SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THERMO-MIZER ENVIRONMENTAL CORP.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
22-2312917
(Employer Identification No.)
960 E. Hazelwood Ave., Rahway, New Jersey 07065
(Address of principal executive offices)
Shares Issued to a Consultant
(Full title of the plan)
Steven Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(212) 448-1100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate registration
to be registered registered per share offering price fee
Common Stock, 600,000 shares $.25(1) $150,000 (1) $44.25
par value
$.001 per share
TOTAL $44.25
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1) The proposed maximum offering price and maximum aggregate offering price is
has been determined in accordance with Rule 457(c) promulgated under the
Securities Act of 1933.
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This Registration Statement, including all exhibits and attachments,
contains 19 pages. The exhibit index may be found on page 6 of the consecutively
numbered pages of the Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been granted or will be granted awards
under the Plan by Thermo-Mizer Environmental Corp., a Delaware corporation
(the"Registrant"), and are not being filed with, or included in, this
Registration Statement on Form S-8 (the "Registration Statement") in accordance
with the rules and regulations of the Securities and Exchange Commission
(the"Commission").
The Registrant has authorized the issuance of 600,000 shares of common
stock to Roy Meadows (the "Consultant") in consideration for certain consulting
services pursuant to a consulting agreement dated March 27, 1998 (the
"Consulting Agreement"), which shares are being registered pursuant to this
Registration Statement. The services to be rendered pursuant to the Consulting
Agreement in consideration for the shares of Common Stock include, but are not
limited to, publicizing and advising the Registrant in matters of business
combinations including the modification of the Registrant's debt and
identification of potential merger candidates. Pursuant to the Consulting
Agreement, the Consultant has the right to pay the Registrant, Sixty-Thousand
($60,000) Dollars, or Ten Cents ($.10) per share for 600,000 shares of the
Registrant's Common Stock. The Consulting Agreement is not subject to any
provisions of the Employee Retirement Income Security Act of 1974. In addition,
the Consulting Agreement is not qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended.
For additional information about the Plan, Jon Darcy, President of the
Registrant can be contacted at the following address and telephone number: 960
E. Hazelwood Ave., Rahway, New Jersey 07065. (201)941-5805
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent to the participant which has been granted the award by the Registrant and
are not being filed with, or included in, this Registration Statement in
accordance with the rules and regulations of the Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
1. The description of the shares of common stock, par value $.001 per
share ("the Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A filed with the Commission on October 13, 1995 (File number O-26982)
pursuant to Section 12 (g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock contained in the Registration Statement on Form SB-2
(File Number 33- 87284-NY) declared effective by the Commission on August 14,
1995.
2. The Registrant's Registration Statement on Form SB-2 (File Number
33- 87284-NY).
3. The Registrant's Annual Report on Form 10-KSB for the fiscal year
June 30, 1997 filed on September 30, 1997.
4. The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1997 filed on November 14, 1997.
5. All documents filed by the Registrant with the Commission pursuant
to Sections 13 (a), 13 (c), 14 or 15 (d) of the Exchange Act subsequent to the
date hereof and prior to the filing of a post-effective amendment, which
indicate that all securities offered have been sold or which registers all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated be reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
The description of the shares of common stock, par value $.001 per
share ("the Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A filed with the Commission on October 31, 1995 (File number O-26982)
pursuant to Section 12(g) of the Exchange Act, which incorporates by reference
the description of the shares
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of Common Stock contained in the Registration Statement on Form SB-2 (File
Number 33-87284-NY). Such shares are traded on the NASDAQ SmallCap Market under
the symbol "THMZ" and the Boston Stock Exchange under the symbol "THZ."
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed
upon for the Company by McLaughlin & Stern, LLP, New York, New York. Mr. Steven
W.
Schuster, a member of the firm, is Secretary of the Company.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation
Law, as amended (the "GCL"), which provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding is such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interest of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify such individual against the expenses that were
reasonably incurred.
Reference is also made to Section 102 (b) (7) of the GCL, which enables
a corporation in its certificate of incorporation to eliminate or limit the
personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (i) for any breach of the
director's 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 GCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which the director
derived an improper personal benefit.
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Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
3(i) * Certificate of Incorporation
3(ii) *By-Laws
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the securities
being registered.
10.20 Agreement with Roy Meadows dated March 27, 1998.
24.2 Consent of McLaughlin & Stern, LLP (included in, and incorporated by
Exhibit 5 hereto).
*Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form SB-2 (File Number 33 87284-NY).
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this 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 of 1933, as amended, 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 hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of the Registrant's annual
report pursuant to Section 13(a)
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or Section 15(d) of the Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities offered indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
Registrant of expenses incurred or paid by a director, officer or controlling
person of 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 of 1933, as amended, and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Town of Ridgefield, State of New Jersey, on this 29th
day of March, 1998.
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy
Jon J. Darcy
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Jon J. Darcy President, Chief Executive March 29, 1998
- ---------------------------
Jon J. Darcy Officer, Chief Financial Officer,
Director
/s/Edward A. Sundberg Chairman of the Board March 29, 1998
- ----------------------
Edward A. Sundberg of Directors
- ---------------------- Director
Charles J. Garay
/s/K. Ivan F. Gothner Director March 29, 1998
- ----------------------
K. Ivan F. Gothner
/s/Edward A. Heil Director March 29, 1998
Edward A. Heil
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EXHIBIT 5
McLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, New York 10016
(212) 448-1100
FAX (212) 448-0066
New Jersey Office Millbrook Office
411 Hackensack Avenue Franklin Avenue
Hackensack, NJ 07601 P.O. Box 1369
(201) 488-1105 Millbrook, NY 12545
FAX (201) 488-3679 (914) 677-5700
FAX (914) 677-0097
March 29, 1998
United States Securities & Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Thermo-Mizer Environmental Corp.
Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement"), filed with the Securities and Exchange Commission by
Thermo-Mizer Environmental Corp (the "Company").
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Certificate of Incorporation and amendments
thereto and the By-Laws of the Company, minutes of the meetings of the Board of
Directors and Shareholders and such other documents and instruments, and we have
made such examination of law as we have deemed appropriate as the basis for the
opinions hereinafter expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware.
2. The 600,000 shares of Common Stock, which are due to br sold
pursuant to the Registration Statement have been duly and validly authorized
and, when issued, will be validly issued, fully paid and non-assessable.
In addition, we hereby consent to the reference to our firm under the
caption "Interests of Named Experts and Counsel" in the prospectus forming part
of such Registration Statement and to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
McLaughlin & Stern, LLP
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 27th day of March, 1998, by and
between;
Roy Meadows
1230 Douglas Ave, suite 200
Longwood, FL 32779
Telephone (407) 786-3701
a Florida Corporation (hereinafter referred to as "RM"), and;
Thermo-Mizer Environmental, Corp.
960 E. Hazelwood Ave.
Rahway, N.J. 07065
Telephone (732) 381-8200
(hereinafter referred to as "COMPANY"), collectively RM and COMPANY
hereinafter referred to as "the parties".
WITNESSETH:
WHEREAS, RM is a business consultant with expertise in the
business of private and publicly traded companies, debt restructuring and
business combinations; and is in the business of providing similar services
to other clients; and
WHEREAS, COMPANY is publicly held with its common stock
trading on one or more stock exchanges and/or over-the-counter; and
WHEREAS, RM is willing to accept COMPANY as a client.
WHEREAS, COMPANY requires business consulting services and
desires to employ and/or retain RM to provide such services as an
independent contractor, and RM is agreeable to such a relationship and/or
arrangement, and the parties desire a written document formalizing and
defining their relationship and evidencing the terms of their agreement;
THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, it is agreed as
follows:
DEFINITIONS AND INTERPRETATIONS
COMPANY Initial _______ RM Initial ______
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1. Captions and Section Numbers
The headings and section references in this Consulting Agreement are for
convenience of reference only and do not form a part of this Consulting
Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Consulting Agreement or any provisions thereof.
2. Extended Meanings
The words "hereof", "herein", "hereunder", "hereto" and similar expressions
used in any clause, paragraph or section of this Consulting Agreement and
any Addendums and/or Exhibits attached to this Consulting Agreement will
relate to the whole of this Consulting Agreement including any attached
Addendums and/or Exhibits and not to that clause, paragraph or section
only, unless otherwise expressly provided.
3. Number and Gender
In this Consulting Agreement words importing the masculine gender include
the feminine or neuter gender and words in the singular include the plural,
and vice versa.
4. Section References and Schedules
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Consulting Agreement and any reference to a schedule,
exhibit or addendum by name, number and/or letter will mean the appropriate
schedule, exhibit or addendum attached to this Consulting Agreement and by
such reference is incorporated into and made part of this Consulting
Agreement.
AGREEMENT
5. Appointment
COMPANY hereby appoints and engages RM as its corporate consultant and
hereby retains and engages RM upon the terms and conditions of this
Consulting Agreement. RM accepts such appointment and agrees to perform the
services upon the terms and conditions of said Consulting Agreement.
6. Engagement
COMPANY engages RM to publicize the COMPANY and advise it concerning
matters of business combinations, as further described below and subject to
the further provisions of this Consulting Agreement. RM hereby accepts said
engagement and COMPANY as a client.
7. Authority and Description Of Services
During the term of this Consulting Agreement RM shall furnish various
professional services and advice as specifically requested by COMPANY. Said
professional services and advice shall relate to those services, items
and/or subjects described herein as follows:
a. RM shall act, generally, as a consultant to the COMPANY with regard
to modifying COMPANY debt and identifying potential merger candidates.
b. RM's compensation under this Consulting Agreement shall be deemed to
include the above mentioned costs and expenses, unless otherwise expressly
provided herein.
8. Term Of Agreement
This agreement shall become effective upon execution hereof and shall
continue thereafter and remain in effect for a period of one (1) year. It
is expressly acknowledged and agreed by and between the parties hereto that
RM shall not be obligated to provide any services and/or perform any work
related to this Consulting Agreement until such time any agreed and/or
specified retainer (deposit, initial fee, down-payment) in U.S. funds,
and/or other specified and/or agreed valuable consideration, has been
received by RM.
9. Where Services Shall Be Performed.
COMPANY Initial _______ RM Initial ______
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RM services shall be performed at the main office location of RM, or other
such designated location(s) as RM and COMPANY agree are the most
advantageous for the work to be performed.
10. Limitations On Services
The parties hereto recognize that certain responsibilities and obligations
are imposed by federal and state securities laws and by the applicable
rules and regulations of stock exchanges, the National Association of
Securities Dealers, in-house "due diligence" or "compliance" departments of
brokerage houses, etc. Accordingly, RM agrees as follows:
a. RM shall NOT release any financial or other information or data
about COMPANY without the consent and approval of COMPANY.
b. RM shall NOT conduct any meetings with financial analysts without
informing COMPANY in advance of any proposed meeting, the format or agenda
of such meeting and COMPANY may elect to have a representative of COMPANY
attend such meeting.
c. RM shall NOT release any information or data about COMPANY to any
selected or limited person(s), entity, or group if RM is aware that such
information or data has not been generally released or promulgated and
COMPANY requests in writing that said information or data is not to be so
released or promulgated.
d. After notice by COMPANY of filing for a proposed public offering of
securities of COMPANY, and during any period of restriction on publicity,
RM shall not engage in any consulting efforts not in the normal course
without approval of counsel for COMPANY and of counsel for the
underwriter(s), if any.
11. Duties Of Company
a. COMPANY shall supply RM, on a regular and timely basis with all
approved data and information about COMPANY, its management, its products,
and its operations and COMPANY shall be responsible for advising RM of any
facts which would affect the accuracy of any prior data and information
previously supplied to RM so that RM may take corrective action.
b. COMPANY shall promptly supply RM: with full and complete copies of
all filings with all federal and state securities agencies; with full and
complete copies of all shareholder reports and communications whether or
not prepared with the assistance of RM; with all data and information
supplied to any analyst, broker-dealer, market maker, or other member of
the financial community; and with all product/services brochures, sales
materials, etc.
c. RM reports are not intended to be used in the offering of
securities. Accordingly, clients must agree to each of the points listed
below and to indemnify RM for any breach of these representations and
covenants.
i. COMPANY is not presently engaged in a private or public
offering of securities, including S-8 or Regulation S, or including any
continuing distribution, whether or not exempt, that will not be
included prior to the issuance of a RM research report on COMPANY, and
COMPANY has no intention of making such an offering during the initial
term of this Consulting Agreement. An "evergreen" prospectus for
employee stock option and other plans will not preclude issuance of RM
research reports.
ii. COMPANY will notify RM in writing a minimum of fifteen
(15) days prior to making any private or public offering of securities,
including but not limited to S-8 filing or Regulation S.
iii.COMPANY will notify RM at least 30 days prior to any
insider selling of COMPANY's stock of which it is aware.
iv.COMPANY will not use RM reports in connection with any
offering of securities without the prior written consent of RM.
v.COMPANY will not cause to be effected any split of the
COMPANY's stock during the first four months of the term of this
AGREEMENT without the prior written consent of RM.
d. In that RM relies on information provided by COMPANY for a
substantial part of its preparations and reports, COMPANY must represent
that said information is neither false nor
COMPANY Initial _______ RM Initial ______
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misleading, and agrees to hold harmless and indemnify RM for any breach of
these representations and covenants; and COMPANY agrees to hold harmless
and indemnify RM for any claims relating to the purchase and/or sale of
COMPANY securities occurring out of, or in connection with, RM's
relationship with COMPANY, including, without limitation, reasonable
attorneys' fees and other costs arising out of any such claims.
e. In that RM, or entities affiliated with RM may hold a position in
and engage in transactions with respect to COMPANY securities, and in light
of the fact that RM imposes restrictions on such transactions to guard
against trading on the basis of material nonpublic information COMPANY
shall contemporaneously notify RM if any information or data being supplied
to RM has not been generally released or promulgated.
12. Representation And Indemnification Of Company
a. COMPANY shall be deemed to make a continuing representation of the
accuracy of any and all material facts, materials, information, and data
which it supplies to RM and the COMPANY acknowledges its awareness that RM
will rely on such continuing representation in disseminating such
information and otherwise performing, provided that RM shall not perform
any investor relations functions.
b. RM, in the absence of notice in writing from COMPANY, will rely on
the continuing accuracy of materials, information, and data supplied by
COMPANY.
c. COMPANY hereby agrees to hold harmless and indemnify RM against any
claims, demands, suits, loss, damages, etc., arising out of RM's reliance
upon the instant accuracy and continuing accuracy of such facts, materials,
information, and data, unless RM has been negligent in performing its
duties and obligations hereunder.
d. COMPANY shall cooperate fully and timely with RM to enable RM to
perform his duties and obligations under this Consulting Agreement.
e. The execution and performance of this Consulting Agreement by
COMPANY has been duly authorized by the Board of Directors of COMPANY in
accordance with applicable law, and, to the extent required, by the
requisite number of shareholders of COMPANY.
f. The performance by COMPANY of this Consulting Agreement will not
violate any applicable court decree or order, law or regulation, nor will
it violate any provision of the organizational documents and/or bylaws of
COMPANY or any contractual obligation by which COMPANY may be bound.
g. COMPANY activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and shall not
constitute acting as a securities broker or dealer under federal or state
securities laws; any contact between COMPANY and a potential investor in
COMPANY shall be such that COMPANY would be acting merely as a finder or
consultant with respect to such prospective investor obligations under this
agreement.
h. COMPANY shall promptly deliver to RM a complete due diligence
package to include latest 10KSB, latest 10QSB, last 6 months of press
releases and all other relevant materials, including but not limited to
corporate reports, brochures, etc.
i. COMPANY shall act diligently and promptly in reviewing materials
submitted to it by RM to enhance timely distribution of the materials and
shall inform RM of any inaccuracies contained therein within a reasonable
time prior to the projected or known publication date.
Representaion And Indemnification Of RM
a. The performance by RM of this Consulting Agreement will not violate
any applicable court decree or order, law or regulation, or any contractual
obligation by which RM may be bound.
RM's activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and
shall not constitute acting as a securities broker or dealer
COMPANY Initial _______ RM Initial ______
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under federal or state securities laws. Any contact between RM and
a potential investor in COMPANY shall be such that RM would be
acting merely as a finder or consultant with respect to such
prospective investor and shall be outside the scope of this
agreement.
RM's activities pursuant to this Consulting Agreement shall not be,
directly or indirectly, in connection with capital raising
activities or promotion of the Company's stock.
13. Compensation
a. Compensation payable to RM for all services hereunder, including but
not limited to acquisition and merger services, shall be paid by COMPANY to
RM by the means and in the manner or manners as described in "Addendum A",
a copy of which is attached hereto and incorporated herein by this
reference.
b. All moneys payable hereunder shall be in U.S. funds and drawn on
U.S. banks. c. For all special services, not within the scope of this
Consulting Agreement, COMPANY shall
pay to RM such fee(s) as, and when, the parties shall determine in advance
of performance of said special services, provided COMPANY has agreed to
said special services.
14. Billing And Payment
Monthly fees or payments shall be due and payable without billing. Billing
and payments for special services shall be as agreed on a case by case
basis. COMPANY acknowledges and agrees that deposits, initial payments,
down payments, partial payments, payments for special services, monthly
fees or monthly payments shall be by wire to RM's bank account upon
execution of any agreement or agreements, or; upon payment due date in the
case of monthly fees or monthly payments, or; in the case of special
services by the first day of the preceding month that work is scheduled to
be performed, unless expressly provided otherwise in writing, and that if
such funds are not received by RM by said date COMPANY shall pay to RM an
additional operations charge equal to 1% for each day said funds are not
received.
15. RM As An Independent Contractor
RM shall provide said services as an independent contractor, and not as an
employee of COMPANY or of any company affiliated with COMPANY. RM has no
authority to bind COMPANY or any affiliate of COMPANY to any legal action,
contract, agreement, or purchase, and such action can not be construed to
be made in good faith or with the acceptance of COMPANY; thereby becoming
the sole responsibility of RM. RM is not entitled to any medical coverage,
life insurance, savings plans, health insurance, or any and all other
benefits afforded COMPANY employees. RM shall be solely responsible for any
Federal, State, or Local Taxes, and should COMPANY for any reason be
required to pay taxes at a later date, RM shall reassure such payment is
made by RM, and not by COMPANY. RM shall be responsible for all workers
compensation payments and herein holds COMPANY harmless for any and all
such payments and responsibilities related hereto.
16. RM Not To Engage In Conflicting Activities
During the term of this agreement RM shall not engage in any activities
that directly conflicts with the interests of COMPANY. COMPANY hereby
acknowledges notification by RM and understands that RM does, and shall,
represent and service other and multiple clients in the same manner as it
does COMPANY, and that COMPANY is not an exclusive client of RM.
17. Trade Secrets And Inventions
RM shall treat as proprietary any and all information belonging to COMPANY,
it's affiliates, or any third parties, disclosed to RM in the course of the
performance of RM services. RM assigns and agrees to assign to COMPANY or
its nominee all rights in invention and other proprietary information
COMPANY Initial _______ RM Initial ______
<PAGE>
conceived by RM during the term of this agreement with respect to any work
performed under said agreement.
18. Inside Information -- Securities Violations
In the course of the performance of this agreement it is expected that
specific sensitive information concerning the operations of COMPANY's
business, and/or affiliate companies shall come to the attention and
knowledge of RM. In such event RM will not divulge, discuss, or otherwise
reveal such information to any third parties.
19. Disclosure
RM is required to disclose any outside activities or interests, including
ownership or participation in the development of prior inventions, that
conflict or may conflict with the best interests of COMPANY. It is mutually
understood that prompt disclosure is required under this paragraph if the
activity or interest is related, directly or indirectly, to any activity
that RM may be involved with on behalf of COMPANY.
20. Warranty Against Contemplation of Agreement Related Corrupt Practices
RM represents and warrants that all payments and other valuable
considerations paid or to be paid under this agreement constitutes
compensation for services rendered; that this agreement and all payments
and other valuable considerations and the use of those payments and
valuable considerations are non-political in nature; and that said payments
and valuable considerations do not influence, sway or bribe any government
or municipal party, either domestic or foreign, in any way.
21. Amendments
This agreement may be modified or amended, provided such modifications or
amendments are mutually agreed upon by and between the parties hereto and
that said modifications or amendments are made in writing and signed by
both parties.
22. Severability
If any provision of this agreement shall be held to be contrary to law,
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision
of this agreement is contrary to law, invalid or unenforceable, and that by
limiting such provision it would become valid and enforceable, then such
provision shall be deemed to be written, construed, and enforced as so
limited.
23. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior to
the expiration of the term provided in Paragraph 8 above except as follows:
a. Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary; b. Upon the other party taking the benefit of
any insolvency law; and/or c. Upon the other party having or applying
for a receiver appointed for either party.
d. As provided for in Paragraph 28 below.
24. Attorney Fees
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover
all costs incurred as a result of such default including all costs,
reasonable attorney fees, expenses and court costs through trial, appeal
and to final disposition.
25. Return Of Records
Upon termination of this agreement, RM shall deliver all records, notes,
data, memorandum, models and equipment of any nature that are in the
control of RM that are the property of or relate to the business of
COMPANY.
COMPANY Initial _______ RM Initial ______
<PAGE>
26.Non-waiver
The failure of either party, at any time, to require any such performance
by any other party shall not be constructed as a waiver of such right to
require such performance, and shall in no way affect such party's right to
require such performance and shall in no way affect such party's right
subsequently to require full performance hereunder.
27. Disclaimer By RM
RM shall be the preparer of certain promotional materials, and; RM makes no
representation to COMPANY or others that; (a) its efforts or services will
result in any enhancement to COMPANY (b) the price of COMPANY'S publicly
traded securities will increase (c) any person will purchase COMPANY's
securities, or (d) any investor will lend money to and/or or invest in or
with COMPANY. RM shall not, directly or indirectly, engage in efforts
regarding (b), (c ) or (d) in connection with its services under this
agreement.
28. Early Termination
In the event COMPANY fails or refuses to cooperate with RM, or fails or
refuses to make timely payment of the compensation set forth above and/or
in Addendum "A", RM shall have the right to terminate any further
performance under this agreement. In such event, and upon notification
thereof, all compensation shall become immediately due and payable and/or
deliverable, and RM shall be entitled to receive and retain the same as
liquidated damages and not as a penalty, in lieu of all other remedies the
parties hereby acknowledge and agree that it would be too difficult current
ly to determine the exact extent of RM's damages, but that the receipt and
retention of such compensation is a reasonable present estimate of such
damage.
29. Limitation Of RM Liability
In the event RM fails to perform his work or services hereunder, his entire
liability to COMPANY shall not exceed the lesser of; (a) the amount of cash
compensation RM has received from COMPANY under Paragraph 13 above (b) the
amount of cash compensation RM has received from COMPANY under Addendum
"A", or (c) the actual damage to COMPANY as result of such non-performance.
In no event shall RM be liable to COMPANY for any indirect, special or
consequential damages, nor for any claim against COMPANY by any person or
entity arising from or in any way related to this agreement.
30. Ownership Of Materials
All right, title and interest in and to materials to be produced by RM in
connection with this Consulting Agreement and other services to be rendered
under said agreement shall be and remain the sole and exclusive property of
RM, except in the event COMPANY performs fully and timely its obligations
hereunder, COMPANY shall be entitled to receive upon written request, one
(1) copy of all such materials.
31. Agreement Not To Hire
COMPANY understands and appreciates that RM invested a tremendous amount of
time, energy and expertise in the training of his employees and education
of his sub contractors to be able to provide the very services COMPANY
desires. COMPANY further understands that in the event an employee or sub
contractor of RM is enticed to leave, then RM shall be damaged in an amount
the parties are incapable of calculating at the present time. Therefore,
COMPANY agrees not to offer employment or sub contractor status to any
employee or sub contractor of RM, nor to allow any employee, officer,
director, shareholder or consultant of COMPANY to offer such employment or
sub contractor status with COMPANY or any other company, concern, venture
or entity with whom officers, directors or consultants of COMPANY are
employed, associated or hold a financial stake in for a period of three (3)
years from the date of expiration or termination hereof. Further, in the
event an employee or sub contractor of RM leaves the employ of or dissolves
or breaks association with RM and subsequently establishes employment or an
association of any kind with another business consultant or other type of
competition of RM, COMPANY agrees not to do business with such other
business consultant or
COMPANY Initial _______ RM Initial ______
<PAGE>
competition of RM for a period of three (3) years from the date of
expiration or termination hereof.
32. Miscellaneous
a. Effective date of representations shall be no later than the date of
execution by the parties of this Consulting Agreement.
b. Currency: In all instances, references to dollars shall be deemed to
be United States Dollars. c. Stock: In all instances, references to
stock shall be deemed to be unrestricted and free trading.
33. Notices
All notices hereunder shall be in writing and addressed to the party at the
address herein set forth, or at such other address which notice pursuant to
this section may be given, and shall be given by either personal delivery,
certified mail, express mail or other national overnight courier services.
Notices shall be deemed given upon the earlier of actual receipt or three
(3) business days after being mailed or delivered to such courier service.
Any notices to be given hereunder shall be effective if executed by and
sent by the attorneys for the parties giving such notice, and in connection
therewith the parties and their respective counsel agree that in giving
such notice such counsel may communicate directly in writing with such
parties to the extent necessary to give such notice. Any notice required or
permitted by this agreement to be given shall be given to the respective
parties at the address first written above, on page one (1) of this
consulting agreement.
34. Parent and Subsidiary Companies or Entities
This Consulting Agreement applies to all parent or subsidiary companies or
entities of COMPANY.
35. Exclusion With Respect To Partnership
The parties agree that, in no way, shall this Consulting Agreement be
construed as being an act of partnership between the parties hereto and
that no party hereto shall have, as a result of the execution of this
Consulting Agreement, any liability for the commitments of any other party
of any type, kind or sort.
36. Reasonable Expense Reimbursement
In the course of RM providing services as neccessary hereunder, on the
behalf of or for COMPANY during the term of this Consulting Agreement,
COMPANY shall pay to, or reimburse, RM for any expenses incurred by RM that
are not specifically described elsewhere herein, provided that COMPANY has
been notified in advance by RM and approves of the nature and the cost of
any such required expense and the amount of compensation and/or
reimbursement related thereto. Expenses shall be deemed to include, but not
be limited to, all costs related to the dissemination of press releases,
overnight delivery services, compensation to third party vendors,
transportation expenses, hotel expenses, airline fares, taxi fares, toll
road fees, reasonable food expenses and reasonable gratuities related
thereto. COMPANY shall have the right to book airline reservations, hotels,
etc. itself on behalf of RM within five (5) days upon notice for the
requirement thereof from RM.
37. Time Is Of The Essence
Time is hereby expressly made of the essence of this Consulting Agreement
with respect to the performance by the parties of their respective
obligations hereunder.
38. Enurement
This Consulting Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors, assigns and any addenda's attached
hereto.
39.Entire Agreement
This Consulting Agreement contains the entire agreement of the parties and
may be modified or
COMPANY Initial _______ RM Initial ______
<PAGE>
amended only by agreement in writing, signed by the party against whom
enforcement of any waiver, change, amendment, modification, extension or
discharge is sought. It is declared by both parties that there are no oral
or other agreements or understanding between them affecting this Consulting
Agreement, or relating to the business of RM. This agreement supersedes all
previous agreements between RM and COMPANY.
40. Applicable Law
This Agreement is executed pursuant to and shall be interpreted and
governed for all purposes by the laws of the State of Florida for which the
Courts in Seminole County, Florida shall have jurisdiction. If any
provision of this Consulting Agreement is declared void, such provision
shall be deemed severed from this agreement, which shall otherwise remain
in full force and effect.
41. Acceptance by RM
This Consulting Agreement is not valid or binding upon RM unless and until
executed by RM at his home office in Longwood, Florida.
42. Execution In Counterpart; Telecopy-Fax
This Consulting Agreement may be executed in counterparts, not withstanding
the date or dates upon which this Consulting Agreement is executed and
delivered by any of the parties, and shall be deemed to be an original and
all of which will constitute one and the same agreement, effective as of
the reference date first written above. The fully executed telecopy (fax)
version of this Consulting Agreement shall be construed by all parties
hereto as an original version of said Consulting Agreement.
43. Disclaimer
RM is in the business of advising in mergers and acquisitions and marketing
the Company's products, as previously stated above, and in no way proclaims
to be an investment advisor and/or stock or securities broker. RM is not
licensed as a stock or securities broker and is not in the business of
selling such stocks or securities or advising as to the investment
viability or worth of such stocks or securities.
IN WITNESS WHEREOF, the parties hereto have set their hands in
execution of this agreement.
For and in behalf of; COMPANY: For and in behalf of; RM:
By /s/ Jon J. Darcy By /s/ Roy Meadows
Roy Meadows
Title President
COMPANY Initial _______ RM Initial ______
<PAGE>
Consulting Agreement
Addendum "A"
(A.) COMPANY acknowledges and agrees RM shall not provide or contiue to
provide services until all such fees are paid. COMPANY acknowledges
that it has verified with its corporate council, accountants, corporate
officers, board of directors, executive decision makers, and
appropriate stock exhcanges that said stock can, in fact, be timely
delivered to RM as agreed.
(B.) Upon acceptance of this Agreement, COMPANY agrees to prepare and
file for RM a registration statement (on form S-8 or other similar
registration) for 600,000 shares of COMPANY comon stock for which RM
will pay COMPANY $60,000 (sixty-thousand) dollars or .10 per share.
COMPANY agrees to file said statement no later than five (5) business
days from the date below. Payment for such shares shall be made in a
timely fashion upon filing of the registration statement.
For and in Behalf of COMPANY; For and in Behalf of RM;
/s/ Jon J. Darcy
Roy Meadows
President
Title
March 27, 1998
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Date Date
COMPANY Initial _______ RM Initial ______
<PAGE>
