As filed with the Securities and Exchange Commission on March 4, 1997
FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
America's Coffee Cup, Inc.
(Exact name of issuer as specified in its charter)
Colorado 84-1078201
(State or other (I.R.S. Employer Identification No.)
jurisdiction of incorporation
or organization)
12528 Kirkham Court, Nos. 6 & 7, Poway, California 92064
(Address of Principal Executive Offices) (Zip Code)
Consulting and Option Plan
(Full title of the plan)
Mark S. Pierce, 1999 Broadway, Suite 3250, Denver, Colorado 80202
(Name and address of agent for service)
(303) 292-2992
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Maximum Proposed Amount
securities registered Offering Price Maximum of
to be Per Share Aggregate Registration
registered Offering Fee
Price
$.40 par Value 1,725,000 $.125 $215,625 $100
Common Stock
TOTALS 1,725,000 $.125 $215,625 $100
Total No. of Pages: 14
Exhibit Index on Page No.: 36 <PAGE>
PROSPECTUS
AMERICA'S COFFEE CUP, INC.
12528 Kirkham Court, Nos. 6 & 7, Poway, California 92064
(619) 679-3290
(1,725,000 SHARES OF COMMON STOCK)
This Prospectus relates to the offer and sale by America's Coffee Cup,
Inc., a Colroado corporation (the "Company"), of up to 1,725,000 shares of
its common stock (the "Common Stock") to advisors and consultants (the
"Consultants") pursuant to agreements entered into between the Company and
the Consultants. The Company is registering hereunder and subsequently
issuing to the Consultants upon fulfillment of their agreed upon services
1,725,000 shares of Common Stock.
The Common Stock is not subject to any restriction on transferability. Of
the shares registered hereunder, a portion are being sold to "affiliates"
of the Company. An affiliate is, summarily, any director, executive
officer or controlling shareholder of the Company. The Consultants, or
some of them, however, may become subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
would limit their discretion in transferring the shares acquired in the
Company. (See "General Information - Restrictions on Resales.")
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 4, 1997
<PAGE>
This Prospectus is part of a Registration Statement which was filed and
became effective under the Securities Act of 1933, as amended (the
"Securities Act"), and does not contain all of the information set forth
in the Registration Statement, certain portions of which have been omitted
pursuant to the rules and regulations promulgated by the U.S. Securities
and Exchange Commission (the "Commission") under the Securities Act. The
statements in this Prospectus as to the contents of any contracts or other
documents filed as an exhibit to either the Registration Statement or other
filings by the Company with the Commission are qualified in their entirety
by reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: Director of
Investor's Relations, America's Coffee Cup, Inc., 12528 Kirkham Court, Nos.
6 & 7, Poway, California 92064 (619) 679-3290.
The Company is subject to the reporting requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. These reports, as well as the proxy statements, information
statements and other information filed by the Company under the Exchange
Act may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. Copies may be obtained at the prescribed rates. In addition, the
Common Stock is quoted on the "bulletin board" maintained by the National
Association of Securities Dealers, Inc. ("NASD"); thus, copies of these
reports, proxy statements, information statements and other information may
also be examined at the offices of the NASD at 1735 K St., N.W.,
Washington, D.C. 20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and, if
given or made, such other information or representation must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer or a solicitation by anyone in any state in which such
is not authorized or in which the person making such is not qualified or
to any person to whom it is unlawful to make an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstance, create any implication that there has not been a
change in the affairs of the Company since the date hereof.
<PAGE>
TABLE OF CONTENTS
Page
GENERAL INFORMATION. . . . . . . . . . . . . . . . . . . . . . .5
The Company . . . . . . . . . . . . . . . . . . . . . . . .5
Purposes. . . . . . . . . . . . . . . . . . . . . . . . . .5
Common Stock. . . . . . . . . . . . . . . . . . . . . . . .5
The Consultants . . . . . . . . . . . . . . . . . . . . . .5
No Restrictions on Transfer . . . . . . . . . . . . . . . .5
Tax Treatment to the Consultants. . . . . . . . . . . . . .5
Tax Treatment to the Company. . . . . . . . . . . . . . . .6
Restrictions on Resales . . . . . . . . . . . . . . . . . .6
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL
INFORMATION . . . . . . . . . . . . . . . . . . . . . . . .6
Interests of Named Experts and Counsel. . . . . . . . . . .7
Indemnification . . . . . . . . . . . . . . . . . . . . . .7
INFORMATION NOT REQUIRED IN PROSPECTUS . . . . . . . . . . . . .8
Item 3. Incorporation of Documents by Reference.. . . . .8
Item 4. Description of Securities.. . . . . . . . . . . .8
Item 5. Interests of Named Experts and Counsel. . . . . .8
Item 6. Indemnification of Directors and Officers.. . . .9
Item 7. Exemption from Registration Claimed.. . . . . . .9
Item 8. Exhibits. . . . . . . . . . . . . . . . . . . . .9
Item 9. Undertakings. . . . . . . . . . . . . . . . . . 10
<PAGE>
GENERAL INFORMATION
The Company
The Company has its principal executive offices at 12528 Kirkham Court,
Nos. 6 & 7, Poway, California 92064, (619) 679-3290.
Purposes
The Common Stock will be issued by the Company pursuant to agreements
entered into between the Consultants and the Company and approved by the
Board of Directors of the Company (the "Board of Directors"). The
agreements are intended to provide a method whereby the Company may be
stimulated by the personal involvement of the Consultants in the Company's
future prosperity; thereby advancing the interests of the Company and all
of its shareholders. Copies of the agreements have been filed as exhibits
to the Registration Statement.
Common Stock
The board has authorized the issuance and delivery of up to 1,725,000
shares of Common Stock to the Consultants upon and subsequent to
effectiveness of the Registration Statement, but only in the event the
Consultants perform their agreed upon services in full and elect to
exercise their options to take these shares valued at their market in
exchange for the fair value of the services rendered.
The Consultants
The Consultants have provided and/or will continue to provide their
expertise and advice to the Company on a non-exclusive basis for the
purpose of promoting the interests of the Company.
No Restrictions on Transfer
The Consultants will become the record and beneficial owners of the shares
of Common Stock upon issuance and delivery and are entitled to all of the
rights of ownership, including the right to vote any shares awarded and to
receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultants
The Common Stock is not qualified under Section 401(a) of the Internal
Revenue Code. The Consultants, therefore, will be deemed for federal
income tax purposes to recognize ordinary income during the taxable year
in which the first of the following events occurs: (a) the shares become
freely transferable or (b) the shares cease to be subject to a substantial
risk of forfeiture. Accordingly, the Consultants will receive compensation
taxable at ordinary rates equal to the fair market value of the shares on
the date of receipt. The Consultants are urged to consult their tax
advisor on this matter. Further, if any recipient is an "affiliate,"
Section 16(b) of the Exchange Act is applicable and will affect the issue
of taxation.
A recipient of securities hereunder, however, may elect to include in his
income for the taxable year in which securities are received the fair
market value thereof on the date received. If this election is made, the
subsequent lapsing of the substantial risk of forfeiture and such other
restrictions, if any, will not result in any income to the recipient.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance
with the foregoing discussion will be an expense deductible by the Company
for federal income tax purposes in the taxable year of the Company during
which the recipient recognizes income.
Restrictions on Resales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the
Exchange Act. This would mean that the affiliate could not sell any shares
acquired hereunder for a period of at least six (6) months thereafter.
Further, in the event that any affiliate acquiring shares hereunder has
sold any shares of Common Stock in the previous six months preceding the
receipt of shares hereunder, any so called "profit," as computed under
Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient by the Company. Shares of Common Stock acquired hereunder
by other than affiliates are not subject to Section 16(b) of the Exchange
Act.
DOCUMENTS INCORPORATED BY REFERENCE
AND
ADDITIONAL INFORMATION
The Company hereby incorporates by reference (i) its annual report on Form
10-K for the year ended December 31, 1996, filed pursuant to the Exchange
Act, (ii) any and all Forms 10-Q filed under the Exchange Act subsequent
to any filed Form 10-K, as well as all other reports filed under the
Exchange Act, and the Company's Form 8-A or Form 10 filing, as the case may
be, and (iii) its annual report, if any, to shareholders delivered pursuant
to Rule 14a-3 of the Exchange Act. In addition, all further documents
filed by the Company pursuant to Sections 13, 14, or 15(d) of the Exchange
Act prior to the termination of this offering are deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing.
A copy of any document or part thereof incorporated by reference in the
Registration Statement but not delivered with this Prospectus will be
furnished without charge upon written or oral request. Requests should be
addressed to: Director of Investor Relations, America's Coffee Cup, Inc.,
12528 Kirkham Court, Nos. 6 & 7, Poway, California 92064 (619) 679-3290.
Interests of Named Experts and Counsel
Mark S. Pierce, Esq., assisted in the preparation of this Prospectus and
the Registration Statement and has given an opinion on the validity of the
securities covered thereby. Mr. Pierce is a party to one of the consulting
agreements and, it is anticipated, will receive shares registered hereunder
pursuant to the terms and conditions of the agreement. Mr. Pierce is also
an affiliate of the Company.
Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the
Company, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
[INTENTIONALLY LEFT BLANK]<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
Registrant hereby states that (i) all documents set forth in (a) through
(c), below, are incorporated by reference in this registration statement,
and (ii) all documents subsequently filed by registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, 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 this registration statement and to be a part hereof from
the date of filing of such documents.
(a) Registrant's latest annual report, whether or not filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant
documents referred to in (a), above;
(c) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act or the effective Form 10 registering registrant's equity
under the Exchange Act; and
(d) The description of the securities offered hereby as set forth in the
Form 10 filed by registrant under the Exchange Act, as well as any and all
amendments thereto.
Item 4. Description of Securities.
Not Applicable to this registrant.
Item 5. Interests of Named Experts and Counsel.
Mr. Pierce is not an officer, but is a director of registrant. He has been
granted an option to acquire up to 775,000 shares of common stock of
registrant, all of which are being registered hereunder. These shares
aggregate approximately 3% of the total number of shares outstanding of
this class, as computed under the Exchange Act. Mr. Pierce owns
approximately 189,000 additional shares of this class, although he has no
other interest in registrant.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The only article, statute, charter provision, bylaw, contract, or other
arrangement under which any controlling person, director or officer of
registrant is insured or indemnified in any manner against any liability
which they may incur in their capacity as such is the Colorado Business
Corporation Code, as enacted and in effect upon adoption of the
registrant's articles of incorporation and bylaws, both of which mirror
this statute.
The provisions of this code generally provide that registrant may, but is
not obligated to, indemnify against liability an individual made a party
to a lawsuit because they were previously or are currently a director or
officer of registrant, if such person acted in good faith and reasonably
believed their actions were in the best interests of registrant.
Registrant may not indemnify such persons if they are found liable to
registrant in a shareholders' derivative suit or are found liable for
receiving an improper personal benefit. Registrant is required to
indemnify such persons if they are ultimately successful in the suit.
Pending a final determination, registrant may advance funds to these
persons, but only if provision is made for return of the funds advanced in
the event such persons are subsequently found to not be entitled to
indemnification as set forth above. The general effect of this statute is
to make indemnification available to the officers and directors of
registrant regarding actions taken in their official capacity, unless they
are found liable to registrant for their actions, they received an improper
benefit therefrom, or they did not act in good faith while reasonably
believing their actions were in the best interests of registrant.
Indemnification under this section would include actions of the officers
and directors of registrant taken in connection with this offering.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-K and are specifically incorporated
herein by this reference:
Exhibit No. Title
1. Not Required.
2. Not Required.
3. Not Required.
4. Not Applicable.
5. Opinion of Mark S. Pierce regarding the legality
of the securities registered.
6. Not Required.
7. Not Required.
8. Not Required.
9. Not Required.
10 (a) Employment Agreement with Robert W. Marsik.
(b) Engagement Agreement with Mark S. Pierce.
(c) Consulting and Option Agreement with Robert F. Tompkins..
11. Not Required.
12. Not Required.
13. Not Required.
14. Not Required.
15. Not Applicable.
16. Not Required.
17. Not Required.
18. Not Required.
19. Not Required.
20. Not Required.
21. Not Required.
22. Not Required.
23.1 Consent of Harlan & Boettger, P.C., auditors to Registrant, to
incorporation of their opinion on the audited
financial statements of Registrant incorporated herein.
23.2 Consent of Mark S. Pierce, special counsel to Registrant, to
the use of his opinion with respect to the legality of
the securities being registered hereby and to the
references to him in the Prospectus filed as a part hereof.
24. Not Required.
25. Not Applicable.
26. Not Applicable.
27. Not Applicable.
28. Not Required.
99. Not Required.
Item 9. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
registrant pursuant to the foregoing provisions, or otherwise, 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 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other that the payment
by registrant of expenses incurred or paid by a director, officer or
controlling person of 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, 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 is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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 to:
(i) include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) 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;
and
(iii) 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,
including, but not limited to, any addition or deletion of a managing
underwriter.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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 deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation
S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant's
annual report pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned in the City of Denver, State of Colorado, on the
17th day of February, 1997.
AMERICA'S COFFEE CUP, INC.
(Registrant)
By: /s/ Robert W. Marsik
Chief Executive Officer
By: /s/ Robert W. Marsik
Chief Financial Officer
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.
/s/ RobertW. Marsik
Director
Date: February 17, 1997
/s/ Mark S.Pierce
Director
Date: February 17, 1997
<PAGE>
FORM S-8 REGISTRATION STATEMENT
EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-K and are specifically incorporated
herein by this reference:
Exhibit Number
in Registration
Statement Description Numbered Page
5 Opinion of Counsel 15
10(a) Employment Agreement 18
with Robert W. Marsik
10(b) Engagement Agreement 25
with Mark S. Pierce
10(c) Consulting and Option Agreement 29
with Roger F. Tompkins
23.1 Consent to Incorporation of
Auditor's Opinion 33
23.2 Consent to Use of Attorney Opinion 35
<PAGE>
EXHIBIT 5
Opinion of Counsel
<PAGE>
March 4, 1997
America's Coffee Cup, Inc.
12528 Kirkham Court
No.s 6 & 7
Poway, CA 92064
Re: Form S-8 Filing
Gentlemen:
As special securities counsel for America's Coffee Cup, Inc., a Colorado
corporation (the "Company"), I am furnishing this opinion to you in
compliance with the referenced matter, and am familiar with the Company's
articles of incorporation and its corporate powers, franchises and other
rights under which it carries on its business. I am also familiar with the
Company's Bylaws, minute book and other corporate records. For the purpose
of the opinions expressed below, I have examined, among other things, the
registration statement on Form S-8 to be filed in regards of the above
offering (the "Registration Statement"), and have supervised proceedings
taken in connection with the authorization, execution and delivery by the
Company of the Registration Statement and, as contemplated thereby, the
authorization and issuance of the shares of common stock to be issued
thereunder. In arriving at the opinions set forth below, I have examined
and relied upon originals or copies, certified or otherwise identified to
my satisfaction, of all such corporate records and all such other
instruments, documents and certificates of public officials, officers and
representatives of the Company and of other persons and have made such
investigations of law as I have considered necessary or appropriate as
a basis for my opinions. Moreover, I have with your approval relied as to
factual matters stated therein on the certificates of public officials, and
I have assumed, but not independently verified, that the signatures on all
documents which I have examined are genuine and that the persons signing
such had the capacity to do so. This opinion further expressly assumes
that the shares covered by the Registration Statement will be issued in
conformity with the terms and conditions applicable thereto.
Based upon and subject to the forgoing, I am of the opinion that the
issuance and sale of the stock in this offering have been duly and validly
authorized and upon delivery to the shareholders in accordance with the
terms and conditions of the exhibits to the Form S-8 will have been duly
authorized, validly issued, fully paid for and nonassessable.
I am admitted to practice before the Bar of the State of Colorado only.
I am not admitted to practice in any other jurisdiction in which the
Company may own property or transact business. My opinions herein are with
respect to federal law only and, to the extent my opinions are derived from
laws of other jurisdictions, are based upon an examination of relevant
authorities and are believed to be correct, but I have not directly
obtained legal opinions as to such matters from attorneys licensed in such
other jurisdictions. My opinions are qualified to the extent that
enforcement of rights and remedies are subject to bankruptcy, insolvency
and other laws of general application affecting the rights and remedies of
creditors and security holders and to the extent that the
Page Two
ACC Opinion
March 4, 1997
availability of the remedy of specific enforcement or of injunctive relieve
is subject to the discretion of the court before which any proceeding
thereof may be brought.
This opinion is furnished by me to you as counsel for the Company and it
is solely for your benefit. This opinion is not to be used, circulated,
quoted or otherwise referred to for any other purpose, other than as set
forth in my consent to the use of the same in the Form S-8.
Very truly yours,
/s/ Mark S. Pierce
Mark S. Pierce
MSP:adt
<PAGE>
EXHIBIT 10(a)
Employment Agreement with Robert W. Marsik
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT has been made and entered into this 1st day of September,
1995, by and between America's Coffee Cup, Inc., a Delaware corporation
(the "Company"), and Mr. Robert W. Marsik a resident of California (the
"Employee"),
RECITALS
WHEREAS, the Company desires to employ the Employee to act as instructed
by the Company in accordance herewith, including, but not limited to,
functioning within the position of corporate director and officer;
WHEREAS, the Employee desires to be employed by the Company and to act as
instructed thereby and in accordance herewith, including, but not limited
to, functioning within the position of corporate director and officer; and
WHEREAS, the parties desire to enter into a written agreement providing for
the employment by the Company of the Employee;
NOW, THEREFORE, in consideration of the above and foregoing premises, the
terms and conditions set forth subsequently herein, and such other,
further, additional and valuable consideration, the receipt and sufficiency
of which are all hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1. Employment. The Company hereby employs, engages, and hires the
Employee, and the Employee hereby accepts and agrees to such hiring,
engagement, and employment, subject to the general supervision and pursuant
to the orders, advice, and direction of the Company and its board of
directors. Employment shall be on a full time basis and the Employee shall
not engage in any other type of employment for any other type of employer
or for himself during the term of this agreement.
2. Term. The initial term of this agreement shall be for a five (5) year
period commencing on the execution and delivery hereof, as first set forth
above. This term may be extended by either the Company or the Employee
at the end of said initial five year period for successive one (1) month
periods, unless terminated on ten (10) days prior, written notice by either
party to the other. This agreement is cancelable as set forth in paragraph
13 at any time during its term.
<PAGE>
3. Duties. The parties hereby agree that the duties to be initially
performed by the Employee for the Company hereunder shall be that of a
director and the Chief Executive Officer, President, Chief Financial
Officer and Treasurer, and that the Employee shall subsequently serve the
Company in whatever executive capacity the Board of Directors deems
reasonable and appropriate.
4. Best Efforts of Employee. The Employee agrees that he will at all
times faithfully, industriously, and to the best of his ability,
experience, and talents perform any and all of the duties which may be
reasonably required of and from him pursuant to the express and implicit
terms hereof.
5. Compensation of Employee. The Company shall pay the Employee for the
performance of those services which he is to render hereunder a gross base
salary of One Hundred Thousand and No One-Hundredths Dollars ($100,000)
on an annual basis during the term hereof at such times on a ratable basis
and from time to time as is currently the normal practice for the Company.
The foregoing salary represents gross wages, and the Employee recognizes
and agrees that the Company shall deduct federal and state income taxes,
F.I.C.A. and all other normal, necessary and required amounts therefrom.
Further, the Company shall pay to the Employee and his management and
operations "teams," as the same are constituted by the Employee, and in the
amounts and proportions as the Employee shall determine, from time to time,
the percentage of yearly "revenues" noted below of the Company during any
fiscal year, beginning with the 1996 fiscal year, such additional
consideration being hereinafter referred to as the "Bonus Payments."
Payout Revenues
10% $4,500,001 to $5,500,000
9% $5,500,001 to $6,500,000
8% $6,500,001 to $7,500,000
7% $7,500,001 to $8,500,000
6% $8,500,001 to $9,500,000
5% $9,500,001 and above
The Bonus Payments shall be in addition to the Employee's gross base salary
and the normal and customary gross salaries of the teams during the year.
The term "revenues" shall have the meaning attributed thereto under
Generally Accepted Accounting Principles as now constituted and in effect
and as the same may be adjusted from time to time during the term hereof.
The Bonus Payments shall be paid by the 105th day after each fiscal year
end. The Bonus Payments will be made 50% in cash and 50% in options to
acquire common stock of the Company, all of which shall be registered under
Form S-8 and shall be encompassed within the America's Coffee Cup, Inc.,
1995 Stock Option Plan (the "Plan"). The options granted shall be valued
at the "market," as defined in the Plan, and the exercise price therefor
shall be at the market; thus, the options granted shall be in number equal
to one-half of the Bonus Payments divided by the market. The exercise
price shall be paid through the declaration and concurrent delivery of
one-half of the Bonus Payments; thus, exercise of the options shall occur
on the date of grant through the one-half of the Bonus Payments not
deliverable by the Company in cash.
6. Vacations. The Company hereby agrees that the Employee shall be
entitled to three (3) weeks' annual vacation during the term hereof. The
time that such vacation may be taken by the Employee shall be determined
by mutual agreement between the parties.
7. Automobile. The Company agrees to provide the Employee with an
automobile allowance of $500 per month to be applied to the purchase,
rental or stipend in order to provide transportation to and from work and
for work related needs.
8. Medical Insurance. The Company agrees that it shall provide the
Employee and all of his dependents with health care/medical insurance
coverage. All premiums for such insurance shall be paid by the Company.
9. Devotion of Time. The Employee shall devote such of his time,
attention, knowledge and skills as is required of him by this agreement.
10. Disclosure of Information. Subsequent to the termination of this
agreement, the Employee shall not at any time impart any information
relative to the business or affairs of the Company to anyone.
11. Covenant Not to Compete; Trade Secrecy Agreement. Employee hereby
agrees and covenants with the Company that for a period of three (3) years
from the termination of his employment with the Company for any reason
whatsoever, whether with or without cause, he will not, for any reason or
cause whatsoever, either directly or indirectly, own, manage, operate, lend
money to, join, control, assist, be employed by, or participate in the
ownership, management, operation, or control of, or be connected in any
manner with, including, but not limited to, the positions of shareholder,
director, officer, consultant, independent contractor, agent, employee,
partner, creditor or investor in any organization which is of a type or
character or which conducts the same or similar business to the business
engaged in by the Company at the time of the termination of this agreement
within the United States, nor will the Employee divert or attempt to divert
from the Company any business whatsoever by influencing or attempting to
influence any clients, employees or agents of the Company. The Employee
and the Company each acknowledge that they are familiar with the provisions
of California law enacted to protect employees, and the Employee
acknowledges that this agreement is intended to be for the protection of
trade secrets owned by the Company and the Employee will be an executive
employee and, thus, the agreement of the Employee contained herein will be
enforceable against him. This agreement is intended to provide protection
for the Company's trade secrets by eliminating the possibility of any
intentional or inadvertent use or disclosure of any trade secret
information during the term of the covenant set forth herein.
12. Reimbursement of Expenses. In the event that the Employee incurs any
expenses in the performance of the duties contained in this agreement, the
incurrence of which was authorized by the Company, the Company shall
reimburse the Employee for said expenses within thirty (30) days after
the Employee has furnished the Company with a complete statement as to the
date such expenses were incurred, the business purpose for incurring such
expenses, the name of any person or persons who benefitted from the
expenditures, and the amount of the expenses, which shall only be
reimbursed upon the furnishing of such information and any other
information which the Company reasonably deems necessary to verify the
incurrence of the expenditures and to justify to the Internal Revenue
Service their deductibility.
13. Termination. In the event during the term hereof any of the following
events occur: (1) the death or "total and permanent incapacity" (as defined
below) of the Employee; (2) the substantial failure or inability of the
Employee to perform his duties hereunder, or (3) the "serious misconduct"
(as defined below) of the Employee, the board of directors governing the
Company may elect to terminate the rights and obligations under this
agreement by written notice to the Employee. In the event the board
exercises its right to terminate this agreement under this paragraph, the
term of this agreement shall terminate effective with such notice.
Total and permanent incapacity shall mean any physical or mental condition
(including habitual alcoholism or drug abuse of the Employee) expected to
continue for more than six months which renders the Employee incapable of
effectively performing the services contemplated hereunder. Serious
misconduct shall mean (I) embezzlement or misappropriation of funds (as
well as any other acts of dishonesty), (ii) activities and statements which
are harmful to the reputation of the Company, its respective officers,
directors, shareholders, employees or contractors, (iii) willful refusal
to perform or substantial disregard of those duties properly assigned
hereunder or (iv) the violation of any contractual obligation or covenant
set forth in this agreement.
14. Waiver and Severability. No waiver of any breach or violation hereof
shall be implied from the forbearance or failure by the Company to take
action thereon. It is the desire and intent of the parties that the
provisions of the agreement be enforced to the fullest extent permissible
under the laws and the applicable public policies of the State of
California. Accordingly, the terms of this agreement are determined to be
severable, and if any particular portion is adjudicated or determined
to be invalid or unenforceable, such determination shall only apply to that
portion of the agreement and the balance of this agreement shall
nevertheless be enforceable to the fullest extent permissible under the
laws and public policies applying thereto.
15. Modification of Contract. No waiver or modification of this agreement
or of any covenant, condition, or limitation herein contained shall be
valid unless in a writing which has been duly executed by the party to be
charged therewith. No evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration or
litigation between the parties hereto arising out of or affecting this
agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing and duly executed. The parties
further agree that the provisions of this section may not be waived except
as herein set forth.
16. Complete Agreement. This agreement contains the complete agreement
between the parties relating to the subject matter hereof and shall, as of
the date hereof, supersede all other agreements between the parties.
Also, this agreement fully and completely supersedes any previous agreement
with the Employee. The parties stipulate that neither of them has made any
representation or warranty with respect to the subject matter of this
agreement or any representations or warranties, including the execution and
delivery hereof, except such representations and warranties as are
specifically set forth herein, and each of the parties hereto acknowledges
that he or it has relied on his or its own judgement in entering into this
agreement. The parties further acknowledge that any representations or
warranties that may have heretofore been made by either of them to the
other with regards to the subject matter hereof are of no effect and that
neither of them has relied thereon in connection with his or its execution
and delivery of this agreement.
17. Choice of Law. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under and
pursuant to the laws of the State of California.
18. Notice. If any notice is required hereunder, it shall be sufficient
if in writing sent by registered or certified mail or facsimile in the case
of the Company to its principal place of business and if to the Employee,
also to its principal place of business.
19. Inurement. This agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns. The rights and
benefits of the Employee under this agreement are personal to him and no
such right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer; except as specially otherwise provided
herein.
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals
this 1st day of September, 1995.
AMERICA'S COFFEE CUP, INC.
By: /s/ Mark S. Pierce
Mark S. Pierce, Representative of the
Board of Directors
EMPLOYEE:
/s/ Robert W. Marsik
Robert W. Marsik
STATE OF CALIFORNIA )
) cc.
COUNTY OF SAN DIEGO )
The foregoing instrument was subscribed, acknowledged, and affirmed or
sworn to before me this 1st day of September, 1995, by Robert W. Marsik,
who acknowledged before me that he was the Employee subject to the above
agreement.
Witness my hand and official seal.
/s/ Notary
Notary Public
(Seal)
My commission expires:
<PAGE>
EXHIBIT 10(b)
Engagement Agreement with Mark S. Pierce
<PAGE>
June 13, 1994
Board of Directors
America's Coffee Cup, Inc.
10721 Treena Street, Suite 114
San Diego, CA 92131
Re: Registration Statement and Miscellaneous Matters
Gentlemen:
This letter sets forth the agreement between myself and your company,
America's Coffee Cup, Inc., a Delaware corporation (the "Company"),
concerning my representation of the Company as special securities counsel,
and will also pertain to my representation of the Company in any other
legal capacity in which you may subsequently engage me. This agreement
covers all fees and costs incurred since September 1, 1993. Thank you for
placing your faith in me for such important matters.
At the present time, the Copany is proposing to conduct a registered
offering of its common stock and warrants to the public. It is my
understanding that I will be repsonsbile for providing the drafting and
filing of a Form S-1 or other acceptable registration statement with the
Washington, D.C., or applicable district office of the U.S. Securities and
Exchange Commission (the "Commission"), and also for any subsequent
amendments to the form required during the distribution period. Further,
I will be responsible for drafting and filing of all applications with
state authorities to allow for the public offering. Given the current
stage of the Company's development, there are certain states which will not
allow the sale of stock to their residents. These are somtimes referred
to as "merit review" states; thus, I cannot assure you that the Company's
securities can be sold throughout the United States. Further, since I have
only recently begun my due diligence of the Company, I cannot at this point
assure you the Form S-1 will be granted effectiveness by the Commission;
however, there is nothing which has come to my attention to th e date of
this letter which would preclude effectiveness. In regards of the
registration statement, I will also be responsbile for the wrap-up of
miscellaneous matters which may legally affect the Company from the
standpoint of the offering. This will be also included with te flat fee
specified below.
In addition, I will provide for hte perrequisites and actual filing for a
NASDAQ listing when the Company meets the financial conditions therefor.
This is also included with the flat fee specified below.
The nature, character and amount of my fees are determined in accordance
with Canon 2 of the Code of Professional Responsibility adopted by the
Colorado Supreme Court. My fees, retainer and payment policies are based
upon (i) the time and labor required, the novelty and difficulty of the
issues involved, and the skill required to perform the legal service
properly; (ii) the degree of risk, amount of money involved and benefits
resulting to the Company from such legal services; (iii) the time
limitations imposed by the Company or by the circumstances; (iv) the
contingency or the certainty of my compensation and (v) whether my
services are for a new client or for an established and consistent client.
My legal fees, other than those encompassed within the flat fee discussed
below, will be computed on an hourly basis and will be adjusted to take the
foregoing factors into account.
A flat fee of $20,000 (U.S.) is required to provide for the filing and
effectiveness with the Commission and state regulatory authorities of a
registration statemetn allowing for the public offering of the securities
of the Company. This fee does not include my costs. The flat fee also
does not include any post-effective amendmnets to the registration
statement, which will be billed at the hourly rates set forth subsequently.
The flat fee is payable as follows:
(i) $7,500 upon completion of initial draft of regsitration statement and
exhibits;
(ii) $5,000 upon the initial filing of the resgristration statement
with the Commission;
(iii) $5,000 upon the filing of amendment no. 1 to the registration
statemetn with the Commission; and
(iv) $2,500 upon the effectiveness of the registration statement.
My time, other than the flat fee discussed immediately above, is accrued
in one-tenth (1/10) hour increments at rates which are influenced by the
facators outlined ablove. My hourly rate is $150 (U.S.) And is subject to
change upon 30 days' prior, written notice. The rates charged vary from
$5 (U.S.) To $65 (U.S.) For lawe ckerks' and paralegals' time. In
addition, the Company is responsbile for other costs and expenses relating
to this representation, including, but not limited to, state and federal
filing feeees, printiing costs, travel expenses, long distance charges and
reproduction and copying costs.
My invoices reflect the services rendered, are mailed once a month, are due
and payable upon presentation thereof and itemize the nature of the legal
services rendered throughout the month. Statements which remain unpaid for
more than 30 days from the date thereof are subject to interest on the
outstanding overdue amount in accordance with the Colorado Bar
Association's Ethics Opinion Y. The interest charge is equal to one and
one-half percent (1-1/2%) per month on the overdue balance, which equals
eighteen percent (18%) per annum.
My policy is to require a retainer prior to undertaking work on new
engagements. I am willing to depart from my normal policy under the
assumption that my invoices will be promptly paid.
I will make every effort to comply with the time schedules which you may
give me. The attainment of your goals, however, requires the Company's
cooperation. Any difficulties in developing information and completing the
required documents will result in delays.
If you have any questions about an invoice, please call me immediately.
I want you to be satisfied with the terms of my representation, both now
and in the future. It is my custom to keep my clients
informed as to the status of all matters entrusted to me. In that regards,
I will furnish you with information concerning the work which I have
performed on the Company's behalf and the progress I am making in
connection with the matters which you entrust with me. I welcome your
inquiries.
I look forward to working with you and the other members of the Company,
and also to having your assistance and ideas. Please remember, however,
that I represent only the Company. Once again, thank you for the
opportunity to be of service.
Yours very truly,
/s/ Mark S. Pierce
Mark S. Pierce
If this agreement correctly sets forth our mutual understanding, please
execute, date and return an original for my files.
READ AND ACCEPTED effective the 14th day of June, 1994.
AMERICA'S COFFEE CUP, INC.
By: /S/ Robert W. Marsik
Robert W. Marsik, President
<PAGE>
EXHIBIT 10(c)
Consulting and Option Agreement with Roger F. Tompkins<PAGE>
CONSULTING AND OPTION AGREEMENT
This Consulting and Option Agreement is made and entered on October 1,
1996, into to be effective as of the date upon which services first
rendered in accordance herewith and is by and between Roger F. Tompkins
("Consultant") and America's Coffee Cup, Inc. ("Client").
A. Consultant is willing and able to provide various valuable services for
and on behalf of Client in his capacity as a director of Client.
B. Client desires to retain Consultant in the aforesaid capacity, and
Consultant desires to be retained in that capacity upon the terms and
conditions hereinafter set forth.
In consideration of the above and foregoing premises, the mutual promises
and agreements hereinafter set forth, and such other and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Client and Consultant agree as follows:
1. Consulting Services. Client hereby retains Consultant, and Consultant
hereby accepts and agrees to such retention. Consultant shall render to
Client services of an advisory or consultative nature in his capacity as
a director.
2. Time, Place and Manner of Performance. Consultant shall be available
for advice and counsel to the officers and other directors of Client at
such reasonable and convenient times and places as may be mutually agreed
upon. Except as aforesaid, the time, place and manner of performance of
the services hereunder, including the amount of time to be allocated by
Consultant to any specific service, shall be determined in the sole
discretion of Consultant.
3. Term of Agreement. This agreement shall begin when Consultant first
began rendering services for Client, and shall terminate when the services
have been fully rendered hereunder or on December 31, 1996, whichever
occurs first.
4. Compensation. Upon termination of this agreement, Client shall pay
Consultant a fee in the amount of $7,250 per month, or $21,750 in the
aggregate. At the option of Consultant, the Consultant may, at any time
and from time to time, elect to take all or any portion of this amount in
shares of the free trading common stock of Client registered under a Form
S-8 filed in accordance with the terms and conditions set forth under the
Securities Act of 1933, as amended. The parties have agreed that the fair
market value of this stock, after considering the financial condition of
Client, shall be the inside bid price per said share at the close of
business on the date that Consultant elects to exercise his options. This
option is not transferrable by Consultant.
5. Expenses. Client shall reimburse Consultant on demand for all expenses
and other disbursements, including, but not limited to, travel,
entertainment, mailing, printing and postage, incurred by Consultant.
Expenses and disbursements in excess of $100 shall have Client's prior
approval. These expenses shall be paid in cash, or, at the option of
Consultant, in shares of Client's common stock registered under Form S-8.
If this non-transferrable option is exercised, said shares
shall be issued at the fair market value therefor, which Client and
Consultant agree will be the closing inside bid price therefor on the date
of payment.
6. Work Product. It is agreed that, prior to public distribution, all
information and materials produced for Client shall be property of
Consultant, free and clear of all claims thereto by Client, and Client
shall retain no claim of authorship therein.
7. Disclosure of Information. Consultant recognizes and acknowledges that
Consultant has and will have access to certain confidential information of
Client and its affiliates that are valuable, special and unique assets and
property of Client and such affiliates. Consultant will not, during or
after the term of this agreement, disclose, without the prior written
consent or authorization of Client, any such information to any person,
except to authorized representatives of Consultant or its affiliates for
purposes of the services to be rendered under this agreement, for any
reason or purpose whatsoever. In this regard, Client agrees that such
authorization or consent to disclosure may be conditioned upon the
disclosure being made pursuant to a secrecy agreement, protective order,
provision of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the hands of the person
to whom the information is to be disclosed or in compliance with the terms
of a judicial order or administrative process.
8. Nature of Relationship. It is understood and acknowledged by the
parties that Consultant is being retained by Client in an independent
capacity and that in this connection, Consultant hereby agrees, except as
otherwise provided herein, or unless Client shall have otherwise consented,
not to enter into any agreement or incur any obligation on behalf of
Client.
9. Conflict of Interest. Consultant shall be free to perform services for
other persons during the term of this agreement. Consultant will notify
Client of the performance of consulting services for any other person which
would conflict with the obligations of this agreement. Upon receiving
such notice, Client may terminate this agreement or consent to Consultant's
outside consulting services. Failure to terminate this agreement shall
constitute Client's ongoing consent to Consultant's outside consulting
activities.
10. Indemnification for Securities Law Violations. Client agrees to
indemnify and hold harmless Consultant and each officer, director or
controlling person of Consultant against any losses, claims, damages,
liabilities and/or expenses (including any legal or other expenses
reasonably incurred in investigating or defending any act or claim in
respect thereof) to which Consultant or such officer, director or
controlling person may become subject under the Securities Act of 1933,
as amended, or the Securities Exchange Act of 1934, as amended, because of
actions of Client or its agent(s).
11. Notices. Any notices required or permitted to be given under this
agreement shall be sufficient if in writing and delivered or sent by
registered or certified mail to the principle office of each party.
12. Waiver of Breach. Any waiver by a 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 waiving party.
13. Assignment. This agreement and the rights and obligations of the
parties hereunder are not assignable by either party.
14. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and under and
pursuant to the laws of the State of Colorado and that in any action,
special proceeding or other proceeding that may be brought arising out of,
in connection with or by reason of this agreement, the laws of the State
of Colorado shall be applicable and shall govern to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
15. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any
competent court, the agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
16. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all
prior understandings, agreements and negotiations between the parties.
17. Counterparts. This agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which taken together
shall constitute but one and the same document.
IN WITNESS WHEREOF, the parties hereto have entered into this agreement
effective as of the day and year first above written.
CONSULTANT: CLIENT:
By:
Roger F. Tompkins Robert W. Marsik, President
<PAGE>
EXHIBIT 23.1
Consent to Incorporation of Auditor's Opinion
<PAGE>
March 4, 1997
Board of Directors
America's Coffee Cup, Inc.
12528 Kirkham Court
Nos. 6 & 7
Poway, CA 92064
RE: Form S-8
Gentlemen:
Please allow this letter to serve as our consent to the incorporation by
reference of our opinion in the Form 10-K for the year and period ended
December 31, 1995, in the Form S-8 dated on approximate date herewith in
the registration statement under the referenced matter.
If you have any questions with regards to the above matter, please call the
undersigned.
Yours very truly,
/s/ Harlan & Boettger
Harlan & Boettger
MSP:adt
<PAGE>
EXHIBIT 23.2
Consent to Use of Attorney Opinion
<PAGE>
March 4, 1997
Board of Directors
America's Coffee Cup, Inc.
12528 Kirkham Court
Nos. 6 & 7
Poway, CA 92064
RE: Form S-8
Gentlemen:
Please allow this letter to serve as my consent to the filing of, and
reference in the prospectus to, my opinion dated even date herewith in the
registration statement under the referenced matter.
If you have any questions with regards to the above matter, please call the
undersigned at the Denver address.
Sincerely,
/s/ Mark S. Pierce
Mark S. Pierce
MSP:adt
