U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Pacific Development Corporation
-------------------------------
(Exact name of registrant as specified in its charter)
Colorado 13-2932511
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(State or other jurisdiction of (I.R.S. Employer I.D. No.)
incorporation or organization)
John Vornle Consulting Agreement
(Full Title of Plan)
Glenn A. Little, 211 West Wall Street, Midland, Texas 79701
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(Name and Address of Agent for Service)
(915) 682-1761
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered (1) Share Price Fee(2)
- --------------------------------------------------------------------------------
Common Stock 227,717 $.155 $35,296.14 $9.32
(1) Pursuant to Rule 416(c) promulgated under the Securities Act of 1933, as
amended, the Registration Statement also covers an indeterminate amount of
shares to be offered or sold as a result of any adjustments from stock
splits, stock dividends or similar events.
(2) Based on the projected book value per share of the Company's common stock.
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PROSPECTUS
Pacific Development Corporation
211 West Wall Street
Midland, Texas 79701
(277,717 SHARES OF COMMON STOCK)
This Prospectus relates to the offer and sale of Pacific Development
Corporation, a Colorado corporation (the "Company") of shares of its $.001 par
value common stock (the "Common Stock) to a consultant of the Company (the
"Consultant") pursuant to an agreement entered into between the Company and the
Consultant. The Company is registering hereunder, and then issuing upon receipt
of adequate consideration therefor to the Consultant 277,717 shares of the
Common Stock in consideration for services rendered and to be rendered under the
agreement.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are affiliates of the Company within
the meaning of the Securities Act of 1933 (the Act) may sell all or part of the
shares in any way permitted by law including sales in the over-the-counter
market at prices prevailing at the time of such sale. None of the shares
registered hereunder are being sold to anyone who is an affiliate of the
Company. An affiliate is, summarily, any director, executive officer or
controlling shareholder of the Company. The affiliates of the Company may become
subject to Section 16(b) of the Securities Exchange Act of 1934 as amended (the
Exchange Act) which would limit their discretion in transferring the shares
acquired in the Company. If the Consultant who is not now an affiliate becomes
an affiliate of the Company in the future, it would then be subject to Section
16 (b) of the Exchange Act (See General Information -- Restrictions on Resale).
The Common Stock is Listed on the OTC bulletin board under the symbol PDVC.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Date of this Prospectus is January 24, 2000
This Prospectus is not part of any Registration Statement which was filed
and been effective under the Securities Act of 1933 as amended (the Securities
Act) and does not contain all of the information set forth in the Registration
Statement, certain portions of which have seen offered pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act. The statements in this Prospectus as to
the contents of any contracts or other documents filed as an exhibit to either
the Registration Statement or other filings of the Company with the Commission
are qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: Pacific Development
Corporation, 211 West Wall Street, Midland, Texas 79701.
The Company is subject to the reporting requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. These reports as well as the proxy statements information statements
and other information filed by the Company under the Exchange Act may be
reviewed and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street N.C. Washington, D. C 20549. Copies may be
obtained at the prescribed rates. In addition the Common Stock is quoted on the
automated quotation system maintained by the National Association of Securities
Dealers, Inc. (NASD). Thus, copies of these reports, proxy statements,
information statements and other information may also be examined at the offices
of the NASD at 1735 K Street N.W. Washington, DC 20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to any one to whom it is
unlawful to make an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall
under any circumstances create any implication that there has not been a change
in the affairs of the Company since the date hereof.
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TABLE OF CONTENTS
Page
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PART I 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 1
ITEM 1. PLAN INFORMATION 1
GENERAL INFORMATION 1
The Company 1
Purpose 1
Common Stock 1
The Consultant 1
No Restrictions on Transfer 1
Tax Treatment to the Consultant 1
Restrictions on Resale 2
DOCUMENTS INCORPORATED BY REFERENCE & ADDITIONAL INFORMATION 2
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION 2
Legal Opinion and Experts 2
Indemnification of Officers and Directors 3
PART II 3
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 3
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE 3
ITEM 4. DESCRIPTION OF SECURITIES 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED 9
ITEM 8. EXHIBITS 9
ITEM 9. UNDERTAKINGS 10
SIGNATURES 11
EXHIBIT INDEX 12
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan information
GENERAL INFORMATION
The Company
The Company has its principal offices at 211 West Wall Street,
Midland, Texas, 79701 (915) 682-1761
Purposes
The Common Stock will be issued by the Company pursuant to agreements
entered into between the Consultant and the Company and approved by the Board of
Directors of the Company (the "Board of Directors"). The agreements are intended
to provide a method whereby the Company will be able to use the services of the
Consultant in connection with financial and business advice pertaining to the
Company's business affairs as the Company may, from time to time, reasonably
request. A copy of the agreement has been filed as an exhibit to this
Registration Statement.
COMMON STOCK
The Board has authorized the issuance of up to 227,717 shares of the Common
stock to the Consultants upon effectiveness of this registration statement.
The Consultant
The Consultant has agreed to provide his expertise and advice to the
Company on a non-exclusive basis for the purpose of promoting the interests of
the Company.
No Restrictions on Transfer
The Consultant will become the record and beneficial owner of the shares of
Common Stock upon issuance and delivery and is entitled to all of the rights of
ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal
Revenue Code. The Consultant, therefore, will be deemed for federal income tax
purposes to recognize ordinary income during the taxable year in which the first
of the following events occurs: (a) the shares become freely transferable, or
(b) the shares cease to be subject to a substantial risk of forfeiture.
Accordingly, the Consultant will receive compensation taxable at ordinary rates
equal to the fair market value of the shares on the date of receipt since there
will be no substantial risk of forfeiture or other restrictions on transfer.
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Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. Further, in the event that any affiliate acquiring shares hereunder has
sold or sells any shares of Common Stock in the six months preceding or
following the receipt of shares hereunder, any so called "profit", as computed
under Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient to the Company. Services rendered have been recognized as valid
consideration for the "purchase" of shares in connection with the "profit"
computation under Section 16(b) of the Exchange Act. The Company has agreed that
for the purpose of any "profit" computation under 16(b) the price paid for the
common stock issued to affiliates is equal to the value of services rendered.
Shares of common Stock acquired hereunder by persons other than affiliates are
not subject to Section 16(b) of the Exchange Act.
Documents Incorporated By Reference and Additional Information
The Company hereby incorporates by reference (i) its annual report of Form
10-KSB for the year ended December 31, 1998, filed pursuant to Section 13 of the
Exchange Act, (ii) any and all Forms 10-QSB filed under the Securities or
Exchange Act subsequent to any filed form 10-KSB, as well as all other reports
filed under Section 13 of the Exchange Act, and (iii) its annual report, if any,
to shareholders delivered pursuant to Rule 14a-3 of the Exchange Act. In
addition, all further documents filed by the Company pursuant to Section 13, 14,
or 15(d) of the Exchange Act prior to the termination of this offering are
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing. All documents which when together, constitute
this Prospectus, will be sent or given to participants by the Registrant as
specified by Rule 428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or of any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Request should be
addressed to the Company at 211 West Wall Street, Midland, Texas, 79701.
Legal Opinions and Experts
Steven L. Siskind, Esq. has rendered an opinion on the validity of the
securities being registered. Mr. Siskind is not an "affiliate" of the
Company and does not have a substantial interest in the registrant. (See
PART II, ITEM 5 - Interests of Named Experts and Counsel)
The financial statements of Pacific Development Corporation incorporated by
reference in the Company's Annual Report (Form 10K-SB) for the year ended
December 31, 1998 have been audited by Comiskey & Company,
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Professional Corporation, independent auditors, as set forth in their report
incorporated herein by reference and are incorporated herein in reliance upon
such report given upon the authority of the firm as experts in auditing and
accounting.
Indemnification of Officers and Directors
Insofar as indemnification of liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the company, the
company has been informed that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
Registrant hereby states that (i) all documents set forth in (a) through
(c) below, are incorporated by reference in this registration statement, and
(ii) all documents subsequently filed by registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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 by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
(a) Registrant's latest Annual Report, if any, whether filed pursuant
to Section 13(a) or 15(d) of the Exchange Act;
(b) All other report 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 (a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act.
Item 4. Description of Securities
The securities being registered are common stock $.001 par value.
Item 5. Interests of Named Experts and Counsel
NONE
Item 6. Indemnification of Directors and Officers
Article 109, Sections 7-109-102 et seq of the Colorado General Business
Corporation Act empowers a Colorado corporation to indemnify officers and
directors as follows:
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7-109-102 AUTHORITY TO INDEMNIFY DIRECTORS.--(1) Except as provided in
subsection (4) of this section, a corporation may indemnify a person made a
party to a proceeding because the person is or was a director against liability
incurred in the proceeding if:
(a) The person conducted himself or herself in good faith; and
(b) the person reasonably believed:
(I) In the case of conduct in an official capacity with the
corporation, that his or her conduct was in the corporation's
best interests; and
(II) In all other cases, that his or her conduct was at least
not opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(2) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (II of paragraph (b) of subsection (1) of this
section. A director's conduct with respect to an employee benefit plan for a
purpose that the director did not reasonably believe to be in the interests of
the participants in or beneficiaries of the plan shall be deemed not to satisfy
the requirements of paragraph (a) of subsection (1) of this section.
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(4) A corporation may not indemnify a director under this section:
(a) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(b) In connection with any other proceeding charging that the director
derived an improper personal benefit, whether or not involving action
in an official capacity, in which proceeding the director was adjudged
liable on the basis that he or she derived an improper personal
benefit.
(5) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
7-109-103 MANDATORY INDEMNIFICATION OF DIRECTORS.--Unless limited by
its articles of incorporation, a corporation shall indemnify a person who was
wholly successful, on the merits or otherwise , in the defense of any proceeding
to which the person was a party because the person is or was a director, against
reasonable expenses incurred by him or her in connection with the proceeding.
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7-109-104 ADVANCE OF EXPENSES TO DIRECTORS.--(1) A corporation may pay
for or reimburse the reasonable expenses incurred by a director who is a party
to a proceeding in advance of final disposition of the proceeding if:
(a) The director furnishes to the corporation a written affirmation of
the director's good faith belief that he or she has met the standard of
conduct described in section 7-109-102;
(b) The director furnishes to the corporation a written undertaking,
executed personally or on the director's behalf, to repay the advance
if it is ultimately determined that he or she did not meet the standard
of conduct; and
(c) A determination is made that the facts then known to those making
the determination would not preclude indemnification under this
article.
(2) The undertaking required by paragraph (b) of subsection (1) of this
section shall be an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability to make
repayment.
(3) Determinations and authorizations of payments under this section
shall be made in the manner specified in section 7-109-106.
7-109-105 COURT-ORDERED INDEMNIFICATION OF DIRECTORS.--(1) Unless
otherwise provided in the articles of incorporation, a director who is or was a
party to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers necessary,
may order indemnification in the following manner:
(a) If it determines that the director is entitled to mandatory
indemnification under section 7-109-103, the court shall order
indemnification, in which case the court shall also order the
corporation to pay the director's reasonable expenses incurred to
obtain court-ordered indemnification.
(b) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances,
whether or not the director met the standard of conduct set forth in
section 7-109-102 (1) or was adjudged liable in the circumstances
described in section 7-109-102(4), the court may order such
indemnification as the court deems proper; except that the
indemnification with respect to any proceeding in which liability shall
have been adjudged in the circumstances described in section 7-
1009-102 (4) is limited to reasonable expenses incurred in connection
with the proceeding and reasonable expenses incurred to obtain court-
ordered indemnification.
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7-109-106 DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF
DIRECTORS.--(1) A corporation may not indemnify a director under section
7-109-102 unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in section
7-109-102. A corporation shall not advance expenses to a director under section
7-109-104 unless authorized in the specific case after the written affirmation
and undertaking required by section 7-109- 104(1)(a) and (1)(b) are received and
the determination required by section 7-109-104(1)(c) has been made.
(2) The determinations required by subsection (1) of this section shall
be made:
(a) By the board of directors by a majority vote of those present at a
meeting at which a quorum is present, and only those directors not
parties to the proceeding shall be counted in satisfying the quorum;
or
(b) if a quorum cannot be obtained, by a majority vote of a committee
of the board of directors designated by the board of directors, which
committee shall consist of two or more directors not parties to the
proceeding; except that the directors who are parties to the
proceeding may participate in the designation of directors for the
committee.
(3) If a quorum cannot be obtained as contemplated in paragraph (a) of
subsection (2) of this section, and a committee cannot be established under
paragraph (b) of subsection (2) of this section, or, even if a quorum is
obtained or a committee is designated, if a majority of the directors
constituting such quorum or such committee so directs, the determination
required to be made by subsection (1) of this section shall be made:
(a) By independent legal counsel selected by a vote of the board of
directors or the committee in the manner specified in paragraph (a) or
(b) of subsection (2) of this section or, if a quorum of the full
board cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full
board of directors; or
(c) By the shareholders.
(4) Authorization of indemnification and advance of expenses shall be
made in the same manner as the determination that indemnification or advance of
expenses is permissible; except that, if the determination that indemnification
or advance or expenses is permissible is made by independent legal counsel,
authorization of indemnification and advance of expenses shall be made by the
body that selected such counsel.
7-109-107 INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND
AGENTS.--(1) Unless otherwise provided in the articles of incorporation;
(a) An officer is entitled to mandatory indemnification under section
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7-109-103, and is entitled to apply for court-ordered indemnification
under section 7-109-015, in each case to the same extent as a
director;
(b) A corporation may indemnify and advance expenses to an officer,
employee, fiduciary , or agent of the corporation to the same extent
as to a director; and
(c) A corporation may also indemnify and advance expenses to an
officer, employee, fiduciary, or agent who is not a director to a
greater extent, if not inconsistent with public policy, and provided
for by its bylaws, general or specific action of its board of directors
or shareholders, or contract.
Article VII of the Company's Articles of Incorporation provides as
follows:
Each director and each officer of the corporation shall be indemnified
by the corporation a follows:
(a) The corporation shall indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred by him in connection with such action, suit or
proceeding, fi he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding, by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not of itself create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending or
completed action or suit by or in the right of the corporation, to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit, if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best
interest of the corporation, except that no
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indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the
corporation, unless, and only to the extent that, the court in which
such action or suit was brought shall determine upon application, that
despite the adjudication of liability, but in view of all circumstances
of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which such court deems proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections (a) and (b)
of this Article, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Sections (a) or (b) of this Article
(unless ordered by a court) shall be made upon a determination that
indemnification of the officer, director and employee or agent is
proper in the circumstances, because he has met the applicable standard
of conduct set forth in Sections (a) or (b) of this article. Such
determination shall be made (i) by the Board of Directors by a majority
vote of a quorum, consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable,
or even if obtainable, a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (iii) by the
affirmative vote of the holders of a majority of the shares of stock
entitled to vote and represented at a meeting called for such purpose.
(e) Expenses (including attorneys' fees) incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding,
as authorized in Section (d) of this Article, upon receipt of an
understanding by or on behalf of the director, officer, employee or
agent to repay such amount, unless it shall ultimately be determined
that he is entitled to be indemnified by the corporation as authorized
in this Article.
(f) The Board of Directors may exercise the corporation's power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to
indemnify him against such liability under this Article.
(g) the indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under these Articles of Incorporation, the By-Laws,
agreements, vote of the shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
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in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs and personal
representatives of such a person.
Article VI of the Company's By-Laws provides as follows:
The Company shall indemnify and hold harmless each person who shall
serve at any time thereafter as a director or officer of the Company from and
against any and all claims and liabilities to which such person shall become
subject by reason of his having heretofore or hereafter been a director or
officer of the Company, or by reason of any action alleged to have been
heretofore or hereafter taken or omitted by him as such director or officer, and
shall reimburse each person for all legal and other expenses reasonably incurred
by him in connection with any such claim or liability; provided, however, that
no such person shall be indemnified against, or be reimbursed fo4r, any expense
incurred in connection with any claim or liability arising out of his own
negligence or willful misconduct.
The rights accruing to any person under the foregoing provisions of
this Article shall not exclude any other right to which he may be lawfully
entitled, nor shall anything herein contained restrict the right of the
corporation to indemnify or reimburse such person in any proper case even though
not specifically herein provided for. The Company, its directors, officers,
employees and agents shall be fully protected in taking any action or making any
payment under this Article VI, or in refusing so to do, in reliance upon the
advise of counsel.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
(a) The following exhibits are filed as part of this S-8 Registration
Statement pursuant to Item 601 of Regulation S-B and are specifically
incorporated herein by this reference:
Exhibit No. Title
4. Not Applicable
5. Opinion of Steven L. Siskind regarding the
legality of the securities registered.
10.1 Consulting Agreement with John Vornle
15. Not Required
23.1 Consent of Steven L. Siskind, to the use of his opinion with
respect to the legality of the securities being registered
hereby contained in Item 5, above.
23.2 Consent of Comiskey & Company, Certified Public Accountants
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27. Not Required
28. Not Required
29. Not Required
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes 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 of
any material change to such information in the Registration Statement.
2. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes 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.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement related to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the 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 its is against public policy as expressed in the Act,
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 Midland, Texas, on the 24th day of January, 2000.
Dated: January 24, 2000
Pacific Development Corporation
By: /s/ Glenn A. Little
--------------------------
Glenn A. Little, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Corporation and in the capacities and on the dates indicated.
Dated: January 24, 2000 /s/ Glenn A. Little
--------------------------
Glenn A. Little,
President/Director
Dated: January 24, 2000 /s/ Matthew Blair
--------------------------
Matthew Blair,
Secretary/Director
11
<PAGE>
Form S-8 Registration Statement
EXHIBIT INDEX
The following Exhibits are filed as part of this Registration Statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit Number
In Registration
Statement Descriptions Numbered Page
- --------- ------------ -------------
5. Opinion of Counsel 10
10.1 Consulting Agreement with John Vornle 11
23.1 Consent of Steven L. Siskind
(included in Opinion of Counsel - Exhibit 5) 10
23.2 Consent of Comiskey & Company,
Certified Public Accountants 15
12
January 24, 2000
Pacific Development Corporation
211 West Wall Street
Midland, TX 79701
Gentlemen:
I have reviewed a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission, relating to
389,350 shares of common stock, $.001 par value per share (the "Shares") of
Pacific Development Corporation (the "Company"), which Shares have been issued
pursuant to the Company's consulting agreement and plan filed as an exhibit to
the Registration Statement (the "Agreement").
I have examined the Articles of Incorporation, and the By-laws of the
Company and all amendments thereto, the Registration Statement and originals, or
copies, certified to my satisfaction, of such records of meetings, written
actions in lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, documents and such other documents and instruments as
in my judgment are necessary or appropriate to enable us to render the opinions
expressed below.
In examination of the foregoing documents, I have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly and validly authorized for issuance under the Agreement
and the Shares, when issued against payment therefor, in accordance with the
terms of the Agreement, will be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Steven L. Siskind
-----------------
Steven L. Siskind
CONSULTING AGREEMENT
--------------------
AGREEMENT made as of the __ day of January 2000, by and between PACIFIC
DEVELOPMENT CORPORATION, a Colorado corporation having an address c/o Cheshire
Distributors, Inc., 191 Post Road West, Westport CT. 06880 (the "Company") and
JOHN VORNLE, having an address at 2 Mystic Lane, Westport, CT. 06880 (the
"Consultant").
RECITALS
A. The Consultant has rendered valuable services to the Company, the
Company desires to retain and utilize the services of the Consultant to enhance
the growth and profitability of the Company, and the Consultant is willing to
serve as a consultant to the Company; and
B. Consultant acknowledges that while in the service of the Company and/or
any affiliate thereof, and for the Company and its subsidiaries and affiliates
to operate efficiently and profitably, Consultant will be exposed to, and the
Company must take reasonable steps to protect its ideas, methods, developments,
strategies, business plans and financial and other information of the Company
which are confidential and/or proprietary in nature and which are of significant
value to other persons or entities that operate in the Company's industry.
NOW, THEREFORE, in consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENTS
1. Consulting Services. The Company hereby engages Consultant as an
independent contractor, and not as an employee, to render consulting services to
the Company as hereinafter provided, and Consultant hereby accepts such
engagement. Consultant shall not have any authority to bind or act on behalf of
the Company. Consultant shall consult with the Company regarding (a) mergers and
acquisitions and corporate filings and (b) such other matters as the Consultant
and the Company may periodically agree. Consultant shall be free to determine
the time and location and the manner in which he shall render the consulting
services described herein and he shall not be required to devote any minimum
number of hours per year to rendering such services.
2. Term. This Agreement shall terminate on the second anniversary of the
date of this Agreement. Thereafter, this Agreement may be renewed by the
Consultant and the Board of Directors of this Company on such terms as the
parties may agree in writing. As used herein, the term "term" refers to the
entire period of engagement of the Consultant hereunder, including any
extensions.
3. Company Defined. For purposes of this Agreement, the term "Company"
shall, unless the context dictates otherwise, also mean any of the Company's
subsidiaries or affiliates.
<PAGE>
4. Compensation. The Consultant shall receive as full compensation for
his services a fee equal to 227,717 shares of common stock of the Company (the
"Shares"). The Consultant's fee shall be payable upon the execution of this
Agreement by issuance to the Consultant of certificates of the Company's common
stock representing the Shares. Said fee shall be the only compensation of any
kind payable to the Consultant hereunder unless previously agreed in writing by
the Company. It is agreed that the Shares will be registered pursuant to the
Securities Act of 1933 on Form S-8, and, until such time as such registration
has been completed, such Shares will bear a restrictive legend in the form in
use by the Company.
5. Expenses. Subject to the Company's prior written approval in each
instance, the Company shall reimburse the Consultant for his normal and
reasonable expenses incurred in the performance of the Consultant's duties
hereunder including for travel, entertainment and similar items. As a condition
of reimbursement, the Consultant agrees to provide the Company with copies of
all available invoices and receipts, and otherwise account to the Company in
sufficient detail to allow the Company to claim an income tax deduction for such
paid item, if such item is deductible. Reimbursements shall be made monthly.
6. Confidentiallty And Competitive Activities. The Consultant agrees that
during the term he is in a position of special trust and confidence and has
access to confidential and proprietary information about the Company's business
and plans. The Consultant agrees that he will not directly or indirectly, either
as an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any similar individual or representative
capacity, engage or participate in any business that is in competition, in any
manner whatsoever, with the Company. Notwithstanding anything in the foregoing
to the contrary, the Consultant shall be allowed to invest as a shareholder in
publicly traded companies, or through a venture capital firm or an investment
pool.
7. Trade Secrets.
A. Special Techniques. It is hereby agreed that the Company has developed
or acquired certain technology, know-how, unique or special methods, processes
and techniques, trade secrets, special written marketing plans and special
customer arrangements, supplier and customer lists and arrangements, and other
proprietary rights and confidential information and shall during the term
continue to develop, compile and acquire said items (all hereinafter
collectively referred to as the "Company's Property"). It is expected that the
Consultant will gain knowledge of and utilize the Company's Property during the
course and scope of the term, and will be in a position of trust with respect to
the Company's Property.
B. Company's Property. It is hereby agreed that the Company's Property
shall remain the Company's sole property. If the Consultant's engagement is
terminated, for whatever reason, the Consultant agrees not to copy, make known,
disclose or use, any of the Company's Property without the Company's prior
written consent which shall not be unreasonably withheld. In such event, the
Consultant further agrees not to endeavor or attempt in any way to interfere
with or induce a breach of any prior proprietary contractual relationship that
the Company may have with any employee, customer, contractor, suppliers,
representative, or distributor for two (2) years for two (2) years from the date
of termination of this Agreement. The Consultant agrees upon termination of
engagement to deliver to the Company all confidential papers, documents,
records, lists and notes (whether prepared by the Consultant or others)
comprising or containing the Company's Property. The Consultant recognizes that
violation of covenants and agreements contained in this Section 7 may result in
irreparable injury to the Company which would not be fully compensable by way of
money damages.
-2-
<PAGE>
C. Covenant Not to Compete. For a period of two (2) years from the date
of any termination of the Consultant's engagement with the Company, the
Consultant shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or participate in
any activities which are the same as, or competitive with, the activities in
which the Company is then engaged.
8. Independent contractor status. In furnishing Consultant's services
hereunder, the Consultant shall be acting as an independent contractor in
relation to the Company. Accordingly, the Consultant shall have no authority to
act for or on behalf of the Company or to bind the Company without its express
written consent and shall not be considered as having employee status for the
purpose of my employee benefit plan applicable to the Company's employees
generally.
9. Miscellaneous.
A. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matters herein,
and supersedes and replaces any prior agreements and understandings, whether
oral or written between them with respect to such matters. The provisions of
this Agreement may be waived, altered, amended or repealed in whole or in part
only upon the written consent of both parties to this Agreement
B. No Implied Waivers. The failure of either party at any time to require
performance by the other party of any provision hereof shall not affect in any
way the right to require such performance at any time thereafter, nor shall the
waiver by either party of a breach of any provision hereof be taken or held to
be a waiver of any subsequent breach of the same provision of any other
provision.
C. Personal Services. It is understood that the services to be performed
by the Consultant hereunder are personal in nature and the obligations to
perform such services and the conditions and covenants of this Agreement cannot
be assigned by the Consultant. Subject to the foregoing, and except as otherwise
provided herein, this Agreement shall inure to the benefit of and bind the
successors and assigns of the Company.
D. Severability. If for any reason any provision of this Agreement shall
be determined to be invalid or inoperative, the validity and effect of the other
provisions hereof shall not be affected thereby, provided that no such
severability shall be effective if it causes a material detriment to any party.
-3-
<PAGE>
E. Applicable Low. This Agreement shall be governed by and construed in
accordance with the laws of Delaware, applicable to contracts between residents
of New York entered into and to be performed entirely within Delaware.
F. Notices. All notices, requests, demands, instructions or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given upon delivery, if
delivered personally, or if given by prepaid telegram, or mailed first-class,
postage prepaid, registered or certified mail, return receipt requested, shall
be deemed to have been given seventy-two (72) hours after such delivery, if
addressed to the other party at the addresses as set forth on the signature page
below. Either party hereto may change the address to which such communications
are to be directed by giving written notice to the other party hereto of such
change in the manner above provided.
G. Merger, Transfer of Assets, or Dissolution of the Company. This
Agreement shall not be terminated by any dissolution of the Company resulting
from either merger or consolidation in which the Company is not the consolidated
or surviving company or a transfer of all or substantially all of the assets of
the Company. In such event, the rights, benefits and obligations herein shall
automatically be assigned to the surviving or resulting company or to the
transferee of the assets.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Company:
PACIFIC DEVELOPMENT CORPORATION
By: /s/ Glenn A. Little
---------------------------
Glenn A. Little, President
CONSULTANT
By: /s/ John Vornle
---------------------------
John Vornle
-4-
[LETTERHEAD]
Comiskey
-------- Professional Corporation
& Company
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use, by incorporation by reference, in the Form S-8
Registration Statement under the Securities Act of 1933 of Pacific Development
corporation ( a Colorado corporation) (Registrant) of our report dated Janury
19, 1999 on the financial statements of Pavific Development Corporation as of
December 31, 1998 and the related statement of loss and accumulated deficit,
stockholders' equity, and for the period from inception (September 30, 1992) to
December 31, 1998 contained in the Registrant's registration statement of Form
10-SB, and to the use of our name and statements with respect to us as appearing
under the heading "Experts".
Denver, Colorado
January 24, 2000 /s/ Comisky & Company
-----------------
Comisky & Company
Professional Corpration
Certified Public Accuntanta & consultants
789 Sherman Street o Suite 440 o Denver, CO 80203
(303)830-2255 o Fax (303)830-0876 o [email protected] o www.comiskey.com
