As filed with the Securities and Exchange Commission on November 23, 1998
Registration No.
333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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PRIME COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 51-2031531
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
155 Montgomery Street, #406
San Francisco, California 94104
(Address of Principal Executive Offices)
COMPENSATION AGREEMENT OF
FORBES INVESTMENTS LTD.
(full title of plan)
David Lefkowitz, President
155 Montgomery Street, #406
San Francisco, California 94104
415/398-4242
(Name, address and telephone number of agent for service)
-----------------
COPY TO:
Cassidy & Associates
1504 R Street, N.W.
Washington, D.C. 20009
202/387-5400
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CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT
SECURITIES BEING MAXIMUM MAXIMUM OF REGIS-
TO BE REGISTERED OFFERING AGGREGATE TRATION
REGISTERED (1) PRICE PER OFFERING FEE
SHARE (2) PRICE (2)
Common Stock, 119,,755 $1.50 $179,632 $53
$.0001 par value
(1) Pursuant to Rule 416 under the Securities Act of 1933, as
amended, the number of shares of the issuer's Common Stock
registered hereunder will be adjusted in the event of stock splits,
stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of
the registration fee pursuant to Rule 457, on the basis of the value
as determined by the Company's Board of Directors on November 5, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
PRIME COMPANIES, INC.
119,755 Shares of Common Stock, $.0001 par value
Issued Pursuant to a Consulting Agreement
This Prospectus is a part of a registration statement on Form S-8
(the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended, by Prime Companies, Inc. (the "Company" or the
"Registrant"). This Prospectus does not contain all the information
set forth in the Registration Statement, including the exhibits
filed as part thereof and otherwise incorporated therein to which
reference is hereby made. Copies of the Registration Statement and
the exhibits may be inspected at the offices of the Commission, and
may be obtained from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549 upon payment of
the prescribed fees.
The compensation agreement, together with the information contained
in Items 1 and 2 of Part I hereof and the documents incorporated by
reference in Item 3 of Part II of the Registration Statement, taken
together, are intended to constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as
amended, and Rule 428 of the General Rules and Regulations of the
Commission thereunder.
The Company's Common Stock is listed for trading on the NASD
Bulletin Board under the symbol "PRMC". Currently, there is very
limited public market for the Securities.
ITEM 1. PLAN INFORMATION
The 119,755 shares of the Company's common stock, $.0001 par value
per share, to which this Registration Statement relates are being
issued pursuant to a consulting agreement (the "Agreement") with
Tedrow Communications Corporation (the "Consultant") for services
rendered for the Company by the Consultant. The Agreement is filed
as part of this Registration Statement as an exhibit.
The common stock registered hereby (the "Common Stock") is not
subject to any provisions of the Employee Retirement Income Security
Act of 1974. The Common Stock is treasury stock, and no shares
thereof will be purchased in the open market by the Registrant.
There are no restrictions imposed upon the Employees in the resale
of the Common Stock within the United States except those imposed by
Federal or state securities laws and regulations. The receipt of
the Common Stock may be considered income and may give rise to
Federal and state income taxation for the Employee, who is advised
to consult with an advisor concerning taxation arising from receipt
of the Common Stock. The Registrant anticipates that it will have a
corresponding deduction for income tax purposes as compensation paid
to the Employee.
Any person to whom the securities will be issued under this
Registration Statement may receive additional information concerning
the Company, the Agreement, this Registration Statement or other
information, without charge, upon written or oral request made to
Prime Companies, Inc., 155 Montgomery Street, Suite 406, San
Francisco, California 94104, and its telephone number is
415-398-4242.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon the written or oral request of any
such person, a copy of any or all of the documents incorporated by
reference as specified in Item 3 of Part II of the Registration
Statement of which this Prospectus forms a part exclusive of
exhibits thereto unless such exhibits are specifically incorporated
by reference into the information that has been incorporated into
this Prospectus and any other documents required to be delivered
pursuant to Rule 428(b) of the General Rules and Regulations of the
Commission. Requests for any of the foregoing should be directed to
David Lefkowitz, President, 155 Montgomery Street, Suite 406, San
Francisco, California 94104, and its telephone number is 415-398-4242.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representations in connection with the offering described herein
other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as
having been authorized by the issuer or any other person. This
Prospectus does not constitute an offer to sell or a solicitation of
an offer to buy any securities other than the shares of Common Stock
to which it relates, or any offer of such shares of Common Stock to
any person in any jurisdiction in which such offer is unlawful. The
delivery of this Prospectus at any time does not imply that the
information contained herein is correct as of any time subsequent to
such date.
The date of this Prospectus is November 16, 1998.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and any and all amendments thereto filed by
Prime Companies, Inc. (the "Company" or the "Registrant") with the
Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
1. Any document filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") through and subsequent to the date
hereof and prior to the termination of the offering of the
securities subject hereto.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Company's Certificate of Incorporation, the authorized
capital stock of the Company consists of 60,000,000 shares, of which
50,000,000 shares are Common Stock and 10,000,000 shares are
Preferred Stock. As of the date of this Prospectus, the Company had
4,168,174 shares of Common Stock outstanding and no shares of
Preferred Stock.
The following summary description of the securities of the Company
is qualified in its entirety by reference to the Certificate of
Incorporation, filed as an exhibit hereto.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to
stockholders of the Company. The holders of Common Stock have the
sole right to vote, except as otherwise provided by law or by the
Company's Certificate of Incorporation, including provisions
governing any Preferred Stock. The Common Stock does not have any
cumulative voting, preemptive, subscription or conversion rights.
Election of directors and other general shareholder action requires
the affirmative vote of a majority of shares represented at a
meeting in which a quorum is represented. The outstanding shares of
Common Stock are, and the shares of Common Stock offered hereby will
be, validly issued, fully paid and non-assessable.
Subject to the rights of any outstanding shares of Preferred Stock,
the holders of Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors out of funds legally
available therefor. In the event of liquidation, dissolution or
winding up of the affairs of the Company, the holders of Common
Stock are entitled to share ratably in all assets remaining
available for distribution to them after payment or provision for
all liabilities and any preferential liquidation rights of any
Preferred Stock then outstanding.
PREFERRED STOCK
The Board of Directors is authorized, without action by the holders
of the Common Stock, to provide for the issuance of the Preferred
Stock in one or more series, to establish the number of shares to be
included in each series and to fix the designations, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof. This includes,
among other things, voting rights, conversion privileges, dividend
rates, redemption rights, sinking fund provisions and liquidation
rights which may be superior to the Common Stock. The issuance of
one or more series of the Preferred Stock could adversely affect the
voting power of the holders of the Common Stock and could have the
effect of discouraging or making more difficult any attempt by a
person or group to attain control of the Company. The Company has no
present plans to issue any additional shares of Preferred Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware
corporation has the power, under specified circumstances, to
indemnify its directors, officers, employees and agents in
connection with actions, suits or proceedings brought against them
by a third party or in the right of the corporation, by reason of
the fact that they were or are such directors, officers, employees
or agents, against expenses incurred in any action, suit or
proceeding. The Certificate of Incorporation and the By-laws of the
Company provide for indemnification of directors and officers to the
fullest extent permitted by the General Corporation Law of the State
of Delaware.
The General Corporation Law of the State of Delaware provides that a
certificate of incorporation may contain a provision eliminating the
personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
(relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. The Company's
Certificate of Incorporation contains such a provision.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this
Registration Statement:
5.1 Opinion of Cassidy & Associates
10.1 Prime Companies, Inc. Compensation Agreement
with Consultant
24.1 Consent of Gilbert & Company, P.C.
24.2 Consent of Cassidy & Associates (contained in
Exhibit 5.1)
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 of 1933;
ii. To reflect in the prospectus any
facts or events arising after the effective date
of the registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement; and
iii. To include any additional or
changed material information with respect to the
plan of distribution.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining liability under the Securities Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant 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. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant 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 registrant 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 Act and will be
governed by the final adjudication of such issue.
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 on
Form S-8 and has duly authorized this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California,
on the 5th of November, 1998.
PRIME COMPANIES, INC.
By Irving Pfeffer
Chief Executive Officer
By David Lefkowitz
Chief Financial Officer
- ----------------------------
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/Irving Pfeffer Director November 5, 1998
Irving Pfeffer
/s/David Lefkowitz Director November 5, 1998
David Lefkowitz
/s/Emilio Guglielmelli Director November 5, 1998
Emilio Guglielmelli
/s/Marshall Raines Director November 5, 1998
Marshall Raines
/s/Alon Adani Director November 5, 1998
Alon Adani
EXHIBIT 5.1
[CASSIDY & ASSOCIATES LETTERHEAD]
November 16, 1998
Board of Directors
155 Montgomery Street, #406
San Francisco, California 94104
Gentlemen:
This opinion letter is submitted to you in conformance with
Item 601 of Regulation S-B of the Securities and Exchange
Commission with respect to the registration on Form S-8 (the
"Registration Statement") by Prime Companies, Inc., a Delaware
corporation, ("the Company") of 119,755 shares of Common Stock,
$.0001 par value per share ("the Shares"), to be issued to
Forbes Investments Ltd.
We have examined the original, certified, conformed,
photostatic, electronic, facsimile or other forms of such
corporate records, resolutions, certificates, authorizations
or other documents as we have considered relevant to our
opinion. In all such examinations, we have assumed the
genuineness of all signatures on original documents and the
conformity to originals and certified documents of all copies
submitted to us as conformed, photostatic, electronic or
facsimile copies. In reviewing corporate records and other
documents, we have assumed the accuracy of those records and
documents. We have consulted with such officers, directors,
employees, and advisors of the Company in regard to questions
of material fact as we have considered relevant to our
opinion, and have relied upon the accuracy and completeness of
the statements and representations of such persons. We have
examined such laws, statutes, judicial or administrative
decrees, interpretations and opinions, and such other sources
as we have considered material to the legal issues relevant to
our opinion.
Based upon and in reliance on the foregoing, we are of the
opinion that the Shares have been duly authorized for issue
and that the Shares, when issued as authorized by the Board of
Directors of the Company, will be duly authorized and validly
issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion letter in
the Registration Statement to be filed with the Securities and
Exchange Commission.
Sincerely,
Cassidy & Associates
By
James Michael Cassidy, Esq.
EXHIBIT 10.1
[PRIME COMPANIES, INC. LETTERHEAD]
November 16, 1998
Forbes Investments Ltd.
18 harbour Road, Central Plaza
Suite 4703
Wanshai, Hong Kong
Re: S-8 Issuance
Dear Sirs:
Prime Companies, Inc. acknowledges that Forbes Investments Ltd.
has provided consulting services to Prime and in
consideration for said services, Prime will agree to pay
Forbes Investments Ltd. 119,755 shares of common
stock of the Company through an S-8 Registration Statement.
Very truly yours,
/s/ Irving Pfeffer
Irving Pfeffer
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8
registration statement of our report, dated April 19, 1998, on the
financial statements of Prime Companies, Inc., and to
reference to our firm under the caption "experts" in the prospectus.
San Francisco CA
November 16, 1998
GILBERT & COMPANY
CERTIFIED PUBLIC ACCOUNTANT
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 9th
day of September, 1998, by and between Prime Companies, Inc.,
(the "Company"), and Forbes Investments, Ltd. (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the
Company the consulting services provided for in the Agreement
as set forth below;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
respective covenants and agreements of the parties herein
contained, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof
and end on February 28, 1999.
2. CONSULTING SERVICES
(a) Long range corporate planning and business
development, Including but not limited to the development of
corporate strategy, market Direction and implementation of
business plans;
Review and analysis of potential markets and customers
in such markets.
Review of operations and analysis of deviations form the
business plan
For such markets.
(b) Compensation. In consideration of the
consulting services set forth in paragraph 2 (a), and subject
to the terms and conditions set forth herein the Company
hereby agrees to issue to Consultant 333,723 shares of the
Company's Common Stock (the "Shares") and register such
shares at the time of initial issuance, or immediately
thereafter, on Form S-8 under the Securities Act of 1933.
(c) Issuance. Issuance and delivery of the Shares
shall be made at the offices of the Company, on
or before September 20, 1998. On the Closing
Dates, the Company shall deliver to the Consultant:
(i) the certificate or certificates
evidencing the Shares to be issued
to the Consultant and the respective dates,
registered in the name
of the Consultant; and
(ii) evidence that the Shares have been
registered on Form
S-8 to be filed upon issuance of the Shares to the
Consultant, Registering for resale thereof.
(d) Expenses.
During the term of the Consultant's engagement hereunder, The
Consultant shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living
expenses while away from home on business at the request of
and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies
and procedures established by the Company, and that any
expenses in excess of $500.00 have been pre-approved in
writing by the Company.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the
providing of Consulting Services hereunder, the Company may
provide the Consultant with information concerning the Company
which the Company deems confidential (the "Confidential
Information"). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement
is secret, proprietary and of great value to the Company,
which value may be impaired if the secrecy of such information
is not maintained. The Consultant further agrees that it will
take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such
information in confidence and not to disclose such
information, either directly or indirectly to any person or
entity during the term of this agreement or any time following
the expiration or termination hereof; provided, however, that
the Consultant may disclose the Confidential Information to
employees of Consultant to whom disclosure is necessary for
the providing of services under this agreement.
(b) Exclusions. For purposes of this paragraph 3,
the term Confidential Information shall not include
Information which (i) becomes generally available to the
public other than as a result of a disclosure by the
Consultant or its assistants, agents or advisors, or (ii)
becomes available on a non-confidential basis to the
Consultant from a source other than the Company or it's
advisors, provided that such source is not known to the
Consultant to be bound by a Confidentiality agreement with or
other obligation of secrecy to the Company or another party.
(c) Government Order Notwithstanding anything to the
contrary in this Agreement, the Consultant shall not be
precluded from disclosing any of the Confidential Information
pursuant to a valid order of any governmental or regulatory
authority, or pursuant to the order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that,
since a violation of this paragraph 3 would cause irreparable
injury to the Company, and that there may not be an adequate
remedy at law for such violation, the Company shall have the
right in addition to any other remedies available at law or in
equity, to enjoin the Consultant in a court of equity for
violating the provisions of this paragraph 3.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant
that as of the date hereof and as of the Closing Date (after
giving effect to the transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation
duly organized and validly existing in good standing under the
laws of Delaware and has full power and authority to own its
respective property, carry on its respective business as not
being conducted, and enter into and perform its obligations
under this Agreement and to issue and deliver the Shares to be
issued by it hereunder. The Company is duly qualified in a
jurisdiction in which it is necessary to be so qualified to
transact business as currently conducted. This Agreement has
been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights of creditors generally and to general principles of
equity.
(b) Authorization and Validity of Shares. The Shares have
been duly authorized and are validly issued and outstanding,
fully paid and non-assessable and free of any preemptive
rights. The Shares are not subject to any lien, pledge,
security interest or other encumbrance.
(c) Authorization of Agreement The Company has taken all
actions and obtained all consents or approvals necessary to
authorize it to enter into this Agreement.
(d) No Violation. Neither the execution or delivery of
this Agreement, the issuance or delivery of Shares, the
performance by the Company of its obligations under this
Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a
breach of or a default (with the passage of time or otherwise)
under, require the consent or approval of or filing with any
person (other than consents and approvals which have been
obtained and filings which have been made) under, or result in
the imposition of a lien on or security interest in any
properties or assets of the Company, pursuant to the charter
or bylaws of the Company, any award of any arbitrator or any
agreement (including any agreement with stockholders),
instruments, order, judgment, decree, statute, law, rule or
regulation to which the Company is party or to which any such
person or any of their respective properties or assets is
subject.
(e) Registration. The Shares have been, or will be upon
the filing of an S-8 Registration Statement, registered
pursuant to the Securities Act of 1933, as amended, and all
applicable state laws.
5. FILINGS
The Company shall furnish to the Consultant, promptly after
the sending or filing thereof, copies of all reports which the
Company sends to its equity security holders generally, and
copies of all reports and registration statements which the
Company files with the Securities and Exchange Commission (the
"Commission"), any other securities exchange or the National
Association of Securities Dealers, Inc. ("NASD")
6. SUPPLYING INFORMATION
The Company shall cooperate with the Consultant in supplying
such publicity available information as may be reasonably
necessary for the Consultant to complete and file any
information reporting forms.
7. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees),
judgments, fines, claims, causes of action, liabilities and
other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in
connection with such action, suit or proceeding if (i) the
Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant
acted in good faith and in a manner reasonably believed by the
Consultant to be in or not opposed to the interests of the
Company, and, with respect to any criminal action or
proceeding, had no reasonable cause o believe its conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendre or its equivalent, shall not, of itself, create
a presumption that the Consultant did not act in good faith in
or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that its conduct was unlawful.
Notwithstanding the forgoing, the Company shall not indemnify
the Consultant with respect to any claim, issue or matter as
to which the consultant shall have been adjudged to be liable
for gross negligence or willful misconduct in the performance
of its duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjunction of liability, but in view of all the circumstances
of the case, the Consultant is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees),
judgments, fines, claims, causes of action, liabilities and
other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection
with such action, suit or proceeding if (i) the Company was
made a party to any action, suit or proceeding by reason of
the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not
act in good faith and in a manner reasonably believed by the
Consultant to be in or not opposed to the interests of the
Company, and with respect to any criminal action or
proceeding, did not reasonably believe its conduct was lawful.
Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or
matter as to which the Company shall have been adjudged to be
liable for gross negligence or willful misconduct in
connection with the performance of the Consultant's duties
pursuant to this Agreement unless and only to the extent that
the court in which such action or suit was brought shall
determine upon application that, despite the adjunction of
liability, but in view of all circumstances of the case, the
Company is fairly and reasonably entitled to indemnify for
such expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a
consulting agreement only and does not constitute an
employer-employee relationship. Accordingly, the Consultant
agrees that the consultant shall be solely responsible for
payment of its own taxes or sums due to the federal, state, or
local governments, overhead, workmen's compensation, fringe
benefits, pension contributions and other expenses. It is
further understood and agreed that the Consultant is an
independent contractor and the company shall have no right to
control the activities of the Consultant other than during the
express period of time in which the Consultant is performing
services hereunder, and that such services provided hereunder
and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind
the company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be
performing services and undertaking other responsibilities,
for and with other entities or persons, which may directly or
indirectly compete with the Company. Accordingly, the services
of the Consultant hereunder are on a part time basis only, and
the Company shall have no discretion, control of, or interest
in, the Consultant's services which are not covered by the
terms of this Agreement. The Company hereby waives any
conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future
employment.
9. NOTICE
All notices provided by this Agreement shall be in writing and
shall be given by facsimile transmission, overnight courier,
by registered mail or by personal delivery, by one party to
the other, addressed to such other party at the applicable
address set forth below, or to such other address as may be
given for such purpose by such other party by notice duly
given hereunder. Notice shall be deemed properly given on the
date of the delivery.
To CONSULTANT:
Forbes Investments, Ltd.
18 Harbour Road
Central Plaza, Ste 4703
Wanchiai, Hong Kong
To the COMPANY:
Prime Companies, Inc.
155 Montgomery Street
Suite 406
San Francisco, CA 94104
10. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement
may be waived at any time by the party entitled to the benefit
thereof by a written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended,
modified, or altered except by an instrument in writing signed
by the party against whom such amendment, modification, or
alteration is sought to be enforced. This Agreement supersedes
and replaces all other agreements between the parties with
respect to any services to be performed by the Consultant of
behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the Sate of Florida.
(d) Binding Effect. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained
herein are inserted for convenient reference only, are not a
part hereof and the same shall not limit or construe the
provisions to which they apply. References in this agreement
to "paragraphs" are to the paragraphs in this Agreement,
unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible for
the cost and expenses, including, without limitations,
attorneys' fees, incurred by such party in connection with
negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its
rights or delegate any of its obligations under this Agreement
without the express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or
implied is intended or shall be construed to confer upon or
give to any person, firm or corporation, other than the
parties hereto.
(i) Counterparts This Agreement may be executed
simultaneously in two counterparts, each of which shall be
deemed an original, but both of which together shall
constitute one and the same agreement, binding upon both
parties hereto, notwithstanding that both parties are not
signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date and year first above written.
THE "COMPANY"
By /s/David Lefkowitz
President
THE "CONSULTANT"
By President
