EXHIBIT 10.19
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of June 8, 2000 is
entered into by and between EQUIDYNE CORPORATION, A DELAWARE corporation (herein
referred to as the "Company") and AMERICAN FINANCIAL COMMUNICATIONS, a sole
proprietorship (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly held corporation with its common stock
traded on the OTC Bulletin Board; and
WHEREAS, Consultant has experience in the area of investor communications
and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning investor relations and to
represent the company in investors' communications and public relations with
existing shareholders, brokers, dealers and other investment professionals as to
the Company's current and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to
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act in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing on June 8, 2000 and ending on
December 31, 2000.
2. Duties of Consultant. The Consultant agrees that it will generally
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provide the following specified consulting services through its officers and
employees during the term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness during the
term of this Agreement of the Company's plans, strategy and personnel, as they
may evolve during such period, and advise and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and advise the Company with respect to its (i) stockholder and
investor relations, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to investor/stockholder
relations and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred to the
Consultant by the Company); preparing press releases for the Company with the
Company's involvement and approval or reviewing press releases, reports and
other communications with or to shareholders, the investment community and the
general public; advising with respect to the timing, form, distribution and
other matters related to such releases, reports and communications; and
consulting with respect to corporate symbols, logos, names, the presentation of
such symbols, logos and names, and other matters relating to corporate image;
(f) Upon the Company's approval, disseminate information regarding the
Company to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of the Company's plans, goals and activities, and assist the Company
in preparing for press conferences and other forums involving the media,
investment professionals and the general investment public;
(h) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the purpose of
advising the Company of the investment community implications thereof; and,
(i) Otherwise perform as the Company's financial relations and public
relations consultant.
3. Allocation of Time and Energies. The Consultant hereby promises to
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perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and investor public relations and communications activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required, Consultant and the Company agree that Consultant will perform the
duties set forth hereinabove in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the effort to be
expended and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur upon and shortly after, and in any
event, within two months of the effectiveness of this Agreement. It is
explicitly understood that the price of the Company's common stock, nor the
trading volume of the Company's common stock hereunder will in no way measure
Consultant's performance of its duties. It is also understood that the Company
is entering into this Agreement with American Financial Communications, Inc.
("AFC"), a corporation and not any individual member of AFC, and with such,
Consultant will not be deemed to have breached this Agreement if any member,
officer or director of AFC leaves the firm or dies or becomes physically unable
to perform any meaningful activities during the term of the Agreement, provided
the Consultant otherwise performs its obligations under this Agreement. The
Company shall have the right to request that any of Consultant's employees or
outside independent contractors, if any, not perform any services for the
Company contemplated hereunder on behalf of Consultant.
4. Remuneration As full and complete compensation for services described
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in this Agreement, the Company shall compensate AFC (herein referred to as
"Consultant") as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the Consultant a
"Commencement Bonus" payable in the form of an option to purchase 125,000 shares
of the Company's Common Stock ("Options") at a price of four dollars per share
for a period of two years. This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement. The Company
understands and agrees that Consultant has foregone significant opportunities to
accept this engagement and that the Company derives substantial benefit from the
execution of this Agreement and the ability to announce its relationship with
Consultant. The option to purchase shares of stock issued as a Commencement
Bonus, therefore, constitute payment for Consultant's agreement to represent the
Company and are a nonrefundable, non-apportionable, and non-ratable retainer;
such Options are not a prepayment for future services. If the Company decides to
terminate this Agreement prior to December 31, 2000 for any reason whatsoever,
it is agreed and understood that Consultant will not be requested or demanded by
the Company to return any of the Options issued to it hereunder. 62,500 options
issued pursuant to this Agreement shall be issued in the name of Richard
Carpenter and 62,500 options issued pursuant to this Agreement shall be issued
in the name of Jeffery Lamberson (Richard Carpenter and Jeffery Lamberson
hereinafter referred to as "Consultants"). The Company agrees that all shares
issuable under the Options hereunder shall carry "piggyback registration rights"
whereby such shares will be included in the next appropriate registration
statement filed by the Company. The Company further agrees that it will use its
best efforts to file a registration statement by December 31, 2000. Consultants
agree that they will neither sell nor transfer during the term of this Agreement
any of the 125,000 shares of the Company's stock underlying the Options issued
to Consultants hereunder.
4.2 Consultants acknowledge that the shares of Common Stock
underlying the Options are to be issued pursuant to this Agreement
(collectively, the "Shares") have not been registered under the Securities Act
of 1933, as amended, and accordingly are "restricted securities" within the
meaning of Rule 144 of the Act. As such, the Shares may not be resold or
transferred unless the Company has received an opinion of counsel reasonably
satisfactory to the Company that such resale or transfer is exempt from the
registration requirements of that Act. In addition, Consultant agrees that,
during the term hereof neither it, nor its officers or affiliates shall directly
or indirectly, acquire or dispose of any securities of Company without the
Company's written consent.
4.3 In connection with the acquisition of Shares hereunder, the
Consultants represent and warrant to the Company as follows:
(a) Consultants acknowledge that the Consultants have been
afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company concerning an
investment in the Shares, and any additional information, which the Consultants
have requested.
(b) Consultants' investment in restricted securities is
reasonable in relation to the Consultants' net worth, which is in excess of ten
(10) times the Consultants' cost basis in the Shares. Consultants have had
experience in investments in restricted and publicly traded securities, and
Consultants have had experience in investments in speculative securities and
other investments, which involve the risk of loss of investment. Consultants
acknowledge that an investment in the Shares is speculative and involves the
risk of loss. Consultants have the requisite knowledge to assess the relative
merits and risks of this investment without the necessity of relying upon other
advisors, and Consultants can afford the risk of loss of his entire investment
in the Shares. Consultants are (i) accredited investors, as that term is defined
in Regulation D promulgated under the Securities Act of 1933, and (ii) a
purchaser described in Section 25102 (f) (2) of the California Corporate
Securities Law of 1968, as amended.
(c) Consultants are acquiring the Shares for the Consultants' own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities laws.
5. Expenses. Consultant agrees to pay for all its expenses (phone,
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mailing, labor, etc.) incurred pursuant to this Agreement, other than
extraordinary items (travel required by/or specifically requested by the
Company, luncheons or dinners to large groups of investment professionals, mass
faxing to a sizable percentage of the Company's constituents, investor
conference calls, print advertisements in publications, etc.) approved by the
Company prior to its incurring an obligation for reimbursement. All expenses in
excess of $500 will be pre-approved in writing by the Company.
6. Indemnification. The Company warrants and represents that all oral
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communications, written documents or materials furnished to Consultant by the
Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees as
incurred with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials not designated by
the Company to the Consultant as "confidential" or "Company private", excluding
any such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company.
7. Representations. Consultant represents that it is not required to
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maintain any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant acknowledges
that, to the best of its knowledge, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant. Consultant acknowledges that, to the
best of its knowledge, Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving any violation
of the SEC or securities laws. Consultant further acknowledges that it is not a
securities Broker Dealer or a registered investment advisor. Company
acknowledges that, to the best of its knowledge, that it has not violated any
rule or provision of any regulatory agency having jurisdiction over the Company.
Company acknowledges that, to the best of its knowledge, Company is not the
subject of any investigation, claim, decree or judgment involving any violation
of the SEC or securities laws.
8. Legal Representation. The Company acknowledges that it has been
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represented by independent legal counsel in the preparation of this Agreement.
Consultant represents that they have consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent the Consultant deemed
necessary.
9. Status as Independent Contractor. Consultant's engagement pursuant to
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this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement shall
represent or hold itself out to be the employer or employee of the other.
Consultant further acknowledges the consideration provided herein above is a
gross amount of consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be made
or provided for by Consultant and the Company shall have no responsibility or
duties regarding such matters. Neither the Company nor the Consultant possesses
the authority to bind each other in any agreements without the express written
consent of the entity to be bound.
10. Attorney's Fee. If any legal action or any arbitration or other
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proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs in
connection with that action or proceeding, in addition to any other relief to
which it or they may be entitled.
11. Waiver. The waiver by either party of a breach of any provision of
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this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
12. Notices. All notices, requests, and other communications hereunder
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shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
To the Company: Equidyne Corporation
Michael T. Pieniazek, EVP and CFO
238 Littleton Road
Westford, MA 01886
To the Consultant: American Financial Communications
Richard Carpenter & Jeffery Lamberson, Proprietors
495 Miller Avenue, 3rd Floor
Mill Valley, CA 94941
It is understood that either party may change the address to which notices
for it shall be addressed by providing notice of such change to the other party
in the manner set forth in this paragraph.
13. Choice of Law, Jurisdiction and Venue. This Agreement shall be
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governed by, construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts. The parties agree that Middlesex County, MA will
be the venue of any dispute and will have jurisdiction over all parties.
14. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by binding
arbitration in California, in accordance with the applicable rules of the
American Arbitration Association, and judgment on the award rendered by the
arbitrators) shall be binding on the parties and may be entered in any court
having jurisdiction thereof. The provisions of Title 9 of Part 3 of the
California Code of Civil Procedure, including section 1283.05, and successor
statutes, permitting expanded discovery proceedings shall be applicable to all
disputes that are arbitrated under this paragraph.
15. Complete Agreement. This Agreement contains the entire agreement of
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the parties relating to the subject matter hereof. This Agreement and its terms
may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
AGREED TO:
"Company" EQUIDYNE CORPORATION
Date: By:
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Michael T. Pieniazak,
EVP & CFO, Its Duly Authorized Officer
"Consultant" AMERICAN FINANCIAL COMMUNICATIONS
Date: By:
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Richard Carpenter Jeffery Lamberson