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As filed with the Securities and Exchange Commission on May 30, 1996
No. 33-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PENULTIMATE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0253408
(State or other jurisdiction of (I. R. S. Employer Identification No.)
incorporation or organization)
19000 MACARTHUR BOULEVARD
SUITE 620
IRVINE, CALIFORNIA 92715
(Address of Principal Executive Office)(Zip Code)
CONSULTANT'S STOCK BONUS
(Full title of the plan)
RICHARD LULL
19000 MACARTHUR BOULEVARD
SUITE 620
IRVINE, CALIFORNIA 92715
(Name and address of agent for service)
(714) 476-6360
(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, 23,066 $3.25 $75,000 $100.00
par value $.001
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(a), estimated solely for the purpose of calculating
the registration fee.
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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
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of PenUltimate, Inc., a Delaware corporation
(the "Company") previously filed with the Commission are incorporated herein by
reference:
1. Annual Report on Form 10-KSB for the Company's fiscal year ended
June 30, 1995;
2. Quarterly Reports on Form 10-QSB for the fiscal quarters ended
September 30, 1995, December 31, 1995 and March 31, 1996, respectively;
3. Current Reports on Form 8-K dated December 21, 1995 and February
12, 1996, respectively; and
4. The description of Common Stock contained in the Company's Form
8-A dated November 19, 1993.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities 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 in the
registration statement 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, par value $.001 per share (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
The validity of the shares of Common Stock registered hereunder (the
"Plan") has been passed upon by Horwitz, Cutler & Beam.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As allowed by the Delaware General Corporation law, the Certificate 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 Delaware law. Delaware law allows a corporation to
limit or eliminate the personal liability of directors to the corporation and
its shareholders for monetary damages for breaches of a director's fiduciary
duty as a director. However, such a limitation does not affect the liability of
a
3
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director (i) for any breach of the director's duty of loyalty to the corporation
or its shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for
intentional or negligent payment of unlawful dividends or stock redemptions or,
(iv) for any transaction from which the director derived an improper personal
benefit. Additionally, the corporation may not limit or eliminate liability for
acts or omissions occurring prior to the effective date of such a provision in
the corporate certificate of incorporation. In addition, the Company's bylaws
require the Company to indemnify officers, directors and employees to the
fullest extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at sequentially numbered page 5.
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 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.
(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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
- ------- ----------- -------------
4.1 Form of Fee Agreement with Day Campbell & McGill. 7
5.1 Opinion of Horwitz, Cutler & Beam 9
23.1 Consent of Horwitz, Cutler & Beam
(included in Exhibit 5.1). --
23.2 Consent of Corbin & Wertz, Independent Certified Public
Accountants. 10
5
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SIGNATURES
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 Irvine, State of California, on May 28, 1996.
PENULTIMATE, INC.
By: /S/ RICHARD G. LULL
---------------------------------
Richard G. Lull, President, Chief Executive
Officer and Chairman
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/ RICHARD G. LULL President, Chief Executive Officer May 28, 1996
- ---------------------- and Chairman of the Board
Richard G. Lull (signed as principal executive officer
and principal accounting officer)
/S/ LARRY R. TAYLOR Secretary and Director May 28, 1996
- ----------------------
Larry R. Taylor
</TABLE>
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EXHIBIT 4.1
DAY CAMPBELL & MCGILL
3070 Bristol Street
Suite 650
Costa Mesa, California 92626
Tel: 714/556-7716
Fax: 714/556-7923
May 20, 1996
PRIVILEGED AND CONFIDENTIAL
Rich Lull
President
PenUltimate, Inc.
19000 MacArthur Blvd., Suite 620
Irvine, California 92715
Re: RETAINER OF DAY CAMPBELL & MCGILL AS LEGAL COUNSEL
Dear Rich:
The purpose of this letter is to furnish you and this firm with a
written memorandum of the terms and conditions under which Day Campbell & McGill
has been retained by and will undertake to provide legal services to
PenUltimate, Inc. (the "Company") regarding advice in connection with its
reverse acquisition of PenWare, Inc. The attorney-client relationship must be
one of mutual trust and confidence. In order to ensure this, we feel it is
important that the basis of our representation be clearly spelled out and
understood. We encourage you to feel free to discuss and raise questions about
any matters related to our representation, including billing arrangements.
Our firm and the Company have agreed to the following fee arrangement
which will be applicable to our representation of the Company this matter:
1. Our normal billing practice is to base legal fees primarily
(subject to the next paragraph) upon the amount of time devoted to a matter at
the hourly rates for the attorneys and other personnel (such as paralegal
assistants) involved in the projects. Our rates for attorneys are $265 and the
average hourly rate for paralegals is $65. On the basis of the work performed
and
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to be performed on this matter, however, we have agreed that our fees shall be
$50,000 in cash and $75,000 in stock valued at $.03 per share, such stock to be
registered on Form S-8.
2. In addition to our fees, we request that our clients defray
certain other costs and expenses which we incur during the period of their
representation. These expenses include, but are not limited to, the following:
filing fees with government offices, mileage, actual expenses away from our
office on our client's business, long-distance telephone calls, photocopying
charges, word processing fees, secretarial overtime, and the cost of producing
or reproducing any photographs, documents, or other physical items necessary for
the preparation or presentation of your matter.
In the event of a disagreement over this contract the parties
agree to submit the matter to binding arbitration before the Orange County Bar
Association.
I apologize for the formal tone of this letter, but our experience is
that a detailed engagement letter such as this promotes a better understanding
between our clients and the firm. If this letter is satisfactory to you, please
sign and return the enclosed acknowledgment copy of this letter at your earliest
convenience. Again, we are extremely pleased with the opportunity to work with
you and look forward to a rewarding relationship.
Very truly yours,
DAY CAMPBELL & McGILL
AGREED AND ACCEPTED THIS ___________ DAY OF ___________, 1996
__________________________
By:____________________
<PAGE>
[HORWITZ, CUTLER & BEAM LETTERHEAD]
May 29, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
RE: PENULTIMATE, INC.
Ladies and Gentlemen:
This office represents PenUltimate, Inc., a Delaware corporation
(the "Registrant") in connection with the Registrant's Registration
Statement on Form S-8 under the Securities Act of 1933 (the "Registration
Statement"), which relates to the issuance and sale of 23,066 shares of the
Registrant's Common Stock issuable to Day, Campbell & McGill for performance
of certain legal services (the "Shares" or the "Registered Securities").
In connection with our representation, we have examined such documents and
undertaken such further inquiry as we consider necessary for rendering the
opinion hereinafter set forth.
Based upon the foregoing, it is our opinion that the Registered
Securities, when sold as set forth in the Registration Statement, will be
legally issued, fully paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal
Matters" in the Prospectus which is a part of the Registrant's Form S-8
Registration Statement relating to the Registered Securities, and we hereby
consent to such use of our name in such Registration Statement and to the
filing of this opinion as Exhibit 5 to the Registration Statement and with
such state regulatory agencies in such states as may require such filing in
connection with the registration of the Registered Securities for offer and
sale in such states.
HORWITZ, CUTLER & BEAM
/s/ Horwitz, Cutler & Beam
<PAGE>
[CORBIN & WERTZ LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
PenUltimate, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 27, 1995, which includes an
explanatory paragraph raising substantial doubt about the Company's ability
to continue as a going concern, appearing in the Annual Report on Form 10-KSB
of PenUltimate, Inc. as of June 30, 1995 and for each of the
years in the two-year period ended June 30, 1995.
Corbin & Wertz
Irvine, California
May 29, 1996
