<PAGE> 1
WASHINGTON, DC 20549
___________
AMENDMENT NUMBER ONE
TO
FORM 10-KSB/A
(MARK ONE)
(x) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ___________ TO
COMMISSION FILE NUMBER 0-25435
___________
SYMPOSIUM CORPORATION
(Exact Name of Small Business Issuer as Specified in Its Charter)
DELAWARE 13-4042921
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or
Organization)
410 PARK AVENUE, SUITE 830, NEW YORK, NEW YORK 10022
(Address of Principal Executive Offices)
(212) 754-9901
(Issuer's Telephone Number, Including Area Code)
Securities Registered under Section 12(b) of the Exchange Act: None
Securities Registered under Section 12(g) of the Exchange Act: Common Stock,
$.001 par value
___________
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes: (x) No:
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
Transitional Small Business Disclosure Format Yes: No: (x)
<PAGE> 2
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
Company's directors and executive officers.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Ronald Altbach 53 Chairman of the Board, Chief Executive Officer,
Secretary and Director; Chief Executive
Officer of MOS
Polly Bauer 50 President and CEO, Symposium Credit Services
Tim S. Ledwick 42 Chief Financial Officer of Symposium and MOS
Richard Cohen 48 Director
Richard Kaufman 55 Director
</TABLE>
The following is a brief summary of the background of each director,
executive officer, and key employee of the Company:
MR. ALTBACH has served as Chief Executive Officer and Chairman of the Board
since January 2000. Prior thereto, he served as Co-Chairman, Chief Operating
Officer and Secretary of Symposium since October 1998. From 1996 through June
1998, he served as Vice Chairman of Rosecliff, Inc., a New York based merchant
banking operation. From 1995 through 1997, Mr. Altbach served as Chairman of
Paul Sebastian, Inc., one of Rosecliff's portfolio companies. From February 1998
through December 1998, Mr. Altbach was the President of Olcott Corporation, a
distributor of luxury products.
MS. BAUER has served as President and Chief Executive Officer of Symposium
Credit Services, a division of the Company, since September 1999. She
previously served as President and Chief Operating Officer of Exception
Management Services, a subsidiary of Home Shopping Network, Inc. ("HSN"), from
January 1999 to September 1999, and from 1993 to 1998 was President and Chief
Operating Officer of the Home Shopping Credit Corporation, also an HSN
subsidiary. Ms. Bauer's responsibilities at HSN included planning, marketing,
analysis, design and implementation of credit card processing and financial
service programs for a variety of clients as well as for HSN.
<PAGE> 3
MR. LEDWICK has served as Chief Financial Officer of Symposium since
September, 1999. From September 1994 to August 1999 he served as Senior Vice
President and Chief Financial Officer for Cityscape Financial Corp., a
specialty financial services company with operations in both the U.S. and the
U.K. Mr. Ledwick also has held management positions with River Bank America,
Inc., a financial institution, GTE Corporation, a telecommunications company,
and Peat Marwick Mitchell & Co. Mr. Ledwick is a certified public accountant.
MR. COHEN has served as a director of Symposium since October 1998. He
has been president of Richard M. Cohen Consultants, which provides financial
consulting services primarily in the multimedia industry, since 1996. From
1993 to 1995 he was president of General Media, Inc., a publishing company with
international market presence. Mr. Cohen serves on the Board of Directors of
National Auto Credit and Carnegie International.
MR. KAUFMAN has served as a director of Symposium since July 1999. Since
1990, he has been President and owner of 21st Funding Corporation, a company
that arranges debt financing for middle market businesses.
Directors are elected at each annual meeting of stockholders and hold office
until the following annual meeting and their successors are duly elected and
qualified. Executive officers of Symposium serve at the discretion of the
Board of Directors.
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<PAGE> 4
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
OWNERSHIP OF THE COMPANY
The following table sets forth as of April 15, 2000 certain information
relating to the ownership of the common stock by (i) each person known by the
Company to be the beneficial owner of more than five percent of the outstanding
shares of the common stock, (ii) each of the Company's directors, (iii) each
executive officer, and (iv) all of the Company's executive officers and
directors as a group.
<TABLE>
<CAPTION>
Amount And Nature
Name And Address Of Beneficial Percent
Of Beneficial Owner(1) Ownership(2) Of Class
- ---------------------- ------------ --------
<S> <C> <C>
Richard Prochnow 2,500,000 10.9%
2550 Heritage Court, Suite 106
Atlanta, Georgia 30339
Michael Lauer 14,956,666 (3) 51.1%
980 Post Road East
Westport, Connecticut 06880
The Shropshire Trust Company, Ltd. 1,200,000 (4) 5.2%
M.L.H. Quinn & Co.
Bermuda Commercial Bank Bldg.
44 Church Street
Hamilton HM 12 Bermuda
Capital Research Ltd. 1,595,751 (5) 6.7%
27241 Paseo Peregrino
San Juan Capistrano, CA 92675
Ronald Altbach 1,425,000 (6) 6.1%
Lancer Offshore Inc. 13,956,660 (7) 47.7%
Kaya Flamboyan 9
Curacao, Netherlands Antilles
Richard Cohen 170,000 (8) *
Richard Kaufman 120,000 (9) *
Tim S. Ledwick 0 (10) *
Polly Bauer 50,000 (11) *
Ken Lambert 90,000 (12) *
Bruce Dorskin 90,000 (13) *
All officers and directors as a group
(7) persons) 1,895,000 7.9%
* Less than 1%.
</TABLE>
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<PAGE> 5
(1) Unless otherwise indicated, the address of each beneficial owner is in the
care of Symposium Corporation, 410 Park Avenue, Suite 830, New York, NY 10022.
(2) Unless otherwise indicated and subject to applicable community property
laws, Symposium believes that all persons named in the table have sole voting
and investment power with respect to all shares of common stock beneficially
owned by them. A person is deemed to be the beneficial owner of securities
that may be acquired by such person within 60 days of April 15, 2000 upon the
exercise of options, warrants or convertible securities. Each beneficial
owner's percentage of ownership is determined by assuming all options, warrants
or convertible securities that are held by such person (but not held by any
other person) and which are exercisable or convertible within 60 days of April
15, 2000 have been exercised or converted. Percent of Class (third column
above) is based on 23, 014,345 shares of common stock outstanding as of the
date of this consent statement as adjusted to give effect to the assumptions
regarding conversion and exercise in the previous sentence.
(3) Includes shares owned by Lancer Offshore (see note 7) and 1,000,000 shares
owned by Lancer Partners, which Mr. Lauer may be deemed to beneficially own by
virtue of his status as investment manager of Lancer Offshore and General
Partner of Lancer Partners.
(4) Shropshire Trust Company Ltd. is an independent trust company and is
unaffiliated with Symposium other than as a beneficial owner of 1,200,000
shares as trustee for Shropshire Trust No. 1, Shropshire Trust No. 2,
Shropshire Trust No. 3 and Shropshire Trust No. 4, each of which holds 300,000
shares of common stock. The beneficiaries of the Shropshire Trust No. 1,
Shropshire Trust No. 2, Shropshire Trust No. 3 and Shropshire Trust No. 4 are
the children of Rupert Galliers-Pratt, former Chief Executive Officer of
Symposium Corporation.
(5) Includes 617,334 shares of common stock issuable upon exercise of warrants
and 169,600 issuable upon exercise of the Company's convertible preferred
securities.
(6) Includes: (i) 475,000 shares of common stock owned by his wife; and (ii)
425,000 shares of common stock issuable upon exercise of stock options. Does
not include 125,000 shares issuable upon exercise of warrants that are not
exercisable within 60 days of April 15.
(7) Includes 4,000,000 shares of common stock issuable upon exercise of
warrants and 2,250,000 shares of common stock issuable upon exercise of the
Company's convertible preferred securities.
(8) Includes 120,000 shares of common stock issuable upon exercise of stock
options that are exercisable within 60 days. Does not include 100,000 shares
of common stock issuable upon the exercise of stock options which vest more
than 60 days from April 15, 2000.
(9) Includes 100,000 shares of common stock issuable upon exercise of stock
options that are exercisable within 60 days. Does not include 100,000 shares
of common stock issuable upon the exercise of stock options which vest more
than 60 days from April 15, 2000.
(10) Does not include 75,000 shares of common stock issuable upon exercise of
options which vest more than 60 days from April 15, 2000.
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<PAGE> 6
(11) Does not include 50,000 shares of common stock issuable upon exercise of
stock options which vest more than 60 days from April 15, 2000.
(12) Includes 90,000 shares of common stock issuable upon exercise of stock
options that are exercisable within 60 days. Does not include 60,000 shares of
common stock issuable upon exercise of stock options which vest more than 60
days from April 15, 2000.
(13) Includes 90,000 shares of common stock issuable upon exercise of stock
options that are exercisable within 60 days. Does not include 60,000 shares of
common stock issuable upon exercise of stock options which vest more than 60
days from April 15, 2000.
There are no family relationships among the executive officers or
directors of Symposium.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
Symposium's officers, directors and persons who are the beneficial owners of
more than 10% of the Common Stock to file initial reports of ownership and
reports of changes in ownership of the Common Stock with the Securities and
Exchange Commission (the "Commission"). Officers, directors and beneficial
owners of more than 10% of the Common Stock are required by Commission
regulations to furnish Symposium with copies of all Section 16(a) forms they
file.
Based solely on its review of the copies of such forms furnished to
Symposium and certain written representations that no other reports were
required, Symposium believes that, except as described below, during the period
from January 1, 1999 to December 31, 1999, all officers, directors and
beneficial owners of more than 10% of Symposium's Common Stock complied with all
Section 16(a) requirements. Symposium believes that Michael Lauer, in his
capacities as investment manager of Lancer Offshore, Inc. and general partner
of Lancer Partners, may be deemed to be the indirect beneficial owner of more
than 10% of the Common Stock. Mr. Lauer has not filed any reports reflecting
such beneficial ownership pursuant to Section 16(a).
ITEM 10. EXECUTIVE COMPENSATION
DIRECTOR COMPENSATION
Directors do not receive cash compensation for services rendered as
directors. From time to time Directors of the Company have been granted
options to purchase shares of Common Stock. Such option grants have been made
pursuant to the discretion of the Board of Directors.
Board members are reimbursed for reasonable expenses incurred in
connection with attending meetings of the board and of committees of the board.
COMPENSATION OF EXECUTIVE OFFICERS
The following table sets forth, for the fiscal year ended December 31,
1999, the compensation earned for services rendered in all capacities by
Symposium's chief executive officer and the other highest-paid executive
officers serving as such at the end of 1999 whose actual or annualized
compensation for that fiscal year was in excess of $100,000. The
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<PAGE> 7
individuals named in the table will be hereinafter referred to as the "Named
Officers." No other executive officer of Symposium received compensation in
excess of $100,000 during fiscal year 1999. Other than as set forth below, no
executive officer who would otherwise have been included in this table on the
basis of 1999 salary and bonus resigned or terminated employment during the
year. No executive officer of the Company received any cash compensation for
any of the two fiscal years ended prior to 1999.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long-Term
Annual Compensation Compensation
Awards
----------------------------------- -------------
Fiscal Securities
Name and Principal Year Other Annual Underlying
Position Ended Salary Bonus Compensation Options/SARs(#)
- ------------------ ------ ------- ----- ------------- ---------------
<S> <C> <C> <C> <C> <C>
Ronald Altbach 1999 $313,670 -- -- 150,000
Co-Chairman of the Board
of Directors and Chief
Operating Officer(1)
- -----------------------------------------------------------------------------------------
Rupert Galliers-Pratt, 1999 $287,500 -- -- 200,000
former Chief Executive
Officer (2)
- -----------------------------------------------------------------------------------------
Polly Bauer (3) 1999 $58,333 $38,000 $10,000(4) 100,000(5)
President and Chief
Executive Officer of
Symposium Credit
Services
- -----------------------------------------------------------------------------------------
Tim Ledwick (6) 1999 $59,036 75,000(7)
Chief Financial Officer
- -----------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) On January 28, 2000, Mr. Altbach was named Chairman of the Board of
Directors and Chief Executive Officer.
(2) On January 28, 2000, Mr. Galliers-Pratt resigned as Chief Executive
Officer and Co-Chairman of the Board of Directors. Compensation for Mr.
Galliers-Pratt services as Chief Executive Officer was paid to Executive
Management Services, a Company wholly-owned by Mr. Galliers- Pratt, pursuant to
the terms of a consulting agreement among Executive Management Services, Mr.
Galliers-Pratt and the Company, dated as of January 1, 1999.
(3) Pursuant to an employment agreement between Ms. Bauer and the Company,
dated as of August 20, 1999, Ms. Bauer is entitled to a base annual compensation
at a rate of $200,000 per annum for 1999, plus a non-discretionary bonus of
$38,000 payable on December 31, 1999, provided that Ms. Bauer remained in the
Company's employ at such time. The amounts shown for Ms. Bauer in this "Summary
Compensation Table" represent salary and bonus payments made to Ms. Bauer for
services rendered under the agreement from August 20, 1999 (the effective date
of the agreement), through December 31, 1999.
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<PAGE> 8
(4) Prior to entering into full time employment with the Company, Ms.
Bauer served as a Company consultant and was paid $10,000 in consideration of
those services.
(5) Includes 50,000 options to purchase Common Stock that were not vested
as of the fiscal year ended December 31, 1999.
(6) Pursuant to an employment agreement between Mr. Ledwick and the
Company, dated as of September 21, 1999, Mr. Ledwick is entitled to a base
annual compensation at a rate of $210,000 per annum for 1999. The amounts shown
for Mr. Ledwick in this "Summary Compensation Table" represent salary payments
made to Mr. Ledwick for services rendered under the agreement from September 21,
1999 (the date Mr. Ledwick commenced his employment with the Company), through
December 31, 1999.
(7) None of the 75,000 options to purchase Common Stock granted to Mr.
Ledwick were vested as of fiscal year ended December 31, 1999.
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<PAGE> 9
OPTIONS AND STOCK APPRECIATION RIGHTS
The following table contains information concerning the grant of stock
options under the Company's 1998 Stock Option Plan to the Named Officers during
the 1999 fiscal year.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Individual Grants
- -------------------------------------------------------------------------------
Number of
Securities % of Underlying
Underlying Options/SARs
Options/ Granted to Exercise
SARs Employees in Price Expiration
Name Granted(#)(1) Fiscal Year ($/Share)(2) Date
- ---- ------------- --------------- ------------ ----------
<S> <C> <C> <C> <C>
Ronald Altbach 150,000 28.6% $ 1.00 3/18/03
Rupert Galliers-Pratt 200,000 38.1% $ 1.00 3/18/03
Polly Bauer 100,000 19.0% $6.375 9/20/04
Tim Ledwick 75,000 14.3% $5.625 9/21/04
</TABLE>
- ------------------
(1) Each option has a maximum term of ten years, subject to earlier
termination in the event of the optionee's cessation of service with
Symposium. Each option provides for adjustments to such option's exercise
price and corresponding proportional adjustments in the amount of shares
purchasable upon exercise of such option in the event of any stock splits,
reverse stock splits and the payment of dividends on the Common Stock. In
the event of any capital reorganization, any reclassification of the
Common Stock, or the consolidation or merger of the Company (collectively
a "Reorganization"), whereby the Company is the continuing corporation,
such option holder shall be entitled, upon exercise of such options, to
purchase such number and kind of shares, interests or other property that
such option holder would have been entitled to receive had such option
holder exercised such options immediately prior to any Reorganization. In
the event of a dissolution or liquidation of the Company, or any
Reorganization whereby the Company is not the continuing corporation, each
option shall terminate; provided, however, that (i) in the event of a
Reorganization whereby the Company is not the continuing corporation, the
continuing corporation may, but is not obligated to, tender to any
optionee options to purchase shares of the continuing corporation and (ii)
if the continuing corporation does not so tender options to purchase
shares of the continuing corporation, all options granted shall become,
prior to any liquidation, dissolution or Reorganization whereby the
Company is not the continuing corporation, immediately exercisable
notwithstanding any installment provision provided for under any option
grant.
(2) The exercise price may be paid in cash or, in the sole discretion of the
Board: (i) by delivery of other shares of Common Stock (valued at fair
market value on the exercise date); (ii) through cashless exercise (by
reducing the number of shares otherwise purchasable upon exercise); (iii)
through use of a note payable to the order of the Company in the amount of
the purchase price due upon exercise, or through any other
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<PAGE> 10
deferred payment arrangement approval by the Board; or (iv) by use of any
other legal consideration.
OPTION EXERCISE AND HOLDINGS
The following table provides information with respect to the Named
Officers concerning the exercisability of options during fiscal year 1999 and
unexercisable options held as of the end of fiscal year 1999.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR ("FY")
AND FY-END OPTION VALUES
<TABLE>
<CAPTION>
Value of Unexercised In-
Shares No. of Securities the-Money Options/SARs
Acquired Value Underlying Unexercised at FY-End (Market price of
on Realized Options/SARs at FY-End shares at FY-End less
Name Exercise (1) (#) exercise price) ($)(1)
- ---- -------- -------- -------------------------- ---------------------------
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Ronald Altbach - - 150,000 150,000 $178,125 $178,125
Rupert Galliers-Pratt - - 200,000 200,000 $237,500 $237,500
Polly Bauer - - 50,000 50,000 0 0
Tim Ledwick - - 0 75,000 0 0
</TABLE>
(1) Based on the fair market value of Symposium's common stock on
December 31, 1999 of 2.1875 per share, the closing sales price per
share on that date on the OTCBB.
PENSION AND LONG TERM INCENTIVE PLAN AWARDS
NONE
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND CHANGE OF CONTROL
AGREEMENTS
In January 1999, the Company entered into an Employment Agreement (the
"Agreement") with Mr. Altbach. Under the Agreement Mr. Altbach was paid
$112,500, in consideration of services rendered as Chief Operating Officer
through June 30, 1999 and $175,000 for services rendered as Chief Operating
Officer from June 30, 1999 until December 31, 1999. During the fiscal year
ended December 31, 1999, Mr. Altbach was also paid a $2,000 monthly car
allowance. The Company may terminate the employment of Mr. Altbach at any
time, with or without cause, provided that any termination without cause
requires the Company to continue to pay Mr. Altbach his then effective rate of
pay for a period of two years following the date of such termination.
Mr. Altbach may terminate the Employment Agreement upon not less than 60 days
notice to the Company.
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<PAGE> 11
In January 1999, the Company entered into a Consulting Agreement (the
"Consulting Agreement") with Executive Management Services, a company wholly
owned by Mr. Galliers-Pratt. Under the Consulting Agreement, Executive
Management Services was paid $112,500, in consideration for Mr. Galliers-Pratt's
services rendered to the Company through June 30, 1999 and $175,000 for Mr.
Galliers-Pratt's services rendered from June 30, 1999 until December 31, 1999.
During fiscal year ended December 31, 1999, Mr. Galliers-Pratt was paid a $2,000
monthly car allowance. The Company may terminate the Consulting Agreement at any
time, with or without cause, provided that any termination without cause
requires the Company to continue to pay Executive Management Services then the
effective management consulting rate for a period of two years following the
date of such termination. Executive Management Services may terminate the
Consulting Agreement upon not less than 60 days notice to the Company.
In August 1999, the Company entered into an employment agreement with Polly
Bauer (the "Bauer Employment Agreement"). Pursuant to the Bauer Employment
Agreement, Ms. Bauer is entitled to base annual compensation of at a rate of
$200,000 for the period ending September 30, 2000, with annual increases of 5%
effective as of September 30, 2000 and each succeeding September 30. Ms. Bauer
was also entitled to a non-discretionary bonus of $38,000 on December 1, 1999
(provided Ms. Bauer had not terminated her employment as of such date) and is
entitled a bonus for each year commencing with the year ending December 31, 2000
equal to 10% of Net Consulting Income of the Symposium Credit Services Division
(the "Division") for such year. "Net Consulting Income" for any year is defined
as the amount by which the gross revenues actually received by the Company
during such year from consulting services rendered by the Division exceeds the
sum of (i) Ms. Bauer's salary and benefit costs for such year, (ii) all
compensation paid to or on behalf of other Division employees for such year;
(iii) all operating expenses of the Division for such year; and (iv) if the
Division has more than three employees or engages in any business other than the
provision of consulting services, an amount determined in good faith by the
Company, after consultation with Ms. Bauer, representing the Division's
reasonable and fair share of Company general and administrative expenses for
such year. The Company may terminate the employment of Ms. Bauer at any time
with or without cause, provided that if, prior to March 20, 2001, Ms. Bauer is
terminated by the Company without cause, the Company is required to continue to
pay Ms. Bauer her then effective base salary and benefits until September 20,
2001. If, after March 20, 2001, Ms. Bauer is terminated by the Company without
cause, the Company is required to continue to pay Ms. Bauer her then effective
base salary and benefits for six months following the date of such termination.
Ms. Bauer will also be entitled to receive any accrued bonus through the date of
termination.
In September 1999, the Company entered into an employment agreement with
Tim S. Ledwick (the "Ledwick Employment Agreement"). Pursuant to the Ledwick
Employment Agreement, Mr. Ledwick is entitled to base annual compensation at a
rate of $210,000. In addition, on or before January 31 of each year, commencing
with the year 2000, the Board of Directors or the Chief Executive Officer of the
Company, following consultation with Mr. Ledwick, are required to establish a
bonus plan for Mr. Ledwick for such year which will permit Mr. Ledwick to earn a
bonus for the year in an amount ranging from $20,000 to $40,000. The terms and
conditions of the bonus plan shall be within the sole discretion of the Board
and/or the Chief Executive Officer and may provide objective and/or subjective
criteria for earning a bonus. The Company may terminate Mr. Ledwick's employment
at any time with or without cause, provided, that if, prior to March 20, 2001,
Mr. Ledwick is terminated by the Company without cause, the Company is required
to continue to pay Mr. Ledwick his then effective base salary and benefits until
two months following the date of such termination. If, after March 20, 2001, Mr.
Ledwick is terminated by the Company without cause, the Company is required to
continue to pay Mr. Ledwick his then effective base salary and benefits for six
months following the date of such termination; provided, however, that if Mr.
Ledwick is terminated by the Company without cause at anytime after any Person
has acquired more than fifty percent of the outstanding voting securities of the
Company, Mr. Ledwick will be entitled to his then effective base salary and
benefits for a period of one year following such termination. If terminated
without cause Mr. Ledwick would also be entitled to receive a pro rata portion
if his bonus for the year in which his Employment Terminates.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
RELATED TRANSACTIONS:
During 1999 the Company paid a total of $85,000 to Richard Kaufman, a
Director of the Company, for services rendered in connection with financing
relating to the Company's
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<PAGE> 12
acquisition of substantially all the assets and certain liabilities of Direct
Sales International, L.P., a Georgia limited partnership.
ITEM 13. EXHIBITS, LISTS AND REPORTS ON FORM 8-K.
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
2.1 Asset Purchase Agreement made and entered into as of January 28,
2000, by and among Direct Sales International, Inc., Symposium
Corporation and Richard Prochnow, incorporated by reference to
Registrant's Current Report on from Form 8-K, filed with the
Securities & Exchange Commission, February 14, 2000.
2.2 Option Agreement dated June 9, 1999 by and among Symposium
Corporation, Direct Sales International L.P. and Richard
Prochnow, incorporated herein by reference to Exhibit 2.2 to the
Registrant's Quarterly Report on Form 10-QSB for the period ended
June 30, 1999.
3.1 Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to the Registrant's Form
10-12G, filed with the Securities Exchange Commission on February
24, 1999.
3.2 Certificate of Designation of Series A Convertible Preferred
Stock, par value $.001, filed with the Secretary of State of
Delaware on January 28, 2000, incorporated by reference to the
Registrant's Form 10K-SB, for the fiscal year ended December 31,
1999 filed with the Securities Exchange Commission April 12,
2000.
3.3 Certificate of Designation of Series B Convertible Preferred
Stock, par value $.001 filed with the Secretary of State of
Delaware on January 28, 2000 incorporated by reference to the
Registrant's Form 10K-SB for the fiscal year ended December 31,
1999, filed with the Securities Exchange Commission April 12,
2000.
3.4 Certificate of Designation of Series C Convertible Preferred
Stock, par value $.001 filed with the Secretary of State of
Delaware on January 28, 2000 incorporated by reference to the
Registrant's Form 10K-SB for the fiscal year ended December 31,
1999, filed with the Securities Exchange Commission April 12,
2000.
3.5 By-Laws of the Registrant, incorporated by reference to the
Registrant's Form 10-12G, filed with the Securities & Exchange
Commission on February 24, 1999.
10.1 Coast Credit Loan and Security Agreement, between Coast Business
Credit, a division of Southern Pacific Bank ("Coast") and Direct
Sales International, Inc., dated as of January 28, 2000
incorporated by reference
</TABLE>
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<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
to the Registrant's Form 10K-SB for the fiscal year ended
December 31, 1999, filed with the Securities Exchange Commission
April 12, 2000.
10.2 Amendment to Coast Credit Loan and Security Agreement, between
Coast Business Credit, a division of Southern Pacific Bank
("Coast") and Direct Sales International, Inc., dated as of
January 28, 2000 incorporated by reference to the Registrant's
Form 10K-SB for the fiscal year ended December 31, 1999, filed
with the Securities Exchange Commission April 12, 2000.
10.3 Second Amendment to Coast Credit Loan and Security Agreement,
between Coast Business Credit, a division of Southern Pacific
Bank ("Coast") and Direct Sales International, Inc., dated as of
March 6, 2000 incorporated by reference to the Registrant's Form
10K-SB for the Fiscal year ended December 31, 1999, filed with
the Securities Exchange Commission April 12, 2000.
10.4 Amendment to Coast Credit Loan and Security Agreement, between
Coast Business Credit, a division of Southern Pacific Bank
("Coast") and Direct Sales International, Inc., dated as of March
30, 2000 incorporated by reference to the Registrant's Form
10K-SB for the fiscal year ended December 31, 1999, filed with
the Securities Exchange Commission April 12, 2000.
10.5 Continuing Guaranty executed by Symposium Corporation as
Guarantor, in favor of Coast Business Credit, with respect to the
indebtedness of Direct Sales International, Inc., dated as of
January 28, 2000 incorporated by reference to the Registrant's
Form 10K-SB for the fiscal year ended December 31, 1999, filed
with the Securities Exchange Commission April 12, 2000.
10.6 Employment agreement between Polly Bauer and the Company, dated
as of August 20, 1999, incorporated by reference to the
Registrant's Form 10QSB for the period ended September 30, 1999,
filed with the Securities Exchange Commission on October 15,
1999.
10.7 Employment Agreement between Tim Ledwick and the Company, dated
as of September 21, 1999, incorporated by reference to the
Registrant's Form 10QSB for the period ended September 30, 1999,
filed with the Securities Exchange Commission on October 15,
1999.
10.8 Employment Agreement between Ronald Altbach and the Company,
dated as of January 1, 1999.*
10.9 Consulting Agreement among Executive Management Services, Rupert
</TABLE>
- 13 -
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
Galliers-Pratt and the Company, dated as January 1, 1999.*
21 List of subsidiaries of Symposium incorporated by reference to
the Registrant's Form 10K-SB for the fiscal year ended December
31, 1999, filed with the Securities Exchange Commission April 12,
2000.
27.1 Financial Data Schedule incorporated by reference to the
Registrant's Form 10K-SB for the fiscal year ended December 31,
1999, filed with the Securities Exchange Commission April 12,
2000.
99.1 Registration Rights Agreement made and entered into as of January
28, 2000 by and between Symposium Corporation and Richard
Prochnow, incorporated by reference to Registrant's Current
Report on Form 8-K, filed with the Securities & Exchange
Commission February 14, 2000.
99.2 Amended Non-Negotiable Secured Promissory Note made by Richard
Prochnow payable to the order of Symposium Corporation, dated
January 28, 2000, incorporated by reference to Registrant's
Current Report on Form 8-K, filed with the Securities & Exchange
Commission on February 14, 2000.
99.3 Consulting Agreement between Symposium Corporation, Direct Sales
International, Inc. and Richard Prochnow, incorporated by
reference to Registrant's Current Report on Form 8-K, filed with
the Securities & Exchange Commission on February 14, 2000.
99.4 Loan Agreement made and entered into as of January 28, 2000,
between Symposium Corporation and amanita, incorporated by
reference to Registrant's Current Report on Form 8-K, filed with
the Securities & Exchange Commission, on February 14, 2000.
99.5 Share Purchase and Sale Agreement, by and between Symposium
Telecom Corporation and Hamilton Telecommunications Limited,
dated December 14, 1998, as amended, incorporated by reference
to the Registrants Form 12-C filed with the Securities and
Exchange Commission on February 24, 1999.
99.6 Option Agreement by and between Symposium Telecom Corporation,
Robert Green, Marilyn Shein, Fabrice Thomas, Shropshire Fine
Investment Limited and Automated Communications Limited, dated
December 14, 1998, as amended, incorporated by reference to
Registrant's Form 10-12G, filed with the Securities Exchange
Commission on February 24, 1999.
</TABLE>
- ------------------
* Filed herewith.
- 14 -
<PAGE> 15
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Company has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
Symposium Corporation.
(Company)
By: /s/
---------------------
Ronald Altbach
Chairman of the Board and Chief Executive
Officer
Date: April 30, 2000
---------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed by the following persons on behalf of the
Company and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE DATE CAPACITY IN WHICH SIGNED
- --------- ---- ------------------------
<S> <C> <C>
/s/ April 29, 2000 Chairman of the Board, Chief Executive
- --------------------- Officer and Director (Principal Executive
Ronald Altbach Officer)
/s/ April 29, 2000 Chief Financial Officer
- --------------------- (Principal Financial and Accounting
Tim S. Ledwick Officer)
/s/ April 29, 2000 Director
- ---------------------
Richard Cohen
/s/ April 29, 2000 Director
- ---------------------
Richard Kaufman
</TABLE>
- 15 -
<PAGE> 1
Exhibit 10.8
SYMPOSIUM CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into as
of January 1, 1999, by and between Symposium Corporation, a Delaware
corporation (the "COMPANY"), and Ronald Altbach ("EMPLOYEE").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby employs Employee as an officer of the Company.
Employee hereby accepts such employment. Employee shall have the title of Chief
Operating Officer, but may have an executive officer title determined by the
Board of Directors provided that Employee always has a title which is not less
senior than Chief Operating Officer.
(b) Employee agrees to devote all of Employee's business time, energy and
efforts to the business of the Company and will use Employee's best efforts and
abilities faithfully and diligently to promote the Company's business interests.
Employee's duties and responsibilities shall be those incident to those which
are normally and customarily vested in such office(s) of a corporation;
provided, however, that Employee shall report directly to the Board and not to
the Chief Executive Officer of the Company. In addition, Employee's duties shall
include those duties and services for the Company and its affiliates as the
Board shall, in its sole and absolute discretion, from time to time reasonably
direct which are not inconsistent with Employee's position described in Section
1(a). Notwithstanding the foregoing, but subject to Section 1(c) of this
Agreement, Employee shall be permitted to serve on the Board of Directors of, or
in a similar capacity with, other Persons and to manage his personal
investments.
(c) For so long as Employee is employed by the Company, Employee shall
not, directly or indirectly, either as an employee, employer, consultant, agent,
investor, principal, partner, stockholder (except as the holder of less than 5%
of the issued and outstanding stock of a publicly held corporation), corporate
officer or director, or in any other individual or representative capacity,
engage or participate in any business that is in competition in any manner
whatsoever with the business of the Company Group, as such businesses are now or
hereafter conducted.
2. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or
1
<PAGE> 2
indirectly Controls.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Employee, shall mean that, for physical or
mental reasons, Employee is unable to perform the essential functions of
Employee's duties under this Agreement for 60 consecutive days, or 90 days
during any one six month period. Employee agrees to submit to a reasonable
number of examinations by a medical doctor advising the Company as to whether
Employee shall have suffered a disability and Employee hereby authorizes the
disclosure and release to the Company and its agents and representatives all
supporting medical records. If Employee is not legally competent, Employee's
legal guardian or duly authorized attorney-in-fact will act in Employee's stead
for the purposes of submitting Employee to the examinations, and providing the
authorization of disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Employee's employment with the Company, that:
(a) Employee breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for breaches of Sections 1(c), 6 or 7
or this Agreement, which cannot be cured and for which the Company need not
give any opportunity to cure); or
(b) Employee commits any act of personal dishonesty, fraud, embezzlement,
breach of fiduciary duty or trust against the Company Group; or
(c) Employee is indicted for, or convicted of, or pleads guilty or nolo
contendere with respect to, theft, fraud, a crime involving moral turpitude, or
a felony under federal or applicable state law; or
(d) Employee commits any act of personal conduct that, in the reasonable
opinion of the Board, gives rise to any member of the Company Group of a
material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Employee commits continued and repeated substantive violations of
specific written directions of the Board, which directions are consistent with
this Agreement and Employee's position as a senior or executive officer, or
continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited
2
<PAGE> 3
liability company, governmental authority or other entity.
3. COMPENSATION AND BENEFITS
For so long as Employee shall be employed by the Company, Employee shall
receive the compensation and benefits set forth in this Section 3.
(a) Salary. The Company shall pay Employee a salary at an annual rate of
$225,000 through June 30, 1999 and $350,000 thereafter. The Board may, but shall
not be obligated to, increase Employee's salary from time to time. The salary
shall be payable in installments in the same manner and at the same times the
Company pays salaries to the executive officers of the Company, but in no event
less frequently than equal monthly installments.
(b) Expense Reimbursement. Employee shall be entitled to reimbursement
from the Company for the reasonable out-of-pocket costs and expenses which
Employee incurs in connection with the performance of Employee's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor. Employee shall also be reimbursed for the cost
of airfare for his spouse for up to two roundtrip flights per year from the
United States to Europe.
(c) Employee Benefit Plans. Employee shall be entitled to participate in
any pension, savings and group term life, medical, dental, disability, and other
group benefit plans that the Company makes available to its employees generally.
(d) Vacation. Employee shall be entitled to four weeks paid vacation, which
shall accrue in accordance with the Company's standard vacation accrual policy.
(e) Automobile Allowance. Employer shall pay directly to Employee, a $2,000
per month car allowance during the term of this Agreement or as provided for in
Section 5(a), whichever period lasts longer (the "CAR PAYMENTS").
(f) Disability. In the event of any Disability, if Employee shall receive
payments as a result of such Disability under any disability plan maintained by
the Company or from any government agency, the Company shall be entitled to
deduct the amount of such payments received from base salary payable to Employee
during the period of such Disability.
(g) Withholding. The Company may deduct from any compensation payable to
Employee (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of employment) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
3
<PAGE> 4
4. TERM OF EMPLOYMENT
Employee's term of employment pursuant to this Agreement shall commence as
of the date hereof and shall terminate on the earliest to occur of the following
(the "DATE OF TERMINATION"):
(a) upon the date set forth in a written notice of termination from Employee to
the Company (which date shall at least 60 days after the delivery of that
notice); provided, however, that in the event Employee delivers such notice to
the Company, the Company shall have the right to accelerate such termination by
written notice thereof to Employee (and such termination by the Company shall be
deemed to be a termination of employment pursuant to this Section 4(a), and not
a termination pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Employee;
(c) upon delivery to Employee of written notice of termination by the Company
if Employee shall suffer a Disability;
(d) upon delivery to Employee of written notice of termination by the Company
For Cause; or
(e) upon delivery to Employee of written notice of termination by the Company
without cause.
5. SEVERANCE COMPENSATION
(a) If Employee's employment is terminated pursuant to Section 4(e) (by the
Company without cause), the Company shall, for the two-year period commencing on
the Date of Termination, continue to (i) pay to Employee salary at the rate in
effect on the Date of Termination; (ii) pay for Employee's (and his immediate
family's) participation in group medical, life, dental, disability and similar
plans to the extent permitted by the plan; and (iii) pay to the Employee the Car
Payments.
(b) If Employee's employment is terminated for any reason other than by the
Company without cause, the Company shall pay to Employee (or Employee's estate
or beneficiary, as the case may be) any unpaid base salary through the Date of
Termination. All rights and benefits which Employee or his estate may have under
employee benefit plans in which Employee shall be participating at the date of
termination of employment shall be determined in accordance with such plans.
(c) If Employee's employment is terminated by the Company pursuant to Section
4(d) (by the Company For Cause), and subject to applicable law and regulations,
the Company shall be entitled to offset against any payments due Employee any
loss or damage which the Company shall suffer as a result of the acts or
omissions of Employee giving rise to termination under Section 4(d).
4
<PAGE> 5
(d) Employee acknowledges that the Company has the right to terminate
Employee's employment without cause and that such termination shall not be a
breach of this Agreement or any other express or implied agreement between the
Company and Employee. Accordingly, in the event of such termination. Employee
shall be entitled only to those benefits specifically provided in this Section
5, and shall not have any other rights to any compensation or damages from the
Company for breach of contract.
(e) Employee acknowledges that in the event of termination of Employee's
employment for any reason, Employee (nor Employee's estate, heirs,
beneficiaries or others claiming through Employee) shall not be entitled to
any severance or other compensation from the Company except as specifically
provided in this Section 5. Without limitation on the generality of the
foregoing, this Section supersedes any plan or policy of the Company which
provides for severance to its officers or employees, and Employee shall not be
entitled to any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until one year from the Date of Termination:
(a) Employee will not, directly or indirectly, influence or attempt to
influence any customer of the Company Group to reduce or discontinue its
purchases of any products or services from the Company Group or to divert such
purchases to any Person other than the Company Group.
(b) Employee will not, directly or indirectly, interfere with, disrupt or
attempt to disrupt the relationship, contractual or otherwise, between the
Company Group and any of its respective suppliers, principals, distributors,
lessors or licensors; and
(c) Employee will not, directly or indirectly, solicit and employee of
the Company Group to work for any Person.
7. CONFIDENTIALITY
Employee agrees not to disclose or use at any time (whether during or
after Employee's employment with the Company) for Employee's own benefit or
purposes or the benefit or purposes of any other Person any trade secrets,
information, data or other confidential information relating to customers,
development programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, financial methods, plans, or the business
and affairs of the Company Group generally, provided that the foregoing shall
not apply to information which is not unique to the Company Group or which is
generally known to the industry or the public other than as a result of
Employee's breach of this covenant. Employee agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company Group except that he may retain
5
<PAGE> 6
personal notes, notebooks, diaries, rolodexes and addresses and phone numbers.
Employee further agrees that he will not retain or use for his account at any
time any trade names, trademark or other proprietary business designation used
or owned in connection with the business of any member of the Company Group.
8. MISCELLANEOUS
(a) Notices. All Notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in
writing, and shall be delivered by personal service, courier, facsimile
transmission or by United States first class, registered or certified mail,
addressed to the following addresses:
If to the Company, to:
Symposium Corporation
Bennet House
54 St. James's Street
London SW1A 1JT England
Attn: Chief Executive Officer and Board of Directors
If to Employee, to:
Employee's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are herby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) Severability. In the event than any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
6
<PAGE> 7
(d) Governing Law. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
(e) Captions. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Symposium Corporation
By:----------------------------
Rupert Galliers-Pratt
Chief Executive Officer
-------------------------------
Ronald Altbach
7
<PAGE> 1
Exhibit 10.9
SYMPOSIUM CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made and entered into as
of January 1, 1999, by and between Symposium Corporation, a Delaware
corporation (the "COMPANY"), and Executive Management Services ("CONSULTANT").
1. ENGAGEMENT AND RESPONSIBILITIES
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages Consultant as a consultant, and
Consultant hereby accepts such engagement.
(b) Consultant hereby agrees that all duties and responsibilities of
Consultant set forth in this Agreement shall be performed by Rupert
Galliers-Pratt ("GALLIERS-PRATT").
(c) Galliers-Pratt shall have the title of Chief Executive Officer.
(d) Galliers-Pratt shall devote all of his business time, energy and
efforts to the business of the Company and will use his best efforts and
abilities faithfully and diligently to promote the Company's business
interests. Galliers-Pratt's duties and responsibilities shall be those incident
to those which are normally and customarily vested in the office of chief
executive officer of a corporation. In addition, Galliers-Pratt's duties shall
include those duties and services for the Company and its affiliates as the
Board shall, in its sole and absolute discretion, from time to time reasonably
direct which are not inconsistent with Galliers-Pratt's position described in
Section 1(c). Notwithstanding the foregoing, but subject to Section 1(e) of
this Agreement, Galliers-Pratt shall be permitted to service on the Board of
Directors of, or in a similar capacity with, other Persons and to manage his
personal investments.
(e) For so long as Consultant is engaged by the Company, neither
Consultant nor Galliers-Pratt shall, directly or indirectly, either as an
employee, employer, consultant, agent, investor, principal, partner,
stockholder (except as the holder of less than 5% of the issued and
outstanding stock of a publicly held corporation), corporate officer or
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition in any manner whatsoever
with the business of the Company Group, as such businesses are now or hereafter
conducted.
2. DEFINITIONS
"BOARD" shall mean the Board of Directors of the Company.
1
<PAGE> 2
"COMPANY GROUP" shall mean the Company and each Person that the Company
directly or indirectly Controls.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of more than 50% of the outstanding voting securities of such Person,
or (ii) the power, directly or indirectly, by proxy, voting trust or otherwise,
to elect a majority of the outstanding directors, trustees or other managing
persons of such Person.
"DISABILITY," with respect to Galliers-Pratt, shall mean that, for physical
or mental reasons, Galliers-Pratt is unable to perform the essential functions
of his duties under this Agreement for 60 consecutive days, or 90 days during
any one six month period. Galliers-Pratt agrees to submit to a reasonable number
of examinations by a medical doctor advising the Company as to whether he shall
have suffered a disability and Galliers-Pratt hereby authorizes the disclosure
and release to the Company and its agents and representatives all supporting
medical records. If Galliers-Pratt is not legally competent, his legal guardian
or duly authorized attorney-in-fact will act in his stead for the purposes of
submitting him to the examinations, and providing the authorization of
disclosure.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Consultant's engagement with the Company, that:
(a) Consultant breaches any obligation, duty or agreement under this
Agreement, which breach is not cured or corrected within 15 days of written
notice thereof from the Company (except for the breaches of Sections 1(e), 6 or
7 of this Agreement, which cannot be cured and for which the Company need not
give any opportunity to cure); or
(b) Galliers-Pratt commits any act of personal dishonesty, fraud,
embezzlement, breach of fiduciary duty or trust against the Company Group; or
(c) Galliers-Pratt is indicted for, or convicted of, or pleads guilty or
nolo contendere with respect to, theft, fraud, a crime involving moral
turpitude, or a felony under federal or applicable state law; or
(d) Galliers-Pratt commits any act of personal conduct that, in the
reasonable opinion of the Board, gives rise to any member of the Company Group
of a material risk of liability under federal or applicable state law for
discrimination or sexual or other forms of harassment or other similar
liabilities to subordinate employees; or
(e) Galliers-Pratt commits continued and repeated substantive violations of
specific written directions of the Board, which directions are consistent with
this Agreement and Galliers-Pratt's position as a senior or executive officer,
or continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
2
<PAGE> 3
3. COMPENSATION AND BENEFITS
For so long as Consultant shall be engaged by the Company as a consultant,
Consultant shall receive the compensation set forth in this Section 3.
(a) Consulting Fees. The Company shall pay Consultant consulting fees at
an annual rate of $250,000 through June 30, 1999 and $350,000 thereafter. The
Company may, but shall not be obligated to, increase the consulting fees from
time to time. The consulting fees shall be payable in installments in the same
manner and at the same times the Company pays salaries to executive officers of
the Company, but in no event less frequently than equal monthly installments.
(b) Expense Reimbursement. Consultant shall be entitled to reimbursements
from the Company for the reasonable out-of-pocket costs and expenses which
Consultant incurs in connection with the performance of Consultant's duties and
obligations under this Agreement in a manner consistent with the Company's
practices and policies therefor. Consultant shall also be reimbursed for the
cost of airfare for Galliers-Pratt's spouse for up to four roundtrip flights per
year from Europe to the United States.
(c) Benefit Plans. If an to the extent permitted by the relevant plan,
Galliers-Pratt shall be entitled to participate in any pension, savings and
group term life, medical, dental, disability, and other group benefit plans that
the Company makes available to its employees generally.
(d) Vacation. Galliers-Pratt shall be entitled to four weeks paid
vacation, which shall accrue in accordance with the Company's standard vacation
accrual policy.
(e) Automobile Allowance. Employer shall pay directly to Consultant a
$2,000 per month car allowance during the term of this Agreement or as provided
for in Section 5(a), whichever period lasts longer (the "CAR PAYMENTS").
(f) Disability. In the event of any Disability, if Consultant or
Galliers-Pratt shall receive payments as a result of such Disability under any
disability plan maintained by the Company or from any government agency, the
Company shall be entitled to deduct the amount of such payments received from
base salary payable to Consultant during the period of such Disability.
(g) Withholding. The Company may deduct from any compensation payable to
Consultant (including payments made pursuant to Section 5 of this Agreement in
connection with or following termination of engagement) amounts it believes are
required to be withheld under federal and state law, including applicable
federal, state and/or local income tax withholding, old-age and survivors' and
other social security payments, state disability and other insurance premiums
and payments.
4. TERM OF ENGAGEMENT
Consultant's term of engagement pursuant to this Agreement shall commence
as of the date hereof and shall terminate on the earliest to occur of the
following (the "Date of Termination"):
3
<PAGE> 4
(a) upon the date set forth in a written notice of termination from
Consultant to the Company (which date shall at least 60 days after the delivery
of that notice); provided, however, that in the event Consultant delivers such
notice to the Company, the Company shall have the right to accelerate such
termination by written notice thereof to Consultant (and such termination by the
Company shall be deemed to be a termination of engagement pursuant to this
Section 4(a), and not a termination pursuant to Section 4(d) or 4(e) hereof);
(b) upon the death of Galliers-Pratt;
(c) upon delivery to Consultant of written notice of termination by the
Company if Galliers-Pratt shall suffer a Disability;
(d) upon delivery to Consultant of written notice of termination by the
Company For Cause; or
(e) upon delivery to Consultant of written notice of termination by the
Company without cause.
It is understood that termination by the Company because Galliers-Pratt
does not personally perform the services required of Consultant shall be
termination For Cause.
5. SEVERANCE COMPENSATION
(a) If Consultant's engagement is terminated pursuant to Section 4(e) (by
the Company without cause), the Company shall, for the two-year period
commencing on the Date of Termination, continue to (i) pay to Consultant
consulting fees at the rate in effect on the Date of Termination, (ii) pay for
Galliers-Pratt's (and his immediate family's) participation in group medical,
life, dental, disability and similar plans to the extent permitted by the plan,
and (iii) pay to Consultant the Car Payments.
(b) If Consultant's engagement is terminated for any reason other than by
the Company without cause, the Company shall pay to Consultant any unpaid
consulting fees through the Date of Termination. All rights and benefits which
Galliers-Pratt or his estate may have under the Company's benefit plans in which
Galliers-Pratt shall be participating at the date of termination of engagement
shall be determined in accordance with such plans.
(c) If Consultant's engagement is terminated by the Company pursuant to
Section 4(d) (by the Company For Cause), and subject to applicable law and
regulations, the Company shall be entitled to offset against any payments due
Consultant any loss or damage which the Company shall suffer as a result of the
acts or omissions of Consultant or Galliers-Pratt giving rise to termination
under Section 4(d).
(d) Consultant acknowledges that the Company has the right to terminate
Consultant's engagement without cause and that such termination shall not be a
breach of this Agreement or any
4
<PAGE> 5
other express or implied agreement between the Company and Consultant.
Accordingly, in the event of such termination, Consultant shall be entitled
only to those benefits specifically provided in this Section 5, and shall not
have any other rights to any compensation or damages from the Company from
breach of contract.
(e) Consultant acknowledges that in the event of termination of
Consultant's engagement for any reason, Consultant shall not be entitled to any
severance or other compensation from the Company except as specifically
provided in this Section 5. Without limitation on the generality of the
foregoing, this Section supersedes any plan or policy of the Company which
provides for severance to its officers or Consultant, and Consultant shall not
be entitled to any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT
From the date hereof until one year from the Date of Termination:
(a) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
influence or attempt to influence any customer of the Company Group to reduce
or discontinue its purchases of any products or services from the Company Group
or to divert such purchases to any Person other than the Company Group.
(b) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
interfere with, disrupt or attempt to disrupt the relationship, contractual or
otherwise, between the Company Group and any of its respective suppliers,
principals, distributors, lessors or licensors; and
(c) Neither Consultant nor Galliers-Pratt will, directly or indirectly,
solicit any employees of the Company Group to work for any Person.
7. CONFIDENTIALITY
Each of Consultant and Galliers-Pratt agrees not to disclose or use at any
time (whether during or after Consultant's engagement with the Company) for its
or his own benefit or purposes or the benefit or purposes of any other Person
any trade secrets, information, data, or other confidential information
relating to customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, credit and financial data, financial
methods, plans, or the business and affairs of the Company Group generally,
provided that the foregoing shall not apply to information which is not unique
to the Company Group or which is generally known to the industry or the public
other than as a result of Consultant's breach of this covenant. Each of
Consultant and Galliers-Pratt agrees that upon termination of Consultant's
engagement with the Company for any reason, it and he will return to the
Company immediately all memoranda, books, papers, plans, information, letters
and other data, and all copies thereof or therefrom, in any way relating to the
business of the Company Group except that it and he may retain personal notes,
notebooks, diaries, rolodexes and addresses and phone numbers. Each of
Consultant and Galliers-Pratt further agrees that it and he will not retain or
use for its or his account at any time any trade names, trademark or
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other proprietary business designation used or owned in connection with the
business of any member of the Company Group.
8. MISCELLANEOUS
(a) Notices. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to the Company, to:
Symposium Corporation
410 Park Avenue
18th Floor
New York, NY 10022
Attn: Chief Operating Officer and Board of Directors
If to Consultant, to:
Consultant's address as set forth on the books
and records of the Company
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address fur further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party to this Agreement.
(c) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
(d) Governing Law. This Agreement has been made and entered into in the
State of New York and shall be construed in accordance with the laws of the
State of New York.
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<PAGE> 7
(e) Captions. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Symposium Corporation
By: /s/ Ronald Altbach
---------------------------------------
Ronald Altbach
Chief Operating Officer
Executive Management Services
By:
---------------------------------------
Its:
This Agreement is executed by Rupert Galliers-Pratt
solely for purpose of making the agreements set forth
in Sections 1(e), 6 and 7.
/s/ Rupert Galliers-Pratt
-------------------------------------------
Rupert Galliers-Pratt
7
<PAGE> 8
(e) Captions. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Attorneys' Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, its
reasonable attorneys' fees, costs and expenses. The prevailing party is the
party who is entitled to recover its costs in the action or proceeding. A party
not entitled to recover its costs may not recover attorneys' fees. No sum for
attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Symposium Corporation
By: /s/ Ronald Altbach
---------------------------------------
Ronald Altbach
Chief Operating Officer
Executive Management Services
By:
---------------------------------------
Its:
This Agreement is executed by Rupert Galliers-Pratt
solely for purpose of making the agreements set forth
in Sections 1(e), 6 and 7.
-------------------------------------------
Rupert Galliers-Pratt
7
