As filed with the Securities Exchange Commission on November 29, 2001
Registration No. 333-56592
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ENTERTAINMENT TECHNOLOGIES and PROGRAMS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 87-521389
- ------------------------------- ------------------------------------
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
17300 Saturn Lane; Suite 111
Houston, TX 77062
(281) 486-6115
-----------------------------------------------------
(Address, Including Zip Code, and
Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
CONSULTING AGREEMENTS
- ------------------------------------------------------------------------------
(Full Title of the Plan)
George C. Woods
17300 Saturn Lane; Suite 111
Houston, TX 77062
(281) 486-6115
-----------------------------------------------------
(Name, Address, Including Zip Code and
Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Robert L. Sonfield, Jr.
Sonfield and Sonfield
Attorneys at Law
770 South Post Oak Lane, Suite 435
Houston, Texas 77056
(713) 877-8333
CALCULATION OF REGISTRATION FEE
- ------------------- ------------- ------------------ ----------------- --------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
To be registered registered share (1) price (2) registration fee
- ------------------- ------------- ------------------ ----------------- --------------
Common Stock,
$.001 par value 171,429 $0.06 $10,285.74 $3.09
- ------------------- ------------- ------------------ ----------------- --------------
(1)(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933. Based on the
average of the high and low prices per share of Common Stock of the Registrant
as reported on the Over-The-Counter Electronic Bulletin Board market on
November 25, 2001.
INTRODUCTION
This Registration Statement on Form S-8 is filed by Entertainment Technologies
and Programs, Inc. (the "Company" or the "Registrant"), relating to 171,429
shares of its Common Stock, par value $.001 per share (the "Common Stock"),
issuable to the consultants of the Registrant as set forth herein to the
following named persons:
NAME NUMBER OF SHARES AGREEMENT DATE
- ---- ---------------- ------------------------- ---------------
Kevin P. Regan 35,714 Consulting Agreement October 10, 2001
Robert E. Chamberlain, Jr. 35,715 Consulting Agreement October 10, 2001
J. Mark Willis 100,000 Consulting Agreement October 10, 2001
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Plan.
A copy of the Consulting Agreements are attached hereto and
incorporated herein by reference.
Item 2. Registrant Information and Employee Plan Annual Information.
Available Information.
Copies of the Consulting Agreements, 10-KSB Annual Report of the
Registrant for the fiscal year ended September 30, 2000,
all 10-QSB Quarterly Reports, any Current Reports and/or proxy or
information statements filed with the Securities and
Exchange Commission (the "Commission") during the past twelve months
have been provided to the Plan participants.
The Registrant also undertakes to furnish, without charge, to any
such participant or person purchasing any of the
securities registered hereby, copies of all of such documentation.
Requests should be directed to George C. Woods,
President, at the address and telephone appearing on the Cover Page
of this Registration Statement.
Additional information regarding the Registrant may be reviewed at
the Commission web site at www.sec.gov in the EDGAR Archives.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Registrant with the Commission are incorporated herein by
reference and made a part hereof:
(a) The Registrant's latest Annual Report on Form 10-KSB for
the fiscal year ended September 30, 2000;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange
Act") since the end of the fiscal year covered by the
Annual Report referred to in (i) above; and
(c) The description of Registrant's Common Stock contained in
its Registration Statement on Form 10, including any
amendment or report filed, for the purpose of updating
such description.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to
the filing of a post-effective amendment hereto, which
indicates that all securities offered hereunder have been sold or
which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the Delaware General Corporation Law, a corporation has the
power to indemnify any person who is made a party to any
civil, criminal, administrative or investigative proceeding, other
than an action by or in the right of the corporation,
by reason of the fact that such person was a director, officer,
employee or agent of the corporation, against expenses,
including reasonable attorneys' fees, judgments, fines and amounts
paid in settlement of any such actions; provided,
however, in any criminal proceeding, the indemnified person shall
have had no reason to believe the conduct was committed
was unlawful.
In addition, the Registrant's by-laws provide that the Registrant
will indemnify the directors and officers from claims,
liabilities, damages, expenses, losses, costs, penalties or amounts
paid in settlement incurred by any director or officer
arising out of his capacity as a director or officer of the
Registrant to the maximum extent provided by applicable law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Exhibit Description
----- -------------------
5.1 Legal Opinion of Sonfield and Sonfield
23.1 Consent of Sonfield and Sonfield (contained in Exhibit 5.1)
23.2 Consent of Ham, Langston and Brezina, L.L.P. (independent auditors)
24.1 Power of Attorney (contained on signature page hereto)
99.61 Consulting Agreement with Genesis Financial Group, L.L.C.
99.62 Consulting Agreement with J. Mark Willis
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) 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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in
the effective registration statement;
(iii)To include any material information with respect
to the plan of distribution not previously disclosed
in the registration statement or any material
change to such information in the registration
statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that
it meets all 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 Houston, Texas, on
November 26, 2001.
ENTERTAINMENT TECHNOLOGIES and PROGRAMS, INC.
By: /s/ George C. Woods
----------------------------------------
George C. Woods, Chief
Executive Officer, President and
Chief Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints Mr. George C. Woods, as
his attorneys-in-fact and agent, with full power of
substitution and resubstitution for him in any and all capacities, to sign any
and all amendments or post-effective amendments to
this Registration Statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact and
agent full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming that such
attorney-in-fact and agent or his substitute may 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 below by the following
persons in the capacities indicated on November 12, 2001.
Signature Capacity Date
- --------- -------- ----
/s/ James D. Butcher Director November 26, 2001
- --------------------
James D. Butcher
/s/ Jack Nolan Director November 26, 2001
- -------------------
Jack Nolan
/s/ Mark Stutzman Director November 26, 2001
- ----------------
Mark Stutzman
/s/ George C. Woods Director, Chief Executive Officer, November 26, 2001
- ------------------- President and Chief Financial Officer
George C. Woods
/s/ Gabriel Albert Martin Director November 26, 2001
- -------------------------
Gabriel Albert Martin
EXHIBIT INDEX
Exhibit
Number Exhibit Description
- ------ -------------------
5.1 Legal Opinion of Sonfield and Sonfield
23.1 Consent of Sonfield and Sonfield (contained in Exhibit 5.1)
23.2 Consent of Ham, Langston and Brezina, L.L.P. (independent auditors)
24.1 Power of Attorney (contained on signature page hereto)
99.61 Consulting Agreement with Genesis Financial Group, L.L.C.
99.62 Consulting Agreement with J. Mark Willis
EXHIBIT 5.1
LETTERHEAD OF SONFIELD and SONFIELD
November 26, 2001
Board of Directors
Entertainment Technologies and Programs, Inc.
17300 Saturn Lane; Suite 111
Houston, Texas 77058
Ladies and Gentlemen:
We have acted as counsel to Entertainment Technologies and Programs, Inc.
("the Company"), Delaware corporation, in connection with
the Registration Statement on Form S-8 (the "Registration Statement") filed by
the Company with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), relating to the offer and sale of up to 171,429
shares of its Common Stock, par value $.001 per share (the "Common Stock"),
issuable to the consultants of the Registrant as set
forth herein to the following named persons:
NAME NUMBER OF SHARES AGREEMENT DATE
- ---- ---------------- ------------------------- ---------------
Kevin P. Regan 35,714 Consulting Agreement October 10, 2001
Robert E. Chamberlain, Jr. 35,715 Consulting Agreement October 10, 2001
J. Mark Willis 100,000 Consulting Agreement October 10, 2001
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed
necessary or advisable in connection with this opinion, including the Company's
Certificate of Incorporation as amended, the
Company's Bylaws, as amended, and the Consulting Agreements. In our examination
we have assumed (without any independent
investigation) the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photo static copies, the
authenticity of originals of such copies and the authenticity of telegraphic or
telephonic confirmations of public officials and
others. As to facts material to our opinion, we have relied upon (without any
independent investigation) certificates or telegraphic
or telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or its
representatives or officers.
Based upon the foregoing, we are of the opinion that when the aforementioned
shares of Common Stock issued by the Company are issued
in accordance with the terms of the Consulting Agreements, such shares will be
legally issued, fully paid and non-assessable.
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
We are admitted to the bar in the State of Texas, and we do not express any
opinion as to the laws of any other jurisdiction other
than the federal laws of the United States of America and the General
Corporation Law of the State of Delaware, and we express no
opinion as to the effect of any other laws on the opinions stated herein.
The opinions expressed herein are as of the date hereof and are based on the
assumptions set forth herein and the laws and
regulations currently in effect, and we do not undertake and hereby disclaim
any obligation to advise you of any change with respect
to any matter set forth herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving such opinion, we do not
thereby admit that we are acting within the category of persons whose consent
is required under Section 7 of the Securities Act and
the rules and regulations promulgated thereunder.
Very truly yours,
/s/Sonfield & Sonfield
Sonfield and Sonfield
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in a Registration Statement of
Entertainment Technologies and Programs, Inc. on Form S-8
of our report dated December 30, 2000, except for Note 3, as to which the date
is January 16, 2001, appearing in the Annual Report on
Form 10-KSB of Entertainment Technologies and Programs, Inc. as of and for the
year September 30, 2000.
/s/Ham, Langston and Brezina, L.L.P.
Houston, Texas
November 5, 2001
EXHIBIT 99.61
CONSULTING AGREEMENT WITH GENESIS FINANCIAL GROUP, L.L.C.
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of this 10th day
of October, 2001, by and between Genesis Financial
Group, L.L.C., a Delaware limited liability company with principal offices at
2476 Bolsover, Houston, Texas 77005 (the "Consultant")
and Entertainment Technologies & Programs, Inc., a Delaware corporation with
principal offices at 17300 Saturn Lane; Suite 111;
Houston, Texas 77058 (the "Corporation").
WHEREAS, the Consultant has developed expertise in providing strategic
business advice and consulting services, including
valuation analysis services; and
WHEREAS, the Corporation desires to engage the services of the
Consultant and the Consultant desires to provide services to
the Corporation as set forth below, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for such other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement. Effective upon execution hereof, the Corporation hereby
engages the Consultant to render to it for a period of
one (1) year from the date hereof (the "Term") the services described herein.
The Term hereof may be extended or renewed upon the
written agreement of the Corporation and the Consultant prior to expiration of
the Term hereof upon such terms as the parties hereto
may negotiate at the time of such extension or renewal.
2. Services. For the Term of this Agreement, the Consultant shall render
to the Corporation assistance in developing a
valuation of damages to the Corporation as such damages relate to the
Corporation's current litigation with Ferris Productions, Inc.
and Gamecom, Inc., regarding the Corporation's attempted acquisition of Ferris
and present such analysis in written form and/or
testifying in a court of law, in deposition hearing, or other venues as may be
necessary (collectively hereinafter referred to as the
"Project").
3. Compensation. In exchange for the Consultant's performance of
services hereunder, the Corporation shall pay or cause to be
paid to the Consultant:
a) Within seven days of the date of execution hereof, a non-refundable
and non-reimbursable fee in the amount of 71,429 shares
of registered common stock of the Corporation (the "Initial Project Fee"),
whose value is determined as of October 9, 2001, based on
the closing bid price of seven cents ($0.07) per share, to be five thousand
dollars ($5,000). The Consultant will bill against the
Project Fee at a rate of $200 per hour worked on the Project by the Consultant.
b) Upon such time as the Consultant has exhausted the Initial Project Fee
at the rate of $200 per hour, within seven days from
written notification to the Corporation by the Consultant that the Initial
Project Fee has been exhausted, the Corporation shall pay
or cause to be paid, at the option of the Corporation, either (i) cash, in the
amount of $5,000, due and payable upon written
notification as described herein this section 3 b), or (ii) within seven days
of the date of written notification as described herein
this section 3 b), a number of shares of common stock whose value is equal to
five thousand dollars ($5,000), based on the closing
bid price on the day preceding such written notification to the Corporation by
the Consultant that the Initial Project Fee has been
exhausted (the "Second Project Fee").
c) Upon such time as the Consultant has exhausted the Second Project Fee
through hourly billings at the rate of $200 per hour,
the Consultant shall bill the Corporation monthly for each subsequent hour at
the rate of $150 per hour, due and payable on or before
the 10th day of the month for such billings incurred by the Corporation in the
preceding month. Such fee shall be payable by the
Corporation in cash
4. Expenses. The Corporation shall reimburse Consultant for its travel
and other out-of-pocket expenses incurred in connection
with this Agreement, and such reimbursement shall be in addition to any other
fees payable hereunder. The Consultant will submit to
the Corporation for pre-approval all out-of-pocket expenses greater than $250.
Out-of-pocket expenses less than $250 will not
require pre-approval by the Corporation. All invoices shall be paid in cash
and are due and payable upon receipt of monthly invoices
from Consultant. The Corporation shall also reimburse the Consultant (or
cause the Consultant to be reimbursed) for fees and
disbursements of the Consultant's counsel promptly following receipt of
statements therefore. Reimbursement of total fees and
disbursements of the Agent's counsel in excess of $250 must be pre-approved in
advance by the Corporation.
5. Warranties and Representations. The Corporation hereby represents
and warrants to the Consultant that:
a) the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby have been
duly authorized, adopted and approved by the board of directors of the
Corporation. The Corporation has taken all necessary
corporate action and has all the necessary corporate power and authority to
enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by an authorized officer of the
Corporation on its behalf and is the valid and binding obligation of the
Corporation, enforceable against the Corporation in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, or by legal or equitable
principles, relating to or limiting creditors' rights
generally and except that the remedy of specific performance and injunctive and
other forms of equitable relief are subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought;
b) the Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of
Delaware. The Corporation has the corporate power and authority to own and
lease its properties and assets and to carry on its
business as it is now being conducted and is duly qualified to do business as a
foreign corporation in each jurisdiction where it
owns or leases real property or conducts business, except where the failure to
be so qualified would not have a material adverse
effect on the business, operations or condition (financial or otherwise) of the
Corporation;
c) the Corporation is authorized to issue an aggregate of 200,000,000
shares of Common Stock and 10,000,000 shares of preferred
stock. All outstanding shares of the Corporation's capital stock have been
duly authorized, validly issued and are fully paid and
non-assessable. The Warrant and the shares of Common Stock to be issued upon
exercise of the Warrant, assuming payment therefor in
accordance with the provisions thereof, are and will be upon issuance, free of
preemptive rights and free and clear of all adverse
claims, liens, mortgages, charges, security interests, encumbrances and other
restrictions or limitations of any kind whatsoever.
The Corporation has not issued any shares of capital stock which could give
rise to claims for violation of any federal or state
securities laws (including any rules or regulations promulgated thereunder) or
the securities laws of any other jurisdiction
(including any rules or regulations promulgated thereunder);
d) there is no contract or agreement to which the Corporation is a party
or by which it or its assets are bound which prohibits
the Corporation from executing and delivering this Agreement or performing its
obligations as set forth hereunder;
e) neither the execution and delivery of this Agreement by the
Corporation, nor consummation of the transactions contemplated
hereby, does or will: (i) violate or conflict with any provision of the
certificate of incorporation or bylaws of the Corporation;
(ii) violate or, with the passage of time, result in the violation of any
provision of, or result in the acceleration of or entitle
any party to accelerate any obligation under, or result in the creation or
imposition of any lien, charge, pledge, security interest
or other encumbrance upon any of the property or assets of the Corporation,
pursuant to any provision of any mortgage, lien, lease,
agreement, permit, indenture, license, instrument, law, order, arbitration
award, judgment or decree to which the Corporation is a
party or by which it or any of such property or assets are bound; (iii) violate
or conflict with any other restriction of any kind
whatsoever to which the Corporation is subject, or by which its properties or
assets may be bound; or (iv) violate or constitute a
breach under any provision of any agreement to which the Corporation is a party
or is subject. No consent, authorization, order or
approval of, or filing or registration with, any governmental commission, board
or other regulatory body is required in connection
with the execution, delivery and performance of the terms of this Agreement and
consummation of the transactions contemplated hereby
by the Corporation; and
f) there is no action, suit, proceeding or investigation pending or
threatened which could restrict the Corporation's ability
to perform its obligations hereunder. There are no grounds for or facts,
events or circumstances which could form the basis of any
such action that could cause or result in any such action, suit, proceeding or
investigation or which is probable of assertion. The
Corporation is not in default in respect of any judgment, order, writ,
injunction or decree of any court or any federal, state, local
or other governmental agency, authority, body, board, bureau, commission,
department or instrumentality, which default would in any
way affect, impair or compromise the Corporation's ability to consummate the
transactions contemplated hereby or would otherwise
compromise in any way the validity or legality of this Agreement or the
transactions contemplated hereby.
6. Confidential Information. By reason of performance under this
Agreement, the Consultant may have access to and may obtain
specialized knowledge, trade secrets and confidential information about the
business and operation of the Corporation, its
subsidiaries and divisions thereof. Therefore, the Consultant hereby agrees
that he shall keep secret and retain in confidence and
shall not use, disclose to others, or publish, other than in connection with
the performance of services hereunder and in accordance
herewith, any information relating to the business, operation or other affairs
of the Corporation, its subsidiaries and divisions
thereof, which information is acquired in the course of providing services for
the Corporation. To the extent that any of such
information may be deemed from time to time to be "material non-public
information" as construed under the Exchange Act of 1934, the
Consultant hereby agrees not to purchase or sell (or offer to purchase or sell)
any of the Corporation's securities while in
possession of information which may be so deemed to be "material non-public
information."
7. Indemnification. The Consultant and the Corporation hereby agree as
follows:
a) the Corporation will indemnify and hold harmless the Consultant
against and in respect of all damages, claims, losses and
expenses (including, without limitation, attorneys' fees and disbursements)
reasonably incurred (all such amounts may hereinafter be
referred to as the "Damages") by the Consultant arising out of: (i) any
misrepresentation or breach of any warranty made by the
Corporation pursuant to the provisions of this Agreement or in any statement,
certificate or document furnished by the Corporation
relating to this Agreement or the transactions described herein, and (ii) the
nonperformance or breach of any covenant, agreement or
obligation of the Corporation contained in this Agreement which has not been
waived by the Consultant;
b) the Corporation will be obligated to indemnify the Consultant with
respect to claims for Damages as to which the Consultant
shall have given written notice to the Corporation on or before the close of
business on the sixtieth day following the fourth
anniversary hereof;
c) the Corporation also agrees that it is the responsibility and
obligation of the Corporation to insure with the advise of its
own legal counsel that the Exchange Offer and Registration documents meet all
legal requirements, state and federal, and that the
indemnification described herein this section shall apply in any circumstances
where it is alleged, claimed, found or determined that
the Exchange Offer and Registration documents does not comply with all legal
requirements.
d) in any case where the Corporation has indemnified the Consultant for
any Damages and the Consultant recovers from third
parties all or any part of the amount so indemnified by the Corporation, the
Consultant shall promptly pay over to the Corporation
the amount so recovered;
e) with respect to claims or demands by third parties, whenever the
Consultant shall have received notice that such a claim or
demand has been asserted or threatened which, if valid, would be subject to
indemnification hereunder, the Consultant shall as soon
as reasonably possible and in any event within thirty (30) days of receipt of
such notice, notify the Corporation of such claim or
demand and of all relevant facts within its knowledge which relate thereto.
The Corporation shall then have the right at its own
expense to undertake the defense of any such claims or demands utilizing
counsel selected by the Corporation and approved by the
Consultant, which approval shall not be unreasonably withheld. In the event
that the Corporation should fail to give notice of the
intention to undertake the defense of any such claim or demand within thirty
(30) days after receiving notice that it has been
asserted or threatened, the Consultant shall have the right to satisfy and
discharge the same by payment, compromise or otherwise and
shall give written notice of any such payment, compromise or settlement to the
Corporation;
f) the Consultant will indemnify and hold harmless the Corporation
against and in respect of all Damages reasonably incurred by
the Corporation arising out of: (i) any misrepresentation or breach of any
warranty made by the Consultant pursuant to the
provisions of this Agreement, and (ii) the nonperformance or breach of any
covenant, agreement or obligation of the Consultant which
has not been waived by the Corporation;
g) the Consultant will be obligated to indemnify the Corporation for
Damages as to which the Corporation shall have given
written notice to the Consultant on or before the close of business on the
sixtieth day following the first anniversary hereof;
h) in any case where the Consultant has indemnified the Corporation for
any Damages and the Corporation recovers from third
parties all or any part of the amount so indemnified by the Consultant, the
Corporation shall promptly pay over to the Consultant the
amount so recovered;
i) with respect to claims or demands by third parties, whenever the
Corporation shall have received notice that such a claim or
demand has been asserted or threatened, which, if valid, would be subject to
indemnification hereunder, the Corporation shall as soon
as reasonably possible and in any event within thirty (30) days of receipt of
such notice, notify the Consultant of such claim or
demand and of all relevant facts within its knowledge which relate thereto.
The Consultant shall have the right at its expense to
undertake the defense of any such claim or demand utilizing counsel selected by
the Consultant and approved by the Corporation, which
approval shall not be unreasonably withheld. In the event that the Consultant
should fail to give notice of its intention to
undertake the defense of any such claim or demand within thirty (30) days after
receiving notice that it has been asserted or
threatened, the Corporation shall have the right to satisfy and discharge the
same by payment, compromise or otherwise and shall give
written notice of any such payment, compromise or settlement to the Consultant;
and without limiting any of the foregoing, the
Corporation shall indemnify and hold harmless the Consultant against any
losses, claims, damages or liabilities to which such
Consultant becomes subject under federal or state securities or blue sky laws,
insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) are based upon any untrue statement of a
material fact contained in a registration statement filed
pursuant hereto, a final prospectus contained in such registration statement,
or an amendment or supplement thereto, or are based
upon the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
The Corporation shall reimburse the Consultant for any legal or any other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Corporation shall not be
liable in any case to the extent that any loss, claim, damage or liability
arises out of, is based upon or is derived from any untrue
statement or omission made in such registration statement, final prospectus or
any amendment or supplement thereto, in reliance upon
and in conformity with information furnished in writing to the Corporation by
or on behalf of the Consultant for use in preparation
thereof.
8. Applicable Law. The terms hereof shall be construed and enforced in
accordance with the laws of the State of Delaware
without regard to the principles of conflicts of laws thereof and shall inure
to the benefit of and be binding upon the Consultant
and the Corporation and the respective legal successors and assigns of each.
9. Arbitration. The Corporation represents, warrants, covenants and
agrees that any controversy or claim brought in any
capacity by the Corporation against the Consultant or any members, officers,
directors, consultants, affiliates, associates,
employees or controlling persons of the Consultant shall be settled by
expedited arbitration under the Federal Arbitration Act in
accordance with the commercial arbitration rules of the American Arbitration
Association ("AAA") and judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
Any controversy or claim brought by the Consultant
against the Corporation or its securityholders, officers, directors,
consultants, affiliates, associates, employees or controlling
persons shall be settled by arbitration under the Federal Arbitration Act in
accordance with the commercial arbitration rules of the
AAA and judgment rendered by the arbitrators may be entered in any court having
jurisdiction thereof. In arbitration proceedings
under this section, the parties shall be entitled to any and all remedies that
would be available in the absence of this section and
the arbitrators, in rendering their decision, shall follow the substantive laws
of the State of Delaware. The arbitration of any
dispute pursuant to this paragraph shall be held in the State of Texas, County
of Harris, and City of Houston.
Notwithstanding the foregoing, in order to preserve the status quo
pending the resolution by arbitration of a claim seeking
relief of an injunctive or equitable nature, any party, upon submitting a
matter to arbitration as required by this section, may
simultaneously or thereafter seek a temporary restraining order or preliminary
injunction from a court of competent jurisdiction
pending the outcome of the arbitration. This section is intended to benefit
the members, managers, consultants, affiliates,
associates and employees of the Consultant, each of whom shall be deemed to be
a third party beneficiary of this section, and each of
whom may enforce this section to the full extent that the Consultant could do
so if a controversy or claim were brought against it.
10. No Continuing Waiver. The waiver by any party of any provision or
breach hereof shall not operate as or be construed to be
a waiver of any other provision hereof or of any other breach of any provision
hereof.
11. Notice. Any and all notices from either party to the other which may
be specified by, or otherwise deemed necessary or
incident hereto shall, in the absence of hand delivery with return receipt
requested, be deemed duly given when mailed if the same
shall be sent to the address of the party set out on the first page hereof by
registered or certified mail, return receipt requested,
or express delivery (e.g., Federal Express).
12. Severability of Provisions. The provisions hereof shall be considered
severable in the event that any of such provisions
are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable. Such invalid, void or otherwise
unenforceable provisions shall be automatically replaced by other provisions
which are valid and enforceable and which are as similar
as possible in term and intent to those provisions deemed to be invalid, void
or otherwise unenforceable. Notwithstanding the
foregoing, the remaining provisions hereof shall remain enforceable to the
fullest extent permitted by law.
13. Term. Unless otherwise described herein, this letter agreement shall
have a term of two (2) years from the date hereof, and
shall then terminate unless extended by written agreement of the Corporation
and the Consultant. Notwithstanding the foregoing, this
letter agreement may be terminated at any time with or without cause by the
Corporation or the Consultant. Such termination shall be
effective upon receipt by the non-terminating party of written notice thereof.
14. Assignability. This letter agreement shall not be assignable without
the prior written consent of the non-assigning party
hereto and shall be binding upon and inure to the benefit of any heirs,
executors, legal representatives or successors or permitted
assigns of the parties hereto.
15. Entire Agreement, Amendment. This letter agreement contains the
entire agreement between the Consultant and the Corporation
with respect to the subject matter hereof. This letter agreement may not be
amended, changed, modified or discharged, nor may any
provision hereof be waived, except by an instrument in writing executed by or
on behalf of the party against whom enforcement of any
amendment, waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend
or otherwise affect any of the provisions hereof.
Please confirm that the foregoing is in accordance with your
understanding by signing and returning the duplicate(s) of this
letter enclosed herewith, which shall thereupon constitute a binding agreement.
Very truly yours,
GENESIS FINANCIAL GROUP, L.L.C.
By: /s/ Kevin P. Regan____
Managing Member
Agreed to and accepted as of this
10th day of OCTOBER 2001.
Entertainment Technologies & Programs, Inc.
By: /s/ James D. Butcher____________________________
Its: Chairman and Chief Executive Officer____________
EXHIBIT 99.62
CONSULTING AGREEMENT WITH J. MARK WILLIS
J. MARK WILLIS
CONTRACT FOR
CONSULTING SERVICES
This Agreement is made this 9th day of October, 2001, between Entertainment
Technologies and Programs, Inc. ("Client"), having its
principal place of business at, 17300 Saturn Lane, Ste. 111, Houston, TX
77058, and J. Mark Willis, Consultant ("J. Mark Willis"),
having its principal place of business at 405 East Crockett, Cleveland, TX
77327.
In consideration of Client retaining J. Mark Willis to conduct general
consulting services for Client, it is agreed as follows:
1. Compensation and Term
Client hereby retains J. Mark Willis and J. Mark Willis hereby agrees to
perform the following services: Consulting services of J.
Mark Willis as required by Client, through October 31, 2001. J. Mark Willis
will at various times perform services at Client's
headquarters, at other Client facilities, or at J. Mark Willis's facilities,
as directed by Client. J. Mark Willis will perform the
services at various times and for various durations as directed by Client.
The following consulting fees shall apply:
a One Hundred Thousand (100,000) shares of unrestricted Common Stock in
Entertainment Technologies and Programs, Inc. (OTCBB :
ETPI). Stock will be registered under SEC Form S-8 and due upon signing
of this agreement. The fee to Consultant shall be
deemed fully earned as of the date of execution of this Agreement, and
whether or not any Consultant's recommendations are
ratified.
b The Consultant shall be responsible to pay for its costs providing
its service under this agreement.
Any legal action brought to collect any sums due under this Agreement shall be
entitled to collect, in addition to all damages, its
costs of collection, including reasonable attorney's fees.
This Agreement shall commence on the date stated above, and shall remain in
effect until all obligations under this Agreement have
been properly completed. Either party to this Agreement may terminate this
Agreement with or without cause by providing at least
seven days written notice to the other party.
2. Warranties by J. Mark Willis
J. Mark Willis represents and warrants to Client that it has the experience
and ability to perform the services required by this
Agreement; that it will perform said services in a professional, competent and
timely manner; that it has the power to enter into and
perform this Agreement; and that its performance of this Agreement shall not
infringe upon or violate the rights of any third party
or violate any federal, state and municipal laws. However, Client will not
determine or exercise control as to general procedures or
formats necessary to have these services meet Client's satisfaction.
3. Independent Contractor
J. Mark Willis acknowledges that the services rendered under this Agreement
shall be solely as an independent contractor. J. Mark
Willis shall not enter into any contract or commitment on behalf of Client.
J. Mark Willis further acknowledges that it is not
considered an affiliate or subsidiary of Client, and is not entitled to any
Client employment rights or benefits. It is expressly
understood that this undertaking is not a joint venture.
4. Confidentiality
J. Mark Willis recognizes and acknowledges that this Agreement creates a
confidential relationship between J. Mark Willis and Client
and that information concerning Client's business affairs, customers, vendors,
finances, properties, methods of operation, computer
programs, and documentation, and other such information, whether written, oral,
or otherwise, is confidential in nature. All such
information concerning Client is hereinafter collectively referred to as
"Confidential Information."
5. Non-Disclosure
J. Mark Willis agrees that, except as directed by Client, it will not at any
time during or after the term of this Agreement disclose
any Confidential Information to any person whatsoever and that upon the
termination of this Agreement it will turn over to Client all
documents, papers, and other matter in its possession or control that relate to
Client. J. Mark Willis further agrees to bind its
employees and subcontractors to the terms and conditions of this Agreement.
6. Grant
J. Mark Willis agrees that its work product produced in the performance of this
Agreement shall remain the exclusive property of
Client, and that it will not sell, transfer, publish, disclose or otherwise
make the work product available to third parties without
Client's prior written consent. Any rights granted to J. Mark Willis under this
Agreement shall not affect Client's exclusive
ownership of the work product.
7. Office Rules
J. Mark Willis shall comply with all office rules and regulations, including
security requirements, when on Client premises.
8. Conflict of Interest
J. Mark Willis shall not offer or give a gratuity of any type to any Client
employee or agent.
9. Governing Law
This Agreement shall be construed and enforced in accordance with the laws of
the State of Texas.
10. Entire Agreement and Notice
This Agreement contains the entire understanding of the parties and may not be
amended without the specific written consent of both
parties. Any notice given under this Agreement shall be sufficient if it is in
writing and if sent by certified or registered mail.
IN WITNESS WHEREOF,
Client and J. Mark Willis have duly executed this Agreement as of the day and
year first above written.
J. MARK WILLIS Entertainment Technologies and Programs, Inc.
By: /s/ J. Mark Willis By: /s/ James D. Butcher
Name: J. Mark Willis Name: James D. Butcher
Title: Title: Chairman and Chief
Executive Officer
Date: October 9, 2001 Date: October 10, 2001