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As filed with the Securities and Exchange Commission on December 29, 1999
12/29/1999 - 8:35 AM
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CONSOLIDATED DATA, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-1343219
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
6912 220th Street SW, Suite 3200 Mountlake
Terrace, Washington 98043
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Address of Principal Executive Offices
(425) 672-6735
----------------
(Registrant's Telephone Number, Including Area Code)
Services Agreement, dated as of October 1, 1999,
between Consolidated Data, Inc. and Dean Kalivas
------------------------------------------------
(Full Title of the Plan)
Pakie V. Plastino
Consolidated Data, Inc.
6912 220th Street SW, Suite 3200 Mountlake Terrace, Washington 98043
--------------------------------------------------------------------
(Name and Address of Agent For Service)
(425) 672-6735
--------------
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
================================= ----------------- ---------------------- -------------------- ------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Per Aggregate Offering Amount of
Securities to be Registered (1) be Registered Share Price Registration Fee
--------------------------------- ----------------- ---------------------- -------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, without par value 40,000 shares $0.8333 $33,332 $88.00
--------------------------------- ----------------- ---------------------- -------------------- ------------------
</TABLE>
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Commission, are
incorporated herein by reference:
1. The Registrant's registration statement on Form 10-SB/A-6 filed
with the Commission on December 22, 1999.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date hereof and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation and Bylaws generally require
the Company to indemnify any person who is or was a director, officer, agent,
fiduciary or employee of the Company against any claim, liability or expense
arising against or incurred by such person made party to a proceeding because he
is or was a director, officer, agent, fiduciary or employee of the Company.
Section 7-108-402 (1) of the Colorado Business Corporation Act provides
as follows:
"If so provided in the articles of incorporation, the corporation shall
eliminate or limit the personal liability of a director to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director; except that any such provision shall not
eliminate or limit the liability of a director to the corporation or to
its shareholders for monetary damages for any breach of the director's
duty of loyalty to the corporation or to its shareholders, acts or
omissions not in good faith or which involve the intentional misconduct
or a knowing violation of law, acts specified in section 7-108-403
[regarding unlawful corporate distributions], or any transaction from
which the director directly or indirectly derived an improper personal
benefit."
No such provision shall eliminate or limit the liability of a director
to the corporation or it its shareholders for monetary damages for any act or
omission occurring before the date when such provision becomes effective.
ARTICLE XIII of the Company's Articles of Incorporation provides as follows:
"The Board of Directors of the Corporation shall have the power to:
"A. Indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the by reason
of the fact that he is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees),
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judgments, fines and amounts paid in settlement actually and reasonably
Warred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in the
best interests of the Corporation and, with respect to any criminal
action or proceedings, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction or upon a plea of nolo
contendre or its equivalent shall not of itself create a presumption
that the person did not act in good faith and in a manner which he
reasonably believed to be in the best interests of the Corporation and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
"B. Indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgement in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of the Corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in the best interests of the
Corporation; but no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been adjudged to be
liable for negligence or misconduct in the performance of his duty to
the Corporation unless and only to the extent that the court in which
such action or suit was brought determines upon application that,
despite the adjudication of liability, but in view of all of the case,
such person is fairly and reasonably entitled to indemnification for
such expenses which such court deems proper.
"C. Indemnify a Director, officer, employee or agent of the
Corporation to the extent that such person has been successful on the
merits in defense of any action, suit or proceeding referred to in
Subparagraph A or B of this Article or in defense of any claim, issue,
or matter therein, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection therewith.
"D. Authorize indemnification under Subparagraph A or B of
this Article (unless ordered by a court) in the specific case upon a
determination that indemnification of the Director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Subparagraph A or B.
Such shall be made by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding, or, if such a quorum is to obtainable, or even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the shareholders.
"E. Authorize payment of expenses (including attorney's fees)
incurred in defending a civil or criminal action, suit or proceeding in
advance of the find disposition of such action, suit or proceeding as
authorized in Subparagraph D of this Article upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent
to repay such amount unless it is ultimately determined that he is
entitled to be indemnified by the Corporation as authorized in this
Article.
"F. Purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation
or who is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another
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corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provision of this Article.
"The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under these Articles of Incorporation, and the Bylaws,
agreement, vote of shareholders or disinterested directors or
otherwise, and any procedure provided for by any of the foregoing, both
as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall
inure to the benefit of heirs, executors and administrators of such a
person."
ARTICLE IX of the Company's Bylaws provides as follows:
"Section 1. Action, etc. Other Than by or in the Right of the
Corporation.
"The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding or investigation, whether civil,
criminal or administrative, and whether external or internal to the
Corporation, (other than a judicial action or suit brought by or in the
right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or that, being
or having been such a director, officer, employee, or trustee or agent,
he is or was serving at the request of the Corporation as a director,
officer, employee, or trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise in (all such
persons being referred to hereafter as an "Agent"), against expenses
(including attorneys' fees), judgments, fines and amounts paid is
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding, or any appeal therein, if such person
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to
believe such conduct was unlawful. The termination of any action, suit
or proceeding -- whether by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent -- shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to
the best in interests of the Corporation, and, with respect to any
criminal action or proceeding, that such person had reasonable cause to
believe that his conduct was unlawful
"Section 2. Action, etc., by or in the Right of the
Corporation.
"The Corporation shall indemnify any person who was at is a
party or is threatened to be made a party to any threatened, pending or
completed judicial action or suit brought by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact
that he is or was an Agent (as defined above) against expenses
(including attorneys' fees) actually and reasonably be incurred by him
in connection with the defense, settlement or appeal of such action or
suit if he acted in good faith and in a manner be reasonably believed
to be in or not opposed to the bee interests of the Corporation, except
that no indemnification shall be made in respect of any claim, issue or
matter which as to which such person shall have been
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adjudged to be liable for gross negligence or willful misconduct in the
performance of his or her duty to the Corporation unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnify for such expenses which
the court shall deem proper.
"Section 3. Determination of Right of Indemnification.
"Any indemnification under Section 1 or 2 (unless ordered by a
court) shall be made by the Corporation unless a determination is
reasonably promptly made (i) by the Board by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit at proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person acted in bad faith and in a manner that
such person did not believe to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal
proceeding, that such person believed or had reasonable cause to
believe that his conduct was unlawful.
"Section 4. Indemnification Against Expenses of Successful
Party.
"Notwithstanding the other provisions of this Article, to the
extent that an Agent has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice or the settlement of an action without admission of
liability, in defense of any proceeding or in defense of any claim,
issue or matter therein, or on appeal from any such proceeding, action,
claim or matter, such Agent shall be indemnified against all expenses
incurred in connection therewith.
"Section 5. Advances of Expenses.
"Except as limited by Section 6 of this Article, costs,
charges and expenses (including attorneys' fees) incurred in any
action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such
matter, if the Agent shall undertake to repay such amount in the event
that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. Notwithstanding the foregoing, no
advance shall be made by the Corporation if a determination is
reasonably and promptly made by the Board of Directors or if a majority
vote of a quorum of disinterested directors cannot be obtained, then by
independent legal counsel in a written opinion, that, based upon the
facts known to the Board or counsel at the time such determination is
made, such person acted in bad faith and a manner that such person did
not believe to be in or not opposed to the best interest of the
Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe his conduct was
unlawful. Is no event shall any advance be made in instances where the
Board or independent legal counsel reasonably determines that such
person deliberately breached his duty to the Corporation or its
shareholders.
"Section 6. Right of Agent to Indemnification Upon
Application: Procedure Upon Application.
"Any indemnification under Sections 1, 2 and 4 or advance
under Section 5 of this Article, shall be made promptly, and in any
event within ninety (90) days,
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upon the written request of the Agent, unless with respect to
applications under Sections 1, 2 or 5, a determination is reasonably
and promptly made by the Board of Directors by a majority vote of a
quorum of disinterested directors that such Agent acted in a manner set
forth in such Sections as to justify the Corporation's not indemnifying
or making an advance to the Agent. In the event no quorum of
disinterested directors is obtainable, the Board of Directors shall
promptly direct that independent legal counsel shall decide whether the
Agent acted in the manner set forth in such Sections as to justify the
Corporation's not indemnifying or making an advance to the Agent. The
right to indemnification or advances as granted by this Article shall
be enforceable by the Agent in any court of competent jurisdiction, if
the Board or independent legal counsel denies the claim, in whole or in
part, or if no disposition of such claim is made within ninety (90)
days. The Agent's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the
Corporation.
"Section 7. Contribution.
"In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Article
is held by a court of competent jurisdiction to be unavailable to an
indemnitee in whole or part, the Corporation shall, in such an event,
after taking into account, among other things, contributions by other
directors and officers of the Corporation pursuant to indemnification
agreements or otherwise, and, in the absence of personal enrichment,
acts of intentional fraud or dishonesty or criminal conduct on the part
of the Agent, contribute to the payment of Agent's losses to the extent
that, after other contributions are taken into account, such losses
exceed: (i) in the case of a director of the Corporation or any of its
subsidiaries who is not an officer of the Corporation or any of such
subsidiaries, the amount of fees paid to him for serving as a director
during the 12 months proceeding the commencement of the suit,
proceeding or investigation; or (ii) in the case of a director of the
Corporation or any of its subsidiaries who is also an officer of the
Corporation or any of such subsidiaries, the amount set forth in clause
(i) plus 5% of the aggregate cash compensation paid to said director
for service in such office(s) during the 12 months preceding the
commencement of the suit, proceeding or investigation; or (iii) in the
case of an officer of the Corporation or any of its subsidiaries, 5% of
the aggregate cash compensation paid to such officer of service in such
office(s) during the 12 months preceding the commencement of such suit,
proceeding or investigation.
"Section 8. Other Rights and Remedies.
"The indemnification provided by this Article shall not be
deemed exclusive of, and shall not affect, any other rights to which an
Agent seeking indemnification may be entitled under any law, Bylaw, or
charter provision, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be an Agent and shall inure
to the benefit of the heirs, executors and administrators of such a
person. All rights to indemnification under this Article shall be
deemed to be provided by a contract between the Corporation and the
Agent who serves in such capacity at any time while these Bylaws and
other relevant provisions of the general corporation law and other
applicable law, if any are in effect. Any repeal or modification
thereof shall not affect any rights or obligations then existing.
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"Section 9. Insurance.
"Upon resolution passed by the Board, the Corporation may
purchase and maintain insurance on behalf of any person who is or was
an Agent against any liability asserted against such person and
incurred by him in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this
Article. The Corporation may create a mist fund, grant a security
interested or use other means (including, without limitation, a letter
of credit) to ensure the payment of such sums may become necessary to
effect indemnification as provided herein.
"Section 10. Constituent Corporation.
"For the purposes of this Article, references to the
"Corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving
corporation, so that any person who is or was a director, officer,
employee, agent or trustee of such a constituent corporation or who,
being or having been such a director, officer, employee or trustee, of
another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provision of this
Article with respect to the resulting or surviving corporation as such
person would if be had served the resulting or surviving corporation in
the same capacity.
"Section 11. Other Enterprises, Fines and Serving at
Corporation's Request.
"For purposes of this Article, references to "other
enterprise" in Sections 1 and 10 shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan; and references to
"serving at the request of the Corporation" shall include any service
by Agent as director, officer, officer, employee, trustee or agent of
the Corporation which imposes duties on, or involves services by, such
Agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
"Section 12. Savings Clause.
If this Article or any portion thereof shall be invalidated as
any ground by any court of competent jurisdiction then the Corporation
shall nevertheless indemnify each Agent as to expenses (including
attorneys' fees), judgments, fines and amounts paid is settlement with
respect to any action, suit, appeal proceeding or investigation,
whether, civil, criminal or administrative, and whether internal or
external, including a grand jury proceeding and an action or suit
brought by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have
been invalidated, or by any other applicable law."
The above discussions of the Company's Articles of Incorporation,
Bylaws and the Colorado Business Corporation Act is only a summary and is
qualified in its entirety by the full text of each of the foregoing.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), may be permitted for directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the 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.
Exhibit Number Exhibit
- -------------- -------
4.1 Services Agreement, dated as of October 1, 1999, between
Consolidated Data, Inc. and Dean Kalivas
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of William L. Butcher, CPA P.S., independent auditor
23.2 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page)
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 Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represents no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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 any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 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.
(h) Insofar as indemnification for liabilities arising under the Act
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 of 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.
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Signatures
The Registrant. 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 caused this
registration statement or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in Mountlake Terrace, Washington, on
December 29, 1999.
CONSOLIDATED DATA, INC.
By: /s/ Pakie V. Plastino
--------------------------------
Pakie V. Plastino, President
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Pakie V. Plastino his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all said attorney-in-fact and agent of them or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
Chairman and Director December 29, 1999
/s/ Pakie V. Plastino
- ------------------------------
Pakie V. Plastino
Chief Operating Officer and December 29, 1999
Director
/s/ William D. Doehne
- -------------------------------
William D. Doehne
<PAGE>
Exhibit index
Exhibit Number Exhibit Page
-------------- ------- ----
4.1 Services Agreement, dated as of October 1, 1999, between
Consolidated Data, Inc. and Dean Kalivas
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of William L. Butcher, CPA P.S., independent
auditor
23.2 Consent of Dorsey & Whitney LLP (Included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page)
<PAGE>
Exhibit 4.1
-----------
Consolidated Data, Inc.
6912 220th Street SW, Suite 320
Mountlake Terrace, WA 98043
V. 425.672.6735 F. 425.776.1855
Services Agreement
This letter of agreement (the "Agreement') sets forth the terms and conditions
of your services to Consolidated Data, Inc. (the "Company"). This Agreement has
an effective date of October 1, 1999 (the "Effective Date").
In consideration of the mutual covenants and promises made in this Agreement you
and Company agree as follows:
1. Services.
(a) Period. As of the Effective Date, the Company agrees to retain your services
to advise the Company in a variety of business planning and legal matters
including contract review and negotiation, tax planning, corporate governance,
regulatory compliance, and other related matters.
(b) Status. You and the Company intend that, in performing these services you
shall act solely as an independent contractor and not as an employee of the
Company. You shall, in your reasonable discretion, determine the methods,
techniques and procedures that you use in performing such services. Nothing
contained in this Agreement, nor any aspect the intended arrangement between the
parties, shall be deemed, for any reason, to constitute making you an employee
of the Company until such time as provided in Section 2.
(c) Insurance. During the period when you are providing services to the Company
you are solely responsible for securing and maintaining workers' compensation
insurance for yourself and any of your employees.
(d) Compensation. In consideration of entering into this Agreement and agreeing
to provide services, you will receive $8,333 (eight thousand, three hundred and
thirty three) dollars per month, or at your discretion, fully vested grants of
common shares of the Company per month, or pro-rata for a portion of a month,
that have a value equal to $8,333 based on the closing bid price of the Company
on the exchange in which it is traded. Compensation under this agreement is
limited to a maximum of $33,332 or 40,000 shares. Payment in cash, or in shares,
is due at the address you provide below, by the fifteenth of the following
month. The Company will make every effort to timely file all necessary documents
to ensure that any shares granted will be free from liens, encumbrances, and
restriction on resale subject to applicable State and Federal laws.
2. Term. This Agreement shall continue until it is terminated as provided
herein.
3. Non competition, Non solicitation, Confidentiality. In view of your access to
confidential information, and as a condition to the receipt of payment you shall
not, for 3 (three) months following your termination of services, without the
Company's written consent, directly or indirectly, alone or as a partner joint
venture, officer, director, employee, consultant, agent or stockholder (other
than a less than 5% stockholder of a publicly traded company) (i) engage in any
activity which is in competition with the business, the products or services of
the Company in any geographic area in which the Company's products are marketed,
(ii) solicit any of the Company's employees, consultants, customers, (iii) hire
any of the Company's employees or consultants in an unlawful manner or actively
encourage employees or consultants to leave the Company, or (iv) directly or
indirectly divulge or disclose for any purpose whatsoever or use for your own
benefit, any confidential information that has been obtained by or disclosed to
you as a result of your employment hereunder. For purposes of this Section, the
term "Company" shall include the Company's parents, subsidiaries or affiliates.
You acknowledge that the terms of this Agreement, including this Section, are
reasonably necessary to protect the Company's legitimate business interests and
are reasonable limited in scope and duration.
<PAGE>
4. Governing Law Arbitration. This Agreement will be deemed a contract made
under and for all purposes shall be construed in accordance with, the laws of
Washington. Any controversy or claim relating to this Agreement any breach
thereof, and any claims you may have against the Company or any officer,
director or employee of the Company or arising from or relating to your
relationship with the Company, will be settled solely and finally by arbitration
Seattle, Washington in accordance with the rules of the American Arbitration
Association ("AA then in effect in the State of Washington, and judgment upon
such award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof, provided that this Section 1 shall not be construed to
eliminate or reduce any right the Company or you may otherwise have obtain a
temporary restraining order or a preliminary or permanent injunction to enforce
your Confidential Information obligations before the matter can be heard in
arbitration. The arbitrate may provide the cost of the arbitration (including
reasonable legal fees) incurred by you or the Company will be borne by the
non-prevailing party.
5. Entire Agreement. Except as otherwise specifically provided in this
Agreement, Agreement contains all the legally binding understandings and
agreements between you and the Company pertaining to the subject matter of this
Agreement and supersedes all such agreements whether oral or in writing
previously entered into between the parties.
6. Miscellaneous. No provision of this Agreement may be amended or waived unless
you and the Company in writing agree such amendment or waiver. No waiver by you
or the Company of the breach of any condition or provision of this Agreement
will be deemed a waiver or a similar or dissimilar provision or condition at the
same or any prior or subsequent to in the event any portion of this Agreement is
determined to be invalid or unenforceable for any reason, the remaining portions
shall be unaffected thereby and will remain in full force and effect the fullest
extent permitted by law.
Please acknowledge your acceptance and understanding of this Agreement by
signing and below and returning it to me. A copy of this signed Agreement will
be sent to you for your records.
Sincerely,
/s/ Pakie V. Plastino
- -----------------------------------------
Pakie V. Plastino, Director and President
ACKNOWLEDGED AND AGREED:
/s/ Dean Kalivas
- -----------------------------------------
Dean Kalivas
Attorney at Law
1420 Fifth Avenue, Suite 2200
Seattle, WA 98101
<PAGE>
Exhibit 5.1
-----------
[Letterhead of Dorsey & Whitney LLP]
December 29, 1999
Board of Directors
Consolidated Data, Inc.
6912 220th Street, Suite 3200
Mountlake Terrace, Washington 98043
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
You have requested our opinion as to certain matters that relate to
40,000 shares of the no par value common stock ("Common Stock") of Consolidated
Data, Inc. ("Company") that may be issued to Dean Kalivas pursuant to a Services
Agreement between the Company and Dean Kalivas dated October 1, 1999
("Agreement").
We have reviewed the Articles of Incorporation of the Company, as
amended, the Agreement, and such other documents that we considered necessary in
order to render this opinion. As a result of our review, we are of the opinion
that, assuming the shares of Common Stock are paid for as described in the
Agreement, when issued, the shares of Common Stock will be validly issued, fully
paid and nonassessable.
This opinion is limited to applicability of the Colorado Business
Corporation Act and the Colorado common law to the issuance of the shares of
Common Stock. This opinion does not cover or is in any way related to the
applicability of, or compliance by the Company with, any other law, including
any federal or state securities laws, any other state common law or any other
federal law.
We consent to you describing this firm as having issued the opinion in
the prospectus that is a part of the registration statement referenced above.
Very truly yours,
DORSEY & WHITNEY LLP
<PAGE>
Exhibit 23.1
------------
[Letterhead of William L. Butcher, CPA P.S.]
December 23, 1999
Consolidated Data, Inc.
6912 - 220th Street SW
Suite 320
Mountlake Terrace, WA 98043
RE: Consolidated Data, Inc.
Letter pursuant to Regulation S-B or Form S-8
File No. 0-26969
Dear Sirs:
This firm audited the restated consolidated financial statements for
Consolidated Data Inc. for the interim period ended June 30, 1999 and for the
years ended September 30, 1998 and 1997 dated October 18, 1999. This firm
consents to the inclusion of the above-described audited financial statements,
and its opinion thereon, in said Form S-8.
Sincerely,
/s/ WILLIAM L. BUTCHER
William L. Butcher CPA
