As filed with the Securities and Exchange Commission on November 16, 1999
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PROGRESSIVE TELECOMMUNICATIONS CORPORATION
(Exact name of issuer as specified in its charter)
Nevada 95-3480640
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
601 Cleveland Street,
Suite 930, Clearwater, Florida 33755
(Address of Principal Executive Offices) (Zip Code)
Employment Agreement
Stock Option Plan
(Full title of the Plan)
Barry L. Shevlin, CEO
Progressive Telecommunications Corporation
601 Cleveland Street, Suite 930
Clearwater, Florida 33755
(Name and address of agent for service)
(727) 466-9898
(Telephone number, including area code of agent for service)
copies to:
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
(516) 228-8181
Approximate date of commencement of proposed sale to the public: Upon
the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee(1)
Common Stock
Purchase Warrant 11,500 -- -- --
Common Stock(2),
$0.001 par value 11,500 $1.25 $14,375 $4.00
Common Stock 320,000 $5.00 $1,600,000 $444.80
TOTAL $1,614,375 $448.80
(1) The fee with respect to these shares has been calculated pursuant to
Rules 457(h) and 457(c) under the Securities Act of 1933 and based upon
the average of the last price per share of the Registrant's Common Stock
on November 10, 1999, a date within five (5) days prior to the date of
filing of this Registration Statement, as reported by the NASDAQ
SmallCap Market.
(2) Issuable upon exercise of the Stock Options.
Documents Incorporated by Reference X Yes No
PART II
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999;
(e) The Company's Current Report on Form 8-K for the event dated June 7,
1999 filed with the SEC on June 16,1999;
(f) The Company's Current Report on Form 8-K for the event dated July 30,
1999 filed with the SEC on August 6, 1999;
(g) The Company's Current Report on Amendment No. 1 to Form 8-K for the
event dated July 30, 1999 filed with the SEC on October 13, 1999;
(h) The Company's Current Report on Form 8-K for the event dated October 1,
1999 filed with the SEC on October 6, 1999;
(i) Definitive Proxy Statement dated July 7, 1999; and
(j) All other documents filed by the Company after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment to the Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities
then remaining in the Registration Statement and to be part thereof from
the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable
Item 5. Interest of Named Experts and Counsel.
Certain legal matters in connection with the shares being
registered herein will be passed upon for the Company by the Law Offices of
Sommer & Schneider LLP, 595 Stewart Avenue, Suite 710, Garden City, NY 11530.
Mr. Herbert H. Sommer owns 130,000 shares of the Company's Common Stock and Mr.
Joel C. Schneider owns 135,300 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation and By-laws of the Company
provide that the Company shall indemnify to the fullest permitted by Nevada law
any person whom it may indemnify thereunder, including directors, officers,
employees and agents of the Company. Such indemnification (other than as
ordered by a court) shall be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct i.e., such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the Company. Advances for such indemnification may be made pending such
determination. Such determination shall be made by a majority vote of a
quorum consisting of disinterested directors, or by independent legal counsel or
by the stockholders. In addition, the Certificate of Incorporation provides
for the elimination, to the extent permitted by Nevada law, of personal
liability of directors to the Company and its stockholders for monetary
damages for breach of fiduciary duty as directors.
The Company has also agreed to indemnify each director and
executive officer pursuant to an Indemnification Agreement with each such
director and executive officer from and against any and all expenses, losses,
claims, damages and liability incurred by such director or executive officer
for or as a result of action taken or not taken while such director or
executive officer was acting in his capacity as a director, officer, employee
or agent of the Company. The obligations of the Company for indemnification
is limited to the extent provided in the New York Business Corporation Act
and is also limited in situations where, among others, the indemnitee is
deliberately dishonest, gains any profit or advantage to which he is not
legally entitled or is otherwise indemnified.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of 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 Securities
Act 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 of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Number Description
4.0 Employment Agreement dated November 9, 1999 between the Company
and James Maquire
4.1 Agreement between the Company and Sommer & Schneider LLP dated
November 10, 1999
4.3 1993 Incentive Stock Option Plan - incorporated by reference to
Exhibit B to Proxy Statement Dated April 1, 1999
5.0 Consent and Opinion of Sommer & Schneider LLP
24.0 Consent of Jay J. Shapiro, C.P.A.
24.1 Consent of Meeks, Dorman & Company P.A.
Item 9. Undertakings.
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(b) 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
(c) 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 (1)(a) and (1)(b) do not
apply if the registration statement is on Form S-3 or Form S-8
and the information required to be included in a post-effective
amendment by this paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities 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.
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Item 310(b) of
Registration S-B is not set forth in the prospectus, to deliver, or
cause to be delivered, to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(6) To deliver or cause to be delivered with the prospectus to each employee
to whom the prospectus is sent or given, a copy of the registrant's
annual report to stockholders for its last fiscal year, unless such
employee otherwise has received a copy of such report, in which case the
registration shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on written request of the
employee. If the last fiscal year of the registrant has ended within
120 days prior to the use of the prospectus, the annual report of the
registrant for the preceding fiscal year may be so delivered, but within
such 120-day period the annual report for the last fiscal year will be
furnished to each such employee.
(7) To transmit or cause to be transmitted to all employees participating in
the Plans who do not otherwise receive such material as stockholders of
the registrant, at the time and in the manner such material is sent to
its stockholders, copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
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 caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Clearwater, State of Florida, on
November 15, 1999.
PROGRESSIVE TELECOMMUNICATIONS
CORPORATION
/s/ Barry L. Shevlin
Barry L. Shevlin, Chairman and CEO
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
Signatures Date
/s/ Barry L. Shevlin November 15, 1999
Barry L. Shevlin
Chairman and Chief Executive Officer
November 15, 1999
Tom Chubokas
President and Director
/s/ James C. Watson November 15, 1999
James C. Watson
Executive Vice President and Director
/s/ Howard Tackett November 15, 1999
Dr. Howard Tackett
Vice President and Director
/s/ James Wallace November 15, 1999
James Wallace, Director
5
form s-8
1
form s-8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 9th of Novemner, 1999 between Progressive Telecommunications Corporation,
Inc. ("Corporation"), a Nevada corporation, and James Maguire
("Employee").
WHEREAS, Corporation desires to employ Employee, and Employee desires
to be employed by Corporation; and WHEREAS, Corporation and Employee desire to
enter this Agreement which sets forth the terms and conditions of said
employment.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Corporation and Employee agree as follows:
1. Employment. Corporation agrees to employ Employee, and Employee
accepts such employment and agrees to serve Corporation, on the terms and
conditions set forth herein.
2. Term of Agreement. The Term of Employee's employment hereunder
shall commence on the date first set forth above and shall continue in effect
until the 31st day of December, 2001 ("Term").
3. Position and Duties. Employee shall be responsible for the
establishment, maintenance and supervision of Corporation's direct
telemarketing operation of the yellow page directory services (hereinafter
referred to as"YPD") in the Clearwater, Florida region. The parties agree
and understand that, during the time of Employee's employment with the
Corporation, the Employee shall be responsible for managing the telemarketing
operations of the Corporation, which marketing operations include the
selling of Internet directory listings, Internet advertising, web sites and
other products and services to the Corporation's customers throughout the
United States. References in this Agreement to Employee's employment with
Corporation shall be deemed to refer to employment with Corporation or an
affiliate.
4. Compensation and Related Matters.
4.1 Base Salary. During the Term of his employment
hereunder, Corporation shall pay to Employee an annual
base salary of $104,000. Base Salary shall be paid in
installments of $4,000 every two weeks.
4.2 Benefit Plans and Arrangements. Employee shall be
entitled to participate in and to receive under
Corporation's employee benefit plans and arrangements in
effect during the Term of his employment hereunder.
4.3 Perquisites. During the Term of his employment
hereunder, Employee shall be entitled to receive fringe
benefits ordinarily and customarily provided by
Corporation to persons of a position and/or status in
Corporation equal to that of Employee.
4.4 Expenses. Corporation shall promptly reimburse Employee
for all normal out-of-pocket expenses related to
Corporation's business that are actually paid or
incurred by him in the performance of his services under
this Agreement.
5. Representations Concerning Corporation's Stock. The Corporation
represents and warrants to the Employee that the Corporation's common stock is
currently traded, on NASDAQ Over the Counter Bulletin Board. The Corporation
hereby represents to the Employee that the trading symbol for the
Corporation's common stock on NASDAQ OTC-BB is "PTCI". The Corporation
further represents and warrants to the Employee that any and all of the
Corporation's common stock which is hereafter issued by the Corporation to
the Employee, owned by the Employee or for which any warrants or options are
issued by the Corporation to the Employee: (i) when earned or paid for as
contemplated by this Agreement, shall not be subject to any further call or
assessment, (ii) shall be of the same class of stock as the shares of stock
of the Corporation currently being traded on NASDAQ Over the Counter, and
(iii) all federal and state securities law and NASDAQ filings with respect
thereto shall be timely and properly filed, including but not limited to any
S-8 filings.
6. Termination. The Term of Employee's employment hereunder may be
terminated under the following circumstances:
6.1 Death. The Term of the Employee's employment hereunder
may be terminated upon his death.
6.2 Without Cause. Corporation may terminate the Term of
Employee's employment without cause at any time upon
written notice to Employee.
6.3 With Cause. Corporation may terminate the Term of
Employee's employment with cause at any time upon
written notice to Employee. Cause shall be defined as
failure to meet 50% of the per telemarketer per day
threshold as defined in Section 10.2 for two consecutive
quarters.
Upon termination of Employee's employment by Corporation without cause, under
section 6.2 above, the Employee shall be entitled to receive all of the shares
of common stock and warrants issued or not issued under the maximum shares
under section 10.1, which shares of common stock and warrants shall be
delivered to Employee in equal monthly installments from the date of
termination through December 31, 2001.
7. Corporation's Responsibilities And Support Services. The
Corporation agrees and represents that the Corporation shall provide the
funding necessary to fully and timely effectuate the budget attached hereto as
"Exhibit A" hereinafter referred to as the Budget. The Corporation shall have
no obligations to fund expenditures that would exceed the assumptions outlined
in the Budget.
8. Employee's Signing Bonus. In addition to the Base Salary, the
Corporation agrees to provide a signing bonus to the Employee Two Hundred
Thousand (200,000) shares of common stock of the Corporation; and
The Corporation agrees and represents that the shares of common stock of
the Corporation comprising the Signing Bonus shall be issued to the Employee
as of the date of execution of this Agreement, and such shares of common
stock of the Corporation shall be immediately registered under S-8 as to make
the securities available to be traded on NASDAQ Over the Counter, without
limitation or restriction.
9. Employee's Bonus Stock Incentives. In addition to the Base
Salary and Signing Bonus provided hereinabove, the Corporation hereby grants
to the Employee certain bonus stock incentives, as provided hereinbelow:
9.1 Stock Incentive. The Employee shall be entitled to a bonus
stock incentive which shall be based on the sales of the
Corporation's products and services which are made by the
telemarketing operations of the Corporation. All sales made by
the telemarketing operations of the Corporation shall be
included for purposes of calculating and determining the amount
of any bonus stock incentive earned by the Employee at such time
as a customer verbally agrees to purchase any such products or
services, and once payment is actually received by the
Corporation for any such sales. The dollar amount of a "sale"
will be the total dollar commitment of a customer for the
services or products purchased, for a twelve (12) month period.
(For example, if a customer agrees to purchase a service and the
charge for said service is Fifty Dollars per month, then the
amount of the sale for purposes of this Agreement shall be
considered to be Six Hundred Dollars.) Such bonus stock
incentives shall be computed and disbursed to the Employee on a
quarterly basis during the eight (8) quarters commencing January
1, 2000 and ending December 31, 2001.
9.2 Calculation of Quarterly Stock Incentive. At the end of each of
the eight (8) quarters, the Employee's bonus stock incentive
shall be based upon the average monthly sales during the quarter
then ending. Such Average Monthly Sales shall be computed as
follows:
[Dollar amount of total sales of the Corporation's
products and services made by the telemarketing
operations of the Corporation during the quarter]
\ 3 = Average Monthly Sales
The total dollar value of the number of shares of common stock
of the Corporation to be issued to the Employee as a bonus stock
incentive for such quarter shall then be computed as follows:
[Average Monthly Sales] x .80 (i.e., 80%) = total dollar
value of quarterly bonus stock incentive
The number of shares of common stock of the Corporation to be
issued to the Employee as such quarterly bonus stock incentive
shall be the number of shares, at a value of Five Dollars
($5.00) per share, which is equal to such total dollar value of
the quarterly bonus stock incentive, as computed above.
Additionally, the Corporation shall also grant to the Employee,
at the end of each of the eight (8) quarters, a warrant for
additional shares of common stock of the Corporation, at a value
of Five Dollars ($5.00) per share, equal to one-half (1/2) of
the total dollar amount of the quarterly bonus stock incentive.
9.3 Example. The following is an illustrative example of the
calculation of the quarterly bonus stock incentives and
quarterly warrants:
Assume that the Corporation's monthly sales during the
first (1st) quarter are:
January, 2000 $1,500,000.00
February, 2000 $2,000,000.00
March, 2000 $2,125,000.00
Total Quarterly Sales $5,625,000.00
The Employee's quarterly bonus stock incentives would then be
calculated as follows:
$5,625,000.00 (total quarterly sales) / 3 =
$1,875,000.00 (Average Monthly Sales)
$1,875,000.00 (average monthly sales) x .80 =
$1,500,000.00 (total dollar value of quarterly stock
incentive)
$1,500,000.00 (total dollar value of quarterly bonus
stock incentive) / $5.00 (per share) = 300,000 shares
The warrant issued to the Employee for additional shares of
common stock of the Corporation would then be equal to 150,000
shares.
10. Restrictions And Limitations on Stock Incentive. The Employee's
bonus stock incentives shall be subject to the following limitations and
restrictions:
10.1 Maximum Shares. The number of shares of common stock of the
Corporation which may be issued to the Employee as bonus stock
incentives during the eight (8) quarters shall not exceed a
total of two million four hundred thousand (2,4000,000) shares.
Additionally, the number of shares of common stock of the
Corporation for which warrants are granted to the Employee
during the eight (8) quarters shall not exceed a total of one
million two hundred thousand (1,200,000) shares.
10.2 Sales Threshold. Though the parties acknowledge and agree
that the Employee is not subject to any specific sales
requirements or quotas, it is the hope of the parties that the
sales by the Corporation's telemarketing operations will average
approximately Two Hundred Twenty-five Dollars ($225.00) per
telemarketer per day. During any calendar quarter during the
term of this Agreement, if the daily sales average for such
quarter are less than One Hundred Twelve and 50/100 Dollars
($112.50) per telemarketer per day, the Employee shall not be
entitled to a bonus stock incentive for such quarter, nor shall
the Employee be entitled to any warrants for such quarter. Also
in the event average daily sales are less than One Hundred
Twelve and 50/100 Dollars ($112.50) per telemarketer per day for
any quarter, the Corporation may then issue written notice to
the Employee that in the event average daily sales for the
quarter immediately following are also less than One Hundred
Twelve and 50/100 Dollars ($112.50) per telemarketer per day,
this Agreement may be terminated by the Corporation with cause.
10.3 Trading Restrictions for Bonus Stock Incentives. As to any
shares of common stock of the Corporation issued to the Employee
as bonus stock incentives, twenty-five percent (25%) of such
shares shall be immediately registered under S-8 as to make the
securities available to be traded or sold by the Employee on
NASDAQ, Over the Counter, without limitation or restriction,
upon issuance. The remaining seventy-five percent (75%) will be
issued under Rule 144 and such shares must be retained by the
Employee for not less than one (1) year from the date of the end
of the quarter for which such shares are issued.
Any securities unregistered on December 30th 2001 will be
registered under S-8 as to make the securities available to be
traded or sold by the Employee on NASDAQ OTC-BB, without
limitation or restriction.
10.4 Limitations on Warrants. The Employee shall be entitled to
exercise any warrants granted to the Employee at any time and
upon Employee's sole discretion at a price of Five Dollars
($5.00) per share, provided, however, if not exercised, such
warrants shall expire one (1) year after their date of issuance.
Upon Employee's exercise of any warrant, the resulting shares of
common stock of the Corporation issued to the Employee shall be
subject to the same trading and sale restrictions as the shares
of common stock issued to Employee for the quarter when such
warrant was granted, as provided in Subparagraph 10.3
hereinabove.
11. Equitable Adjustments. The Corporation agrees and represents
that the number of shares to be issued and warranted to the Employee pursuant
to the bonus stock incentive provisions hereinabove, or pursuant to paragraph
6 or 7 hereinabove, shall be equitably increased or decreased for any stock
split, stock dividend, reclassification or recapitalization of the common
stock of the Corporation which occurs subsequent to the date of this
Agreement.
12. Minimum Stock Value. In the event the value of the stock of the
Corporation, as quoted on NASDAQ, falls below Two and 50/100 Dollars ($2.50)
per share at the close of business for 30 consecutive trading days prior to
January 1, 2002, or in the event the Corporation's stock is removed or
suspended from trading on NASDAQ, then in such event the Corporation shall
immediately issue to the Employee (i) a number of shares of common stock of
the Corporation equal to the total number of shares issued to the Employee
as of such date, and (ii) warrants equal to the number of warrants held by
the Employee as of such date. Such distribution of additional shares of
common stock and warrants of the Corporation to the Employee shall be made
regardless of whether the value of the stock of the Corporation, as quoted
on NASDAQ or otherwise, later increases.
13. Unauthorized Disclosure; Customer Solicitation. (a) Employee
shall not, without the prior written consent of Corporation, disclose or use
in any way, either during the Employee's employment with Corporation or
thereafter, except as required in the course of such employment by
Corporation, any confidential business or technical information or trade
secret acquired in the course of such employment, whether or not conceived of
or prepared by him, which is related to any service or business of
Corporation or any Corporation affiliate, other than information which is
generally known in the industry in which such business is transacted or
acquired from public sources, all of which are the exclusive and valuable
property of Corporation and its affiliates.
(b) During the Term and for a period of One (1) year immediately
following the termination of Employee's employment, regardless of the cause of
such termination, Employee agrees that he will not at any time, in any
fashion, form or manner, either directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation, in any manner whatsoever, any
information of any kind, nature or description concerning any matters
affecting or relating to the business of the corporation, or its affiliates,
including, but not limited to, the names of their clients or prospective
clients or any other information concerning the business of Corporation, its
manner of operation, plans, vendors, suppliers, advertising, marketing,
methods, practices, computer programs, research and information of any kind,
nature or description, without regard to whether any or all of the foregoing
matters would otherwise be deemed confidential, material or important, or use
same for any reason or purpose whatsoever, except in connection with the
performance of his duties under this Agreement or with the express prior
written consent of Corporation.
14. Tangible Items. All files, records, documents, manuals, books,
forms, reports, memoranda, studies, data, calculations, recordings,
correspondence, in whatever form they may exist, and all copies, abstracts and
summaries of the foregoing and all physical items related to the business of
Corporation and its affiliates, other than merely personal items, whether of a
public nature or not, and whether prepared by Employee or not, are and shall
remain the exclusive property of the Corporation and its affiliates and shall
not be removed from their premises, except as required in the course of
employment by Corporation, without the prior written consent of Corporation,
and the same shall be promptly returned by Employee on the termination of the
Employee's employment with Corporation or at time prior thereto upon the
request of Corporation.
15. Inventions and Patents. Employee agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to Corporation's
actual or anticipated business research and development or existing or future
products or services and which are conceived, developed or made by or at the
direction of Employee while employed by Corporation will be owned by
Corporation. Employee also agrees to promptly perform all reasonable actions
(whether before, during or after the Term) necessary to establish and confirm
such ownership.
16. Covenants and Restrictions. Subject to the provisions 8.6
hereof, Employee covenants that, except in carrying out his duties hereunder,
during the term of employment and for a period of one (1) year following the
date of termination of employment hereunder :
16.1 Without express written consent of the Board of Directors,
Employee shall not directly or indirectly, participate or
engage in, assist render employment services to, become
associated with, work for, or otherwise become in any way or
manner connected with the ownership, management, operation,
or control of, any business, which would take from the assets or
products or confidential and proprietary information of the
Company. This clause in no way is to be construed as industry
ban but rather as a ban from utilizing contacts, products
developed, procedures and other confidential information.
16.2 Employee shall not knowingly provide or solicit to provide to
any person or individual (I) any goods or services which are
competitive with those provided by the Company or which would
be competitive with the goods and services that the Company has
planned to provide; or (ii) any goods or services to any
customer of the Company. The term "Customer" shall mean any
person or company to whom the Company has provided goods or
services to within the previous twelve (12) month period prior
to termination of Employee's employment hereunder.
Notwithstanding anything herein to the contrary, no limitation
shall be imposed on Employee hereunder with respect to any goods
or services that the Company has planned to provide and which
are not actually being provided at the time of the termination
of Employee's employment.
16.3 Employee agrees that he shall not divulge to others, nor shall
he use to the detriment of the Company or in any business or
process of manufacture competitive with or similar to any
business or process of manufacture engaged in by the Company or
any of its subsidiaries or affiliated companies, at any time
during employment with the Company or thereafter, any
confidential or trade secret information obtained during the
course of employment with the Company relating to sales,
salesman, sales volume or strategy, customers, formulas,
processes, methods, machines, manufactures, compositions, ideas,
improvements or inventions belonging to or relating to the
business of the Company, or its subsidiary or affiliated
companies.
16.4 Employee shall neither solicit, seek to solicit any of the
Company's personnel in any capacity whatsoever nor shall
Employee induce or attempt to induce any of the Company's
personnel to the employ of the Company to work for Employee
or otherwise.
16.5 Employee acknowledges that a breach of any of the restrictive
covenants contained in Section 5 may cause irreparable damage
to the Company for which remedies at law would be inadequate.
Accordingly, if Employee breaches or threatens to breach any of
the provisions of this Section 5, the Company shall be entitled
to appropriate injunctive relief, including without limitation,
preliminary and permanent injunctions in any court of competent
jurisdiction, restraining Employee from taking any action
prohibited hereby. This remedy shall be in addition to all
other remedies available to the Company at law or equity. If
any portion of this Section 5 is adjudicated to be invalid or
unenforceable, this Section 5 shall be deemed amended to delete
there from the portion so adjudicated, such deletion to apply
only with respect to the operation of this Section 5 in the
jurisdiction in which such adjudication is made.
17. Remedies. Employee acknowledges that the restrictions and
agreements contained in this Agreement are reasonable and necessary to protect
the legitimated interests of Corporation, and that any violation of this
Agreement will cause substantial and irreparable injury to Corporation that
would not be qualifiable, and for which no adequate remedy would exist at law
and agrees that injunctive relief, would be necessary however Corporation must
give a five (5) day notice to Employee of any injunctive relief hearing and in
any event must post a bond for all damages Employee might incur as a result of
such injunction.
18. Reasonableness of Restrictions. (a) Employee recognizes that in
the course of his employment by Corporation, (i) he will be working in an area
of great importance to Corporation's business, and (ii) he will have access to
highly confidential information concerning the business of Corporation and its
affiliates, including without limitation, information with respect to
Corporation's records, clients, presentation materials, computer programs,
research and information. Accordingly, Employee has agreed as provided in
Section 14 through 18 of his Agreement in order to induce Corporation to
employ Employee.
(b) Employee acknowledges and agrees that the covenants set forth in
Section (s) 14 through 18 are reasonable and valid in geographical and
temporal scope and in all other respects.
(c) Sections 13 through 17 shall survive the termination of this
Agreement and termination of Employee's employment hereunder.
(d) Notwithstanding any other provision of this Agreement,
Corporation acknowledges and agrees that the provisions of Sections 13 through
17 hereinabove shall not be binding upon Employee in the event of a breach by
Corporation of any of its obligations, covenants, agreements, representations
or warranties pursuant to this Agreement.
19. Applicable Law; Arbitration. This Agreement shall be governed
and construed under the laws of the State of Florida, not including the choice
of law rules thereof. Any and all disputes, complaints, controversies, claims
and grievances arising under, out of, in connection with, or in any manner
related to this Agreement or the relationship of parties hereunder shall be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Any decision and award of the
arbitrator shall be final, binding and conclusive upon all of the parties
hereto and said decision and award may be entered as a final judgment in any
court of competent jurisdiction. Notwithstanding said Rules, any arbitration
hearing to take place hereunder shall be conducted in Clearwater, Florida,
before one (1) arbitrator who shall be an attorney who has substantial
experience in commercial law issues. In the event of any arbitration between
the parties hereto involving this Agreement or the respective rights of the
parties hereunder, each party shall pay his own attorneys' fees, costs and
expenses of such arbitration. Each party hereby consents to a single,
consolidated arbitration proceeding of multiple claims, or claims involving
more than two (2) parties. Either party may apply to any court of competent
jurisdiction for injunctive relief or other interim measures as provided for
elsewhere in this Agreement, in aid of the arbitration proceedings, or to
enforce the arbitration award, but not otherwise. Any such application to a
court shall not be deemed incompatible or a waiver of this section. The
arbitrator shall be required to make written findings of fact and conclusions
of law to support its award. The arbitrator shall award costs
and attorney fees to the prevailing party in any such arbitration. If any
party to the arbitration does not appear at the arbitration at the time and
place set for arbitration, the arbitrator shall make his decision based upon the
testimony and evidence of the party present, and the non-present party shall
waive its right to present evidence or testimony to the arbitrator.
20. Severability. If any term, restriction, covenant, or promise
contained herein is found to be unreasonable and for that reason unenforceable,
then such term, restriction, covenant, or promise shall not thereby be
terminated but shall be deemed modified to the extent necessary to make it
enforceable and, if it cannot be so modified, that is shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable, such modification or amendment in any event to apply only with
respect to the operation of this Agreement in the particular jurisdiction on
which such adjudication is made.
21. Notice. For the purpose of this Agreement, notices, demands,
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when received if delivered in
person or by overnight courier or if mailed by United States registered mail,
return receipt requested, postage prepaid to the following address:
If to Employee: Mr. James Maguire
188 Devon Dr
Clearwater, FL 33767
If to Corporation: __________________________
Either party may change its address for notices by written notice to the other
party in accordance with this Section 21.
22 Additional Actions and Instruments. Corporation hereby agrees
to take or cause to be taken such further actions, to obtain such consents and
approvals, and to execute, deliver and file or cause to be executed, delivered
and/or filed such further instruments as Employee may from time to time
reasonably request in order to fully effectuate the purposes, terms and
conditions of this Agreement.
23. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification, or discharge is agreed
to in writing signed by Employee and Corporation. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior subsequent time. No agreements or
representations, oral or otherwise, expressed or implied, with respect to the
subject matter hereof have been made between either party which are not set
forth expressly in this Agreement.
24. Headings. the headings in this Agreement are inserted for
convenience only and shall have no significance in the interpretation of this
Agreement.
25. Successors. This Agreement shall be binding upon and inure to
the benefit of both parties hereto and their heirs, personal representatives
and successors, including without limitation any affiliate to which
Corporation may assign this Agreement. Any such assignment shall not relieve
the parties hereto of liability for the performance of their respective
obligations hereunder. Any assignment by Corporation to an affiliate shall
not be deemed to permit the delivery of stock or warrants of the affiliate in
satisfaction of the obligations to Employee hereunder, it being understood
and agreed that the obligations can only be satisfied by delivery of common
stock and warrants of Progressive Telecommunications Corporation, Inc., as
contemplated by this Agreement.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date and year first written above.
PROGRESSIVE TELECOMMUNICATIONS
CORPORATION, INC.
By: /s/ Howard Tackett
Dr. Howard Tackett, Vice President
Printed Name and Title
"CORPORATION"
/s/ James Maguire
James Maguire
"EMPLOYEE"
#135749.3 KAB/cjs:10/26/99
PROGRESSIVE TELECOMMUNICATIONS CORPORATION
601 Cleveland Street, Suite 930
Clearwater, FL 33755
November 10, 1999
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
Gentlemen:
As compensation for legal consulting services rendered by you as reflected
in your statement dated November 10, 1999, we confirm our agreement to issue
to you an aggregate of 20,000 shares of Progressive Telecommunications
Corporation (the "Company")common stock, $.001 par value, as follows:
Joel C. Schneider 10,000
Herbert H. Sommer 10,000.
These shares will be issued upon the effective date of a Form S-8
Registration Statement and the delivery of the documents to you which
constitute the S-8 Prospectus, which the Company agrees to complete with
your assistance, free and clear of any restrictions on sale by you. We also
confirm that the board of directors of the Company have duly approved the
issuance of shares to you. Please confirm that this correctly sets forth
our understanding relating to the settlement of compensation due to you for
extra copy of this letter and returning it to us.
PROGRESSIVE TELECOMMUNICATION CORPORATION
BY: /s/ Barry L. Shevlin
Barry L. Shevlin, CEO
Accepted:
/s/ Herbert H. Sommer /s/ Joel C. Schneider
Herbert H. Somme Joel C. Schneider
SOMMER & SCHNEIDER LLP
595 STEWART AVENUE, SUITE 710
GARDEN CITY, NEW YORK 11530
Herbert H. Sommer Telephone (516) 228-8181
Joel C. Schneider Facsimile (516) 228-8211
November 10, 1999
Combined Opinion and Consent
Progressive Telecommunications Corporation
601 Cleveland Avenue, Suite 930
Clearwater, FL 33755
Re: Progressive Telecommunications Corporation
Gentlemen:
We have acted as counsel to Progressive Telecommunications Corporation, a
Nevada corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933 as amended (the "Act") of the Company's
Registration Statement on Form S-8, filed contemporaneously with the
Commission relating to the registration under the Act of 331,500 shares of
Common Stock, $.001 par value, (the "Common Stock").
In rendering this opinion, we have reviewed the Registration Statement on
Form S-8, as well as a copy of the Certificate of Incorporation of the
Company, as amended, and the By-Laws of the Company. We have also reviewed
such statutes and judicial precedents as we have deemed relevant and
necessary as a basis for the opinion hereinafter expressed. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
final documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies.
Based on the foregoing and in reliance thereon, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
(1) The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Nevada;
(2) The Common Stock when issued will be legally issued, fully paid and
non-assessable.
This opinion is limited to the General Corporation Law and the Constitution
of the State of Nevada and we express no opinion with respect to the laws of
any other jurisdiction. We consent to your filing this opinion with the
Securities and Exchange Commission as an exhibit to the Registration
Statement on Form S-8. This opinion is not to be used, circulated, quoted
or otherwise referred to for any other purpose without our prior written
consent.
Very truly yours,
/s/ Joel C. Schneider
Joel C. Schneider
JCS/md
Progressive Telecommunications Corporation
November 10, 1999
Page 2
P9725245
CONSENT OF INDEPENDENT AUDITORS
Jay J. Shapiro
A professional corporation
16501 Ventura Boulevard
Suite 650
Encino, CA 91436
Tel. (818) 990-4204 Fax (818) 990-4944
Progressive Telecommunications Corporation
Clearwater, Florida
I consent to the inclusion in the registration Statement on Form S-8 of
Progressive Telecommunications (which shall be filled on or about
November 15, 1999) of my report dated December 23, 1998 appearing in
Form 10-K for the year ended September 30, 1998 on the fiscal 1997 and 1998
financial statements for MARQUEE ENTERTAINMENT, INC.
/s/ Jay J. Shapiro
JAY J. SHAPIRO, CPA
A Professional Corporation
Encino, California
November 10, 1999
INDEPENDENT AUDITORS CONSENT
Progressive Telecommunications Corporation
Clearwater, Florida
We hereby consent to the incorporation by reference in this Registration
Statement of Progressive Telecommunications Corporation on Form S-8 our
reports, dated August 26, 1999, on the financial statements of the Progressive
Telecommunications Corp., as of August 31, 1998 and 1997 and for the years
then ended and the CCC Communications Corporation, as of December 31, 1998 for
the year then ended as filed on Form 8-K dated October 13, 1999.
/s/ Meeks, Dorman & Company, P.A.
Meeks, Dorman & Company, P.A.
Longwood, Florida
November 15, 1999
