As filed with the Securities and Exchange Commission on January 13, 2000
Registration No. 333-94201
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
INFOCAST CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Nevada 7371 84-1460887
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
One Richmond Street West
Suite 902
Toronto, Ontario M5H 3W4
(416) 867-1681
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
------------------------------------
James Leech
Chief Executive Officer
InfoCast Corporation
One Richmond Street West
Suite 902
Toronto, Ontario M5H 3W4
(416) 867-1681
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
------------------------------------
Copies to:
Jeffrey S. Spindler, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
------------------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
<PAGE>
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|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule
434, check the following box. / /
---------------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-1
of InfoCast Corporation (the "Company") is being filed with the Securities and
Exchange Commission (the "Commission") solely to refile Exhibit 10.36, the
Employment Agreement by and between the Company and Carl Stevens, in order to
correct the date of such exhibit from September 1999 to November 29, 1999 and in
order to correct the effective date of such exhibit from September 1999 to
December 1, 1999. The Prospectus which forms a part of this Amendment No. 1 is
identical to the Prospectus included in the Registration Statement as filed with
the Commission on January 7, 2000, which Prospectus is not separately included
in this Amendment No. 1.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Filing Fee..............$24,458.38
*Accountants' fees and expenses............................$10,000.00
*Legal fees and expenses...................................$50,000.00
*Miscellaneous.............................................$ 5,541.62
Total.............................................$90,000.00
- --------------------------
* Estimated for purposes of this filing.
The foregoing costs and expenses will be paid by the Company. Other
than the Securities and Exchange Commission filing fee, all fees and expenses
are estimated.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Neither the Company's Certificate of Incorporation, as amended, nor its
Amended and Restated Bylaws provide for the indemnification of its officers and
directors. Under Nevada's General Corporation Law, the Company may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by or in the right
of the Company (such as a shareholder derivative suit), by reason of the fact
that such person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. Such indemnification may extend to expenses,
including attorneys' fees, judgments, fines and amount paid in settlement
actually and reasonable incurred by such person in connection with the action,
suit or proceeding if he acted in good faith and in a manner which he reasonable
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. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court to be liable to
the Company or for amounts paid in settlement to the Company, unless the court
in which the action or suit was brought, or another court of competent
jurisdiction, determines that in view of all the circumstances, the person is
fairly and reasonably entitled to be indemnified for such expenses.
There is no pending litigation or proceeding involving a director,
officer, employee or other agent of the Company as to which indemnification is
being sought, and the Company is not aware of any pending or threatened
litigation that may result in claims for indemnification by any officer,
director, employee or other agent.
The Company is in the process of purchasing Directors and Officers
liability insurance to defend and indemnify directors and officers who are
subject to claims made against them for their actions and omissions as directors
and officers of the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In 1998, the Company issued 5,000,000 (pre-split) shares of Common
Stock to Sheridan Reserve Incorporated for the acquisition of two mining
interests pursuant to an exemption under Section 4(2) of the Securities Act of
1933, as amended.
In April 1998, the Company consummated a private placement of 1,000,000
(pre-split) units at a price of $0.50 per unit to 20 accredited investors
pursuant to Rule 504 of Regulation D of the Securities Act of 1933, as amended.
Each unit consisted of two shares of Common Stock and two Common Stock purchase
warrants. Each Common Stock purchase warrant was exercisable for one (pre-split)
share of Common Stock at an exercise price of $0.25 per share. The $500,000
aggregate issue price of the units was satisfied through the receipt by the
Company of cash proceeds of $260,000 and the settlement of a non-interest
bearing note of $240,000 that was due from the Company to Sheridan Reserve
Incorporated.
<PAGE>
On October 13, 1998, the shareholders of the Company voted to effect a
two-for-one stock split that increased the number of outstanding shares of
Common Stock from 6,000,000 to 12,000,000 and increased the number of
outstanding Common Stock purchase warrants from 1,000,000 to 2,000,000.
Accordingly, the exercise price of the Common Stock purchase warrants was
reduced to $0.25 per share. Subsequently, 1,580,000 of the Common Stock purchase
warrants were exercised at $0.25 each for cash proceeds of $395,000. The
remaining 420,000 Common Stock purchase warrants expired.
On January 29, 1999, the Company consummated the acquisition of Virtual
Performance Systems, Inc. for 1,500,000 shares of InfoCast Canada which are
exchangeable on a one-for-one basis for shares of Common Stock of the Company to
17 persons pursuant to an exemption under Section 4(2) of the Securities Act of
1933, as amended, and Regulation D promulgated thereunder.
On February 8, 1999, the Company issued options to purchase 2,250,000
shares of Common Stock at an exercise price of $1.00 per share pursuant to the
Company's 1998 Stock Option Plan. Such options were issued to the Company's
directors, officers and consultants.
In March 1999, the Company consummated a private placement financing
pursuant to which it issued 2,767,334 shares of Common Stock to 25 non-U.S.
persons for an aggregate offering price of $4,151,001 pursuant to Regulation S
of the Securities Act of 1933, as amended.
In March 1999, the Company consummated a private placement financing
pursuant to which it issued 265,002 shares of Common Stock to Paul Kalvin,
George and Angela Shafran, Tom Shafran, Robert L. Frome, Jeffrey and Renee
Spindler, Douglas W. Fitzgerald and Amy Ladd, Marc Schinderman, Gary L. Roberts,
Alan DeClerck and David Olson, all of whom were accredited investors for an
aggregate offering price of $397,503 pursuant to Regulation D of the Securities
Act of 1933, as amended.
Pursuant to an agreement dated March 22, 1999, the Company issued
60,000 shares of Common Stock to Thomson Kernaghan & Co. Limited, a financial
investment consulting firm, for assistance in securing additional financing over
the following year.
On May 13, 1999, the Company consummated the acquisition of HomeBase
Work Solutions for 3,400,000 shares of InfoCast Canada which are exchangeable on
a one-for-one basis for shares of Common Stock of the Company to 51 persons
pursuant to an exemption under Section 4(2) of the Securities Act of 1933, as
amended, and Regulation D promulgated thereunder.
In June and October 1999, the Company issued warrants to purchase
25,000 and 12,500 shares of Common Stock at an exercise price of $7.00 and $8.75
per share, respectively, to the Poretz Group, an investor relations consulting
firm, in consideration for ongoing investor relations consulting services. The
Company may issue warrants to purchase an additional 62,500 shares of Common
Stock to such firm for similar services to be rendered.
In June 1999, in return for consulting services in respect of the
development of the Company's virtual call center application and the InfoCast
corporate name, the Company issued warrants to purchase an aggregate of 50,000
shares of Common Stock at an exercise price of $7.00 per share to each of Tsun
Chow, Armin Roeseler, Paul Prabhaker and John J.
Malley.
On June 1, 1999, the Company issued options to purchase 1,180,500
shares of Common Stock to officers, employees, consultants and advisors under
the 1999 Stock Option Plan and options to purchase 750,000 shares of Common
Stock to James Leech, its President, Chief Executive Officer and a director of
the Company.
On June 24, 1999, the Company consummated a private placement financing
pursuant to which it issued 420,000 shares of Common Stock and warrants to
purchase 70,000 shares of Common Stock at an exercise price of $7.00 per share
to Canadian Advantage LT partnership for an aggregate offering price of
$2,100,000 pursuant to Regulation D of the Securities Act of 1933, as amended.
From July to December 22, 1999, the Company issued 1,879,000 shares of
Common Stock in a private placement financing for an aggregate offering price of
$10,334,550 to 81 non-U.S. persons pursuant to Regulation S of the Securities
Act of 1933, as amended. The Company may issue up to an additional 500,000
shares of Common Stock to non-U.S. persons for an aggregate offering price of
$3,000,000 in such offering.
<PAGE>
In October 1999, the Company issued options to purchase 60,000 shares
of Common Stock at an exercise price of $8.25 per share to Howard Nichol, an
investor relations consultant for services, including assisting the Company with
communications with and presentations to stock brokers, analysts and private and
institutional investors, providing access to financial media and introducing the
Company to potential acquisition or alliance opportunities.
On November 19, 1999, the Company issued options to purchase an
aggregate of 400,000 shares of Common Stock to Carl Stevens, Christopher Rouse
and Jennifer Scoffield, officers of the Company, under the 1999 Stock Option
Plan.
On December 8, 1999, the Company issued options to purchase 375,000
shares of Common Stock to Herve Seguin, the Company's Chief Financial Officer,
and three employees of the Company.
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
*3.1 Articles of Incorporation, as amended, of the Company.
*3.2 Amended and Restated By-laws of the Company.
*4.1 Specimen Certificate of the Company's Common Stock.
*4.2 Form of 1998 Stock Option Plan ("1998 Plan").
*4.3 Form of Option Grant Letter under 1998 Plan.
*4.4 Form of 1999 Stock Option Plan ("1999 Plan").
*4.5 Form of Option Grant Letter under 1999 Plan.
*4.6 Option Agreement dated June 1, 1999, by and between the Company
and James William Leech.
*4.7 Warrant to Purchase 50,000 shares of Common Stock dated June 24,
1999, issued to Thomson Kernaghan and Co. Ltd.
*4.8 Warrant to Purchase 20,000 shares of Common Stock dated June 24,
1999, issued to Thomson Kernaghan and Co. Ltd.
*4.9 Warrant to Purchase 25,000 shares of Common Stock dated May 31,
1999 issued to the Poretz Group.
*4.10 Provisions Attaching to Common Shares of InfoCast Canada
Corporation.
*4.11 Exchange Agreement dated as of May 13, 1999 by and among the
Company, InfoCast Canada Corporation, HomeBase Work Solutions
Ltd. and the Shareholders.
*4.12 Support Agreement dated as of May 13, 1999 by and among the
Company, InfoCast Canada Corporation, HomeBase Work Solutions
Ltd., and the Shareholders.
*4.13 Warrant to Purchase 12,500 shares of Common Stock dated October
6, 1999 issued to the Poretz Group.
**5.1 Opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP.
*10.1 Letter Agreement dated March 17, 1999, from the Company to Sandy
Walsh.
*10.2 Employment to Agreement dated August 5, 1999, by and between the
Company and James William Leech.
*10.3 Consulting Agreement dated December 1, 1998, by and between the
Company and Three Hundred & Sixty Degrees, Inc.
*10.4 Consulting Agreement dated March 22, 1999, by and between the
Company and Thomson Kernaghan & Co. Ltd.
*10.5 Consulting Agreement dated April 15, 1999, by and between the
Company and Michael Baybak and Company, Inc.
*10.6 Letter Agreement dated June 15, 1999, by and between the Company
and Lasso Communications Inc.
*10.7 Advertising Services Agreement dated July 1, 1999, by and between
the Company and Lasso Communications Inc.
<PAGE>
*10.8 Release dated July 14, 1999, by and among the Company, Lasso
Communications Inc., James Hines and Michael Gruber.
*10.9 Memorandum of Understanding dated June 7, 1999, by and between
the Company and Willow CSN.
*10.10 Summary of Terms and Conditions dated April 21, 1999, by and
between the Company and CosmoCom, Inc.
*10.11 Agreement of Purchase and Sale dated as of November 17, 1998, by
and between Advanced Systems Computer Consultants, Inc. and
Cheltenham Technologies (Bermuda) Corporation.
*10.12 Asset Sale Agreement dated as of November 23, 1998, by and
between Grant Reserve Corporation and Cherokee Mining Company.
*10.13 Pledge Agreement dated as of November 25, 1998, by and between
Grant Reserve Corporation and Cherokee Mining Company.
*10.14 Agreement dated as of May 18, 1999, by and between the Company
and Call Center Learning Solutions, Inc.
*10.15 Distribution Agreement dated as of March 12, 1999, by and between
the Company and ITC Learning Corporation.
*10.16 License Agreement dated June 29, 1999, by and between the Company
and ITC Learning Corporation.
*10.17 Letter Agreement dated March 24, 1999, by and between the Company
and Applied Courseware Technology, Inc.
*10.18 General Security Agreement dated March 25, 1999, by and between
InfoCast Canada Corporation and Applied Courseware Technology,
Inc.
*10.19 Memorandum of Understanding dated August 28, 1998, by and between
Home Base Work Solutions Ltd. and Shaw Fiberlink Ltd.
*10.20 Licensing and Distribution Agreement dated March 7, 1999, by and
between HomeBase Work Solutions Ltd. and Facet Decision Systems,
Inc.
*10.21 Licensing and Distribution Agreement dated March 30, 1999, by and
between HomeBase Work Solutions Ltd. and Facet Petroleum
Solutions, Inc.
*10.22 Share Purchase Agreement dated as of May 13, 1999, by and among
the Company, InfoCast Canada Corporation, HomeBase Work Solutions
Ltd. and the Shareholders named therein.
*10.23 General Security Agreement dated March 25, 1999, by and between
InfoCast Canada Corporation and HomeBase Work Solutions, Ltd.
*10.24 Letter Agreement dated May 1999 (date unspecified), by and among
the Company and Darcy Galvon, Ken MacLean and Sean Fleming.
*10.25 Master Lease Agreement dated June 25, 1998, by and between
HomeBase Work Solutions, Ltd. and Sun MicroSystems.
*10.26 Memorandum of Agreement dated July 31, 1997, by and between
Virtual Performance Systems Inc.
*10.27 Letter Agreement dated November 27, 1998, by and among Grant
Reserve Corporation, Sheridan Reserve Corporation and Virtual
Performance Systems Inc.
*10.28 Share Purchase Agreement dated as of January 29, 1999, by and
among InfoCast Canada Limited, Virtual Performance Systems Inc.
and the Selling Shareholders named therein.
*10.29 Letter Agreement dated May 18, 1999, by and between the Company
and Satish Kumeta.
<PAGE>
*10.30 Letter of Engagement dated October 21, 1999, by and among the
Company, N.M. Rothschild & Sons Canada Limited and N.M.
Rothschild & Sons (Washington) LLC.
*10.31 Letter of Understanding by and between the Company and AT&T
Canada Long Distance Services Company.
*10.32 Memorandum of Engagement dated December 10, 1998 by and between
the Company and College Boreal D'Arts Appliques et de
Technologie.
*10.33 Assignment of Contract and Assumption of Liability dated October
19, 1999 by and between the Company and High Performance Group,
Inc.
***10.34 Employment Agreement dated December 6, 1999 by and between the
Company and Herve Seguin.
***10.35 Employment Agreement dated October 1, 1999 by and between
InfoCast Canada Corporation and Christopher Rouse.
****10.36 Employment Agreement dated November 29, 1999 by and between the
Company and Carl Stevens.
***10.37 Strategic Alliance Agreement dated November 29, 1999 by and
between the Company and TManage, Inc.
*16.1 Letter from Jackson & Rhodes, P.C. relating to change of
accountants, dated September 3, 1999.
*21.1 List of Subsidiaries.
***23.1 Consents of Ernst & Young LLP, independent public accountants.
***24 Power of attorney.
*27.1.1 Financial Data Schedule.
*27.1 Financial Data Schedule.
*27.2 Financial Data Schedule.
*27.3 Financial Data Schedule.
*27.4 Financial Data Schedule.
- ------------
* Incorporated herein by reference from Exhibits to the Company's
Registration Statement on Form 10 (File No. 0-27343).
** To be filed by amendment.
*** Previously filed.
**** Filed herewith.
(b) Financial Statement Schedules. None required.
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(i) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(ii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement on Form S-1 to be signed
on its behalf by the undersigned, thereunto duly authorized in Toronto, Canada,
on January 12, 2000.
INFOCAST CORPORATION
By: /s/ A. Thomas Griffis
-------------------------
A. Thomas Griffis
Co-chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated
Signature / Title Date
- ----------------- ----
By: /s/ A. Thomas Griffis January 12, 2000
---------------------
A. Thomas Griffis
Co-Chairman of the Board, Director
By: /s/ Darcy Galvon *
---------------------
Darcy Galvon January 12, 2000
Co-Chairman of the Board, Director
By: /s/ James Leech *
-----------------
James Leech
Chief Executive Officer, Director January 12, 2000
(Principal executive officer)
By: /s/ Herve Seguin*
-----------------
Herve Seguin
Chief Financial Officer January 12, 2000
(Principal financial and accounting officer)
By: /s/ Michael Sheehan*
--------------------
Michael Sheehan
Vice President, Virtual Call Center, Director January 12, 2000
By: /s/ James Hines*
----------------
James Hines
Executive Vice President, Director January 12, 2000
By: /s/ George Shafran*
-------------------
George Shafran January 12, 2000
Director
January 12, 2000
By: /s/ A. Thomas Griffis
----------------------
A. Thomas Griffis
Attorney-In-Fact
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 29th day of November, 1999 (the
"Effective Date").
B E T W E E N:
INFOCAST CORPORATION, a corporation
incorporated under the laws of the State of Nevada,
in the United States of America
(hereinafter referred to as the "Employer")
OF THE FIRST PART
- and -
CARL STEVENS, of the City of Atlanta, in the State of
Georgia (hereinafter referred to as the "Employee")
OF THE SECOND PART
WHEREAS the Employer wishes to employ the Employee in the capacity of
President - Distance Learning Division effective December 1, 1999 (the "Start
Date");
AND WHEREAS the Employer recognizes that the Employee will render and
provide to the Employer special skills which are essential to the continued
growth of the Employer's business and the Employer believes that it is
reasonable and fair to the Employer that the Employee receive fair incentive and
security of employment and compensation terms;
AND WHEREAS the Employer and the Employee have agreed to enter into
this Employment Agreement to formalize in writing the terms and conditions
reached between them governing the Employee's employment;
NOW THEREFORE in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
<PAGE>
Article 1
RETENTION, DUTIES AND POWERS OF THE EMPLOYEE
1.1 Employment of Employee.
The Employer hereby employs the Employee effective the Start Date as
its President - Distance Learning Division, reporting to the Employer's
President, to perform the duties and responsibilities incident to such position
and as otherwise assigned by the Employer's President. Such employment shall
continue, unless and until terminated in accordance with Article 4 of this
Agreement.
1.2 Acceptance of Employment; Time and Attention.
The Employee hereby accepts such employment and agrees that throughout
the period of his employment hereunder he will devote substantially all his
time, attention, knowledge and skills, faithfully, diligently and to the best of
his ability, in furtherance of the business of the Employer, and will perform
the duties and responsibilities assigned to him pursuant to Section 1, subject,
at all times, to the direction and control of the Employer's President. As an
executive officer, the Employee shall perform such specific duties and shall
exercise such specific authority related to the management of the day-to-day
operations of the Employer consistent with his position as a Senior Vice
President as may be assigned to the Employee from time to time by the Employer's
President. The Employee shall at all times be subject to, observe and carry out
such rules, regulations, policies, directions and restrictions as the Employer
shall from time to time establish. During the period of his employment
hereunder, the Employee shall not, directly or indirectly, accept employment or
compensation from, or perform services of any nature for, any business
enterprise other than the Employer. The Employee shall be elected to such
offices of the Employer as may from time to time be determined by the Board.
During the period of the Employee's employment hereunder, he shall not be
entitled to additional compensation for serving in any offices of the Employer
to which he is elected or appointed.
Article 2
COMPENSATION AND BENEFITS
2.1 Remuneration.
For the performance of his services hereunder, the Employee shall be
paid a salary (the "Base Salary") of US$225,000 per annum, payable twice monthly
in arrears. The Employee's Base Salary shall be reviewed annually by the
Employer's Board of Directors (the "Board") based on recommendation from the
Employer's President and, from time to time during the term of this Agreement,
may be increased in the sole discretion of the Board.
-2-
<PAGE>
2.2 Benefits and Perquisites
Provided the Employee is otherwise eligible, the Employee will be
entitled to participate in all benefit plans and to receive all perquisites
enjoyed by the senior employees of the Employer. All benefit plans will be
governed and interpreted by their written terms, if applicable.
2.3 Incentive Plans.
The Employee will be entitled to participate in all incentive plans
(including, without limitation, a Bonus Planto be created which includes an
entitlement to an annual target bonus of 25 percent of Base Salary to be paid
within 90 days following the Employer's fiscal year end, and the Share Option
Plan) made available to any employee of the Employer. Except as provided for
herein, all incentive plans will be governed and interpreted by their written
terms, if applicable.
It is agreed that the Employee's bonus for the period ending 12 months
from the Start Date shall be US$50,000 which shall be paid prior to the end of
said 12 month period, at a time designated by the Employee.
It is agreed that, effective the Start Date, the Employer shall grant
the Employee 250,000 options to purchase common shares on terms substantially
the same as those set forth in the Infocast Corporation 1999 Share Option Plan
(a copy of which is attached as Schedule A hereto) except as otherwise provided
herein. These options will be issued with an exercise price of US$7.00 each. The
terms of these options will provide that they vest as to 83,333 options upon the
Employee assuming the position of the Employer's President - Distance Learning
Division, 83,333 on the first anniversary thereof and the remaining 83,334 on
the second anniversary thereof.
2.4 Out-of-Pocket Expenses.
The Employee shall, upon production of supporting statements and
vouchers, be reimbursed forthwith by the Employer in accordance with applicable
policies of the Employer for all reasonable out-of-pocket expenses actually
incurred by the Employee in the performance of his duties under this Agreement.
2.5 Vacation.
The Employee is entitled to a minimum of three weeks paid vacation in
respect of each 12 month period of his employment hereunder. To the extent that
the Employee does not utilize his full vacation entitlement in any given year,
the Employee shall be entitled to carry forward his vacation entitlement to the
next year provided that the Employee shall not be entitled to accumulate more
than five weeks vacation.
-3-
<PAGE>
Article 3
EMPLOYEE'S NEGATIVE COVENANTS
3.1 Confidential Information.
The Employee acknowledges that, in the course of carrying out,
performing and fulfilling his obligations to the Employer under this Agreement,
the Employee will have access to and will be entrusted with information that
would reasonably be considered confidential to the Employer and its affiliates,
clients or suppliers, the disclosure of any of which to competitors of the
Employer or any of its affiliates, clients or suppliers, or the general public,
would be highly detrimental to the best interests of the Employer. Except as may
be required in the course of carrying out his duties under this Agreement, the
Employee therefore covenants and agrees that he will not disclose or directly or
indirectly cause to be disclosed, during his employment or any time thereafter,
any of such information to any person, other than the directors, officers or
employees of the Employer or any of its affiliates that have a need to know such
information, nor shall the Employee use or exploit, directly or indirectly, the
same for any purpose other than the purposes of the Employer. This provision
will not apply to any confidential information which is publicly available
through no fault of the Employee or which the Employee is required by law to
disclose.
3.2 Corporate Opportunities.
Any business opportunities related to the business of the Employer or
any of its affiliates which become known to the Employee during the period of
his employment hereunder must be fully disclosed and made available to the
Employer by the Employee and the Employee agrees not to take or omit to take any
action if the result would be to divert from the Employer or any of its
affiliates any opportunity which is within the scope of its business as known to
the Employee from time to time.
3.3 Proprietary Information.
The Employee acknowledges and agrees that all right, title and interest
in and to any information, trade secrets, inventions, discoveries, improvements,
research materials and databases, including but not limited to patents,
copyright, design and moral rights in the results thereof, made or conceived by
the Employee during his employment with the Employer relating to the business or
affairs of the Employer or any of its affiliates shall belong to the Employer
and the Employee hereby waives any and all moral rights he may have in
connection thereto. The Employee shall promptly communicate to the Employer all
information concerning such proprietary information and, if requested by the
Employer, the Employee shall provide, at the expense of the Employer, all such
assistance as the Employer considers necessary to secure the vesting of such
rights in the Employer. The Employee hereby, for the term of this Agreement,
irrevocably appoints the Employer as the Employee's attorney with full power in
Employee's name to execute
-4-
<PAGE>
and deliver documents and do any things which the Employer may consider
necessary or desirable for the purposes of giving effect to this Section 3.3.
The Employee hereby agrees to ratify and confirm whatever the Employer may
lawfully do as the Employee's attorney.
3.4 Non-Competition.
(a) In consideration of his employment hereunder, the Employee shall
not, during the Employee's term of employment (as set forth in
Section 1.1) and during the 6 month period following the date
that the Employee ceases to be an employee of the Employer or
other termination of this Agreement (regardless of who initiated
the termination and whether with or without cause), either
individually or in partnership or in conjunction in any way with
any person or persons, corporation, partnership or other entity,
whether as principal, agent, director, member, officer,
consultant, shareholder, guarantor, creditor in or any other
manner whatsoever, directly or indirectly:
(i) solicit, interfere with, endeavour to entice away from the
Employer or any of its affiliates, accept any business
related to the Restricted Business from, or sell any
product or render any service related to the Restricted
Business to, any person, firm, or corporation who is or was
a client, customer or supplier of the Employer or any of
its affiliates with whom the Employer or its affiliate has
or has had any dealing during the 6 month period
immediately preceding the date upon which the Employee
ceases to be an employee of the Employer;
(ii) offer employment to (unless previously terminated by the
Employer) or endeavour to entice away from the Employer or
any of its affiliates, any person employed by the Employer
or its affiliates at the date upon which the Employee
ceases to be an employee of the Employer or interfere in
any way with the employment relationship between such
employee and the Employer or its affiliate, as the case may
be or induce, influence or seek to induce or influence any
person engaged as an employee, representative, agent,
independent contractor or otherwise by the Employer, to
terminate his or her relationship with the Employer;
(iii) engage in, carry on or otherwise be concerned with or have
any interest in, or advise, lend money to, guarantee the
debts or obligations of, or permit the Employer's name or
any part
-5-
<PAGE>
thereof to be used or employed by, and person, firm,
association, syndicate or corporation engaged in or
concerned with, a Restricted Business in North America; or
(iv) own, manage, operate, join, control, participate in, invest
in, or otherwise be connected with, in any manner, whether
as an officer, director, employee, partner, investor or
otherwise, any business entity engaged in or concerned
with, a Restricted Business in North America.
For the purposes of this Section 3.4(a), "Restricted Business"
means any business carried on by the Employer or any of its
affiliates at the date upon which the Employee ceases to be an
employee of the Employer.
(b) The foregoing covenants are given by the Employee acknowledging
that the Employee either has or will have specific knowledge of
the affairs of the Employer and its business. Therefore, the
Employee hereby acknowledges and agrees that all covenants,
provisions and restrictions contained in this Article 3 are
reasonable and valid in the circumstances of this Agreement, and
all defenses to the strict enforcement thereof by the Employer
are hereby waived by the Employee. The Employee acknowledges and
agrees that any breach by the Employee of the covenants,
provisions and restrictions contained in this Article 3 during
the term of his employment under this Agreement shall constitute
cause for termination.
(c) The Employee further acknowledges and agrees that in the event of
a breach of the covenants, provisions and restrictions in this
Article 3, the Employer's remedy in the form of monetary damages
may be inadequate and that the Employer shall be and is hereby
authorized and entitled, in addition to all other rights and
remedies available to the Employer, to apply for and obtain from
any court of competent jurisdiction interim and permanent
injunctive relief and an accounting of all profits and benefits
arising out of such breach. The Employee also acknowledges that
the operation of the foregoing covenants may seriously constrain
his freedom to seek other remunerative employment.
3.5 Investments.
Nothing in this Agreement shall be deemed to prevent or prohibit
the Employee from owning shares in a public company as an investment, so long as
the Employee does not own more than 5 percent of the outstanding voting shares
thereof.
-6-
<PAGE>
3.6 Survival.
Neither the termination of this Agreement, nor of the Employee's
employment hereunder, shall terminate or affect in any manner any provision of
this Article 3 that is intended by its terms to survive such termination.
3.7 Qualification of Non-Competition.
If the provisions of Section 3.4 are ever adjudicated to exceed
the limitations on time or geographic scope permitted by applicable law, then
such provisions shall be deemed to be amended to the maximum time or geographic
scope permitted by applicable law.
Article 4
TERMINATION
4.1 Termination for Cause, Disability, Etc.
(a) The Employer may terminate this Agreement and the Employee's
employment hereunder without payment of any compensation either
by way of anticipated earnings or damages of any kind for any of
the following reasons:
(i) cause which, for the purposes of this Agreement, means a
wilful refusal on the part of the Employee to perform the
services required of him under this Agreement (including
the wilful and intentional withholding of services
thereunder), any breach of his fiduciary duties to the
Employer likely to cause material harm to the Employer,
fraud or any conviction of a felony or indictable offence
or any crime involving moral turpitude or any of theft or
dishonesty relating to a matter material to the Employer,
provided that a wilful refusal to perform the services
required under this Agreement will constitute cause only
if the Employee fails to terminate the relevant actions or
cure the relevant failure to act and remedy any harm
therefrom within 10 business days after receipt of written
notice to such wrongful act, failure to act or harm from
the Employer;
(ii) disability which, for the purposes of this Agreement,
means the eligibility of the Employee for long term
disability benefits under the disability insurance
referred to in Section 2.2 of this Agreement; or
-7-
<PAGE>
(iii) death of the Employee.
(b) In the event of termination pursuant to Section 4.1(a)(i), the
Employee's sole entitlement shall be his Base Salary to and
including the date of termination, all benefits accrued to the
date of termination and all rights pursuant to any Share Option
Plan governing options issued to the Employee. For greater
certainty, the Employee shall not be entitled to any part or pro
rata payment for any unpaid bonus or payments pursuant to any
incentive plans except to the extent earned but not yet paid for
the fiscal year immediately preceding the date of termination.
(c) In the event of termination pursuant to Section 4.1(a)(ii) or
(iii) above, the Employee's sole entitlement shall be his Base
Salary to and including the date of termination, all benefits
accrued to the date of termination, all rights pursuant to any
Share Option Plan governing options issued to the Employee
(provided that all such options shall immediately accelerate and
vest in the Employee or the legal representative of his estate,
as applicable) and a pro rata payment for all bonuses (calculated
as the greater of the bonus which would be paid under the
Employer's bonus plan on the basis that targets were met and 25%
of annual Base Salary) and payments pursuant to any incentive
plans up to the date on which the Employee's active employment
ceased.
4.2 Other Termination by Employer without Cause.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employer
during the term set out in Section 1.1 as follows:
(a) the Employer shall pay to the Employee his Base Salary
to and including the date of termination, together with
a lump sum amount equal to his annual Base Salary (the
"Base Severance"); and
(b) all options for shares of the Employer issued to the
Employee shall immediately accelerate and vest in the
Employee and the exercise period for all options for
shares of the Employer issued to the Employee shall be
12 months from the date of the termination;
4.3 Other Termination by Employee.
Notwithstanding anything contained in this Agreement, where the
provisions of Section 4.1 do not apply, this Agreement and the Employee's
employment under this Agreement may be terminated at any time by the Employee
during the term set out in Section 1.1 upon three (3) months' notice in the case
of
-8-
<PAGE>
termination before the second anniversary of the Start Date, and one (1) months'
notice in the case of termination on or after the second anniversary of the
Start Date, in writing by the Employee to the Employer. In that event, the
following shall apply:
(a) the Employer shall pay to the Employee his Base Salary
to the effective date of resignation; and
(b) the exercise period for all options for shares of the
Employer issued to the Employee shall be as provided
pursuant to the Share Option Plans under which they were
issued.
4.4 General Termination Provisions.
(a) Upon any termination of this Agreement for any reason,
the Employee shall at once deliver or caused to be
delivered to the Employer all books, documents, effects,
money, securities or other property belonging to the
Employer or for which the Employer is liable to others,
which are in the possession, charge, control or custody
of the Employee.
(b) All amounts referred to in this Agreement, specifically
including the Employer's payment obligations pursuant to
this Article 4, shall constitute when due a debt owed by
the Employer to the Employee. The Employee shall not be
required to mitigate damages by seeking other employment
or otherwise, nor shall the amount provided for under
this Agreement be reduced in any respect in the event
that the Employee shall secure alternative employment,
or not reasonably pursue alternative employment,
following the termination of the Employee's employment
with the Employer. Notwithstanding the foregoing, should
the Employee replace any life, health or accident plan,
at an equivalent level, upon obtaining alternate
employment or otherwise, the Employer shall not be
required to continue such benefits.
(c) As a condition to any payment pursuant to this Article
4, the Employee agrees to deliver to the Employer at the
time of payment a full and final release from all
actions or claims, such release to be in a form
reasonably satisfactory to the Employer and to be for
the benefit of the Employer, its affiliates, directors,
officers and employees.
Article 5
DIRECTORS AND OFFICERS
5.1 Resignation.
If the Employee is a director or officer at the relevant time, the
Employee agrees that, after termination of his employment with the Employer for
any reason, he
-9-
<PAGE>
will tender his resignation from any position he may hold as an officer or
director of the Employer or any of its affiliated or associated companies. If
the Employee fails to resign, the Employer is irrevocably authorized to appoint
another person to act in his name and on his behalf to sign any documents
necessary to give effect to the resignation.
5.3 Indemnity.
(a) Subject to the provisions of applicable law, the
Employer agrees to indemnify and save the Employee
harmless from and against all demands, claims, costs,
charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by
him in respect of any civil, criminal or administrative
action or proceeding to which the Employee is made a
party by reason of being or having been a director or
officer of the Employer or of any affiliated company,
whether before or after any termination if:
(i) the Employee acted honestly and good
faith with a view to the best interests
of the Employer; and
(ii) in the case of a criminal or
administrative action or proceeding that
is enforced by a monetary penalty, the
Employee had reasonable grounds for
believing that his conduct was lawful.
(b) Subject to the provisions of applicable law, the Employer
agrees, with the approval of the court, to indemnify and
save the Employee harmless from and against all demands,
claims, costs, charges and expenses reasonably incurred
by him in connection with an action by or on behalf of
the Employer to procure a judgment in the Employer's
favour to which the Employee is made a party by reason of
being or having been a director or officer of the
Employer or of any affiliated company, whether before or
after any termination, if:
(i) the Employee acted honestly and in good
faith with a view to the best interest of
the Employer; and
(ii) in the case of a criminal or
administrative action or proceeding that
is enforced by a monetary penalty, the
Employee had reasonable grounds for
believing that his conduct was lawful.
-10-
<PAGE>
Article 6
GENERAL CONTRACT PROVISIONS
6.1 Notices.
Any notice or other document ("Notice") required or permitted to be
given hereunder shall be in writing and shall be given by hand delivery,
responsible over night delivery service, or facsimile transmission (with
confirmation of receipt), to be addressed to:
(a) the Employer or the Board of Directors at:
1 Richmond St. West, Suite #901
Toronto, Ontario
M5H 3W4
Telephone: 416-867-9087
Facsimile: 416-867-9320
with a copy to:
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
Attention: Jeffrey S. Spindler, Esq.
or to such other person as the Employer may designate;
(b) the Employee at:
Any Notice hand delivered personally or by delivery service or
transmitted by facsimile shall be deemed to have been received by and given to
the addressee on the day of delivery or transmission, provided that if the date
of transmission is not a business day, or the transmission occurs after normal
business hours, on the business day next following the date of transmission.
-11-
<PAGE>
6.2 Currency.
All dollar amounts set forth or referred to in this Agreement and all
uses of the dollar sign ($) used herein refer to currency of the United States
of America, except as otherwise indicated.
6.3 Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
6.4 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada and the laws of the United States of America
applicable therein. The parties hereto attorn to the jurisdiction of the courts
of the State of Nevada.
6.5 Interpretation not Affected by Headings, etc.
Any headings preceding the text and paragraphs in this Agreement hereof
have been inserted for convenience and reference only and shall not be construed
to affect the meaning, construction, or effect of this Agreement.
6.6 Deemed Amendments.
If any paragraph or provision of this Agreement is adjudicated to be
invalid or unenforceable, in whole or in part then such paragraph or provision,
or part thereof, shall be deemed amended to delete therefrom the objectionable
portion and the remaining portions of this Agreement shall continue to remain in
full force and effect.
6.7 Non-Assignability.
Neither this Agreement, nor the right to receive any payments
hereunder, may be assigned by the Employee without the prior written consent of
the Employer.
6.8 Time of the Essence.
Time shall be of the essence of this Agreement.
6.9 Binding Effect.
This Agreement shall be binding upon and shall enure to the benefits of
each of the parties and their respective heirs, executors, administrators,
successors and permitted assigns.
-12-
<PAGE>
6.10 Entire Agreement.
This Agreement (together with the plans and documents referred to
herein) supersedes and replaces all prior negotiations and/or agreements made
between the parties, whether oral or written, and shall constitute the entire
Agreement between the parties with respect to all matters relating to the
Employee's employment and the execution of this Agreement has not been induced
by, nor do any of the parties hereto rely upon or regard as material any
representations or writings whatsoever not incorporated into and made a part of
this Agreement. This Agreement shall not be amended, altered or modified except
in writing signed by the parties hereto.
6.11 Taxes.
All payments under this Agreement shall be subject to withholding of
such amounts, if any relating to tax or other payroll deduction as the Employer
may reasonably determine should be withheld pursuant to any applicable law or
regulation.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
as of the Effective Date.
INFOCAST CORPORATION
Per:/s/ James Leech
-------------------------------
Per:______________________________
)
)
)
) /s/Carl Stevens
- ------------------------------------------ --------------------------------l/s
Witness Carl Stevens
-13-
