CONFIDENTIAL
As Filed with the Securities and
Exchange Commission on November 1, 1996
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ADVANCED FINANCIAL, INC.
---------------------------------------------
(Exact Name of Issuer as specified in its charter)
DELAWARE 84-1069415
(State of Incorporation) (IRS Employer
Identification No.)
5425 Martindale
Shawnee, Kansas 66218
(Address of Principal Executive Offices)
Two Consulting Services Agreements,
one with Amber Capital Corporation
and one with National Producers Alliance Group Ltd.,
dated July 25, 1996, and October 1, 1996, respectively
(Full Title of the Plans)
Copy to:
Norman L. Peterson, Chairman Donald G. Davis, Esq.
5425 Martindale Davis & Associates
Shawnee, Kansas 66218 300 South Grand Avenue, Suite 1400
Telephone (913) 441-2466 Los Angeles, California 90071
Facsimile (913) 441-3284 Telephone (213) 680-9900
Facsimile (213) 680-4406
(Name, address and telephone
number of Agent for Service)
1
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration
Share Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares (1) 500,000 (2) 1-3/8 $687,500 (3)$208.33
($.001 par value)
=====================================================================================================================
</TABLE>
This Registration Statement, including exhibits, consists of 29 sequentially
numbered pages. The Index to Exhibits appears on sequentially numbered page 10.
- ----------------------
(Footnotes)
(1) Shares registered are to be issued pursuant to two Consulting Services
Agreements, each dated July 25, 1996, by and between the Company and Amber
Capital Corporation, and the Company and Investor Resource Services, Inc.,
respectively.
(2) Estimated as of October 30, 1996 pursuant to Rule 457 solely for the
purpose of calculating the amount of the registration fee.
(3) Pursuant to General Instruction E, the registration fee paid in connection
herewith is based on the maximum aggregate price at which securities
covered by this registration statement are proposed to be offered.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Item 1. Plan Information.
-----------------
Item 2. Registrant Information
-----------------------
The information required by Items 1 and 2 of Part I, to the extent
applicable, is included in documents sent or given to the
participants/consultants.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Certain Documents by Reference
The following specific documents of Advanced Financial, Inc. (the
"Company"), previously filed with the Securities and Exchange Commission, are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended March 31, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since March 31, 1996, the
end of the fiscal year covered by the Company's Annual
Registration Statement filed on Form 10- KSB.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10-KSB filed under
the Securities Exchange Act of 1934, including any amendment
or reports filed for the purpose of updating such description.
(d) A Registration Statement on Form S-1 filed under the
Securities Act of 1933, on September 3, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, and prior to the filing of a post-effective amendment
which indicates that all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold under this Registration
Statement, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
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Item 4. Description of Securities
-------------------------
Not applicable: The class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
1. The Delaware General Corporation Law, under which the Company is
incorporated, gives a corporation the power to indemnify any of its directors,
officers, employees, or agents who are sued by reason of their service in such
capacity to the corporation provided that the director, officer, employee, or
agent acted in good faith and in a manner he believed to be in or not opposed to
the best interests of the corporation. With respect to any criminal action, he
must have had no reasonable cause to believe his conduct was unlawful.
2. The Company's Certificate of Incorporation provides for indemnification
of officers and directors as follows:
Each person who was or is made a party or is threatened to be made a party
or is involved in any action, suit or proceeding, whether civil, criminal
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer, of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors
4
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and administrators; provided, however, that except as provided in paragraph (b)
hereof, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition: provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
See the Exhibit Index at page 10 of this Registration Statement.
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, represents a fundamental change in the
information set forth in the Registration Statement;
5
<PAGE>
(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 or Form
S-8 and the information required to be included in a
post-effective amendment by those 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 this 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
the 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 undertakes 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 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and
the offering of such securities at the 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 Company 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 Securities Act of 1933 and
is, therefore, unenforceable. In the even 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
6
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the successful defense of any action, suit or proceeding) is asserted
against the Registrant 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
7
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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 Shawnee, State of Kansas, on the 28th day of October,
1996.
ADVANCED FINANCIAL, INC.
By /s/ William E. Moffatt
-----------------------
William E. Moffatt
President and
Chief Executive Officer
8
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Signature Title Date
- --------- ----- ----
/s/ Norman L. Peterson Chairman, October 10, 1996
- ---------------------- Director --
Norman L. Peterson
/s/ William E. Moffatt President and Chief October 10, 1996
- ----------------------- Executive Officer/ --
William E. Moffatt Director
/s/ Deborah K. Towery Chief Financial Officer October 10, 1996
- --------------------- --
Deborah K. Towery
/s/ Daniel Starozewski Director October 15, 1996
- ---------------------- --
Daniel Starozewski
Director October , 1996
- ------------------- --
Steven A. White
/s/ Thomas G. Schleich Director October 17, 1996
- ---------------------- --
Thomas G. Schleich
9
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INDEX TO EXHIBITS
-----------------
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
3.1 Certificate of Incorporation
of Registrant
(Incorporated by reference to
Exhibit 3.1 to the Company's
Registration Statement on
Form S-2 filed with the
Securities and Exchange
Commission on January 31, 1992)
3.2 Certificate of Amendment to
the Certificate of Incorporation
of Registrant
(Incorporated by reference to
Exhibit 3.2 to the Company's
Registration Statement on
Form S-2 filed with the
Securities and Exchange
Commission on January 31, 1992)
3.3 Bylaws of Registrant
(Incorporated by reference to
Exhibit 3.3 to the Company's
Registration Statement on Form S-2
filed with the Securities
and Exchange Commission on
January 31, 1992)
3.4 Specimen common stock certificate
of $.001 par value Common Stock
(incorporated by reference to
Exhibit 4.1 to the Company's
Registration Statement on Form S-2
filed with the Securities
and Exchange Commission on
January 31, 1992)
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Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
4.1 Consulting Services Agreement dated 12
July 25, 1996, between Registrant
and Amber Capital Corporation
4.2 Consulting Services Agreement dated 18
July 25, 1996, between
Registrant and National Producers
Alliance Group Ltd.
5.1 Opinion of Law Offices of 24
Davis & Associates
24.1 Consent of KPMG Peat Marwick, LLP 27
Certified Public Accountants
24.2 Consent of Law Offices of 29
Davis & Associates
11
EXHIBIT 4.1
CONSULTING SERVICES AGREEMENT
Consulting Services Agreement
dated July 25, 1996, between
Registrant and Amber Capital Corporation
<PAGE>
CONSULTING AGREEMENT OF October 1, 1996 by and between ADVANCED FINANCIAL,
INC., 5425 Martindale, Shawnee, KS 66218 (the "Company"), and AMBER CAPITAL
CORPORATION, 2 Spur Lane, Rolling Hills, CA 90274 or its assignees
("Consultant").
WHEREAS, Consultant is in the business of assisting public companies in
financial relations; and
WHEREAS, the Company desires to retain Consultant to provide certain
specified service for the Company.
NOW, THEREFORE, in consideration of the mutual covenants and promised
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. DUTIES AND INVOLVEMENT
1.1. The Company hereby engages the Consultant to provide public relations
services. Such services will generally include advice to and consulting with the
Company's management concerning marketing surveys, investor profile information,
methods of expanding investor support and increasing investor awareness of the
Company and its products and/or services. The Consultant will provide assistance
in preparation and format of due diligence meetings, and attendance at
conventions and trade shows.
1.2. Consultant acknowledges that neither it nor any of its employees or
affiliates is an officer, director, or agent of the Company, that in rendering
advice or recommendations to the Company it is not and will not be responsible
for any management decisions on behalf of the Company and that it is not
authorized or empowered to commit the Company to any recommendation or course of
action. The Company represents that Consultant does not have, through stock
ownership or otherwise, the power to control the Company nor to exercise any
dominating influence over its management.
2. TERMS
This Agreement shall continue until twenty four (24) months from date of
execution.
3. COMPENSATION
Upon execution of this Agreement, as total and complete consideration for
the services to be provided and expenses to be incurred (described below) by
Consultant hereunder, the Company will issue and deliver to Consultant 250,000
shares of Common Stock of the Company (the "Shares") which the Company shall
immediately register for free-trading under the Securities Act of 1933, as
amended, by filing with the Securities and Exchange Commission a registration
statement relating to such Shares on Form S-8. The Company shall pay such
complete compensation to the Consultant by no later than October 15, 1996.
4. PAYMENT OF EXPENSES
Consultant agrees to pay for all costs and expenses incurred by Consultant
and its representatives and by third parties engaged by it in connection with
the performance of the financial and public relations services provided for
herein.
5. SERVICES NOT EXCLUSIVE
Consultant shall devote such of its time and effort necessary to the
discharge of its duties hereunder. The Company acknowledges that Consultant is
engaged in other business activities and that it will continue such activities
during the term of this Agreement. Consultant shall not be restricted from
engaging in other business activities during the term of this Agreement.
12
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6. CONFIDENTIALITY
Consultant acknowledges that it may have access to confidential information
regarding the Company and its business. Consultant agrees that it will not,
during or subsequent to the term of this Agreement except as reasonably required
in the performance of its services hereunder, divulge, furnish, or make
accessible to any person (other than with the written permission of the Company)
any knowledge or information or plans of the Company with respect to the Company
or its business, including, but not limited to, the products of the Company,
whether in the concept or development state or being marketed by the Company on
the effective date of this Agreement or during the term hereof.
7. COVENANT NOT TO COMPETE
During the term of this Agreement, Consultant warrants, represents and
agrees that it will not complete directly with the Company in the Company's
primary industry or related fields.
8. REGISTRATION OF SECURITIES
As provided hereinabove, the Company will immediately file with the
Securities and Exchange Commission a registration statement on Form S-8
including the Shares. The Company will undertake to comply with the various
states securities laws and regulations with respect to the registration of the
Shares. The Company undertakes to make available for review and comment by
Consultant, on a timely basis and prior to submission with any regulatory
agency, copies of the registration statement.
8.1. At all times following registration of the Shares and continuing for
not less than twelve (12) months following such registration, the Company shall
maintain and be current on all filings with the United States Securities and
Exchange Commission, appropriate state securities departments and, as may by
required, with the National Association of Securities Dealers, Inc., the Nasdaq
SmallCap Market, and/or national or regional stock exchanges necessary to allow
the Shares to be freely tradable in the public market.
8.2. The Company agrees during the term of this Agreement it will not
without the prior written approval of the Consultant issue any common stock
pursuant to Regulation S. of the General Regulations of the Securities and
Exchange Commission or any registration of the Company's securities by means of
a Form S-8 registration statement.
9. CERTAIN REPRESENTATIONS AND WARRANTIES
In order to give comfort to the Consultant, the Company represents and
warrants the following:
9.1. The Company will furnish to Consultant, as requested, all information
concerning the Company which is relevant to its past, current and planned
operations, including, without limitation (I) financial statements, including
current cash received and disbursed (ii) issuance of stock, stock options or
warrants, including the pricing of such stock and stock rights (iii) terms or
employment agreements, including benefits of all types (iv) all Board of
Directors resolutions (v) all borrowing of any type (vi) shareholder lists (vii)
monthly reports from the Depository Trust Corporation ("DTC") or similar
organization and (viii) all transactions among affiliates or controlling persons
of the Company.
9.2. The Company is authorized and has the full power to issue such Shares
and to file a registration statement on Form S-8 for such Shares. Such issuance
or registration thereof will not violate any agreement, covenant, understanding,
arrangement or otherwise with any party, broker, agent, or entity.
10. INVESTMENT REPRESENTATION
The Company represents and warrants that it has provided Consultant access
to all information available to the Company concerning its condition, financial
and otherwise, its management, its business and its prospects. The Company
13
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represents that it has provided Consultant with all copies of the Company's
filings for the prior 12 months made under the Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the "Act"), or the Securities
Exchange Act of 1934, as amended the ("Exchange Act"), if any (the "Disclosure
Documents"). Consultant acknowledges that the acquisition of the securities to
be issued to Consultant involves a high degree of risk. Consultant represents
that it and its advisors have been afforded the opportunity to discuss the
Company with its management. The Company represents that it has and will
continue to provide Consultant with any information or documentation necessary
to verify the accuracy of the information contained in the Disclosure Documents
and will promptly notify Consultant upon the filing of any registration
statement or other periodic reporting documents filed pursuant to the Act or the
Exchange Act. The Company hereby represents that it does not currently have any
of its securities in registration and further agrees to refrain from offering
for sale any additional securities of the Company and from filing any additional
registration statements during the term of this Agreement other than as provided
for herein without the consent of Consultant.
11. ASSIGNMENT
This Agreement may be assigned without the written consent of the Company
but shall be binding upon the successors of the parties.
12. ARBITRATION
Any dispute, controversy or claim between the Company and Consultant
arising out of or related to this Agreement, or breach thereof, shall be settled
by arbitration, which shall be conducted in accordance with the rules of the
American Arbitration Association then in effect. Any award shall be binding and
conclusive for all purpose thereof, may include injunctive relief, as well as
orders for specific performance, and may be entered as a final judgment in any
court of competent jurisdiction. No arbitration arising out of or relating to
this Agreement shall include, by consolidation or joinder or in any other
manner, parties other than the Company or Consultant and other persons
substantially involved in common questions of fact or law whose presence is
required if complete relief is to be afforded in arbitration. The costs and
expenses of such arbitration shall be borne in accordance with the determination
of the arbitrator and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail, express delivery or personal service at the address provided for
herein.
13. INDEMNIFICATION
13.1 The Company agrees to indemnify and hold harmless Consultant and its
agents and employees against any losses, claims, damages or liabilities, joint
or several, to which Consultant or any such other person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions, suits or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, any preliminary
prospectus, the prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated herein or necessary to make the statements
therein not misleading; and will reimburse Consultant or any such other person
for any legal or other expenses reasonably incurred by Consultant or any such
other person in connection with investigating or defending any such loss, claim,
damage, liability, or action, suit or proceeding; provided, however, that the
Company will no be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission from the registration
statement, any preliminary prospectus, the prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by Consultant specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
13.2. Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, suit or proceeding, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
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under this Section. In case any such action, suit or proceeding is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
14. NOTICES
All notices required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given upon delivery personally
or by courier ( such as FedEx or similar express delivery service) to the party
to be notified. Notice to each party shall be addressed to the attention of the
officer at the address set forth beneath the signature line, or to such other
officer or addresses as either party may designate upon at least ten days'
notice to the other party.
15. GOVERNING LAW
This Agreement shall be constructed by and enforced in accordance with the
laws of the State of Florida.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement between the
parties. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard thereto. This Agreement may be amended
only in writing signed by both parties.
17. NON-WAIVER
A delay or failure by either party to exercise a right under this
Agreement, or a partial or single exercise of that right, shall not constitute a
waiver of that or any other right.
18. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed as an original, but all of which together shall constitute one and the
same agreement.
19. BINDING EFFECT
The provisions of this Agreement shall be binding upon the parties, their
successors and assigns.
20. EFFECTIVE DATE
The effective date of the Agreement is October 1, 1996.
15
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IN WITNESS WHEREOF, the parties here to have executed and delivered
this Agreement to be effective as of the day and year above written.
ADVANCED FINANCIAL, INC.
By: /S/ NORMAN L. PETERSON
------------------------------------
Norman L. Peterson, Chairman & CEO
5425 Martindale, Shawnee, KS 66218
AMBER CAPITAL CORPORATION
By: /S/ STEPHANIE S. ARNOLD
------------------------------------
Stephanie S. Arnold, President
2 Spur Lane, Rolling Hills, CA 90274
16
EXHIBIT 4.2
CONSULTING SERVICES AGREEMENT
Consulting Services Agreement
dated October 1, 1996, between
Registrant and National Producers Alliance Group Ltd.
CONSULTING AGREEMENT OF October 1, 1996 by and between ADVANCED FINANCIAL,
INC., 5425 Martindale, Shawnee, KS 66218 (the "Company"), and NATIONAL PRODUCERS
ALLIANCE GROUP LTD., 46 Nottingham Way, Haines City, Florida 33844 or its
assignees ("Consultant").
WHEREAS, Consultant is in the business of assisting public companies in
financial relations; and
WHEREAS, the Company desires to retain Consultant to provide certain
specified service for the Company.
NOW, THEREFORE, in consideration of the mutual covenants and promised
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. DUTIES AND INVOLVEMENT
1.1. The Company hereby engages the Consultant to provide public relations
services. Such services will generally include advice to and consulting with the
Company's management concerning marketing surveys, investor profile information,
methods of expanding investor support and increasing investor awareness of the
Company and its products and/or services. The Consultant will provide services
in the field of radio, television, and internet exposure.
1.2. Consultant acknowledges that neither it nor any of its employees or
affiliates is an officer, director, or agent of the Company, that in rendering
advice or recommendations to the Company it is not and will not be responsible
for any management decisions on behalf of the Company and that it is not
authorized or empowered to commit the Company to any recommendation or course of
action. The Company represents that Consultant does not have, through stock
ownership or otherwise, the power to control the Company nor to exercise any
dominating influence over its management.
2. TERMS
This Agreement shall continue until twenty four (24) months from date of
execution.
3. COMPENSATION
Upon execution of this Agreement, as total and complete consideration for
the services to be provided and expenses to be incurred (described below) by
Consultant hereunder, the Company will issue and deliver to Consultant 250,000
shares of Common Stock of the Company (the "Shares") which the Company shall
immediately register for free-trading under the Securities Act of 1933, as
amended, by filing with the Securities and Exchange Commission a registration
statement relating to such Shares on Form S-8. The Company shall pay such
complete compensation to the Consultant by no later than October 15, 1996.
4. PAYMENT OF EXPENSES
Consultant agrees to pay for all costs and expenses incurred by Consultant
and its representatives and by third parties engaged by it in connection with
the performance of the financial and public relations services provided for
herein.
5. SERVICES NOT EXCLUSIVE
Consultant shall devote such of its time and effort necessary to the
discharge of its duties hereunder. The Company acknowledges that Consultant is
engaged in other business activities and that it will continue such activities
during the term of this Agreement. Consultant shall not be restricted from
engaging in other business activities during the term of this Agreement.
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6. CONFIDENTIALITY
Consultant acknowledges that it may have access to confidential information
regarding the Company and its business. Consultant agrees that it will not,
during or subsequent to the term of this Agreement except as reasonably required
in the performance of its services hereunder, divulge, furnish, or make
accessible to any person (other than with the written permission of the Company)
any knowledge or information or plans of the Company with respect to the Company
or its business, including, but not limited to, the products of the Company,
whether in the concept or development state or being marketed by the Company on
the effective date of this Agreement or during the term hereof.
7. COVENANT NOT TO COMPETE
During the term of this Agreement, Consultant warrants, represents and
agrees that it will not complete directly with the Company in the Company's
primary industry or related fields.
8. REGISTRATION OF SECURITIES
As provided hereinabove, the Company will immediately file with the
Securities and Exchange Commission a registration statement on Form S-8
including the Shares. The Company will undertake to comply with the various
states securities laws and regulations with respect to the registration of the
Shares. The Company undertakes to make available for review and comment by
Consultant, on a timely basis and prior to submission with any regulatory
agency, copies of the registration statement.
8.1. At all times following registration of the Shares and continuing for
not less than twelve (12) months following such registration, the Company shall
maintain and be current on all filings with the United States Securities and
Exchange Commission, appropriate state securities departments and, as may by
required, with the National Association of Securities Dealers, Inc., the Nasdaq
SmallCap Market, and/or national or regional stock exchanges necessary to allow
the Shares to be freely tradable in the public market.
8.2. The Company agrees during the term of this Agreement it will not
without the prior written approval of the Consultant issue any common stock
pursuant to Regulation S. of the General Regulations of the Securities and
Exchange Commission or any registration of the Company's securities by means of
a Form S-8 registration statement.
9. CERTAIN REPRESENTATIONS AND WARRANTIES
In order to give comfort to the Consultant, the Company represents and
warrants the following:
9.1. The Company will furnish to Consultant, as requested, all information
concerning the Company which is relevant to its past, current and planned
operations, including, without limitation (I) financial statements, including
current cash received and disbursed (ii) issuance of stock, stock options or
warrants, including the pricing of such stock and stock rights (iii) terms or
employment agreements, including benefits of all types (iv) all Board of
Directors resolutions (v) all borrowing of any type (vi) shareholder lists (vii)
monthly reports from the Depository Trust Corporation ("DTC") or similar
organization and (viii) all transactions among affiliates or controlling persons
of the Company.
9.2. The Company is authorized and has the full power to issue such Shares
and to file a registration statement on Form S-8 for such Shares. Such issuance
or registration thereof will not violate any agreement, covenant, understanding,
arrangement or otherwise with any party, broker, agent, or entity.
10. INVESTMENT REPRESENTATION
The Company represents and warrants that it has provided Consultant
access to all information available to the Company concerning its condition,
financial and otherwise, its management, its business and its prospects. The
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Company represents that it has provided Consultant with all copies of the
Company's filings for the prior 12 months made under the Rules and Regulations
promulgated under the Securities Act of 1933, as amended (the "Act"), or the
Securities Exchange Act of 1934, as amended the ("Exchange Act"), if any (the
"Disclosure Documents"). Consultant acknowledges that the acquisition of the
securities to be issued to Consultant involves a high degree of risk. Consultant
represents that it and its advisors have been afforded the opportunity to
discuss the Company with its management. The Company represents that it has and
will continue to provide Consultant with any information or documentation
necessary to verify the accuracy of the information contained in the Disclosure
Documents and will promptly notify Consultant upon the filing of any
registration statement or other periodic reporting documents filed pursuant to
the Act or the Exchange Act. The Company hereby represents that it does not
currently have any of its securities in registration and further agrees to
refrain from offering for sale any additional securities of the Company and from
filing any additional registration statements during the term of this Agreement
other than as provided for herein without the consent of Consultant.
11. ASSIGNMENT
This Agreement may be assigned without the written consent of the Company
but shall be binding upon the successors of the parties.
12. ARBITRATION
Any dispute, controversy or claim between the Company and Consultant
arising out of or related to this Agreement, or breach thereof, shall be settled
by arbitration, which shall be conducted in accordance with the rules of the
American Arbitration Association then in effect. Any award shall be binding and
conclusive for all purpose thereof, may include injunctive relief, as well as
orders for specific performance, and may be entered as a final judgment in any
court of competent jurisdiction. No arbitration arising out of or relating to
this Agreement shall include, by consolidation or joinder or in any other
manner, parties other than the Company or Consultant and other persons
substantially involved in common questions of fact or law whose presence is
required if complete relief is to be afforded in arbitration. The costs and
expenses of such arbitration shall be borne in accordance with the determination
of the arbitrator and may include reasonable attorney's fees. Each party hereby
further agrees that service of process may be made upon it by registered or
certified mail, express delivery or personal service at the address provided for
herein.
13. INDEMNIFICATION
13.1 The Company agrees to indemnify and hold harmless Consultant and its
agents and employees against any losses, claims, damages or liabilities, joint
or several, to which Consultant or any such other person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions, suits or proceedings in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, any preliminary
prospectus, the prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated herein or necessary to make the statements
therein not misleading; and will reimburse Consultant or any such other person
for any legal or other expenses reasonably incurred by Consultant or any such
other person in connection with investigating or defending any such loss, claim,
damage, liability, or action, suit or proceeding; provided, however, that the
Company will no be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission from the registration
statement, any preliminary prospectus, the prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by Consultant specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
13.2. Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, suit or proceeding, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
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under this Section. In case any such action, suit or proceeding is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
14. NOTICES
All notices required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given upon delivery personally
or by courier ( such as FedEx or similar express delivery service) to the party
to be notified. Notice to each party shall be addressed to the attention of the
officer at the address set forth beneath the signature line, or to such other
officer or addresses as either party may designate upon at least ten days'
notice to the other party.
15. GOVERNING LAW
This Agreement shall be constructed by and enforced in accordance with the
laws of the State of Florida.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement between the
parties. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard thereto. This Agreement may be amended
only in writing signed by both parties.
17. NON-WAIVER
A delay or failure by either party to exercise a right under this
Agreement, or a partial or single exercise of that right, shall not constitute a
waiver of that or any other right.
18. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed as an original, but all of which together shall constitute one and the
same agreement.
19. BINDING EFFECT
The provisions of this Agreement shall be binding upon the parties, their
successors and assigns.
20. EFFECTIVE DATE
The effective date of the Agreement is October 1, 1996.
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IN WITNESS WHEREOF, the parties here to have executed and delivered this
Agreement to be effective as of the day and year above written.
ADVANCED FINANCIAL, INC.
By: /S/ WILLIAM B. MORRIS
----------------------------------------
William B. Morris, Secretary
5425 Martindale, Shawnee, KS 66218
NATIONAL PRODUCERS ALLIANCE GROUP, LTD.
By: /S/ ROBERT C. STASTNY
----------------------------------------
Robert C. Stastny, President
46 Nottingham Way, Haines City, FL 33844
21
EXHIBIT 5.1
OPINION OF LAW OFFICES
OF DAVIS & ASSOCIATES
November 1, 1996
Advanced Financial, Inc.
5425 Martindale
Shawnee, Kansas 66218
Re: Advanced Financial, Inc.
Registration Statement on Form S-8
Gentlemen:
We are acting as special counsel for Advanced Financial, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of
500,000 shares of the Company's common shares (the "Shares"), pursuant to two
consulting services agreements (the "Contracts"). A Registration Statement on
Form S-8 covering the Shares (the "Registration Statement") is being filed under
the Act with the Securities and Exchange Commission.
In rendering the opinions expressed herein, we have reviewed such matters of law
and of fact as we have deemed necessary, have examined copies of such
agreements, instruments, documents and records as we have deemed relevant, and
have obtained such written representations from representatives of both the
Company and the recipients of these shares, as we have deemed appropriate.
In rendering the opinions expressed herein, we have assumed the genuineness and
authenticity of all documents examined by us and of all signatures thereon; the
legal capacity of all natural persons executing such documents; the conformity
of original documents to all documents submitted to us as certified or conformed
copies or photocopies; and the completeness and accuracy of the certificates of
and representation letters examined by us. We have made no independent factual
investigation with regard to any such matters.
It is our opinion that the Shares, when issued and sold in accordance with the
terms of the Contracts, will be legally issued, fully paid and nonassessable.
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Advanced Financial, Inc.
Page 2
November 1, 1996
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm therein.
Respectfully submitted,
Law Offices of Davis & Associates
By /S/ DONALD G. DAVIS
-------------------------------
Donald G. Davis
23
EXHIBIT 24.1
CONSENT OF KPMG PEAT MARWICK LLP
ACCOUNTANTS' CONSENT
The Board of Directors
Advanced Financial, Inc.
We consent to the use in this Registration Statement of Advanced Financial, Inc.
on Form S-8, of our report dated June 30, 1996 on the consolidated financial
statements of Advanced Financial, Inc. and subsidiaries as of March 31, 1996 and
1995, and for the years then ended.
Our report dated June 30, 1996, contains an explanatory paragraph that states
the Company has incurred net losses of $3,184,577 and $3,963,497 during the
years ended March 31, 1996 and 1995. These losses, along with other matters as
set forth in note 2, raise substantial doubt about its ability to continue as a
going concern. Management's plans in regard to these matters are also described
in note 2. The consolidated financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
KPMG Peat Marwick LLP
------------------------------------
KPMG Peat Marwick LLP
Kansas City, Missouri
October 28, 1996
24
EXHIBIT 24.2
CONSENT OF LAW OFFICES
OF DAVIS & ASSOCIATES
(set forth in the Opinion of Law Offices
of Davis & Associates included as Exhibit 5.1)
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