AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MARCH 27, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
DIAMOND ENTERTAINMENT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-----------------------
NEW JERSEY 22-2748019
---------------------- ----------------
(STATE OR OTHER JURIS- (I.R.S. EMPLOYER
DICTION OF INCORPORA- IDENTIFICATION
TION OR ORGANIZATION) NUMBER)
16818 MARQUARDT AVENUE
CERRITOS, CALIFORNIA 90703
-------------------- -----------
(ADDRESS OF PRINCIPAL (ZIP CODE)
EXECUTIVE OFFICES)
CONSULTING AGREEMENT BETWEEN THE COMPANY AND RONALD AINSWORTH, ANDRES BOYD-JONES
AND LEON BRONFIN DATED JUNE 21, 1996
CONSULTING AGREEMENT BETWEEN THE COMPANY AND GEORGE FURLA DATED APRIL 1, 1996
CONSULTING AGREEMENT BETWEEN THE COMPANY AND PETER BENZ DATED APRIL 1, 1996
JAMES K.T. LU
PRESIDENT
DIAMOND ENTERTAINMENT CORPORATION
16818 MARQUARDT AVENUE
CERRITOS, CALIFORNIA 90703
(310) 921-3999
(NAME, ADDRESS AND TELEPHONE
NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-----------------------
COPIES TO:
STEVEN WASSERMAN, ESQ.
BERNSTEIN & WASSERMAN
950 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 826-0730
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED
ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT
OF 1933 CHECK THE FOLLOWING BOX: x
<PAGE>
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE FEE
- --------------------------------------------------------------------------------
WARRANTS (3) 1,400,000 ---- ---- ----
COMMON STOCK, 1,400,000 SHARES $ .25 $350,000 $106.05
NO PAR VALUE,
UNDERLYING WARRANTS
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any stock
dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar change
affecting the stock.
(2) The proposed maximum offering price per share is based upon the designated
exercise price as stated in the appropriate consulting agreements under
which the warrants were granted.
(3) Warrants are exercisable at $.25 per share.
i
<PAGE>
PART I
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
The document(s) containing the information specified in this Part I will be
sent or given to participants in the Plan to which this Registration Statement
relates, as specified by Rule 428(b) promulgated under the Securities Act of
1933, as amended, and are not filed as part of this Registration Statement.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents or portions thereof, as filed with the Securities
and Exchange Commission by Diamond Entertainment Corporation, a New Jersey
Corporation (the "Corporation"), are incorporated herein by reference:
(1) Annual Report on Form 10-KSB for the year ended March 31, 1996.
(2) Quarterly Report on Form 10-Q/A for the quarter ended June 30, 1996.
(3) Quarterly Report on Form 10-Q/A for the quarter ended September 30,
1996.
(4) Quarterly Report on Form 10-Q for the quarter ended December 31, 1996.
(5) The description of the Common Stock, no par value per share ("Common
Stock"), of the Corporation contained in the Corporation registration statement
filed under Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
subsequent to the effective date of this Registration Statement and prior to the
filing of a post-effective amendment which indicate that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the Registration Statement and to be
part thereof from the date of filing such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this registration
statement 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 registration statement.
II-1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
COMMON STOCK
The Company is authorized to issue up to 100,000,000 shares of Common
Stock, of which 13,931,840 shares were issued and outstanding as of October 8,
1996. The Company held its annual meeting of shareholders on August 23, 1996 at
which time an amendment to the Company's certificate of incorporation to
increase the authorized shares of Common Stock was approved. All of the issued
and outstanding shares of Common Stock are fully paid, validly issued and
non-assessable.
Subject to the rights of holders of Preferred Stock, if any, holders of
shares of Common Stock of the Company are entitled to share equally on a per
share basis in such dividends as may be declared by the Board of Directors out
of funds legally available therefor. There are presently no plans to pay
dividends with respect to the shares of Common Stock. See "Dividend Policy."
Upon liquidation, dissolution or winding up of the Company, after payment of
creditors and the holders of any senior securities of the Company, including
Preferred Stock, if any, the assets of the Company will be divided pro rata on a
per share basis among the holders of the shares of Common Stock. The Common
Stock is not subject to any liability for further assessments. There are no
conversion or redemption privileges nor any sinking fund provisions with respect
to the Common Stock and the Common Stock is not subject to call. The holders of
Common Stock do not have any preemptive or other subscription rights.
Holders of shares of Common Stock are entitled to cast one vote for each
share held at all stockholders' meetings for all purposes, including the
election of directors. The Common Stock does not have cumulative voting rights.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14A:3-5 of the New Jersey Business Corporation Act (the "Statute")
empowers a corporation as follows:
"Any corporation organized for any purpose under any general or special law
of this State shall have the power to indemnify a corporate agent against his
expense and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if (a) such
corporate agent acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation; and (b) with respect
to any criminal proceeding, such corporate agent had no reasonable cause to
believe his conduct was unlawful. The
II-2
<PAGE>
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that such corporate agent did not meet the applicable standards of
conduct set forth elsewhere in this Statute.
CERTIFICATE OF INCORPORATION
The Company's Certificate of Incorporation provides that the Company shall
indemnify those persons entitled to be indemnified, to the fullest extent
permitted by Section 14 A:3-5 of the Statute.
COMMISSION POLICY
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the Company, the Company
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
None applicable
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
- ----------- --------
4.1 Certificate of Incorporation of the Corporation, as amended
(Incorporated by reference to Corporation's Registration
Statement on Form S-18 Registration No.33-33997)
4.2 By-Laws of the Corporation, as amended (Incorporated by reference
to the Corporation's Registration Statement on Form S-18
Registration No.33- 33997).
4.3 Certificate of Amendment to the Certificate of Incorporation,
dated September 27, 1996.
4.4 Consulting Agreement dated as of June 21, 1996 between the
Corporation and Ronald Ainsworth, Andres Boyd-Jones and Leon M
Bronfin.
4.5 Consulting Agreement dated as of April 1, 1996 between the
Corporation and Peter Benz.
II-3
<PAGE>
4.6 Consulting Agreement dated as of April 1, 1996 between the
Corporation and George Furla.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1).
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 this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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;
(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 in the registration statement;
provided, however, the paragraphs (1)(i) and (1)(ii) do not apply if the
information is required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act 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 be deemed to be the initial bona fide
offering thereof; and;
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing
II-4
<PAGE>
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the 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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in item 6, 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
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 by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURE
Pursuant to the requirement of the Securities Act of 1933, as amended, the
Registrant, certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Cerritos, California, on the 7th day of March, 1997.
DIAMOND ENTERTAINMENT CORP.
By:/s/ James. K.T. Lu
------------------
James K.T. Lu
Chairman of the Board, Chief Executive Officer;
President; Secretary and Director
By:/s/ Thomas Sung
---------------
Thomas Sung
Principal Financial Officer and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ James K.T. Lu Chairman of the Board March 7, 1997
- ------------------------ Chief Executive Officer; President;
James K.T. Lu Secretary and Director
/s/Jeffrey I. Schillen Executive Vice President Sales March 7, 1997
- ----------------------- and Marketing and Director
Jeffrey I. Schillen
/s/Murray T. Scott Director March 7, 1997
- -----------------------
Murray T. Scott
II-5
<PAGE>
DIAMOND ENTERTAINMENT CORPORATION
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
II-6
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit No. Document
- ----------- --------
4.1 Certificate of Incorporation of the Corporation, as amended
(Incorporated by reference to Corporation's Registration
Statement on Form S-18 Registration No.33-33997)
4.2 By-Laws of the Corporation, as amended (Incorporated by reference
to the Corporation's Registration Statement on Form S-18
Registration No.33- 33997).
4.3 Certificate of Amendment to the Certificate of Incorporation,
dated September 27, 1996.
4.4 Consulting Agreement dated as of June 21, 1996 between the
Corporation and Ronald Ainsworth, Andres Boyd-Jones and Leon M
Bronfin.
4.5 Consulting Agreement dated as of April 1, 1996 between the
Corporation and Peter Benz.
4.6 Consulting Agreement dated as of April 1, 1996 between the
Corporation and George Furla.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1).
II-7
EXHIBIT 4.3
Certificate of Amendment to the Certificate of Incorporation, dated September
27, 1996.
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
DIAMOND ENTERTAINMENT CORPORATION
To: The Secretary of State Federal Employer
State of New Jersey Identification No.
22-2748019
Pursuant to the provisions of Section 14A: 9-2 (4) of the
Business Corporation Act of the State of New Jersey, the undersigned corporation
executes the following Certificate of Amendment to its Certificate of
Incorporation.
1. The name of the Corporation is Diamond Entertainment Corporation (the
"Corporation").
2. The Certificate of Incorporation is amended as follows:
The Corporation shall be authorized to issue the following shares:
CLASS NO. OF SHARES PAR VALUE
----- ------------- ---------
Common Stock 100,000,000 None
Preferred Stock 5,000,000 None
3. In accordance with Section 14A: 9-2 (4) and after proper notice to
shareholders of record on June 25, 1996 (the "Record Date"), holders of a
majority of the votes cast approved the amendment at the Annual Meeting of
Stockholders on August 23, 1996 (the "Annual Meeting").
4. On the Record Date, there were 13,931,839 shares of the Corporation's
common stock, no par value (the "Common Stock") issued and outstanding, each of
which was entitled to one (1) vote at the Annual Meeting, and there were 483,251
shares of the Corporation's preferred stock, no par value (the "Preferred
Stock") issued and outstanding, each of which was entitled to 1.95 votes at the
Annual Meeting. As of the Record Date, there were issued and outstanding shares
of voting stock of the Corporation representing an aggregate of 14,874,178 votes
entitled to vote at the Annual Meeting. The Common Stock and Preferred
<PAGE>
Stock vote together on all matters.
5. A quorum was represented at the Annual Meeting, a total of 13,234,753
shares were cast FOR the amendment and 33,249 votes were cast AGAINST the
amendment.
IN WITNESS WHEREOF, this Certificate of Amendment has been signed on this
27th day of September, 1996, and the signature of the undersigned shall
constitute the affirmation and acknowledgment of the undersigned, under
penalties of perjury, that the Certificate is the act and deed of the
undersigned and the facts stated in the Certificate are true.
DIAMOND ENTERTAINMENT CORPORATION
BY: /s/ James K. T. Lu
------------------------
James K.T. Lu, President
Sworn before me this
27th day of September, 1996
/s/ Kristine H. Truong
- --------------------------
Notary Public
II-8
EXHIBIT 4.4
Consulting Agreement dated as of June 21, 1996 between the Corporation and
Ronald Ainsworth, Andres Boyd-Jones and Leon Bronfin.
<PAGE>
CONSULTING AGREEMENT
AGREEMENT entered into as of the 21st day of June 1996, between DIAMOND
ENTERTAINMENT CORPORATION, a New Jersey corporation (the "Company"), and RONALD
E. AINSWORTH, ANDREW BOYD-JONES and LEON M. BRONFIN (together, the
"Consultants").
WHEREAS, the Company desires that Consultants provide consulting services to the
Company pursuant hereto and Consultants are agreeable to providing such
services.
NOW, THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. For a period of two years form the date hereof (the "Consulting Period"),
Consultants shall serve as consultants to the Company on matters pertaining
to the restructuring and design of the Company's operations and long-term
strategic plan, including but not limited to the development of new
products, acquisition of new products, merger and acquisition of companies
and marketing strategies. Consultants' services shall include consultation
with, and advice to, directors and officers of the Company.
2. During the Consulting Period, the Company shall be entitled to Consultants'
services for reasonable times when and to the extent requested by, and
subject to the direction of the Chairman and Chief Executive Officer of the
Company.
3. Consultants' services shall be rendered form their office, unless by mutual
agreement from time to time arrangements are made for those services to be
rendered elsewhere. Reasonable travel and living expenses, approved in
advance by the Company, necessarily incurred by Consultants to render
services at locations other than their office shall be reimbursed by the
Company promptly upon receipt of proper statements with regard to the
nature and amount of those expenses. Those statements shall be furnished to
the company monthly at the end of each calendar month of the Consulting
Period during which any of those expenses are incurred. Consultants'
expenses shall not exceed $750 for any calendar month without prior written
consent form the Company.
4. In consideration of Consultants' entering into this Agreement, the Company
hereby agrees to issue to Consultants, in the amounts set forth below,
warrants to purchase an aggregate of 1,000,000 shares of the Company's
Common Stock at a exercise price of $0.25 per share (the "Warrants"). The
Warrants will vest as follows: 400,000 shares will vest immediately and the
balance will vest at a rate of 25,000 shares per month, beginning one month
after the date of this Agreement. The warrants shall expire three years
after the date of issuance ("Termination Date'). The warrants shall survive
termination of this Agreement and remain exercisable until the Termination
Date,
<PAGE>
CONSULTING AGREEMENT
Page 2
unless the Agreement is terminated as a result of termination of
Consultants of Cause (as defined below). For purposes of this Agreement,
"Cause" shall mean the continuing and willful failure or refusal by
Consultants to perform their duties hereunder after receipt of written
notice form the Company of such failure.
The Warrants shall be allocated and issued in the names of the
individual.,l Consultants as follows: 45% to Leon M. Brofin; 27.5% to
Ronald E. Ainsworth; and 27.5% to Andrew Boyd-Jones.
The Company intends to register the shares issuable upon exercise of the
Warrants (the "Warrant Shares") with the Securities and Exchange Commission
as soon as possible on a Registration Statement on Form S-8, subject to
appropriate clearance form the Company's accountants and attorneys. If a
Form S-8 Registration Statement is unavailable with respect to the Warrant
Shares, the Company agrees to grant Consultants customer piggyback
registration rights with respect to such securities, effective six months
after the date of this Agreement.
5. Consultants agree that they will not, without the Company's consent,
disclose to anyone any trade secrets of the Company or any confidential or
non-public information relating the Company's business, operations or
prospects.
6. Consultants acknowledge that it would be extremely difficult, if not
impossible, to measure accurately the damages to the Company from any
breach by Consultants of Section 5 of this Agreement, and that the injury
to the Company from any such breach would be incalculable in irremediable.
Accordingly, Consultants agree that upon any breach of Section 5 of this
Agreement, the Company's remedy at law would be inadequate and the Company
shall be entitled as a matter of right to institute legal proceedings in
any court of competent jurisdiction and receive an injunction restraining
the further and continued breach of Section 5 of this Agreement and
recovery of all damages to the Company incurred by reason of conducting the
activity in violation of Section 5 of this Agreement.
7. In any legal or equitable action brought with respect to this Agreement
(including, but not limited to, suit for injunctive relief for a breach of
the terms and provisions of Section 5 of this Agreement), the prevailing
party shall be entitled to recover all of its reasonable attorney's fees
and costs in connection therewith at all levels.
8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representative and to any successor
to the Company, which successor shall be deemed substituted for the Company
under the terms of this Agreement.
<PAGE>
CONSULTING AGREEMENT
Page 3
9. Any notice, request, instruction, legal process or other document to be
given hereunder shall be in writing and shall be delivered personally,
against receipt, by fax or by registered or certified mail, return receipt
requested as set forth below:
If to Consultants: Ronald E. Ainsworth
4651 Brighton Road
Corona del Mar, CA 92625
Andrew Boyd-Jones
17 Riva
Newport Beach, CA 92660
Leon M. Bronfin
1970 Port Locksleigh
Newport Beach, CA 92660
If to the Company: Diamond Entertainment Corporation
16818 Marquardt Avenue
Cerritos, CA 90703
Attention: James Lu
President and CEO
Fax No: (310) 921-3993
10. This Agreement constitutes the entire agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and
negotiations between the parties with respect to the subject matter of this
Agreement.
11. This agreement shall be construed and enforced in accordance with the laws
of the State of California.
12. The invalidity or unenforceability of any provision hereof shall in no way
affect the validity of enforceability of any other provision.
13 This Agreement may be executed in two or more counterparts, each 9 of which
shall be deemed an original, but all of shall be considered one and the
same instrument.
<PAGE>
CONSULTING AGREEMENT
Page 4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"COMPANY"
DIAMOND ENTERTAINMENT CORPORATION,
a New Jersey Corporation
By: /s/James Lu
-----------------------------------
James Lu
President and Chief Executive Officer
"CONSULTANTS"
By: /s/Ron E. Ainsworth
-----------------------------------
Ron E. Ainsworth
By: /s/Andrew Boyd-Jones
-----------------------------------
Andrew Boyd-Jones
By: /s/Leon M. Bronfin
-----------------------------------
Leon M. Bronfin
Exhibit 4.5
Consulting Agreement dated as of April 1, 1996 between the Corporation and Peter
Benz.
<PAGE>
CONSULTING AGREEMENT
AGREEMENT entered into as of the 1st day of April 1996, between Diamond
Entertainment Corporation, a New Jersey corporation (the "Company"), and Peter
Benz ("Consultant").
WHEREAS, the Company desires that Consultant provide consulting services to
the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, In consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. For a period of one year from the date hereof (the "Consulting Period"),
Consultant shall serve as a consultant to the Company on matters pertaining to
the restructuring and design of the Company's operations and long term strategic
plan, including, but not limited to the development of new products, acquisition
of new products, merger and acquisition of companies and marketing strategies.
Consultant's services shall include consultation with, and advice to, directors
and officers of the Company.
2. During the Consulting Period, the Company shall be entitled to
Consultant's services for reasonable times when and to the extent requested by,
and subject to the direction of the Chairman and Chief Executive Officer of the
Company.
3. Consultant's services shall be rendered from his office, unless by
mutual agreement from time to time arrangements are made for those services to
be rendered elsewhere. Reasonable travel and living expenses, approved in
advance by the Company, necessarily incurred by Consultant to render services at
locations other than his office shall be reimbursed by the Company promptly upon
receipt of proper statements with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month of the Consulting Period during which any of those
expenses are incurred.
4. In consideration of Consultant's entering into this Agreement, the
Company has agreed to issue to Consultant warrants (the "Warrants") on November
01, 1996 at an exercise price of $0.25 per share expiring May 01, 1997 to
purchase 500,000 shares of the Company's Common Stock.
The Company intends to register the Warrants with the Securities and
Exchange Commission as soon as possible on a Form S-8, subject to appropriate
clearance from the Company's Accountants and Attorneys.
5. Consultant agrees that he will not, without the Company's consent,
disclose to anyone any trade secrets of the Company or any confidential or
non-public information relating to the Company's business, operations or
prospects.
1
<PAGE>
6. Consultant acknowledges that it would be he extremely difficult, if not
impossible, to measure accurately the damages to the Company from any breach by
Consultant of Section 5 of this Agreement, and that the injury to the Company
from any such breach would be incalculable in irremediable. Accordingly,
Consultant agrees that upon any breach of Section 5 of this Agreement, the
Company's remedy at law would be inadequate and the Company shall be entitled as
a matter of right to institute legal proceedings in any court of competent
jurisdiction and receive an injunction restraining the further and continued
breach of Section 5 of this Agreement and recovery of all damages to the Company
incurred, by reason of conducting the activity in violation of Section 5 of this
Agreement.
7. In any legal or equitable action brought with respect to this Agreement
(including, but not limited to, suit for injunctive relief for a breach of the
terms and provisions of Section 5 of this Agreement), the prevailing party shall
be entitled to recover all of its reasonable attorney's fees and costs in
connection therewith at all levels.
8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representatives and to any successor to
the Company, which successor shall be deemed substituted for the Company under
the terms of this Agreement.
9. Any notice, request, instruction, legal process or other document to be
given hereunder shall be in writing and shall be delivered personally, against
receipt, by fax or by registered or certified mail, return receipt requested as
set forth below:
If to Consultant:
Peter Benz
c/o Bi Coastal Consulting Corp.
543 Virginia Avenue
San Mateo, CA 94402
Fax No.: (415)340-1074
If to the Company:
James Lu
President and Chief Executive Officer
Diamond Entertainment Corporation
16818 Marquardt Avenue.,
Cerritos, CA 90703
Fax No.: (310)921-3993
10. This instrument contains the entire agreement between the parties
hereto with respect to the provision of consulting services by Consultant.
2
<PAGE>
11. This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
12. The invalidity of unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
13. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall be considered one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
DIAMOND ENTERTAINMENT CORPORATION
/s/James Lu
- -------------------------------------
James Lu
President and Chief Executive Officer
"Consultant"
/s/Peter Benz
- -------------------------------------
Peter Benz
Exhibit 4.6
Consulting Agreement dated as of April 1, 1996 between the Corporation and
George Furla.
<PAGE>
CONSULTING AGREEMENT
AGREEMENT entered into as of the 1st day of April 1996, between Diamond
Entertainment Corporation, a New Jersey corporation (the "Company"), and George
Furla ("Consultant").
WHEREAS, the Company desires that Consultant provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, In consideration of the premises and the mutual promises
set forth herein, the parties hereto agree as follows:
1. For a period of one year from the date hereof (the "Consulting Period"),
Consultant shall serve as a consultant to the Company on matters pertaining to
the restructuring and design of the Company's operations and long term strategic
plan, including, but not limited to the development of new products, acquisition
of new products, merger and acquisition of companies and marketing strategies.
Consultant's services shall include consultation with, and advice to, directors
and officers of the Company.
2. During the Consulting Period, the Company shall be entitled to
Consultant's services for reasonable times when and to the extent requested by,
and subject to the direction of the Chairman and Chief Executive Officer of the
Company.
3. Consultant's services shall be rendered from his office, unless by
mutual agreement from time to time arrangements are made for those services to
be rendered elsewhere. Reasonable travel and living expenses, approved in
advance by the Company, necessarily incurred by Consultant to render services at
locations other than his office shall be reimbursed by the Company promptly upon
receipt of proper statements with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month of the Consulting Period during which any of those
expenses are incurred.
4. In consideration of Consultant's entering into this Agreement, the
Company has agreed to issue to Consultant warrants (the "Warrants") on November
01, 1996 at an exercise price of $0.25 per share expiring May 01, 1997 to
purchase 500,000 shares of the Company's Common Stock.
The Company intends to register the Warrants with the Securities and
Exchange Commission as soon as possible on a Form S-8, subject to appropriate
clearance from the Company's Accountants and Attorneys.
5. Consultant agrees that he will not, without the Company's consent,
disclose to anyone any trade secrets of the Company or any confidential or
non-public information relating to the Company's business, operations or
prospects.
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6. Consultant acknowledges that it would be he extremely difficult, if not
impossible, to measure accurately the damages to the Company from any breach by
Consultant of Section 5 of this Agreement, and that the injury to the Company
from any such breach would be incalculable in irremediable. Accordingly,
Consultant agrees that upon any breach of Section 5 of this Agreement, the
Company's remedy at law would be inadequate and the Company shall be entitled as
a matter of right to institute legal proceedings in any court of competent
jurisdiction and receive an injunction restraining the further and continued
breach of Section 5 of this Agreement and recovery of all damages to the Company
incurred, by reason of conducting the activity in violation of Section 5 of this
Agreement.
7. In any legal or equitable action brought with respect to this Agreement
(including, but not limited to, suit for injunctive relief for a breach of the
terms and provisions of Section 5 of this Agreement), the prevailing party shall
be entitled to recover all of its reasonable attorney's fees and costs in
connection therewith at all levels.
8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representatives and to any successor to
the Company, which successor shall be deemed substituted for the Company under
the terms of this Agreement.
9. Any notice, request, instruction, legal process or other document to be
given hereunder shall be in writing and shall be delivered personally, against
receipt, by fax or by registered or certified mail, return receipt requested as
set forth below:
If to Consultant:
George Furla
__________________________
__________________________
__________________________
Fax No.: ( )
If to the Company:
James Lu
President and Chief Executive Officer
Diamond Entertainment Corporation
16818 Marquardt Avenue.,
Cerritos, CA 90703
Fax No.: (3 10) 921-3993
10. This instrument contains the entire agreement between the parties
hereto with respect to the provision of consulting services by Consultant.
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<PAGE>
11. This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
12. The invalidity of unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision.
13. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall be considered one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"Company"
DIAMOND ENTERTAINMENT CORPORATION
/s/James Lu
- -------------------
James Lu
President and Chief Executive Officer
"Consultant"
/s/George Furla
- -----------------------------
George Furla
EXHIBIT 5.1
Opinion of Bernstein & Wasserman, LLP.
<PAGE>
March 11, 1997
Diamond Entertainment Corporation
16818 Marquardt Avenue
Cerritos, California 90703
Ladies and Gentlemen:
We have acted as counsel for Diamond Entertainment Corporation, a New
Jersey corporation ("Company"), in connection with a Registration Statement on
Form S-8 ("Registration Statement") being filed contemporaneously herewith by
the Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), covering 1,400,000 shares of the
Company's Common Stock, no par value (the "Shares"), heretofore granted pursuant
to Consulting Agreements, dated June 21, 1996, between the Company and Ronald
Ainsworth, Andres Boyd-Jones and Leon Bronfin; dated April 1, 1996 between the
Company and George Furla; and dated April 1, 1996 between the Company and Peter
Benz.
In that connection, we have examined the Certificate of Incorporation, as
amended, and the By-Laws of the Company, the Registration Statement, the
Consulting Agreement dated June 21, 1996 among the Company and Ronald Ainsworth,
Andres Boyd-Jones and Leon Bronfin; dated April 1, 1996 between the Company and
George Furla; and dated April 1, 1996 between the Company and Peter Benz,
corporate proceedings of the Company relating to the issuance of the Shares and
such other instruments and documents as we have deemed relevant under the
circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as original or photostatic copies. We have also assumed that the corporate
records of the Company include all corporate proceedings taken by the Company to
date.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion the Shares
issued in accordance with the terms of the Consulting Agreement are duly and
validly authorized and issued and fully paid and non-assessable.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
BERNSTEIN & WASSERMAN, LLP
