To Become Effective Upon Filing
Pursuant to Rule 462
As Filed With The U.S. Securities and Exchange Commission
Registration No.
Securities and Exchange Commission
Washington D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
Play Co Toys & Entertainment Corp.
(Exact name of issuer as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Delaware 95-3024222
State of Incorporation (I.R.S. Employer Identification No)
</TABLE>
550 Rancheros Drive San Marcos CA 92069
(Address of Principal Executive Offices)
Consultinq Agreement
(Full Title of the Plan)
Richard Brady, President
C/O Play Co Toys & Entertainment Corp,
550 Rancheros Drive San Marcos C,I, 92069
(Name and Address of Agent For Service)
(760)471-4505
(Telephone Number, including area code of agent of service)
Approximate Date of Commencement of Proposed sales under the Plan: as soon
as practicable after this Registration Statement becomes effective
Total Number of Pages: 22
Exhibit Index begins sequentially on Numbered page: 11
<PAGE>
Calculation of the Registration Fees
<TABLE>
<CAPTION>
Title of Securities Amount Proposed Proposed Amount
To Be Registered To Be Maximum Maximum Of Registration
Registered Offering Aggregate Fee
Price Per Offering
Share Price (.0003448)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Shares of common
Stock .01 par value 30,000 $.20 $6000.00 $2.06
Shares of Series E
Preferred Stock.01
par value per share
underlying an option 10,000 $2.00 $20,000
10,000 $2.25 $22,500
10,000 $2.50 $25,000
10,000 $2.75 $27,500
10,000 $3.00 $30,000
10,000 $3.25 $32,500
10,000 $3.50 $35,000
10,000 $4.00 $40,000
10,000 $4.50 $45,000
10,000 $5.00 $50,000
10,000 $5.50 $55,000
10,000 $6.00 $60,000
--------
$496,875 $168.09
Warrants to purchase
Series E Preferred stock 50,000 $0.75 $37,500 $ 12.93
-------- --------
TOTAL 540,375 $183.08
</TABLE>
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION I O(A) PROSPECTUS
Item 1. Plan Information
(See attached exhibit number four.)
Item 2. Registrant Information and Employee Plan Annual Information
Not Applicable.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
There are incorporated herein by reference the following documents:
a. Play Co. Toys & Entertainment Corp. (the "Company") latest annual report
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") which contains, either directly or by incorporation by,
reference, certified financial statements for the Company's latest fiscal year
for which statements have been filed.
b. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in Item 3a above.
c. The description of the Company's common stock contained in the Company's
Registration Statement under Section 12 of the Exchange Act, if any, including
any amendment or report filed for the purpose of updating such description.
d. All reports subsequently filed by the Company pursuant to the Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and to be part hereof from the date of
filing of such documents.
Item 4. Description of Securities
The Company has authorized 40,000,000 shares of common stock, par value
$.0l ("Common Stock"), and 10,000,000 shares of Series E Preferred Stock, $.01
par value. No dividend or voting rights are attached and the Preferred has a
$1.00 liquidation preference.
Holders of the Company's Common Stock are entitled to one vote per share on
each matter submitted to a vote of stockholders. Shares of Common Stock do not
carry cumulative voting rights and therefore, holders of the majority of the
outstanding shares of Common Stock are able to elect the entire board of
directors and, if they do so, minority stockholders would not be able to elect
any members to the board of directors. The Warrant entitles the holder thereof
to purchase one share of Series E stock at a price of $5.00 for a period of four
years commencing one year from the closing date.
The Company's board of directors has authority, without action by the
Company's stockholders, to issue all or any portion of the authorized but
unissued shares of Common Stock, which, if done, would reduce the existing
stockholder's percentage ownership of the Company and may dilute the book value
of the Common Stock.
Stockholders of the Company have no preemptive rights to acquire additional
shares of Common Stock. The Common Stock is not subject to redemption, carries
no subscription or conversion rights.
In the event of liquidation of the Company, the holders of the Common Stock
are entitled to share equally in corporate assets after satisfaction of all
liabilities and priority payment to the Preferred shareholders.
<PAGE>
Holders of Common Stock are entitled to receive such dividends as the board
of directors may from time to time declare out of funds legally available for
the payment of dividends.
During the last two fiscal years the Company has not paid cash dividends on
its Common Stock and does not anticipate that it will pay cash dividends in the
foreseeable future.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company's Charter, By-Laws and Delaware General Corporation Law
indemnify all persons so identified as being covered including officers and
directors, from personal liability as described below:
The Company=s Certificate Of Incorporation provides that its officers and
directors (and others) are entitled to indemnification from the Company to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law,
as amended from time to time.
INTENTIONALLY LEFT BLANK
b. Further, the Company=s Certificate Of Incorporation provides that the
Company=s directors shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (i) for any breach of the directors duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the General Corporation Law of the State of Delaware; or (iv) for
any transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware shall hereafter be amended
so as to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Company, in addition to the
limitation on personal liability provided herein shall be limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as
then amended.
INSOFAR AS INDEMNIECATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT
OF 1933 MAY BE PERMTTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING THE
COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE COMPANY HAS BEEN INFORMED THAT
IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION, SUCH INDEMNIFICATION
IS AGAINST PUBLIC POLICY AS EXPRESSED TN THE ACT IS THEREFORE UNENFORCEABLE.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit 4 Consulting Agreement
Exhibit 5 Opinion of Alan Berkun, Esq.
Exhibit 23 Consent of Alan Berkun, Esq.*
Exhibit 23.1 Consentof Haskell & White LLP
* Contained in opinion of Alan Berkun, Esq.
Item 9. Undertakings
a. The undersigned registrant hereby undertakes:
<PAGE>
i. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement; (1) To include any prospectus required by Section
10(a) of the Securities Act of 1933 (the "Securities Act");
(2) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the Registration Statement; (3)
To include any additional or changed material information on
the plan of distribution. Provided, however, that Paragraphs
a. i. (1) and a. i. (2) do not apply if the Registration
Statement is on Form S - 8, and the information required to
be included in a post-effective amendment is incorporated by
reference from periodic reports filed by the small business
issuer under the Exchange Act. ii. That, for determining
liability under the Securities Act, treat each
post-effective amendment as a new registration statement of
the securities offered, and the offering of the securities
at that time to be the initial bona fide offering. To file a
post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the
offering.
b. That if the small business issuer will offer the securities to existing
security holders under warrants and rights and the small business issuer will
reoffer to the public any securities not taken by security holders, with any
modifications that suit the particular case. The small business issuer will
supplement the prospectus after the end of the subscription period, to include
the results of the subscription offer, the transactions by the underwriters
during the subscription period, the amount of the unsubscribed securities that
the underwriters will purchase and the terms of any later reoffering. If the
underwriters make any public offering of the securities on terms different from
those on the coverage page of the prospectus, small business issue will file a
post-effective amendment to state the terms of such offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 San Marcos, California on this 25th day of March, 1998.
By:/s/ RICH BRADY
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement of Play Co. Toys & Entertainment Corp. has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title(s) Date
<S> <C> <C>
/s/Richard Brady President/CEO/Director 3/25/98
/s/James Frakes Chief Financial Officer 3/25/98
Secretary/Director
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBERS ITEM
<S> <C>
4 Consulting Agreement
5 Opinion of Alan Berkun, Esq.
23 Consent of Alan Berkun, Esq. *
23.1 Consent of Haskell & White LLP
* Contained in opinion of Alan Berkun, Esq.
</TABLE>
<PAGE>
EXHIBIT 4
<PAGE>
CONSULTING AGREEMFNT
This Consulting Agreement ("Agreement') is made between C. Jones & Company,
Inc. ("CJC"), a Nevada corporation and, Play Co. Toys & Entertainment Corp.
("Client"), a Delaware corporation, with respect to the following:
RECITALS
WHEREAS, CJC is in the business of providing investor and public
relations and general business consulting services to privately held and
publicly held corporations, and
WHEREAS, Client is in the business selling retail toys primarily in
Southern California and wishes to retain the services of CJC.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises made by CJC and
Client, and the terms and conditions hereafter set forth, the receipt and
adequacy of such consideration being mutually acknowledged, CJC and Client agree
to the following:
1. Terms of this Consulting Agreement:
A. Term: The initial term shall be for the period of one year ("Initial
Term") from the date herein, subject to Section E below.
B. Consulting Services: As a public and investor relations company which
incorporates a variety of programs, techniques, and tools, CJC will provide
general assistance to Client, on a non-exclusive basis, in the area of public
and investor relations, including without limitation: (i) introducing,
initiating, and engaging in the process of facilitating relationships between
the Company and the investment community; (ii) preparing and disseminating
public information regarding the Client to inform the investment community of
the Client's developing operations; and (iii) promoting coverage of the client
and its operations with respect to the initial and periodic research analysis
reports of reputable investment firms.
C. Consideration: In consideration for the services to be performed on
behalf of Client by CJC, Client shall compensate CJC as follows:
1. On the date and at the time of the signing of this
Agreement, Client shall issue to CJC an option to purchase
30,000 shares of its Common Stock, par value $.0l, at $.20
per share.
2. CJC shall have an option to purchase an aggregate of
120,000 shares; of the Series E Preferred Stock, par value
$.0l, from the Company, at the following exercise prices:
10,000 shares at $2.00
10,000 shares at $2.25
10,000 shares at $2.50
10,000 shares at $2.75
10,000 shares at $3.00
10,000 shares at $3.25
10,000 shares at $3.50
10,000 shares at $4.00
10,000 shares at $4.50
10,000 shares at $5.00
10,000 shares at $5.50
10,000 shares at $6.00
3. CJC shall have an option to purchase 50,000 warrants
to purchase shares of Client's Series E Preferred Stock, the
same warrants that are traded on the OTC Bulletin Board, at
an exercise price of $.75 per warrant.
<PAGE>
4. The Company agrees to file a registration statement
on Form S-8 to register the resale of the securities
referenced in subparagraphs (1)-(3) above.
Expenses: Unless otherwise agreed to in writing, each party shall be
responsible for its own costs with regard to the terms and conditions set forth
in this Agreement.
E. Extensions, Renewals, Earlier Termination: This Agreement may be
extended on a month-to-month basis by mutual agreement of the parties, following
a mutually negotiated, written amendment to this Agreement specifying the new
time period ("Extension Period"), terms of the Amendment, and CJC's compensation
for the Extension Period. Notice of the mutually agreed extension amendment must
comply with Section F. The Client may terminate the agreement at any time on
five days written notice to CJC. Upon termination of this Agreement, the options
shall become null and void.
F. Official Notices: All official communications or legal notices shall be
deemed given when in writing and sent by registered or certified mail, charges
prepaid, addressed to the respective party at the postal address or other
addressees) as each party may hereafter designate in writing, or when sent by
facsimile transmission. The present addresses of the parties are as follows:
C. Jones & Company, Inc.
6977 E. Chestnut Hill St.
Highlands Ranch, CO 80126
303-470-8783 (phone)
303-470-3312 (fax)
Attn: C. Allen Jones
AND
Play Co. Toys & Entertainment Corp.
550 Rancheros Drive
San Marcos, CA 92069
760-471-4505 (phone)
Attn: Richard Brady
2. Confidentiality of Proprietary Information:
A. Confidential Information:
1. 'Confidential Information' means any proprietary information,
technical data, or know-how disclosed to CJC by Client, either directly or
indirectly, in writing, orally, by drawing, or by inspection or other
tangible items. Confidential Information shall include, without limitation,
all intellectual property; business relationships and plans; product
research; and financial projections and plans of Client disclosed to or
discussed with CJC.
2. CJC agrees not to use any of Client's or any of its parent or
subsidiary companies' confidential information for its own uses or for any
purpose except to carry out discussions or a business understanding between
Client and CJC.
3. CJC agrees not to disclose any of Clients confidential information
to any third party and further agrees to take all reasonable measures to
protect the secrecy of and avoid disclosure of confidential information.
4. CJC acknowledges that nothing contained in this Agreement will be
construed as granting any rights, by license or other otherwise, to any of
Client's or its parent or subsidiary companies' confidential information.
5. Client agrees to be bound by all of the above terms contained in
this Section with regards to CJC's confidential and proprietary information
that may be obtained in the course of this Agreement.
<PAGE>
B. Limitation of Liability for Non-Party Disclosures: Neither party shall
have any liability to the other party with respect to the use or disclosure to
others not party to this Agreement, of such information, which:
1. Has been publicly known;
2. Has become publicly known, without fault on the part of CJC,
subsequent to disclosure by Client of such information to CJC;
3. Has been otherwise known by CJC prior to communication by Client to
CJC of such information; or
4. Has been received by CJC at any time from a source (other than
Client) lawfully possessing of such information.
The receiving party is responsible for proving 1-4 above.
C. Unauthorized Use: Both parties agree that any unauthorized use of any
proprietary information, whether accidental or otherwise, shall be construed as
intentional and shall be considered a breach of this Agreement.
3. Non-Exclusivity: Nothing herein shall prevent Client from engaging or
utilizing other individuals or entities to provide services similar to those
required of CJC herein; nor shall anything herein limit Client's obligations
arising under any other agreement or understanding.
4. Arbitration: All disputes that cannot be settled between the parties
together under this Agreement shall be settled by arbitration in accordance with
the rules of the American Arbitration Association then controlling.
5. Controlling Laws of Agreement:
A. Best Efforts Basis: CJC agrees that it will at all times faithfully, to
the best of its experience, ability, and talents, perform all duties that may be
required of and from CJC pursuant to the terms of this Agreement. CJC does not
guarantee that its efforts will have any impact on Client's business or that any
subsequent financial improvement will result from CJC's efforts. Client
understands and acknowledges that the success or failure of CIC's efforts will
be predicated on Client's assets and operating results.
B. Binding Law: This Agreement shall be subject to au valid applicable
laws, rules, and regulations of the State of California and of the United
States. In the event that this Agreement, any of its provisions, or its outlined
operations are found to be inconsistent with or contrary to any such laws,
rules, or regulations, the latter shall control. Furthermore, if commercially
practicable, this Agreement shall be considered modified accordingly and shall
continue in full force and effect as so modified.
1. Both parties reserve the right to meet within a reasonable time and
discuss any necessary amendments or modifications should the modified
Agreement not be commercially practicable in the opinion of either party=s
legal counsel.
2. In the event of litigation or other dispute resolution, this
Agreement shall be controlled by the laws of the State of California.
3. Any disputes, differences, or controversies shall be heard in the
venue of the State of California, in Orange County
C. Entire Agreement: This Agreement shall constitute the entire Agreement
between the parties unless modified by written amendment signed by all of the
parties or their successors in interest. There are no other agreements,
undertakings, restrictions, representations, or warranties among the parties
other than those described and provided for in this Agreement and expressly
signed by the parties herein.
<PAGE>
D. Waiver: Client agrees that failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
that provision or provisions; nor shall such failure prevent either party from
thereafter enforcing each and every provision of this Agreement.
6. Due Diligence: The parties herein agree to cooperate with each other
concerning reasonable requests with respect to pursuing proper and necessary due
diligence.
7. Parties Representations: Client represents to CJC and CJC represents to
Client that each of the following is true and complete as of the date of this
Agreement:
A. Client and CJC are corporations organized, validly existing, and in good
standing under the laws of the state(s) of their incorporations, with full
corporate power and authority and all necessary governmental authorization to
own, lease, and operate property and carry on their businesses as they are now
being conducted. Client and CJC are qualified to do business in and are in good
standing in every jurisdiction in which the nature of their businesses or the
properties owned or leased by them makes such qualifications necessary.
8. CJC is not an Agent or Employee of Client: CJC's obligations under this
Agreement consist solely of the services previously described. In no event shall
CJC be considered to act as an employee or agent of Client or otherwise
represent or bind Client. For the purposes of this Agreement, CJC is an
independent contractor. All final decisions with respect to Acts of Client,
whether or not made pursuant to or in reliance on information or advice
furnished by CJC in this Agreement, shall be made by Client. CJC's employees or
agents shall under no circumstances be liable for any expenses incurred or
losses suffered by Client as a consequence of such action or decisions.
9. Attorney's Fees: In the event that any court proceeding or dispute
resolution procedure is brought under or in connection with this Agreement, the
prevailing party in such proceeding (whether on trial or on appeal) shall be
entitled to recover from the other party all costs, expenses, and reasonable
attorneys' fees incidental to such legal action. The term Aprevailing party@ as
defined in this Agreement shall mean the party in whose favor a final judgment
or award on the merits is entered. The prevailing party may apply to the court
or the person(s) or board in charge of the proceeding, for an award of costs,
expenses, and reasonable attorneys' fees.
10. Facsimile Counterparts: If a party signs this Agreement and transmits
an electronic facsimile of the signature page to the other party, the party who
receives the transmission may rely upon the electronic facsimile as a signed
original of this Agreement. Further, this Agreement may be executed in
counterparts.
AGREED TO this 25th day of March, 1998.
Jones & Company, Inc. Play Co. Toys & Entertainment Corp.
/s/ /s/
Name: C. Allen Jones Name: Richard Brady
Title: Title: President
EXHIBIT 5
<PAGE>
ALAN M. BERKUN
ATTORNEY AT LAW
8 3 ARNOLD COURT B EAST ROCKAWAY, N.Y. 1151 8
TELEPHONE (516) 231-3455
LONG ISLAND OFFICE
1300 VETERANS MEMORIAL HIGHWAY - SUITE 300
HAUPPAUGE, N.Y. 11788
TELEPHONE (516) 231-3311
3-28-1998
Play Co Toys & Entertainment Corp.
550 Rancheros Drive
San Marcos, CA 92069
Gentlemen:
I have acted as your counsel in connection with a Registration Statement on Form
S-8 filed with the Securities and Exchange Commission under the Securities Act
of 1933 (the Registration Statement) with respect to an aggregate of 30,000
Common shares 120,000 Series E Preferred common shares and 50,000 purchase
warrants.
I have examined such originals or certified, conformed or photo-static copies,
the authenticity of which we have assumed, of certificates of public officials
and your' corporate directors and other documents, certificates, records,
authorizations and proceedings as I have deemed relevant and necessary as the
basis for the opinion expressed herein. In all such examinations, I have assumed
the genuineness of all signatures on all original and certified documents and
all copies submitted to me as conformed or photo static copies.
Based on the foregoing, I am of the opinion that the securities referred to
herein when sold, as set forth in the Registration Statement will be legally
issued, fully paid and non-assessable.
I hereby consent to the filing of my opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Alan M. Berkun, Esq.
EXHIBIT 23.1
<PAGE>
Haskell& White LLP
CERTIFIED PUBLIC ACCOUNTANTS
4901 Birch Street
Newport Beach, California 92660
Telephone (714) 833-8312
Fax (714) 833-9421
Internet: vww..hwcpa.com
CONSENT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Play Co. Toys & Entertainment Corp. on Form S-8 of our report dated May 13,
1997, except for the last two sections of Note 15 which are as of June 10, 1997,
and the last paragraph of Note 9 which is as of June 20, 1997 appearing in the
Annual Report on Form 10-KSB of Play Co. Toys & Entertainment Corp. for the year
ended March 31, 1997.
/s/ HASKELL & WHITE LLP
Newport Beach, California
March 27, 1998
