As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIVERSICON HOLDINGS CORP.
(Exact name of Registrant as specified in its charter)
Delaware 11-3157259
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
290 Wild Avenue
Staten Island, New York 10314
(Address of principal executive offices) (Zip Code)
CONSULTING AGREEMENT DATED AS OF FEBRUARY 1, 1999 BETWEEN THE
REGISTRANT AND JORGE CASTRO OLMOS
CONSULTING AGREEMENT DATED AS OF FEBRUARY 1, 1999 BETWEEN THE
REGISTRANT AND ALAN ASHBY
CONSULTING AGREEMENT DATED AS OF FEBRUARY 1, 1999 BETWEEN THE
REGISTRANT AND JACK FORSTER
Daniel Catalfumo
President
Diversicon Holdings Corp.
290 Wild Avenue
Staten Island, New York 10314
(Full title of the plan)
(718) 477-2733
Telephone number, including area code, of agent for service
Copy to:
Eric W. Nodiff, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to Amount to be Price Aggregate Registration
be registered Registered Per Share* Offering Price* Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 300,000 Shares $1.00 $300,000 $111.90
==========================================================================================================
</TABLE>
* Estimated solely for purposes of calculating the registration fee.
Calculated in accordance with Rule 457(c) under the Securities Act of 1933
based upon the average of the bid and asked price of Common Stock of
Diversicon Holdings Corp. on the OTC Bulletin Board on March 16, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) The Registration Statement on Form SB-2 of Diversicon Holdings
Corp. (f/k/a Fun Tyme Concepts, Inc.) (the "Company"), File No. 33-
80931-NY.
(b) The Annual Report of the Company on Form 10-KSB for the fiscal
year ended March 31, 1998.
(c) All other reports of the Company filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year ended March 31, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment indicating that all securities offered hereby have
been sold or deregistering all such securities then unsold, shall be deemed to
be incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, subject to
various exceptions and limitations, the Company may indemnify its directors or
officers if such director or officer 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 an action by
or in the right of the Company by reason of the fact that he is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation) against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful, except, in the case of an action by or in the right of the
Company to procure a judgment in its favor, as to any matter which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty. The Company shall indemnify its directors or officers
to the extent that they have been successful on the merits or otherwise in
defense of any such action, suit or proceeding, or in the defense of any claim,
issue or matter therein, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith. In addition, Delaware
law permits a corporation to limit or eliminate the liability of a director to
the corporation and its shareholders for negligent breaches of such directors'
fiduciary duties in certain circumstances.
Article VIII of the by-laws of the Company, which provides for the
indemnification of directors, officers and employees, is as follows:
"Except to the extent expressly prohibited by the Delaware General
Corporation Law, the corporation shall indemnify each person made or threatened
to be made a party to any action or proceeding, whether civil or criminal, by
reason of the fact that such person or such person's testator or intestate is or
was a director, officer or employee of the corporation, or serves or served at
the request of the corporation, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgment, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred in connection with such action or
proceeding, or any appeal therein, provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled, and provided
further that no such
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<PAGE>
indemnification shall be required with respect to any settlement or other
nonadjudicated disposition of any threatened or pending action or proceeding
unless the corporation has given its prior consent to such settlement or other
disposition.
The corporation may advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses, including attorneys'
fees, reasonably incurred in defending any action or proceeding in advance of
the final disposition thereof upon receipt of any undertaking by or on behalf of
such person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person is
entitled, provided, however, that such person shall cooperate in good faith with
any request by the corporation that common counsel be utilized by the parties to
an action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties.
Nothing herein shall limit or affect any right of any person otherwise than
hereunder to indemnification or expenses, including attorneys' fees, under any
statute, rule, regulation, certificate of incorporation, by law, insurance
policy, contract or otherwise.
Anything in these by-laws to the contrary notwithstanding, no elimination
of this by-law, and no amendment of this by-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the 60th day following notice to such person or such action, and
no elimination of or amendment to this by-law shall deprive any person of his or
her rights hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
The corporation shall not, except by elimination or amendment of this
by-law in a manner consistent with the preceding paragraph, take any corporate
action or enter into any agreement which prohibits, or otherwise limits the
rights of any person to, indemnification in accordance with the provisions of
this by-law. The indemnification of any person provided by this by-law shall
continue after such person has ceased to be a director, officer or employee of
the corporation and shall inure to the benefit of such person's heirs,
executors, administrators and legal representatives.
The corporation is authorized to enter into agreements with any of its
directors, officers or employees extending rights to indemnification and
advancement of expenses to such person to the fullest extent permitted by
applicable law, but the failure to enter into any such agreement shall not
affect or limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all directors, officers and employees of the
corporation, by serving as such after the adoption hereof, are acting in
reliance hereon and that the corporation is estopped to contend otherwise.
In case any provision in this by-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or
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<PAGE>
impaired thereby, and the affected provision shall be given the fullest possible
enforcement in the circumstances, it being the intention of the corporation to
afford indemnification and advancement of expenses to its directors, officers
and employees, acting in such capacities or in the other capacities mentioned
herein, to the fullest extent permitted by law.
For purposes of this by-law, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan, and excise taxes assessed on a person with respect to
an employee benefit plan pursuant to applicable law shall be considered
indemnifiable expenses. For purposes of this by-law, the term 'corporation'
shall include any legal successor to the corporation, including any corporation
which acquires all or substantially all of the assets of the corporation in one
or more transactions."
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable. Furthermore, the Company has given certain
undertakings with respect to indemnification in connection with this
Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 - Consulting Agreement dated February 1, 1999 between the
Company and Jorge Castro Olmos.
4.02 - Consulting Agreement dated February 1, 1999 between the
Company and Alan Ashby.
4.03 - Consulting Agreement dated February 1, 1999 between the
Company and Jack Forster.
5.01 - Opinion of Dornbush Mensch Mandelstam & Schaeffer, LLP.
23.01 - Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP
(included in Exhibit 5).
23.02 - Consent of J.H. Cohen.
23.03 - Consent of Richard A. Eisner & Company, LLP.
24.01 - Power of Attorney (included in signature page).
Item 9. Undertakings.
Not applicable.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the 17th day of March,
1999.
DIVERSICON HOLDINGS CORP.
By: /s/ Daniel Catalfumo
--------------------------------
Daniel Catalfumo,
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel Catalfumo his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute may lawfully do or cause to be done by virtue hereof. Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated:
/s/ Daniel Catalfumo President and Chief March 17, 1999
- ------------------------- Executive Officer
Daniel Catalfumo and Director
/s/ Richard Rosso Executive Vice President March 17, 1999
- ------------------------- of Entertainment, Chief
Richard Rosso Operating Officer,
Secretary, Treasurer
(Principal Financial
Officer) and Director
- ------------------------- Executive Vice President
Anthony DiMatteo of Sale and Marketing
and Director
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Exhibit 4.01
Consulting Agreement
THIS AGREEMENT is made and entered into as of this 1st day of February 1999
between Jorge Castro Olmos, an individual residing at Apdo 342, San Jose, Costa
Rica (the "Consultant") and Diversicon Holdings Corp., 290 Wild Avenue, Staten
Island, NY 10314 (the "Company").
WITNESSETH:
WHEREAS, the Consultant provides business consulting services, public relations
and direct marketing advertising; and
WHEREAS, the Company desires to conduct an investor public relations program and
to obtain the benefit of consultant's services as a business adviser and
consultant related thereto; and
WHEREAS, the Consultant is willing to provide such services for the Company.
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. Engagement: Subject to the terms of this Agreement, the Company hereby
engages the Consultant to assist the Company in creating and maintaining an
investor public relations campaign and to render services as a business and
financial adviser and consultant as described in Section 2 of this
Agreement. The Consultant hereby agrees to perform the services as
described in Section 2 of this Agreement subject to the further provisions
of this Agreement.
2. Consulting Services: The Consultant shall provide the following services:
A. The Consultant will provide advice and opinions to the Company
concerning matters in connection with shareholder relations, corporate
reorganizations, capital structure, development of a business plan,
financial matters, capital raising transactions, and general corporate
and strategic options for the Company. The strategic options may
include, without limitation, acquisitions, asset sales or purchases,
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<PAGE>
mergers, consolidations, joint ventures, business combinations,
recapitalizations, spin-off's, and equity and debt financings through
public offerings, private placements, institutional borrowings, or
otherwise.
B. The Consultant will review and analyze all aspects of the Company's
marketing goals and make recommendations on feasibility and
achievement of desired goals.
C. The Consultant will review all of the general information and recent
SEC filings of the Company and write, design, and produce a direct
mail package of up to 100,000 pieces to include an ample number of
corporate profiles so as to allow for one profile for each respondent
to the original mailing. Corporate profiles shall be prepared in
"brokerage style format." The direct mail package and the corporate
profile shall be submitted to the Company for its approval prior to
circulation. All postage for the direct mailing and return mail shall
be paid by the Company. Such direct mailing shall occur no later than
March 31 , 1999.
D. The Consultant will introduce brokers interested in participating and
conduct the necessary due diligence and obtain the required approvals
necessary for those firms to participate. This will include a
preliminary "INSTA-FAX" that will be written and faxed by the
Consultant to its broker-dealer network and other interested brokers.
Upon the Company's request, the Consultant will provide fax and phone
lines to be answered "Diversicon Holdings Corp.," by an account
executive from 9am - 4 p.m., 5 days a week, and provide mailings of
10Q and 10K, as well as all other information upon request of present
or potential shareholders at his expense.
E. The Consultant will be available to the Company to field any calls
from firms and brokers inquiring about the Company.
F. The Consultant shall coordinate due diligence trips for brokers to
acquaint them with the Company.
G. The Consultant, at his own expense, shall conduct "road shows"
introducing the Company to brokers and new brokerage firms.
H. The Consultant shall for an initial period of EIGHT (8) months
commencing upon signing of this agreement conduct mailings to and
telephone follow-up with
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<PAGE>
brokers throughout the United States. Further, Consultant shall for an
initial period of six (6) months commencing upon signing of this
agreement, research, write, and place newsworthy feature articles in
national, regional, local business, investment, and trade
publications.
I. All expenses incurred by the Consultant in providing the foregoing
services shall be borne exclusively by Consultant.
3. Time & Performance: Services to be performed under this Agreement shall
commence upon execution of this Agreement and shall continue until
completion, which is expected to occur within eight months from the date of
this Agreement, except as otherwise provided in this Agreement.
4. Compensation: In exchange for undertaking the services described in Section
2 above and the assignment determined in Section 12 below, the Consultants
shall be entitled to receive from the Company 100,000 shares of common
stock of the Company. Such shares shall be issued under a Registration
Statement of the Company on Form S-8.
5. Representations, Warranties, And Covenants Of Company:
The Company represents and warrants and covenants to the Consultant, each
such representation, warranty and covenant being deemed to be material
that:
A. The Company shall cooperate fully and timely with the Consultant to
perform its obligations under this Agreement.
B. The Company's Board of Directors has duly authorized the execution and
performance of this Agreement by the Company in accordance with
applicable law.
C. The Company shall promptly deliver to the Consultant a complete due
diligence package to include the Company's latest 10K, latest 10Q,
last 6 months of press releases and all other relevant materials,
including but not limited to corporate reports, brochures, etc. DTC
list, full list of shareholders, etc. of the Company.
D. All information supplied by the Company to the Consultant shall be
true, accurate, complete and not misleading, in all material respects;
provided, however, no representation is made as to information
supplied by third parties.
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<PAGE>
E. The Company shall act diligently and promptly in reviewing materials
submitted to it by the Consultant to enhance timely distribution of
the materials and shall inform the Consultant of any inaccuracies
contained therein prior to the projected publication date.
Pre-publication approval, in writing, will be obtained from the
Company by the Consultant for all promotion materials.
6. Independent Contractor: Consultant herein is an independent contractor and
will not act as the Company's agent, nor shall be deemed an employee of the
Company for the purposes of any employee benefit program, or be deemed an
employee of the Company for purposes of income tax withholding, FICA,
taxes, unemployment benefits, workers compensation benefits, or otherwise.
The Consultant shall not enter into any Agreement or incur any obligations
on the Company's behalf, or commit the Company in any manner without the
Company's prior consent. As an independent contractor, the Consultant
understands and agrees that he is solely responsible for the control and
supervision of the means by which the services hereunder are completed.
Such beings, by which the services are accomplished, are subject to the
Consultant's discretion, which discretion must be exercised consistent with
the goal of completing the services on schedule and in accordance with the
terms of this Agreement.
The Consultant also acknowledges and agrees that no training is required by
the Company and no training will be provided by the Company. Any supplies,
which in the opinion of the Consultant may be necessary to perform the
services required, shall be the responsibility of the Consultant.
7. Representations, Warranties, And Covenants of Consultant: The Consultant
represents, warrants, and covenants to the Company, each such
representation, warranty and covenant being deemed to be material, that:
A. All services provided hereunder shall be performed in accordance of
all applicable Federal, State, and local laws and executive orders.
B. The Consultant has not been and is not currently under indictment or
under investigation by any state or federal agency or law enforcement
authority and will promptly notice the Company if the Consultant
should become the subject of such an indictment or investigation.
C. Services under this agreement will be timely performed.
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<PAGE>
D. With respect to all works of authorship created by the Consultant in
the performance of services under this agreement ("Work Product") that
(1) the Consultant's retention by the Company and the creation, use or
distribution of the Work Product does not and will not violate any
non-compete, confidentiality or other contract binding on Consultant
or infringe on any patent, copyright, trade secret, or other
proprietary right of any third party, (2) the Work Product is and will
be original; and (3) the Work Product shall conform strictly and in
all respects to specifications and prevailing standards of quality and
workmanship.
E. The Consultant shall indemnify and hold the Company harmless from any
and all claims of other parties for breach of the foregoing
representations, warranties and covenants.
8. Disclaimer By the Consultant : Other than as set forth in Section 7 above,
the Consultant makes no representation or warranty about the quality of its
services to be provided hereunder. In particular, the Consultant makes no
representation as to the value of its services or that its services will
result in any enhancement to the Company.
9. Termination: If the Company fails to make timely payment of the
compensation, the Consultant shall have the right to terminate any further
performance under this Agreement. In such event, and provided the
Consultant is not in breach or default of his obligations under this
Agreement, all compensation shall become immediately due and payable and/or
deliverable, and the Consultant shall be entitled to receive and retain the
same as liquidated damages, and not as a penalty, in lieu of all other
remedies, the parties acknowledging and agreeing that it would be too
difficult currently to determine the exact extent of the Consultant's
damage, but that the receipt and retention of such compensation is
reasonable present estimate of such damage.
In the event of the Consultant's failure to perform hereunder or other
breach of this Agreement by Consultant, the Company may terminate this
Agreement and be entitled to reimbursement or damages. The terms of
Sections 7E, 11 and 12 of this Agreement shall survive the termination of
this Agreement.
10. Limitation of the Consultant's Liability: If the Consultant fails to
perform the services hereunder, Consultant's entire liability to the
Company shall not exceed the amount of the compensation the Consultant has
received from the Company of Section 4. Expect as provided elsewhere in
this agreement,
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<PAGE>
in no event will the consultant be liable for any indirect, special or
consequential damages nor any claim against the company by any person or
entity arising from or in any way related to this; provided however, the
consultant shall indemnify and shall hold the Company harmless from any and
all claims, causes of action, legal proceedings (Whether civil, criminal or
attorney's fees and costs) arising from any negligent or intentional
misrepresentation made by the Consultant about the Company
11. Ownership of Materials: Work Product created as a result of Consultant's
performance hereunder is "work made for hire" under United States copyright
law and shall be owned exclusively by the Company. If and to the extent
Consultant may, under copyright or other applicable law, be entitled to
claim any ownership interest in the Work Product, the Consultant, on behalf
of himself, his successors and assigns, in consideration for the
compensation paid under Section 4 hereby transfers, grants, conveys,
assigns, and relinquishes exclusively to the Company all of Consultant's
right, title and interest, including the copyright, in and to the Work
Product, Consultant will promptly upon the request of the Company execute
such assignment and other documents and take such other action as the
Company may reasonably request to convey to the Company full ownership of
any and all Work Product. All Work Product shall be delivered to the
Company in hard copy form or, if applicable, via readable electronic media,
as specified by the Company.
12. Confidentiality: Until such time as the same may become publicly known,
other than as a direct or indirect result of the breach of this Agreement
by Consultant or a breach of a confidentiality obligation owed to the
Company by any third party, the Consultant agrees that any information it
receives which is of a confidential or propriety nature will not be
revealed or disclosed to any person or entity, except in the performance of
this Agreement.
Upon completion of the Consultant's services and upon written request of
the Company all materials, original documentation provided will be returned
promptly to the Company. The Consultant will, however, require
Confidentiality Agreements from its own employees and from contractors the
Consultant reasonably believes will come in contact with confidential
material.
The Consultant agrees that it would be difficult to compensate the Company
fully for damages for any violation of the provisions of this Section 13.
Accordingly, the Consultant specifically agrees that the Company shall be
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<PAGE>
entitled to temporary and permanent injunctive relief to enforce this
Section 13 and that such relief may be granted without the necessity of
proving actual damages or posting a bond. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company to
claim and recover damages in addition to injunctive relief.
13. Notices: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by
personal delivery, by certified mail, express mail or by national overnight
courier services. Notices will be deemed given upon the earlier of actual
receipt or three (3) business days after being mailed or delivered to such
courier services.
Notices shall be addressed to the Consultant at:
Jorge Castro Olmos
Apdo 342
San Jose, Costa Rica
And to the Company at:
Diversicon Holdings Corp.
290 Wild Avenue
Staten Island NY10314,
Any notices to be given hereunder will be effective if executed by and sent
by the attorneys for the parties giving such notice, and in connection
therewith the parties and their respective counsel agree that in giving
such notice such counsel may communicate directly in writing with such
parties to the extent necessary to give such notice.
14. Severability: If one or more provisions of this Agreement shall be held
invalid, illegal, or unenforceable in any respect, such provision, to the
extent invalid, illegal, or unenforceable, and provided that such
provisions is not essential to the transaction provided for by this
Agreement, shall not affect any other provision hereof, and the Agreement
shall be construed as if such provision had never been contained herein.
15. Miscellaneous:
A. Governing Law: This Agreement shall be governed by and interpreted
under the laws of the State of New York.
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<PAGE>
B. Parties in Interest: Nothing in this Agreement, expressed or implied,
confers any rights or remedies on any person other than the parties to
this Agreement and their respective successors and assigns, nor does
anything in this Agreement relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor
does any provision herein give any third person any right of
subrogation against any party to this Agreement.
C. Multiple Counterparts: This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
Executed as a sealed instrument as of the day and year first above written.
For the Company:
Diversicon Holdings Corp.
By: /s/ Daniel Catalfumo
-----------------------------
Daniel Catalfumo
President
For the Consultant: /s/ Jorge Castro Olmos
-----------------------------
Name: Jorge Castro Olmos
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Exhibit 4.02
Consulting Agreement
THIS AGREEMENT is made and entered into as of this 1st day of February 1999
between Alan Ashby, an individual residing at 152 Maxwell Road, Beaconsfield,
Bucks UK (the "Consultant") and Diversicon Holdings Corp., 290 Wild Avenue,
Staten Island, NY 10314 (the "Company").
WITNESSETH:
WHEREAS, the Consultant provides business consulting services, public relations
and direct marketing advertising; and
WHEREAS, the Company desires to conduct an investor public relations program and
to obtain the benefit of consultant's services as a business adviser and
consultant related thereto; and
WHEREAS, the Consultant is willing to provide such services for the Company.
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. Engagement: Subject to the terms of this Agreement, the Company hereby
engages the Consultant to assist the Company in creating and maintaining an
investor public relations campaign and to render services as a business and
financial adviser and consultant as described in Section 2 of this
Agreement. The Consultant hereby agrees to perform the services as
described in Section 2 of this Agreement subject to the further provisions
of this Agreement.
2. Consulting Services: The Consultant shall provide the following services:
A. The Consultant will provide advice and opinions to the Company
concerning matters in connection with shareholder relations, corporate
reorganizations, capital structure, development of a business plan,
financial matters, capital raising transactions, and general corporate
and strategic options for the Company. The strategic options may
include, without limitation, acquisitions, asset sales or purchases,
mergers, consolidations, joint ventures, business combinations,
recapitalizations, spin-off's, and equity
- 1 -
<PAGE>
and debt financings through public offerings, private placements,
institutional borrowings, or otherwise.
B. The Consultant will review and analyze all aspects of the Company's
marketing goals and make recommendations on feasibility and
achievement of desired goals.
C. The Consultant will review all of the general information and recent
SEC filings of the Company and write, design, and produce a direct
mail package of up to 100,000 pieces to include an ample number of
corporate profiles so as to allow for one profile for each respondent
to the original mailing. Corporate profiles shall be prepared in
"brokerage style format." The direct mail package and the corporate
profile shall be submitted to the Company for its approval prior to
circulation. All postage for the direct mailing and return mail shall
be paid by the Company. Such direct mailing shall occur no later than
March 31, 1999.
D. The Consultant will introduce brokers interested in participating and
conduct the necessary due diligence and obtain the required approvals
necessary for those firms to participate. This will include a
preliminary "INSTA-FAX" that will be written and faxed by the
Consultant to its broker-dealer network and other interested brokers.
Upon the Company's request, the Consultant will provide fax and phone
lines to be answered "Diversicon Holdings Corp.," by an account
executive from 9am - 4 p.m., 5 days a week, and provide mailings of
10Q and 10K, as well as all other information upon request of present
or potential shareholders at his expense.
E. The Consultant will be available to the Company to field any calls
from firms and brokers inquiring about the Company.
F. The Consultant shall coordinate due diligence trips for brokers to
acquaint them with the Company.
G. The Consultant, at his own expense, shall conduct "road shows"
introducing the Company to brokers and new brokerage firms.
H. The Consultant shall for an initial period of EIGHT (8) months
commencing upon signing of this agreement conduct mailings to and
telephone follow-up with brokers throughout the United States.
Further, Consultant shall for an initial period of six (6)
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<PAGE>
months commencing upon signing of this agreement, research, write, and
place newsworthy feature articles in national, regional, local
business, investment, and trade publications.
I. All expenses incurred by the Consultant in providing the foregoing
services shall be borne exclusively by Consultant.
3. Time & Performance: Services to be performed under this Agreement shall
commence upon execution of this Agreement and shall continue until
completion, which is expected to occur within eight months from the date of
this Agreement, except as otherwise provided in this Agreement.
4. Compensation: In exchange for undertaking the services described in Section
2 above and the assignment determined in Section 12 below, the Consultants
shall be entitled to receive from the Company 100,000 shares of common
stock of the Company. Such shares shall be issued under a Registration
Statement of the Company on Form S-8.
5. Representations, Warranties, And Covenants Of Company: The Company
represents and warrants and covenants to the Consultant, each such
representation, warranty and covenant being deemed to be material that:
A. The Company shall cooperate fully and timely with the Consultant to
perform its obligations under this Agreement.
B. The Company's Board of Directors has duly authorized the execution and
performance of this Agreement by the Company in accordance with
applicable law.
C. The Company shall promptly deliver to the Consultant a complete due
diligence package to include the Company's latest 10K, latest 10Q,
last 6 months of press releases and all other relevant materials,
including but not limited to corporate reports, brochures, etc. DTC
list, full list of shareholders, etc. of the Company.
D. All information supplied by the Company to the Consultant shall be
true, accurate, complete and not misleading, in all material respects;
provided, however, no representation is made as to information
supplied by third parties.
E. The Company shall act diligently and promptly in reviewing materials
submitted to it by the Consultant to enhance timely distribution of
the materials and
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<PAGE>
shall inform the Consultant of any inaccuracies contained therein
prior to the projected publication date. Pre-publication approval, in
writing, will be obtained from the Company by the Consultant for all
promotion materials.
6. Independent Contractor: Consultant herein is an independent contractor and
will not act as the Company's agent, nor shall be deemed an employee of the
Company for the purposes of any employee benefit program, or be deemed an
employee of the Company for purposes of income tax withholding, FICA,
taxes, unemployment benefits, workers compensation benefits, or otherwise.
The Consultant shall not enter into any Agreement or incur any obligations
on the Company's behalf, or commit the Company in any manner without the
Company's prior consent. As an independent contractor, the Consultant
understands and agrees that he is solely responsible for the control and
supervision of the means by which the services hereunder are completed.
Such beings, by which the services are accomplished, are subject to the
Consultant's discretion, which discretion must be exercised consistent with
the goal of completing the services on schedule and in accordance with the
terms of this Agreement.
The Consultant also acknowledges and agrees that no training is required by
the Company and no training will be provided by the Company. Any supplies,
which in the opinion of the Consultant may be necessary to perform the
services required, shall be the responsibility of the Consultant.
7. Representations, Warranties, And Covenants of Consultant: The Consultant
represents, warrants, and covenants to the Company, each such
representation, warranty and covenant being deemed to be material, that:
A. All services provided hereunder shall be performed in accordance of
all applicable Federal, State, and local laws and executive orders.
B. The Consultant has not been and is not currently under indictment or
under investigation by any state or federal agency or law enforcement
authority and will promptly notice the Company if the Consultant
should become the subject of such an indictment or investigation.
C. Services under this agreement will be timely performed.
D. With respect to all works of authorship created by the Consultant in
the performance of services under this agreement ("Work Product") that
(1) the Consultant's
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<PAGE>
retention by the Company and the creation, use or distribution of the
Work Product does not and will not violate any non-compete,
confidentiality or other contract binding on Consultant or infringe on
any patent, copyright, trade secret, or other proprietary right of any
third party, (2) the Work Product is and will be original; and (3) the
Work Product shall conform strictly and in all respects to
specifications and prevailing standards of quality and workmanship.
E. The Consultant shall indemnify and hold the Company harmless from any
and all claims of other parties for breach of the foregoing
representations, warranties and covenants.
8. Disclaimer By the Consultant : Other than as set forth in Section 7 above,
the Consultant makes no representation or warranty about the quality of its
services to be provided hereunder. In particular, the Consultant makes no
representation as to the value of its services or that its services will
result in any enhancement to the Company.
9. Termination: If the Company fails to make timely payment of the
compensation, the Consultant shall have the right to terminate any further
performance under this Agreement. In such event, and provided the
Consultant is not in breach or default of his obligations under this
Agreement, all compensation shall become immediately due and payable and/or
deliverable, and the Consultant shall be entitled to receive and retain the
same as liquidated damages, and not as a penalty, in lieu of all other
remedies, the parties acknowledging and agreeing that it would be too
difficult currently to determine the exact extent of the Consultant's
damage, but that the receipt and retention of such compensation is
reasonable present estimate of such damage.
In the event of the Consultant's failure to perform hereunder or other
breach of this Agreement by Consultant, the Company may terminate this
Agreement and be entitled to reimbursement or damages. The terms of
Sections 7E, 11 and 12 of this Agreement shall survive the termination of
this Agreement.
10. Limitation of the Consultant's Liability: If the Consultant fails to
perform the services hereunder, Consultant's entire liability to the
Company shall not exceed the amount of the compensation the Consultant has
received from the Company of Section 4. Expect as provided elsewhere in
this agreement, in no event will the consultant be liable for any indirect,
special or consequential damages nor any claim against the company by any
person or entity arising from or in any way
- 5 -
<PAGE>
related to this; provided however, the consultant shall indemnify and shall
hold the Company harmless from any and all claims, causes of action, legal
proceedings (Whether civil, criminal or attorney's fees and costs) arising
from any negligent or intentional misrepresentation made by the Consultant
about the Company.
11. Ownership of Materials: Work Product created as a result of Consultant's
performance hereunder is "work made for hire" under United States copyright
law and shall be owned exclusively by the Company. If and to the extent
Consultant may, under copyright or other applicable law, be entitled to
claim any ownership interest in the Work Product, the Consultant, on behalf
of himself, his successors and assigns, in consideration for the
compensation paid under Section 4 hereby transfers, grants, conveys,
assigns, and relinquishes exclusively to the Company all of Consultant's
right, title and interest, including the copyright, in and to the Work
Product, Consultant will promptly upon the request of the Company execute
such assignment and other documents and take such other action as the
Company may reasonably request to convey to the Company full ownership of
any and all Work Product. All Work Product shall be delivered to the
Company in hard copy form or, if applicable, via readable electronic media,
as specified by the Company.
12. Confidentiality: Until such time as the same may become publicly known,
other than as a direct or indirect result of the breach of this Agreement
by Consultant or a breach of a confidentiality obligation owed to the
Company by any third party, the Consultant agrees that any information it
receives which is of a confidential or propriety nature will not be
revealed or disclosed to any person or entity, except in the performance of
this Agreement.
Upon completion of the Consultant's services and upon written request of
the Company all materials, original documentation provided will be returned
promptly to the Company. The Consultant will, however, require
Confidentiality Agreements from its own employees and from contractors the
Consultant reasonably believes will come in contact with confidential
material.
The Consultant agrees that it would be difficult to compensate the Company
fully for damages for any violation of the provisions of this Section 13.
Accordingly, the Consultant specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce this
Section 13 and that such relief may be granted without the necessity of
proving actual damages or posting a
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<PAGE>
bond. This provision with respect to injunctive relief shall not, however,
diminish the right of the Company to claim and recover damages in addition
to injunctive relief.
13. Notices: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by
personal delivery, by certified mail, express mail or by national overnight
courier services. Notices will be deemed given upon the earlier of actual
receipt or three (3) business days after being mailed or delivered to such
courier services.
Notices shall be addressed to the Consultant at:
Alan Ashby
156 Maxwell Road
Beaconsfield, Bucks UK
And to the Company at:
Diversicon Holdings Corp.
290 Wild Avenue
Staten Island NY10314,
Any notices to be given hereunder will be effective if executed by and sent
by the attorneys for the parties giving such notice, and in connection
therewith the parties and their respective counsel agree that in giving
such notice such counsel may communicate directly in writing with such
parties to the extent necessary to give such notice.
14. Severability: If one or more provisions of this Agreement shall be held
invalid, illegal, or unenforceable in any respect, such provision, to the
extent invalid, illegal, or unenforceable, and provided that such
provisions is not essential to the transaction provided for by this
Agreement, shall not affect any other provision hereof, and the Agreement
shall be construed as if such provision had never been contained herein.
15. Miscellaneous:
A. Governing Law: This Agreement shall be governed by and interpreted
under the laws of the State of New York.
B. Parties in Interest: Nothing in this Agreement, expressed or implied,
confers any rights or remedies on any person other than the parties to
this Agreement and their respective successors and assigns, nor does
- 7 -
<PAGE>
anything in this Agreement relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor
does any provision herein give any third person any right of
subrogation against any party to this Agreement.
C. Multiple Counterparts: This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
Executed as a sealed instrument as of the day and year first above written.
For the Company: Diversicon Holdings Corp.
By: /s/ Daniel Catalfumo
--------------------------------
Daniel Catalfumo
President
For the Consultant: /s/ Alan Ashby
-------------------------
Name:
- 8 -
Exhibit 4.03
Consulting Agreement
THIS AGREEMENT is made and entered into as of this 1st day of February 1999
between Jack Forster, an individual residing at c/o Wheawill and Sudworth, Mount
Barrow House, 12 Elizabeth Street, London SW1W 9RB (the "Consultant") and
Diversicon Holdings Corp., 290 Wild Avenue, Staten Island, NY 10314 (the
"Company").
WITNESSETH:
WHEREAS, the Consultant provides business consulting services, public relations
and direct marketing advertising; and
WHEREAS, the Company desires to conduct an investor public relations program and
to obtain the benefit of consultant's services as a business adviser and
consultant related thereto; and
WHEREAS, the Consultant is willing to provide such services for the Company.
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. Engagement: Subject to the terms of this Agreement, the Company hereby
engages the Consultant to assist the Company in creating and maintaining an
investor public relations campaign and to render services as a business and
financial adviser and consultant as described in Section 2 of this
Agreement. The Consultant hereby agrees to perform the services as
described in Section 2 of this Agreement subject to the further provisions
of this Agreement.
2. Consulting Services: The Consultant shall provide the following services:
A. The Consultant will provide advice and opinions to the Company
concerning matters in connection with shareholder relations, corporate
reorganizations, capital structure, development of a business plan,
financial matters, capital raising transactions, and general corporate
and strategic options for the Company. The strategic options may
include, without limitation, acquisitions, asset sales or purchases,
mergers, consolidations, joint ventures, business combinations,
recapitalizations, spin-off's, and equity
- 1 -
<PAGE>
and debt financings through public offerings, private placements,
institutional borrowings, or otherwise.
B. The Consultant will review and analyze all aspects of the Company's
marketing goals and make recommendations on feasibility and
achievement of desired goals.
C. The Consultant will review all of the general information and recent
SEC filings of the Company and write, design, and produce a direct
mail package of up to 100,000 pieces to include an ample number of
corporate profiles so as to allow for one profile for each respondent
to the original mailing. Corporate profiles shall be prepared in
"brokerage style format." The direct mail package and the corporate
profile shall be submitted to the Company for its approval prior to
circulation. All postage for the direct mailing and return mail shall
be paid by the Company. Such direct mailing shall occur no later than
March 31, 1999.
D. The Consultant will introduce brokers interested in participating and
conduct the necessary due diligence and obtain the required approvals
necessary for those firms to participate. This will include a
preliminary "INSTA-FAX" that will be written and faxed by the
Consultant to its broker-dealer network and other interested brokers.
Upon the Company's request, the Consultant will provide fax and phone
lines to be answered "Diversicon Holdings Corp.," by an account
executive from 9am - 4 p.m., 5 days a week, and provide mailings of
10Q and 10K, as well as all other information upon request of present
or potential shareholders at his expense.
E. The Consultant will be available to the Company to field any calls
from firms and brokers inquiring about the Company.
F. The Consultant shall coordinate due diligence trips for brokers to
acquaint them with the Company.
G. The Consultant, at his own expense, shall conduct "road shows"
introducing the Company to brokers and new brokerage firms.
H. The Consultant shall for an initial period of EIGHT (8) months
commencing upon signing of this agreement conduct mailings to and
telephone follow-up with brokers throughout the United States.
Further, Consultant shall for an initial period of six (6)
- 2 -
<PAGE>
months commencing upon signing of this agreement, research, write, and
place newsworthy feature articles in national, regional, local
business, investment, and trade publications.
I. All expenses incurred by the Consultant in providing the foregoing
services shall be borne exclusively by Consultant.
3. Time & Performance: Services to be performed under this Agreement shall
commence upon execution of this Agreement and shall continue until
completion, which is expected to occur within eight months from the date of
this Agreement, except as otherwise provided in this Agreement.
4. Compensation: In exchange for undertaking the services described in Section
2 above and the assignment determined in Section 12 below, the Consultants
shall be entitled to receive from the Company 100,000 shares of common
stock of the Company. Such shares shall be issued under a Registration
Statement of the Company on Form S-8.
5. Representations, Warranties, And Covenants Of Company:
The Company represents and warrants and covenants to the Consultant, each
such representation, warranty and covenant being deemed to be material
that:
A. The Company shall cooperate fully and timely with the Consultant to
perform its obligations under this Agreement.
B. The Company's Board of Directors has duly authorized the execution and
performance of this Agreement by the Company in accordance with
applicable law.
C. The Company shall promptly deliver to the Consultant a complete due
diligence package to include the Company's latest 10K, latest 10Q,
last 6 months of press releases and all other relevant materials,
including but not limited to corporate reports, brochures, etc. DTC
list, full list of shareholders, etc. of the Company.
D. All information supplied by the Company to the Consultant shall be
true, accurate, complete and not misleading, in all material respects;
provided, however, no representation is made as to information
supplied by third parties.
E. The Company shall act diligently and promptly in reviewing materials
submitted
- 3 -
<PAGE>
to it by the Consultant to enhance timely distribution of the
materials and shall inform the Consultant of any inaccuracies
contained therein prior to the projected publication date.
Pre-publication approval, in writing, will be obtained from the
Company by the Consultant for all promotion materials.
6. Independent Contractor: Consultant herein is an independent contractor and
will not act as the Company's agent, nor shall be deemed an employee of the
Company for the purposes of any employee benefit program, or be deemed an
employee of the Company for purposes of income tax withholding, FICA,
taxes, unemployment benefits, workers compensation benefits, or otherwise.
The Consultant shall not enter into any Agreement or incur any obligations
on the Company's behalf, or commit the Company in any manner without the
Company's prior consent. As an independent contractor, the Consultant
understands and agrees that he is solely responsible for the control and
supervision of the means by which the services hereunder are completed.
Such beings, by which the services are accomplished, are subject to the
Consultant's discretion, which discretion must be exercised consistent with
the goal of completing the services on schedule and in accordance with the
terms of this Agreement.
The Consultant also acknowledges and agrees that no training is required by
the Company and no training will be provided by the Company. Any supplies,
which in the opinion of the Consultant may be necessary to perform the
services required, shall be the responsibility of the Consultant.
7. Representations, Warranties, And Covenants of Consultant: The Consultant
represents, warrants, and covenants to the Company, each such
representation, warranty and covenant being deemed to be material, that:
A. All services provided hereunder shall be performed in accordance of
all applicable Federal, State, and local laws and executive orders.
B. The Consultant has not been and is not currently under indictment or
under investigation by any state or federal agency or law enforcement
authority and will promptly notice the Company if the Consultant
should become the subject of such an indictment or investigation.
C. Services under this agreement will be timely performed.
D. With respect to all works of authorship created by the Consultant in
the performance of services under this
- 4 -
<PAGE>
agreement ("Work Product") that (1) the Consultant's retention by the
Company and the creation, use or distribution of the Work Product does
not and will not violate any non-compete, confidentiality or other
contract binding on Consultant or infringe on any patent, copyright,
trade secret, or other proprietary right of any third party, (2) the
Work Product is and will be original; and (3) the Work Product shall
conform strictly and in all respects to specifications and prevailing
standards of quality and workmanship.
E. The Consultant shall indemnify and hold the Company harmless from any
and all claims of other parties for breach of the foregoing
representations, warranties and covenants.
8. Disclaimer By the Consultant: Other than as set forth in Section 7 above,
the Consultant makes no representation or warranty about the quality of its
services to be provided hereunder. In particular, the Consultant makes no
representation as to the value of its services or that its services will
result in any enhancement to the Company.
9. Termination: If the Company fails to make timely payment of the
compensation, the Consultant shall have the right to terminate any further
performance under this Agreement. In such event, and provided the
Consultant is not in breach or default of his obligations under this
Agreement, all compensation shall become immediately due and payable and/or
deliverable, and the Consultant shall be entitled to receive and retain the
same as liquidated damages, and not as a penalty, in lieu of all other
remedies, the parties acknowledging and agreeing that it would be too
difficult currently to determine the exact extent of the Consultant's
damage, but that the receipt and retention of such compensation is
reasonable present estimate of such damage.
In the event of the Consultant's failure to perform hereunder or other
breach of this Agreement by Consultant, the Company may terminate this
Agreement and be entitled to reimbursement or damages. The terms of
Sections 7E, 11 and 12 of this Agreement shall survive the termination of
this Agreement.
10. Limitation of the Consultant's Liability: If the Consultant fails to
perform the services hereunder, Consultant's entire liability to the
Company shall not exceed the amount of the compensation the Consultant has
received from the Company of Section 4. Expect as provided elsewhere in
this agreement, in no event will the consultant be liable for any indirect,
special or consequential damages nor any claim against the
- 5 -
<PAGE>
company by any person or entity arising from or in any way related to this;
provided however, the consultant shall indemnify and shall hold the Company
harmless from any and all claims, causes of action, legal proceedings
(Whether civil, criminal or attorney's fees and costs) arising from any
negligent or intentional misrepresentation made by the Consultant about the
Company
11. Ownership of Materials: Work Product created as a result of Consultant's
performance hereunder is "work made for hire" under United States copyright
law and shall be owned exclusively by the Company. If and to the extent
Consultant may, under copyright or other applicable law, be entitled to
claim any ownership interest in the Work Product, the Consultant, on behalf
of himself, his successors and assigns, in consideration for the
compensation paid under Section 4 hereby transfers, grants, conveys,
assigns, and relinquishes exclusively to the Company all of Consultant's
right, title and interest, including the copyright, in and to the Work
Product, Consultant will promptly upon the request of the Company execute
such assignment and other documents and take such other action as the
Company may reasonably request to convey to the Company full ownership of
any and all Work Product. All Work Product shall be delivered to the
Company in hard copy form or, if applicable, via readable electronic media,
as specified by the Company.
12. Confidentiality: Until such time as the same may become publicly known,
other than as a direct or indirect result of the breach of this Agreement
by Consultant or a breach of a confidentiality obligation owed to the
Company by any third party, the Consultant agrees that any information it
receives which is of a confidential or propriety nature will not be
revealed or disclosed to any person or entity, except in the performance of
this Agreement.
Upon completion of the Consultant's services and upon written request of
the Company all materials, original documentation provided will be returned
promptly to the Company. The Consultant will, however, require
Confidentiality Agreements from its own employees and from contractors the
Consultant reasonably believes will come in contact with confidential
material.
The Consultant agrees that it would be difficult to compensate the Company
fully for damages for any violation of the provisions of this Section 13.
Accordingly, the Consultant specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce this
Section 13 and that such relief may be granted
- 6 -
<PAGE>
without the necessity of proving actual damages or posting a bond. This
provision with respect to injunctive relief shall not, however, diminish
the right of the Company to claim and recover damages in addition to
injunctive relief.
13. Notices: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by
personal delivery, by certified mail, express mail or by national overnight
courier services. Notices will be deemed given upon the earlier of actual
receipt or three (3) business days after being mailed or delivered to such
courier services.
Notices shall be addressed to the Consultant at:
Jack Forster
c/o Wheawill and Sudworth
Mount Barrow House
12 Elizabeth Street
London SW1W 9RB
And to the Company at:
Diversicon Holdings Corp.
290 Wild Avenue
Staten Island NY10314,
Any notices to be given hereunder will be effective if executed by and sent
by the attorneys for the parties giving such notice, and in connection
therewith the parties and their respective counsel agree that in giving
such notice such counsel may communicate directly in writing with such
parties to the extent necessary to give such notice.
14. Severability: If one or more provisions of this Agreement shall be held
invalid, illegal, or unenforceable in any respect, such provision, to the
extent invalid, illegal, or unenforceable, and provided that such
provisions is not essential to the transaction provided for by this
Agreement, shall not affect any other provision hereof, and the Agreement
shall be construed as if such provision had never been contained herein.
15. Miscellaneous:
A. Governing Law: This Agreement shall be governed by and interpreted
under the laws of the State of New York.
- 7 -
<PAGE>
B. Parties in Interest: Nothing in this Agreement, expressed or implied,
confers any rights or remedies on any person other than the parties to
this Agreement and their respective successors and assigns, nor does
anything in this Agreement relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor
does any provision herein give any third person any right of
subrogation against any party to this Agreement.
C. Multiple Counterparts: This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
Executed as a sealed instrument as of the day and year first above written.
For the Company: Diversicon Holdings Corp.
By: /s/ Daniel Catalfumo
------------------------------
Daniel Catalfumo
President
For the Consultant: /s/ Jack Forster
---------------------------------
Name:
- 8 -
Exhibit 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
March 17, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Diversicon Holdings Corp.
Registration Statement on Form S-8
Gentlemen:
We have been requested by Diversicon Holdings Corp., a Delaware corporation
(the "Company"), to furnish you with our opinion as to the matters hereinafter
set forth in connection with the above-captioned registration statement (the
"Registration Statement") covering an aggregate of 300,000 shares of Common
Stock of the Company issuable pursuant to the agreements listed on the cover
page of the Registration Statement (the "Plans").
In connection with this opinion, we have examined the Registration
Statement and the Company's Certificate of Incorporation and By-laws, the Plans,
copies of the records of corporate proceedings of the Company, and such other
documents as we have deemed necessary to enable us to render the opinion
hereinafter expressed.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Plans, will be legally issued, fully
paid and non-assessable.
We render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York and the internal corporate law of the
State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption "Legal
Opinions" in the prospectus included in the Registration Statement.
Very truly yours,
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
Exhibit 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 being filed with the Securities and Exchange Commission of
our report, dated June 11, 1998 (except as set forth therein), on the
consolidated financial statements of Diversion Hold ings Corporation (formerly
Fun Tyme Concepts, Inc.) and subsidiaries (the "Company") as of and for the year
ended March 31, 1998, which appears in the Company's Annual Report on Form
10-KSB for the fiscal year ended March 31, 1998, and contains an explanatory
para graph with respect to the Company's ability to continue as a going concern.
J. H. COHN LLP
Roseland, New Jersey
March 9, 1999
Exhibit 23.03
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of our report dated April 30, 1997 (with respect to Notes A and D,
May 21, 1997), on our audit of the consolidated financial statements of Fun
Tyme Concepts, Inc. (now known as Diversicon Holdings Corp.) for the year ended
March 31, 1997 included in the annual report on Form 10-KSB of Fun Tyme
Concepts, Inc. (now known as Diversicon Holdings Corp.) for the year ended March
31, 1998.
Richard A. Eisner & Company, LLP
New York, New York
March 4, 1999
