<PAGE>
As filed with the Securities and Exchange Commission on September 2, 1997
Registration Number 33-20783-D SEC File Number 2-78287-NY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALPHA BYTES, INC.
(exact name of registrant as specified in its charter)
COLORADO 84-1064958
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Code Number)
ALPHA BYTES, INC. ANTON STEPHENS, CHAIRMAN
521 BUFALO AVENUE ALPHA BYTES, INC.
NIAGARA FALLS, NY 11430 521 BUFFALO AVENUE
(716) 284-2465 (716) 284-2465
(Address, including zip code (Address, including zip code and
telephone number, including area telephone number, including area
code of Registrants principal code of agent for service)
place of Business)
INVESTMENT BANKING AGREEMENT WITH FORTRESS FINANCIAL GROUP, LTD.
----------------------------------------------------------------
Full Title of Plan:
Copies to:
Robert E. Jordan, Esquire Anton Stephens, Chairman
Peters Maxey Short & Maxey, P.A. Alpha Bytes, Inc.
3001 Ponce De Leon Boulevard, Suite 200 521 Buffalo Avenue
Coral Gables, Florida 33134 Niagara Falls, New York 11430
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE*
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum
Title of Each Class Amount Offering Aggregate Amount
of Securities to to be Price Offering of Regis-
be Registered Registered Per Unit Price tration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock. $0.001 par value 100,000 0.4375 $43,750.00 $100.00
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
Pursuant to the provisions of Securities and Exchange Commission Rule 416,
the Registrant is registering such additional securities as may he issuable
pursuant to applicable anti-delusive obligations of the Registrant with
reference to the securities registered.
This registration statement is comprised of 12 consecutively numbered
--
pages, including exhibits. The exhibit index called for by Item 601 of
Regulation SK is located at page 3.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
- ------ ---------------------------------------
The following documents, which have been filed by ALPHA BYTES, INC. (the
"Registrant") with the Securities and Exchange Commission, are incorporated
herein by reference:
(a)
The Registrant's annual report on Form 10-K for the fiscal year ended January
31, 1996, filed with the Securities and Exchange Commission on March 16, 1997.
(b)
The Registrant's quarterly reports on Form 10-Q for the fiscal quarters ended
June 16, 1997, filed with Securities and Exchange Commission on July 30, 1997
respectively.
All documents filed by the Registrant with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c) and 15(d) of the Securities
Exchange Act of 1934, as amended, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which de-registers all securities
then remaining unsold shall, except to the extent otherwise provided by any rule
promulgated by the Securities and Exchange Commission, be deemed incorporated by
reference in this Registration statement and to be part hereof from the date of
filing such document.
ITEM 4 DESCRIPTION OF SECURITIES
- ------ -------------------------
The description of the Registrant's securities contained in Part II, Item 5 of
the Registrant's annual report on Form 10-K for the year ending January 31,
1997, is hereby incorporated by reference.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
- ------ --------------------------------------
Not Applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS
- ------ ----------------------------
In accordance with General Corporation Laws of the State of Colorado which were
in effect at the time Registrant was incorporated, the Registrant Board of
Directors adopted by resolution, as further set forth in the Registrant's by
laws, provisions relative to indemnification of its Officers and Directors
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the defense of any proceeding or
threatened proceeding to which such person was or is a party, or is threatened
to be made a party of reason of the fact that such person was or is an officer
or director to the full extent now allowed under the Colorado Corporation Act.
The Securities & Exchange Commission is of the opinion that indemnification of
the Registrant's officers or directors for the matters involving violation of
securities laws is against public policy and that agreements therefor are
consequently unenforceable.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
- ------ -----------------------------------
Not applicable.
2
<PAGE>
ITEM 8 EXHIBITS
- ------ --------
<TABLE>
<CAPTION>
Exhibit Sequential Description
Number Page Number of Exhibit
- ------- ----------- -----------
<S> <C> <C>
5. 6 Opinion of Wirt T. Maxey, Esquire.
10. 7 Investment Banking Agreement with Fortress Financial
</TABLE>
ITEM 9 UNDERTAKINGS
- ------ ------------
(A) RULE 415 OFFERING
- --- -----------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment or appendix to this registration
statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement: and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information;
provided, however, that paragraphs (a)(1)(I) and (a)(1)(ii) do not apply if
the information required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
- --- --------------------------------------------------------------------
The 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 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
<PAGE>
(C) FILING OF REGISTRATION STATEMENT ON FORM S-8
- --- --------------------------------------------
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.
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant hereby, certifies that it meets all of the requirements for filing of
Form S-8 and has duly' caused this Registration Statement to be signed on its
behalf by the undersigned in the City of Niagara Falls, State of New York on
September 2, 1997.
ALPHA BYTES, INC.
/s/ Anton Stephens, Chairman
----------------------------------------
Anton Stephens, Chairman
/s/ Christine Stephens
----------------------------------------
Christine Stephens, Secretary & Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Date Name Signature Positions:
- ------------------- ------------------ --------- --------------------------------------------
<S> <C> <C> <C>
September 2, 1997 Anton Stephens Chairman, Chief Executive
Officer & Director
September 2, 1997 Christine Stephens Secretary and Director
</TABLE>
Being all of the members of the Registrant's Board of Directors.
4
<PAGE>
Registration Number 33-20783-D
SECURITIES & EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
ALPHA BYTES, INC.
EXHIBITS
5
<PAGE>
EXHIBIT 5
OPINION OF WIRT T. MAXEY, ESQ., REGISTRANT'S COUNSEL
August 29, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Re: Alpha Bytes, Inc.
Gentlemen:
This opinion is given in connection with the filing of registration number
33-20783-D (the "Registration Statement") filed with the United States
Securities and Exchange Commission, as it pertains to 100,000 shares of freely
trading Alpha Bytes, Inc.'s (the "Registrant") common stock, no par value, one
half of which (50,000 shares) is to be issued immediately to Fortress Financial
Group, Ltd., a Delaware corporation, pursuant to the terms of a consulting
agreement. The remaining 50,000 shares is to be retained in the Corporation's
treasury to be issued at a later date to the Fortress if the original terns of
the contract are met and subsequent work is to be preformed.
Certain terms used in this opinion characterized by initial capital letters
have the meaning set forth in the Registration Statement. We have examined the
originals and copies of corporate instruments, certificates and other documents
of the Registrant and interviewed representatives of the Registrant to the
extent we deemed it necessary, in order to form the basis for the opinion
hereinafter set forth. A major portion of our investigation of the Registrant
involved review of 34 Act reports heretofore filed by the Registrant its
Articles of Incorporation and Bylaws, the information contained therein having
been presumed to be accurate. We have also reviewed the Investment Banking
Agreement the parties have entered into.
In such examination we have assumed the genuineness of all signatures and
authenticity of all documents submitted to us as certified or photostatic
copies. As to all questions of fact material to this opinion which have not
been independently established, we have relied upon statements or certificates
of officers or representatives of the Registrant.
Based on the foregoing, we are of the opinion that the 50,000 shares of the
registrant's common stock referred to in the Registration Statement will, upon
issuance in exchange for services to be rendered as approved by Rule as to use
of Form S-8(a), be fully paid and non-assessable and there is no personal
liability to the owners thereof. If further shares are issued this firm will
have to review all new documents concerning any additional work the Fortress
will be performing before it can issue an opinion concerning their validity etc.
This law firm hereby consents to the filing of this Opinion as an Exhibit
to the Registration Statement; however, this Opinion is limited to the facts set
forth herein and is not to be interpreted as an Opinion that the Registration
Statement has been properly prepared, or provides all required disclosure.
Very truly yours,
/s/ Wirt T. Maxey
----------------------
Wirt T. Maxey, Esquire
6
<PAGE>
EXHIBIT 10
INVESTMENT BANKING AGREEMENT
----------------------------
This Agreement is made as of August 26, 1997, by and between Alpha Bytes, Inc.,
a Colorado Corporation ("Contractor") with its principal offices at 521 Buffalo
Avenue, Niagara Falls, NY, 14303, and Fortress Financial Group, Ltd., a Delaware
Corporation, ("FORTRESS") with its principal offices at 1204 Palm Boulevard,
Second Floor, Isle Of Palms, South Carolina 29451.
WITNESSETH
----------
WHEREAS, Contractor requires expertise in the area of investment banking to
support it's business and growth;
WHEREAS, FORTRESS has substantial contacts among the members of the investment
community, investment banking expertise, and desires to act as a consultant to
provide investment banking and advisory services;
NOW, THEREFORE, in consideration of the premise and the mutual promises and
covenants contained herein and subject specifically to the conditions hereof,
and intending to be legally bound thereby, the parties agree as follows:
1. CERTAIN DEFINITIONS - When used in this Agreement, the following terms
-------------------
shall have the meanings set forth below:
1.1 AFFILIATE - any persons or entities controlled by a party.
---------
1.2 CONTRACTOR - the Contractor who use the services of FORTRESS.
----------
1.3 CONTRACTOR CLIENTS - the Contractor's clients who use the services of
------------------
FORTRESS through the Contractor.
1.4 CONTACT PERSON - the person who shall be primarily responsible for carrying
--------------
out the duties of the parties hereunder. Contractor and FORTRESS shall each
appoint a Contact Person to be responsible for their respective duties. In the
event that one party gives notice to the other party in writing that, in their
reasonable opinion, the other party's Contact Person is not able to fulfill
their duties and responsibilities hereunder, both parties shall mutually agree
upon a replacement Contact Person within 10 days of the said notice.
1.5 EXTRAORDINARY EXPENSES - expenses that are beyond those expenses that are
----------------------
usual, regular, or customary in the conduct of in-house activities in
fulfillment of the scope of this agreement.
1.6 EQUITY - cash, securities or liquid assets, specifically excluding real
------
property.
1.7 PAYMENT OR PAYABLE IN KIND - distribution of the proceeds of a transaction
--------------------------
in the same type and form as was given as valuable consideration for the
transaction.
2. CONTACT PERSONS. The Contact Person for Contractor is Michael Bennett, VP
----------------
Operations. The Contact Person for FORTRESS is Gregory D. Walker, President.
3. SERVICES TO BE RENDERED BY FORTRESS. Services to be rendered, on a best
------------------------------------
efforts basis, by FORTRESS are as follows:
3.1 ADVICE AND COUNSEL. FORTRESS will provide advice and counsel regarding
-------------------
Contractor's strategic business and financial plans, strategy and negotiations
with potential lenders/investors, merger/acquisition candidates, joint ventures,
corporate partners and others involving financial and financially related
transactions.
3.2 INTRODUCTIONS TO THE SECURITIES BROKERAGE COMMUNITY. FORTRESS has a close
----------------------------------------------------
association with numerous broker/dealers and investment professionals across the
country and will enable contact between Contractor and/or Contractor clients to
facilitate business transactions among them. FORTRESS shall use their contacts
in the brokerage community to assist Contractor in establishing relationships
with securities dealers and to provide the most recent corporate information to
interested securities dealers on a regular and continuous basis. FORTRESS
understands that this is in keeping with Contractor's business objective to
establish a nationwide network of securities dealers who have an interest in
Contractor's securities.
7
<PAGE>
3.3 MARKET-MAKING INTELLIGENCE. FORTRESS's clearing agent, First Southwest
---------------------------
Company, is a market-maker in numerous securities, and FORTRESS has access to
proprietary information through First Southwest Company's market-making
facilities and personnel. FORTRESS will monitor and react to sensitive market
information on a timely basis and provide advice and counsel and proprietary
intelligence (including but not limited to information on price, volume and the
identification of market-makers, buyers and sellers) to Contractor in a timely
fashion with respect to securities in which Contractor has an interest.
Contractor understands that this information is available from other sources but
acknowledges that FORTRESS can provide it in a more timely fashion and with
substantial value-added interpretation of such information. The foregoing
notwithstanding, no information will be provided to Contractor with respect to
the activities of any other FORTRESS customers or customer accounts without such
customer's prior consent.
3.4 CONTRACTOR AND/OR CONTRACTOR CLIENT TRANSACTION DUE DILIGENCE. FORTRESS
--------------------------------------------------------------
will undertake due diligence on all proposed financial transactions affecting
the Contractor, of which FORTRESS is notified in writing in advance, including
investigation and advice on the financial, valuation and stock price
implications thereof.
3.5 ADDITIONAL DUTIES. Contractor and FORTRESS shall mutually agree upon any
------------------
additional duties which FORTRESS may provide for compensation paid or payable by
Contractor under this Agreement. Such additional agreement(s) may, although
there is no requirement to do so, may be attached hereto and made a part hereof
by written amendments to be listed as "Exhibits" beginning with "Exhibit A" and
initialed by both parties.
3.6 BEST EFFORTS. FORTRESS shall devote such time and best efforts to the
-------------
affairs of the Contractor as is reasonable and adequate to render the
consulting services contemplated by this agreement. FORTRESS is not responsible
for the performance of any services which may be rendered hereunder without the
Contractor providing the necessary information in writing prior thereto, nor
shall FORTRESS include any services that constitute the rendering of any legal
opinions or performance of work that is in the ordinary purview of the Certified
Public Accountant. FORTRESS cannot guarantee results on behalf of Contractor,
but shall pursue all avenues available through its' network of financial
contracts. At such time as an interest is expressed in Contractor's needs,
FORTRESS shall notify Contractor and advise it as to the source of such interest
and any terms and conditions of such interest. The acceptance and consummation
of any transaction is subject to acceptance of the terms and conditions by
Contractor. It is understood that a portion of the compensation to be paid
hereunder is being paid hereunder by Contractor to have FORTRESS remain
available to assist with transactions on an as-needed basis.
4. COMPENSATION TO FORTRESS.
-------------------------
4.1 INITIAL FEE. Contractor shall pay FORTRESS an initial fee of $25,000
------------
(Twenty-Five Thousand Dollars) for FORTRESS' initial set-up activities which are
necessary for FORTRESS to provide the services herein. This fee shall be
considered in arrears if not received by the tenth (10th) business day
following the due date specified in the "Addendum".
4.2 ADDITIONAL FEES. Contractor and FORTRESS shall mutually agree upon any
----------------
additional fees which Contractor may pay in the future for services rendered by
FORTRESS under this Agreement. Such additional agreement(s) may, although there
is no requirement to do so, be attached hereto and made apart hereof as
Exhibits beginning with Exhibit A.
4.3 OPTIONAL FORM OF PAYMENT. FORTRESS may, at the time for each payment and
-------------------------
at its' sole option, elect to receive all or a portion of said fees in the form
of securities, equity, or financing instruments issued by Contractor to FORTRESS
on terms agreed by Contractor in writing.
4.4 EXTRAORDINARY EXPENSES. All expenses of FORTRESS should be pre-approved,
-----------------------
in writing, including extraordinary expenses and any not defined in 4.7.
Payment should be made 30 days after receipt of invoices.
4.5 INTEREST ON FUNDS DUE. Contractor shall pay interest on all payments in
----------------------
arrears due FORTRESS, at the rate of ten percent (10%) per annum. Contractor
shall have up to 30 days from the receipt of invoices to reconcile the said
invoices.
8
<PAGE>
4.6 EXPENSES. All expenses including, but not limited to, all registration
---------
fees paid to the Securities and Exchange Commission, fees and expenses of
accountants, fees and expenses of legal counsel, printing and engraving
expenses, postage and distribution fees, transfer agent fees, escrow fees, NASD
registration or exchange listing fees (but not including underwriting discounts
and commissions relating to shares and warrants of any holder being offered
thereby and fees and expenses of any special counsel of any selling shareholder)
of any registration(s) made pursuant to paragraph (4.1) hereof shall be borne
and paid by the Contractor. Underwriting discounts and commissions shall be
borne pro rata by any selling shareholder in proportion to the number of shares
being offered by such selling shareholder. All expenses should be pre-approved,
in writing by Contractor.
5. INDEMNIFICATION. The Contractor agrees to indemnify and hold harmless
----------------
FORTRESS, each of its officers, directors, employees and each person, if any,
who controls FORTRESS against any and all liability, loss and costs, expenses or
damages, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever caused
by reason of any injury (whether to body, property, personal or business
character or reputation) sustained by any person or to any person or property by
reason of any act, neglect, default or omission, or any untrue or alleged untrue
statement of a material fact, or any misrepresentation of any material fact or
any breach of any material warranty or covenant as the Contractor or any of its
agents, employees, or other representatives arising out of, or in relation to,
this Agreement. Nothing herein is intended to nor shall it relieve either party
from liability for its own act, omission or negligence. All remedies provided
by law, or in equity shall be cumulative and not in the alternative.
FORTRESS agrees to indemnify and hold harmless Contractor, each of its officers,
directors, employees and each person, if any, who controls FORTRESS against any
and all liability, loss and costs, expenses or damages, including but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever or howsoever caused by reason of any injury
(whether to body, property, personal or business character or reputation)
sustained by any person or to any person or property by reason of any act,
neglect, default or omission, or any untrue or alleged untrue statement of a
material fact, or any misrepresentation of any material fact or any breach of
any material warranty or covenant as the Contractor or any of its agents,
employees, or other representatives arising out of, or in relation to, this
Agreement. Nothing herein is intended to nor shall it relieve either party from
liability for its own act, omission or negligence. All remedies provided by
law, or in equity shall be cumulative and not in the alternative.
6. CONTRACTOR REPRESENTATIONS. Contractor hereby represents, covenants and
---------------------------
warrants to FORTRESS as follows:
6.1 AUTHORIZATION. Contractor and its signatories herein have full power and
--------------
authority to enter into the Agreement and to carry out the transactions
contemplated hereby.
6.2 NO VIOLATION. Neither the execution and delivery of this Agreement nor the
-------------
consummation of the transactions contemplated hereby will violate any provision
of the charter or by-laws of Contractor, or violate any terms of provision of
any other Agreement or any statute or law.
6.3 AGREEMENT IN FULL FORCE AND EFFECT. All contracts, agreements, plans,
-----------------------------------
leases, policies, and licenses referenced herein to which Contractor is a party
are valid and in full force and effect.
6.4 LITIGATION. Except as set forth below, there is no action, suit, inquiry,
-----------
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or, to the best
knowledge of Contractor threatened against or invoking Contractor, or which
questions or challenges the validity of the Agreement and its subject matter;
and Contractor does no know or have any reason to know of any valid basis for
any such action, proceeding or investigation.
6.5 CONSENTS. No consent of any person, other than the signatories hereto, is
---------
necessary to the consummation of the transactions contemplated hereby,
including, without limitation, consents from parties to loans, contracts,
lease or other Agreements and consents from governmental agencies, whether
federal, state, or local.
9
<PAGE>
6.6 FORTRESS RELIANCE. FORTRESS has and will rely upon the documents,
------------------
instruments and written information furnished to FORTRESS by the Contractor's
officers or designated employees.
A. CONTRACTORS MATERIAL. All representations and statements provided about
---------------------
the Contractor are true and complete and accurate to the best of Contractor's
knowledge. Contractor agrees to indemnify, hold harmless, and defend FORTRESS,
its officers, directors, agents and employees, at Contractor's expense for any
proceeding or suit which may raise out of any inaccuracy or incompleteness of
any such material or written information supplied to FORTRESS.
B. CONTRACTOR CLIENT AND OTHER MATERIAL. Contractor warrants that all
-------------------------------------
representation and statements provided, other than that about the Contractor,
are, to the best of its knowledge, true, complete and accurate.
6.7 SERVICES NOT EXPRESSED OR IMPLIED.
---------------------------------
A. FORTRESS has not agreed with Contractor in this Agreement or any other
Agreement, verbal or written, to be a market-maker (but may be a placement agent
by other "Selling Agreement" from time-to-time) in Contractor's securities or in
any specific securities or securities in which Contractor or Contractor's Client
has an interest; and,
B. Any payments made herein to FORTRESS are not, and shall not be construed
as, compensation to FORTRESS for the purposes of making a market, to cover
FORTRESS out-of-pocket expenses for making a market, or for the submission by
FORTRESS of an application to make a market in any securities; and,
C. No payments made herein to FORTRESS are for the purpose of affecting the
price of any security of influencing any market-making functions, including but
not limited to bid/ask quotations, initiation and termination of quotations,
retail securities activities, or for the submission of any application to make a
market.
7. CONFIDENTIALITY.
----------------
7.1 FORTRESS and Contractor each agree to provide reasonable security measures
to keep information confidential where release may be detrimental to their
respective business interests. FORTRESS and Contractor shall each require their
employees, agents, affiliates, subcontractors, other licensees, and others who
will have access to the information through FORTRESS and Contractor
respectively, to first enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
7.2 FORTRESS will not, either during its engagement by the Contractor pursuant
to this agreement or at any time thereafter, disclose, use or make known for its
or another's benefit, any confidential information, knowledge, or data of the
Contractor or any of its affiliates in any way acquired or used by FORTRESS
during its engagement by the Contractor. Confidential information, knowledge or
data of the Contractor and its affiliates shall not include any information
which is, or becomes generally available to the public other than as a result of
a disclosure by FORTRESS or its representatives.
8. MISCELLANEOUS PROVISIONS.
-------------------------
8.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
---------------------------
supplemented only by written agreement of FORTRESS and Contractor.
8.2 WAIVER OF COMPLIANCE. Any failure of FORTRESS, on the one hand, or
---------------------
Contractor, on the other, to comply with any obligation agreement of condition
herein may be expressly waived in writing, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
8.3 EXPENSES: TRANSFER TAXES, ETC. Whether or not the transaction, if any,
-------------------------------
contemplated by this Agreement shall be consummated, FORTRESS agrees that all
fees and expenses incurred by FORTRESS in connection with this Agreement shall
be borne by FORTRESS and Contractor agrees that all fees and expenses incurred
by Contractor in connection with this Agreement shall be borne by Contractor,
including, without limitation as to FORTRESS or Contractor, all fees of counsel
and accountants.
8.4 OTHER BUSINESS OPPORTUNITIES. Except as expressly provided in this
-----------------------------
Agreement, each party hereto shall have the right independently to engage in and
receive full benefits from business activities. In case of business
10
<PAGE>
activities which would be competitive with the other party, notice shall be
given prior to this Agreement or, if such activities are proposed, within ten
(10) days prior to engagement therein. The doctrines of "corporate opportunity"
or "business opportunity" shall not be applied to any other activity, venture,
corporation of either party.
8.5 COMPLIANCE WITH REGULATORY AGENCIES. Each party agrees that all actions,
------------------------------------
direct or indirect, taken by it and it's respective agents, employees and
affiliates in connection with this agreement and any financing or underwriting
hereunder shall conform to all applicable Federal and State securities laws.
8.6 NOTICES. Any notices to be given hereunder by any party to the other may
--------
be effected by personal delivery in writing or in by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the "Contact Person" at the addresses appearing in the
introductory paragraph of the Agreement, but any party may change his address by
written notice in accordance with this subsection. Notices delivered personally
shall be deemed communicated as of actual receipt; mailed notices shall be
deemed communicated as of five (5) days after mailing.
8.7 ASSIGNMENT. This agreement and all of the provisions hereof shall be
-----------
binding upon and insure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
right, interest or obligations hereunder will be assigned by any of the parties
hereto without the prior written consent of the other parties, except by
operation of law.
8.8 DELEGATION. Neither party shall delegate the performance of its duties
-----------
under this agreement without the prior written consent of the other party.
8.9 PUBLICITY. Neither FORTRESS nor Contractor shall make or issue, or cause
----------
to be made or issued, any announcement or written statement concerning this
Agreement or the transaction contemplated hereby for dissemination to the
general public without the prior consent of the other party. This provision
shall not apply, however, to any announcement of written statement required to
be made by law of the regulations of any Federal or State governmental agency,
except that the party concerning the timing and consent of such announcement
before such announcement is made.
8.10 GOVERNING LAW. This Agreement and the legal relations among the parties
--------------
hereto shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflict of law doctrine. Contractor
and FORTRESS agree that if any action is instituted to enforce or interpret any
provision of this Agreement, the jurisdiction and venue shall be Niagara Falls,
New York.
8.11 COUNTERPARTS. This Agreement may be executed simultaneously in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.12 HEADINGS. The heading of the sections of this Agreement are inserted for
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convenience only and shall not constitute a part hereto or affect in any way the
meaning or interpretation of this Agreement.
8.13 ENTIRE AGREEMENT. This Agreement, including any Exhibits hereto, and the
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other documents and certificates delivered pursuant to the terms hereto, sets
for the entire Agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersedes all prior agreements,
promise, covenants, arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative of any party
hereto.
8.14 THIRD PARTIES. Except as specifically set forth or referred to herein,
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nothing herein expressed or implied is intended or shall be construed to confer
upon or give to any person or corporation other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
8.15 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce and
--------------------------
collect upon the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees and costs, in addition to any other relief to
which that party may be entitled. This provision shall be construed as
applicable to the entire Agreement.
8.16 SURVIVABILITY. If any part of this Agreement is found, or deemed by a
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court of competent jurisdiction to be invalid or unenforceable, that part shall
be severable from the remainder of the Agreement.
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<PAGE>
8.17 FURTHER ASSURANCES. Each of the parties agrees that it shall from time-to-
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time take such actions and execute such additional instruments as may be
reasonably necessary or convenient to implement and carry out the intent and
purpose of this Agreement.
8.18 RIGHT TO DATA AFTER TERMINATION. After termination of this Agreement each
--------------------------------
party shall be entitled to copies of all information acquired hereunder as of
the date of termination and not previously furnished to it.
8.19 RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement shall be
----------------------------
deemed to constitute either party to become the partner of the other, the agent
or legal representative of the other, nor create any fiduciary relationship
between them, except as otherwise expressly provided herein . It is not the
intention of the parties to create nor shall this Agreement be construed to
create any commercial relationship or other partnership. Neither party shall
have any authority to act for or to assume any obligation or responsibility on
behalf of the other party, except as otherwise expressly provided herein. The
rights, duties, obligations and liabilities of the parties shall be separate,
not joint or collective. Each party shall be responsible only for its
obligations as herein set out and shall be liable only for its share of the
costs and expenses as provided herein.
8.20 NO AUTHORITY TO OBLIGATE THE CONTRACTOR. Without the consent of the Board
----------------------------------------
of Directors of the Contractor, FORTRESS shall have no authority to take, nor
shall it take, any action committing or obligating the Contractor in any
manner, and it shall not represent itself to other as having such authority.
9. TERM OF AGREEMENT AND TERMINATION. This Agreement shall be effective upon
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execution, shall continue for one year unless terminated sooner, by either
party, upon giving to the other party thirty (30) days written notice, after
which time this Agreement is terminated. FORTRESS shall be entitled to the
finders fees described in this Agreement for funding or underwriting commitments
entered into by Contractor's client within one (1) year after the termination of
this Agreement if said funding or underwriting was the result of FORTRESS
efforts prior to the termination of Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CONTRACTOR: ALPHA BYTES, INC. FORTRESS: FORTRESS FINANCIAL GROUP, LTD.
BY: BY:
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ANTON STEPHENS, PRESIDENT GREGORY D. WALKER, PRESIDENT
ADDENDUM
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ADDENDUM TO INVESTMENT BANKING AGREEMENT
1. SHARES. The number of stock shares granted to FORTRESS from Contractor
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are: (as of the date of this agreement) 50,000 (Fifty Thousand) Free Trading
Shares of the Company's common stock (hereinafter the "Shares"). FORTRESS'
ownership interest in the shares shall vest immediately.
CONTRACTOR: ALPHA BYTES, INC. FORTRESS: FORTRESS FINANCIAL GROUP, LTD.
BY: BY:
--------------------------- --------------------------------------
ANTON STEPHENS, PRESIDENT GREGORY D. WALKER, PRESIDENT
EXHIBIT A
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DUTIES OF FORTRESS FINANCIAL GROUP, LTD.
NO ADDITIONAL DUTIES OR FEES HAVE BEEN AGREED TO UNLESS THIS PAGE IS AMENDED AND
SIGNED BY BOTH PARTIES
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