As filed with the Securities and Exchange Commission on December ___, 1998
Registration Statement No. 333-67735
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
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 (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Classification Identification No.)
incorporation or Code Number)
organization)
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 Deichl 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)
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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. This fee was previously paid
pursuant to the filing of Registration Statement No. 333-67735.
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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 Deichl 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
- ----------
* Incorporated by reference to the Registration Statement on Form S-8
(Registration No. 333-67735) filed on November 23, 1998.
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;
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(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, 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 December ___, 1998.
PROFORMIX SYSTEMS, INC.
By:________________________
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
- --------- ----- ----
____________________________ President and Director November ___, 1998
Jerry Swon (Principal Executive Officer)
____________________________ Chief Financial Officer November ___, 1998
Joerg H. Klaube (Principal Financial Officer)
____________________________ Chairman of the Board November ___, 1998
Michael G. Martin
____________________________ Chief Executive Officer November ___, 1998
Peter Buscetto and Director
____________________________ Director November ___, 1998
Paul Chernis
____________________________ Director November ___, 1998
Bruce Deichl
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EXHIBIT 4.1
CONSULTING AGREEMENT
This Consulting Agreement is made effective this 22nd day of November,
1998, by and between Bruce Deichl ("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 as much of the outstanding debts, liabilities
and obligations of the Company as may be reasonably possible, and said
Consultant has further agreed to utilize his reasonable best efforts to perform
hereunder. 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. 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.
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
<PAGE>
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 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.
6. 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.
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7. Place of Services.
The Consulting Services contemplated to be performed by Consultant will be
performed at locations selected by Consultant.
8. 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.
9. 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.
10. 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.
11. 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 prior agreements and understandings with respect thereto are
hereby terminated and shall be of no force or effect.
12. 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
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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.
13. 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 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
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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
(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
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(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.
14. 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.
15. 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.
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
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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 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
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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 York.
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. Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
L. 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.
M. 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.
N. 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.
O. 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.
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P. 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:______________________________
Jerry Swon, President
_________________________________
Bruce Deichl
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