As filed with the Securities and Exchange Commission on May 17 , 2000 Reg. No.
33
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
PEN INTERCONNECT, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0430260
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
1601 Alton Parkway
Irvine, CA 92606
(949) 798-5800
(Address of principal executive offices)
------------------------------------------------
ADVISORY AND CONSULTING AGREEMENTS
(Full title of plan)
--------------------------------
Stephen J. Fryer
President
1601 Alton Parkway
Irvine, CA 92606
(Name and address of agent for service)
(949) 798-5800
(Telephone number, including area code of
agent for service) Copy to:
Owen Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 92612
(818) 255-4996 / (818) 255-4997 (fax)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
====================== ====================== ===================== ====================== ======================
<S> <C> <C> <C> <C>
Common Stock
( par value .01) 2,515,000 $.25 $628,750 $170.00
====================== ====================== ===================== ====================== ======================
</TABLE>
Estimated solely for the purpose of determining the amount of registration fee
and pursuant to Rules 457(c) and 457 (h) of the General Rules and Regulations
under the Securities Act of 1993, based upon the exercise price of 2,515,000
options at $0.25 per share.
1
<PAGE>
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section
10(a) prospectus is omitted from the registration
statement in accordance with
Rule 428 under the Securities Act of 1933.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Pen Interconnect, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(a) the Company's annual report on Form 10-KSB for the fiscal year
ended September 30, 1999 (Commission File No. 1-14072):
(b) all other reports filed by the Company pursuant to Section 13(a) or
Section 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since September 30, 1999 through the date hereof;
(c) the Registrant's Form SB-2, file No. 333-79631, dated February
__,2000 filed pursuant to Section 12 of the Exchange Act, in which there is
described the terms, rights and provisions applicable to the Registrant's
outstanding Common Stock, and
(d) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be 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 Officer
The Certificate of Incorporation of the Company provides that all
directors, officers, employees and agents of the Company shall be entitled to be
indemnified by the Company to the fullest extent permitted by law. The
Certificate of Incorporation also provides as follows:
The corporation shall, to the fullest extent permitted by the Act, as
the same may be amended and supplemented, indemnify all directors, officers,
employees, and agents of the corporation whom it shall have power to indemnify
thereunder from and against any and all of the expenses, liabilities, or other
matters referred to therein or covered thereby.
3
<PAGE>
Such right to indemnification or advancement of expenses shall continue as to a
person who has ceased to be a director, officer, employee, or agent of the
corporation, and shall inure to the benefit of the heirs, executives, and
administrators of such persons. The indemnification and advancement of expenses
provided for herein shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement may be entitled under any bylaw,
agreement, vote of stockholders or of disinterested directors or otherwise. The
corporation shall have the right to purchase and maintain insurance on behalf of
its directors, officers, and employees or agents to the full extent permitted by
the Act, as the same may be amended or supplemented.
Commission Policy
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to
Exhibits on page 8.
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 1933:
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement:
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any
4
<PAGE>
material change to such information in this Registration Statement; provided,
however, that paragraph (1)(i) and (I)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraph is
contained in periodic reports filed by the Company 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 of 1933, each such post-effective amendments 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.
To remove from registration by mean of a post-effective
amendment any of the securities being registered hereunder that remain unsold at
the termination of the offering.
The undersigned Company hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13 (a) or Section 15 (d) of the
Securities and Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the above-described provisions or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
5
<PAGE>
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
of the requirements for filing a 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 Irvine, State of California on May 17, 2000.
PEN INTERCONNECT, INC.
By /s/ Stephen J. Fryer
------------------------
Stephen J. Fryer, Chairman/CEO
Each person whose signature appears below hereby constitutes and appoints
Stephen J. Fryer as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933. Pursuant to the requirements of the Securities Act of
1933, this registration statement was signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ---------- --------- -------------
/s/ Stephen J. Fryer Chairman, CEO May 17, 2000
Stephen J. Fryer President and
Principal Financial
Officer
/s/ James E. Harward
James E. Harward Director May 17, 2000
/s/ Milton Haber
Milton Haber Director May 17, 2000
/s/Brian Bonar
Brian Bonar Director May 17, 2000
6
<PAGE>
INDEX TO EXHIBITS
Exhibit
NO. Description
4.1 Advisory and Consulting Agreements
5.1 Opinion of Counsel, regarding the legality of the securities registered
hereunder.
23.1 Consent of present Independent Public Accountants. (Continuity of
accounting treatment since audit of 9-30-99).
23.2 Consent of Counsel (included as part of Exhibit 5.1)
23.3 Opinion of previous Independent Public Accountant from the February 25,
2000 SB-2 filing as to year-end audit.
7
<PAGE>
Exhibit 4.1 Advisory and Consulting Agreements
Number of Shares/Options
4.1 (a) 2,250,000
4.1 (b) 30,000
4.1 (c) 50,000
4.1 (d) 75,000
4.1 (e) 110,000
8
<PAGE>
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of April
1, 2000, by and between Gordon Mundy, 12-124 Finch Road, Douglas, Isle of Man,
IM99ITT, England, ("Consultant") and Pen Interconnect, Inc. with offices at 1601
Alton Parkway, Irvine, CA 92606 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on March 31, 2001, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and
9
<PAGE>
shall review and advise the Company regarding its overall progress, needs and
condition. Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of an international marketing program
to enable the Company to broaden the markets for its services and
promote the image of the Company and its products and services;
(c) Advise the Company relative to the recruitment and
employment of key executives consistent with the expansion of
operations of the Company;
(d) The identification, evaluation, structuring, negotiating
and closing of international joint ventures, strategic alliances,
business acquisitions and advice with regard to the ongoing managing
and operating of such acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private or public
financing.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
10
<PAGE>
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
2,250,000 shares of the Company's Common Stock with an exercise price at $.25
per share, which option shall expire on March 31, 2001 at 5:00 P.M. P.S.T. The
number of shares herein are subject to the anti-dilution provisions of the
corresponding warrant which is being issued in conjunction with this Agreement.
Consultant in providing the foregoing services shall be reimbursed for any pre-
approved out-of-pocket costs, including, without limitation, travel, lodging,
telephone, postage and Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
11
<PAGE>
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Orange County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
PEN INTERCONNECT, INC. CONSULTANT
/s/ Stephen J. Fryer /s/Gordon Mundy
- --------------------------------------------- ---------------
Stephen J. Fryer, President/ Gordon Mundy
Chief Executive Officer
Exhibit 4.1 (a)
12
<PAGE>
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 1, 2000, by and between E.L. Rose, 100 Nighthawk, Irvine, CA 92604
("Consultant") and Pen Interconnect, Inc. with offices at 1601 Alton Parkway, CA
92606 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on January 30, 2001, unless earlier terminated in
accordance with paragraph 8 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the
13
<PAGE>
Company, expansion of services, acquisitions and business opportunities, and
shall review and advise the Company regarding its overall progress, needs and
condition. Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image
of the Company and its products and services;
(c) The identification, evaluation, structuring, negotiating
and closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof.
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock private or public financing.
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private or public
financing.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
14
<PAGE>
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
30,000 shares of the Company's Common Stock. Consultant in providing the
foregoing services, shall be reimbursed for any pre-approved out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
15
<PAGE>
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Orange County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
PEN INTERCONNECT, INC. CONSULTANT
/s/ Stephen J. Fryer s/E.L. Rose
- ------------------------------------ -----------
Stephen J. Fryer, President/ E.L. Rose
Chief Executive Officer
Exhibit 4.1 (b)
16
<PAGE>
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 1, 2000, by and between Lewis "Carl" Rasmussen, 1913 South Bonneville
Drive Bountiful, UT 94101 ("Consultant") and Pen Interconnect, Inc. with offices
at 1601 Alton Parkway, CA 92606 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on January 30, 2001, unless earlier terminated in
accordance with paragraph 8 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and
17
<PAGE>
condition. Consultant agrees to provide on a timely basis the following
enumerated services plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image
of the Company and its products and services;
(c) The identification, evaluation, structuring, negotiating
and closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof.
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock private or public financing
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
50,000 shares of the Company's Common Stock. Consultant in providing the
18
<PAGE>
foregoing services, shall be reimbursed for any pre-approved out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
19
<PAGE>
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Orange County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
PEN INTERCONNECT, INC. CONSULTANT
/s/ Stephen J. Fryer s/ Lewis "Carl" Rasmussen
- ------------------------------------ -------------------------
Stephen J. Fryer, President/ Lewis "Carl" Rasmussen
Chief Executive Officer
Exhibit 4.1 ( c )
20
<PAGE>
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 1, 2000, by and between Jay Chung, 1000 South Coast Drive, # B107 Costa
Mesa, CA 92626, ("Consultant") and Pen Interconnect, Inc. with offices at 1601
Alton Parkway, Irvine, CA 92606 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on January 30, 2001, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
21
<PAGE>
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image
of the Company and its products and services;
(c) The identification, evaluation, structuring, negotiating
and closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof; and
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private or public
financing.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
5. COMPENSATION.
------------
22
<PAGE>
The Company will immediately grant Consultant the option to purchase
75,000 shares of the Company's Common Stock. Consultant in providing the
foregoing services, shall be reimbursed for any pre-approved out-of-pocket
costs, including, without limitation, travel, lodging, telephone, postage and
Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
23
<PAGE>
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Orange County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
PEN INTERCONNECT, INC. CONSULTANT
/s/ Stephen J. Fryer /s/ Jay Chung
- ------------------------------------ -------------
Stephen J. Fryer, President/ Jay Chung
Chief Executive Officer
Exhibit 4.1 (d)
24
<PAGE>
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of
February 1, 2000, by and between Mike Uberti, 2405 W. Adams, Santa Ana, CA 92704
("Consultant") and Pen Interconnect, Inc. with offices at 1601 Alton Parkway, CA
92606 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on January 30, 2001, unless earlier terminated in
accordance with paragraph 8 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
25
<PAGE>
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources,
products and services;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image
of the Company and its products and services;
(c) The identification, evaluation, structuring, negotiating
and closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing and
operating of such acquisitions upon consummation thereof.
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private or public
financing.
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional
loans, private debt funding, mezzanine financing, blind pool financing
and other preferred and common stock equity private or public
financing.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with
26
<PAGE>
all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
110,000 shares of the Company's Common Stock valued at $.25 per share, which
option shall expire on January 31, 2001 at 5:00 P.M. P.S.T. The number of shares
herein are subject to the anti-dilution provisions of the corresponding warrant
which is being issued in conjunction with this Agreement. Consultant in
providing the foregoing services, shall be reimbursed for any pre-approved out-
of-pocket costs, including, without limitation, travel, lodging, telephone,
postage and Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
27
<PAGE>
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Orange County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
PEN INTERCONNECT, INC. CONSULTANT
/s/ Stephen J. Fryer s/Mike Uberti
Stephen J. Fryer, President/ Mike Uberti
Chief Executive Officer
Exhibit 4.1 (e)
28
<PAGE>
Exhibit 5.1 OPINION OF COUNSEL
Owen M. Naccarato
Attorney at Law
19600 Fairchild, Suite 260
Irvine, CA 92612
(818) 255-4996 / (818) 255-4997 (fax)
Mobile (949) 300-2487
[GRAPHIC OMITTED]
May 17, 2000
Pen Interconnect, Inc.
1601 Alton Parkway
Irvine, CA 92606
Re: Registration Statement on Form S-8
Gentleman:
I have acted as counsel for Pen Interconnect, Inc. (the "Company"), in
connection with the preparation and filing of the Company's Registration
statement on Form S-8 under the Securities Act of 1933, as amended, (the
"Registration Statement"), relating to 2,515,000 shares of the Company's common
stock, no par value, (the "common stock"), issuable pursuant to the Company's
Advisory and Consultants Agreements, (the "Plan").
I have examined the Certificate of Incorporation, as amended, and the
By- Laws of the Company and all amendments thereto, the Registration Statement
and originals, or copies certified to my satisfaction, of such records and
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in my judgment are necessary or appropriate to enable me to
render the opinions expressed below.
Based on the foregoing examination, I am of the opinion that the shares
of Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
Owen Naccarato, Esq.
29
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Berg & Company LLP has reviewed the quarterly financial statements for
Pen Interconnects' quarter ended March 31, 2000. Management's financial
statements appear consistent with prior audited years as to the
application of accounting principals
/s/Berg & Company LLP
May 17, 2000
30
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We have issued our report dated February 25, 2000 accompanying the financial
statements of Pen Interconnect, Inc. as of and for the years ended September 30,
1999 and 1998 contained in the registration statement and prospectus. We consent
to the use of the aforementioned report in the registration statement and
prospectus, and to the use of our name as it appears under the caption
"Experts".
/s/ Grant Thornton LLP
Salt Lake City, Utah
February 25, 2000
31
