant to the terms of the Consulting Agreement, the Company has agreed
to issue to the Consultant: (a) the Options, which are exerciseable to
purchase, incrementally commencing July 31, 1997, an aggregate of 150,000
shares of Common Stock at an exercise price equal to the average closing
bid price of the Common Stock for the twenty trading days immediately
preceding each incremental exercise date, and (b) 350,000 shares of Common
Stock (including the 150,000 shares of Common Stock issuable upon exercise
of the Options) in exchange for the Consultant's providing certain
marketing and consulting services to the Company. Pursuant to the terms of
the Consulting Agreement, the initial term of the Consulting Agreement is
twelve months, subject to termination by the Company upon delivery (30 days
in advance) of written notice to the Consultant.
The foregoing information relating to the provisions of the
Consulting Agreement is intended to provide a summary thereof and does not
purport to be a complete description of the Consulting Agreement. Such
summary should be read in conjunction with the Consulting Agreement which
has been filed as Exhibit 10 hereto and is incorporated herein by reference
in its entirety.
Item 2. Registrant Information and Employee Plan Annual Information.
The Consultant has been provided with copies of the documents
incorporated herein by reference in Part II: Item 3 hereof and has been
advised by the Company in writing that such documents will continue to be
available, without charge, to the Consultant upon the Consultant's written
request to the Company at its offices at 45 W. 36/th/ Street, New York, New
York, 10018 (Phone: 212-629-6800).
I-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents, including any amendments thereto, filed by
the Company with the Securities and Exchange Commission (the "Commission")
are incorporated by reference in this Registration Statement and shall be
deemed to be a part hereof from the date of filing such documents.
(a) The latest prospectus filed by the Company pursuant to
Rule 424(b) under the Securities Act of 1933 (the "Securities
Act") which prospectus contains the audited financial
statements of the Company (File No. 333-12795).
(b) The Company's quarterly report on Form 10-QSB for the quarter
ended December 31, 1996 (File No. 000-21775);
(c) The Company's quarterly report on Form 10-QSB for the quarter
ended March 31, 1997 (File No. 000-21775);
(d) All reports filed by the Company pursuant to Sections 13(a),
13(c) and 15(d) of the Exchange Act of 1934 (the "Exchange
Act") subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which
indicates that all of the securities offered hereby have been
sold or which deregisters all securities then remaining
unsold.
Item 4. Description of Securities.
The Certificate of Incorporation of the Company authorizes the
issuance of up to 50,000,000 shares of Common Stock, $.0001 par value per
share. Each share of Common Stock entitles the holder thereof to one vote
on each matter submitted to the stockholders of the Company. The holders of
Common Stock are entitled to receive ratable dividends, if any, as may be
declared by the Board of Directors out of funds legally available therefor.
In the event of a liquidation, dissolution or winding up of Company, the
holders of Common Stock are entitled to share ratable in all of the assets
of the Company available for distribution. The Common Stock has no
preemptive, subscription or conversion rights, or redemption or sinking
fund provisions applicable thereto. All outstanding shares of Common Stock
are fully paid and non-assessable. The Company has not paid any dividends
on its Common Stock to date.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
II-1
<PAGE>
Item 6. Indemnification of Officers and Directors.
The Certificate of Incorporation of the Company limits the personal
liability of directors to the fullest extent permitted by Section 102(b)(7)
of the Delaware General Corporation Law. Section 145 of the Delaware
General Corporation Law provides that a corporation's certificate of
incorporation may limit the personal liability of its directors for
monetary damages for breach of their fiduciary duties as directors except
for liability: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law; (iii) arising under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the director derived an
improper personal benefit.
The effect of the foregoing is to require the Company to indemnify
the officers and directors of the Company for any claim arising against
such persons in their official capacities if such person acted in good
faith and in a manner that he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS
CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE COMPANY
HAS BEEN INFORMED 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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
5 Opinion of Counsel regarding legality.
10 Consulting Agreement by and between THINK New Ideas, Inc. and
Jason H. Pollak.
23(a) Consent of BDO Seidman, LLP
23(b) Consent of Counsel included in Exhibit 5.
II-2
<PAGE>
Item 9. Undertakings
The Company hereby undertakes:
A. Rule 415 Offering.
-----------------
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to
include any additional or changed information with respect to the plan of
distribution;
(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 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. Subsequent Exchange Act Documents Incorporated by Reference:
-----------------------------------------------------------
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, and
each filing of the Plan's annual report pursuant to 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.
C. Indemnification.
---------------
(1) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer, or controlling person of the
Company 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 Company 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 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
Company 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 Los Angeles, State of California,
on July 17, 1997.
THINK New Ideas, INC.
By: /s/ Scott A. Mednick
-----------------------------------------
Scott A. Mednick, Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of the Company, hereby
severally constitute and appoint Scott A. Mednick our true and lawful
attorney-in-fact and agent, with full power to him to sign any and all
amendments (including post effective amendments) to this Registration
Statement and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all interest
and purposes as we might or could do in person, ratifying and conforming
all that said attorney-in-fact and agent or any of them, or his substitute
or substitutes, may unlawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of July 17, 1997.
/s/ Scott A. Mednick
------------------------------ Chief Executive Officer, Chairman of
Scott A. Mednick the Board and Director
/s/ Ronald Bloom
------------------------------ President and Director
Ronald Bloom
/s/ Adam Curry
------------------------------ Chief Technology Officer and Director
Adam Curry
/s/ Melvin Epstein
------------------------------ Chief Financial Officer
Melvin Epstein
/s/ Barry Wagner
------------------------------ Director
Barry Wagner
------------------------------ Director
Frank De Lape
------------------------------ Director
Michael Ribero
<PAGE>
Exhibit 5
[LETTERHEAD OF DE MARTINO FINKELSTEIN ROSEN & VIRGA]
July 17, 1997
Board of Directors
THINK New Ideas, Inc.
45 W. 36th Street
12th Floor
New York, NY
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to THINK New Ideas, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing by the Company of
a registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, relating to the issuance by the Company of
certain common stock purchase options (the "Options") and an aggregate of up to
350,000 shares of Common Stock, $.0001 par value per share, including 150,000
shares issuable upon exercise of the Options (the "Common Stock") to Jason H.
Pollak (the "Consultant") pursuant to the terms of a certain Consulting
Agreement, dated as of June 30, 1997, between the Company and the Consultant
(the "Consulting Agreement").
We have examined the Consulting Agreement, the Articles of Incorporation,
as amended, the By-Laws of the Company, as amended, the minutes of the various
meetings and consents of the Board of Directors of the Company, originals or
copies of such records of the Company, agreements, certificates of public
officials, certificates of officers and representatives of the Company and
others, and such other documents, certificates, records, authorizations,
proceedings, statutes and judicial decisions as we have deemed necessary to form
the basis of the opinion expressed below. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to originals of all documents submitted to
us as copies thereof. As to various questions of fact material to such opinion,
we have relied upon statements and certificates of officers and representatives
of the Company and others. We are not herein passing upon and do not assume
responsibility for the accuracy, completeness or fairness of the statements or
other provisions contained in any of the foregoing materials.
In connection with the preparation of this opinion, we have reviewed such
questions of law as we have deemed necessary. We do not herein give any opinion
with respect to the laws of any
<PAGE>
Board of Directors
THINK New Ideas, Inc.
July 17, 1997
Page 2
jurisdiction other than the general laws of the United States of America, the
federal securities laws, the laws of the District of Columbia and the General
Corporation Law of the State of Delaware. Except as otherwise provided herein,
we have assumed that, insofar a the laws of another jurisdiction may be
applicable to any matters to which this opinion may relate, such laws are
identical to the laws of the District of Columbia, however, we express no
opinion as to the extent to which the laws of the District of Columbia or such
other jurisdiction may apply.
Based upon the foregoing, we are of the opinion that the Options and the
shares of Common Stock issuable to the Consultant pursuant to the terms of the
Consulting Agreement, which securities are subject of the Registration
Statement, have been duly authorized and when such securities are issued and
paid for in accordance with the terms of the Consulting Agreement will be duly
authorized, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DE MARTINO FINKELSTEIN ROSEN & VIRGA
By: /s/ Ralph V. DeMartino
--------------------------------------
Ralph V. DeMartino, a Principal
<PAGE>
CONSULTING AGREEMENT
BY AND BETWEEN
THINK NEW IDEAS, INC.
AND
JASON H. POLLAK
THIS AGREEMENT (the "Agreement") is entered into as of this 30th day of
June, 1997, by and between THINK New Ideas, Inc., a Delaware corporation with
executive offices at 45 W. 36th Street, New York, New York 10018 (the
"Corporation") and Jason H. Pollak (hereinafter referred to as "Pollak" or the
"Consultant" as the context may require), c/o Tiger Eye Acquisitions, L.L.C.,
at 175 EAB Plaza, West Tower - Lobby Level, Uniondale, New York 11556.
WHEREAS, Pollak has developed expertise in and is in the business of
providing consulting services, including finding and assessing acquisition
candidates and providing investor and public relations services;
WHEREAS, Pollak has expertise in the area of providing consulting services,
including finding and assessing acquisition candidates and providing investor
and public relations services;
WHEREAS, the Corporation desires to engage Pollak to provide services to
the Corporation as set forth below, upon the terms and subject to the conditions
set forth herein;
WHEREAS, Pollak desires to provide services to the Corporation as set forth
below, upon the terms and subject to the conditions set forth herein; and
WHEREAS, Pollak and the Corporation have agreed that Pollak shall render
the services set forth below to the Corporation upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for such other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to render to
it for a period of twelve (12) months commencing on the date hereof (the "Term")
the services described herein. The Term hereof may be extended or renewed upon
the written agreement of the Corporation and the Consultant prior to expiration
of the initial Term hereof on such terms as the parties hereto may negotiate at
the time of such extension or renewal. This Agreement may be terminated as set
forth in Section 15 hereof.
2. Services. For the Term of this Agreement, the Consultant shall perform
the following services for the Corporation:
(a) Assist the Corporation in locating, assessing and implementing the
acquisition by the Corporation, by way purchases of stock, purchase of
assets, merger, tender
<PAGE>
offer, joint venture or otherwise, the acquisition by the Corporation
of one or more businesses, divisions or other operating entities and/or
assets, consistent with the directives of the Corporation;
(b) Prepare and disseminate, with the Corporation's prior approval and at
the Corporation's direction, due-diligence packages which would include
such items as presentation folders, press release sheets, the
appropriate public reporting documents and a Corporation overview
pamphlet;
(c) Prepare and disseminate, with the Corporation's prior approval and at
the Corporation's direction, investor relations packages;
(d) Assist the Corporation in preparing presentations to market-makers,
broker/dealers, fund managers and analysts;
(e) Prepare and disseminate, with the Corporation's prior approval and at
the Corporation's direction, press releases in compliance with any
applicable regulatory guidelines to wire/news services;
(f) Disseminate, at the Corporation's direction, for informational purposes
the Corporation's publicly filed materials, including the Corporation's
Annual, Quarterly and Current Reports on Forms 10-K, 10-Q, and 8-K,
respectively;
(g) Assist with the coordination and conduct of annual and special
shareholder meetings;
(h) Visit the Corporation's offices on a monthly basis to discuss and
assist in the implementation of the Corporation's strategies for its
operations and future growth;
(i) Perform such other services as may be reasonably requested from time to
time by the officers of the Corporation; provided however, that in no
----------------
event may such services include or be in any way related to or
connected with a capital raising transaction of any nature whatsoever;
and
(j) Bear all costs and expenses relating to any of the foregoing.
Upon expiration (or termination pursuant to Section 15, as applicable) of
this Agreement, any due diligence packages, investor relations packages,
pamphlets or other materials that form a part of the foregoing, and any
information and/or lists of individuals or entities to whom such information and
materials were sent, shall be delivered to the Corporation, along with any
scripts and/or tapes of the infomercials about the Corporation produced and
presented by the Consultant pursuant hereto.
2
<PAGE>
3. Compensation. In consideration for the performance of the services
described above, the Corporation shall issue to the Consultant an aggregate of
two hundred thousand (200,000) shares of its common stock, par value $.0001 per
share (the "Common Stock") and grant to the Consultant options to acquire up to
one hundred fifty thousand (150,000) shares of Common Stock as follows:
(a) an aggregate of fifty thousand (50,000) shares of Common Stock
shall be issued within fifteen (15) days of execution hereof in consideration
for services rendered prior to such issuance;
(b) thereafter, an aggregate of twelve thousand five hundred (12,500)
shares of Common Stock shall be issued on the last day of each calendar month
during the Term hereof in consideration for services rendered prior to such
issuance; and
(c) options (the "Options") to acquire an aggregate of twelve thousand
five hundred (12,500) shares of Common Stock shall become exercisable on the
last day of each calendar month during the Term hereof in consideration for
services rendered prior to such issuance and shall be exercisable through the
period ending 30 days after expiration of the Term hereof at a price per share
equal to the average closing bid price of the Common Stock as quoted by the
Nasdaq National Market System (or such other quotation system or exchange on
which the Corporation's securities are then quoted or traded) for the twenty
trading days immediately preceding the respective exercise dates of such
options.
4. Registration Rights. Upon the written request of the Consultant
delivered to the Corporation at any time after December 2, 1997 (the "Exercise
Date"), the Corporation shall file, as soon as practicable thereafter, a
registration statement relating to the Options and the shares of Common Stock
issuable pursuant hereto, including the shares issuable upon exercise of the
Options, with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933 (the "Act"). In the event that, for any reason
whatsoever, Form S-8 is not available for use by the Corporation, the
Corporation shall file such form of registration statement as is available for
use by the Corporation as specified or otherwise permitted by the Act and the
rules and regulations promulgated thereunder. The Corporation shall bear all
costs and expenses incurred in connection with such registration, including
printing costs, the fees of the Corporation's counsel and accountants, and
applicable filing fees, but excluding, however, the fees and expenses of any
counsel engaged by the Consultant, or any underwriter engaged by the Consultant,
and any underwriters', brokers' or dealers' commissions, fees, expenses,
discounts or other compensation attributable to the offer or sale of any of the
Options or the shares of Common Stock subject hereto by the Consultant. Nothing
set forth herein shall be construed to preclude the Corporation from filing a
registration statement including the Options and the shares of Common Stock
issuable pursuant hereto prior to the Exercise Date should the Corporation, at
its option and in its sole discretion, determine to do so. The Corporation
shall:
(a) Use its best efforts to maintain the effectiveness of any such
registration statement for up to twelve (12) months following the
effectiveness thereof and, from time
3
<PAGE>
to time, shall amend or supplement such registration statement during
such period to the extent necessary to comply with the Act;
(b) Provide any requisite prospectuses meeting the requirements of the Act
and such other documents as the Consultant may reasonably request for a
period of at least twelve (12) months following the effectiveness of
such registration statement;
(c) Register and qualify for sale any of such securities in such states as
the Consultant may reasonably designate in order to enable the
Consultant to consummate the sale or other disposition of such
securities should the Consultant determine to sell or otherwise dispose
of such securities or, in the alternative, maintain for a period of
twelve (12) months its listing on the Nasdaq National Market System
("NMS") or in the Standard & Poors service in the event that the
Corporation is not listed on the NMS; and
(d) Do any and all other acts and things which may be necessary under or
required by the Act and/or other applicable federal or state securities
laws to enable the Consultant to consummate the sale or other
disposition of such securities pursuant to such registration statement
should the Consultant determine to sell or otherwise dispose of such
securities.
The Consultant understands that:
(a) Neither the Options nor the shares of Common Stock issuable hereunder
(including the shares issuable upon exercise of the Options) have
previously been the subject of registration under the Act or any
applicable state securities laws;
(b) In the absence of availability of an exemption from the registration
requirements of the Act, the Consultant may not sell or otherwise
transfer such securities unless such securities are subject to an
effective registration statement under the Act and any applicable state
securities laws;
(c) To the extent that any of the securities issuable pursuant hereto may
be issued at a time during which a registration statement relating to
such issuance is not effective, a legend will be placed on any
certificate or certificates evidencing the same indicating that such
securities have not been registered under the Act and setting forth the
restrictions on transferability and sale of such securities;
(d) The Corporation will place stop transfer instructions against the
certificate or certificates evidencing the foregoing securities to
restrict the transfer thereof; and
(e) The Corporation is a party to a certain underwriting agreement, dated
November 26, 1996, among the Corporation, Commonwealth Associates and
an individual stockholder.
4
<PAGE>
5. Representations and Warranties. The Consultant hereby represents and
warrants to the Corporation that:
(a) The Consultant will not sell or otherwise transfer the securities
issued to the Consultant pursuant hereto without compliance with the
Act and any applicable state securities laws;
(b) The Consultant has received and carefully read the following: (i) the
Corporation's Quarterly Reports on Form 10-Q for the periods ended
December 31, 1996 and March 31, 1997 (File No. 000-21775); (ii) the
Corporation's definitive prospectus, dated November 26, 1996, relating
to its initial public offering; (iii) press releases released by the
Corporation since its initial public offering; and (v) written or
verbal responses to any questions the Consultant has submitted to the
Corporation regarding its acquisition of the securities described
herein, all of which the Consultant acknowledges have been provided to
the Consultant. The documents listed in item (i) above may be referred
to hereinafter as the "Exchange Act Reports," and the Exchange Act
Reports, together with the items listed in (ii) through (iv), are
referred to hereinafter as the "Corporate Materials" (as the context
may require). Other than the Corporate Materials, the Consultant has
not been furnished with any other materials or literature relating to
the acquisition of the securities described herein. The Consultant has
been given the opportunity to ask questions of and to receive answers
from the Corporation concerning the terms and conditions of the
acquisition of the securities described herein and the Corporate
Materials, and to obtain such additional written information necessary
to verify the accuracy of same as the Consultant desires in order to
evaluate the acquisition of and investment in the securities described
herein. The Consultant acknowledges and confirms that the written
and/or verbal responses provided to the Consultant by the Corporation
in response to the Consultant's questions are not contrary to or
inconsistent with, nor do they conflict with the information set forth
in the Corporate Materials. The Consultant further acknowledges that it
understands the information contained in the Corporate Materials and
the Consultant has had the opportunity to discuss any questions
regarding the Corporate Materials with its counsel or other advisor.
The only information upon which the Consultant has relied is that which
is set forth in the Corporate Materials;
(c) The Consultant understands that no federal or state agency or other
authority: (i) has made any finding or determination regarding the
fairness of the transactions described herein; (ii) has made any
recommendation or endorsement of the transactions described herein; or
(iii) has passed in any way upon this agreement or the Corporate
Materials;
(d) The Consultant: (i) is acquiring the securities described herein solely
for his own account for investment purposes only and not with a view
toward resale or
5
<PAGE>
distribution thereof, either in whole or in part; and (ii) has no
contract, undertaking, agreement or other arrangement, in existence or
contemplated, to sell, pledge, assign or otherwise transfer the
securities to any other person;
(e) The Consultant has adequate means of providing for his current needs
and contingencies and has no need for liquidity in the investment in
the securities described herein. The Consultant has read, is familiar
with and understands Rule 501 of Regulation D and represents that he is
an "accredited investor" as defined in Rule 501(a) of Regulation D
under the Act. The Consultant has no reason to anticipate any material
change in his financial condition for the foreseeable future;
(f) The Consultant is aware that the acquisition of the securities
described herein is a speculative investment involving a high degree of
risk and that there is no guarantee that the Consultant will realize
any gain from its acquisition of or investment in such securities;
(g) The Consultant is financially able to bear the economic risk of an
investment in the securities described herein, including the ability to
hold such securities indefinitely and to afford a complete loss of an
investment in such securities;
(h) The Consultant's overall commitment to investments which are not
readily marketable is not disproportionate to the Consultant's net
worth, and the Consultant's investment in the securities described
herein will not cause such overall commitment to become excessive; and
(i) The Consultant has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
the acquisition of and an investment in the securities described
herein; and
(j) To the best of the Consultant's knowledge, the Consultant is not
currently the subject of any administrative, civil, criminal or
disciplinary proceeding or any investigation or informal inquiry or
investigation brought by the Commission, the National Association of
Securities Dealers or any state securities commission, or which alleged
a violation of a federal or state securities law.
The Corporation hereby represents and warrants to the Consultant that:
(a) The execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been duly
authorized, adopted and approved by the board of directors of the
Corporation. The Corporation has taken all necessary corporate action
and has all the necessary corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by an
authorized officer of the Corporation on its behalf and is the valid
6
<PAGE>
and binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect, or by
legal or equitable principles, relating to or limiting creditors'
rights generally and except that the remedy of specific performance and
injunctive and other forms of equitable relief are subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(b) The Corporation is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
The Corporation has the corporate power and authority to own and lease
its properties and assets and to carry on its business as it is now
being conducted and is duly qualified to do business as a foreign
corporation in each jurisdiction where it owns or leases real property
or conducts business, except where the failure to be so qualified would
not have a material adverse effect on the business, operations or
condition (financial or otherwise) of the Corporation;
(c) The Corporation is authorized to issue an aggregate of 50,000,000
shares of Common Stock. As of the date hereof, the Corporation has
6,416,667 shares of Common Stock outstanding, 120,000 shares of Common
Stock issuable in connection with the Corporation's recent acquisition
of certain assets of a subsidiary of Omnicom Group Inc. and
approximately 1,300,000 shares of Common Stock issuable upon the
exercise of currently outstanding stock purchase warrants, stock
options, or conversion rights. All outstanding shares of the
Corporation's capital stock have been duly authorized, validly issued
and are fully paid and non-assessable. The shares of Common Stock to be
issued hereunder are and will be upon issuance, in each case, free of
preemptive rights and free and clear of all adverse claims, liens,
mortgages, charges, security interests, encumbrances and other
restrictions or limitations of any kind whatsoever. The Corporation has
not issued any shares of capital stock which could give rise to claims
for violation of any federal or state securities laws (including any
rules or regulations promulgated thereunder) or the securities laws of
any other jurisdiction (including any rules or regulations promulgated
thereunder). Except as disclosed in the Corporate Materials, as of the
date hereof, there are no options, warrants, calls, convertible
securities or commitments of any kind whatsoever relating to the shares
of the Common Stock issuable pursuant hereto or any of the unissued
shares of capital stock of the Corporation, and there are no voting
trusts, voting agreements, stockholder agreements or other agreements
or understandings of any kind whatsoever which relate to the voting of
the capital stock of the Corporation;
6. Confidential Information. By reason of performance under this
Agreement, the Consultant may have access to and may obtain specialized
knowledge, trade secrets and
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confidential information about the business and operation of the Corporation,
its subsidiaries and divisions thereof. Therefore, the Consultant hereby agrees
that he shall keep secret and retain in confidence and shall not use, disclose
to others, or publish, other than in connection with the performance of services
hereunder and in accordance herewith, any information relating to the business,
operation or other affairs of the Corporation, its subsidiaries and divisions
thereof, which information is acquired in the course of providing services for
the Corporation. To the extent that any of such information may be deemed from
time to time to be "material non-public information" as construed under the
Exchange Act, the Consultant hereby agrees not to purchase or sell (or offer to
purchase or sell) any of the Corporation's securities while in possession of
information which may be so deemed to be "material non-public information."
7. Reformation. In the event that a court of competent jurisdiction
determines that the confidentiality provisions or part of a provision hereof are
unreasonably broad or otherwise unenforceable because of the length of their
respective terms or the breadth of their territorial scope, or for any other
reason, the parties hereto agree that such court may reform the terms and/or
scope of such covenants so that the same are reasonable and, as reformed, shall
be enforceable. The Consultant and the Corporation hereby agree as follows:
8. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof and shall inure to the benefit of and be
binding upon the Consultant and the Corporation and their respective legal
successors and assigns.
9. Remedies. In the event of a breach of any of the provisions of this
Agreement, the non-breaching party shall provide written notice of such breach
to the breaching party. The breaching party shall have thirty (30) days after
receipt of such notice in which to cure its breach. If, on the thirty-first
(31st) day after receipt of such notice, the breaching party shall have failed
to cure such breach, the non-breaching party thereafter shall be entitled to
seek damages. It is acknowledged that this Agreement is of a unique nature and
of extraordinary value and of such a character that a breach hereof by the
Consultant or the Corporation shall result in irreparable damage and injury for
which the non-breaching party may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the non-breaching party
shall also be entitled to seek a decree of specific performance against the
breaching party, or such other relief by way of restraining order, injunction or
otherwise as may be appropriate to ensure compliance with this Agreement. The
remedies provided by this section are non-exclusive and the pursuit of such
remedies shall not in any way limit any other remedy available to the parties
with respect to this Agreement, including, without limitation, any remedy
available at law or equity with respect to any anticipatory or threatened breach
of the provisions hereof.
10. No Continuing Waiver. The waiver by any party of any provision or
breach of this Agreement shall not operate as or be construed to be a waiver of
any other provision hereof or of any other breach of any provision hereof.
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11. Notice. Any and all notices from either party to the other which may
be specified by, or otherwise deemed necessary or incident to this Agreement
shall, in the absence of hand delivery with return receipt requested, be deemed
duly given when mailed if the same shall be sent to the address of the party set
out on the first page of this Agreement by registered or certified mail, return
receipt requested, or express delivery (e.g., Federal Express).
12. Severability of Provisions. The provisions of this Agreement shall be
considered severable in the event that any of such provisions are held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable.
Such invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
13. Assignability. Neither this Agreement nor any of the rights or
obligations set forth herein shall not be assignable.
14. Entire Agreement; Amendment. This Agreement contains the entire
agreement among the Corporation and the Consultant with respect to the subject
matter hereof. This Agreement may not be amended, changed, modified or
discharged, nor may any provision hereof be waived, except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
15. Termination. The Corporation may terminate this Agreement with or
without cause upon delivery of thirty (30) days prior written notice thereof to
the Consultant. Any such termination shall result in termination of the
Consultant's obligations hereunder and termination of the Consultant's right to
further compensation hereunder.
16. Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the provisions of this Agreement.
17. Survival. Sections 5 through 12 hereof shall survive the termination
for any reason of this Agreement (whether such termination is by the
Corporation, upon the expiration of this Agreement by its terms or otherwise).
* * * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as set forth below and have
caused their respective corporate seals to be hereunder affixed effective as of
the date first above written.
THINK New Ideas, Inc.
By: /s/ Scott A. Mednick
----------------------------------
Scott A. Mednick, Chief Executive
Officer
THE CONSULTANT
/s/ Jason H. Pollak
---------------------------------------
Jason H. Pollak
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Exhibit 23(a)
Consent of Independent Certified Public Accountants
THINK New Ideas, Inc.
New York, NY
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated July 23, 1996, except for Notes 5, 8,
10, and 12 which are as of November 25, 1996, relating to the consolidated
financial statements of THINK New Ideas, Inc. for the year ended June 30, 1996
appearing in the Company's Prospectus constituting a part of the Registration
Statement on Form SB-2 (Registration No. 333-12795) and our report dated July
23, 1996 relating to the financial statements of On Ramp, Inc. which are also
contained in that Prospectus.
We also consent to the reference to us under the caption "Experts" in that
Prospectus.
BDO Seidman, LLP
New York, New York
July 17, 1997
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