As filed with the Securities and Exchange Commission on November 23, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
PROFORMIX SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2228828
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification No.)
organization) Code Number)
50 Tannery Road
Branchburg, New Jersey 08876
(908) 534-6400
(Address and Telephone Number of Registrant's
Principal Executive Office)(Zip Code)
Consulting Agreement between Bruce R. Goldman and
Proformix Systems, Inc. Dated November 22, 1998
(full title of the plans)
Jerry Swon, President
50 Tannery Road
Branchburg, New Jersey 08876
(908) 534-6400
(Name, Address & Telephone number, including area code, of agent for service)
Copies to:
Michael H. Freedman, Esq.
Silverman, Collura, Chernis & Balzano, P.C.
381 Park Avenue South - Suite 1601
New York, New York 10016
(212) 779-8600
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share(1) offering price(1) fee
- --------------------------------------------------------------------------------
Common Stock(1) 1,000,000 $1.00 $1,000,000 $303.03
- --------------------------------------------------------------------------------
(1) Calculated in accordance with 457(c) using the average of the bid and asked
price for the Common Stock on November 20, 1998.
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PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing information specified in Part 1 (plan information
and registrant information) will be sent or given to the consultants as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part 2 of this form taken together constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION
The documents incorporated by reference in Item 3 of Part II of this
registration statement will be provided to all participants without charge, upon
written or oral request. These documents have been incorporated by reference in
the Section 10(a) prospectus. Other documents required to be delivered to
employees or consultants pursuant to Rule 428(b) are also available to
participants without charge, upon written and oral request. Please direct all
inquiries to Proformix Systems, Inc., 50 Tannery Road, Branchburg, New Jersey
08876, Attn: Joerg H. Klaube, Tel. (908) 534-6400.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for its fiscal year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-QSB for the periods ended
March 31, 1998 and June 30, 1998;
(c) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the Company's fiscal year ended December 31,
1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent hereto, but
prior to the termination of the offering of securities made by this Prospectus
shall be deemed to be incorporated by reference herein and to be part hereof
from their respective dates of filing.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus, to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES
The Company is authorized to issue 30,000,000 shares of Common Stock and
3,000,000 shares of preferred stock, $.001 par value. 2,500 shares of preferred
stock have been designated Cumulative Preferred Stock, $.001 par value, of which
10 shares are outstanding.
Common Stock
Holders of Common Stock are entitled to one vote per share on each matter
submitted to vote at any meeting of shareholders. Shares of Common Stock do not
carry cumulative voting rights and therefore, holders of a majority of the
outstanding shares of Common Stock will be able to elect the entire board of
directors of the Company. The Company's board of directors has authority,
without action by the Company's shareholders, to issue all or any portion of the
authorized but unissued shares of Common Stock, which would have the effect of
reducing the percentage of securities ownership of the Company's shareholders
and diluting the book value of the Common Stock.
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Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock. The Common Stock is not subject to redemption
and carries no subscription or conversion rights. In the event of liquidation of
the Company, the holders of shares of Common Stock are entitled to share equally
in corporate assets after the holders, if any, of Preferred Stock and after
satisfaction of liabilities. Holders of Common Stock are entitled to receive
such dividends as the Company's board of directors may from time to time declare
out of funds legally available for the payment thereof. The Company has never
paid cash dividends on its Common Stock and does not anticipate that it will pay
such dividends in the future.
Cumulative Preferred Stock
Holders of Cumulative Preferred Stock are entitled to receive out of the
surplus or net profits of the Company, cumulative dividends at the rate of 9%
per annum, payable as and when declared by the Board of Directors of the
Company, before any dividends shall by declared or paid upon Common Stock. The
Cumulative Preferred Stock ranks, with respect to dividend rights, rights on
liquidation, winding up and dissolution, and rights upon redemption, prior to
all classes of Common Stock. Holders of Cumulative Preferred Stock are not
entitled to any voting rights.
In the event of liquidation, dissolution, or winding up of the affairs of
the Company, after payment of debts and other liabilities of the Company,
holders of Cumulative Preferred Stock are entitled to receive out of the
remaining net assets of the Company the amount of $100,000 for each share of
Cumulative Preferred Stock held ("Liquidation Price"). The Company may redeem
the Cumulative Preferred Stock by paying to the holders thereof the Liquidation
Price for each share of Cumulative Preferred Stock held, together with any
accrued and unpaid dividends.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Paul Chernis, Anthony M. Collura and Ronald Balzano, partners in the law
firm Silverman, Collura, Chernis & Balzano, P.C., the Company's securities
counsel, are holders of an aggregate of 40,000 stock options for the purchase of
Common Stock at $2.00 per share. The stock options are exercisable during the
four year period commencing October 15, 1998 and vests at 25% per year.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware and
Article 7 of the Company's Articles of Incorporation contain provisions for
indemnification of officers, directors, employees and agents of the Company. The
Articles of Incorporation require the Company to indemnify such persons to the
full extent permitted by Delaware law. Each person will be indemnified in any
proceeding if he acted in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interest of the Company.
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Indemnification would cover expenses, including attorney's fees, judgments,
fines and amounts paid in settlement.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company, the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expense
incurred or paid by a director, officer, or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person of the Company in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by a controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issues.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8 EXHIBITS
4.1 Consulting Agreement between Bruce R. Goldman and the Company dated
November 22, 1998.
5.1 Opinion of Silverman, Collura, Chernis & Balzano, P.C.
23.1 Consent of Silverman, Collura, Chernis & Balzano, P.C. (included in
Exhibit 5.1)
23.2 Consent of Rosenberg, Rich, Baker, Berman & Company
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes;
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which,
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individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change of such information in the Registration Statement;
Provided however that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply
to information contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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 is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirement of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, therewith duly
authorized, on November 20, 1998.
PROFORMIX SYSTEMS, INC.
By:/s/Jerry Swon
----------------------
Jerry Swon, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, hereby constitutes and appoints Jerry Swon, his true and lawful
attorney-in-fact, with full power of substitution and resubstitution, for his
and in his name, place and stead, in any and all capacities, to sign any or all
amendments or supplements to this Registration Statement and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact full power and authority to do
and perform each and every act and thing necessary or appropriate to be done
with respect to this Registration Statement or any amendments or supplements
hereto and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities with Proformix Systems, Inc. and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/Jerry Swon President and Director November 20, 1998
- -------------------- (Principal Executive Officer)
Jerry Swon
/s/Joerg H. Klaube Chief Financial Officer November 20, 1998
- -------------------- (Principal Financial Officer)
Joerg H. Klaube
/s/Michael G. Martin Chairman of the Board November 20, 1998
- --------------------
Michael G. Martin
__________________ Director November __, 1998
Peter Buscetto
/s/Paul Chernis Director November 20, 1998
- ------------------
Paul Chernis
/s/Bruce Deichl Director November 20, 1998
- ------------------
Bruce Deichl
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EXHIBIT 4.1
CONSULTING AGREEMENT
This Consulting Agreement is made effective this 22 day of November, 1998,
by and between Bruce R. Goldman ("Consultant") and Proformix Systems, Inc.
("Client") with respect to the following:
WHEREAS, Consultant has rendered valuable services to Client in connection
with the negotiation, consolidation and/or settlement of certain debts and
liabilities of the Company; and
WHEREAS, Client desires to compensate Consultant for his services.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Client and Consultant
agree as follows:
1. Engagement of Consultant.
Client hereby retains Consultant to assist Client in the consolidation,
negotiation and/or settlement of certain outstanding debts and liabilities of
the Company which total approximately $500,000, and said Consultant has further
agreed to purchase and assume said debts and liabilities as set forth on
Schedule A attached hereto. The foregoing services collectively are referred to
herein as the "Consulting Services." Client agrees that the Consulting Services
shall be complete within 90 days from the date hereof.
2. Compensation.
(a) Client shall issue to Consultant, upon execution of this Agreement,
1,000,000 shares ("Shares") of the Client's Common Stock, valued at $.50 per
share ("Share Price"). The Client agrees that the Shares will have been
registered under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-8 or other appropriate form, to be filed with
the Securities and Exchange Commission.
(b) During the one year period commencing on the date hereof, Client shall
have the right to purchase all or part of the Shares from Consultant at a price
of $.55 per share.
(c) During the one year period commencing on the date hereof, Consultant
shall have the right to sell the Shares to Client at a price of $.50 per share.
(d) If the Consulting Services are not completed within 90 day from the
date hereof, Consultant shall return the Shares to Client.
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3. Term of Agreement, Extensions and Renewals.
This Agreement shall have a term of twelve months from the date hereof.
Client can terminate this Agreement in the event Consultant fails to follow
Client's instructions. Client must advise Consultant that his actions or
inactions are unacceptable and give Consultant a reasonable time to comply. If
Consultant fails to comply, or at later times makes the same unacceptable action
or inaction he can be terminated hereunder by Client' service of notice of
termination to Consultant. In addition, Client can terminate this Agreement if
in the reasonable judgment of its Board of Directors, Consultant's actions or
conduct would make it unreasonable to require Client to retain Consultant. Such
acts are limited to dishonesty, illegal activities, activities harmful to the
reputation of the Client, activities which create civil or criminal liability
for the Client. In the event of termination pursuant to this paragraph, the
Client will be responsible to reimburse costs and expenses to Consultant as set
forth in this Agreement.
4. Nondisclosure of Confidential Information.
In consideration for the Client entering into this Agreement, Consultant
agrees that the following items used in the Clients business are secret,
confidential, unique, and valuable, were developed by Client at great cost and
over a long period of time, and disclosure of any of the items to anyone other
than Client's officers, agents, or authorized employees will cause Client
irreparable injury.
A. Non public financial information, accounting information, plans of
operations, possible mergers or acquisitions prior to the public
announcement.
B. Customer lists, call lists, and other confidential customer data;
C. Memoranda, notes, records concerning the technical processes
conducted by Client;
D. Sketches, plans, drawings and other confidential research and
development data or;
E. Manufacturing processes, chemical formulae, and the composition of
Client's products.
5. Best Efforts Basis.
Consultant agrees that he will at all times faithfully and to the best of
his experience, ability and talents, perform all the duties that may be required
of and from Consultant pursuant to the terms of this Agreement. Consultant does
not guarantee that his efforts will have any impact on Client's business or that
any subsequent financial improvement
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will result of Consultant's efforts. Client understands and acknowledges that
the success or failure of Consultant's efforts will be predicated on Client's
assets and operating results.
5. Client's Right to Approve Transactions.
Client expressly retains the right to approve, in its sole discretion,
each and every transaction introduced by Consultant that involves Client as a
party to any agreement. Consultant and Client mutually agree that Consultant is
not authorized to enter into agreements on behalf of Client.
6. Place of Services.
The Consulting Services contemplated to be performed by Consultant will be
performed at locations selected by Consultant.
7. Costs and Expenses.
Client shall be responsible for all reasonable out-of-pocket expenses,
travel expenses, third party expenses, filing fees, copy and mailing expenses
that Consultant may incur in performing Consulting Services under this
Agreement, provided that such expenses are authorized by the Client.
8. Work Stoppage or Early Termination.
Notwithstanding anything to the contrary contained herein, Client shall
have the right at any time to direct Consultant to cease work or abandon its
efforts on Client's behalf, and to refrain from commencing any new work or
providing any further Consulting Services hereunder.
9. Non-Exclusive Services.
Client acknowledges that Consultant is currently providing services of the
same or similar nature to other parties and Client agrees that Consultant is not
prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. Consultant understands and agrees that
Client shall not be prevented or barred from retaining other persons or entities
to provide services of the same or similar nature as those provided by
Consultant. Consultant will advise Client of its position with respect to any
activity, employment, business arrangement or potential conflict of interest
which may be relevant to this Agreement.
10. All Prior Agreements Terminated.
This Agreement constitutes the entire understanding of the parties with
respect to the engagement of Consultant for the services set forth in Article 1
hereof and all
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prior agreements and understandings with respect thereto are hereby terminated
and shall be of no force or effect.
11. Representations and Warranties of Client.
Client hereby represents and warrants to Consultant that:
A. Corporate Existence. Client is a corporation duly organized and
validly existing, under the laws of the State of Delaware, with
corporate power to own property and carry on its business as it is
now being conducted.
B. No Conflict. This Agreement has been duly executed by Client and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgment, decree or order to which Client is a party or
to which Client is subject, nor will such execution and performance
constitute a violation or conflict of any fiduciary duty to which
Client is subject.
C. Validity of Shares. The shares of Common Stock are and will be when
issued, duly authorized, validly issued, fully paid, non-assessable,
and free and clear of all liens and encumbrances.
D. Authority. Client has the full legal right, power, authority and
approval required to enter into, execute and deliver the shares of
Common Stock and to fully perform all of its obligations hereunder.
12. Representations and Warranties of Consultant.
Consultant hereby represents and warrant to Client that:
A. Form S-8. Consultant hereby represents that he has not engaged in
any direct or indirect capital raising activities on behalf of the
Client and/or its affiliates.
B. Prior Experience. Consultant has extensive experience in the areas
of the services he is to perform hereunder and has performed the
services contemplated by this Agreement for the benefit of other
client-companies.
C. Information. No representation or warranty contained herein, nor a
statement in any document, certificate or schedule furnished or
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to be furnished pursuant to this Agreement by Consultant, or in
connection with the transaction contemplated hereby, contains or
contained any untrue statement of material fact.
D. Inside Information - Securities Laws Violations. In the course of
the performance of his duties, Consultant may become aware of
information which may be considered "inside information" within the
meaning of the Federal Securities Laws, Rules and Regulations.
Consultant acknowledge that his use of such information to purchase
or sell securities of Client, or its affiliates, or to transmit such
information to any other party with a view to buy, sell or otherwise
deal in Client's securities is prohibited by law and would
constitute a breach of this Agreement.
E. Agreement Does not Contemplate Corrupt Practice, Domestic or
Foreign. All payments under this Agreement constitute compensation
for services performed and this Agreement any all payments, and the
use of the payments by Consultant, do and shall not constitute an
offer, payment or promise or authorization of payment of any money
or gift to an official or political party of, or candidate for
political office in any jurisdiction within or outside the United
States. These payments may not be used to influence any act or
decision of an official, party, or candidate to use his/her/its
influence with a government to assist Client in obtaining,
retaining, or directing business to Client or any person or other
corporate entity. As used in this paragraph, the term "official"
means any officer or employee of a government, or any person acting
in an official capacity for or on behalf of any government; the term
"government" includes any department, agency, or instrumentality of
a government.
F. Reliance upon Representations. The information provided pursuant to
this Agreement may be relied upon by Client, as true and correct as
of the date hereof. Further, Consultant represents as follows:
(a) by reason of Consultant's knowledge and experience of
financial and business matters in general, and investments in
particular Consultant is capable of evaluating the merits and
risks of this transaction and in bearing the economic risks of
an investment in the Common Stock and the Client in general
and fully understand the speculative nature of such securities
and the possibility of such loss; and
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(b) Consultant has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the
shares to be issued hereby and reserved for issuance pursuant
hereto, and to obtain any additional information which Client
possess or can acquire without reasonable effort or expense
that is necessary to verity the accuracy of information
furnished; and
(c) Consultant has been furnished with a copy of Client's most
recent Annual Report on Form 10- KSB and all reports or
documents required to be filed under Section 13(a), 14(a) and
15(d) of the Securities Exchange Act of 1934, including but
not limited to quarterly reports on Form 10-QSB; and, in
addition, that Consultant has been furnished with a brief
description of the Client's capital structure and any material
changes in Client's affairs that may not have been disclosed
in the aforementioned documents.
G. Subsequent Events. Consultant will notify Client if, subsequent to
the date hereof, either party incurs obligations which could
compromise its efforts and obligations under this Agreement.
13. Consultant is not an Agent or Employee.
Consultant's obligations under this Agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or bind Client.
For the purposes of this Agreement, Consultant is an independent contractor. All
final decisions with respect to acts of Client or its affiliates, whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of Client or such affiliates and Consultant shall
under no circumstances be liable for any expense incurred or loss suffered by
Client as a consequence of such action or decisions.
14. Miscellaneous.
A. Authority. The execution and performance of this Agreement have been
duly authorized by all requisite corporate action. This Agreement
constitutes a valid and binding obligation of the parties hereto.
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B. Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the
parties hereto.
C. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and
remedies provided by law. No delay or failure on the part of either
party in the exercise of any right or remedy arising from a breach
of this Agreement shall operate as a waiver of any subsequent right
or remedy arising from a subsequent breach of this Agreement. The
consent of any party where required hereunder to any act of
occurrence shall not be deemed to be a consent to any other act of
occurrence.
D. Assignment.
(i) Neither this Agreement nor any obligation created by it shall
be assignable by either party without the prior written
consent of the other.
(ii) Nothing in this Agreement, expressed or implied, is intended
to confer upon any person, other than the parties and their
successors, any rights or remedies under this Agreement.
E. Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party,
when deposited in the United States mails for transmittal by
certified or registered mail, postage prepaid, or when deposited
with a public telegraph company for transmittal or when sent by
facsimile transmission, charges prepared provided that the
communication is addressed to the respective party at the place
indicated on the first page of this Agreement or to such other
person or address designed by the parties to receive notice.
F. Headings and Captions. The headings of paragraph are included solely
for convenience. If a conflict exists between any heading and the
text of this Agreement, the text shall control.
G. Entire Agreement. This Agreement annexed as an exhibit hereto
contain the entire Agreement between the parties with respect to the
transaction contemplated by the Agreement. This Agreement may
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be executed in any number of counterparts but the aggregate of the
counterparts together constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of
the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
constructed as if it never contained any such invalid, illegal or
unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance of
this Agreement shall be controlled by and construed under the laws
of the State of New Jersey.
J. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fee from the other party. The
attorney's fees may be ordered by the court in the trial of any
action described in this paragraph or may be enforced in a separate
action brought for determining attorney's fees.
K. Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute
such other and further documents and take such other and further
actions as may be necessary or convenient to effect the transactions
described herein.
L. Further Actions. At any time and from tie to time, each party
agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the
purpose of this Agreement.
M. Indemnification. Client and Consultant agree to indemnify, defend
and hold each other harmless from and against all demands, claims,
actions, losses, damages, liabilities, costs and expenses, including
without limitation, interest, penalties and attorneys' fees and
expenses asserted against or imposed or incurred by either party by
reason of or resulting from a breach of any representation,
warranty, covenant condition or agreement of the other party to this
Agreement.
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N. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under or
by reason of this Agreement, unless this Agreement specifically
states such intent.
O. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the other
party, the party who receives the transmission may rely upon the
electronic facsimile a signed original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
herein above written.
PROFORMIX SYSTEMS, INC.
By:/s/Jerry Swon
--------------------------------
Jerry Swon, President
/s/Bruce R. Goldman
----------------------------------
Bruce R. Goldman
9
EXHIBIT 5.1
[Letterhead of Silverman, Collura, Chernis & Balzano, P.C.]
November 23, 1998
Proformix Systems, Inc.
50 Tannery Road
Branchburg, New Jersey 08876
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Proformix Systems, Inc. ("Company"), a
Delaware corporation, pursuant to a Registration Statement on Form S-8, as filed
with the Securities and Exchange Commission on November 23, 1998 ("Registration
Statement"), covering 1,000,000 shares of the Company's Common Stock, $.0001 par
value ("Common Stock") issued pursuant to a consulting agreement between the
Company and Bruce R. Goldman.
In acting as counsel for the Company and arriving at the opinions as
expressed below, we have examined and relied upon originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of natural persons and the conformity to original documents of
all documents submitted to us as certified or photostated copies.
Based on the foregoing, and subject to the qualifications and limitations
set forth herein, it is our opinion that:
1. The Company has authority to issue the Common Stock in the manner and
under the terms set forth in the Registration Statement.
2. The Common Stock has been duly authorized and when issued, delivered
and paid for by recipients in accordance with their respective terms, will be
validly issued, fully paid and non-assessable.
<PAGE>
Proformix Systems, Inc.
November 23, 1998
Page 2
We express no opinion with respect to the laws other than those of the
State of New York and Federal Laws of the United States of America, and we
assume no responsibility as to the applicability or the effect of the laws of
any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement. It is not to be used, circulated,
quoted or otherwise referred to for any other purpose. Other than the Company,
no one is entitled to rely on this opinion.
Very truly yours,
/s/SILVERMAN, COLLURA, CHERNIS & BALZANO, P.C.
SILVERMAN, COLLURA, CHERNIS
& BALZANO, P.C.
EXHIBIT 23.1
[Letterhead of Rosenberg Rich Baker Berman & Company]
Independent Auditors' Consent
We hereby consent to the incorporation by reference of Form 10-KSB of our report
dated MArch 23, 1998 (April 15, 1998 as to Subsequent Events) relating to the
consolidated financial statements of Proformix Systems, Inc. and Subsidiaries in
this Registration Statement on Form S-8, and to the reference to our firm under
the caption "Experts".
/s/Rosenberg Rich Baker Berman & Company
Rosenberg Rich Baker Berman & Company
Bridgewater, New Jersey
November 20, 1998
