SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 28549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
COMMISSION FILE NUMBER 33-17679
PIERCE INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COLORADO 84-1067694
(STATE OR OTHER JURISDICTION OF (I.R.S.EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
13275 FREMONT PLACE, SUITE 101A
ENGLEWOOD, COLORADO 80112
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
NOT APPLICABLE
(FULL TITLE OF PLAN)
PIERCE D. PARKER, 13275 FREMONT PLACE, SUITE 101A, ENGLEWOOD, COLORADO 80112
(NAME AND ADDRESS OF AGENT FOR SERVICE)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE: (303)792-0719
AN INDETERMINATE AMOUNT OF PLAN INTERESTS ARE COVERED BY THIS
REGISTRATION STATEMENT PURSUANT TO RULE 416(e)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED PROPOSED AMOUNT OF
OF SECURITIES AMOUNT OF SHARES OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED TO BE REGISTERED PER SHARE OFFERING FEE (1)
PRICE
<S> <C> <C> <C> <C>
COMMON STOCK,
WITHOUT PAR VALUE
PER SHARE...... 400,000 $0.30 $120,000 $35.40
COMMON STOCK,
WITHOUT PAR VALUE
PER SHARE...... 60,000 $0.20 $12,000 $3.54
TOTAL.......... 460,000 $0.20 - $0.30 $132,000 $38.94
</TABLE>
(1) The registration fee applies to all of the shares of the Common Stock to
be issued as a result of this Registration Statement.
<PAGE>
PIERCE INTERNATIONAL, INC.
DOCUMENTS CONSTITUTING A SECTION 18(a) PROSPECTUS
PURSUANT TO A FORM S-8 REGISTRATION STATEMENT
FILED MARCH 26, 1998
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Pierce International, Inc., (the "Company")
with the Securities and Exchange Commission on March 26, 1998 the following
shall constitute a prospectus that meets the requirements of Section 18(a) of
the Securities Act of 1933:
1. GENERAL PLAN INFORMATION.
(a) The agreements (the "Agreements") between the Company and
Progressive Media Group, Inc. and Charles Henry, (the "Participants") with
respect to the payment of fees in shares of the Company's common stock, without
par value per share (the "Securities"), and the price per share at which the
Securities are to be issued to the Participants in payment of their fees are
more fully described in Exhibits "A-1 and A-2" attached hereto and incorporated
herein by reference for all purposes:
<TABLE>
<CAPTION>
NAME FEES PRICE PER NUMBER OF
SHARE SHARES
<S> <C> <C> <C>
Progressive Media
Group, Inc. $120,000.00 $ 0.30 400,000
Charles Henry $ 12,000.00 $ 0.20 60,000
$132,000.00 $0.20 - $0.30 460,000
</TABLE>
(b) The Agreements constitutes an employee benefit plan as
described in Rule 465 promulgated under the Securities Act of 1933 (the
"Plan"). The Securities will be offered pursuant to the Plan.
(c) The general nature and purpose of the Plan is to allow for the
payment of fees due and owing by the Company to the Participants in the form of
the Company's registered Securities. The Plan will terminate as soon after
filing of the Registration Statement, as the Securities called for in the Plan
have been issued to the Participants, which date will not occur after May 31,
1998. It is not contemplated that the Plan will be subject to modification or
extension.
(d) The Plan does not have any administrators. However, the
Participants may contact the Company at the address or telephone number
described in Paragraph 11 below to obtain additional information about the
Plan.
(e) The Plan is not subject to the Employee Retirement Income
Security Act of 1974. The Participants are consultants who have provided bona
fide services to the Company, none of such services being in connection with
the offer or sale of Securities of the Company in a capital-raising
transaction.
2. SECURITIES TO BE OFFERED. The Securities to be offered pursuant to
the Plan are shares of the Company's common stock, without par value per share.
The common stock of the Company has been registered under Section 12 of the
Securities Exchange Act of 1934.
3. EMPLOYEES WHO MAY PARTICIPATE IN THE PLAN. Only the Participants
described above may participate in the Plan.
<PAGE>
4. PURCHASE OF SECURITIES PURSUANT TO THE PLAN AND PAYMENT FOR
SECURITIES OFFERED.
(a) The Participants may participate in the Plan only for so long
as it takes to file the Registration Statement and issue the Securities to the
Participants as called for herein. Thereafter, the Participants shall not have
any further interest in the Plan. The only Securities to be purchased by the
Participants are described herein or in the Agreements between the Company and
the Participants. The purchase price per share of the Company's Securities for
the Participants is as set forth above.
(b) Payment for the Securities to be purchased by the Participants
pursuant to the Plan will be the extinguishment of any further liability by the
Company to any said Participant with respect to the obligations described
herein.
(c) There will be no reports delivered to the Participants as to
the amounts and status of its account.
(d) The Securities will be issued to the Participants, who may
sell the Securities in the open market. The Company will receive no fees or
other compensation for the Securities other than the extinguishment of the debt
to the Participants as described herein.
5. RESALE RESTRICTIONS. There will be no restrictions on the resale
of the Securities by the Participants.
6. TAX EFFECTS OF PLAN PARTICIPATION. The receipt of the Securities
by the Participants will be the receipt of ordinary income since the Securities
will have been received by the Participants in exchange for services.
Consequently, the Participants will be taxed currently for the value of the
Securities pursuant to Section 61 of the Internal Revenue Code of 1986, as
amended.
7. INVESTMENT OF FUNDS. There is no provision under the Plan whereby
the Participants may direct the investment of all or any part of the assets
under the Plan.
8. WITHDRAWAL FROM THE PLAN; ASSIGNMENT OF INTEREST. The Participants
are not able to withdraw from, terminate, or assign their interests in the
Plan.
9. FORFEITURES AND PENALTIES. There is no event which could, under
the Plan, result in a forfeiture by, or a penalty to, the Participants.
10. CHARGES AND DEDUCTIONS, AND LIENS THEREFOR. There are no charges
and deductions that may be made against the Participants, the Securities, or
assets of the Plan, or the creation of any lien on any funds, securities, or
other property held under the Plan.
11. INFORMATION CONTAINED IN THE REGISTRATION STATEMENT. The Company
shall furnish to the Participants, without charge, upon written or oral
request, the documents incorporated by reference in Item 3 of Part II of the
Registration Statement, all of such documents being incorporated by reference
in this Section 10(a) Prospectus. The Company shall also furnish to the
Participants, without charge, upon written or oral request, any other documents
required to be delivered to employees of the Company pursuant to Rule 428(b)
promulgated under the Securities Act of 1933. Any such request should be
directed to the Company at Pierce International, Inc., 13275 Fremont Place,
Suite 101A, Englewood, Colorado 80112, telephone (303) 792-0719, and telefax
(303) 799-6469.
<PAGE>
12. INFORMATION CURRENTLY FURNISHED. The Participants have been
furnished with copies of the Company's Form 10-K for the fiscal year ended June
30, 1997 and Form 10-Q for the quarterly period ending December 31, 1997.
13. INFORMATION TO BE FURNISHED IN THE FUTURE. The Company shall
deliver to the Participants copies of all reports, proxy statements and other
communications distributed to its security-holders generally, and such material
shall be sent or delivered no later than the time that it is sent to security-
holders of the Company.
Attachments:
Exhibits "A-1 and A-2" - The Agreements.
<PAGE>
EXHIBIT A - 1
<PAGE>
PROGRESSIVE MEDIA GROUP
ONE TIME PROGRAM
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 5th day of February 1998, by and between
PROGRESSIVE MEDIA GROUP, INC.
200 E ROBINSON STREET
SUITE 450
ORLANDO, FLORIDA 32801
(800-262-9798)
a Florida Company (hereinafter referred to as "PMG"), and
PIERCE INTERNATIONAL, INC.
13275 E FREMONT PLACE
#101-A
ENGLEWOOD, CO 80112
(303-799-6469)
(hereinafter referred to as "COMPANY", collectively PMG and COMPANY hereinafter
referred to as "THE PARTIES"
WITNESSETH:
WHEREAS, PMG is an investor relations, direct marketing, publishing,
public relations and advertising firm with expertise in the dissemination of
information about publicity traded companies, and is in the business of
providing investor relations services, public relations services, publishing,
advertising services, fulfillment services, marketing of business formats and
opportunities and other related programs, services and products, and
WHEREAS, COMPANY is considering becoming a public entity; and
WHEREAS, COMPANY desires to raise capital through prospective investors
and shareholders; and
WHEREAS, PMG is willing to accept COMPANY as a client on a six month
basis effective on the above date;
WHEREAS, COMPANY requires investor relations services and desires to
employ and/or retain PMG to provide such services as an independent contractor,
and PMG is agreeable to such a relationship and/or agreement, and the parties
desires a written document formalizing and defining their relationship and
evidencing the terms of their agreement;
THEREFORE, in consideration of the mutual covenants contained herein, it
is agreed as follows:
<PAGE>
DEFINITIONS AND INTERPRETATIONS
1. CAPTIONS AND SECTION NUMBERS
The headings and section references in this Consulting Agreement are for
convenience or reference only and do not form a part of this Agreement and are
not intended to interpret define or limit the scope extent or intent of this
Consulting Agreement or any provisions thereof.
2. EXTENDED MEANINGS
The words "hereof", "herein", hereunder" and similar expressions used in any
clause , paragraph or section of this agreement will relate to the whole of
this Consulting Agreement and not to that clause, paragraph or section only,
unless otherwise expressly provided.
3. NUMBER OF GENDER
In this Consulting Agreement, words importing the masculine gender include the
feminine or neuter gender and words in the singular include the plural and vice
versa.
4. SECTION REFERENCES AND SCHEDULES
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Consulting Agreement and any reference to a schedule,
exhibit or addendum by name, number and or letter will mean the appropriate
schedule, exhibit or addendum attached to this Consulting Agreement and by such
reference is incorporated into and made part of this Consulting Agreement.
AGREEMENT
5. APPOINTMENT
COMPANY hereby appoints and engages PMG as its investor relations counselor and
hereby retains and employees PMG upon the terms and conditions of this
Consulting Agreement. PMG accepts such appointment and agrees to perform the
services upon the terms and conditions of said Consulting Agreement.
6. ENGAGEMENT
COMPANY engages PMG to pursue raising capital, either through public or private
shares or through prospective investors and shareholders and as further
described below and subject to the further provisions of this Consulting
Agreement, PMG hereby accepts said engagement and COMPANY as a client and
agrees to publicize COMPANY as further described below and subject to the
further provisions of this Consulting Agreement.
7. AUTHORITY AND DESCRIPTION OF SERVICES
During the term of this Agreement, PMG shall furnish various professional
services and advice a specifically requested by Dr. Pierce D. Parker, Chairman
who is an authorized representative of COMPANY, and holds the position and/or
title of President with COMPANY. Said professional services and advice shall
relate to those services, items and/or subjects described in ADDENDUM "A",
which is attached hereto and made a part hereof by this reference, and/or as
follows:
(a) PMG shall act, generally, as corporate investor relations counsel,
essentially acting (1) as liaison between COMPANY and prospective investors and
shareholders, (2) as advisor to COMPANY with respect to existing and potential
market makers, broker-dealers, underwriters and investors as well as being the
liaison between COMPANY and such persons; and (3) as advisor to COMPANY with
respect to communications and information, including but not necessarily
limited to preparation of a research report, planning, developing, designing,
organizing, writing and distributing such communications and information.
<PAGE>
(b) PMG shall assist in establishing and advise COMPANY with respect to
interviews of COMPANY officers by the financial media, interviews of COMPANY
officers by analysts, market makers, broker-dealers, and other members of the
financial community.
(c) PMG shall seek to make COMPANY, its management, its products, and
its financial situation and prospects known to the financial media, financial
publications, broker-dealers, mutual funds, institutional investors, market
makers, analysts, investment advisors, and other members of the financial
community as well as the public generally.
(d) PMG, in providing the foregoing services, shall be responsible for
all reasonable costs of providing the services, including, but not limited to,
out-of-pocket expenses for postage, delivery services (e.g. Federal Express),
telephone charges, compensation to third party vendors, copywriters, staff
writers, art and graphic personnel, subcontractors, printing, etc.
(e) PMG's compensation under this Consulting Agreement shall be deemed
to include the above mentioned costs and expenses, unless otherwise expressly
provided herein.
(f) Marketing Program: Including, but not necessarily limited to, the
following components: (i) PMG reviews and analyzes all aspects of COMPANY
goals and makes recommendations on feasibility and achievement of desired
goals; (ii) PMG provides through their network, firms and brokers interested in
participating and schedules and conducts the necessary due diligence and
obtains the required approvals necessary for those firms to participate. PMG
interviews and makes determinations on any firms or brokers referred by COMPANY
with regard to their participation; and (iii) PMG shall be available to COMPANY
to field calls from firms and brokers inquiring about COMPANY.
8. TERM OF AGREEMENT
This agreement shall become effective upon execution hereof and shall continue
thereafter up to and including August 5th, 1998, or in the case of specific
services until such time as such matters are finalized to the satisfaction of
both COMPANY and PMG. It is expressly acknowledged and agreed by and between
the parties hereto that PMG shall not be obligated to provide any services
and/or perform any work related to this Consulting Agreement until such time
any agreed and/or specified retainer (deposit, initial fee, down-payment) in
U.S. funds, and/or other specified and/or agreed valuable consideration has
been received by PMG.
9. WHERE SERVICES SHALL BE PERFORMED
PMG services shall be performed at the main office location of PMG, or other
such designated location(s) as PMG and COMPANY agree are the most advantageous
for the work to be performed.
10. LIMITATIONS ON SERVICES
The parties hereto recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
in house "due diligence" or "compliance" departments of brokerage houses, etc.
Accordingly, PMG agrees as follows:
(a) PMG shall NOT release any financial or other information or data
about COMPANY without the consent and approval of COMPANY.
(b) PMG shall NOT conduct any meetings with financial analysts without
informing COMPANY in advance of any proposed meeting, the format or agenda of
such meeting and COMPANY may elect to have a representative of COMPANY attend
such meeting.
(c) PMG shall NOT release any information or data about COMPANY to any
selected or limited person(s), entity or group if PMG is aware that such
information or data has not been generally released or promulgated.
<PAGE>
(d) After notice by COMPANY of filing for a proposed public offering of
securities of COMPANY and during any period of restriction on publicity, PMG
shall not engage in any public relations efforts not in the normal course
without approval of counsel for COMPANY and of counsel for the underwriter(s),
if any.
11. DUTIES OF COMPANY
(a) COMPANY shall supply PMG, on a regular and timely basis with all
approved data and information about COMPANY, its management, its products and
its operations, and COMPANY shall be responsible for advising PMG of any facts
which would affect the accuracy of any prior data and information previously
supplied to PMG so that PMG may take corrective action.
(b) COMPANY shall promptly supply PMG with full and complete copies of
all things with all federal and state securities agencies; with full and
complete copies of all shareholder reports and communications whether or not
prepared with the assistance of PMG; with all data and information supplied to
any analyst, broker-dealer, market maker, or other member of the financial
community; and with all product/services brochures, sales material, etc.
COMPANY shall supply PMG within 15 days of execution of this Consulting
Agreement, with a list of all shareholders on 3-1/2 inch computer disk in ASCII
or some other common universal format.
(c) PMG reports are not intended to be used in the offering of
securities. Accordingly, clients must agree to each of the points listed below
and to indemnify PMG for any breach of these representations and covenants.
(i) COMPANY is not presently engaged in a private or public
offering of securities, including S-8 or Regulation S, or including any
continuing distribution, whether or not exempt, that will not be included prior
to the issuance of a PMG research report on COMPANY, and COMPANY has no
intention of making such an offering within the next 90 days. An "evergreen"
prospectus for employee stock option and other plans will not preclude issuance
of PMG research reports.
(INITIAL)
(ii) COMPANY will immediately notify PMG if it intends to make any
private or public offering of securities, including S-8 or Regulation S.
(INITIAL)
(iii) COMPANY will immediately notify PMG at least 30 days prior
to any insider selling of clients stock.
(INITIAL)
(iv) COMPANY will not use PMG reports in connection with any
offering of securities without the prior written consent of PMG.
(INITIAL)
(d) In that PMG relies on information provided by COMPANY for a
substantial part of its preparations and reports. COMPANY must represent that
said information is neither false nor misleading and agrees to hold harmless
and indemnify PMG for any breach of these representations and covenants, and
sale of COMPANY securities occurring out of, or in connection with, PMG's
relationship with COMPANY, including, without limitation, reasonable attorneys'
fees and other costs arising out of any such claims.
(INITIAL)
(e) In that PMG shareholders, officers, employees, and/or members of
their families may hold a position in and engage in transactions with respect
to COMPANY
<PAGE>
securities and in light of the fact that PMG imposes restrictions on
such transactions to guard against trading on the base of material nonpublic
information, COMPANY shall contemporaneously notify PMG if any information or
data being supplied to PMG has not been generally released or promulgated.
12. REPRESENTATION AND INDEMNIFICATION
(a) COMPANY shall be deemed to make a continuing representation of the
accuracy of any and all material facts, materials, information, and data which
it supplies to PMG, and the COMPANY acknowledges its awareness that PMG will
relay on such continuing representation in disseminating such information and
otherwise performing its investor relations functions.
(b) PMG, in the absences of notice in writing from COMPANY, will rely on
the continuing accuracy of materials, information, and data supplied by
COMPANY.
(c) COMPANY hereby agrees to hold harmless and indemnify PMG against any
claims, demands, suits, loss, damages, etc. arising out of PMG's reliance upon
the instant accuracy and continuing accuracy of such facts, materials,
information, and data, unless PMG has been negligent in performing its duties
and obligations hereunder.
(d) COMPANY hereby authorizes PMG to issue, in PMG's sole discretion
corrective amendatory, supplemental, or explanatory press releases, shareholder
communications and reports or data supplied to analysts, broker-dealers, market
makers, or other members of the financial community.
(e) COMPANY shall cooperate fully and timely with PMG to enable PMG to
perform its duties and obligations under this agreement.
(f) The execution and performance of this Consulting Agreement by
COMPANY has been duly authorized by the Board of Directors of COMPANY in
accordance with applicable law, and, to the extent required, by the requisite
number of shareholders of COMPANY.
(g) The performance by COMPANY of this agreement will not violate any
applicable court decree or order, law or regulation, nor will it violate any
provision of the organizational documents and/or bylaws of COMPANY or any
contractual obligation by which COMPANY may be bound.
(h) COMPANY shall promptly deliver to PMG a complete due diligence
package to include latest 10K, latest 10Q, last 6 months of press releases and
all other relevant materials, including but not limited to corporate reports,
brochures, etc.
(i) COMPANY shall provide to PMG expenses for travel to COMPANY'S
headquarters to conduct due diligence.
(j) COMPANY shall promptly deliver to PMG a list of names and addresses
of all shareholders of COMPANY which it is aware. This list shall be upgraded
at PMG's request.
(k) COMPANY shall promptly deliver to PMG a list of brokers and market
makers of COMPANY securities which have been following COMPANY.
(l) Because PMG will rely on such information to be supplied it by
COMPANY, all such information shall be true, accurate, complete and not
misleading, in all respects.
(m) COMPANY shall act diligently and promptly in reviewing materials
submitted to it by PMG to enhance timely distribution of the materials and
shall inform PMG of any inaccuracies contained therein within a reasonable time
prior to the projected or known publication date.
13. COMPENSATION - SEE ADDENDUM "A"
(a) For all general investor relations services, COMPANY shall make
payment to PMG as follows:
<PAGE>
ADDENDUM "A", $U.S. funds upon the execution of this Consulting
Agreement; and
ADDENDUM "A", $U.S. funds per month, due and payable on the first day of
each month without billing thereafter; and
(b) All moneys payable hereunder shall be in U.S. funds and drawn on
U.S. banks. The parties acknowledge that in negotiating this fee they
recognized that the services will probably not be performed in equal monthly
segments, but may be substantial during the earlier portion of the term and
less thereafter as relationships and communication lines are established.
Thus, part of the compensation for earlier services will be deferred and
therefore any lessening of services shall not constitute a breach or
termination hereof and the level fee shall continue.
(c) See ADDENDUM "A" for further details related to compensation, if
any.
(d) For all special services not within the scope of this agreement,
COMPANY shall pay to PMG such fee(s) as, and when, the parties shall determine
in advance of performance of said special services, provided COMPANY has agreed
to said special services in advance.
14. BILLING AND PAYMENT
Monthly fees or payments shall be due and payable without billing. Billing and
payments for special services shall be agreed on a case by case basis. COMPANY
acknowledges and agrees that deposits, initial payments, down payments, partial
payments, payments for special services, monthly fees or monthly payments shall
be by wire to PMG's bank account upon execution of any agreement or agreements;
or upon payment due date in the case of monthly fees or monthly payments; or in
the case of special services, by the first day of the preceding month that work
is scheduled to be performed, unless expressly provided otherwise in writing,
and that if such funds are not received by PMG by said date, COMPANY shall pay
to PMG an additional operations charge equal to 1% for each day said funds are
not received.
15. PMG AS AN INDEPENDENT CONTRACTOR
PMG shall provide said services as an independent contractor and not as an
employee of COMPANY or any affiliate of any company affiliated with COMPANY.
PMG has no authority to bind COMPANY or any affiliate of COMPANY to any legal
action, contract, agreement, or purchase; and such action can not be construed
to be made in good faith or with the acceptance of COMPANY, thereby becoming
the sole responsibility of PMG. PMG is not entitled to any medical coverage,
life insurance, savings plans, health insurance, or any and all other benefits
afforded COMPANY employees. PMG shall be solely responsible for any Federal,
State, or Local Taxes, and should COMPANY for any reason be required to pay
taxes at a later date, PMG shall reassure such payment is made by PMG, and not
by COMPANY. PMG shall be responsible for all workers compensation payments and
herein holds COMPANY harmless for any and all such payments and
responsibilities related hereto.
16. PMG NOT TO ENGAGE IN CONFLICTING ACTIVITIES
During the term of this agreement, PMG shall not engage in any activities that
directly conflicts with the interests of COMPANY. COMPANY hereby acknowledges
notification by PMG and understands that PMG does, and shall, represent and
service other and multiple clients in the same manner as it does COMPANY, and
that COMPANY is not an exclusive client of PMG.
17. TRADE SECRETS AND INVENTIONS
PMG shall treat as proprietary any and all information belonging to COMPANY,
its
<PAGE>
affiliates, or any third parties, disclosed to PMG in the course of the
performance of PMG services. PMG assigns and agrees to assign to COMPANY or
its nominee all rights in invention and other proprietary information conceived
by PMG during the term of this agreement with respect to any work performed
under said agreement.
18. INSIDE INFORMATION - SECURITIES VIOLATIONS
In the course of the performance of this agreement, it is expected that
specific sensitive information concerning the operations of COMPANY business
and/or affiliate companies shall come to the attention and knowledge of PMG.
In such event PMG will not divulge, discuss, or otherwise reveal such
information to any third parties.
19. DISCLOSURE
PMG is required to disclose any outside activities or interests, including
ownership or participation in the development of prior inventions, that
conflict or may conflict with the best interests of COMPANY. It is mutually
understood that prompt disclosure is required under this paragraph if the
activity or interest is related, directly or indirectly, to any activity that
PMG may be involved with on behalf of the COMPANY.
20. WARRANTY AGAINST CONTEMPLATION OF AGREEMENT RELATED CORRUPT PRACTICES
PMG represents and warrants that all payments and other valuable considerations
paid or to be paid under this agreement constitutes compensation for services
rendered, that this agreement and all payments and other valuable
considerations and the use of those payments and valuable considerations are
non-political in nature, and that said payments and valuable considerations do
not influence, sway or bribe any government or municipal party, either domestic
or foreign, in any way.
21. AMENDMENTS
This agreement may be modified or amended, provided such modifications or
amendments are mutually agreed upon by and between the parties hereto and that
said modifications or amendments are made in writing and signed by both
parties.
22. SEVERABILITY
If any provision of this agreement shall be held to be contrary to law, invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this agreement
is contrary to law, invalid or unenforceable and that by limiting such
provision it would become valid and enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
23. TERMINATION OF AGREEMENT
This Consulting Agreement may not be terminated by either party prior to the
expiration of the term provided in Paragraph 8 above except as follows:
(a) Upon the bankruptcy or liquidation of the other party, whether
voluntary or involuntary.
(b) Upon the other party taking the benefit of any insolvency law,
and/or
(c) Upon the other party having or applying for a receiver appointed for
either party.
(d) 60-day written notice by either party.
(e) Upon fraudulent representations.
24. ATTORNEY FEES
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default
<PAGE>
including all costs, reasonableattorney fees, expenses and court costs through
trial, appeal and to final disposition.
25. RETURN OF RECORDS
Upon termination of this agreement, PMG shall deliver all records, notes, data,
memorandum, models and equipment of any nature that are in the control of PMG
that are the property of or relate to the business of COMPANY.
26. WAIVER OF BREACH
Waiver by either party of a breach of any provision of this agreement by the
other party shall not operate or be construed as a waiver of any subsequent
breach by the other party.
27. DISCLAIMER BY PMG
PMG shall be the preparer of certain promotional materials; and PMG make no
representation to COMPANY or others that; (a) its efforts or services will
result in any enhancement to COMPANY, (b) the price of COMPANY's publicity
traded securities will increase, (c) any person will purchase COMPANY's
securities, or (d) any investor will lend money to and/or invest in or with
COMPANY.
28. EARLY TERMINATION
In the event COMPANY fails or refuses to cooperate with PMG or fails or refuses
to make timely payment of the compensation set forth above and/or in ADDENDUM
"A", PMG shall have the right to terminate any further performance under this
agreement. In such event, and upon notification thereof, all compensation
shall become immediately due and payable and/or deliverable: and PMG shall be
entitled to receive and retain the same as liquidated damages and not as a
penalty. In lieu of all other remedies, the parties hereby acknowledge and
agree that it would be too difficult currently to determine the exact extent of
PMG's damages, but that the receipt and retention of such compensation is a
reasonable present estimate of such damage.
29. LIMITATION OF PMG LIABILITY
In the event PMG fails to perform its work or services hereunder, its entire
liability to COMPANY shall not exceed the lessor of (a) the amount of cash
compensation PMG has received from COMPANY under Paragraph 13 above, (b) the
amount of cash compensation PMG has received from COMPANY under Addendum "A",
or (c) the actual damage to COMPANY as a result of such non-performance. In no
event shall PMG be liable to COMPANY for any indirect, special or consequential
damages nor for any claim against COMPANY by any person or entity arising from
or in any way related to this agreement.
30. OWNERSHIP OF MATERIALS
All right, title and interest in and to materials to be produced by PMG in
connection with this Consulting Agreement and other services to be rendered
under said agreement shall be and remain the sole and exclusive property of
PMG, except in the event COMPANY performs fully and timely its obligations
hereunder, COMPANY shall be entitled to receive upon written request, one (1)
copy of all such materials.
31. AGREEMENT NOT TO HIRE
COMPANY understands and appreciated that PMG invested a tremendous amount of
time, energy and expertise in the training of its employees and education of
its sub contractors to be able to provide the very services COMPANY desires.
COMPANY further understands that in the event an employee of PMG be enticed to
leave, then PMG shall be damaged in an amount the parties are incapable of
calculating at the present time. Therefore, COMPANY agrees not to offer
employment to any employee or sub-contractor
<PAGE>
of PMG nor to allow any employee, officer or director of COMPANY to offer
such employment with COMPANY or any other company, concern, venture or entity
with whom officers and directors of COMPANY are employed, associated or hold
a financial stake in for a period of three (3) years from the date of
expiration or termination hereof.
32. MISCELLANEOUS
(a) Effective date of representations shall be no later than the date
PMG is prepared to distribute magazine and/or brochures pursuant to this
agreement.
(b) Currency: In all instances, references to dollars shall be deemed
to be United States Dollars.
(c) Stock: In all instances, references to stock shall be deemed to be
unrestricted and free trading.
33. ARBITRATION
Any controversy or claim arising out of, relating to this agreement, or the
breach thereof, shall be settled by arbitration in Orange County, Florida in
accordance with the rules then promulgated by said Courts and the Court shall
appoint an arbitrator, and judgment upon award rendered may be entered in the
courts of Orange County, Florida or any other court having jurisdiction
thereof, which award and/or judgment shall include reasonable attorney's fees.
34. ACCEPTANCE BY PMG
This Consulting Agreement is not valid or binding upon PMG unless and until
executed by its President or other duly authorized executive officer of PMG at
its home office in Orlando, Florida.
35. NON-WAIVER
The failure of either party at any time to require any such performance by any
other part shall not be construed as a waiver of such right to require such
performance and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require full performance hereunder.
36. EXECUTION IN COUNTERPART
This agreement may be executed in counterpart, not withstanding the date or
dates upon which this agreement is executed and delivered by any of the
parties, and shall be deemed to be an original and all of which will constitute
one and the same agreement, effective as of the reference date first written
above.
37. FURTHER MUTUAL AGREEMENT(S)
It is further mutually agreed by and between the parties hereto as follows:
(write in)
IN WITNESS WHEREOF, the parties hereto have set their hands in execution of
this agreement.
For and in behalf of: For and in behalf of:
COMPANY: PMG
PIERCE INTERNATIONAL, INC. PROGRESSIVE MEDIA GROUP, INC.
a Florida Company
By: /S/ DR. PIERCE D. PARKER By: /S/ MICHAEL DERRICK
Dr. Pierce D. Parker Michael Derrick
Chairman VP
<PAGE>
PROGRESSIVE MEDIA GROUP
ADDENDUM "A"
SPECIFIC SERVICES: (See Attachments, if any)
PHASE I
- Fulfillment of investor requests and/or inquiries
- Send company list of names and addresses of investor
- In-house common line 800 number for incoming investor
- Disburse information on behalf of company to various
financial news service
- Handle all Broker-Dealer request on behalf of company
COMPENSATION TO PMG: 400,000 SHARES
<PAGE>
PROGRESSIVE MEDIA GROUP
ADDENDUM "A"
It is mutually agreed by and between the parties hereto that in the event PMG
agrees to accept COMPANY'S free trading stock, either now or in the future, as
full or partial payment for any part or portion of PMG's compensation and/or
fee under this Consulting Agreement, that the number of such shares necessary
for such alternative compensation shall be determined pursuant to a formula or
computation that discounts said shares from the bid price at a rate of 0% based
solely upon the 10-day previous average bid price as of the date of any such
alternative compensation. In the event the price of the stock declines before
PMG is in receipt of said shares. COMPANY agrees to increase the number of the
said shares in an amount necessary to equal the dollar value determined by said
formula or computation as specified herein. In the event the stock is not
received in PMG's account within 30 days from the execution of the date of this
agreement COMPANY shall pay to PMG in U.S. funds an additional amount equal to
10% of the agreed-upon value of said shares determined by such formula or
computation mentioned above as liquidated damages, and shall continue and be
applicable to each and every thirty-day period that said shares are not
received by PMG. COMPANY agrees said payment shall be wired to PMG within
three days of any such default. COMPANY acknowledges and agrees PMG shall not
provide or continue to provide services until all such fees are paid in full.
COMPANY acknowledges that it has verified with its attorneys, accountants,
corporate officers, board of directors, executive decision makers, and
appropriate stock exchanges that said shares can, in fact, be timely delivered
to PMG as agreed.
INITIALED: Initialed:
For and in Behalf of For and in Behalf of
PIERCE INTERNATIONAL, INC. PMG
/S/ DR. PIERCE D. PARKER /S/ MICHAEL DERRICK
DR. PIERCE D. PARKER MICHAEL DERRICK
CHAIRMAN VP
DATE DATE
<PAGE>
EXHIBIT A - 2
<PAGE>
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement"), dated as of
January 1, 1998, is between PIERCE INTERNATIONAL, INC., a Colorado corporation
("PIERCE") and Charles Henry (the "Consultant").
RECITALS
A. The Consultant is in the business of providing services of benefit to
PIERCE and PIERCE desires to engage the services of the Consultant under terms
and conditions specified in this Agreement.
B. PIERCE and the Consultant intend that their relationship NOT be
considered an employer-employee relationship and desire to set forth the basic
terms of the understandings between them in this Agreement.
AGREEMENT
IN CONSIDERATION of the foregoing recitals, other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
the mutual covenants set forth below, PIERCE and the Consultant agree as
follows:
ARTICLE I
NATURE AND SCOPE OF SERVICES
Section 1.1 ENGAGEMENT. PIERCE hereby agrees to engage the services of
the Consultant and the Consultant hereby agrees to provide services to PIERCE
on the terms and conditions set forth in this Agreement.
Section 1.2 TERM. The term of this Agreement shall commence on January
1, 1998 and shall continue until August 1, 1998.
Section 1.3 NATURE OF SERVICES. The Consultant shall provide consulting
services related to the manufacture, sale, marketing and distribution of
strawboard manufacturing equipment and construction materials produced from
such equipment.
Section 1.4 COMPLIANCE WITH APPLICABLE LAWS. In performing services
under this Agreement, the Consultant shall comply with any and all applicable
laws, rules, orders, and regulations of any governmental or quasi-governmental
agency having jurisdiction over the activities of the Consultant or the
business activities of PIERCE.
<PAGE>
ARTICLE II
RELATION OF THE PARTIES
Section 2.1 INDEPENDENT CONTRACTOR STATUS. At all times the Consultant
shall be considered for all purposes to be an independent contractor. The
Consultant shall not be considered an agent or employee of PIERCE for any
purpose.
Section 2.2 CONSULTANT RESPONSIBLE FOR OWN TAXES. The Consultant shall
not be entitled to participate in any plans, arrangements or distributions by
PIERCE pertaining to or in connection with any benefits for regular employees
of PIERCE, including, but not limited to, FICA contributions and income tax
withholdings. The Consultant shall be responsible for the payment of all
applicable taxes and the filing of all applicable tax reports and returns with
the appropriate government entities with respect to any income derived by the
Consultant pursuant to this Agreement.
Section 2.3 CONSULTANT RESPONSIBLE FOR OWN INSURANCE. The Consultant
shall be responsible for providing his own insurance, including, without
limitation, liability insurance and workman's compensation.
Section 2.4 INDEPENDENT DISCRETION. The Consultant shall use
independent discretion as to the means by which the duties described in this
Agreement are accomplished. The methods and procedures for performing the
services pursuant to this Agreement are within the exclusive control of the
Consultant.
Section 2.5 NO JOINT VENTURE. PIERCE and the Consultant acknowledge
that nothing in this Agreement shall constitute them as partners or joint
venturers in the performance of any activities contemplated by this Agreement.
Section 2.6 NO WARRANTIES AUTHORIZED. In connection with performance of
Consultant's obligations under this Agreement, the Consultant shall make no
warranties, oral or written, concerning any aspect of the business operations
of PIERCE which are not provided to the Consultant, in writing, by PIERCE.
ARTICLE III
COMPENSATION FOR SERVICES
Section 3.1 SERVICE FEE. As compensation for the performance of the
Consultant's services under this Agreement, PIERCE shall deliver 60,000 shares
of Pierce International, Inc. common stock to the Consultant.
ARTICLE IV
CONFIDENTIALITY
Section 4.1 BUSINESS OPPORTUNITIES. The Consultant shall present to
PIERCE in the first instance any business opportunity (a) which is presented to
or discovered by the Consultant during the term of this Agreement (and
applicable renewals) and (b) which is either reasonably related to any type of
business activity in which PIERCE is then engaged or was presented to, or
discovered by, the Consultant by reason of performance of Consultant's duties
under this Agreement.
Section 4.2 CONFIDENTIAL LISTS. The Consultant recognizes and
acknowledges that the list of PIERCE's shareholders, contacts, suppliers,
customers and agents, as they may exist from time to time, is a valuable,
special, and unique asset of PIERCE's business. If such list is made available
to the Consultant, the Consultant will not, during the term of this Agreement
or at any time after termination of this Agreement, disclose such list or any
part of it to any person or entity for any reason or purpose whatsoever in the
absence of written consent obtained from PIERCE.
Section 4.3 CONFIDENTIAL INFORMATION. During the term of this
Agreement, the Consultant may have access to and become familiar with various
trade secrets, techniques, inventions, processes, and compilations of
information and records which are owned, in whole or in part, by PIERCE and
which are regularly used in the operation of its business, as well as various
other types of confidential information concerning PIERCE's business and
operations. The Consultant shall not disclose any such trade secrets or other
confidential information, nor use any of such trade secrets or other
confidential information, during the term of this Agreement or thereafter,
except as required in the course of performing Consultant's duties under this
Agreement. All files, records, documents, equipment, and similar items
relating to PIERCE's business, whether prepared by the Consultant or otherwise
coming into his possession, shall remain the exclusive property of PIERCE and,
except as may be required during the course of performance of Consultant's
duties under this Agreement, shall not be removed by the Consultant from the
premises of PIERCE without the prior written consent of the President of
PIERCE.
<PAGE>
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 NO ASSIGNMENT. This Agreement and all rights, benefits,
duties and obligations under this Agreement shall not be subject to execution,
attachment or similar process and, in the absence of written permission from
PIERCE, may not be assigned, delegated, transferred, pledged or hypothecated.
Any such assignment, delegation, transfer, pledge, hypothecation, execution,
attachment or similar process, to the extent permitted by law, shall be null,
void and of no effect whatsoever, unless the written consent of PIERCE and the
Consultant shall have first been obtained.
Section 5.2 GOVERNING LAW. This Agreement is made under, shall be
construed in accordance with, and shall be governed by the laws of the State of
Colorado as applied to contracts made and performed solely within the State of
Colorado.
Section 5.3 WAIVER AND MODIFICATION. Any waiver, alteration or
modification of any of the provisions of this Agreement shall be valid only if
made in writing and signed by the parties to this Agreement. The failure of
either party to enforce at any time, or for any period of time, any of the
provisions of this Agreement shall not be construed as a waiver of such
provisions or of the right of such party to enforce each and every provision of
this Agreement in the future.
Section 5.4 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid and effective
under applicable law, but if any provision of this Agreement is found to be
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
Section 5.5 ENTIRE AGREEMENT. This Agreement constitutes and embodies
the entire understanding and agreement of the parties to this Agreement and,
except as otherwise provided in this Agreement, there are no other agreements
or understandings, written or oral, in effect between the Consultant and PIERCE
(or any other person or entity) specifically relating to the substance of this
Agreement.
<PAGE>
Section 5.6 COUNTERPARTS. This instrument may be executed in
counterparts, each of which shall be deemed an original, but both of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, PIERCE and the Consultant have executed this
Agreement as of the day and year first above written.
PIERCE INTERNATIONAL, INC.
By:/S/ PIERCE D. PARKER
____________________
Pierce D. Parker, President
THE CONSULTANT
/S/ CHARLES HENRY
__________________________
Charles Henry
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's latest annual report.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year covered by
the Registrant's latest annual report.
(c) The description of the class of securities to be registered by
this Registration Statement, which are registered under Section 12 of the
Securities Act of 1934, and which were more fully described in (i) Articles of
Incorporation of Pierce International, Inc. dated July 22, 1987 and (ii)
Articles of Amendment of Pierce International, Inc. dated April 1, 1996.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be a part thereof from the date of filing of such
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The directors and officers of the Registrant shall be indemnified by the
Registrant against all costs, losses, expenses and liabilities incurred by any
such director or officer in the course of the Registrant's business according
to the Registrant's Articles of Incorporation. In addition, all directors and
officers are covered by a director's Indemnification Agreement.
The foregoing discussion of the Registrant's Articles of Incorporation is
not intended to be exhaustive and is qualified in its entirety by such
document.
ITEM 8. EXHIBITS. The exhibits listed in the following index are filed as
part of this Registration Statement.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
4 See Exhibits No. 3 (c)(i) and (c)(ii).
5 Opinion of David M. Summers, Esq.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sales
are being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement.
<PAGE>
(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) To file a post-effective amendment to this Registration
Statement to include any financial statements required by Rule 3-19 of
Regulation S-X at the start of any delayed offering or throughout a continuous
offering.
(b) The undersigned Registrant hereby 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 (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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Englewood, Colorado, on March 26, 1998.
PIERCE INTERNATIONAL, INC.
By: /S/ PIERCE D. PARKER
Pierce D. Parker
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ PIERCE D. PARKER Chairman of the Board March 26, 1998
Pierce D. Parker and President
/S/ MARK S. COOPER Director March 26, 1998
Mark S. Cooper
/S/ NANCY A. COOPER Director March 26, 1998
Nancy A. Cooper
<PAGE>
EXHIBIT 4
<PAGE>
ARTICLES OF INCORPORATION
OF
PIERCE INTERNATIONAL, INC.
KNOW ALL MEN BY THESE PRESENTS: That the undersigned incorporator being
a natural person of the age of eighteen years or more and desiring to form a
body corporate under the laws of the State of Colorado does hereby sign, verify
and deliver in duplicate to the Secretary of State of the State of Colorado,
these Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation shall be: Pierce International, Inc.
ARTICLE II
PERIOD OF DURATION
The Corporation shall exist in perpetuity, from and after the date of
filing these Articles of Incorporation with the Secretary of State of the State
of Colorado unless dissolved according to law.
ARTICLE III
PURPOSES AND POWERS
1. PURPOSES. Except as restricted by these Articles of Incorporation,
the Corporation is organized for the purpose of transacting all lawful business
for which corporations may be incorporated pursuant to the Colorado Corporation
Code.
2. GENERAL POWERS. Except as restricted by these Articles of
Incorporation, the Corporation shall have and may exercise all powers and
rights which a corporation may exercise legally pursuant to the Colorado
Corporation Code.
3. ISSUANCE OF SHARES. The board of directors of the Corporation may
divide and issue any class of stock of the Corporation in series pursuant to a
resolution properly filed with the Secretary of State of the State of Colorado.
<PAGE>
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is Seven Hundred and Fifty Million (750,000,000) shares of
no par value each, which shares shall be designated "Common Stock"; and Ten
Million (10,000,000) shares of no par value each, which shares shall be
designated "Preferred Stock" and which may be issued in one or more series at
the discretion of the Board of Directors. In establishing a series the Board
of Directors shall give to it a distinctive designation so as to distinguish it
from the shares of all other series and classes, shall fix the number of shares
in such series, and the preferences, rights and restrictions thereof. All
shares of any one series shall be alike in every particular except as otherwise
provided by these Articles of Incorporation of the Colorado Corporation Code.
1. DIVIDENDS. Dividends in cash, property or shares shall be paid
upon the Preferred Stock for any year on a cumulative or noncumulative basis as
determined by a resolution of the Board of Directors prior to the issuance of
such Preferred Stock, to the extent earned surplus for each such year is
available, in an amount as determined by a resolution of the Board of
Directors. Such Preferred Stock dividends shall be paid pro rata to holders of
Preferred Stock in any amount not less than nor more than the rate as
determined by a resolution of the Board of Directors prior to the issuance of
such Preferred Stock. No other dividend shall be paid on the Preferred Stock.
Dividends in cash, property or shares of the Corporation may be paid upon
the Common Stock, as and when declared by the Board of Directors, out of funds
of the Corporation to the extent and in the manner permitted by law, except
that no Common Stock dividend shall be paid for any year unless the holders of
Preferred Stock, if any, shall receive the maximum allowable Preferred Stock
dividend for such year.
2. DISTRIBUTION IN LIQUIDATION. Upon any liquidation, dissolution or
winding up of the Corporation, and after paying or adequately providing for the
payment of all its
<PAGE>
obligations, the remainder of the assets of the Corporation
shall be distributed, either in cash or in kind, first pro rata to the holders
of the Preferred Stock until an amount to be determined by a resolution of the
Board of Directors prior to issuance of such Preferred Stock, has been
distributed per share, and, then, the remainder pro rata to the holders of the
Common Stock.
3. REDEMPTION. The Preferred Stock may be redeemed in whole or in
part as determined by a resolution of the Board of Directors prior to the
issuance of such Preferred Stock, upon prior notice to the holders of record of
the Preferred Stock, published, mailed and given in such manner and form and on
such other terms and conditions as may be prescribed by the Bylaws or by
resolution of the Board of Directors, by payment in cash or Common Stock for
each share of the Preferred Stock to be redeemed, as determined by a resolution
of the Board of Directors prior to the issuance of such Preferred Stock.
Common Stock used to redeem Preferred Stock shall be valued as determined by a
resolution of the Board of Directors prior to the issuance of such Preferred
Stock. Any rights to or arising from fractional shares shall be treated as
rights to or arising from one share. No such purchase or retirement shall be
made if the capital of the Corporation would be impaired thereby.
If less than all the outstanding shares are to be redeemed, such
redemption may be made by lot or pro rata as may be prescribed by resolution of
the Board of Directors; provided, however, that the Board of Directors may
alternatively invite from shareholders offers to the Corporation of Preferred
Stock at less than an amount to be determined by a resolution of the Board of
Directors prior to issuance of such Preferred Stock, and when such offers are
invited, the Board of Directors shall then be required to buy at the lowest
price or prices offered, up to the amount to be purchased.
From and after the date fixed in any such notice as the date of
redemption (unless default shall be made by the Corporation in the payment of
the redemption price), all dividends on the Preferred Stock thereby called for
redemption shall cease to accrue and
<PAGE>
all rights of the holders thereof as
stockholders of the Corporation, except the right to receive the redemption
price, shall cease and terminate.
Any purchase by the Corporation of the shares of its Preferred Stock
shall not be made at prices in excess of said redemption price.
4. VOTING RIGHTS; CUMULATIVE VOTING. Each outstanding share of Common
Stock shall be entitled to one vote and each fractional share of Common Stock
shall be entitled to a corresponding fractional vote on each matter submitted
to a vote of shareholders. A majority of the shares of Common Stock entitled
to vote, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders. Except as otherwise provided by these Articles of
Incorporation or the Colorado Corporation Code, if a quorum is present, the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders.
When, with respect to any action to be taken by shareholders of this
Corporation, the laws of Colorado require the vote or concurrence of the
holders of two-thirds of the outstanding shares, of the shares entitled to vote
thereon, or of any class or series, such action may be taken by the vote or
concurrence of a majority of such shares or class or series thereof.
Cumulative voting shall not be allowed in the election of directors of this
Corporation.
Shares of Preferred Stock shall only be entitled to such vote as is
determined by the Board of Directors prior to the issuance of such stock,
except as required by law, in which case each share of Preferred Stock shall be
entitled to one vote.
5. DENIAL OF PREEMPTIVE RIGHTS. No holder of any shares of the
Corporation, whether now or hereafter authorized, shall have any preemptive or
preferential right to acquire any shares or securities of the Corporation,
including shares or securities held in the treasury of the Corporation.
6. CONVERSION RIGHTS. Holders of shares of Preferred Stock may be
granted the right to convert such Preferred Stock to Common Stock of the
Corporation on such terms as may be determined by the Board of Directors prior
to issuance of such Preferred Stock.
<PAGE>
ARTICLE V
TRANSACTIONS WITH INTERESTED DIRECTORS
No contract or other transaction between the Corporation and one or more
of its directors or any other corporation, firm, association, or entity in
which one or more of its directors are directors or officers or are financially
interested shall be either void or voidable solely because of such relationship
or interest or solely because such directors are present at the meeting of the
board of directors or a committee thereof which authorizes, approves, or
ratifies such contract or transaction or solely because their votes are counted
for such purpose if:
(a) The fact of such relationship or interest is disclosed or
known to the board of directors or committee which authorizes, approves, or
ratifies the contract or transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of such interested directors; or
(b) The fact of such relationship or interest is disclosed or
known to the shareholders entitled to vote and they authorize, approve, or
ratify such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable to the
corporation.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the board of directors or a committee thereof which
authorizes, approves, or ratifies such contract or transaction.
ARTICLE VI
CORPORATE OPPORTUNITY
The officers, directors and other members of management of this
Corporation shall be subject to the doctrine of "corporate opportunities" only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined from time to time by this Corporation's
board of directors as evidenced by resolutions appearing in
<PAGE>
the Corporation's minutes. Once such areas of interest are delineated,
all such business opportunities within such areas of interest which com to
the attention of the officers, directors, and other members of management of
this Corporation shall be disclosed promptly to this Corporation and made
available to it. The board of directors may reject any business opportunity
presented to it and thereafter any officer, director or other member of
management may avail himself of such opportunity. Until such time as this
Corporation, through its board of directors, has designated an area of
interest, the officers, directors and other members of management of this
Corporation shall be free to engage in such areas of interest on their own and
this doctrine shall not limit the rights of any officer, director or other
member of management of this Corporation to continue a business existing prior
to the time that such area of interest is designated by the Corporation.
This provision shall not be construed to release any employee of this
Corporation (other than an officer, director or member of management) from
any duties which he may have to this Corporation.
ARTICLE VII
INDEMNIFICATION
The Corporation may indemnify any director, officer, employee, fiduciary,
or agent of the Corporation to the full extent permitted by the Colorado
Corporation Code as in effect at the time of the conduct by such person.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right to amend its Articles of Incorporation
from time to time in accordance with the Colorado Corporation Code.
ARTICLE IX
ADOPTION AND AMENDMENT OF BYLAWS
The initial Bylaws of the Corporation shall be adopted by its board of
directors. Subject to repeal or change by action of the shareholders, the
power to alter, amend or
<PAGE>
repeal the Bylaws or adopt new Bylaws shall be vested
in the board of directors. The Bylaws may contain any provisions for the
regulation and management of the affairs of the Corporation not inconsistent
with law or these Articles of Incorporation.
ARTICLE X
REGISTERED OFFICE AND REGISTERED AGENT
The address of the initial registered office of the Corporation is 6474
S. Quebec, Englewood, Colorado 80111, and the name of the initial registered
agent at such address is Pierce D. Parker. Either the registered office or the
registered agent may be changed in the manner permitted by law.
ARTICLE XI
INITIAL BOARD OF DIRECTORS
The number of directors of the Corporation shall be fixed by the Bylaws
of the Corporation, with the provision that there need be only as many
directors as there are shareholders in the event that the outstanding shares
are held of record by fewer than three shareholders. The initial board of
directors of the Corporation shall consist of one (1) directors. The name and
address of the person who shall serve as director until the first annual
meeting of shareholders and until his successors are elected and shall qualify
is as follows:
NAME ADDRESS
Pierce D. Parker 6474 S. Quebec
Englewood, Colorado 80111
<PAGE>
ARTICLE XII
INCORPORATOR
The name and address of the incorporator is as follows:
NAME ADDRESS
Jon D. Sawyer 511 16th Street, #400
Denver, Colorado 80202
IN WITNESS WHEREOF, the above-named incorporator has signed these
Articles of Incorporation this 21st day of July, 1987.
/S/ JON D. SAWYER
Jon D. Sawyer
<PAGE>
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
PIERCE INTERNATIONAL, INC.
Pursuant to the provisions of the Colorado Business Corporation Act,
Pierce International, Inc., a Colorado corporation, adopts the following
Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the corporation is Pierce International, Inc.
SECOND: The following amendment was unanimously adopted on March 13,
1996, in the manner prescribed by the Colorado Business Corporation Act, by
action of the shareholders of the Corporation:
RESOLVED: That each 25 shares of this corporation's common stock
outstanding as of March 13, 1996 shall be automatically converted into
one share of its common stock and that the first full paragraph of
Article IV (prior to the subsection entitled "Dividends") of this
Corporation's Articles of Incorporation shall be deleted and replaced
with the following:
The aggregate number of shares which this Corporation shall have
authority to issue is Thirty Million (30,000,000) shares of no par value
each, which shall be designated "Common Stock"; and Four Hundred Thousand
(400,000) shares of no par value each, which shares shall be designated
"Preferred Stock" and which may be issued in one or more series at the
discretion of the Board of Directors.
A. PREFERRED STOCK. The corporation may divide and issue the preferred
stock in series. Preferred shares of each series when issued shall be
designated to distinguish them from the shares of all other series. The
Board of Directors hereby is expressly vested with authority to divide
the class of preferred stock into series and to fix and determine the
relative rights, limitations and preferences of the shares of any such
series so established to the full extent permitted by these Articles of
Incorporation and the laws of the state of Colorado in respect of the
following:
(i) The number of shares to constitute such series, and the
distinctive designations thereof;
(ii) The rate and preference of any dividends and the time of
payment of any dividends, whether dividends are cumulative and the date
from which any dividends shall accrue;
(iii) Whether shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption;
(iv) The amount payable upon shares in event of involuntary
liquidation;
(v) The amount payable upon shares in event of voluntary
liquidation;
<PAGE>
(vi) Sinking fund or other provisions, if any, for the redemption
or purchase of shares;
(vii) The terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege of conversion;
(viii) Voting rights, if any; and
(ix) Any other relative rights and preferences of shares of such
series, including without limitation any restriction on an increase in
the number of shares of any series theretofore authorized and any
limitation or restriction of rights or powers to which shares of any
future series shall be subject.
B. COMMON STOCK.
(i) The holder of common stock shall have and possess all rights
as shareholders of the corporation, except as such rights may be limited
by the preferences, privileges and voting powers, and the restrictions
and limitations, of the preferred stock. All common stock, when duly
issued, shall be fully paid and nonassessable. The holders of common
stock shall be entitled to receive such dividends as may be declared from
time to time by the Board of Directors.
(ii) Each shareholder of record shall have one vote for each share
of stock standing in such shareholder's name on the books of the
corporation and entitled to vote. Cumulative voting shall not be
permitted in the election of directors or otherwise.
<PAGE>
C. SHARE DIVIDENDS. Shares of one class or series may be issued as a
share dividend in respect of shares of another class or series, pursuant
to C.R.S. Section 7-106-204, as amended from time to time.
THIRD: Fractional shares created by the exchange of 1 share for each 25
currently outstanding shares of the corporation's common stock shall be issued
to the affected shareholders.
FOURTH: The amendment above was adopted by a vote of the shareholders
and the number of shares voted for the amendment was sufficient for approval.
DATED: March 13, 1996.
PIERCE INTERNATIONAL, INC.
By: /S/ PIERCE D. PARKER
Pierce D. Parker, President
ATTEST:
/S/ NANCY A. COOPER
Nancy A. Cooper
<PAGE>
EXHIBIT 5
<PAGE>
David M. Summers
Attorney At Law
5670 Greenwood Plaza Boulevard, Suite 422
Englewood, Colorado 80111
March 26, 1998
Pierce International, Inc.
13275 Fremont Place, Suite 101A
Englewood, Colorado 80112
RE: FORM S-8 REGISTRATION STATEMENT
COMMISSION FILE NO. 33-17679
Ladies and Gentlemen,
I have acted as counsel for Pierce International, Inc., a Colorado
corporation (the "Company") in connection with the registration by the Company
of 460,000 shares of its common stock, without par value per share (the
"Securities"), as contemplated by the Company's Registration Statement on Form
S-8 filed on March 26, 1998 with the Securities and Exchange Commission (the
"Commission") in accordance with applicable provisions of the Securities Act of
1933, as amended.
In connection with my representation, I have examined and relied upon
such records and documents as I have deemed necessary as a basis for the
opinions expressed below. In such examination, I have assumed, without
undertaking to verify the same by independent investigation, (i) as to
questions of fact, the accuracy of all representations and certifications of
all persons in documents examined by me, (ii) the genuineness of all
signatures, (iii) the duly authorized execution and delivery of all documents
on behalf of all persons, (iv) the authenticity of all documents submitted to
me as originals, (v) the conformity to originals of all documents submitted to
me as copies, (vi) the authenticity of such copied originals, and (vii) the
accuracy of all official records. I have also relied, as to certain matters of
fact, upon representations made to me by officers and agents of the Company.
Based upon and subject to the foregoing, I am of the opinion that:
(1) The Company is a corporation, duly organized, validly existing, and
in good standing under the laws of the State of Colorado.
(2) All of the Securities, upon issuance and delivery thereof, will be
duly and validly issued, fully paid and non-assessable under applicable
provisions of the Colorado Business Corporation Act.
I hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement described above.
Yours truly,
/S/ DAVID M. SUMMERS
David M. Summers
DMS/ldh
