<PAGE>
As filed with the Securities and Exchange Commission on February 27, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC INTERNATIONAL ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0243669
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4431 CORPORATE CENTER DRIVE, SUITE 131
LOS ALAMITOS, CALIFORNIA 90702
(Address of Principal Executive Office)(Zip Code)
STOCK ISSUE PURSUANT TO VARIOUS CONSULTING
AND EMPLOYMENT AGREEMENTS
(full title of the plan)
BINKS GRAVAL
4431 CORPORATE CENTER DRIVE, SUITE 131
LOS ALAMITOS, CALIFORNIA 90702
(Name and address of agent for service)
(714) 816-0200
(Telephone number, including area code, of agent for service)
-------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================
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
- ---------------- ---------- --------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, 492,568 $0.5625 277,070 $84.00
no par value
===================================================================================
</TABLE>
(1) Pursuant to Rule 457(a), estimated solely for the purpose of calculating
the registration fee.
Exhibit index is located at sequentially paginated page number 6.
Page 1 of __.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I (plan
information and registrant information) will be sent or given to employees 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 II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of Pacific International Enterprises, Inc., a
Nevada corporation (the "Company"), previously filed with the Commission are
incorporated herein by reference:
1. Annual Report on Form 10-K for the Company's fiscal year ended
December 31, 1995;
2. Quarterly Reports on Form 10-Q for the quarter ended March 31,1996;
3. Quarterly Reports on Form 10-Q for the quarter ended June 30,1996;
4. Quarterly Reports on Form 10-Q for the quarter ended September 30,
1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act") prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into the
prospectus and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock of the Company, no par value (the "Common Stock") is
registered pursuant to Section 12 of the Exchange Act, and, therefore, the
description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As allowed by Nevada Revised Statutes, the Articles of Incorporation
and Bylaws of the Company provide that the liability of the directors of the
Company for monetary damages shall be eliminated to the fullest extent
permissible under Nevada law. This is intended to eliminate the personal
liability of a director for monetary damages in an action brought by or in the
right of the Company for breach of a director's duties to the Company or its
shareholders except for liability for acts or omissions that involve intentional
misconduct or knowing and culpable violation of law, for acts or omissions that
a director believes to be contrary the best interests of the Company or its
shareholders or that involve the absence of good faith on the part of the
director, for any transaction from which a director derived an improper personal
benefit, for acts or omissions that show a reckless disregard for the director's
duty to the Company or its shareholders in circumstances in which the director
was aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the Company or its
shareholders, for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its shareholders, with respect to certain contracts in which a director has a
material financial interest and for approval of certain improper distributions
to shareholders or certain loans or guarantees. This provision does not limit or
eliminate the rights of the Company or any shareholder to seek non-monetary
relief such as an injunction or rescission
3
<PAGE>
in the event of a breach of a director's duty of care.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at sequentially number page 6.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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 (the "Securities Act");
(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, represents 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, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and the information
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
Section 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, 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 (and, where applicable, each filing 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to
4
<PAGE>
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against pubic policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<C> <S>
4.1 Employment Agreement between
Pacific International Enterprises, Inc.
and Binks Graval
4.2 Employment Agreement between
Pacific International Enterprises, Inc.
and Richard Perkins
4.3 Employment Agreement between
Pacific International Enterprises, Inc.
and Anthony Broughton
4.4 Conversion Agreement between
Pacific International Enterprises, Inc.
and Woodbridge & Associates
4.5 Consulting Agreement between
Pacific International Enterprises, Inc.
and Redfield Miller, Inc. **
5.1 Opinion of Jeffers, Wilson & Shaff, LLP
24.1 Consent of Jeffers, Wilson & Shaff
(included in Exhibit 5.1).
25.1 Power of Attorney
</TABLE>
_______________________
** Incorporated by reference from Registrant's
Form 10-KSB for period ending December 31, 1995,filed April 1, 1996
Exhibit 10.7.
6
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, 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, thereunto
duly authorized, in the City of Los Alamitos, State of California, on February
25, 1997.
PACIFIC INTERNATIONAL ENTERPRISES, INC.
By: /s/ Binks Graval
----------------------
Binks Graval, President
(principal executive officer)
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 date indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Binks Graval Chief Executive Officer February 25, 1997
- ------------------- and Chairman of the Board
Binks Graval
</TABLE>
/s/ Richard W. Perkins Vice Chairman of the Board February 25, 1997
- ----------------------
Richard W. Perkins
/s/ Anthony D. Broughton Chief Operating Officer, February 25, 1997
- ------------------------ Chief Financial Officer and
Anthony D. Broughton Secretary
7
<PAGE>
EXHIBIT 4.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of June 28, 1996 by and between PACIFIC INTERNATIONAL ENTERPRISES, INC., a
Nevada corporation (the "Company"), and BINKS GRAVAL, an individual
("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive and the Company wish to provide for the terms and
conditions of Executive's employment as Chief Executive Officer of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Executive agree as set forth below.
1. Employment and Duties. The Company hereby employs Executive to
---------------------
serve as Chief Executive Officer of the Company, with the powers and duties
customarily accorded to such position, including those powers and duties set
forth in the Bylaws of the Company for such office and such other duties
consistent therewith as may be assigned to Executive from time to time by the
Board of Directors of the Company. Initially, Executive's managerial and
supervisorial duties shall be limited to those departments and operations as
determined by the Board of Directors and subsequently expanded to include other
departments and operations as directed by the Board of Directors. Executive
shall report to the Board of Directors. Executive shall endeavor in good faith
to perform his duties in an efficient, faithful and business-like manner.
During the term of his employment, it is intended that Executive also serve as
Chairman of the Board of Directors of the Company (the "Board") and the Company
will take action within its powers to include Executive among the slate of
directors proposed to be nominated by the Board at any applicable stockholders
meeting.
2. Term. The initial term of this Agreement shall begin on June 28,
----
1996. The initial term shall expire on June 27, 1999 unless terminated earlier
as set forth in Section 6 hereof or by mutual agreement of the parties hereto
(the "Initial Term"). At the expiration of the Initial Term and each
anniversary thereafter, the term of this Agreement shall automatically be
extended for an additional year (the "Extension Term") unless either party shall
have given written notice to the other party at least ninety days prior to the
end of the Initial Term or the Extension Term, as the case may be, that it does
not desire to extend the term of this Agreement. If Executive's employment
under this Agreement is extended for an Extension Term, it shall thereafter
<PAGE>
or during any Extension Term be terminable (other than upon expiration) only as
provided in Section 6 or by mutual agreement of the parties hereto.
3. Compensation.
------------
(a) Base Salary. During the term of this Agreement, Executive
-----------
shall be paid a base salary (the "Base Salary"), payable in accordance with the
Company's normal payroll practices. During the first year of the term of this
Agreement, Executive's Base Salary shall be $96,000 and may be paid, at the
election of the Company, either in cash or in shares of common stock of the
Company equal to that portion of Executive's Base Salary which is unpaid divided
by the average trading price of the common stock over the 5 trading day period
prior to the payment date of Executive's Base Salary. After the first year of
the term, Executive's base salary shall be paid in cash, unless the Executive
determines to accept another form of payment. The annual Base Salary payable to
Executive shall be reviewed at least annually; provided, however, that
-------- -------
Executive's Base Salary shall not be reduced below $96,000 per annum during the
term of this Agreement.
(b) Performance Bonus. Executive shall be entitled to a
-----------------
performance bonus paid upon the occurrence of certain events (the "Acquisition
Performance Bonus"). The Acquisition Performance Bonus shall equal a percentage
of the purchase price upon the closing of such an acquisition or merger. The
percentages shall be as follows:
<TABLE>
<CAPTION>
Purchase Price of Acquisition Percentage upon Closing
- ----------------------------- -----------------------
<S> <C>
Up to $2 million 3%
Between $2-4 million 2%
Between $4-6 million 1.5%
Over $6 million .75%
</TABLE>
The Company may choose to pay the Acquisition Performance Bonus in shares of
common stock of the Company equal to that portion of Executive's Acquisition
Performance Bonus which is due and payable divided by the average trading price
of the common stock over the 5 trading day period prior to the payment date of
Executive's Acquisition Performance Bonus.
2
<PAGE>
(c) Operational Bonus. The Company will adopt a bonus plan for
-----------------
officers of the Company. The Board of Directors will determine the aggregate
dollar amount of the bonus prior to the beginning of each year, the distribution
among officers of the bonus and the threshold for awarding bonuses, be it sales,
earnings or return on equity. Any bonus paid to Executive pursuant to the
Operational Bonus shall be paid quarterly.
(d) Stock Options. On the commencement of the Initial Term, the
-------------
Company shall grant Executive non-qualified options to purchase 500,000 shares
of the Company's Common Stock (the "Options"). Of such Options, 100,000 shall
vest immediately upon grant and an additional 100,000 shall vest on each
anniversary of the commencement of the Initial Term. The Options will be
exercisable at an exercise price of $1.00 per share.
4. Other Executive Benefits. During the term of this Agreement, the
------------------------
Company shall provide to Executive benefits commensurate with his position,
including each of the following benefits:
(a) Medical and Dental Coverage. The Company agrees to provide
---------------------------
coverage to Executive and dependent members of his family under the same medical
and dental plans as may be maintained from time to time in the discretion of the
Company's Board for the benefit of the other executive officers and the
dependent members of their families.
(b) Vacation. Executive shall be entitled to two (2) weeks of
--------
paid vacation during Executive's first year of employment with the Company and
shall be entitled to three (3) weeks during each year of employment with the
Company thereafter for the term of this Agreement. In each case, such
entitlement shall accrue pro rata over the contract year and shall be taken at
such time or times as shall not unreasonably interfere with the operations of
the Company.
(c) Business Expenses. The Company will pay or reimburse
-----------------
Executive for any out-of-pocket expenses incurred by Executive in the course of
providing his services hereunder, which comply with the Company's travel and
expense policies adopted from time to time by the Board for the executive
officers. Such reimbursement shall be made by the Company based on receipts
submitted to the Company by Executive in the same manner and within the same
time period as applicable to the other executive officers of the Company.
(d) Automobile Allowance. The Company shall provide Executive
--------------------
with an automobile allowance equal to $500 per month.
3
<PAGE>
(e) Benefit Plans. Executive shall be entitled to participate
-------------
in any pension, profit-sharing, stock option, stock purchase or other benefit
plan of the Company now existing or hereafter adopted for the benefit of
employees generally or the senior executives of the Company.
(f) Life Insurance. Provided the following policies may be
--------------
obtained at a reasonable cost, the Company shall obtain a $1,000,000 standard
term life insurance policy and a $1,000,000 standard term accidental death
policy on the life of Executive which policy shall name the Company or its
shareholders as beneficiaries.
5. Confidential Information.
------------------------
(a) Non-Disclosure. Executive hereby agrees, during the term
--------------
of this Agreement, he will not disclose to any person or otherwise use or
exploit any proprietary or confidential information, including, without
limitation, trade secrets, processes, records of research, proposals, reports,
methods, processes, techniques, computer software or programming, or budgets or
other financial information, regarding the Company, its business, properties,
customers or affairs (collectively, "Confidential Information") obtained by him
at any time during the term, except to the extent required by Executive's
performance of assigned duties for the Company. Notwithstanding anything herein
to the contrary, the term "Confidential Information" shall not include
information which (i) is or becomes generally available to the public other than
as a result of disclosure by Executive in violation of this Agreement, (ii) is
or becomes available to Executive on a non-confidential basis from a source
other than the Company, provided that such source is not known by Executive to
be furnishing such information in violation of a confidentiality agreement with
or other obligation of secrecy to the Company, (iii) has been made available, or
is made available, on an unrestricted basis to a third party by the Company, by
an individual authorized to do so or (iv) is known by Executive prior to its
disclosure to Executive. Executive may use and disclose Confidential Information
to the extent necessary to assert any right or defend against any claim arising
under this Agreement or pertaining to Confidential Information or its use, to
the extent necessary to comply with any applicable statute, constitution,
treaty, rule, regulation, ordinance or order, whether of the United States, any
state thereof, or any other jurisdiction applicable to Executive, or if
Executive receives a request to disclose all or any part of the information
contained in the Confidential Information under the terms of a subpoena, order,
civil investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body or agency, whether of the United States
or any state thereof, or any other jurisdiction applicable to Executive.
(b) Injunctive Relief. Executive agrees that the remedy at law for
-----------------
any breach by him of the covenants and agreements set forth in this Section 5
may be inadequate and that in the event of any such breach, the Company may, in
addition to the other remedies that may be available to it at law, seek
injunctive relief prohibiting
4
<PAGE>
him (together with all those persons associated with him) from the breach of
such covenants and agreements.
6. Termination.
-----------
(a) Termination by Company for "Cause" or Voluntarily by
-----------------------------------------------------
Executive. The Company may terminate this Agreement for "Cause" effective
- ---------
immediately upon written notice thereof to Executive. For purposes of this
Agreement, "Cause" shall mean and be limited to the following events: (i) an act
of fraud, embezzlement or similar conduct by Executive involving the Company;
(ii) any action by Executive involving the arrest of Executive for violation of
any criminal statute constituting a felony if the Board reasonably determines
that the continuation of Executive's employment after such event would have an
adverse impact on the operations or reputation of the Company in the financial
community; or (iii) a continuing, repeated willful failure or refusal by
Executive to perform his duties; provided, however, that this Agreement may not
-------- -------
be terminated under this subclause (iii) unless Executive shall have first
received written notice from the Board advising Executive of the specific acts
or omissions alleged to constitute a failure or refusal to perform and such
failure or refusal to perform continues after Executive shall have had a
reasonable opportunity to correct the acts or omissions cited in such notice.
In the event of termination for "Cause," or voluntarily by Executive,
(x) Executive shall be entitled to receive that portion of the Base Salary and
all benefits accrued through the date of termination and (y) all Options not
exercised on the date of termination shall be immediately cancelled and void.
(b) Termination by Company Other Than for "Cause."
--------------------------------------------
i) Death and Disability. Provided that notice of termination
has not previously been given under any Section hereof, if Executive shall die
or become disabled during the term of this Agreement, this Agreement and all of
the Company's obligations hereunder shall terminate, except that Executive or
Executive's estate or designated beneficiaries shall be entitled to receive (A)
all earned and unpaid Base Salary through the date of termination; and (B) a pro
rata portion of the Base Salary, Acquisition Performance Bonus, and all benefits
with respect to the then current contract year.
ii) Without Cause. If the Company elects to terminate
-------------
Executive for any reason whatsoever other than as provided in Section 6(a) or if
the Company causes a Defacto Termination of Executive (as defined below) (each a
"Severance Termination"), Executive shall receive the "Separation Package." As
used herein, the "Separation Package" shall consist of one year Base Salary (at
the annual rate in effect at the date of the Severance Termination). In
5
<PAGE>
addition, all Options which are scheduled to vest on the next anniversary of the
commencement of the Initial Term shall vest as of the date of the Severance
Termination. Further, all options that have become exercisable as of the date of
such termination (including those which do so as a result of the provisions of
the preceding sentence) shall remain so for a period of 12 months. For purposes
of this paragraph, a "Defacto Termination" shall include any of the following
events: (i) the Company shall fail to pay or shall reduce the Base Salary,
Acquisition Performance Bonus or other benefits provided herein, except as
permitted hereunder, or shall otherwise breach any material provision hereof
which breach is not cured within 10 days after receipt of notice thereof from
Executive; (ii) the Company shall fail to cause Executive to remain the Chief
Executive Officer of the Company; (iii) Executive shall not be continuously
afforded the authority, powers, responsibilities and privileges contemplated in
Section 1 above (whether or not accompanied by a change in title); (iv) the
Company shall require Executive's primary services to be rendered in an area
other than the Company's principal offices in the Los Angeles metropolitan area;
or (v) after a Change in Control (as defined below), the Company increases the
base salary for senior executives of the Company generally without similarly
increasing the Base Salary of Executive. For purposes of clause (iii),
Executive shall be deemed not to have been continuously afforded the authority,
powers, responsibilities and privileges contemplated in Section 1 above if there
shall occur any reduction in the scope, level or nature of Executive's
employment hereunder, or any demotion, any phasing out or assignment to others,
of the duties contemplated herein.
(c) Change in Control.
-----------------
i) Following a Change in Control, this Agreement shall
continue to be binding upon the Company and Executive shall be entitled to the
payments provided for in this Section 6 in the event of termination resulting
from death, disability, cause, or a Separation Termination, all as provided for
in Sections 6(a) and 6(b).
ii) Executive may (but shall not be obligated to) terminate
this Agreement effective 30 days after the giving of such notice given at any
time within two years following a Change in Control. In the event that
Executive elects to terminate this Agreement pursuant to this Section 6(c)(ii),
Executive shall be entitled to the following payments:
(A) If the Change in Control is effected to an Adverse
Person (as defined below), then Executive shall be entitled to and receive the
Severance Package. In addition, all Options then held by Executive which are not
yet vested shall vest as of the date of such termination. Further, all options
that have become exercisable as of the date of such termination (including those
which do so as a
6
<PAGE>
result of the provisions of the preceding sentence) shall remain so for the
entire remaining term of the Options.
(B) If the Change in Control is effected to a person
other than an Adverse Person, Executive shall be entitled to receive the
Severance Package. In addition, all Options which are scheduled to vest on the
next scheduled vesting date during the 12 months following the termination date
shall vest as of the date of such termination. Further, all options that have
become exercisable as of the date of such termination (including those which do
so as a result of the provisions of the preceding sentence) shall remain so for
a period of 12 months.
(d) Payment of Termination Amounts. Executive may elect to have all
------------------------------
amounts to be paid to Executive pursuant to this Section 6 payable (i) over the
remaining term of this Agreement or for such shorter period as expressly
provided for herein, as applicable, or (ii) in a lump sum within 30 days
following termination; provided, however, in the case of death or disability,
-----------------
the Acquisition Performance Bonus component shall be payable at such time as
performance-based bonuses are paid to similarly situated employees of the
Company and only if the specified targets set forth in Section 3(b) for the
applicable periods are actually met. In the event Executive elects to be paid
pursuant to clause (i), Executive agrees promptly to notify the Company in
writing of Executive's acceptance of full-time employment; within 15 days after
receipt of such notice, the Company shall pay Executive in a lump sum any
amounts which remain otherwise due to Executive hereunder.
(e) Stock and Similar Rights. Except with regard to the vesting and
------------------------
exercise dates of Options as set forth in this Section 6, Executive's rights
under any other agreement or plan under which stock options, restricted stock or
similar awards are granted shall be determined in accordance with the terms and
provisions of such plans or agreements.
(f) No Mitigation or Offset. Payment of any sum under this Section 6
-----------------------
shall not be subject to any claim of mitigation nor shall the Company be
entitled to any right of offset with respect thereto.
7. Change in Control. For purposes of this Agreement, a "Change in
-----------------
Control" shall mean the occurrence of any of the following events which occur
after the date hereof:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934)
(a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act ("Rule 13d-3")) of 20% or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the
7
<PAGE>
election of directors (the "Outstanding Voting Securities"); provided, however,
-------- -------
that neither of the following acquisitions shall constitute a Change in Control;
(i) any acquisition by the Company or (ii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
-------- -------
the date hereof whose election, or nomination for election by the stockholders
of the Company, shall be approved by a vote of a least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; or
(c) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case, unless, following such reorganization,
merger or consolidation: (i) more than 60% of the combined voting power of the
then outstanding voting securities of the corporation resulting from such
reorganization, merger, or consolidation, which may be the Company (the
"Resulting Corporation"), entitled to vote generally in the election of
directors (the "Resulting Corporation Voting Securities") shall then be owned
beneficially, directly or indirectly, by all or substantially all of the Persons
who were the beneficial owners of Outstanding Voting Securities immediately
prior to such reorganization, merger or consolidation, in substantially the same
proportions as their respective ownerships of Outstanding Voting Securities
immediately prior to such reorganization, merger, or consolidation; (ii) no
Person (excluding the Company, any employee benefit plan (or related trust) of
the Company, the Resulting Corporation, and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 20% or more of the combined voting power of Outstanding Voting
Securities) shall own beneficially, directly or indirectly 20% or more of the
combined voting power of the Resulting Corporation Voting Securities; and (iii)
at least a majority of the members of the Board shall have been members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such reorganization, merger or consolidation; or
(d) Approval by the stockholders of the Company of (x) a complete
liquidation or dissolution of the Company or (y) the sale or other disposition
of all or substantially all of the assets of the Company, other than to a
corporation (the "Buyer") with respect to which (i) following such sale or other
disposition, more than 60% of the combined voting power of securities of Buyer
entitled to vote generally in the election of directors ("Buyer Voting
Securities"), shall be owned beneficially, directly or indirectly, by all or
substantially all of the Persons who were the beneficial owners of the
Outstanding Voting Securities immediately prior to such sale or other
disposition, in substantially the same proportion as their respective ownership
of Outstanding Voting
8
<PAGE>
Securities, immediately prior to such sale or other disposition; (ii) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company or Buyer and any Person that shall immediately prior to such sale or
other disposition own beneficially, directly or indirectly, 20% or more of the
combined voting power of Outstanding Voting Securities), shall own beneficially,
directly or indirectly, 20% or more of the combined voting power or, Buyer
Voting Securities; and (z) at least a majority of the members of the board of
directors of Buyer shall have been members of the Incumbent Board at the time of
the execution of the initial agreement or action of the Board providing for such
sale or other disposition or assets of the Company.
For purposes of this Agreement, an Adverse Person shall mean any
person which acquires control of the Company in a transaction involving a
Change in Control other than a transaction which, before the time of the
transaction, has been approved by the Board of Directors of the Company.
8. Insurance. During the term, the Company shall maintain, at no cost to
---------
Executive, officers and directors liability insurance that would cover Executive
in an amount of no less than $1,000,000, provided that such insurance is
reasonably available to the Company as determined by the Board of Directors.
9. General Provisions.
------------------
(a) Notices. All notices, requirements, requests, demands, claims or
-------
other communications hereunder shall be in writing. Any notice, requirement,
request, demand, claim or other communication hereunder shall be deemed duly
given (i) if personally delivered, when so delivered, (ii) if mailed, two (2)
business days after having been sent by registered or certified mail, return-
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below, (iii) if given by telecopier, once such notice or other
communication is transmitted to the telecopier number specified below, and the
appropriate telephonic confirmation is received, provided that such notice or
other communication is promptly thereafter mailed in accordance with the
provisions of clause (ii) above or (iv) if sent through an overnight delivery
service under circumstances by which such service guarantees next day delivery,
the date following the date so sent:
If to the Company, to:
- ---------------------
PACIFIC INTERNATIONAL ENTERPRISES, INC.
4431 Corporate Center Drive
Suite 131
Los Alamitos, California 90720
Attn:
9
<PAGE>
If to Executive to:
- ------------------
Binks Graval
2079 East 15th Street, Unit C-1
Los Angeles, CA 90021
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
(b) Assignment. This Agreement and the benefits hereunder are
----------
personal to the Company and are not assignable or transferable, nor may be the
services to be performed hereunder be assigned by the Company to any person,
firm or corporation; provided, however, that this Agreement and the benefits
-----------------
hereunder may be assigned by the Company to any corporation into which the
Company may be merged or consolidated, and this Agreement and the benefits
hereunder will automatically be deemed assigned to any such corporation,
subject, however, to Executive's right to terminate this Agreement to the extent
provided in Section 6. In the event of any assignment of this Agreement to any
corporation acquiring all or substantially all of the assets of the Company or
to any other corporation into which the Company may be merged or consolidated,
the responsibilities and duties assigned to Executive by such successor
corporation shall be the responsibilities and duties of, and compatible with the
status of, a senior executive officer of such successor corporation. The
Company may delegate any of its obligations hereunder to any subsidiary of the
Company, provided that such delegation shall not relieve the Company of any of
its obligations hereunder. Executive may not assign its rights hereunder or
delegate his duties hereunder to any Person.
(c) Complete Agreement. This Agreement contains the entire agreement
------------------
among the parties hereto with respect to the subject matter hereof and
supersedes and cancels any and all previous written or oral negotiations,
commitments, understandings, agreements and any other writings or communications
in respect of such subject matter.
(d) Amendments. This Agreement may be modified, amended, superseded
----------
or terminated only by a writing duly signed by both parties.
(e) Severability. Any provision of this Agreement which is invalid,
------------
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
10
<PAGE>
(f) No Waiver. Any waiver by either party of a breach of any
---------
provisions of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of either party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall be considered a waiver
or to deprive such party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement.
(g) Binding Effect. This Agreement shall be binding on, and shall
--------------
inure to the benefit of, the parties hereto and their permitted assigns,
successors and legal representatives.
(h) Counterparts. This Agreement may be executed by the parties
------------
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same document.
(i) Governing Law. This Agreement has been negotiated and entered
-------------
into in the State of California and shall be construed in accordance with the
laws of the State of California.
(j) Arbitration. The parties hereby expressly agree that any
-----------
controversy or claim relating to this Agreement, including the construction,
enforcement or application of the terms hereof, shall be submitted to
arbitration in Los Angeles, California by the American Arbitration Association
in accordance with the Commercial Arbitration Rules of such association. The
arbitrator shall be a retired judge of the Los Angeles Superior Court or other
party acceptable to the parties and the rules of evidence shall apply. The
costs of the arbitrator shall be borne equally. Each party shall be responsible
for its own attorneys' fees and costs. However, the arbitrator shall have the
right to award costs and expenses (including actual attorneys' fees) to the
prevailing party as well as equitable relief. The award of the arbitrator shall
be final and binding and shall be enforceable in any court of competent
jurisdiction. Nothing in this paragraph shall preclude the parties from seeking
an injunction or other equitable relief from a court of competent jurisdiction
under appropriate circumstances.
(k) Headings. The headings included in this Agreement are for the
--------
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
11
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has executed
the same as of the day and year first above written.
PACIFIC INTERNATIONAL ENTERPRISES, INC.
By:/s/ RICHARD PERKINS
------------------------------
Its: Vice Chairman
/s/ BINKS A. GRAVAL 11/06/96
---------------------------------
BINKS GRAVAL
WITNESS: /s/ JUDY GOREY 11-06-96
-------------------------
12
<PAGE>
EXHIBIT 4.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of June 28, 1996 by and between PACIFIC INTERNATIONAL ENTERPRISES, INC., a
Nevada corporation (the "Company"), CRUSH INNOVATIVE SPORTS SYSTEMS, INC., a
wholly-owned subsidiary of the Company ("Crush"), and RICHARD PERKINS, an
individual ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive, the Company and Crush wish to provide for the
terms and conditions of Executive's employment as President and Chief Executive
Officer of Crush.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, Crush and
Executive agree as set forth below.
1. Employment and Duties. The Company and Crush hereby employ
---------------------
Executive to serve as President and Chief Executive Officer of Crush, with the
powers and duties customarily accorded to such position, including those powers
and duties set forth in the Bylaws of Crush for such office and such other
duties consistent therewith as may be assigned to Executive from time to time by
the Board of Directors of the Company and Crush. Initially, Executive's
managerial and supervisorial duties shall be limited to those departments and
operations as determined by the Board of Directors of the Company and Crush and
subsequently expanded to include other departments and operations as directed by
the Board of Directors of the Company and Crush. Executive shall report to the
Board of Directors of the Company and Crush. Executive shall endeavor in good
faith to perform his duties in an efficient, faithful and business-like manner.
During the term of his employment, it is intended that Executive also serve as
Vice Chairman of the Board of Directors (the "Board") of the Company and the
Company will take action within its powers to include Executive among the slate
of directors proposed to be nominated by the Board at any applicable
stockholders meeting.
2. Term. The initial term of this Agreement shall begin on June 28,
----
1996. The initial term shall expire on June 27, 1999 unless terminated earlier
as set forth in Section 6 hereof or by mutual agreement of the parties hereto
(the "Initial Term"). At the expiration of the Initial Term and each anniversary
thereafter, the term of this Agreement shall automatically be extended for an
additional year (the "Extension Term") unless either party shall have given
written notice to the other party at least ninety days prior to the end of the
Initial Term or the Extension Term, as the case may
<PAGE>
be, that it does not desire to extend the term of this Agreement. If Executive's
employment under this Agreement is extended for an Extension Term, it shall
thereafter or during any Extension Term be terminable (other than upon
expiration) only as provided in Section 6 or by mutual agreement of the parties
hereto.
3. Compensation.
------------
(a) Base Salary. During the term of this Agreement, Executive shall
-----------
be paid a base salary (the "Base Salary"), payable in accordance with the
Company's normal payroll practices. During the first year of the term of this
Agreement, Executive's Base Salary shall be $96,000 and may be paid, at the
election of the Company, either in cash or in shares of common stock of the
Company equal to that portion of Executive's Base Salary which is unpaid divided
by the average trading price of the common stock over the 5 trading day period
prior to the payment date of Executive's Base Salary. After the first year of
the term, Executive's base salary shall be paid in cash, unless the Executive
determines to accept another form of payment. The annual Base Salary payable to
Executive shall be reviewed at least annually; provided, however, that
-------- -------
Executive's Base Salary shall not be reduced below $96,000 per annum during the
term of this Agreement.
(b) Performance Bonus. Executive shall be entitled to a performance
-----------------
bonus paid upon the occurrence of certain events (the "Acquisition Performance
Bonus"). The Acquisition Performance Bonus shall equal a percentage of the
purchase price upon the closing of such an acquisition or merger. The
percentages shall be as follows:
<TABLE>
<CAPTION>
Purchase Price of Acquisition Percentage upon Closing
- ----------------------------- -----------------------
<S> <C>
Up to $2 million 3 %
Between $2-4 million 2 %
Between $4-6 million 1.5 %
Over $6 million .75%
</TABLE>
Notwithstanding the percentages set forth above, a minimum of $100,000 shall be
payable upon closing an acquisition. The Company may choose to pay the
Acquisition Bonus in shares of common stock of the Company equal to that portion
of Executive's Acquisition Bonus which is due and payable divided by the average
trading price of the common stock over the 5 trading day period prior to the
payment date of Executive's Acquisition Bonus.
2
<PAGE>
(c) Operational Bonus. The Company will adopt a bonus plan for
-----------------
officers of the Company. The Board of Directors will determine the aggregate
dollar amount of the bonus prior to the beginning of each year, the distribution
among officers of the bonus and the threshold for awarding bonuses, be it sales,
earnings or return on equity. Any bonus paid to Executive pursuant to the
Operational Bonus shall be paid quarterly.
(d) Stock Options. On the commencement of the Initial Term, the
-------------
Company shall grant Executive non-qualified options to purchase 500,000 shares
of the Company's Common Stock (the "Options"). Of such Options, 100,000 shall
vest immediately upon grant and an additional 100,000 shall vest on each
anniversary of the commencement of the Initial Term. The Options will be
exercisable at an exercise price of $1.00 per share.
4. Other Executive Benefits. During the term of this Agreement, the
------------------------
Company shall provide to Executive benefits commensurate with his position,
including each of the following benefits:
(a) Medical and Dental Coverage. The Company agrees to provide
---------------------------
coverage to Executive and dependent members of his family under the same medical
and dental plans as may be maintained from time to time in the discretion of the
Company's Board for the benefit of the other executive officers and the
dependent members of their families.
(b) Vacation. Executive shall be entitled to two (2) weeks of paid
--------
vacation during Executive's first year of employment and shall be entitled to
four (4) weeks during each year of employment thereafter for the term of this
Agreement. In each case, such entitlement shall accrue pro rata over the
contract year and shall be taken at such time or times as shall not unreasonably
interfere with the operations of Crush and the Company.
(c) Business Expenses. The Company will pay or reimburse Executive
-----------------
for any out-of-pocket expenses incurred by Executive in the course of providing
his services hereunder, which comply with the Company's travel and expense
policies adopted from time to time by the Board for the executive officers.
Such reimbursement shall be made by the Company based on receipts submitted to
the Company by Executive in the same manner and within the same time period as
applicable to the other executive officers of the Company.
(d) Automobile. The Company shall provide Executive with an
----------
automobile allowance equal to $500 per month.
3
<PAGE>
(e) Benefit Plans. Executive shall be entitled to participate in any
-------------
pension, profit-sharing, stock option, stock purchase or other benefit plan of
the Company now existing or hereafter adopted for the benefit of employees
generally or the senior executives of the Company.
(f) Life Insurance. Provided the following policies may be obtained
--------------
at a reasonable cost, the Company shall obtain a $1,000,000 standard term life
insurance policy and a $1,000,000 standard term accidental death policy on the
life of Executive which policy shall name the Company or its shareholders as
beneficiaries.
5. Confidential Information.
------------------------
(a) Non-Disclosure. Executive hereby agrees, during the term of this
--------------
Agreement, he will not disclose to any person or otherwise use or exploit any
proprietary or confidential information, including, without limitation, trade
secrets, processes, records of research, proposals, reports, methods,
techniques, computer software or programming, or budgets or other financial
information, regarding the Company and Crush, their respective business,
properties, customers or affairs (collectively, "Confidential Information")
obtained by him at any time during the term, except to the extent required by
Executive's performance of assigned duties for the Company and Crush.
Notwithstanding anything herein to the contrary, the term "Confidential
Information" shall not include information which (i) is or becomes generally
available to the public other than as a result of disclosure by Executive in
violation of this Agreement, (ii) is or becomes available to Executive on a non-
confidential basis from a source other than Crush or the Company, provided that
such source is not known by Executive to be furnishing such information in
violation of a confidentiality agreement with or other obligation of secrecy to
the Company or Crush, (iii) has been made available, or is made available, on an
unrestricted basis to a third party by the Company or Crush, by an individual
authorized to do so or (iv) is known by Executive prior to its disclosure to
Executive. Executive may use and disclose Confidential Information to the
extent necessary to assert any right or defend against any claim arising under
this Agreement or pertaining to Confidential Information or its use, to the
extent necessary to comply with any applicable statute, constitution, treaty,
rule, regulation, ordinance or order, whether of the United States, any state
thereof, or any other jurisdiction applicable to Executive, or if Executive
receives a request to disclose all or any part of the information contained in
the Confidential Information under the terms of a subpoena, order, civil
investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body or agency, whether of the United States
or any state thereof, or any other jurisdiction applicable to Executive.
(b) Injunctive Relief. Executive agrees that the remedy at law for
-----------------
any breach by him of the covenants and agreements set forth in this Section 5
may be inadequate and that in the event of any such breach, the Company and
Crush may,
4
<PAGE>
in addition to the other remedies that may be available to either of them at
law, seek injunctive relief prohibiting him (together with all those persons
associated with him) from the breach of such covenants and agreements.
6. Termination.
-----------
(a) Termination by the Company or Crush for "Cause" or Voluntarily by
-----------------------------------------------------------------
Executive. The Company or Crush may terminate this Agreement for "Cause"
- ---------
effective immediately upon written notice thereof to Executive. For purposes of
this Agreement, "Cause" shall mean and be limited to the following events: (i)
an act of fraud, embezzlement or similar conduct by Executive involving the
Company or Crush; (ii) any action by Executive involving the arrest of Executive
for violation of any criminal statute constituting a felony if the Board
reasonably determines that the continuation of Executive's employment after such
event would have an adverse impact on the operations or reputation of the
Company or Crush in the financial community; or (iii) a continuing, repeated
willful failure or refusal by Executive to perform his duties; provided,
--------
however, that this Agreement may not be terminated under this subclause (iii)
- -------
unless Executive shall have first received written notice from the Board
advising Executive of the specific acts or omissions alleged to constitute a
failure or refusal to perform and such failure or refusal to perform continues
after Executive shall have had a reasonable opportunity to correct the acts or
omissions cited in such notice.
In the event of termination for "Cause," or voluntarily by Executive,
(x) Executive shall be entitled to receive that portion of the Base Salary and
all benefits accrued through the date of termination and (y) all Options not
exercised on the date of termination shall immediately be cancelled and void.
(b) Termination by the Company or Crush Other Than for "Cause."
-----------------------------------------------------------
i) Death and Disability. Provided that notice of termination
--------------------
has not previously been given under any Section hereof, if Executive shall
die or become disabled during the term of this Agreement, this Agreement
and all of Crush's and the Company's obligations hereunder shall terminate,
except that Executive or Executive's estate or designated beneficiaries
shall be entitled to receive (A) all earned and unpaid Base Salary through
the date of termination; and (B) a pro rata portion of the Base Salary,
Acquisition Performance Bonus, and all benefits with respect to the then
current contract year.
ii) Without Cause. If the Company or Crush elects to terminate
-------------
Executive for any reason whatsoever other than as provided in Section 6(a)
or if the Company or Crush causes a Defacto Termination of Executive (as
5
<PAGE>
defined below) (each a "Severance Termination"), Executive shall receive
the "Separation Package." As used herein, the "Separation Package" shall
consist of one years' Base Salary (at the annual rate in effect at the date
of the Severance Termination). In addition, all Options which are scheduled
to vest on the next anniversary of the commencement of the Initial Term
shall vest as of the date of the Severance Termination. Further, all
options that have become exercisable as of the date of such termination
(including those which do so as a result of the provisions of the preceding
sentence) shall remain so for a period of 12 months. For purposes of this
paragraph, a "Defacto Termination" shall include any of the following
events: (i) the Company or Crush shall fail to pay or shall reduce the Base
Salary, Acquisition Performance Bonus or other benefits provided herein,
except as permitted hereunder, or shall otherwise breach any material
provision hereof which breach is not cured within 10 days after receipt of
notice thereof from Executive; (ii) the Company or Crush shall fail to
cause Executive to remain the President and Chief Executive Officer of
Crush; (iii) Executive shall not be continuously afforded the authority,
powers, responsibilities and privileges contemplated in Section 1 above
(whether or not accompanied by a change in title); (iv) the Company or
Crush shall require Executive's primary services to be rendered in an area
other than the Company's or Crush's principal offices in the Los Angeles
metropolitan area; or (v) after a Change in Control (as defined below), the
Company or Crush increases the base salary for senior executives of the
Company or Crush, respectively, generally without similarly increasing the
Base Salary of Executive. For purposes of clause (iii), Executive shall be
deemed not to have been continuously afforded the authority, powers,
responsibilities and privileges contemplated in Section 1 above if there
shall occur any reduction in the scope, level or nature of Executive's
employment hereunder, or any demotion, any phasing out or assignment to
others, of the duties contemplated herein.
(c) Change in Control.
-----------------
i) Following a Change in Control, this Agreement shall continue
to be binding upon Crush and the Company and Executive shall be entitled to the
payments provided for in this Section 6 in the event of termination resulting
from death, disability, cause, or a Separation Termination, all as provided for
in Sections 6(a) and 6(b).
ii) Executive may (but shall not be obligated to) terminate this
Agreement effective 30 days after the giving of such notice given at any time
within two years following a Change in Control. In the event that Executive
elects to terminate this Agreement pursuant to this Section 6(c)(ii), Executive
shall be entitled to the following payments:
6
<PAGE>
(A) If the Change in Control is effected to an Adverse
Person (as defined below), then Executive shall be entitled to and receive the
Severance Package. In addition, all Options then held by Executive which are not
yet vested shall vest as of the date of such termination. Further, all options
that have become exercisable as of the date of such termination (including those
which do so as a result of the provisions of the preceding sentence) shall
remain so for the entire remaining term of the Options.
(B) If the Change in Control is effected to a person
other than an Adverse Person, Executive shall be entitled to receive the
Severance Package. In addition, all Options which are scheduled to vest on the
next scheduled vesting date during the 12 months following the termination date
shall vest as of the date of such termination. Further, all options that have
become exercisable as of the date of such termination (including those which do
so as a result of the provisions of the preceding sentence) shall remain so for
a period of 12 months.
(d) Payment of Termination Amounts. Executive may elect to have all
------------------------------
amounts to be paid to Executive pursuant to this Section 6 payable (i) over the
remaining term of this Agreement or for such shorter period as expressly
provided for herein, as applicable, or (ii) in a lump sum within 30 days
following termination; provided, however, in the case of death or disability,
-----------------
the Acquisition Performance Bonus component shall be payable at such time as
performance-based bonuses are paid to similarly situated employees of the
Company and only if the specified targets set forth in Section 3(b) for the
applicable periods are actually met. In the event Executive elects to be paid
pursuant to clause (i), Executive agrees promptly to notify the Company and
Crush in writing of Executive's acceptance of full-time employment; within 15
days after receipt of such notice, the Company shall pay Executive in a lump sum
any amounts which remain otherwise due to Executive hereunder.
(e) Stock and Similar Rights. Except with regard to the vesting and
------------------------
exercise dates of Options as set forth in this Section 6, Executive's rights
under any other agreement or plan under which stock options, restricted stock or
similar awards are granted shall be determined in accordance with the terms and
provisions of such plans or agreements.
(f) No Mitigation or Offset. Payment of any sum under this Section 6
-----------------------
shall not be subject to any claim of mitigation nor shall the Company or Crush
be entitled to any right of offset with respect thereto.
7. Change in Control. For purposes of this Agreement, a "Change in
-----------------
Control" shall mean the occurrence of any of the following events which occur
after the date hereof:
7
<PAGE>
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934)
(a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act ("Rule 13d-3")) of 20% or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding Voting
Securities"); provided, however, that neither of the following acquisitions
-------- -------
shall constitute a Change in Control; (i) any acquisition by the Company or (ii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or
(b) Individuals who, as of the date hereof, constitute the Board of
the Company (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual becoming a
-------- -------
director subsequent to the date hereof whose election, or nomination for
election by the stockholders of the Company, shall be approved by a vote of a
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board; or
(c) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case, unless, following such reorganization,
merger or consolidation: (i) more than 60% of the combined voting power of the
then outstanding voting securities of the corporation resulting from such
reorganization, merger, or consolidation, which may be the Company (the
"Resulting Corporation"), entitled to vote generally in the election of
directors (the "Resulting Corporation Voting Securities") shall then be owned
beneficially, directly or indirectly, by all or substantially all of the Persons
who were the beneficial owners of Outstanding Voting Securities immediately
prior to such reorganization, merger or consolidation, in substantially the same
proportions as their respective ownerships of Outstanding Voting Securities
immediately prior to such reorganization, merger, or consolidation; (ii) no
Person (excluding the Company, any employee benefit plan (or related trust) of
the Company, the Resulting Corporation, and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 20% or more of the combined voting power of Outstanding Voting
Securities) shall own beneficially, directly or indirectly 20% or more of the
combined voting power of the Resulting Corporation Voting Securities; and (iii)
at least a majority of the members of the Board shall have been members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such reorganization, merger or consolidation; or
(d) Approval by the stockholders of the Company of (x) a complete
liquidation or dissolution of the Company or (y) the sale or other disposition
of all or substantially all of the assets of the Company, other than to a
corporation (the "Buyer") with respect to which (i) following such sale or other
disposition, more than
8
<PAGE>
60% of the combined voting power of securities of Buyer entitled to vote
generally in the election of directors ("Buyer Voting Securities"), shall be
owned beneficially, directly or indirectly, by all or substantially all of the
Persons who were the beneficial owners of the Outstanding Voting Securities
immediately prior to such sale or other disposition, in substantially the same
proportion as their respective ownership of Outstanding Voting Securities,
immediately prior to such sale or other disposition; (ii) no Person (excluding
the Company and any employee benefit plan (or related trust) of the Company or
Buyer and any Person that shall immediately prior to such sale or other
disposition own beneficially, directly or indirectly, 20% or more of the
combined voting power of Outstanding Voting Securities), shall own beneficially,
directly or indirectly, 20% or more of the combined voting power or, Buyer
Voting Securities; and (z) at least a majority of the members of the board of
directors of Buyer shall have been members of the Incumbent Board at the time of
the execution of the initial agreement or action of the Board providing for such
sale or other disposition or assets of the Company.
For purposes of this Agreement, an Adverse Person shall mean any
person which acquires control of the Company in a transaction involving a Change
in Control other than a transaction which, before the time of the transaction,
has been approved by the Board of Directors of the Company.
8. Insurance. During the term, the Company shall maintain, at no cost to
---------
Executive, officers and directors liability insurance that would cover Executive
in an amount of no less than $1,000,000, provided that such insurance is
reasonably available to the Company as determined by the Board of Directors.
9. General Provisions.
------------------
(a) Notices. All notices, requirements, requests, demands, claims or
-------
other communications hereunder shall be in writing. Any notice, requirement,
request, demand, claim or other communication hereunder shall be deemed duly
given (i) if personally delivered, when so delivered, (ii) if mailed, two (2)
business days after having been sent by registered or certified mail, return-
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below, (iii) if given by telecopier, once such notice or other
communication is transmitted to the telecopier number specified below, and the
appropriate telephonic confirmation is received, provided that such notice or
other communication is promptly thereafter mailed in accordance with the
provisions of clause (ii) above or (iv) if sent through an overnight delivery
service under circumstances by which such service guarantees next day delivery,
the date following the date so sent:
9
<PAGE>
If to the Company or Crush, to:
- ------------------------------
PACIFIC INTERNATIONAL ENTERPRISES, INC.
4431 Corporate Center Drive
Suite 131
Los Alamitos, California 90720
If to Executive to:
- ------------------
Richard Perkins
c/o Crush Innovative Sports Systems, Inc.
4431 Corporate Center Drive
Suite 131
Los Alamitos, California 90720
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
(b) Assignment. This Agreement and the benefits hereunder are
----------
personal to the Company and Crush and are not assignable or transferable, nor
may be the services to be performed hereunder be assigned by the Company or
Crush to any person, firm or corporation; provided, however, that this Agreement
-----------------
and the benefits hereunder may be assigned by the Company or Crush to any
corporation into which the Company or Crush may be merged or consolidated, and
this Agreement and the benefits hereunder will automatically be deemed assigned
to any such corporation, subject, however, to Executive's right to terminate
this Agreement to the extent provided in Section 6. In the event of any
assignment of this Agreement to any corporation acquiring all or substantially
all of the assets of the Company or Crush or to any other corporation into which
the Company or Crush may be merged or consolidated, the responsibilities and
duties assigned to Executive by such successor corporation shall be the
responsibilities and duties of, and compatible with the status of, a senior
executive officer of such successor corporation. The Company and Crush may
delegate any of its obligations hereunder to any subsidiary of the Company or
Crush, provided that such delegation shall not relieve the Company or Crush of
any of its obligations hereunder. Executive may not assign its rights hereunder
or delegate his duties hereunder to any Person.
(c) Complete Agreement. This Agreement contains the entire agreement
------------------
among the parties hereto with respect to the subject matter hereof and
supersedes and cancels any and all previous written or oral negotiations,
commitments,
10
<PAGE>
understandings, agreements and any other writings or communications in respect
of such subject matter.
(d) Amendments. This Agreement may be modified, amended, superseded
----------
or terminated only by a writing duly signed by all parties hereto.
(e) Severability. Any provision of this Agreement which is invalid,
------------
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
(f) No Waiver. Any waiver by any party of a breach of any provisions
---------
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of either party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall be considered a waiver or
to deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(g) Binding Effect. This Agreement shall be binding on, and shall
--------------
inure to the benefit of, the parties hereto and their permitted assigns,
successors and legal representatives.
(h) Counterparts. This Agreement may be executed by the parties
------------
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same document.
(i) Governing Law. This Agreement has been negotiated and entered
-------------
into in the State of California and shall be construed in accordance with the
laws of the State of California.
(j) Arbitration. The parties hereby expressly agree that any
-----------
controversy or claim relating to this Agreement, including the construction,
enforcement or application of the terms hereof, shall be submitted to
arbitration in Los Angeles, California by the American Arbitration Association
in accordance with the Commercial Arbitration Rules of such association. The
arbitrator shall be a retired judge of the Los Angeles Superior Court or other
party acceptable to the parties and the rules of evidence shall apply. The
costs of the arbitrator shall be borne equally. Each party shall be responsible
for its own attorneys' fees and costs. However, the arbitrator shall have the
right to award costs and expenses (including actual attorneys' fees) to the
prevailing party
11
<PAGE>
as well as equitable relief. The award of the arbitrator shall be final and
binding and shall be enforceable in any court of competent jurisdiction.
Nothing in this paragraph shall preclude the parties from seeking an injunction
or other equitable relief from a court of competent jurisdiction under
appropriate circumstances.
(k) Headings. The headings included in this Agreement are for the
--------
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has executed
the same as of the day and year first above written.
PACIFIC INTERNATIONAL ENTERPRISES, INC.
By:_____________________________
Its:
[Signatures Continued on Following Page]
12
<PAGE>
CRUSH INNOVATIVE SPORTS SYSTEMS, INC.
By:/s/ EDWARD G. HANSON
_____________________________
Its:Secretary
/s/ RICHARD PERKINS
---------------------------------
RICHARD PERKINS
Witness: /s/ JUDY GOREY 11-06-96
-------------------------
13
<PAGE>
EXHIBIT 4.3
[Pacific International Enterprises, Inc.]
February 26, 1997
Mr. Anthony Broughton
PACIFIC INTERNATIONAL ENTERPRISES, INC.
4431 Corporate Center Drive, Suite 131
Los Alamitos, CA 90702
RE: SHARES OF COMMON STOCK
Dear Mr. Broughton:
In exchange for past wages in the amount of $21,000, Pacific International
Enterprises, Inc. ("PIE") will issue to you 56,757 shares of Common Stock at
$0.37 per share. PIE will register such shares under the Securities Act of
1933, at its earliest convenience.
Please sign below acknowledging your acceptance of this offer.
Very truly yours,
PACIFIC INTERNATIONAL ENTERPRISES, INC.
/s/ Binks A. Graval
Binks A. Graval
President
Accepted and Agreed:
/s/ Anthony Broughton
- ------------------------------------------
Anthony Broughton, Chief Financial Officer
<PAGE>
EXHIBIT 4.4
[Woodbridge & Associates Letterhead]
January 13, 1997
VIA FASCIMILE
Binks Graval & Richard Perkins
Pacific International Enterprises, Inc.
4431 Corporate Center Dr. #131
Los Alamitos, CA 90270
Dear Gentlemen:
As you are aware, Crush is delinquent on approximately $50,000 in fees and
expenses due to Woodbridge & Associate. Pursuant to our contract, Crush would
owe Woodbridge approximately another $50,000 over the next six months. We also
have earned 500,000 options at $1 under the same contract.
We understand that Crush is using its cash flow to produce product and as a
shareholder, Woodbridge would like to help. We would be willing to convert your
debt and the next six months of future fees to equity. It is proposed that of
the 500,000 options we currently have at $1, that 250,000 be canceled and be
reissued as 250,000 shares of stock. Today's bid price of PCIE is $.37 and
250,000 shares would equal the approximate worth of our debt to us.
We feel this is a fair offer for all parties and look forward to a prompt
response. As a condtion preceding the reissue of stock to Woodbridge, Crush
would have to file an S-8 on those shares and the shares would not be subject to
any conditions or restrictions by PCIE.
I look forward to hearing from you soon on this matter.
Sincerely,
O.K. - /s/ Binks R. Graval
/s/ Bruce Berman 2-5-97
Bruce Berman /s/ Anthony Broughton
Vice President 2/11/97
<PAGE>
EXHIBIT 5.1
[Jeffers, Wilson & Shaff, LLP Letterhead]
February 25, 1997
Pacific International Enterprises, Inc.
4431 Corporate Center Drive, Suite 131
Los Alamitos, CA 90702
Re: Registration of Shares of Common Stock
--------------------------------------
Dear Sirs:
We have examined a copy of the Registration Statement on Form S-8 (the
"Registration Statement") of Pacific International Enterprises, Inc., a Nevada
corporation (the "Company"), for the registration under the Securities Act of
1933, as amended, of 492,568 shares of the Company's Common Stock (the "Shares")
issued to employess and consultants pursuant to a written agreement. We have
also examined the Articles of Incorporation of the Company, the agreement and
such other corporate records and other documents as we have deemed necessary in
order to express the opinion set forth below.
We are of the opinion that the Shares are duly authorized, validly
issued, and fully paid and nonassessable shares of Common Stock of the Company
under the laws of the State of Nevada, where the Company is incorporated.
We hereby consent to the reference to this firm under the caption
"Legal Opinion" in the Registration Statement and to the filing of this opinion,
including this consent, as an exhibit to the Registration Statement.
Very truly yours,
JEFFERS, WILSON & SHAFF, LLP
/s/ Christopher A. Wilson
___________________________________
By: Christopher A. Wilson
<PAGE>
Exhibit 25.1
POWER OF ATTORNEY
We, the undersigned directors of PACIFIC INTERNATIONAL ENTERPRISES, INC.,
do hereby constitute and appoint Bink Graval, our true and lawful attorney and
agent, to do any and all acts and things in our name and behalf in our
capacities as directors and to execute any and all instruments for us and in our
names in the capacities indicated below, which said attorney and agent may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign for us or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendments) hereof; and we do
hereby ratify and confirm all that the said attorney and agent shall do or cause
to be done by virtue hereof.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Binks Graval Director February 25, 1997
- --------------------
Binks Graval
/s/ Richard Perkins Director February 25, 1997
- ------------------------
Richard Perkins
/s/ Anthony D. Broughton Director February 25, 1997
- ------------------------
Anthony D. Broughton
</TABLE>
