EXHIBIT 10(d)
CONSULTING AGREEMENT
This Consulting Agreement, dated as of December 8, 1995,is between
▇▇▇▇▇▇▇ Radio Corp., a Delaware corporation ("Company"),and First Cambridge
Securities Corporation, a Connecticut corporation ("Consultant").
W I T N E S S E T H:
WHEREAS, Company desires to contract with Consultant for certain
consulting services, and Consultant is willing to render such services as
hereinafter more fully set forth;
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Engagement of Consultant. Company hereby engages and retains
Consultant to render to Company the consulting services described in Section
2 hereof (the "Consulting Services") for the period commencing on the date
hereof and ending on the first anniversary hereof (the "Consulting Period").
Consultant represents and warrants that it is a corporation incorporated and
organized under the laws of the State of Connecticut, is qualified to do
business in all jurisdictions and is in good standing in its state of
incorporation and all other jurisdictions in which it would be required to
qualify to do business and has full corporate power and authority to enter
into this Agreement and to comply with its obligations hereunder. Consultant
also represents and warrants that it is duly licensed by and a member in
good standing with the National Association of Securities Dealers, Inc., and
is duly licensed as a broker or dealer in all states in which it will conduct
business under this Agreement.
2. Description of Consulting Services. The Consulting Services
rendered by Consultant hereunder will consist of consultations with management
of Company as such management may from time to time require during the term
of this Agreement. Such consultation will be with respect to the operation
and financing of Company's business, Company's relations with its securities
holders and such other matters as may be agreed upon between Company and
Consultant. In addition to such consultation, Company may request that
Consultant prepare written reports on financial matters, attend meetings of
Company's Board of Directors, or review, analyze, and report on proposed
investment policies and/or public and private financing. Consultant
acknowledges and agrees that its employees may be required to travel out of
the New York City metropolitan area, but only if Company has given Consultant
oral or written notice to do so a reasonable time prior to such required
travel.
3. Compensation for Services Rendered. As compensation for the
Consulting Services provided for herein, Company agrees to pay to Consultant
the sum of $6,000 per month for the term of this Agreement and to deliver to
Consultant and/or officers of Consultant designated by Consultant upon
execution and delivery of this Agreement, a stock warrant agreement or
agreements ("Warrants") substantially in the form attached hereto as Exhibit
A. Such Warrant(s) will grant to Consultant or its permitted designees the
right to purchase an aggregate of 250,000 shares of Company's Common Stock at
a price of $4.00 per share during a period of five years after the date
hereof. The Warrants will vest and be exercisable, pro rata to Consultant
and its permitted designees, if any, on the basis of the number of shares of
Common Stock subject to the Warrants when originally granted to Consultant and
such designees, for the following aggregate amount of shares in accordance with
the following schedule: (i) the Warrants will vest and may be exercised after
six months from the date hereof to purchase 125,000 shares and (ii) the
Warrants will vest and may be exercised after the first anniversary of this
Agreement to purchase an additional 125,000 shares. Company agrees that, for
a period of five years from the date of this Agreement, if Company intends
to file a Registration Statement or Registration Statements for the public sale
of securities (other than on a Form ▇-▇, ▇-▇, or comparable Registration
Statement, and other than any Registration Statement which has been declared
effective prior to the date hereof or has been filed prior to the date hereof
but has not yet been declared effective), it will notify all of the holders
of the Warrants and/or underlying securities, and if so requested it will
include therein information to permit a public offering of the securities
underlying such Warrants at the expense of Company (excluding fees and expenses
of the holder's counsel and any underwriting or selling commissions) (a
"Piggyback Registration"). If a Piggyback Registration is an underwritten
primary registration on behalf of Company, and the managing underwriter(s)
advise Company in writing that in their good faith opinion, based upon market
conditions, the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, Company
will include in such registration (i) first, the securities Company proposes
to sell, (ii) second, the securities underlying the Warrants requested to be
included in such registration and other securities requested to be included
in such registration pursuant to contractual arrangements between Company
and such other security holders ("Registration Rights Holders"), pro rata
among the holders of such securities underlying the Warrants and the
Registration Rights Holders on the basis of the number of securities requested
to be included in such registration by such holders and the Registration
Rights Holders, and (iii) third, other securities requested to be included in
such registration. In addition, for a period of five years from the date of
this Agreement, upon the written demand of holder(s) representing a majority
of the securities underlying the Warrants, Company agrees, on one occasion
only, to promptly, and as soon as reasonably practicable, register (a "Demand
Registration") the underlying securities at the expense of Company (excluding
fees and expenses of the holder's counsel and any underwriting or selling
commissions); provided that Company will only be required to file a
Registration Statement or amendment thereto no later than 135 days after
any fiscal year end of Company and at such time as it has available for
utilization therein the audited consolidated financial statements of Company as
of the preceding fiscal year end. The Piggyback Registration and Demand
Registration rights described herein are subject to the definitive terms
thereof as shall be set forth in the Warrants to be granted under this
Agreement. Company also agrees to reimburse Consultant for its reasonable
expenses in complying with its obligations under this Agreement, but subject
to the prior written approval of Company in accordance with its customary
practices and procedures.
4. Nonexclusivity of this Agreement. Company expressly understands
and agrees that Consultant will not be prevented or barred from rendering
services of the same nature as or a similar nature to those described herein,
or of any nature whatsoever, for or on behalf of any person, firm, corporation
or entity other than Company. Consultant understands and agrees that
Company will not be prevented or barred from retaining other persons or
entities to provide services of the same nature as or similar nature to
those described herein or of any nature whatsoever. Consultant may also
perform services for Company other than those contained in this Agreement
for such compensation and under such terms and conditions as may be agreed
upon in writing by Company and Consultant.
5. Confidentiality. Consultant acknowledges that certain information
provided to Consultant by Company may be of a confidential nature which
Company has developed for its own internal use ("Confidential Information").
Such Confidential Information, if disclosed to Consultant, will be disclosed
on a confidential basis subject to the following terms and conditions:
(a) Consultant recognizes and acknowledges (i) the competitive
value and confidential nature of the Confidential Information and the damage
that could result to Company if information contained therein is disclosed
to any unauthorized third party, (ii) that by virtue of his knowledge of
the Confidential Information Consultant may be deemed an "insider" as that
term is defined or utilized under state and/or federal securities laws
and (iii) that the disclosure of Confidential Information by Consultant may
violate state and federal securities laws. The Confidential Information
will be used solely for providing Consulting Services hereunder and will
not be used by Consultant in any way detrimental to Company.
(b) The Confidential Information will be revealed only to those
persons whose knowledge of the information is required to allow Consultant
to perform its duties hereunder.
(c) During the Consulting Period and for a period of three years
after its termination, Consultant will not proceed with, cause or assist in
any manner any transaction or offer looking to the acquisition directly or
indirectly by purchase or otherwise of Company or any interest in or asset
of Company.
(d) Notwithstanding anything to the contrary set forth herein, if
Consultant is requested or becomes legally compelled to disclose any of the
Confidential Information or work product developed hereunder or to take any
other action prohibited hereby, Consultant will provide Company with prompt
written notice so that Company may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Agreement. If
such protective order or other remedy is not obtained or Company waives in
writing compliance with provisions of this Agreement, Consultant will furnish
only that portion of the Confidential Information or work product that is
legally required to be furnished and will exercise his best efforts to obtain
reliable assurances that confidential treatment will be accorded such
Confidential Information or work product.
(e) Consultant will be responsible for any breach of the provisions
hereof by Consultant or any other person to whom Consultant makes disclosures
and shall ensure that such persons shall also agree to be bound by the
provisions of this Section 5.
6. Disclaimer of Responsibility for Acts of Company. The obligations
of Consultant described in this Agreement consist solely of the furnishing of
information and advice to Company. Consultant's status hereunder is that of
independent contractor and in no event will Consultant be required or
permitted by this Agreement to act as the agent or employee of Company or
otherwise to represent or make decisions for Company. All final decisions with
respect to acts of Company or its affiliates, whether or not made pursuant to
or in reliance on information or advice furnished by Consultant hereunder,
will be those of Company or such affiliates and Consultant will under no
circumstances be liable for any expense incurred or loss suffered by Company
as a consequence of such decisions. Similarly, Company will under no
circumstances be liable for any expense incurred or loss suffered by
Consultant, his affiliates, or agents as a result of actions taken by
Consultant hereunder or for any claims, costs, expenses, damages or causes of
action arising out of any actions or omissions of Consultant which are beyond
the scope of Consultant's authority hereunder. In acting pursuant to this
Agreement, Consultant agrees to comply with all applicable laws, including the
Securities Act of 1933, the Securities Exchange Act of 1934, state securities
laws and the rules and regulations thereunder.
7. Amendment. No amendment to this Agreement will be valid unless
such amendment is in writing and is signed by authorized representatives
of all the parties to this Agreement.
8. Waiver. Any of the terms and conditions of this Agreement may be
waived at any time and from time to time in writing by the party entitled to
the benefit thereof, but a waiver in one instance will not be deemed
to constitute a waiver in any other instance. A failure to enforce any
provision of this Agreement will not operate as a waiver of the provision
or of any other provision hereof.
9. Severability. If any provision of this Agreement will be held to
be invalid, illegal or unenforceable in any circumstances, the remaining
provisions will nevertheless remain in full force and effect and will be
construed as if the unenforceable portion or portions were deleted.
10. Governing Law. This agreement will be governed by and construed
and enforced in accordance with the laws of the State of New Jersey.
11. Choice of Forum. The parties hereto agree that should any suit,
action or proceeding arising out of this Agreement be instituted by any party
hereto (other than a suit, action or proceeding to enforce or realize upon
any final court judgment arising out of this Agreement), such suit, action or
proceeding will be instituted only in a state or federal court in Essex
County, New Jersey. Each of the parties hereto consents to the is personal
jurisdiction of any state or federal court in Essex County, New Jersey and
waives any objection to the venue of any such suit, action or proceeding.
The parties hereto recognize that courts outside Essex County, New Jersey may
also have jurisdiction over suits, actions or proceedings arising out of this
Agreement, and in the event that any party hereto will institute a proceeding
involving this Agreement in a jurisdiction outside Essex County, New Jersey,
the party instituting such proceeding will indemnify any other party hereto
for any losses and expenses that may result from the breach of the foregoing
covenant to institute such proceeding only in a state or federal court in
Essex County, New Jersey, including without limitation any additional expenses
incurred as a result of litigating in another jurisdiction, such as reasonable
fees and expenses of local counsel and travel and lodging expenses for parties,
witnesses, experts and support personnel.
12. Service of Process. Service of any and all process that may be
served on any party hereto in any suit, action or proceeding arising out of
this Agreement may be made in the manner and to the address set forth in
Section 16 and service thus made will be taken and held to be valid personal
service upon such party by any party hereto on whose behalf such service is
made.
13. Notices. All notices, requests, payments instructions, claims or
other communications hereunder will be in writing and will be deemed to be
given or made when delivered by first-class, registered or certified mail to
the following address or addresses or such other address or addresses as the
parties may designate in writing in accordance with this Section:
If to Company:
▇▇▇▇▇▇▇ Radio Corp.
Nine ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
If to Consultant:
First Cambridge Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: President
14. Assignment. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement contemplates personal services and may not be assigned
by Consultant without the prior written consent of Company.
15. Execution in Counterparts. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
will be deemed to be an original and all of which when taken together will
constitute one and the same agreement.
▇▇▇▇▇▇▇ RADIO CORP.
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman and CEO
First Cambridge Securities Corporation
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇, Chairman and CEO