As filed with the Securities and Exchange Commission on
October 7, 1996
Registration No. 33 - 27601
____________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________
INTERACTIVE MULTIMEDIA PUBLISHERS, INC.
(Exact name of Issuer as specified in its Charter)
Delaware 34-1799451
State of Incorporation I.R.S. Employer
Identification No.)
733 West Market Street - Suite B-5
Akron, Ohio
44303
(Address of Principal Executive Offices)(mailing Code)
CONSULTANT CONTRACT
(Full title of the Plan)
Dr. P. Joseph Vertucci, President
Interactive MultiMedia Publishers, Inc.
733 West Market Street, Suite B5
Akron, Ohio 44303
(330) 434-2528
(Name, address, including zip code and telephone
number, including area code, of agent for service)
Please send copies of all correspondence to:
P. Joseph Vertucci
733 West market Street, Suite B5
Akron, Ohio 44303
(330) 434-2528
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum
To Be Amount to be Aggregate
Registered Registered Price Per Offering Fee
Share (1) Price (1)
____________________________________________________________
Common Stock 650,000 $.37 $ 220,500 $83.02
$.001 par Value
Per Share ($100.00 minimum fee)
____________________________________________________________
Total $ 220,500 $100.00
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 on the basis of the
average bid ($.37) and asked ($.50) prices per share of
common stock of Interactive MultiMedia Publishers, Inc. on
October 4, 1996 as reported by the National Quotation Bureau
Non-Nasdaq Price Report for Over the Counter securities.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, or portions thereof,
heretofore filed by Interactive MultiMedia Publishers, Inc.
(the "Company") with the U.S. Securities and Exchange
Commission (the "Commission") are hereby incorporated by
reference in this Registration Statement on Form S-8 (the
"Registration Statement"):
(a) The latest Quarterly Report on Form 10-QSB for the
quarter ended March 30, 1996, filed by the Company with the
Commission pursuant to Section 13(a) under the Exchange
Act;
(b) All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from
the date of filing such documents.
Item 4. Description or Securities.
Not applicable
Item 5. Interest of Named Experts and Counsel
No experts or counsel have any substantial interest,
direct or indirect, in the Company.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Company provide
that the Company shall indemnify the directors and officers
of the Company. This indemnification extends to cover the
reasonable costs, expenses and liabilities (including
reasonable attorney fees) incurred by or imposed upon him in
connection with, or resulting from, any claim, action,
suit, proceeding, investigation or inquiry of whatever
nature in which he may be involved as a party or otherwise
by reason of his being or having been a director or officer
of the corporation, whether or not he continues to be such
director or officer of the corporation, at the time of the
incurring or imposition of such costs, expenses or
liabilities, except in relation to matters as to which he
shall be finally adjudged in such action, suit, proceeding,
investigation or inquiry to be liable for willful
misconduct, willful neglect, or negligence toward or on
behalf of the corporation in the performance of his duties
as such director or officer of the Corporation. As to
whether or not a director or officer was liable by reason of
willful misconduct, willful neglect, or negligence toward or
on behalf of the corporation in the performance of his
duties as such director or officer of the corporation, in
the absence of such final adjudication of the existence of
such liability, the Board of Directors and each director and
officer may conclusively rely upon an opinion of legal
counsel selected by or in the manner designated by the Board
of Directors. The foregoing right to indemnification shall
be in addition to and not in limitation of all other rights
to which such person may be entitled as a matter of law and
shall inure to the benefit of the legal representative of
such person.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be
permitted to directors' officers and controlling persons of
the Registrant, the Registrant has been advised that in the
opinion of the Commission such indemnification is against
public policy as expressed in the Act, and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
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 the public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
1. Amended and Restated Articles of Incorporation.
2. Bylaws of the Company.
3. Specimen Common Stock Certificate
4. Consent and Opinion of Counsel that said securities
are validly issued.
5. Consulting Services Agreement with two Exhibits.
Item 9. Undertakings
A. To Update Annually
The undersigned registrant hereby undertakes (1) other
than as provided in the proviso to item 512(a) of regulation
S-K, to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement (a) to include any prospectus required by Section
10(a)(3) of the Securities Act, (b) 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, and (c) 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; (2) that for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial
bona fide offering thereof; and (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. Incorporation of Subsequent Securities
Exchange Act of 1934 Documents by Reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) of Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Indemnification of Officers and Directors
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant, pursuant
to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore,
unenforceable. In the event that 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Akron,
Ohio, on October 4, 1996.
Interactive MultiMedia Publishers, Inc.
By ________________________
Dr. P. Joseph Vertucci
President
Pursuant to the requirements of the Securities Act of 1933,
this Form S-8 Registration Statement has been signed by the
following persons in the capacities and on the dates
indicated.
Signatures Titles Date
____________________ _______________________ ___________
Dr. P. Joseph Vertucci
Secretary
EXHIBIT INDEX
Number Description
1.Amended and Restated Articles of Incorporation
2.By-Laws of the Company Specimen
3.Common Stock Certificate
4.Consultnt Services Agreement
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
INTERACTIVE MULTIMEDIA PUBLISHERS, INC.
On June 30, 1996, the following Amended
and Restated Articles were duly adopted by the
Board of Directors of Interactive MultiMedia
Publishers, Inc., a Delaware corporation (the
"Corporation") originally incorporated on March
28, 1994 pursuant to section 101, 104 and 245 of
the General Corporation Law of Delaware and
approved that same day by a majority vote of
the Shareholders.
ARTICLE I
NAME
The name of the Corporation was Fujacorp
Industries, Inc. On April 6, 1995, this name was
changed to Interactive MultiMedia Publishers,
Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The registered office and agent of the
Corporation in Delaware is Harvard Business
Service, Inc. at 25 Greystone Manor, city of
Lewes, county of Sussex, Delaware 19958-9776.
ARTICLE III
PRINCIPAL OFFICE
The principal office and mailing address of
the principal office of the Corporation is 733
West Market Street, Suite B-5, Akron, Ohio
44303.
ARTICLE IV
The total number of shares of capital stock
which the Corporation shallhave authority to
issue is 105,000,000 shares. Of said shares,
50,000,000 shares shall be of a class designated
as Common Stock with .001 par value per share;
and 55,000,000 shares of preferred stock with a
par value of $.001 per share. Except as may
otherwise be provided by the Board of
Directors, no holder of any shares of stock of
this Corporation shall have any preemptive right
to purchase, subscribe for, or otherwise acquire
any shares of stock of the Corporation of any
class now or hereafter authorized, or any
securities exchangeable for or convertible into
such shares, or any warrants or other
instruments evidencing rights or options to
subscribe for, purchase or otherwise acquire
such shares.
The description of the Common Stock and the
Preferred Stock, and the relative rights,
preferences and limitations thereof, or the
method of fixing and establishing the same are
hereinafter set forth in this Article IV:
SECTION A
PREFERRED STOCK
(i) The Board of Directors of the
Corporation shall be authorized, without action
by the stockholders to issue such Preferred
Stock, from time to time, in one or more series,
and each series shall be known and designated by
such designations as may be stated and expressed
in a resolution or resolutions adopted by the
Board of Directors of the Corporation and as
shall have been set forth in a certificate made,
executed, acknowledged, filed and recorded in
the manner required by the laws of the State
of Delaware in order to make the same effective.
Each series shall consist of such number of
shares as shall be stated and expressed in such
resolution or resolutions providing for the
issue of Preferred Stock of such series
together with such additional number of shares
as the Board of Directors by resolution or
resolutions may from time to time determine to
issue as a part of such series. All shares of
any one series of such Preferred Stock shall be
alike in every particular except that shares
issued at different times may accumulate
dividends from different dates. The Board of
Directors shall have power and authority to
state and determine in the resolution or
resolutions providing for the issue of each
series of Preferred Stock the number of
shares of each such series authorized to be
issued, the voting powers (if any) and the
designations, preferences and relative,
participating, optional or other rights
appertaining to each such series, and the
qualifications, limitations or restrictions
thereof (including, but not by way of
limitation, full power and authority to
determine as to the Preferred Stock of each such
series, the rate or rates of dividends
payable thereon, the times of payment of such
dividends, the prices and manner upon which
the same may be redeemed, the amount or
amounts payable thereon in the event of
liquidation, dissolution or winding up of the
Corporation or in the event of any merger or
consolidation of or sale of assets by
the Corporation, the rights (if any) to convert
the same into, and/or to purchase, stock of any
other class or series, the terms of any sinking
fund or redemption or purchase account (if
any) to be provided for shares of such series
of the Preferred Stock, restrictions on
ownership and transfer to preserve tax
benefits, and the voting powers (if any) of
the holders of any series of Preferred Stock
generally or with respect to any particular
matter, which may be less than, equal to or
greater than one vote per share, and which may,
without limiting the generality of the
foregoing, include the right, voting as a
series by itself or together with the holders
of any other series of Preferred Stock or all
series of Preferred Stock as a class, to elect
one or more directors of the Corporation
generally or under such specific circumstances
and on such conditions, as shall be provided
in the resolution or resolutions of the Board
of Directors adopted pursuant hereto,
including, without limitation, in the event
there shall have been a default in the payment
of dividends on or redemption of any one or
more series of Preferred Stock. The Board
of Directors may from time to time decrease the
number of shares of any series of Preferred
Stock (but not below the number thereof
outstanding) by providing that any unissued
shares previously assigned to such series shall
no longer constitute part thereof and may
assign such unissued shares to an existing or
newly created series. The foregoing provisions
of this Section A with respect to the
creation or issuance of series of Preferred
Stock shall be subject to any additional
conditions with respect thereto which may be
contained in any resolutions then in effect
which shall have theretofore been adopted in
accordance with the foregoing provisions of this
Paragraph A with respect to any then
existing series of Preferred Stock. (b) The
Convertible Preferred Stock shall have the
following preferences, limitations and
relative rights.
1. Certain Definitions.
Unless the context otherwise requires,the
terms defined in this paragraph 1 shall have,
for all purposes hereof, the meanings herein
specified:
"Board of Directors" shall mean the Board
of Directors of the Corporation and, to the
extent permitted by law, any committee of the
Board of Directors authorized to exercise the
powers of the Board of Directors.
"Preferred StocK" shall mean the fifty-
five million (55,000,000) authorized shares
of the Convertible Preferred Stock, par value
$.001 per share, of the Corporation.
"Common Stock" shall mean the fifty
million (50,000,000) authorized shares of Common
Stock,.001 par value per share, of the
Corporation and all shares hereafter
authorized of any additional class (or classes)
of common stock of the Corporation.
"Conversion Rate" shall have the meaning
set forth in paragraph 6(b) of this Section.
"Distribution on Common Stock" shall have
the meaning set forth in paragraph 2 of this
section.
"Dividend Payment Date" shall mean January
20, April 20, June 20 and October 20 of each
year, or the immediately preceding business
day if any such date is a Saturday, Sunday or
legal holiday in the State of Georgia.
"Event of Noncompliance" shall mean the
occurrence of any of the following events:
(i) Failure of the Corporation to pay the
full amount of dividends accrued if cumulative
accrued dividends on the Preferred Stock, in
the aggregate, are equal to $1.00 per share
in arrears (not including $.20 per annum of
the dividend which accrues but only increases
the Liquidation Price); or
(ii) The Corporation shall not have made,
in full, or set apart the consideration
sufficient for the payment thereof and no
other purpose, any redemption payment with
respect to the Preferred Stock which it is
obligated to make, whether or not such payment
is legally permissible, within 30 days of the
date specified for such redemption.
"Issue Date" shall mean the date on
which shares of the Preferred Stock are
issued to any holder thereof.
"Junior Stock" shall mean Common Stock and
any other class or series of stock of the
Corporation authorized after the Issue Date
not entitled to receive any assets upon
liquidation, dissolution or winding up of
affairs of the Corporation until the Preferred
Stock and any Parity stock shall have
received the entire amount to which such stock
is entitled upon such liquidation, dissolution
or winding up of affairs. "Liquidation Price"
measured per share of the Preferred Stock as of
any particular date shall mean the sum of (i)
$10.00 plus (ii) all dividends accrued on
that share through the Dividend Payment Date
immediately preceding the date on which the
Liquidation Price is being determined to the
extent not paid in full on or before such
Dividend Payment Date, plus (iii) (A) for
purposes of determining amount payable
pursuant to paragraphs 3 and 4 of this Section,
all unpaid dividends accrued on the sum of the
amounts specified in Clauses (i) and (ii) above,
to the date as of which the Liquidation Price is
being paid, and (B) for purposes of determining
the amount of dividends to be paid on a date
other than a Dividend Payment Date as
contemplated by paragraph 2(c) of this Section,
all unpaid dividends accrued on the amounts
specified in Clause (ii) above, to the date as
of which such dividends are being paid.
"Parity Stock" shall mean any class or
series of stock of the Corporation authorized
after the Issue Date entitled to receive assets
upon liquidation, dissolution or winding up of
the affairs of the Corporation on a parity with
the Liquidation Price of the Preferred Stock.
"Senior Stock" shall mean any class or
series of stock of the Corporation authorized
after the Issue Date ranking senior to the
Preferred Stock and any Parity Stock in respect
of the right to participate in any distribution
upon liquidation, dissolution or winding up of
the affairs of the Corporation.
2. Dividends and Other Distributions.
(a) Subject to the prior preferences and
other rights of any Senior Stock, the
holders of the Preferred Stock shall be
entitled to receive, when and as declared by
the Board of Directors, out of funds legally
available therefor, preferential dividends
which shall accrue as provided herein.
Dividends on each share of Preferred Stock
will accrue cumulatively on a daily basis at the
rate of
twelve percent (12%) per annum of the
Liquidation Price of such share from and
including the Issue Date applicable to such
share to and including the date on which the
redemption price of such share is paid whether
or not such dividends have been declared and
whether or not there are any funds of the
Corporation legally available for the payment of
dividends. Accrued dividends on each share of
the Preferred Stock shall be paid quarterly on
each Dividend Payment Date, commencing on the
second Dividend Payment Date after the Issue
Date applicable to such share, or the
immediately preceding business day, if any such
date is a Saturday, Sunday or legal holiday in
the State of Delaware, to the holders of record
of the applicable shares of Preferred Stock
as of the close of business on the record
date. For purposes of determining the amount
of dividends "accrued" as of the second
Dividend Payment Date and as of any date which
is not a Dividend Payment Date, such amount
shall be calculated on the basis of the
foregoing rates per annum for actual days
elapsed from and including the Issue Date (in
the case of the second Dividend Payment Date) or
the last preceding Dividend Payment Date (in
the case of any other date)to and including
the date as of which such determination is to
be made, based on a 360 day year.
(b) Dividends shall be payable in
cash; provided, however, that if on any
Dividend Payment Date, the Corporation, pursuant
to applicable law or the terms of any Debt
Instrument,shall be prohibited or restricted
from paying in cash the full dividends to
which holders of the Preferred Stock and any
Parity Stock shall be entitled, the amount of
cash available pursuant to applicable law and
which is not restricted by the terms of any Debt
Instrument shall be distributed among the
holders of the Preferred Stock and such Parity
Stock ratably in proportion to the full amount
to which they would otherwise be entitled.
Two percent (2%) of thedividend shall accrue
but not be currently paid and shall be added
to the Liquidation Price. The per share amounts
to be distributed pursuant to this Section 2(b)
shall, in each case, be adjusted by rounding
down to the nearest whole cent and such
adjusted amount is hereinafter referred to as
the "Cash Dividend Payment."
(c) To the extent not paid in full on each
Dividend Payment Date in the manner provided in
this paragraph 2, all dividends which have
accrued on each share of Preferred Stock
during the dividend period ending on such
Dividend Payment Date will be added to the
Liquidation Price of such share and will remain
a part thereof until such dividends, together
with all dividends which have accrued to the
date of such payment with respect to that
portion of the Liquidation Price which consists
of such accrued unpaid dividends, are paid in
full. Such accrued unpaid dividends, together
with all dividends accrued thereon, may be
declared and paid at any time, without
reference to any regular Dividend Payment
Date, to holders of record as of the close of
business on such date, not more than fifty (50)
days nor less than ten (10) days preceding the
payment date thereof, as may be fixed by the
Board of Directors (the "Special Record Date").
If declared, such accrued unpaid dividends,
together with all dividends accrued thereon,
shall be paid in cash.
(d) Notice of such Special Record Date
shall be mailed, in the manner provided in
paragraph 4(c) of this section, to the
holders of record of the Preferred Stock not
less than fifteen (15) days prior thereto.
(e) So long as any shares of
Preferred Stock shall be outstanding, the
Corporation shall not declare or pay on any
Junior Stock any dividend whatsoever, whether in
cash, property or otherwise, nor shall the
Corporation make any distribution on any Junior
Stock, or set aside any assets for any such
purposes, nor shall any Junior Stock be
purchased, redeemed or otherwise acquired by the
Corporation or any of its subsidiaries, nor
shall any monies be paid, set aside for payment
or made available for a sinking fund for the
purchase or redemption of any Junior Stock,
unless and until (i) all dividends to which the
holders of the Preferred Stock and any Parity
Stock shall have been entitled for all current
and all previous Dividend Periods shall have
been paid or declared and the consideration
sufficient for the payment thereof in full set
apart so as to be available for the payment
thereof and for no other purpose (whether or
not such payment is then legally permissible)
and (ii) the Corporation shall have made, in
full, or set apart the consideration
sufficient for the payment thereof, and for no
other purpose, all redemption payments with
respect to the Preferred Stock which it is
then obligated to make (whether or not such
payment is then legally permissible);
provided, however, that nothing contained in
this paragraph 2(d) shall prevent the payment
of dividends solely in Junior Stock or the
repurchase, redemption or other acquisition of
Junior Stock solely through the issuance of
Junior Stock (together with a cash adjustment
for fractional shares if any).
3. Distributions Upon Liquidation, Dissolution
or Winding Up. Subject to the prior payment in
full of the preferential amounts to which any
Senior Stock is entitled, in the event of any
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary,
the holders of shares of the Preferred Stock
shall be entitled to receive from the assets of
the Corporation available for distribution to
the shareholders an amount in cash or property
at its fair market value, as determined by the
Board of Directors in good faith, or a
combination thereof, per share equal to the
Liquidation Price, before any payment or
distribution shall be made to the holders of
any Junior Stock of the Corporation, which
payment shall be made pari passu to any such
payment made to the holders, if any, of any
Parity Stock. If, upon distribution of the
Corporation's assets in liquidation, dissolution
or winding up, the assets of the Corporation
to be distributed among the holders of
Preferred Stock and to all holders of any Parity
Stock shall be insufficient to permit payment in
full to such holders of the preferential amounts
to which they are entitled, then the entire
assets of the Corporation to be distributed to
holders of the Preferred Stock and such Parity
Stock shall be distributed pro rata to such
holders based upon the aggregate of the full
preferential amounts to which the shares of
Preferred Stock and such Parity Stock would
otherwise respectively be entitled. Neither
the consolidation or merger of the Corporation
with or into any other corporation or
corporations nor the sale, transfer, or lease
of all or substantially all the assets of the
Corporation shall itself be deemed to be a
liquidation, dissolution or winding up of the
Corporation within the meaning of this
paragraph 3. Notice of the liquidation,
dissolution or winding up of the Corporation
shall be mailed, in the manner provided in
paragraph 4(c) of this Section, to the holders
of the Preferred Stock less than twenty (20)
days prior to the date on which such
liquidation, dissolution and winding up is
expected to take place or become effective.
4. Redemption.
(a) Subject to the rights of any Senior Stock
and the provisions of paragraph 4(g) of
this Section, the shares of Preferred Stock
may be redeemed at the option of the Company by
action of the Board of Directors in whole or
from time to time in part, at any time after
December 31, 1999, at the Redemption Price per
share. If less than all outstanding shares of
Preferred Stock are to be redeemed, the
shares of Preferred Stock to be redeemed
shall be chosen by lot or pro rata in such
manner as the Board of Directors may determine.
(b) Notice of the redemption shall be
mailed, first class, postage prepaid, not less
than fifteen (15) days and no more than sixty
(60) days prior to the Redemption Date, to the
holders of record of the shares of Preferred
Stock to be redeemed, at their respective
addresses as the same appear on the books of the
Corporation or supplied by them in writing to
the Corporation for the purpose of such notice;
but no failure to mail such notice of any defect
therein, or in the mailing thereof shall affect
the validity of the proceedings for the
redemption of any shares of the Preferred
Stock. In addition to any information required
by law or by the applicable rules of any
national stock exchange on which the Preferred
Stock may be listed or admitted to trading,
such notice shall set forth the Redemption
Price, the Redemption Date, the number of shares
to be redeemed and the place at which the shares
called for redemption will, upon presentation
and surrender of the stock certificates
evidencing such shares, be redeemed, and shall
state the name and address of any redemption
agent selected by the Corporation in accordance
with paragraph 4(d) of this Section. In case
fewer than the total number of shares of
Preferred Stock represented by any certificates
are redeemed, a new certificate representing the
number of unredeemed shares will be issued to
the holder thereof without cost to such holder.
(c) If notice of any redemption by
the Corporation pursuant to this paragraph 4
shall have been mailed as provided in paragraph
4(c) of this Section, and if on or before
the Redemption Date specified in such notice
the consideration necessary for such redemption
shall have been set apart so as to be
available therefor and on therefor, then on and
after the close of business on the Redemption
Date, the shares of Preferred Stock called
for redemption, notwithstanding that any
certificates therefor shall not have been
surrendered for cancellation, shall no longer be
deemed outstanding, and all rights with
respect to such shares shall forthwith cease
and terminate, except the rights of the holders
thereof to receive upon surrender of their
certificates the consideration payable upon
redemption thereof. If on or prior to the
Redemption Date (but no earlier than sixty days
prior to such Redemption Date), the Corporation
shall deposit, in a trust fund, with any
bank or trust company organized under the
laws of the United States of America or any
state thereof having capital, undivided profits
and surplus aggregating at least $50,000,000
(the "Redemption Agent"), the consideration
sufficient to redeem on such Redemption Date the
shares of Preferred Stock to be redeemed, with
irrevocable instructions and authority to the
Redemption Agent, on behalf and at the expense
of the Corporation, to mail the notice of
redemption as soon as practicable after receipt
of such irrevocable instructions (or to
complete such mailing previously commenced, if
it has not already been completed) and to pay,
on and after the Redemption Date or prior
thereto, the Redemption Price of the shares
of Preferred Stock to be redeemed to their
respective holders upon the
surrender of their share certificates, then,
from and after the date of such deposit
(although prior to the Redemption Date) the
shares of Preferred Stock to be redeemed shall
be deemed to be redeemed and dividends on those
shares shall cease to accrue after the
Redemption Date. The deposit shall be deemed
to constitute full payment for shares of
Preferred Stock to be redeemed to their holders
and from and after the date of such deposit,
the shares shall be deemed to be no longer
outstanding and the holders thereof shall cease
to be shareholders with respect to such shares
and shall no rights with respect thereto, except
the right to receive payment of consideration
sufficient to pay the Redemption Price of the
shares, calculated through the Redemption Date,
upon surrender of their certificates therefor.
(d) Any funds so deposited by the
Corporation and unclaimed for one year from the
Redemption Date shall be paid to the Corporation
after which repayment the holders of shares of
Preferred Stock so called for redemption shall
look to the Corporation for the payment thereof,
without interest, unless an applicable abandoned
property law designates another person.
(e) All shares of Preferred Stock
redeemed, retired, purchased or otherwise
acquired by the Corporation shall be retired
and shall not be reissued. The Corporation
will not redeem any shares of Preferred Stock,
except as expressly authorized therein.
(f) If at any time the Corporation shall have
failed to apply, or declare and set apart the
consideration sufficient to payall dividends
accrued up to and including the immediately
preceding dividend payment date on the Preferred
Stock and any Parity Stock, and until all
dividends accrued up to and including the
immediately preceding Dividend Payment Date on
the Preferred Stock and any Parity Stock shall
have been paid or declared and set apart so as
to be available for the payment in full
therefor, and for no other purpose, the
Corporation shall not redeem, pursuant to a
sinking fund or otherwise, any shares of
Preferred Stock, Parity Stock or Junior Stock,
unless all then outstanding shares of Preferred
Stock and Parity Stock are redeemed, and shall
not purchase or otherwise acquire any shares of
Preferred Stock, Parity Stock or Junior Stock.
5. Voting.
(a) The holders of Preferred Stock shall have
no right to vote for any purpose, except
as specifically required by the General
Corporation Law of Delaware and except as
described below.
(b) Without the consent of the holders of at
least 66 2/3% of the number of shares of
Preferred Stock at the time outstanding, the
Corporation may not (i) effect any change in
the rights, privileges or preferences of the
Preferred Stock, (ii) create or designate any
additional class or series of Senior Stock,
or (iii) enter into any agreement which, in
the absence of default under such
agreement, would by its terms prevent the
Corporation from paying on any Dividend Payment
Date the full dividends to which holders of the
Preferred Stock are then entitled or from
otherwise fully performing its obligations
pursuant to this Section. Without the consent
of the holders of at least a majority of the
number of shares of Preferred Stock at the
time outstanding, the Corporation may not
create any class of Parity Stock. Such
consents shall be given in writing or by vote
at a meeting called for that purpose at which
the holders of the Preferred Stock shall vote
as a class.
(c) The Corporation shall promptly notify the
holders of the Preferred Stock, in the manner
provided in this paragraph 4(c), of the
occurrence of the Event of Noncompliance. Upon
the occurrence and during the continuation of an
Event of Noncompliance, the holders of shares
of the Preferred Stock voting separately as a
class, shall have the exclusive right to elect
two directors of the Board of Directors.
Directors so elected shall thereupon become
additional directors of the Corporation and the
authorized directors of the Corporation shall
thereupon be automatically increased by such
number. The Corporation will not take any
action which would impair its ability, in
conformity with the Articles of Incorporation
and the By-laws of the Corporation, to increase
automatically the number of its directors as
provided herein. During such times that the
holders of Preferred Stock, voting as a class,
shall be entitled to elect such additional
directors, the remaining directors shall be
elected by the holders of the other shares
of capital stock of the Corporation entitled
to vote for the election of directors,
without right in the holders of Preferred Stock
to participate in the election of such remaining
directors.
Such right of the holders of Preferred Stock, as
such holders, to elect such directors shall
continue only until all then existing Events
of Noncompliance have been cured in full, at
which time the terms of office of the directors
elected as such by the holders of shares of the
Preferred Stock shall forthwith terminate and
the number of directors constituting the entire
Board of Directors of the Corporation shall be
reduced correspondingly (subject always to
the same provisions for the vesting of such
voting rights on the occurrence of any other
or future Event of Noncompliance). The fact
that an Event of Noncompliance has been cured
and that no other Events of Noncompliance
have occurred and are continuing shall be
evidenced by a certificate executed by the
President of the Corporation and delivered to
the Board of Directors.
At any time after such voting rights shall
so have vested in the holders of the shares of
the Preferred Stock, the Secretary of the
Corporation may, and upon the written request of
the holders of record of not less than 5% of
the Preferred Stock, addressed to him at the
principal office of the Corporation, shall
within ten days after delivery of such request,
call a special meeting of the holders of shares
of the Preferred Stock for the purpose of
electing the directors to be elected by them,
such meeting to be held within 15 days after
such call at the place and upon the notice
provided by the Bylaws of the Corporation for
the holding of meetings of shareholders;
provided, however, that if the Secretary of the
Corporation shall fail to call any such meeting
within ten days after delivery of any such
request, such meeting may be called by any
holder or holders of record of 5% of more of
the Preferred Stock. Notwithstanding the
foregoing, the Secretary of the Corporation
shall not be required, and the holders of the
Preferred Stock shall not be entitled, to call
such a special meeting if the request for such
call is received less than sixty days prior to
the date fixed for the next annual meeting of
shareholders, and if in such case such special
meeting is not called, the holders of the
Preferred Stock shall be entitled to vote (as
a class) at such annual meeting to elect
such directors. Any vacancy in the office of a
director elected by the holders of the Preferred
Stock shall be filled by a vote of such
holders as a separate class or by the
remaining director elected by such holders.
Except as hereinbefore provided, the directors
elected by the holders of the Preferred Stock
shall serve until the next annual meeting of
the shareholders and until their successors
shall have been elected and qualified and may be
otherwise removed only by the holders of at
least a majority of the then outstanding shares
of Preferred Stock at the time of such removal.
At any meeting having as a purpose the
election of directors by holders of the
Preferred Stock, the presence, in person or by
proxy, of the holders of a majority of the
shares of Preferred Stock then outstanding
shall be required and be sufficient to
constitute a quorum of such class for the
election of any director by such holders. At any
such meeting or adjournment thereof, (i) the
absence of a quorum of such holders of the
Preferred Stock shall not prevent the election
of the directors to be elected by the holders
of shares other than the Preferred Stock, and
the absence of a quorum, either of holders
of the Preferred Stock or of shares other than
the Preferred Stock, or both, a majority of the
holders, present in person or by proxy, of the
class or classes of stock which lack a quorum
shall have power to adjourn the meeting for
the election of directors which they are
entitled to elect, from time to time, without
notice other than announcement at the meeting,
until a quorum shall be present.
(d) With respect to actions by the holders
of the Preferred Stock upon those matters on
which such holders are entitled to vote as a
separate class, such actions may be taken
without a shareholders meeting by the written
consent of holders of the Preferred Stock who
would be entitled to vote at a meeting those
shares having voting power to cast not less than
the minimum number of votes that would be
necessary to authorize or take such action at
a meeting at which all shares of Preferred
Stock entitled to vote were present and voted.
Notice shall be given in accordance with the
applicable provisions of the General Corporation
Law of Delaware for the taking of corporate
action without a meeting by less than unanimous
written consent to those holders of Preferred
Stock on the record date whose shares were not
represented on the written consent.
6. Conversion.
(a) Conversion Right. Unless previously
redeemed as provided in paragraph 4 hereof, the
Preferred Stock may be converted prior to
redemption thereof at such time, in such manner
and upon such terms and conditions as
hereinafter provided in this paragraph 6 into
fully paid and non-assessable full shares of
Common Stock. In the event the Corporation shall
call for redemption the shares of Preferred
Stock pursuant to paragraph 7 hereof, the
conversion right provided by this paragraph 6
shall terminate at the close of business on the
date fixed for redemption. In case cash,
securities or property other than Common Stock
shall be payable, deliverable or issuable upon
conversion as provided herein, then all
references to Common Stock in this paragraph 6
shall be deemed to apply, so far as appropriate
and as nearly as may be, to such cash, property
or other securities.
(b) Conversion Rate. Subject to the provisions
for adjustments hereinafter set forth in
this paragraph 6, the Preferred Stock may be
converted into Common Stock at the initial
conversion rate of one fully paid and non-
assessable shares of Common Stock for one
share of Preferred Stock. (This conversion
rate as from time to time adjusted
cumulatively pursuant to the provisions of
paragraph 6(d) of this Section is hereinafter
referred to as the "Conversion Rate.")
(c) Conversion Date. Unless previously
redeemed as provided in paragraph 7 hereof,
the Preferred Stock shall be convertible at any
time and from time to time at the option of the
holder(s) thereof.
(d) Adjustments
(i) Stock Dividends, Subdivisions,
Combinations. In case the corporation shall (A)
pay a dividend or make a distribution on its
outstanding shares of Common Stock,(B)subdivided
the then outstanding shares of its Common Stock
into a greater number of shares of Common Stock,
(C) Combine the ten outstanding shares of its
Common Stock into a smaller number of shares of
Common Stock, or (D) issue by reclassification
of its shares of Common Stock any shares of
capital stock of the Corporation (including any
such reclassification in connection with a
consolidation or merger in which the Corporation
is the continuing corporation), then the
Conversion Rate in effect immediately prior to
the opening of business on the record date for
such dividend or distribution or the effective
date of such subdivision, combination or
reclassification shall be adjusted so that the
holder of each share of the Preferred Stock
thereafter surrendered for conversion shall be
entitled to receive the number and kind of
shares of capital stock of the Corporation which
it would have owned or been entitled to receive
immediately following such action had such
shares of Preferred Stock been converted
immediately prior to such time. An adjustment
made pursuant to this paragraph 6(d)(i) for a
dividend or distribution shall become effective
immediately after the record date for the
dividend or distribution and an adjustment made
pursuant to this paragraph 6(d)(i) for a
subdivision, combination or reclassification.
Such adjustment shall be made successively
whenever any action listed above shall be taken.
In any case in which this paragraph 6(d)(i)
shall require that an adjustment shall become
effective immediately after a record date for
an event, the Corporation may defer until the
occurrence of such event (x) issuing to the
holder of any shares of Preferred Stock
converted after such record date and before the
occurrence of such event the additional shares
of Common Stock issuable upon such conversion by
reason of the adjustment required by such
event over and above the shares of Common Stock
issuable upon such conversion before giving
effect to such adjustment and (y) paying to such
holder cash in lieu of any fractional interest
to which such holder is entitled pursuant to
paragraph 6(i) of this Section; provided,
however, that the Corporation shall deliver to
such holder a due bill or other appropriate
instrument evidencing such holder's right to
receive such additional shares of Common
Stock, and such cash, upon the occurrence of the
event requiring such adjustment.
(ii) Reclassifications, Consolidations or
Merger. In case of any reclassification or
change of outstanding Common Stock (other than
those referred to in paragraph 6(d)(i) of this
Section and other than a change in par value),
or case of any consolidation of the Corporation
with any other corporation or any merger of the
corporation into another corporation or of
another corporation into the Corporation (other
than a consolidation or merger in which the
Corporation is the continuing corporation and
which does not result in any reclassification
of, or change (other than a change in par
value, or as a result of a subdivision or
combination to which paragraph 6(d)(i) hereof
isapplicable in, the outstanding Common
Stock), or in case of any sale or transfer to
another corporation or entity (other than by
mortgage or pledge) of all or substantially all
of the properties and assets of the
Corporation, the Corporation (or its successor
in such consolidation or merger) or the purchase
of such properties and assets shall make
appropriate provision so that the holder of
each share of Preferred Stock then outstanding
shall have the right thereafter to convert such
share into the kind and amount of shares of
stock and other securities and property
receivable upon such reclassification, change,
consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock
into which such Preferred Stock might have been
converted immediately prior to such
reclassification, change, consolidation, merger,
sale or transfer, and the holders of the
Preferred Stock shall have no other conversion
rights under these provisions; provided, that
effective provision shall be made, in the
Articles or Certificate of Incorporation of the
resulting or surviving corporation or otherwise
or in any contracts of sale or transfer, so that
the provisions set forth herein for the
protection of the conversion rights of Preferred
Stock shall thereafter be made applicable, as
nearly as reasonably may be, to any such other
shares of stock and other securities and
property deliverable upon conversion of the
Preferred Stock remaining outstanding or other
convertible preferred stock or other securities
received by the holders of Preferred Stock or
purchaser shall expressly assume the obligation
to deliver, upon the exercise of the conversion
privilege, such shares, securities or property
as the holders of the Preferred Stock remaining
outstanding, or other convertible preferred
stock or other securities received by the
holders in place thereof, shall be entitled to
receive pursuant to the provisions hereof, and
to make provisions for the protection of the
conversion rights as above provided.
(iii) Notice of Adjustment. Whenever the
Conversion Rate shall be adjusted as provided
in this paragraph 7(d), the Corporation shall
promptly (A) file with the transfer agent for
the Preferred Stock a statement signed by the
President or the Vice President of the
Corporation and by its Treasurer, disclosing
the nature of such event, the Conversion Rate
in effect immediately thereafter and the kind
and amount of stock or other securities or
property into which Preferred Stock shall be
convertible after such event, and (B) cause a
notice containing a summary of the information
set forth in said statement to be mailed.
t (iv) De Minimis Adjustment. The
Corporation may, but shall not be required to,
make any adjustment of the Conversion Rate if
such adjustment would require an increase or
decrease of less than 1% in such Conversion
Rate; provided, however, that any adjustments
which by reason of this paragraph 6(d)(iv) are
not required to be made shall be carried forward
and taken into account in any subsequent
adjustment.
o the holders of record of Preferred Stock.
Where appropriate, such notice may be given
in advance and included as a part of a
notice required to be mailed under the
provisions of paragraph 7(e) of this
Section.
(e) Advance Notice of Certain Events. In
case at any time:
(i) the Corporation shall take any
action which would require an adjustment in
the Conversion Rate pursuant to paragraph
7(d)(i) of this Section;
(ii) the Corporation shall authorize
the granting to the holders of its Common
Stock of any Distributions on Common Stock
or shall have declared any other dividend
or distribution on its Common Stock and
notice thereof shall be given to holders of
Common Stock;
(iii) there shall be any capital
reorganization or reclassification of the Common
Stock (other than a change in par value), or any
consolidation or merger to which the Corporation
is a party and for which approval of any
shareholders of the Corporation is required, or
any sale or transfer of all or substantially all
of the properties and assets of the Corporation,
or a tender offer for at least a majority of the
Common Stock which has been recommended by the
Board of Directors as being in the best
interests of the holders of the Common Stock; or
(iv) there shall be a voluntary or
involuntary dissolution, liquidation or winding
up of the Corporation; then, in any such event,
the Corporation shall give written notice, in
the manner provided in paragraph 7(b) of this
Section, to the holders of the Preferred Stock
at their respective addresses as the same appear
upon the books of the Corporation, at least
twenty days (or ten days in the case of a
recommended tender offer as specified in
clause (iii) above) prior to any record date or
other date set for definitive action if there
shall be no record date, of the date on which
such action,
dividend,distribution,reorganization,reclassific
atio, consolidation, merger, sale, transfer,
tender offer, dissolution, liquidation or
winding up is expected to take place or become
effective, and the date as of which it is
expected that holders of the Common Stock of
record shall be entitled to exchange their
shares of Common Stock for securities or other
property, if any, deliverable upon such
reorganization, reclassification, consolidation,
merger, sale, transfer, tender offer,
dissolution, liquidation or winding up;
provided, however, that any notice required by
clause (ii) above shall be given in the manner
and at the time that such notice is given to the
holders of the Common Stock. Without limiting
the obligation of the Corporation to provide
notice of corporate actions hereunder, the
failure to give the notice required by this
paragraph 6(e) or any defect therein shall not
affect the legality or validity of any such
corporate action of the Corporation or the vote
upon such action.
(f) Method of Conversion. Before any
holder of Preferred Stock shall be entitled to
convert the same into Common Stock, it shall
surrender the certificate or certificates for
such Preferred Stock at the office of the
Corporation or at the office of the Transfer
Agent for the Preferred Stock, if any, which
certificate or certificates, if the Corporation
shall so request, shall be duly endorsed to the
Corporation or in blank or accompanied by proper
instruments of transfer to the Corporation or in
blank (such endorsements or instruments of
transfer to be in form satisfactory to the
Corporation), and shall give written notice to
the Corporation at said office that it elects to
convert all or a part of the shares of Preferred
Stock represented by said certificate or
certificates in accordance with the terms of
this paragraph 6, and shall state in writing
therein the name or names in which it wishes the
certificate or certificates for Common Stock to
be issued. Every such notice of election to
convert shall constitute a contract between the
holder of such Preferred Stock and the
Corporation, whereby the holder of such
Preferred Stock shall be deemed to subscribe for
the amount of Common Stock which it shall be
entitled to receive upon conversion of the
number of shares of Preferred Stock to be
converted, and, in satisfaction of such
subscription, to deposit the shares of Preferred
Stock to be converted, and thereby the
Corporation shall be deemed to agree that the
surrender of the shares of Preferred Stock to be
converted shall constitute full payment of such
subscription for Common Stock to be issued upon
such conversion. The Corporation will as soon as
practicable after such deposit of a certificate
or certificates for Preferred Stock,
accompanied by the written notice and
statements above prescribed, issue and deliver
at the office of the Corporation or of said
transfer agent to the person for whose account
such Preferred Stock was so surrendered, or to
its nominee(s) or, subject to compliance with
applicable law, transferee(s), a certificate or
certificates for the number of full shares of
Common Stock to which it shall be entitled,
together with cash in lieu of any fraction of
a share as hereinafter provided. If
surrendered certificates for Preferred Stock
are converted only in part, the Corporation will
issue and deliver to the holder, or to its
nominee(s), without charge therefor, a new
certificate or certificates representing the
aggregate of the unconverted share of Preferred
Stock. Such conversion shall be deemed to have
been made as of the date of such surrender of
the Preferred Stock to be converted; and the
person or persons entitled to receive the Common
Stock issuable upon conversion of such
Preferred Stock shall be treated for all
purposes as the record holder or holders of
such Common Stock on such date.
The issuance of certificates for shares of
Common Stock upon conversion of shares of
Preferred Stock shall be made without charge for
any issue, stamp or other similar tax in respect
of such issuance, provided, however, if any such
certificate is to be issued in a name other than
that of the holder of the share or shares of
Preferred Stock converted, the person or
persons requesting the issuance thereof shall
pay to the Corporation the amount of any tax
which may be payable in respect of any transfer
involved in such issuance or shall establish to
the satisfaction of the Corporation that such
tax has been paid.
The Corporation shall not be required to
convert Preferred Stock, and no surrender of
Preferred Stock shall be effective for that
purpose, while the stock transfer books of the
Corporation are closed for any purpose; but the
surrender of Preferred Stock for conversion
during any period which such books are so closed
shall become effective for conversion
immediately upon the reopening os such books, as
if the conversion had been made on the date
such Preferred Stock was surrendered.
(g) Shares Reserved for Conversion. The
Corporation shall at all times reserve and keep
available solely for the purpose of issuance
upon conversion of the outstanding shares of
Preferred Stock, such number of shares of Common
Stock as shall be issuable upon the conversion
of all such outstanding shares, provided that
nothing contained herein shall be construed to
preclude the Corporation from satisfying the
obligations in respect of the conversion of the
outstanding shares of Preferred Stock by
delivery of shares of Common Stock which are
held in the treasury of the Corporation. The
Corporation shall take all such corporate and
other actions as from time to time may be
necessary to insure that all shares of Common
Stock issuable upon conversion of shares of
Preferred Stock at the Conversion Rate in
effect from time to time will, upon issue, be
duly and validly authorized and issued, fully
paid and nonassessable and free of any
preemptive or similar rights. In order that
the Corporation may issue shares of Common Stock
upon conversion of the Preferred Stock, the
Corporation will endeavor to comply with all
applicable federal and state securities laws.
(h) Status of Shares Converted. All shares
of Preferred Stock received by the Corporation
upon conversion thereof into Common Stock shall
be retired and shall not be reissued.
(i) Fractions upon Conversion. The Corporation
shall not be required to issue fractional shares
of Common Stock or script upon conversion of
the Preferred Stock. As to any final fractions
of a share of Common Stock which a holder of one
or more shares of Preferred Stock would
otherwise be entitled to receive upon
conversion of such shares in the same
transaction, the Corporation shall pay a cash
adjustment in respect of such final fraction in
an amount equal to the same fraction of the
market value of a full share of the Common
Stock. For purpose of this paragraph 6(i), the
market value of a share of the Common Stock
shall be the last reported sale price regular
way on the business day immediately preceding
the date of conversion, or, in case no such
reported sale takes place on such day, the
average of the reported closing bid and asked
prices regular way on such day, in either case
on the composite tape, or if the shares of
Common Stock are not quoted on the composite
tape, on the principal United States Securities
Exchange registered under the Securities
Exchange Act of 1934, as amended, on which the
share of Common Stock are listed or admitted to
trading, or if the shares of Common Stock are
not listed or admitted to trading on any
exchange, the closing sale price (or the
average of the quoted closing bid and asked
prices if there are no reported sales) as
reported on the National Association of
Securities Dealers Automated Quoting System
(NASDAQ) of any comparable system, the average
of the closing bid and asked prices as furnished
by any member of the National Association of
Securities Dealers, Inc. selected from time to
time by the Corporation for that purpose or, in
the absence of such quotations, such other
method of determining market value as the Board
of Directors shall from time to time deem to be
fair.
7. Preemptive Rights. The holders of
the Preferred Stock will not have any preemptive
rights to subscribe for or purchase any shares
of stock or any other securities which may be
issued by the Corporation. However, the holders
of Preferred Stock shall have a fifteen day
right of first refusal to acquire, in the
aggregate, up to 5% of any securities in the
Corporation which are offered pursuant to a
private offering exemption under federal and
applicable state law. Each holder of Preferred
Stock shall be entitled to his pro rata share of
the aggregate 5% of such securities. The right
of first refusal shall be exercised within
fifteen days after a holder of Preferred Stock
is deemed to have received the offering
materials prepared by the Corporation in
connection with the offering via regular U.S.
mail. Deemed receipt of the materials shall
be established three days after mailing via U.S.
regular mail to the address of each holder of
Preferred Stock as shown on the records of the
Corporation as of the date of mailing. Each
holder of Preferred Stock desiring to exercise
his right of first refusal shall do so by
fulfilling all instructions provided in the
offering materials and notification from the
Corporation including returning the fully
executed and completed subscription agreement
required to subscribe for the securities offered
and a check for the amount subscribed within
fifteen days after the deemed receipt. This
right of first refusal shall terminate and be of
no effect 30 days prior to the effective date of
any registration statement filed with the
Securities and Exchange Commission registering
any of the Company's securities or the effective
date of any registration statement filed with
any state securities regulatory agency
registering any of the Company's securities.
8. Exclusion of Other Rights. Except as
may otherwise be required by law and for the
equitable rights and remedies which may
otherwise be available to holders of Preferred
Stock, the shares of Preferred Stock shall
not have any designations, preferences,
limitations or relative rights, other than
those specifically set forth in these Amended
and Restated Articles of Incorporation.
9. Headings of Subdivisions. The headings
of the various subdivisions of this Section are
for the convenience of reference only and shall
not affect the interpretation of any of the
provisions of this Section.
SECTION B
THE COMMON STOCK
The Common Stock shall consist of
50,000,000 shares, $0.001 par value per share.
1. Dividends. Subject to the rights of
holders of stock of the Corporation senior to
the Common Stock with respect to the
declaration and payment of dividends, holders of
Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock
or property of the Corporation as may be
declared thereon by the Board of Directors from
time to time out of assets or funds of the
Corporation legally available therefor.
2. Voting. At every meeting of the
shareholders of the Corporation, every holder
of Common Stock shall be entitled to one vote
in person or by proxy for each share of Common
Stock standing in his name on the transfer books
of the Corporation.
ARTICLE V
Responsibility for the management of the
business and conduct of the affairs of the
Corporation shall be vested in the Board of
Directors. In furtherance and not in limitation
of the powers conferred by the laws of the State
of Delaware, the Board of Directors is
expressly authorized:
(a) to make, alter, amend and repeal the
ByLaws, subject to the power of the
shareholders to alter or repeal the By-Laws;
and
(b) to adopt a corporate seal.
ARTICLE VI
The Corporation may, upon adoption of a
resolution by its Board of Directors, purchase
its own shares to the extent of unreserved and
unrestricted capital surplus available therefor.
The Board of Directors of the Corporation may,
from time to time, in its discretion and without
the prior approval of the shareholders of the
Corporation, distribute a portion of its assets
to the shareholders out of capital surplus of
the Corporation.
ARTICLE VII
Subject to the provisions hereof, the
Corporation reserves the right at any time, and
from time to time, to amend, alter, repeal, or
rescind any provision contained herein, in the
manner now or hereafter prescribed by law, and
other provisions authorized by the laws of the
State of Delaware at the time in force may be
added or inserted, in the manner now or
hereafter prescribed by law; and all rights,
preferences and privileges of whatsoever
nature conferred upon stockholders, directors or
any other persons whomsoever by and pursuant to
these Articles of Incorporation in its present
form or as hereafter amended are granted
subject to this reservation.
ARTICLE VIII
DESIGNATION OF COMMITTEES
In furtherance and not in limitation
of the powers conferred by statute, the Board
of Directors is expressly authorized by a
majority of the whole Board of Directors, to
designate one or more committees, each
committee to consist of one or more of the
directors of the Corporation. The Board of
Directors may designate one or more directors
as alternate members of any committee, who may
replace any absent or disqualified member at any
meeting of the committee. Any such committee,
to the extent provided in the resolution or in
the By-Laws of the Corporation, shall have and
may exercise the powers of the Board of
Directors in the management of the business
and affairs of the Corporation, and may
authorize the seal of the Corporation to be
affixed to all papers which may require it;
provided, however, the By-Laws may provide that
in the absence or disqualification of any member
of such committee or committees, the member or
members thereof present at any meeting and not
disqualified from voting, whether or not he or
they constitute a quorum, may unanimously
appoint another member of the Board of Directors
to act at the meeting in the place of such
absent or disqualified member.
ARTICLE IX
RIGHTS TO PURCHASE SECURITIES AND OTHER
PROPERTY
The Board of Directors is expressly authorized
to create and issue rights entitling the holders
of such rights to purchase from the Corporation
shares of capital stock or other securities or
property. The Board of Directors shall have,
in its sole discretion, the authority to
determine the time at which and terms upon
which such rights are to be issued and set
forth in the contracts or instruments that
evidence such rights.
ARTICLE X
DIRECTOR LIABILITY INDEMNIFICATION
A director of the Corporation shall not
be personally liable to the Corporation or its
stockholders for monetary damages for breach of
duty or care or other duty as a director, except
for liability (i) for any appropriation, in
violation of his duties, of any business
opportunity of the Corporation, (ii) for acts or
omissions not in good faith or which involve
intentional misconduct or a knowing violation of
law, (iii) or any type of liability not
contemplated by section 145 of the General Corporation
Law of Delaware, or (iv) for any transaction
from which the director derived an improper
personal benefit. If the General Corporation
Law of Delaware is hereafter amended to
authorize further elimination or limitation of
the liability of the directors, then the
liability of the director shall be eliminated
or limited to the fullest extent permitted by
the General Corporation Law of Delaware, as
amended. In addition to the limitation on
personal liability of directors provided
herein, the Corporation shall, to the fullest
extent permitted by the General Corporation Law
of Delaware, (x) indemnify its officers and
directors and (y) advance expenses incurred by
such officers or directors in relation to any
action, suit or proceeding. Any repeal or
modification of this Article VI by the
stockholders of the Corporation shall be
prospective only, and shall not adversely
affect any limitation on the personal liability
or right to indemnification or advancement of
expenses hereunder existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, Interactive
MultiMedia Publishers, Inc. has caused these
Amended and Restated Articles of Incorporation
to be executed and its corporate seal to be
affixed by its duly authorized representative
as of this ___day of _________, 1996.
Interactive MultiMedia Publishers Inc.
By _______________________
P. Joseph Vertucci, President
BYLAWS
OF
INTERACTIVE MULTIMEDIA PUBLISHERS, INC.
ARTICLE I
SHAREHOLDERS
Section 1.1 Annual Meeting. The annual
meeting of the Shareholders for the election
of Directors and for the transaction of such
other business as may properly come before the
meeting shall be held at such place, either
within or without the State of Ohio, on such
date and at such time as the Board of Directors
may by resolution provide, or if the Board of
Directors fails to provide, then such meeting
shall be held at the principal office of
the Corporation at 733 West Market Street,
Suite B5, Akron, Ohio, on the first Tuesday
of September of each year, or, if such date is
a legal holiday, on the next succeeding
business day. The Board of Directors may
specify by resolution prior to any special
meeting of Shareholders held within the year
that such meeting shall be in lieu of the
annual meeting.
Section 1.2 Special Meetings: Call and
Notice of Meetings. Special meetings of the
Shareholders may be called at any time by the
Board of Directors, the President, or upon
written request of the holder(s) of at least
twenty-five percent (25%) of the outstanding
common stock. Such meetings shall be held at
such place, either within or without the State
of Ohio, as is stated in the call and notice
thereof. Written notice of such meeting of
Share holders, stating the time and place of
the meeting, and the purpose of any special
meeting shall be mailed to each Shareholder
entitled to vote at or to notice of such
meeting at his or her address shown on the
books of the Corporation not less than ten (10)
nor more than sixty (60) days prior to such
meeting unless such Shareholder waives notice of
the meeting. Any Shareholder may execute a
waiver of notice, in person or by proxy,
either before or after any meeting, and shall
be deemed to have waived notice if he is
present at such meeting in person or by
proxy. Neither the business transacted at nor
the purpose of any meeting need be stated in the
waiver of notice of such meeting.
Notice of any meeting may be given by
the President, the Secretary or by the person(s)
calling such meeting. No notice need be given
of the time and place of reconvening of any
adjourned meeting, if the time and place to
which the meeting is adjourned are announced
at the adjourned meeting.
Section 1.3 Quorum: Required Shareholder
Vote.
A quorum for the transaction of business at any
annual or special meeting of Shareholders shall
exist when the holders of a majority of the
outstanding shares entitled to vote are
represented either in person or by proxy at such
meeting. If a quorum is present, the
affirmative vote of the majority of the
shares represented at the meeting and entitled
to vote on the special matter shall be the act
of the Shareholders unless a greater vote is
required by law, by the Articles of
Incorporation or by these Bylaws. When a quorum
is once present to organize a meeting, the
Shareholders present may continue to do
business at the meeting or at any adjournment
thereof, notwithstanding the withdrawal of
enough Shareholders to leave less than a quorum.
The holders of a majority of the voting
shares represented at a meeting, whether or not
a quorum is present, may adjourn such meeting
from time to time.
Section 1.4 Proxies. A Shareholder may
vote either in person or by a proxy which he
has duly executed in writing. No proxy shall
be valid after eleven (11) months from the
date of its execution unless a longer period is
expressly provided in the proxy.
Section 1.5 Action of Shareholders
Without Meeting. Any action required to be or
which may be taken at a meeting of the
Shareholders, may be taken without a meeting if
written consent, setting forth the actions so
taken shall be signed by all of the
Shareholders entitled to vote with respect to
the subject matter thereof. Such consent shall
have the same force and effect as unanimous
affirmative vote of the Shareholders and shall
be filed with the minutes of the proceedings
of the Shareholders.
ARTICLE II - DIRECTORS
Section 2.1 Power of Directors. The Board
of Directors shall manage the business
of the Corporation and may exercise all the
powers of the Corporation, subject to any
restrictions imposed by law, by the Articles
of Incorporation or by the Bylaws.
Section 2.2 Composition of the Board. The
Board of Directors of the Corporation shall
consist of between three and nine natural
persons of the age of eighteen years or over,
except that if all shares of the Corporation are
owned beneficially and of record by less than
three (3) shareholders, the number of Directors
may be less than three but not less than the
number of shareholders. Directors need not be
residents of the State of Ohio or Shareholders
of the Corporation. At each annual meeting
the Shareholders shall fix the number of
Directors and elect the Directors, who shall
serve until their successors are elected and
qualified; provided that the Shareholders may,
by the affirmative vote of the holders of a
majority of the shares entitled to vote at an
election of Directors increase or reduce the
number of Directors and add or remove
Directors with or without cause at any time.
Section 2.3 Meeting of the Board: Notice
of Meeting; Waiver of Notice.
The annual meeting of the Board of Directors
for the purpose of electing officers and
transacting such other business as may be
brought before the meeting shall be held each
year immediately following the annual meeting
of Shareholders. The Board of Directors
may by resolution provide for the time and place
of other regular meetings and no notice of
such regular meeting need be given, except as
provided in Article VII of these Bylaws, in
which case notice shall be given. Special
meetings of the Board of Directors may be
called by the President, or by two (2)
Directors, and written notice of the time and
place of such meetings shall be given to each
Director by telephone, telegraph, cablegram,
Federal Express or in person at least two (2)
days before the meeting. Any Director may
execute a waiver of notice, either before or
after any meeting, and shall be deemed to have
waived notice if he is present at such meeting.
Neither the business to be transacted at, nor
the purpose of, any meeting of the Board of
Directors need be stated in the notice or waiver
of notice of such meeting. Any meeting may be
held at any place within or without the State
of Ohio.
Section 2.4 Quorum: Vote Requirement
. A majority of the Directors in office at
any time shall constitute a quorum for the
transaction of business at any meeting. When a
quorum is present, the vote of a majority of
the Directors present shall be the act of the
Board of Directors, unless a greater vote is
required by the Articles of Incorporation or
by these Bylaws.
Section 2.5 Action of the Board Without
Meeting.
Any action required or permitted to be taken
at a meeting of the Board of Directors or any
committee thereof may be taken without a meeting
if written consent, setting forth the action so
taken, is signed by all the Directors or
committee members and filed with the minutes of
the proceedings of the Board of Directors or
committee. Such consent shall have the same
force and effect as an unanimous affirmative
vote of the Board of Directors or committee, as
the case may be.
Section 2.6 Committees. The Board of
Directors, by resolution adopted by a majority
of all of the Directors, may designate from
among its members an Executive Committee, and /
or other committees, each composed of two (2)
or more Directors, which may exercise such
authority as is delegated by the Board of
Directors, provided that no committee shall have
the authority of the Board of Directors in
reference to (a) an amendment to the Articles of
Incorporation or the Bylaws of the
corporation, (b) the adoption of a plan of
merger or consolidation, (c) the sale, lease,
exchange or other disposition of all or
substantially all of the property and assets of
the Corporation, or (d) a voluntary dissolution
of the Corporation or a revocation thereof.
Section 2.7 Vacancies.
A vacancy occurring in the Board of Directors
by reason of the removal of a Director by the
Shareholders shall be filled by the
Shareholders, or, if authorized by the
Shareholders, by the remaining Directors. Any
other vacancy occurring in the Board of
Directors may be filled by the affirmative vote
of a majority of the remaining Directors
through less than a quorum of the Board of
Directors, or by the sole remaining Director,
as the case may be, or, if the vacancy is not
so filled, or if no Director remains, by the
Shareholders. A Director elected to fill a
vacancy shall serve for the unexpired term
of his predecessor in office.
ARTICLE III OFFICERS Section 3.1
Executive Structure of the Corporation
. The officers of the Corporation shall consist
of a President, a Secretary, a Treasurer and
such other officers as may be elected by the
Board of Directors. Each officer shall hold
office for the term for which he has been
elected until he is removed or his successor
has been elected and qualified. The same
individual may simultaneously hold more than
one office in the Corporation. The Board of
Directors may designate a Vice President as an
Executive Vice President and may designate
the order in which other Vice Presidents
may act.
Section 3.2 President. The President shall
be the chief executive officer of the
Corporation and shall give general supervision
and direction to the affairs of the
Corporation, subject to the direction of the
Board of Directors. He shall preside at all
meetings of the Shareholders.
Section 3.3 Vice President. The Vice
President shall act in the case of absence or
disability of the President.
Section 3.4 Secretary. The Secretary shall
keep the minutes of the proceedings of the
Shareholders and of the Board of Directors, and
shall have custody of and attest to the seal of
the Corporation.
Section 3.5 Treasurer. The Treasurer shall
be responsible for the maintenance of proper
financial books and records of the Corporation.
Section 3.6 Other Duties and Authority. Each
officer, employee and agent of the Corporation
shall have such other duties and authority
as may be conferred upon him by the Board
of Directors or delegated to him by the
President.
Section 3.7 Removal of Officers. Any
officer may be removed at any time by the
Board of Directors, and such vacancy may be
filled by the Board of Directors. This provision
shall not prevent the making of a contract
of employment for a definite term with any
officer and shall have no effect upon any
cause of action which any officer may have as
a result of removal in breach of a contract
of employment.
Section 3.8 Salaries. The salaries of the
officers of the Corporation shall be fixed from
time to time by the Board of Directors. No
officer shall be prevented from receiving
such salary by reason of the fact that he
is also a Director of the Corporation.
ARTICLE IV
- - STOCK Section 4.1 Stock Certificates. The
shares of stock of the Corporation shall be
represented by certificates in such form as may
be approved by the Board of Directors, which
certificates shall be issued to the Shareholders
of the Corporation in numerical order from the
stock book of the Corporation, and
each of which shall bear the name of the
Shareholder, the number of shares represented
and the date of issue; and which shall be signed
by the President and / or the Secretary and
which shall be sealed with the seal of the
Corporation. No share certificate shall be
issued until the consideration for the share
represented thereby has been fully paid.
Section 4.2 Transfer of Stock. Shares of
stock of the Corporation shall be transferred
only on the books of the Corporation upon
surrender to the Corporation of the
certificate(s) representing the shares to be
transferred, accompanied by an assignment in
writing of such shares properly executed by
the shareholder of record or his or her duly
authorized attorney-in-fact, and with all taxes
on the transfer having been paid. The
Corporation may refuse any requested transfer
until furnished evidence satisfactory to it that
such transfer is proper. Upon the surrender of
a certificate for transfer of stock, such
certificate shall at once be conspicuously
marked on its face "cancelled" and filed with
the permanent stock records of the Corporation.
The Board of Directors may make such additional
rules concerning the issuance, transfer and
registration of stock and requirements regarding
the establishment of lost, destroyed or
wrongfully taken stock certificates (including
any requirement of an indemnity bond prior to
issuance of any replacement certificate) as it
deems appropriate.
Section 4.3 Registered Stockholders.
The Corporation may deem and treat the holder of
record of stock as the absolute owner for all
purposes and shall not be required to take
any notice of any right or claim of right of
any other person.
Section 4.4 Record Date.
For the purpose of determining Shareholders
entitled to notice of or to vote at any meeting
of Shareholders or any adjournment thereof, or
entitled to receive payment of any dividend, or
in order to make a determination of Shareholders
for any other purpose, the Board of Directors
of the Corporation may fix in advance a date
as the record date for any such determination
of Shareholders, such date in any case to be
not more than sixty (60) days and, in the
case of a meeting of Shareholders, not less
than ten (10) days prior to the date on which
the particular action requiring such
determination of Shareholders is to be taken.
Section 4.5 Restriction on Transfer of
Stock.
No transfer of any shares of stock of the
Corporation (other than transfer without
consideration to permitted transferees) shall be
made on the books of the Corporation, and no
unregistered transfer of any legal or equitable
interest in any such shares shall be made or
be effective unless all the provisions of this
Bylaw shall have been complied with. Permitted
transferees shall include only the heirs, the
personal representative, spouse or descendants
of the Shareholders or any trust for the sole
benefit of any one or more of these permitted
transferees or any existing Shareholder. First,
the shares shall be offered in writing to
the Corporation and its Shareholders for sale
to them at a price fixed in such offer. The
Corporation may, within ten (10) days after
the receipt of such written offer, purchase
all or any part of such shares by mailing or
delivering a written acceptance to that effect
to the person making such offer. If the
Corporation shall accept such offer in whole
or in part, it shall specify a settlement
date not more than five (5) days after the
date of such acceptance for the delivery to it,
against payment, of the certificates
representing the shares so purchased.
Such certificates shall be delivered duly
endorsed for transfer with signature
guarantee and with all required tax stamps
affixed or with funds for payment of such
taxes. If the Corporation shall not purchase
all of such shares, the Corporation shall, on
behalf of the registered owner promptly notify
its Shareholders in writing, by mail, or
personal delivery that the balance of such
shares is available for purchase by Shareholders
at the price specified in the offer. Each
shareholder may elect to purchase all or any
part of such shares by a written acceptance
to that effect received by the Corporation
within fifteen (15) days after the date of
mailing or delivery of such notification. If the
Shareholders shall elect to purchase in the
aggregate more shares than are available,
the available shares shall be divided
among the accepting Shareholders in
proportion to their registered ownership of
shares of the Corporation, rounding out
fractions of shares, if any, in favor of
smaller Shareholders, and without allocating to
any Shareholder shares which he does not desire
to purchase. Such apportionment shall be made
by the President of the Corporation, and he
shall fix the earliest practicable settlement
date for the completion of the purchase of such
shares and shall notify all interested persons
of the apportionment and the settlement date by
such means as he shall deem sufficient. Promptly
after such settlement, or if no Shareholders
elect to purchase such shares then promptly
after the expiration of the time for such
election, the President shall determine whether
all of the provisions of this Bylaw have
been complied with, and if they have, he shall
declare the unpurchased shares free shares and
shall notify the registered owner of such
determination. For a period of three (3)
months beginning on the first full business
day following the date of such notification
the shares so declared to be free may be sold
by the owner thereof to any person, whether or
not a shareholder, at a price not less than and
on terms no less favorable than the price and
terms in which the shares were offered to the
Corporation and its Shareholders. After such
three (3) month period, such shares shall
again be subject to the restrictions imposed
by this Bylaw. The President's decision
regarding the apportionment among the
Shareholders, the settlement and all
matters relating to the interpretation of this
Bylaw shall be final. In the absence of the
President, such decisions shall be made by the
Senior Vice President, if any, and if not,
then by the Secretary. Shares transferred
to any individual or entity shall remain
subject to the restrictions and provisions of
this section.
Shares that are restricted pursuant to
this section shall be so indicated by
having the following legend on each
certificate:
"Notice is hereby given that the
sale, assignment, transfer, pledge
or other disposition of the shares of
capital stock represented by this
certificate is subject to the transfer
restrictions contained within the Bylaws
of the Corporation, a copy of which is on
file in the Office of the Secretary of the
Corporation."
To the extent this section conflicts with
any Buy-Sell Agreement between the Corporation
and its Shareholders, such Buy-Sell Agreement
shall control.
Section 4.6 The Corporation may issue
Certificates for Common Stock Purchase Options.
Said Certificates shall be issued subject to
terms and conditions set by the Board of
Directors, which shall provide for the terms
for exercising said Certificates by
surrendering said Certificate(s) to exercise
an option to purchase stock. All such
Certificates and the Shares issued pursuant
thereto shall be restricted, unless and
until the Corporation is successful in
procuring a registration for said shares. The
pricing for such shares shall be
determined by the Board of Directors.
ARTICLE V - DEPOSITORIES, SIGNATURES,
SEAL
Section 5.1 Depositories.
All funds of the Corporation shall be
deposited in the name of the Corporation in
such bank(s) or other financial institutions
as the Board of Directors may from time to time
designate and shall be drawn down on checks,
drafts or other orders signed on behalf of
the Corporation by such person(s) as the
Board of Directors may from time to time
designate.
Section 5.2 Contracts and Deeds. All
contracts, deeds and other instruments shall
be signed on behalf of the corporation by
the President or by such other officer(s) or
agent(s) as the Board of Directors may from
time to time by resolution provide. Section
5.3 If the seal is affixed to a document,
the signature of the Secretary shall attest
the seal. The seal and its attestation may be
lithographed or otherwise printed on any
documents and shall have, to the extent
permitted by law, the same force and effect as
if it had been affixed and attested manually.
ARTICLE VI - INDEMNITY
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, including any
action by or in the right of the
Corporation, by reason of the fact that he or
she is or was a Director or Officer of the
Corporation, or is or was serving at the request
of the Corporation as a Director of Officer of
another corporation, partnership, joint
venture, trust or other enterprise, shall be
indemnified by the Corporation against
expenses, including reasonable attorney fees,
judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in
connection with such action, suit or proceeding,
unless that person failed to meet the standards
of conduct set forth in the General Corporation
Law of Delaware.
ARTICLE VII - AMENDMENT OF BYLAWS
The Board of Directors shall have the
power to alter, amend or repeal the Bylaws or
adopt new Bylaws, but any Bylaws adopted by
the Board of Directors may be altered,
amended or repealed and new Bylaws adopted by
the Shareholders. The Shareholders may
prescribe that any Bylaws adopted by them shall
not be altered, amended or repealed by the Board
of Directors. Action by the Directors with
respect to the Bylaws shall be taken by an
affirmative vote of a majority of all of
the Directors then in office. Action by the
Shareholders with respect to the Bylaws shall
be taken by an affirmative vote of a
majority of all shares outstanding and
entitled to vote. Prior to any action under
this Article, seven (7) days written notice
(in accordance with the requirements of
Article II, Section 2.3) shall be given to
the Directors, and ten (10) days written
notice (in accordance with the requirements
of Article I, Section 1.2) shall be given to
the Shareholders.
I, P. Joseph Vertucci, President of
Interactive MultiMedia Publishers, Inc., certify
that the foregoing are the By-Laws of said
Company, adopted May 23, 1996.
_______________________
Dr. P. Joseph Vertucci
President
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
Interactive MultiMedia Publishers,
Inc., a Delaware corporation with its
principal place of business located at
Highland Square Building Suite B5, 733 West
Market Street, Akron, Ohio 44303, acting through
its authorized representative Dr. Joseph
Vertucci, and hereafter referred to as
"Interactive MultiMedia Publishers";
- - and -
Douglas Furth., a individual with his principal
place of business located at 714 Arbor Way,
Aurora, Ohio 44202, and hereafter referred to
as "D.Furth"; Declare as their mutual intent
and purpose as follows. Interactive MultiMedia
Publishers desires to retain D. Furth to
perform corporate services, more fully
described on Exhibit A, and D. Furth agrees to
provide these services more fully described
on Exhibit A and, with both parties intending
to be legally bound, Interactive MultiMedia
Publishers and D. Furth hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Furth will provide consulting services
as described on Exhibit A ("Services").
Following the execution of this Consulting
Services Agreement, and upon the reasonable
request of Interactive MultiMedia Publishers,
D. Furth shall immediately provide
Interactive MultiMedia Publishers with Services
by the employees and / or agents of D. Furth,
rendered in accord with the terms of this
Agreement.
2. D. Furth will provide Services in
accordance with all applicable laws and
regulations, including but not limited to, the
rules of ethical standards of the Securities
and Exchange Commission and the National
Association of Security Dealers, Inc.
3. Individuals who perform Services for
or on behalf of D. Furth for Interactive
MultiMedia Publishers shall be considered the
agents, consultants, contractors or employees of
D. Furth. The relationship between D. Furth
and Interactive MultiMedia Publishers is solely
one of independent contractor. Nothing herein
shall be construed or interpreted to deem the
relationship between Interactive MultiMedia
Publishers, Inc. and D. Furth as an
employeremployeesrelationship. D. Furth and
Interactive MultiMedia Publishers shall each
designate one or more of their employees
as primary contacts (representatives), who
shall be designated at the end of this
Agreement, and authorized to act on their
behalf in all matters relating to this
Agreement.
4. D. Furth shall select personnel to
perform Services for Interactive MultiMedia
Publishers, Inc. who are qualified to perform
the requested services. Interactive MultiMedia
Publishers may reject personnel if professional
qualifications are unsatisfactory to Interactive
MultiMedia Publishers.
5. In consideration for the services to
be performed by D. Furth, Interactive
MultiMedia Publishers agrees to sell to D.
Furth Four Hundred Thousand [400,000] shares
of the common stock of Interactive MultiMedia
Publishers on the terms and conditions as set
forth on the Option Agreement attached hereto
as Exhibit B. Services to be performed by D.
Furth under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
Interactive MultiMedia Publishers securities,
either for D. Furth's own account or as a
broker, nor shall this Agreement and the fee
paid hereunder require D. Furth to make a
market for the securities of Interactive
MultiMedia Publishers.
6. In connection with this agreement,
D.Furth and Interactive MultiMedia Publishers
mutually agree that they will indemnify and
hold harmless each other and such other's
respective directors, officers, employees and
each person, if any, who controls such
other entity within the meaning of Section 15
of the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any Indemnified
Party in connection with the preparation for or
defense of any claim, action, or proceeding,
whether or not resulting in any liability), to
which such Indemnified Party may become subject
under any applicable federal or state law or
otherwise caused by or arising out of, or
allegedly caused by or arising out of, this
Agreement or any transactions covered by this
Agreement or the performance of the services
provided for herein; provided, however, that
such party will not be liable hereunder to the
extent that any loss, claim, damage or liability
is found in a final non-appealable judgment by
a court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall survive
termination of this Agreement.
7. The term of this Agreement shall be for
one year, commencing on October 1, 1996 and
continuing through to September 30, 1997.
8. (a) Interactive MultiMedia Publishers
and D. Furth will not, unless otherwise required
by law, either during or subsequent to the
term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information designated
in writing as secret or confidential by
Interactive MultiMedia Publishers or by D.
Furth without the written consent of the other
party; nor will either party disclose to
anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general public
or recognized as standard practice, whether
acquired or developed during performance of
this Agreement obtained from either party or
obtained prior to contract.
(b) Neither party shall be obligated by
this Section 10 with respect to any information
which is published or becomes publicly
available through no fault of the party
receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the other
party to be proprietary and confidential,
including but not limited to customer, product
and financial information. The parties hereto
agree to avoid the unauthorized dissemination or
publication of such proprietary information by
using the same degree of care with regard to
such information and the same methods to
prevent the publication thereof as each employs
with respect to its own proprietary information
of a similar nature. Upon termination or
expiration of this Agreement, D. Furth will
return to Interactive MultiMedia Publishers
all material, written or descriptive,
including, but not limited to drawings, program
listings, flowcharts, descriptions or other
papers or documents which contain any such
confidential information if requested. (d) The
confidentiality obligation imposed hereunder
shall survive the termination of this
Agreement.
9. All notices, demands, payments and other
communications required or permitted hereunder
shall be in writing and shall be deemed to have
been given on the date delivery is
acknowledged, and shall be made by recognized
courier service or by U.S. Mall, certified,
return receipt requested, to the address of
each party set forth in the heading of the
Agreement, or to such other address as either
party may substitute by written notice to the
other party.
10. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto
and their respective heirs, legal
representatives, successors or assigns. Neither
party shall assign its obligations hereunder
without the express written consent of the
other party.
11. The following Exhibits, annexed hereto or
incorporated herein are hereby made a part of
this Agreement.
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties have affixed
their signatures below and attest to their
adoption of the above terms and the attached
exhibits and expressly acknowledge receipt of
a copy of this complete document.
Douglas G. Furth Interactive
MultiMedia Publishers,
Inc.
By______________________ By____________________
Douglas G.Furth Dr. Joseph Vertucci,
President
Dated :___________ Dated:______________
EXHIBIT A SERVICES
Consulting services to be provided by D.Furth
shall be as follows:
1. Assist and advise from a stragetic
point of view regarding alliance considerations
and objectives of Interactive MultiMedia
Publishers with International Management Group
and alternatives to accomplish such strategic
matters;
2. Assist and advise from a stragetic
point of view with respect to the desirability,
feasibility, structure and terms of proposed
United States Golf Association Phase II
implementation plan and alternatives thereto,
including participating with representatives of
Interactive MultiMedia Publishers in discussions
and negotiations;
3. In the event that Interactive
MultiMedia Publishers shall at some future time
consider any merger or acquisition
transactions related to golf projects, D.
Furth will assist and advise from a financial
point of view with respect to the
feasibility and structure of possible responses
on the part of Interactive MultiMedia Publishers
to any such proposed acquisition or merger
transaction;
4. To develop favorable public relations
around the USGA activity; current and new
technologies, company personnel and executives,
corporate history, past accomplishments and
future goals, sales and earnings, expansion
programs, and management philosophy and other
salient subjects that will enhance the
corporate image of Interactive MultiMedia
Publishers, Inc. such publicity will result
from press presentations and from special
press interviews.
5. Such other advisory services as may
be mutually agreed upon.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or dates)
set forth below, by and between:
Interactive MultiMedia Publishers, Inc., a
Delaware corporation with its principal place of
business located at Highland Square Building
Suite B-5, 733 West Market Street, Akron,
Ohio 44303, acting through its authorized
representative Dr. Joseph Vertucci, and
hereafter referred to as"Interactive MultiMedia
Publishers";
- - and -
Thomas Furth., a individual with his principal
place of business located at 9 East Garfield
Rd., Aurora, Ohio 44202, and hereafter referred
to as "T. Furth"; Declare as their mutual
intent and purpose as follows.
Interactive MultiMedia Publishers desires
to retain T. Furth to perform corporate
services, more fully described on Exhibit A, and
T. Furth agrees to provide these services
more fully described on Exhibit A and, with
both parties intending to be legally bound,
Interactive MultiMedia Publishers and T. Furth
hereby agree to adopt this Consulting
Services Agreement, pursuant to the terms
and conditions set forth below.
1. Furth will provide consulting services
as described on Exhibit A ("Services").
Following the execution of this Consulting
Services Agreement, and upon the reasonable
request of Interactive MultiMedia Publishers,
T. Furth shall immediately provide Interactive
MultiMedia Publishers with Services by the
employees and / or agents of T. Furth,
rendered in accord with the terms of this
Agreement.
2. T. Furth will provide Services in accordance
with all applicable laws and regulations,
including but not limited to, the rules of
ethical standards of the Securities and
Exchange Commission and the National
Association of Security Dealers, Inc.
3. Individuals who perform Services for or on
behalf of T. Furth for Interactive MultiMedia
Publishers shall be considered the
agents, consultants, contractors or employees of
T. Furth. The relationship between T. Furth
and Interactive MultiMedia Publishers is solely
one of independent contractor. Nothing herein
shall be construed or interpreted to deem
the relationship between Interactive MultiMedia
Publishers, Inc. and T. Furth as an employer-
employees relationship. T. Furth and Interactive
MultiMedia Publishers shall each designate one
or more of their employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to act
on their behalf in all matters relating to
this Agreement.
4. T. Furth shall select personnel to perform
Services for Interactive MultiMedia Publishers,
Inc. who are qualified to perform the requested
services. Interactive MultiMedia Publishers may
reject personnel if professional qualifications
are unsatisfactory to Interactive MultiMedia
Publishers.
5. In consideration for the services to be
performed by T. Furth, Interactive MultiMedia
Publishers agrees to sell to T. Furth Hundred
Thousand [100,000] shares of the common stock
of Interactive MultiMedia Publishers on the
terms and conditions as set forth on the Option
Agreement attached hereto as Exhibit B.
Services to be performed by T. Furth under
this Agreement shall be in consideration of the
compensation described above, which shall in no
way be construed as being paid for the purchase
or sale of any of Interactive MultiMedia
Publishers securities, either for T. Furth's own
account or as a broker, nor shall this
Agreement and the fee paid hereunder require T.
Furth to make a market for the securities of
Interactive MultiMedia Publishers.
6. In connection with this agreement, T.Furth
and Interactive MultiMedia Publishers mutually
agree that they will indemnify and hold
harmless each other and such other's
respective directors, officers, employees and
each person, if any, who controls such other
entity within the meaning of Section 15 of the
Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934 (any and all
of whom are referred to as "Indemnified Party")
from and against any and all losses, claims,
damages and liabilities, joint or several
(including all legal or other expenses
reasonably incurred by any Indemnified Party in
connection with the preparation for or defense
of any claim, action, or proceeding, whether or
not resulting in any liability), to which such
Indemnified Party may become subject under any
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or any transactions covered by this Agreement or
the performance of the services provided for
herein; provided, however, that such party
will not be liable hereunder to the extent that
any loss, claim, damage or liability is found
in a final non-appealable judgment by a court to
have resulted from gross negligence or bad faith
in performing the services described herein.
This provision shall survive termination of
this Agreement.
7. The term of this Agreement shall be for one
year, commencing on October 1, 1996 and
continuing through to September 30, 1997. 8. (a)
Interactive MultiMedia Publishers and T. Furth
will not, unless otherwise required by law,
either during or subsequent to the term of
this Agreement, directly or indirectly disclose
or publish to any unauthorized person any
information designated in writing as secret
or confidential by Interactive MultiMedia
Publishers or by T. Furth without the written
consent of the other party; nor will either
party disclose to anyone other than Personnel of
one of the parties, or use in any way other
than in the course of the performance of this
Agreement, any information not known to the
general public or recognized as standard
practice, whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be obligated by this
Section 10 with respect to any information which
is published or becomes publicly available
through no fault of the party receiving such
information under this Agreement; or rightfully
received from third parties; is developed
independently; or is in their possession five
(5) years after the effective date of this
Agreement. Each party is likely to be
exposed to certain business information of the
other party not related to the Services,
which is considered by the other party to be
proprietary and confidential, including but not
limited to customer, product and financial
information. The parties hereto agree to avoid
the unauthorized dissemination or publication
of such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of a
similar nature. (c) Upon termination or
expiration of this Agreement, T. Furth will
return to Interactive MultiMedia Publishers
all material, written or descriptive,
including, but not limited to drawings, program
listings, flowcharts, descriptions or other
papers or documents which contain any such
confidential information if requested.
(d) The confidentiality obligation
imposed hereunder shall survive the
termination of this Agreement.
9. All notices, demands, payments and other
communications required or permitted hereunder
shall be in writing and shall be deemed to have
been given on the date delivery is
acknowledged, and shall be made by recognized
courier service or by U.S. Mall, certified,
return receipt requested, to the address of
each party set forth in the heading of the
Agreement, or to such other address as either
party may substitute by written notice to the
other party.
10. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto
and their respective heirs, legal
representatives, successors or assigns. Neither
party shall assign its obligations hereunder
without the express written consent of the
other party.
11. The following Exhibits, annexed hereto
or incorporated herein are hereby made a part
of this Agreement. f) This Agreement constitutes
the entire Agreement and understanding
between the parties hereto and integrates
all prior negotiations, discussions and
agreements between them. No modifications
of the terms of this Agreement shall be valid
unless in writing and signed by an
authorized representative of each party hereto
or their successors.
IN WITNESS WHEREOF, the parties have affixed
their signatures below and attest to their
adoption of the above terms and the attached
exhibits and expressly acknowledge receipt of
a copy of this complete document.
Thomas Furth Interactive
MultiMedia
Publishers, Inc.
By_____________________ By _________________
Thomas Furth Dr. Joseph Vertucci,
President
Dated:_______ Dated : _________
EXHIBIT A SERVICES
Consulting services to be provided by T.
Furth shall be as follows:
1. Assist and advise from a legal point of
view regarding pending litigation;
2. Assist and advise from a legal point
of view with respect to the desirability,
feasibility, structure and terms of proposed
United States Golf Association Phase
II implementation plan and alternatives
thereto, including participating with
representatives of Interactive MultiMedia
Publishers in discussions and negotiations;
3. In the event that Interactive
MultiMedia Publishers shall at some future time
consider any merger or acquisition
transactions related to golf projects, T.
Furth will assist and advise from a legal
point of view with respect to the feasibility
and structure of possible responses on the part
of Interactive MultiMedia Publishers to any
such proposed acquisition or merger transaction;
4. Such other advisory services as may be
mutually agreed upon.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or dates)
set forth below, by and between: Interactive
MultiMedia Publishers, Inc., a Delaware
corporation with its principal place of
business located at Highland Square Building
Suite B5, 733 West Market Street, Akron, Ohio
44303, acting through its authorized
representative Dr. Joseph Vertucci, and
hereafter referred to as "Interactive MultiMedia
Publishers";
- - and -
Creative Corporate Resources, Inc.,
a corporation with his principal place of
business located at 31 Donna Lane, Commack, New
York 11725, and hereafter referred to as
"Creative";
Declare as their mutual intent and purpose as
follows.
Interactive MultiMedia Publishers desires
to retain Creative to perform corporate
services, more fully described on Exhibit A,
and Creative agrees to provide these services
more fully described on Exhibit A and, with
both parties intending to be legally bound,
Interactive MultiMedia Publishers and Creative
hereby agree to adopt this Consulting
Services Agreement, pursuant to the terms
and conditions set forth below.
1. Creative will provide consulting services as
described on Exhibit A ("Services"). Following
the execution of this Consulting Services
Agreement, and upon the reasonable request
of Interactive MultiMedia Publishers,
Creative shall immediately provide Interactive
MultiMedia Publishers with Services by the
employees and / or agents of Creative,
rendered in accord with the terms of this
Agreement.
2. Creative will provide Services
in accordance with all applicable laws and
regulations, including but not limited to, the
rules of ethical standards of the Securities
and Exchange Commission and the National
Association of Security Dealers, Inc.
3. Individuals who perform Services for or
on behalf of Creative for Interactive
MultiMedia Publishers shall be considered
the agents, consultants, contractors or
employees of Creative. The relationship
between Creative and Interactive MultiMedia
Publishers is solely one of independent
contractor. Nothing herein shall be construed
or interpreted to deem the relationship
between Interactive MultiMedia Publishers, Inc.
and Creative as an employer-employees
relationship. Creative and Interactive
MultiMedia Publishers shall each designate
one or more of their employees as primary
contacts (representatives), who shall be
designated at the end of this Agreement, and
authorized to act on their behalf in all
matters relating to this Agreement.
4. Creative shall select personnel to
perform Services for Interactive MultiMedia
Publishers, Inc. who are qualified to perform
the requested services.Interactive MultiMedia
Publishers may reject personnel if professional
qualifications are unsatisfactory to Interactive
MultiMedia Publishers.
5. In consideration for the services to
be performed by Creative, Interactive MultiMedia
Publishers agrees to sell to Creative Two
Hundred Forty Thousand [240,000] shares of the
common stock of Interactive MultiMedia
Publishers on the terms and conditions as set
forth on the Option Agreement attached hereto as
Exhibit B. Services to be performed by
Creative under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
Interactive MultiMedia Publishers securities,
either for Creative's own account or as a
broker, nor shall this Agreement and the fee
paid hereunder require Creative to make a market
for the securities of Interactive MultiMedia
Publishers.
6. In connection with this agreement, Creative
and Interactive MultiMedia Publishers mutually
agree that they will indemnify and hold
harmless each other and such other's
respective directors, officers, employees and
each person, if any, who controls such other
entity within the meaning of Section 15 of the
Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934 (any and all
of whom are referred to as "Indemnified Party")
from and against any and all losses, claims,
damages and liabilities, joint or several
(including all legal or other expenses
reasonably incurred by any Indemnified Party in
connection with the preparation for or defense
of any claim, action, or proceeding, whether or
not resulting in any liability), to which such
Indemnified Party may become subject under any
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or any transactions covered by this Agreement or
the performance of the services provided for
herein; provided, however, that such party
will not be liable hereunder to the extent that
any loss, claim, damage or liability is found
in a final non-appealable judgment by a court to
have resulted from gross negligence or bad faith
in performing the services described herein.
This provision shall survive termination of this
Agreement.
7. The term of this Agreement shall be for one
year, commencing on October 1, 1996 and
continuing through to September 30, 1997.
8. (a) Interactive MultiMedia Publishers and
Creative will not, unless otherwise required by
law, either during or subsequent to the term
of this Agreement, directly or indirectly
disclose or publish to any unauthorized person
any information designated in writing as secret
or confidential by Interactive MultiMedia
Publishers or by Creative without the written
consent of the other party; nor will either
party disclose to anyone other than Personnel
of one of the parties, or use in any way other
than in the course of the performance of this
Agreement, any information not known to the
general public or recognized as standard
practice, whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be obligated by
this Section 10 with respect to any information
which is published or becomes publicly
available through no fault of the party
receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related
to the Services, which is considered by the
other party to be proprietary and confidential,
including but not limited to customer, product
and financial information. The parties hereto
agree to avoid the unauthorized dissemination or
publication of such proprietary information by
using the same degree of care with regard to
such information and the same methods to
prevent the publication thereof as each employs
with respect to its own proprietary information
of a similar nature.
(c) Upon termination or expiration of this
Agreement, Creative will return to Interactive
MultiMedia Publishers all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality obligation imposed
hereunder shall survive the termination of
this Agreement.
9. All notices, demands, payments and other
communications required or permitted hereunder
shall be in writing and shall be deemed to have
been given on the date delivery is
acknowledged, and shall be made by recognized
courier service or by U.S. Mall, certified,
return receipt requested, to the address of
each party set forth in the heading of the
Agreement, or to such other address as either
party may substitute by written notice to the
other party.
10. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto
and their respective heirs, legal
representatives, successors or assigns. Neither
party shall assign its obligations hereunder
without the express written consent of the
other party.
11. The following Exhibits, annexed hereto or
incorporated herein are hereby made a part of
this Agreement. f) This Agreement constitutes
the entire Agreement and understanding
between the parties hereto and integrates
all prior negotiations, discussions and
agreements between them. No modifications of
the terms of this Agreement shall be valid
unless in writing and signed by an
authorized representative of each party hereto
or their successors.
IN WITNESS WHEREOF, the parties have affixed
their signatures below and attest to their
adoption of the above terms and the attached
exhibits and expressly acknowledge receipt of
a copy of this complete document.
Creative Corporate Resources Interactive
MultiMedia
Inc. Publishers, Inc.
By ___________________ By __________________
Gary Cella Dr. Joseph Vertucci,
President
Dated : ___________ Dated: ______________
EXHIBIT A SERVICES
Consulting services to be provided by Creative
shall be as follows:
1. Assist and advise from a stragetic
point of view regarding implementation of Golf
kiosk project;
2. Assist and advise from a stragetic
point of view with respect to the desirability,
feasibility, structure and terms of proposed
United States Golf Association Phase II
implementation plan and alternatives thereto,
including participating with representatives of
Interactive MultiMedia Publishers in discussions
and negotiations;
3. To develop favorable public relations
around the USGA activity; current and new
technologies, company personnel and executives,
corporate history, past accomplishments and
future goals, sales and earnings, expansion
programs, and management philosophy and
other salient subjects that will enhance
the corporate image of Interactive
MultiMedia Publishers, Inc. such publicity
will result from press presentations and from
special press interviews.
4. Such other advisory services as may
be mutually agreed upon.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or dates)
set forth below, by and between:
Interactive MultiMedia Publishers,
Inc., a Delaware corporation with its
principal place of business located at
Highland Square Building Suite B5, 733 West
Market Street, Akron, Ohio 44303, acting through
its authorized representative Dr. Joseph
Vertucci, and hereafter referred to as
"Interactive MultiMedia Publishers";
- - and -
Market Surveys International,
Inc.,a corporation with his principal place
of business located at 3349 Monroe Avenue,
Suite 346, Rochester, New York 14618, and
hereafter referred to as "MSI";
Declare as their mutual intent and purpose as
follows.
Interactive MultiMedia Publishers desires
to retain MSI to perform corporate services,
more fully described on Exhibit A, and MSI
agrees to provide these services more fully
described on Exhibit A and, with both
parties intending to be legally bound,
Interactive MultiMedia Publishers and MSI
hereby agree to adopt this Consulting
Services Agreement, pursuant to the terms and
conditions set forth below.
1. MSI will provide consulting services as
described on Exhibit A ("Services"). Following
the execution of this Consulting Services
Agreement, and upon the reasonable request of
Interactive MultiMedia Publishers, MSI shall
immediately provide Interactive MultiMedia
Publishers with Services by the employees and
/ or agents of MSI, rendered in accord with the
terms of this Agreement.
2. MSI will provide Services in accordance with
all applicable laws and regulations, including
but not limited to, the rules of ethical
standards of the Securities and Exchange
Commission and the National Association of
Security Dealers, Inc.
3. Individuals who perform Services for or on
behalf of MSI for Interactive MultiMedia
Publishers shall be considered the agents,
consultants, contractors or employees of MSI.
The relationship between MSI and Interactive
MultiMedia Publishers is solely one of
independent contractor. Nothing herein shall be
construed or interpreted to deem the
relationship between Interactive MultiMedia
Publishers, Inc. and MSI as an employer-
employees relationship. MSI and Interactive
MultiMedia Publishers shall each designate one
or more of their employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating to
this Agreement.
4. MSI shall select personnel to perform
Services for Interactive MultiMedia Publishers,
Inc. who are qualified to perform the requested
services. Interactive MultiMedia Publishers may
reject personnel if professional qualifications
are unsatisfactory to Interactive MultiMedia
Publishers.
5. In consideration for the services to be
performed by MSI, Interactive MultiMedia
Publishers agrees to sell to MSI Fifteen
Thousand [15,000] shares of the common stock of
Interactive MultiMedia Publishers on the terms
and conditions as set forth on the Option
Agreement attached hereto as Exhibit B.Services
to be performed by MSI under this Agreement
shall be in consideration of the
compensation described above, which shall in no
way be construed as being paid for the purchase
or sale of any of Interactive MultiMedia
Publishers securities, either for MSI's own
account or as a broker, nor shall this
Agreement and the fee paid hereunder require
MSI to make a market for the securities of
Interactive MultiMedia Publishers.
6. In connection with this agreement, MSI and
Interactive MultiMedia Publishers mutually
agree that they will indemnify and hold
harmless each other and such other's
respective directors, officers, employees and
each person, if any, who controls such
other entity within the meaning of Section 15
of the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other expenses
reasonably incurred by any Indemnified Party in
connection with the preparation for or defense
of any claim, action, or proceeding, whether or
not resulting in any liability), to which such
Indemnified Party may become subject under any
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or any transactions covered by this Agreement or
the performance of the services provided for
herein; provided, however, that such party
will not be liable hereunder to the extent that
any loss, claim, damage or liability is found
in a final non-appealable judgment by a court to
have resulted from gross negligence or bad faith
in performing the services described herein.
This provision shall survive termination of
this Agreement.
7. The term of this Agreement shall be for
one year, commencing on October 1, 1996 and
continuing through to September 30, 1997.
8. (a) Interactive MultiMedia Publishers
and MSI will not, unless otherwise required
by law, either during or subsequent to the
term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information designated
in writing as secret or confidential by
Interactive MultiMedia Publishers or by MSI
without the written consent of the other
party; nor will either party disclose to anyone
other than Personnel of one of the parties, or
use in any way other than in the course of the
performance of this Agreement, any information
not known to the general public or recognized
as standard practice, whether acquired or
developed during performance of this
Agreement obtained from either party or
obtained prior to contract.
(b) Neither party shall be obligated by this
Section 10 with respect to any information which
is published or becomes publicly available
through no fault of the party receiving such
information under this Agreement; or rightfully
received from third parties; is developed
independently; or is in their possession five
(5) years after the effective date of this
Agreement. Each party is likely to be
exposed to certain business information of the
other party not related to the Services,
which is considered by the other party to be
proprietary and confidential, including but not
limited to customer, product and financial
information. The parties hereto agree to avoid
the unauthorized dissemination or publication
of such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of a
similar nature.
(c) Upon termination or expiration of this
Agreement, MSI will return to Interactive
MultiMedia Publishers all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality obligation
imposed hereunder shall survive the
termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date delivery
is acknowledged, and shall be made by
recognized courier service or by U.S. Mall,
certified, return receipt requested, to the
address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10.This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and their
respective heirs, legal representatives,
successors or assigns. Neither party shall
assign its obligations hereunder without the
express written consent of the other party.
11. The following Exhibits, annexed hereto
or incorporated herein are hereby made a part
of this Agreement. f) This Agreement constitutes
the entire Agreement and understanding
between the parties hereto and integrates
all prior negotiations, discussions and
agreements between them. No modifications of
the terms of this Agreement shall be valid
unless in writing and signed by an
authorized representative of each party hereto
or their successors.
IN WITNESS WHEREOF, the parties have affixed
their signatures below and attest to their
adoption of the above terms and the attached
exhibits and expressly acknowledge receipt of
a copy of this complete document.
MSI Corporate Resources Interactive
MutiMedia
Publishers, Inc.
By___________________ By _ ______________
Market Surveys Dr. Joseph Vertucci,
International,Inc. President
Dated:___________ Dated:______________
EXHIBIT A SERVICES
Consulting services to be provided by MSI shall
be as follows:
1. Publicize information regarding IMP's Golf
kiosk project in Market Pulse Journal;
2. Assist and advise from a stragetic point of
view with respect to the desirability,
feasibility, structure and terms of proposed
United States Golf Association Phase II
implementation plan and alternatives thereto,
including participating with representatives of
Interactive MultiMedia Publishers in discussions
and negotiations;
3. To develop favorable public relations
around the USGA activity; current and new
technologies, company personnel and executives,
corporate history, past accomplishments and
future goals, sales and earnings, expansion
programs, and management philosophy and
other salient subjects that will enhance the
corporate image of Interactive MultiMedia
Publishers, Inc. such publicity will result
from press presentations and from special
press interviews.
4. Such other advisory services as may
be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS
ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT
SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE
TRANSFER THIS OPTION EXCEPT AS HEREIN PROVIDED.
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT")
OR UNDER THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement'')
is dated as of October 4, 1996, between
INTERACTIVE MULTIMEDIA PUBLISHERS, INC. (the
"Company"), and (Name of Consultant, Address)
(the "Registered Holder").
WHEREAS, the Company and the Registered
Holder are parties to a Consulting Services
Agreement, dated October 4, 1996, between the
Company and the Registered Holder, which
Consulting Services Agreement provides for the
issuance of options to purchase common stock
of the Company on terms and conditions as more
fully set forth herein: and
WHEREAS, the Company desires to provide for
issuance of option certificates (the
"Option Certificates") representing ( )
Options as compensation under the
aforementioned Consulting Services Agreement on
such terms and conditions as are more fully set
forth herein: and NOW, THEREFORE, in
consideration of the promises and mutual
agreements hereinafter set forth, it is agreed
that:
1. Options/Option Certificates. Each
Option shall entitle the holder (the "Registered
Holder" or in the aggregate, the "Registered
Holders") in whose name the Option Certificate
shall be registered on the books maintained by
the Company to purchase one (1) share of the
Company's $0.001 par value Common Stock (the
Option Share or Option Shares) on exercise
thereof, subject to modification and adjustment
as provided in Section 7. The Option
Certificate representing the right to
purchase Option Shares shall he executed by
the Company's Chief Executive Officer or
President and attested to by the Company's
Secretary and delivered to the Registered
Holder upon execution of this Agreement. Subject
to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in
required whole number denominations to
the Registered Holder (or Registered Holders)
in connection with any transfer or exchange
permitted under this Agreement. Except as
provided in Section 6 hereof, no Option
Certificates shall be issued except:
(i) Option Certificates initially
issued hereunder;
(ii) Option Certificates issued on or after the
initial issuance date, upon the exercise of
any Options, to evidence the unexercised Options
held by the exercising Registered Holder; or
(iii) Option Certificates issued after
the initial issuance date upon any transfer or
exchange of Option Certificates or replacement
of lost or mutilated Option Certificates.
2. Form and Execution of Option
Certificates. The Option Certificates shall be
substantially in the form attached hereto as
Exhibit A (the "Option Certificate"). The
Option Certificates shall be dated as
of the date of their issuance, whether on
initial issuance, transfer or exchange or in
lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates
shall be originally signed by the Company's
Chief Executive Officer or President, attested
to by the Company's Secretary and embossed with
the Company's seal and shall not be valid for
any purpose unless so originally signed and
embossed.
3. Exercise. Subject to the
provisions of Sections 4 and 7, the Options
when evidenced by a Option Certificate and
such other documents as the Company may
require, may be exercised at a price (the
"Exercise Price) of $_.___ (___ Dollars and ___
Hundred and _____-_____thousandths cents) which
is 100% percent of the Over the Counter NASD
automated interdealer quotation system closing
bid price on October 4, 1996 (the "Option
Exercise Price"). Each Option may be exercised
in whole or in part at any time during the
period commencing with the date vested (as
provided in the Agreement the "Initial Exercise
Date") and terminating at 5:00 p.m. Akron, Ohio
time on February 28, 1997 (the "Termination
Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of
business on the date (the "Exercise Date") of
the surrender for exercise of the Option
Certificate. The exercise form, attached hereto
as Exhibit B shall be executed by the
Registered Holder (or Registered Holders) or his
attorney duly authorized in writing and will be
delivered to the Company at its corporate
office together with payment to the order of the
Company in cash or by official bank or
certified check of an amount equal to the
aggregate Exercise Price, in lawful money of
the United States of America. Unless Option
Shares may not be issued as provided herein, the
person entitled to receive the number of Option
Shares deliverable on such exercise shall be
treated for all purposes as the holder of
such Option Shares as of the close of business
on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of
the conditions precedent to the issuance of
Option Shares, set forth in Section 4, have
been satisfied as of the Exercise Date. If
any one of the conditions precedent set
forth in Section 4 are not satisfied as of the
Exercise Date, the Company shall return the
Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or
may hold the same until all such conditions
have been satisfied. The Company shall not be
obligated to issue any fractional share
interests in Option Shares issuable or
deliverable on the exercise of any Option or
scrip or cash therefore and such fractional
shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time
by the same Registered Holder, the number of
full Option Shares which shall be issuable
on exercise thereof shall be computed on the
basis of the aggregate number of full Option
Shares issuable on such exercise.
Once the Company has determined that the funds
are determined to be collected, the Company
shall notify itscommon stock transfer agent who
shall cause a common stock share certificate
representing the exercised Options to be issued.
The Company may deem and treat the Registered
Holder of the Options at any time as the
absolute owner thereof for all purposes, and
thee Company shall not be affected by any
notice to the contrary. The Options shall not
entitle the holder thereof to any of the rights
of shareholders or to any dividend declared
on the Company's Common Stock or Option unless
the holder shall have exercised the Options and
purchased the Option Shares prior to the record
date fixed by the Board of Directors of the
Company for the determination of holders of
Common Stock entitled to such dividend or other
right.
4. Reservation of Shares and Payment of Taxes.
The Company covenants that it will at all
times reserve and have available from its
authorized Common Stock such number of shares as
shall then be issuable on the exercise of all
outstanding Options. The Company covenants that
all Option Shares which shall be so issuable
shall be duly and validly issued, fully paid
and nonassessable and free from all taxes,
liens and charges with respect to such issue.
The Registered Holder(s) shall pay all
documentary, stamp or similar taxes and
other governmental charges that may be
imposed with respect to the issuance of the
Options, or the issuance, transfer or delivery
of the Options or any Option Shares on
exercise of the Options. In the event the
Option Shares are to be delivered in the name
other than the name of the Registered Holder of
the Option Certificate, no such delivery shall
he made unless the person requesting the same
has paid to the Company the amount of any
such taxes or charges incident thereto.
5. Registration of Transfer. The
Option Certificates may be transferred in whole
or in part as provided for herein. Option
Certificates to be transferred shall be
surrendered to the Company at its corporate
office. The Company shall execute, issue and
deliver in exchange therefor the Option
Certificate or Certificates which the holder
making the transfer shall be entitled to
receive.
The Company shall keep transfer books at its
corporate office which shall register Option
Certificates and the transfer thereof. On
due presentment for registration of transfer
of any Option Certificate at such office, the
Company shall execute and the Company shall
issue and deliver to the transferee or
transferees a new Option Certificate or
Certificates representing an equal aggregate
number of Options. All Option Certificates
presented for registration of transfer or
exercise shall be duly endorsed or be
accompanied by a written instrument or
instruments or transferred in a form
satisfactory to the Company and the Company's
counsel. The Company may require payment of a
sum sufficient to cover any tax or other
government charge that may be imposed in
connection therewith.
All Option Certificates so surrendered,
or surrendered for exercise or for exchange in
case of mutilated Option Certificates shall
be promptly canceled by the Company. Prior to
due presentment for registration of transfer
thereof, the Company may treat the
Registered Holder(s) of any Option Certificate
as the absolute owner thereof
(notwithstanding any notations of ownership
or writing thereon made by anyone other
than the Company), and the parties hereto
shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the
Company of evidence satisfactory as to the
ownership of the loss, theft, destruction or
mutilation of any Option Certificate, the
Company shall execute and deliver in lieu
thereof, a new Option Certificate representing
an equal aggregate number of Options. In the
case of loss, theft or destruction of any
Option Certificates, the individual
requesting issuance of a new Option
Certificate shall be required to indemnify
the Company in an amount satisfactory to the
Company. In the event an Option Certificate is
mutilated, such Certificate shall be
surrendered and canceled by the Company prior
to delivery of a new Option Certificate.
Applicants for a new Option Certificate shall
also comply with such other regulations and
pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares.
After each adjustment of the Exercise Price
pursuant to this Section 7, the number of
shares of Option Shares purchasable on the
exercise of such Options shall be the number
derived by dividing such adjusted Exercise
Price into the original Exercise Price. The
Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration
of the Options by exercise or by their
terms, the Company shall issue any shares of
its Common Stock as a share dividend or shall
subdivide the number of outstanding shares of
Common Stock into a greater number of shares,
then, in either of such events, the Exercise
Price per share of Common Stock purchasable
pursuant to the Options in effect at the time of
such action shall be reduced proportionately and
the number of shares purchasable pursuant to the
Options shall be increased proportionately.
Conversely, in the event the Company shall
reduce the number of shares of its outstanding
Common Stock by combining such shares into a
smaller number of shares, then, in such event,
the Exercise Price per share purchasable
pursuant to the Options in effect at the time
of such action shall be increased
proportionately and the number of shares of
Common Stock at that time purchasable
pursuant to the Options shall be decreased
proportionately. Any dividend paid or
distributed on the Common Stock in shares of
Common Stock of the Company shall be treated
as a share dividend pursuant to the preceding
sentence. However, any dividend paid or
distributed on the Common Stock in securities
other than Common Stock of the Company,
regardless if exercisable for or convertible
into Common Stock of the Company, shall not
he treated as a share dividend pursuant to
the penumbra sentence.
(b) In the event the Company, at any time while
the Options shall remain unexpired and
unexercised, shall sell all or substantially all
of its property, and thereafter dissolves,
liquidates or winds up its affairs, then no
provision need be made as part of the terms of
any such sale, dissolution, liquidation or
winding up to allow Option holders to exercise
all or any Options held, in order to receive
the same kind and amount of any share,
securities or assets as may be issuable,
distributable or payable on any such sale,
dissolution, liquidation or winding up with
respect to each share of Common Stock of the
Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise
Price shall be made whereby such price is
adjusted in an amount less than $0.00 or until
the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price
shall be made as a result of or in connection
with: (i) the issuance of Common Stock of the
Company pursuant to options, warrants and share
purchase agreements outstanding or in effect
on the date hereof: (ii) the establishment of
additional option plans, common stock purchase
warrants or security offerings of the Company,
the modification, renewal or extension of any
such plan, warrants or offerings now in effect
or hereafter created, or the issuance of
Common Stock on exercise of any such options
or warrants; or (iii) the issuance of Common
Stock in connection with an acquisition or
merger of any type.
(e) This Option Agreement shall be
incorporated by reference on the Option
Certificates.
Before taking any action which would cause
an adjustment reducing the Exercise Price
below the then par value of the shares of
Common Stock issuable upon exercise of the
Options, the Company will take any corporate
action which any, in the opinion of its
counsel, be necessary in order that the Company
may validly and legally issue fully paid and
nonassessable shares of such Common Stock at
such adjusted Exercise Price.
Upon any adjustment of the Exercise
Price required to be made pursuant to this
Section 7, the Company within thirty (30)
days thereafter shall: (i) notify the
Registered Holder of such adjustment setting
forth the pertinent Exercise Price after such
adjustment and setting forth in reasonable
detail the method of calculation and the facts
upon which such calculation is based; and (ii)
cause to be mailed to each of the Registered
Holder(s) of the Option Certificates written
notice of such adjustment.
8. Reduction in Exercise Price at
Company's Option. In addition to any adjustments
made to the Exercise Price pursuant to
Section 7, the Company's Board of Directors
may, in its
sole discretion, reduce the Exercise Price of
the Options in effect at any time either for
the life of the Options or any shorter period
of time as may be determined by the Company's
Board of Directors. The Company shall notify
the Registered Holder of any such reduction in
the Exercise Price.
"The securities represented by this
certificate have been acquired for investment
and have not been registered under the
Securities Act of 1933, as amended (the
"Act"). The securities may not be sold,
assigned, pledged, hypothecated or otherwise
transferred except pursuant to an effective
registration statement under the Act and
in compliance with applicable state securities
laws, or the Company receives an opinion of
counsel, satisfactory to the Company and
Company counsel, that such registration is not
required and that the sale, assignment,
pledge, hypothecation or transfer is in
compliance with applicable state securities
laws."
10. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder.
This Option shall not be transferred sold,
assigned or hypothecated except that it may be
transferred to any successors of Registered
Holder, and may be assigned in whole or in
part to any person who is an officer or
director of Registered Holder on October 4 1996.
All such transfers, sales, assignments or
hypothecation shall be fully identified to the
Company and the transferor shall execute and
deliver to the Company such certificates,
endorsements and other documents as the Company
or Company's counsel may require.
(b) Transfer of Option Or Option Shares.
The Registered Holder and each
Transferee Holder, agrees that they shall not
sell, assign.pledge, hypothecate or otherwise
transfer the Option or the Option Shares, in
whole or in part, except pursuant to an
effective registration under the Securities Act
of 1933, as amended (the "Act") and in
compliance with applicable state securities
laws, or the Company receives an opinion
of counsel, satisfactory to the Company and
Company counsel, that such registration is not
required and that the sale, assignment,
pledge, hypothecation or transfer is in
compliance with applicable federal and state
securities laws. In order to make any
sale, assignment, pledge or hypothecation, the
transferor must deliver to the Company the
assignment form attached hereto duly
executed and completed, together with
the applicable certificate and payment of all
transfer taxes, if any, payable in connection
therewith. As to the Option, the Company
shall transfer the transferred Option on the
books of the Company and shall execute and
deliver a new Option Certificate of like
tenor to the appropriate assignee(s)
expressly evidencing the right to purchase
the number of Option Shares purchasable
thereunder. As to the Option Shares, the
Company shall cause its duly authorized
common stock transfer agent to transfer the
common stock being transferred.
11. Registration. The Company, upon the one
time written demand (the "Demand Notice") of
the Registered Holder (as defined herein),
agrees to use its best efforts to register, on
one occasion, all or any portion of the Option
Shares, as requested by the Registered Holder.
On such occasion, the Company will use its
best efforts to file a Form S-8 Registration
Statement covering the Registrable
Securities within one-hundred twenty (120)
days after receipt of the Demand Notice and use
its best efforts to have such registration
statement declared effective promptly
thereafter. The demand for registration may
be made at any time prior to the Termination
Date. The Company covenants and agrees to
give written notice of its receipt of any Demand
Notice by Registered Holder to all other
registered Holders of the Options and the
Registrable Securities within thirty days from
the date of the receipt of any such Demand
Notice. In the event of registration the
Company and the Holder(s) shall execute such
documents as may be reasonably required by the
Company and Company counsel to carry out such
registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to
registering the Registrable Securities, but the
Holder(s) shall pay any and all underwriting
and broker-dealer discounts, commissions and
nonaccountable expenses of any underwriter or
brokerdealer selected to sell the Registrable
Securities, together with the expenses of
any legal counsel selected by the Holder(s)
to represent them in connection with the sale
of the Registrable Securities. The Company
shall cause any registration statement filed
pursuant to the demand rights granted hereto
to remain effective for a period of sixteen
months from the date of the latest balance
sheet of the audited financial statements
contained therein on the initial effective date
of such registration statement.
(b) Restriction on Registration. The
Company shall not be obligated to register the
Registrable Securities if such securities may
be sold pursuant to the exemption from
registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company
be obligated to register the Registrable
Securities in any state in which the
principal stockholders, officers. directors or
employees of the Company may in any way be
obligated to escrow any of their shares of
Capital Stock of the Company or in a state in
which the Company may be restricted from
conducting its business in any way, including
but not limited to, qualifying to do
business, become subject to tax, or restricted
from issuing additional securities or incur
restrictions on compensating officers, directors
or employees.
(c) Right To Redeem ln Lieu Of
Registration. The Company may in its sole
discretion, and in lieu of registration of the
Registrable Securities, pay to the Holder(s) an
amount equal to the amount which would be
realized by the Holder(s) upon sale of the
Registrable Securities reduced by the Exercise
Price plus the expenses, fees and
broker/dealer commissions which would be paid by
the Holder(s) in the event of registration and
sale of the Registrable Securities. The
Company may elect to make such payment upon
notice to the Holder(s) within 30 days of
receipt of a notice of Demand Registration.
12. Modification of Agreement. The Company
and the Registered Holder may by supplemental
agreement make any changes or corrections in
this Agreement: (i) that they shall deem
appropriate to cure any ambiguity or to
correct any defective or inconsistent provision
or mistake or error herein contained; or (ii)
that they may deem necessary or desirable and
which shall not adverse{y affect the interest
of the holders of Option Certificates;
provided, however, this Agreement shell not
otherwise be modified, supplemented or altered
in any respect except with the consent in
writing of the Registered Holders of
Option ertificates representing not less than
fifty-one percent (51%) of the Options
outstanding. Additionally, except as provided
in Sections 7 and 8, no change in the
number or nature of the Option Shares
purchasable on exercise of an Option, or
increase of the purchase price therefore shall
be made without the consent in writing of the
Registered Holder or Transferee Holder of the
Option Certificate representing such Option,
other than such changes as are specifically
prescribed or allowed by this Agreement.13.
Notices. All notices, demands, elections
options or requests (however characterized or
described) required or authorized hereunder
shall be deemed sufficient if made in writing
and sent by registered or certified mail,
return receipt requested and postage prepaid, or
by tested telex, telegram or cable to the
principal office of the addressee, and if to
the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such
holder as set forth an the books maintained by
the Company.
13. Notices. All notices, demands, elections
options or requests (however characterized
or described) required or authorized hereunder
shall be deemed sufficient if made in writing
and sent by registered or certified mail,
return receipt requested and postage prepaid,
or by tested telex, telegram or cable to the
principal office of the addressee, and if to
the Registered Holder or Transferee Holder of
an Option Certificate, at the address of
such holder as set forth an the books
maintained by the Company.
14. Binding Agreement. This Agreement
shall be binding upon and inure to the
benefit of the Company, the Registered
Holder, each Transferee Holder and their
respective successors and assigns. Nothing in
this Agreement is intended or shall be
construed to confer upon any other person any
right, remedy or claim or to impose on any other
person any duty, liability or obligation.
15. MSIer Instruments. The parties hereto
shall execute and deliver any and all
such other instruments and shall take any and
all other actions as may be reasonably
necessary to carry out the intention of this
Agreement.
16. Severability. If any provision of this
Agreement shall be held, declared or
pronounced void, voidable, invalid,unenforceable
or inoperative for any reason by any court of
competent jurisdiction, government authority
or otherwise, such holding, declaration or
pronouncement shall not affect adversely any
other provision of this Agreement, which
shall otherwise remain in full force and
effect and be enforced in accordance with its
terms, and the effect of such holding,
declaration or pronouncement shall be limited to
the territory or jurisdiction in which made.
17. Waiver. All the rights and remedies of
either party to this Agreement are cumulative
and not exclusive of any other rights and
remedies as provided by law. No delay or
failure on the part of either party in the
exercise of any right or remedy arising from
the breach of this Agreement will constitute
a waiver of any other right or remedy. The
consent of any party where required hereunder to
act or occurrence shall not be deemed to be
a consent to any other action or occurrence.
18. General Provisions. This Agreement shall be
construed and enforced in accordance with,
and governed by, the laws of the State of
Delaware. This Agreement embodies the entire
agreement and understanding between the parties
and supersedes all prior agreements and
understandings relating to the subject matter
hereof, and this Agreement may not be modified
or amended or any term or provision hereof
waived or discharged except in writing, signed
by the party against whom such amendment,
modification, waiver or discharge is sought to
be enforced. The headings of this Agreement
are for convenience and references only and
shall not limit or otherwise affect the
meaning hereof.Holder
Interactive MultiMedia Publishers, Inc.
By__________________
By _______________________
Name of Holder
Dr. Joseph Vertucci,President
Dated : ___________ Dated : ______________
Exhibit B
Interactive MultiMedia Publishers, Inc.
Incorporated Under the Laws Of the State of
Delaware No. 0 - ______ _________ Common
Stock Purchase Options CERTIFICATE FOR
COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies _____ or
its registered assigns ("Option Holder"),
is the registered owner of the above indicated
number of Options (hereinafter referred to as
the "Option") expiring on February 28, 1997
("Expiration Date"). One (1) Option entitles
the Option Holder to purchase one (1) share
of common stock, $.001 par value ("Share"),
from Interactive MultiMedia Publishers,Inc.,
a Delaware corporation ("Company"), at a
purchase price of One Hundred (100%) percent
of the NASD closing bid price for over- the-
counter securities as of the date vested per
share of Common Stock ("Exercise Price"),
commencing on October 4, l996 and terminating on
the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the
exercise form hereon duly completed and
executed with payment of the Exercise Price at
the office of the Company being 733 West
Market Street, Suite B-5, Akron, Ohio 44303,
subject only to the conditions set forth
herein and in an Option Agreement dated a
of October 4, 1996 (the "Option Agreement")
between the Company and MSI. The Option Holder
may exercise all or any number of Options.
Reference hereby is made to the provisions on
the following pages of this Option
Certificate and to the provisions of the
Option Agreement, all of which are incorporated
by reference in and made a part of this
Option Certificate and shall for all purposes
have the same effect as though fully set forth
at this place.
Upon due presentment for transfer of this
Option Certificate at the office of the
Company, a new Option Certificate or Option
Certificates of like tenor and evidencing in
the aggregate a like number of Options,
subject to any adjustments made in accordance
with the provisions of the Option Agreement,
shall be issued to the transferee in exchange
for this Option Certificate, subject to the
limitations provided in the Option Agreement,
upon payment to the Company of any tax or
governmental charge imposed in connection with
such transfer. he Option Holder of the Options
evidenced by this Option Certificate may
exercise all or any whole number of such
Options during the period and in the manner
stated hereon. The Exercise Price shall be
payable in lawful money of the United States
of America and in cash or by certified or
bank cashier's check payable to the order of
the Company. If, upon exercise of any Options
evidenced by this Option Certificate, the
number of Options exercised shall be less
than the total number of Options so evidenced,
there shall be issued to the Option Holder a
new Option Certificate evidencing the number of
Options not so exercised. No Option may be
exercised after 5:00 P.M. Akron, Ohio Time on
the Expiration Date, and any Option not
exercised by such time shall become void, unless
extended by the Company.
The securities represented by this
certificate have been acquired for investment
and have not been registered under the
Securities Act of 1933, as amended (the "Act").
The securities may not be sold, assigned,
pledged, hypothecated or otherwise transferred
except pursuant to an effective registration
statement under the Act and in compliance with
applicable state securities laws, or the Company
receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such
registration is not required and that the sale,
assignment, pledge, hypothecation or transfer is
in compliance with applicable state securities
laws.
IN WITNESS WHEREOF, the Company has caused
this Option to be signed by its Chief Executive
Officer and by its Secretary, each by an
original of his signature, and has caused an
original impression of its corporate seal to be
imprinted hereon.
Dated : ___________, 1996
_________________ / _________
Signature Title
Seal
_________________ /
__________Signature Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT
IS LOST, STOLEN OR DESTROYED THE COMPANY WILL
REQUIRE ABOND OF INDEMNITY AS A CONDITION TO THE
ISSUANCE OF A REPLACEMENT CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires
to exercise Options evidenced by the within
Option Certificate
TO : INTERACTIVE MULTIMEDIA PUBLISHERS, INC.
The undersigned hereby irrevocably elects
to exercise _____ Options evidenced by the
within Option Certificate for, and to purchase
thereunder, _________ full shares issuable upon
exercise of said Options and delivery of $
____________ and any applicable taxes.
The undersigned requests that certificates
for such shares be issued in the name of:
Please insert Social Security or Tax
Identification Number
______________________________
______________________________
Please print Name and Address
If said number of Options shall not be all
the Options evidenced by the within Option
Certificate, the undersigned requests
that a new Option Certificate evidencing
the Options not so exercised be issued in the
name of and delivered to :
______________________________
Please print Name and Address
Dated
_________
______________________
Signature
Notice: The above signature must correspond with
the name as written upon the face of the within
Option Certificate in every particular, or if
signed by any other person, the Form of
Assignment thereon must be duly executed and
if the certificate representing the shares or
any Option Certificate representing Options not
exercised is to be registered in a name other
than that in which the within Option
Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed : _________________________
Signature must be guaranteed by a commercial
bank or member firm of one of the following
stock exchanges: New York Stock Exchange,
Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received _____________________
Hereby sell, assign and transfer unto:
Please insert Social Security or Tax
Identification Number
____________________
______________________________
Please print Name and Address
If said number of Options shall not be all
the Options evidenced by the within Option
Certificate, the undersigned requests that a
new Option Certificate evidencing the Options
not so exercised be issued in the name of and
delivered to:
______________________________
Dated : _______________
Please print Name and Address
Notice: The above signature must correspond with
the name as written upon the face of the within
Option Certificate in every particular, or if
signed by any other person, the Form of
Assignment thereon must be duly executed and
if the certificate representing the shares or
any Option Certificate representing Options not
exercised is to be registered in a name other
than that in which the within Option
Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed : _________________________
Signature must be guaranteed by a commercial
bank or member firm of one of the following
stock exchanges: New York Stock Exchange,
Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
