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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1 )*
Electrosource, Inc.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
Common Stock, $0.10 par value
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
286150 10 7
---------------------------------------
(CUSIP NUMBER)
John M. Liviakis, 2420 "K" St., Suite 220, Sacramento, CA 98516 (916) 488-6084
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
March 3, 1997
----------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1: and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP No. 286150 10 7 SCHEDULE 13D Page 2 of 16 Pages
--------------------- -------- --------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Liviakis Financial Communications, Inc.
68-0311399
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(2) Check the Appropriate Box if a Member of a Group* (a) [ ]
(b) [ X ]
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(3) SEC Use Only
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(4) SOURCE OF FUNDS*
OO, WC
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States (California)
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(7) Sole Voting Power
Number of 144,000
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 144,000
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
144,000
---------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares* [ ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
3.7%
---------------------------------------------------------------------
(14) Type of Reporting Person*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 286150 10 7 SCHEDULE 13D Page 3 of 16 Pages
--------------------- -------- --------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
John M. Liviakis
###-##-####
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(2) Check the Appropriate Box if a Member of a Group* (a) [ ]
(b) [ X ]
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(3) SEC Use Only
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(4) SOURCE OF FUNDS*
PF
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States (California)
---------------------------------------------------------------------
(7) Sole Voting Power
Number of -0-
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With -0-
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
-0-
---------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares* [ ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
0%
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP No. 286150 10 7 SCHEDULE 13D Page 4 of 16 Pages
--------------------- -------- --------
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Renee A. Liviakis
###-##-####
---------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) [ ]
(b) [ X ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States
---------------------------------------------------------------------
(7) Sole Voting Power
Number of -0-
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With -0-
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
-0-
---------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares* [ ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
0%
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
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1. SECURITY AND ISSUER.
The title of the class of equity securities to which this statement
relates is common stock, $0.10 par value (the "Common Stock"), issued by
Electrosource, Inc., a Delaware corporation (the "Corporation"). The principal
offices of the Corporation are located at 2809 IH 35 South, San Marcos, Texas
78666.
2. IDENTITY AND BACKGROUND.
This statement is filed by Liviakis Financial Communications, Inc., a
California corporation ("LFC"), John M. Liviakis ("JML") and Renee A. Liviakis
("RAL"). LFC's principal business is as a consultant in the areas of investor
communications, financial and investor public relations and corporate finance,
and the address of LFC's principal business is 2420 "K" Street, Suite 220,
Sacramento, California 95816. The officers of LFC are JML, who is LFC's
President, Robert B. Prag ("RBP"), who is LFC's Senior Vice President, and RAL,
who is LFC's Chief Financial Officer, Treasurer and Secretary. Their
respective positions with LFC represent the principal employment of each of
JML, RBP and RAL. JML, RBP and RAL are LFC's directors, and JML and RAL are
sole stockholders. JML, RBP and RAL are all citizens of the United States, and
their business address is LFC's principal business address listed above.
During the last five years, none of LFC, JML, RBP and RAL has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), and during such period none of them has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction, the
result of which was to subject such person to a judgment, decree or final order
enjoining further violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
3. SOURCE AND AMOUNT OF FUNDS OF OTHER CONSIDERATION.
This Schedule 13D was originally filed to report 148,000 shares of the
Corporation's Common Stock (after giving effect to a 1-for-10 reverse split
(the "Reverse Split") of the Corporation's Common Stock which was effective on
or about July 22, 1996) which LFC was to receive in consideration of entering
into and performing services under a Consulting Agreement, effective December
20, 1994 with the Corporation (the "Consulting Agreement"), a copy of which is
attached hereto as Exhibit "A". As of the date hereof, 144,000 of the 148,000
shares of Common Stock (after giving effect to the Reverse Split), have been
received by LFC.
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Between October 22 and October 25, 1996, LFC purchased an aggregate of
11,000 shares of the Corporation's Common Stock for aggregate consideration of
$50,875, the source of which was LFC's working capital. Subsequent to October
25, 1996, LFC sold 11,000 shares of Common Stock. In 1995, subsequent to the
initial filing of the Schedule 13-D being amended hereby, JML purchased 10,000
shares of Common Stock (after giving effect to the Reverse Split) for
$18,437.50, the source of which was JML's personal funds, and later sold such
shares.
4. PURPOSE OF TRANSACTION.
LFC acquired the 144,000 shares of Common Stock (after giving effect
to the Reverse Stock Split), which were received pursuant to the Consulting
Agreement, with the intention to hold such securities for investment purposes.
LFC acquired the 11,000 shares of Common Stock, which were acquired in October
1996, for trading purposes. JML acquired the 10,000 shares of Common Stock
(after giving effect to the Reverse Split) for trading purposes.
LFC, its officers and directors have no plans or proposals which
relate to or would result in, among other things, any extraordinary corporate
transaction to which the Corporation would be a party or by which it would be
affected; the sale or transfer of a material amount of assets of the
Corporation or any wholly owned subsidiaries; any change in the Corporation's
present Board of Directors or management; any material change in the present
capitalization or dividend policy of the Corporation; any material change in
the Corporation's business or corporate structure; any changes in the
Corporation's charter, bylaws, or instruments corresponding thereto or other
actions which may impede the acquisition of control of the Corporation by any
person; causing a class of securities of the Corporation to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
causing any securities of the Corporation to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934, as amended; or any similar action.
5. INTEREST IN SECURITIES OF THE ISSUER.
LFC holds 144,000 shares of Common Stock. LFC believes that these
shares represent approximately 3.7% of the shares of Common Stock issued and
outstanding, based on the 3,843,746 outstanding shares reported in the
Corporation's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1996. LFC has the sole voting and investment power with respect
to all such shares. LFC, JML and RAL have not engaged in any transaction in
shares of Common Stock during the past 60 days, except that LFC received 2,000
shares of Common Stock from the Corporation pursuant to the Consulting
Agreement on Februrary 26, 1997.
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Page 7 of 16
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
There are no contracts, arrangements, understandings or relationships
between the persons named in Item 2 above and any person with respect to any
securities of the Corporation, other than the Corporation's obligation to
deliver, and LFC's right to receive, an additional 4,000 shares of Common Stock
pursuant to the Consulting Agreement.
7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A - Consulting Agreement, dated effective as of September 1,
1995, between the Corporation and LFC.
Exhibit B - Amended Joint Filing Agreement of LFC, JML and RAL, dated
as of January 19, 1995, pursuant to Rule 13d-1(f).
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: March 3, 1997 LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
-------------------------------
John M. Liviakis, President
/s/ John M. Liviakis
----------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
----------------------------------
Renee A. Liviakis
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Page 8 of 16
EXHIBIT "A"
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") effective as of September 1, 1995
is entered into by and between ELECTROSOURCE, INC., a Delaware corporation
(herein referred to as the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS,
INC., a California corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded on the NASDAQ; and
WHEREAS, Consultant has experience in the area of corporate finance,
investor communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist
and consult to the Company in matters concerning corporate finance and to
represent the company in investors' communications and public relations with
existing shareholders and brokers, dealers and other investment professionals
as to the Company's current and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant
to act in a consulting capacity to the Company, and the Consultant hereby
agrees to provide services to the Company, for a term of twenty-four (24)
months commencing on the date of the Agreement and ending on August 31, 1997.
2. Duties of Consultant. The Consultant agrees to provide the following
specified consulting services through it's officers and employees during the
term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an
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awareness during the term of this Agreement of the Company's plans, strategy
and personnel, as they may evolve during such period, and advise and assist the
Company in communicating appropriate information regarding such plans, strategy
and personnel to the financial community;
(d) Assist and advise the Company with respect to its (i)
corporate finance activities, (ii) stockholder and investor relations, (iii)
relations with brokers, dealers, analysts and other investment professionals,
and (iv) financial public relations generally;
(e) Perform the functions generally assigned to
investor/stockholder relations and public relations departments in major
corporations, including responding to telephone and written inquiries (which
may be referred to the Consultant by the Company); preparing or reviewing press
releases, reports and other communications with or to shareholders, the
investment community and the general public; advising with respect to the
timing, form, distribution and other matters related to such releases, reports
and communications- and consulting with respect to corporate symbols, logos,
names, the presentation of such symbols, logos and names, and other matters
relating to corporate image;
(f) Disseminate information regarding the Company to shareholders,
brokers, dealers, other investment community professionals and the general
investment public;
(g) Conduct meetings, in person or by telephone, with brokers,
dealers, analysts and other investment professionals to advise them of the
Company's plans, goals and activities, and assist the Company in preparing for
press conferences and other forums involving the media, investment community
professionals and the general investment public;
(h) At the Company's request, review business plans, strategies,
mission statements budgets, proposed transactions and other plans for the
purpose of advising the Company of the investment community implications
thereof; and
(i) Otherwise perform is the Company's financial relations and
public relations consultant.
(j) Make public communications and disclosures regarding the
Company only within the scope of the authorizations conferred by the Company
and not make any such communications or disclosures of information not provided
or authorized by the Company.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company in connection with the conduct 4)f
its financial and investor public relations and communications activities, so
long as such activities are in compliance with applicable securities laws and
regulations. Consultant shall diligently and
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thoroughly provide the consulting services required hereunder. Although no
specific hours-per-day requirement will be required, Consultant and the Company
agree that Consultant will perform the duties set forth hereinabove in a
diligent and professional manner. At the request of the Company, the
Consultant will inform the Company of its specific activities concerning the
Company. The parties acknowledge and agree that a disproportionately large
amount of the effort to be expended and the costs to be incurred by the
Consultant and the benefits to be received by the Company are expected to occur
upon and shortly after, and in any event, within four or five months of the
effectiveness of this Agreement. Accordingly, the Company agrees that delayed
installments provided in paragraph 4 of this Agreement are part of the total
consideration due hereunder, are not specifically allocated to the periods in
which they are to be paid, and shall be immediately due and payable upon the
occurrence of any default by the Company under this Agreement or any
termination of this Agreement by either party not based upon a breach of this
Agreement by the Consultant. The Company agrees that such acceleration is not
a penalty but is solely intended to compensate Consultant fairly for its
services costs and expenses hereunder.
4. Remuneration. As full and complete compensation for services
described in this Agreement, the Company shall compensate Consultant as
follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the
Consultant a "Commencement Bonus" payable in the form of 1,360,000
unregistered, restricted shares of the Company's Common Stock (the
"Common Stock"). This Commencement Bonus shall be issued to the
Consultant promptly following execution of this Agreement and shall,
when issued and delivered to Consultant, be fully paid and
non-assessable. The Company understand and agrees that Consultant has
foregone significant opportunities to accept this Engagement and that
the Company derives substantial benefit from the execution of this
Agreement and the ability to announce its relationship with
Consultant. The 1,360,000 shares issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to represent
the Company and are a nonrefundable, non-apportionable, and non-
ratable retainer; such shares are not a prepayment for future
services. In addition, the Company shall pay to the Consultant 20,000
restricted shares of the Company's Common Stock at the end of the
fourth, eighth, twelfth, sixteenth, twentieth and twenty-fourth months
after the effective date of this Agreement, which shares when issued
and delivered to Consultant, be fully paid and non- assessable. If
and in the event the Company is party to any acquisition, merger or
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other business combination in which the business of the Company is not
the dominant business within the surviving entity, payment of all
amounts due the Consultant hereunder, including installments due under
this Section 4.1 which have not then been paid, shall be accelerated
and shall be due and payable to the Consultant and paid by the Company
no later than the closing of any such acquisition, merger or business
combination. All shares issued pursuant to this Agreement shall be
evidenced by stock certificate (s) issued in the name of Liviakis
Financial Communications, Inc.
4.2 Consultant acknowledges that the shares of Common Stock to be issued
pursuant to this Agreement (the "Shares") have not been registered
under the Securities Act of 1933, and accordingly are "restricted
securities" within the meaning of Rule 144 of the Act. As such, the
Shares may not be resold or transferred unless the Company has
received an opinion of counsel reasonably satisfactory to the Company
that such resale or transfer is exempt from the registration
requirements of that Act. It is also understood that the certificates
will bear a legend reflecting the fact that the securities have been
issued without registration under the Securities Act of 1933 and may
not be sold or transferred except upon registration or an exemption
therefrom and compliance with any applicable state securities laws.
4.3 In connection with the acquisition of Shares hereunder, the
Consultant represents and warrants to the Company as follows:
(a) Consultant has received a copy of the Auditor's Report for
the fiscal years ending December 31, 1994, 1993, 1992. Consultant
acknowledges that the Consultant has been afforded the opportunity to
ask questions of and receive answers from duly authorized officers or
other representatives of the Company concerning an investment in the
Shares, and any additional information which the Consultant has
requested.
(b) Consultant's investment in restricted securities is reasonable
in relation to the Consultant's net worth, which is in excess of ten
(10) times the Consultant's cost basis in the Shares. Consultant has
had Experience in investments in restricted and publicly traded
securities, and Consultant has had experience in investments in
speculative securities and other investments which involve the risk of
loss of investment. Consultant acknowledges that an investment in the
Shares is speculative and involves the risk of loss. Consultant has
the requisite knowledge to assess the relative merits and risks of
this investment without the necessity of relying upon other advisors,
and Consultant can afford the risk of loss of his entire investment in
the
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Shares. Consultant is (i) an accredited investor, as that term is
defined in Regulation D promulgated under the Securities Act of 1933,
and (11) 4 purchaser described in Section 25102 (f) (2) of the
California Corporate Securities Law of 1968, as amended.
(c) Consultant is acquiring the Shares for the Consultant's own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities
laws.
5. Expenses. Consultant agrees to pay for all its expenses (phone,
mailing, labor, etc.), other than extraordinary items (travel required by/or
specifically requested by the Company, luncheons or dinners to large groups of
investment professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, etc.) approved by the Company prior to
its incurring an obligation for reimbursement.
6. Indemnification. The Company Warrants and represents that all oral
communications, written documents or materials, other than those designated by
the Company to the Consultant as "confidential" or "Company private", furnished
to Consultant by the Company with respect to financial affairs, operations,
profitability and strategic planning of the Company are accurate and Consultant
may rely upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against any claims
or litigation including any damages, liability, cost and reasonable attorney's
fees with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials not designated by
the Company to the Consultant as "confidential" or "Company private", excluding
any such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company.
7. Representations. Consultant represents that he is not required to
maintain any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant acknowledges
that, to the best of his knowledge, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant nor do such services to the Company
represent any conflict with Consultant's other clients or business affairs.
Consultant acknowledges that, to the best of his knowledge, Consultant is not
the subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities laws. Consultant further
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acknowledges that he is not a securities Broker Dealer or a registered
investment advisor.
8. Legal Representation. The Company acknowledges that it has been
represented by independent legal counsel in the preparation of this Agreement.
Consultant represents that he has consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent the Consultant
deemed necessary.
9. Status as Independent Contractor. Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement shall
represent or hold itself out to be the employer or employee of the other.
Consultant further acknowledges the consideration provided hereinabove is a
gross amount of consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be
made or provided for by Consultant and the Company shall have no responsibility
or duties regarding such matters. Neither the Company or the Consultant
possess the authority to bind each other in any agreements without the express
written consent of the entity to be bound.
10. Attorney's Fee. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
in connection with that action or proceeding, in addition to any other relief
to which it or they may be entitled.
11. Waiver. The waiver by either party of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
12. Notices. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
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To the Company: Michael G. Semmens
Chairman & CEO
Electrosource, Inc.
3800-B Drossett Drive
Austin, TX 78744
To the Consultant: Liviakis Financial Communications, Inc.
John M. Liviakis, President
2113 "P" Street; Suite C
Sacramento, California 95816
It is understood that either party may change the address to which
notices for it shall be addressed by providing notice of such change to the
other party in the manner set forth in this paragraph.
13. Choice of Law, Jurisdiction and Venue. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
California. The parties agree that LaJolla, CA. will be the venue of any
dispute and will have jurisdiction over all parties.
14. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by binding
Arbitration in California, in accordance with the applicable rules of the
American Arbitration Association, and judgment on the award rendered by the
arbitrators shall be binding on the parties and may be entered in any court
having jurisdiction thereof. The provisions of Title 9 of Part 3 of the
California Code of Civil Procedure, including section 1283.05, and successor
statutes, permitting expanded discovery proceedings shall be applicable to all
disputes that are arbitrated under this paragraph.
15. Third Party Fees. Consultant will not accept from any third parties
any fees or other remuneration related to the activities of the company except
with the prior written consent of the Company.
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16. Complete Agreement. This Agreement instrument contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
and its terms may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension discharge is sought.
AGREED TO:
"Company" ELECTROSOURCE, INC.
Date: 9/1/95 By: /s/ Michael G. Semmens
- ------------- -----------------------------------------
Michael G. Semmens
Chairman & CEO
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 12/19/94 By: /s/ John M. Liviakis
- ------------- -----------------------------------------
John M. Liviakis
President
<PAGE> 16
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EXHIBIT "B"
AMENDED JOINT FILING AGREEMENT
Liviakis Financial Communications, Inc., John M. Liviakis and Renee A.
Liviakis (collectively the "Parties" and individually a "Party") hereby agree
that they shall file a single statement on Schedule 13D (as amended from time
to time, the "Statement") with respect to their beneficial ownership of shares
of Common Stock (the "Securities") of Electrosource, Inc., a Delaware
corporation, on behalf of and in satisfaction of the obligations of all of the
Parties and that they shall amend the Statement from time to time as required
by rules promulgated under the Securities Exchange Act of 1934, as amended.
Each of the Parties represents and warrants that such Party is
eligible to use Schedule 13D with respect to information regarding the
Securities and agrees to assume responsibility for the timely filing of the
Statement and any amendments thereto. Each of the Parties hereby assumes
responsibility for the completeness and accuracy of the information concerning
such Party contained in the Statement. No Party shall be responsible for the
completeness and accuracy of the information contained in the Statement
concerning the other Parties, unless such Party knows or has reason to believe
that such information is incomplete or inaccurate. The execution of the
Statement, including any amendment thereto, by one of the Parties shall
constitute a representation by such Party that the information concerning such
Party contained therein is complete and accurate and that such Party neither
knows nor has any reason to believe that the information concerning the other
Parties contained therein is either incomplete or inaccurate.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
In Witness Whereof, the Parties have executed this Joint Filing
Agreement as of the 19th day of January, 1995.
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
-------------------------------
John M. Liviakis
/s/ John M. Liviakis
-------------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
-------------------------------------
Renee A. Liviakis
