Consulting Agreement - Benchmark Equity Group Inc. and THINK New Ideas Inc.
CONSULTING AGREEMENT
BY AND BETWEEN
BENCHMARK EQUITY GROUP, INC.
AND
THINK NEW IDEAS, INC.
THIS AGREEMENT (the "Agreement") is entered into as of this 28th day of
March, 1996, by and between Benchmark Equity Group, Inc., a Delaware corporation
with principal offices at 16815 Royal Crest Drive, Suite 160, Houston, Texas
77058 (the "Consultant") and Think New Ideas, Inc., a Delaware corporation with
principal offices at 8522 National Boulevard, Suite 101, Culver City, California
90232 (the "Corporation").
WHEREAS, the Consultant has developed expertise in providing strategic
business advice and consulting services, including finding and assessing
acquisition candidates and sources of acquisition financing; 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 two (2) years 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 management consulting advice in the areas of strategic
planning, business strategy, acquisition planning, administration and such other
related management services as shall reasonably be requested by the board of
directors of the Corporation in connection with the operation of the business of
the Corporation. Notwithstanding the foregoing, the Consultant shall not be
required to devote more than five hours per week to the performance of services
hereunder.
3. Compensation. In consideration for the performance of the services
described above, upon execution hereof, the Corporation shall pay to the
Consultant $35,000 in cash. Thereafter, the Corporation shall pay to the
Consultant a monthly fee of $7,000, payable upon the first day of each
successive calendar month. In addition, the Corporation shall issue to the
Consultant a warrant (the "Warrant") exercisable to purchase an aggregate of up
to four hundred thousand (400,000) shares of its common stock, par value $.0001
per share (the "Common Stock") at an exercise price of $2.50 per share. Such
warrant shall be exercisable over a period of five years from the date of
issuance thereof in increments of 80,000 shares of Common Stock per year;
provided however, that: (a) at such time as the price per share (or the closing
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bid price per share, as applicable) of Common Stock shall equal or exceed
$10.49 as quoted on a national or regional exchange or on the Nasdaq National
Market/(R)/, the Nasdaq SmallCap Market/(SM)/ or the OTC Electronic Bulletin
Board (the "Market Price"), the Warrant
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shall immediately thereafter become exercisable to purchase up to an aggregate
of one hundred thousand (100,000) shares of Common Stock; and (b) at such time
as the Market Price shall equal or exceed $15.74 per share, the warrant shall
immediately thereafter become exercisable to purchase the remaining one hundred
thousand (100,000) shares of Common Stock.
4. Registration Rights. In the event that (but without any obligation to
do so) the Corporation proposes to register any of its securities under the
Securities Act of 1933 (the "Act") in connection with the public offering of
such securities solely for cash (other than a registration on Form S-4, Form S-8
or any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
shares of Common Stock issuable upon exercise of the Warrant), the Corporation
shall promptly give the Consultant written notice of such registration (the
"Piggy-Back Notice"); provided, however, that the Corporation shall have no
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obligation to so notify the Consultant with respect to any registration
subsequent to the first of such registrations to occur after the issuance of the
Warrant and shall have no obligation if the managing underwriter of the subject
proposed offering expresses its objection thereto to the Corporation. Upon the
written request of the Consultant given within twenty (20) days after receipt of
such Piggy-Back Notice from the Corporation, the Corporation shall cause to be
included in the registration statement filed by the Corporation under the Act
all of the shares of Common Stock that the Consultant has requested to be
registered; provided, however, that the Corporation shall have no such
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obligation if the managing underwriter of the subject proposed offering has
expressed its objection to the same to the Corporation. To the extent that the
Consultant is offered the opportunity hereunder to include all of the shares of
Common Stock issuable upon exercise of the Warrant in a registration statement,
the Consultant will be deemed to have exercised its sole registration right
provided hereby.
Whenever required hereunder to file a registration statement to effect the
registration of any of the Common Stock, the Corporation shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement with respect to such securities and
use its best efforts to cause such registration statement to become
effective, and, upon the request of the Consultant, keep such
registration statement effective for at least four (4) months.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus included therein as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Consultant such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as it may reasonably
request in order to facilitate the disposition of such securities.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under the securities laws of such
jurisdictions as shall be reasonably requested by the Consultant for
the distribution of the securities covered by the registration
statement, provided that the Corporation shall not be required in
connection therewith or
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as a condition thereto to qualify to do business or to file a general
consent to service of process in any such jurisdiction.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with terms
generally satisfactory to the managing underwriter of such offering.
(f) Notify the Consultant promptly after the Corporation shall have
received notice thereof, of the time when the registration statement
becomes effective or any supplement to any prospectus forming a part
of the registration statement has been filed.
(g) Notify the Consultant of any stop order suspending the effectiveness
of the registration statement and use its reasonable best efforts to
remove such stop order.
It shall be a condition precedent to the obligations of the Corporation to
take any action pursuant hereto that the Consultant shall furnish to the
Corporation such information regarding itself, the securities held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of its securities. In that connection, the Consultant
shall be required to represent to the Corporation that all such information
which is given is both complete and accurate in all material respects. The
Consultant shall deliver to the Corporation a statement in writing from any
beneficial owners of such securities that such beneficial owners bona fide
intend to sell, transfer or otherwise dispose of such securities.
All expenses incurred by the Corporation in complying herewith, including
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Corporation, blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration (the "Registration Expenses") incurred in connection with any
registration, qualification or compliance herewith, shall be borne by the
Corporation, and all underwriting discounts, selling commissions and
underwriters' expense allowance applicable to the sale and all fees and
disbursements of any special counsel for the Consultant ("Selling Expenses")
shall be borne by the Consultant; provided, however, that the Corporation shall
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not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by the Consultant, the registration
statement does not become effective. In the case of such withdrawal and the
failure of the Consultant to agree to forfeit, the Consultant shall bear such
Registration Expenses.
The Consultant shall not have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this section.
The Corporation shall have no obligation pursuant hereto with respect to
any request made by the Consultant after the second anniversary of the date of
issuance of the Warrant.
Notwithstanding any provision hereof to the contrary, the Corporation shall
not be required to effect any registration under the Act or under any state
securities laws on behalf of the Consultant if, in the opinion of counsel for
the Corporation, the offering or transfer by the Consultant in the manner
proposed (including, without limitation, the number of shares proposed to be
offered or transferred and
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the method of offering or transfer) is exempt from the registration requirements
of the Act and the securities laws of applicable states.
The Consultant by acceptance hereof, hereby acknowledges that it is the
Corporation's intention to conduct an initial public offering, which offering is
contemplated to be underwritten. The Consultant by acceptance hereof hereby
agrees: (i) that its right to request registration pursuant to the provisions
hereof shall be subject to the approval of the underwriter of such initial
public offering (the "Underwriter"); and (ii) the Consultant shall agree to
refrain from exercising such right or transferring the Warrant and/or the shares
of Common Stock for a period of up to six months should the Underwriter so
request in writing.
5. Certain Restrictions. The Consultant understands that:
(a) Neither the Warrant nor the shares of Common Stock issuable upon
exercise thereof has previously been the subject of registration under
the Act or any applicable state securities laws;
(b) In the absence of availability of an exemption from the registration
requirements of the Act, the Consultant may not sell or otherwise
transfer the Warrant or the shares of Common Stock issuable upon
exercise thereof unless such securities are subject to an effective
registration statement under the Act and any applicable state
securities laws;
(c) In the event that the Warrant or any shares of Common Stock issuable
upon exercise thereof are issued at a time during which a registration
statement relating to such issuance is not effective, the offer and
sale of such securities are subject to an effective registration
statement under the Act, a legend will be placed on any certificate or
certificates evidencing the same indicating that such securities have
not been registered under the Act and setting forth the restrictions
on transferability and sale of such securities; and
(d) The Corporation will place stop transfer instructions against the
certificate or certificates evidencing the foregoing securities to
restrict the transfer thereof.
6. Representations and Warranties. The Consultant hereby represents and
warrants to the Corporation that:
(a) The Consultant will not sell the securities issued to the Consultant
pursuant hereto without compliance with the Act and any applicable
state securities laws;
(b) The Consultant has received and carefully read certain business
information about the Corporation provided to it by the Corporation
and written or verbal responses to all questions the Consultant has
submitted to the Corporation regarding its acquisition of the
securities described herein, all of which the Consultant acknowledges
have been provided to the Consultant. Such information may be referred
to hereinafter as the "Corporate Materials." Other than the Corporate
Materials, the Consultant has not been furnished with any other
materials or literature relating to the acquisition of the securities
described
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herein. The Consultant has been given the opportunity to ask
questions of and to receive answers from the Corporation concerning
the terms and conditions of the acquisition of the securities
described herein and the Corporate Materials, and to obtain such
additional written information necessary to verify the accuracy of
same as the Consultant desires in order to evaluate the acquisition of
and investment in the securities described herein. The Consultant
acknowledges and confirms that the written and/or verbal responses
provided to the Consultant by the Corporation in response to the
Consultant's questions are not contrary to or inconsistent with, nor
do they conflict with the information set forth in the Corporate
Materials. The Consultant further acknowledges that it understands the
information contained in the Corporate Materials and the Consultant
has had the opportunity to discuss any questions regarding the
Corporate Materials with its counsel or other advisor. The only
information upon which the Consultant has relied is that which is set
forth in the Corporate Materials;
(c) The Consultant understands that no federal or state agency or other
authority: (i) has made any finding or determination regarding the
fairness of the transactions described herein, (ii) has made any
recommendation or endorsement of the transactions described herein, or
(iii) has passed in any way upon this agreement or the Corporate
Materials;
(d) The Consultant: (i) is acquiring the securities described herein
solely for its own account for investment purposes only and not with a
view toward resale or distribution thereof, either in whole or in
part; and (ii) has no contract, undertaking, agreement or other
arrangement, in existence or contemplated, to sell, pledge, assign or
otherwise transfer the securities to any other person;
(e) The Consultant has adequate means of providing for its current needs
and contingencies and has no need for liquidity in the investment in
the securities described herein. The Consultant has read, is familiar
with and understands Rule 501 of Regulation D and represents that he
is an "accredited investor" as defined in Rule 501(a) of Regulation D
under the Act. The Consultant has no reason to anticipate any material
change in its financial condition for the foreseeable future;
(f) The Consultant is aware that the acquisition of the securities
described herein is a speculative investment involving a high degree
of risk and that there is no guarantee that the Consultant will
realize any gain from its acquisition of or investment in such
securities;
(g) The Consultant is financially able to bear the economic risk of an
investment in the securities described herein, including the ability
to hold such securities indefinitely and to afford a complete loss of
an investment in such securities;
(h) The Consultant's overall commitment to investments which are not
readily marketable is not disproportionate to the Consultant's net
worth, and the Consultant's investment in the securities described
herein will not cause such overall commitment to become excessive; and
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(i) The Consultant has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of the acquisition of and an investment in the securities described
herein.
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 therefor 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 15,000,000
shares of Common Stock and 1,000,000 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
shares of Common Stock to be issued upon exercise of the Warrant,
assuming payment therefor in accordance with the provisions thereof
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;
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(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.
7. 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."
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8. Indemnification. The Consultant and the Corporation hereby agree as
follows:
(a) The Corporation hereby agrees to 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 other document furnished by the Corporation
pursuant to this Agreement, 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 shall 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 second anniversary hereof;
(c) 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;
(d) 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;
(e) The Consultant hereby agrees to 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;
(f) The Consultant shall 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 second anniversary hereof;
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(g) 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;
(h) 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
(i) 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
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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.
9. Applicable Law. This Agreement 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 their respective legal
successors and assigns.
10. 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, agents, 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
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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, agents, 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 Delaware.
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, agents, 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.
11. No Continuing Waiver. The waiver by any party of any provision or
breach of this Agreement 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.
12. Notice. Any and all notices from either party to the other which may
be specified by, or otherwise deemed necessary or incident to this Agreement
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 of this Agreement by registered or certified mail, return
receipt requested, or express delivery (e.g., Federal Express).
13. Severability of Provisions. The provisions of this Agreement 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.
14. Assignability. This Agreement shall not be assignable without the
prior written consent of the non-assigning party or parties 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 Agreement contains the entire
agreement among the Corporation and the Consultant with respect to the subject
matter hereof. This 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
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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.
16. Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the provisions of this Agreement.
17. Survival. Sections 6, 7, 8, 9, 11, 12 and 13 shall survive the
termination for any reason of this Agreement (whether such termination is by the
Corporation, upon the expiration of this Agreement by its terms or otherwise).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as set forth below and have
caused their respective corporate seals to be hereunder affixed as of the date
first above written.
THINK NEW IDEAS, INC.
By: /s/ Scott A. Mednick
--------------------------------------------
Scott A. Mednick, Chief Executive Officer
BENCHMARK EQUITY GROUP, INC.
By: /s/ Frank M. DeLape
--------------------------------------------
Frank M. DeLape, President
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BENCHMARK EQUITY GROUP, INC.
16815 ROYAL CREST DRIVE
SUITE 160
HOUSTON, TEXAS 77508
August 9, 1996
Scott A. Mednick, Chairman and
Chief Executive Officer
THINK New Ideas, Inc.
8522 National Boulevard, Suite 101
Culver City, California 90232-2481
Re: Amendment to Consulting Agreement (3/28/96)
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Dear Scott:
Reference is hereby made to that certain consulting agreement dated as of
March 28, 1996 (the "Consulting Agreement") between Benchmark Equity Group, Inc.
("Benchmark") and THINK New Ideas, Inc. (the "Corporation"). This letter is
intended to confirm that, notwithstanding anything else to the contrary set
forth in the Consulting Agreement, Benchmark and the Corporation hereby agree
that the reference in Section 3 of the Consulting Agreement to the Warrants (as
defined therein) shall be deleted therefrom and no Warrants shall be deliverable
thereunder. Except as otherwise expressly modified hereby or required to
effectuate the modification set forth herein, the Consulting Agreement shall
remain unchanged and shall continue in full force an effect pursuant to the
terms thereof.
This letter agreement contains the entire agreement between Benchmark and
the Corporation with respect to the modification which is the subject 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 Corporation is in agreement with the foregoing,
and that the foregoing is in accordance with your understanding by signing and
returning this letter, which shall thereupon constitute a binding agreement.
Agreed to and accepted as of this
9th day of August, 1996: Very truly yours,
THINK NEW IDEAS, INC. BENCHMARK EQUITY GROUP, INC.
By: /s/ Scott A. Mednick By: /s/ Frank M. DeLape
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Scott A. Mednick Frank M. DeLape, President
Chief Executive Officer