As filed with the Securities and Exchange Commission
on May 31, 2001 Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THERMFREEZE, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 95-452-0761
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State of (I.R.S. Employer
corporation) Identification Number)
4430 Haskell Avenue, Encino, CA 91436
------------------------------------
(Address of principal executive office)(City, State Zip Code)
ThermaFreeze 2001 Non-Qualified Stock Option Plan
(Full title of the Plan)
JOSEPH MURRAY
PRESIDENT
THERMAFREEZE, INC.
4430 HASKELL AVENUE
ENCINO, CALIFORNIA 91436
(818) 784-2445
WITH A COPY TO:
Frank A. Norris, Jr., Esq.
P.O. Box 1212
Syosset NY 11791
(516)641 5050
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share* Offering Price* Fee
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Common Stock
($.001 par value) 6,410,256 Shares $0.13 $833,333 $290
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*Estimated solely for the purpose of determining the amount of the
registration fee and pursuant to Rules 457(c) and 457(h) of the General
Rules and Regulations under the Securities Act of 1933, based upon the
average of the bid and the asked prices of the Common Stock as reported
on Nasdaq Bulletin Board on May 30,2001.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information*
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* Information required by Part I to be contained in section 10(a)
prospectus is omitted from the registration statement in accordance
with Rule 428 under Securities Act of 1933 and Note to Part I of Form
S-8
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference
The following documents, which are filed by ThermaFreeze, Inc. with the
Securities and Exchange Commission (the "Commission"), are incorporated
in this Registration Statement by reference:
(1) The Registrant's latest Form 10KSB filed for the fiscal year end,
December 31, 2000 (Commission File No. 0-30069).
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
report referred to in (1) above.
(3) The description of the Company's common stock contained in the
Registration Statement filed March 23, 2000 with the Commission under
the Exchange Act, including any amendment or report subsequently filed
by the Company for the purpose of updating that description.
(4) Any document filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all Common Shares offered
hereby have been sold or which deregisters all Common Shares then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of the filing of such
documents.
Item 6. Indemnification of Directors and Officers
Pursuant to Section 102(b)(7) of the General Corporation Law (the
"GCL") of the State of Delaware, the state of incorporation of the
Company, the Certificate of Incorporation of the Company, as amended
("the Certificate of Incorporation"), eliminates the liability of the
Company's directors to the Company or its stockholders, except for
liabilities related to breach or duty of loyalty, actions not in good
faith and certain other liabilities.
The Certificate of Incorporation of the Company provides for the
indemnification of directors and officers to the fullest extent
permitted by the GCL. Section 145 of the GCL of the State of Delaware
authorizes Indemnification by a corporation when a person is made a
party to any proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation or was
serving as a director, officer, employee or agent of another
enterprise, at the request of the corporation, and if such person acted
in good faith and in a manner reasonably believed by him or her to be
in, or not opposed to, the best
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interests of the corporation. With respect to any criminal proceeding,
such person must have had no reasonable cause to believe that his or
her conduct was unlawful. If it is determined that the conduct of such
person meets, these standards, he or she may be indemnified for
expenses incurred and amounts paid in such proceeding (including
attorneys' fees) if actually and reasonably incurred by him or her in
connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against
expenses actually and reasonably incurred if he or she acted in good
faith and in a manner reasonably believed by him or her to be in, or
not opposed to, the best interests of the corporation. There can be no
indemnification with respect to any matter as to which such person is
adjudged to be liable to the corporation; however, a court may, even in
such case, allow such indemnification to such person for such expenses
as the court deems proper. Where such person is successful in any such
proceeding, he or she is entitled to be indemnified against expenses
actually and reasonably incurred by him or her. In all other cases,
indemnification is made by the corporation upon determination by it
that indemnification of such person is proper because such person has
met the applicable standard of conduct.
The Company has entered into employment agreements with certain
officers, which may cover certain liabilities of such individuals to
the Company.
The foregoing indemnification provisions are broad enough to encompass
certain liabilities of directors and officers of Company under the
Securities and Exchange Act of 1933.
Experts
The consolidated financial statements of the Company appearing in the
Company's Annual Report (form 10KSB) for the year ended December 31,
2000 have been audited by Brad Beckstead, an independent public
accountant, as set forth in their report thereon included therein and
incorporated herein by reference. Reference is made to said report,
which includes explanatory paragraphs that describe the Company's
ability to continue as a going concern discussed in the Company's
Consolidated Financial Statements. Such financial statements are
incorporated herein in reliance upon the reports of Brad Beckstead
pertaining to such financial statements (to the extent filed with the
Commission) given upon the authority of such firm as experts in giving
such reports.
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Item 8. Exhibits
4.1 Consulting Agreement & Non-Qualified Stock Option Plan
4.2 Specimen Share Certificate (1)
4.3 Certificate of Incorporation, as amended to date (except
Certificate of Amendment of Certificate of Incorporation filed February
6, 2001) and By-laws (2); and, Certificate of Amendment of Certificate
of Incorporation filed February 6, 2001.
5.1 Opinion of Frank Norris, Jr. regarding the securities registered
hereunder.
23.1 Consent of Independent Accountant
23.2 Consent of Frank A. Norris, Jr. (included as part of Exhibit 5.1)
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(1) Incorporated by reference to the Company's Registration Statement
Form 10-SB filed on March 23, 2000.
(2)..Incorporated by reference to the Company's Registration Statement
Form 10-SB filed on March 23, 2000.
Item 9. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) 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 this Registration Statement
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) 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) To remove from registration by means of a post-effective amendment
any of the securities being registered hereunder which remain unsold at
the termination of the offering.
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The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan'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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the above-described provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company 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 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 the
Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Encino,
California, on May 31, 2001.
THERMAFREEZE, INC.
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(Registrant)
/s/ Thomas Pryor
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THOMAS PRYOR
CFO & Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
/s/ Galen Loven Chairman of the Board May 31, 2001
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/s/ Joseph Murray President & Director May 31, 2001
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/s/ Thomas Pryor CFO & Director May 31, 2001
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INDEX TO EXHIBITS
4.1 Consulting Agreement & Non-Qualified Stock Option Plan -- Page 9
4.2 Specimen Share Certificate (1) -------------------------- Page 17
4.3 Certificate of Incorporation, as amended to date
(except Certificate of Amendment of Certificate of
Incorporation filed February 6, 2001) and By-laws (2);
and, Certificate of Amendment of Certificate of
Incorporation filed February 6, 2001. ------------------- Page 17
5.1 Opinion of Frank Norris, Jr. regarding the
securities registered hereunder.------------------------- Page 19
23.1 Consent of Independent Accountant ------------------------ Page 20
23.2 Consent of Frank Norris, Jr., Esq.
(included as part of Exhibit 5.1)---------------------- Page 20
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(1)Incorporated by reference to the Company's Registration Statement
Form 10-SB filed on March 23, 2000.
(2)Incorporated by reference to the Company's Registration Statement
Form 10-SB filed on March 23, 2000.
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EXHIBIT 4.1
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CONSULTING AND MARKETING LICENSE AGREEMENT
THIS CONSULTING AND MARKETING LICENSE AGREEMENT (this "Agreement") is
between Mark Neuhaus and or assigns (the "Consultant") and the other
party named on the signature page to this Agreement (the "Company").
Each of the Consultant and the Company are also referred to in this
agreement as the "Parties."
WHEREAS, the Company intends to develop a market for the Company's
products and services offered from time to time by the Company (the
"Products and Services") for potential customers of the Products and
Services who are racing car enthusiasts; and
WHEREAS, the Consultant is a professional race car driver with name
recognition in the racing car industry; and
WHEREAS, the Company desires to utilize the services of the Consultant
to promote and develop a market for the Company's Products and
Services; and
WHEREAS, in connection with the services to be provided by the
Consultant pursuant to this Agreement, the Company desires to grant the
Consultant a non-exclusive license for the limited use of the Company's
tradename, trademark or logo, or any other tradename, trademark or logo
of the Company, as may be agreed upon by the Parties (the "Licensed
Trademarks").
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the Parties hereby agree as follows:
1. Scope of Services. The Company hereby retains the Consultant to
promote and develop a market for the Products and Services. The
Consultant agrees to use his best efforts during the term of this
Agreement to market and promote the Products and Services.
2. Term. This Agreement shall become effective as of the date set
forth on the signature page of this Agreement, and shall continue for a
period of one (1) year (the "Term"). Notwithstanding the foregoing,
the Company or the Consultant shall be entitled to terminate this
Agreement for "cause" upon 30 days written notice, which written notice
shall be effective upon mailing by first class mail accompanied by
facsimile transmission to the Consultant at the address and telecopier
number last provided by the Consultant to the Company. "Cause" shall
be determined solely as to the violation of any rule or regulation of
any regulatory agency, and other neglect, act or omission detrimental
to the conduct of Company or the Consultant's business, material breach
of this Agreement or any unauthorized disclosure of any of the secrets
or confidential information of Company, and dishonesty related to
independent contractor status.
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3. Grant of Non-exclusive License. Subject to the terms of this
Agreement, the Company hereby grants to the Consultant, and the
Consultant hereby accepts, the non-exclusive license to use the
Licensed Trademarks on the Consultant's racing cars, and on the
Consultants racing equipment and clothing, which shall be owned by the
Consultant and shall be operated by the Consultant in professional
racing car competitions at the sole discretion of the Consultant. The
Company shall supply all camera ready artwork either on disc or via e-
mail.
(a) During the Term of this Agreement the Consultant shall not
negotiate or enter into any license, sub-license agreement or sub-
contract or similar agreement with any third parties in respect of the
Licensed Trademarks, or any right or interest granted by the Company to
the Consultant pursuant to this Agreement, and the Consultant shall
further refrain from directly or indirectly, on his own behalf,
licensing, sub-licensing or sub-contracting the Licensed Trademarks, or
other right or interest granted by the Company to the Consultant to
such third parties other than the operating company that manages the
race cars without the Company's prior written consent.
(b) No license or right is granted by the Company to the Consultant,
either expressly or by implication, under any licenses or rights owned
or controlled by the Company, except as expressly set forth in this
Agreement.
(c) The license granted pursuant to this Agreement shall expire
simultaneously with the Term of this Agreement, and shall be revocable
at will by the Company upon written notice to the Consultant, and the
Consultant shall immediately refrain from the use of any rights granted
by the Company to the Consultant with respect to this license upon
receipt of such written notice.
4. Compensation; Grant of Stock Option. In consideration for the
services to be provided by the Consultant to the Company under the
terms of this Agreement, the Company agrees to grant to the Consultant
upon the execution of this Agreement a non-qualified stock option (the
"Option") to purchase up to the number of shares (the "Shares") of the
Company's common stock (the "Common Stock") as set forth below which
shall fully vest immediately upon execution of this Agreement, at an
exercise price as set forth below:
Number of Shares or Total Dollar Amount:
$2,000,000
Exercise Price or Percentage per Share (in US$):
30 day trailing low
The terms of the Option shall otherwise be set forth in a Non-Qualified
Stock Option Agreement between the Company and the Consultant,
substantially in the form attached as Exhibit A to this Agreement. The
Company agrees to register the Shares for resale under the Securities
Act of 1933, as amended, pursuant to a registration statement filed
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with the Securities and Exchange Commission on Form S-8 (or, if Form S-
8 is not then available, such other form of registration statement then
available), pursuant to the terms of such registration set forth in the
Non-Qualified Stock Option Agreement.
5. Confidentiality. The Consultant covenants that all information
concerning the Company, including proprietary information, which it
obtains as a result of the services rendered pursuant to this Agreement
shall be kept confidential and shall not be used by the Consultant
except for the direct benefit of the Company nor shall the confidential
information be disclosed by the Consultant to any third party without
the prior written approval of the Company, provided, however, that the
Consultant shall not be obligated to treat as confidential, or return
to the Company copies of any confidential information that (i) was
publicly known at the time of disclosure to Consultant, (ii) becomes
publicly known or available thereafter other than by any means in
violation of this Agreement or any other duty owed to the Company by
the Consultant, or (iii) is lawfully disclosed to the Consultant by a
third party.
6. Independent Contractor. The Consultant and the Company hereby
acknowledge that the Consultant is an independent contractor. The
Consultant agrees not to hold himself out as, nor shall he take any
action from which others might reasonably infer that the Consultant is
a partner or agent of, or a joint venturer with the Company. In
addition, the Consultant shall take no action which, to the knowledge
of the Consultant, binds, or purports to bind, the Company to any
contract or agreement.
7. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement
between the Parties, and may not be waived, amended, modified or
supplemented except by agreement in writing signed by the Party against
whom enforcement of any waiver, amendment, modification or supplement
is sought. Waiver of or failure to exercise any rights provided by
this Agreement in any respect shall not be deemed a waiver of any
further or future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of California, and the Parties agree that
the exclusive jurisdiction for any litigation or arbitration arising
from this Agreement shall be in Los Angeles, California, or New York
City, New York to be mutually agreed upon by both parties.
(c) Successors and Assigns. This Agreement shall be binding upon the
Parties, their successors and assigns, provided, however, that the
Consultant shall not permit any other person or entity to assume these
obligations hereunder without the prior written approval of the Company
which approval shall not be unreasonably withheld and written notice of
the Company's position shall be given within ten (10) days after
approval has been requested.
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(d) Indemnification. The Company shall indemnify the Consultant for
all losses or damages sustained (including reasonable attorney fees and
disbursements) as incurred by the Consultant arising from the
Consultant performing services under this Agreement.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(f) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall
be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
IN WITNESS WHEREOF, the Parties hereto have executed or caused this
Agreement to be executed as of the date set forth below.
Date: 5/30/01
Consultant:
/s/ Mark Neuhaus
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Mark Neuhaus
50 W. Liberty Street
Reno, NV 89501
Company:
THERMAFREEZE, Inc.
By: /s/ Galen Loven
- -------------------
Galen Loven
Chairman
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EXHIBIT A
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is between
Mark Neuhaus (the "Grantee") and the other party named on the signature
page to this Agreement (the "Company"). Each of the Grantee and the
Company are also referred to in this agreement as the "Parties."
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") has authorized the grant to the Grantee, for services to be
rendered by the Grantee as a consultant to the Company pursuant to the
terms of a Consulting and Marketing License Agreement (the "Consulting
Agreement") between the Company and the Grantee, of a non-qualified
stock option (the "Option") to purchase the number of shares of the
Company's common stock (the "Common Stock") specified in paragraph 1 of
this Agreement, at the price specified in paragraph 1 of this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
Board of Directors, the Company hereby grants to the Grantee, in
consideration of consulting services to be performed for the benefit of
the Company pursuant to the Consulting Agreement, an option ("Option")
to purchase the number of common shares ("Option Shares") of Common
Stock set forth below, at the exercise price set forth below:
Number of Shares or Total Dollar amount:
$2,000,000
Exercise Price or Percentage per Share (in US$):
30 day trailing low
2. Term. The Option and this Agreement shall expire ten (10) years
from the date of this Agreement.
3. Shares Subject To Exercise. The Option shall be immediately
exercisable and shall remain exercisable for the entire Term specified
in Paragraph 2 of this Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole
or from time to time in part by written notice delivered to the Company
stating the number of Option Shares with respect to which the Option is
then being exercised, together with a check or wire to the Company in
the amount equal to the Exercise Price multiplied by the number of
Option Shares then being issued pursuant to the written notice of
exercise. Not less than one hundred (100) Option Shares may be
purchased upon exercise of the Option at any one time unless the number
of Option Shares for which exercise of the Option is being made is all
of the Option Shares then issuable upon exercise of the Option. Only
whole shares shall be issued upon exercise of the Option.
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5. Tax Withholding. As a condition to exercise of the options
Grantee shall be liable to pay all applicable federal, state and local
taxes.
6. Exercise Following Termination of Consulting Agreement. The
Option shall not terminate as a result of the termination of Grantee's
services as a consultant to the Company pursuant to the Consulting
Agreement.
7. Transferability. The Option and this Agreement may not be
assigned or transferred except by will or by the laws of descent and
distribution, and with consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
shareholder with respect to the Option Shares issued form time to time
upon exercise of the Option until the earlier of: (1) the date of
issuance of a stock certificate or stock certificates to the Grantee
applicable to the Option Shares then issuable to the Grantee upon
exercise of the Option and (2) the date on which the Grantee or his
nominee is recorded as owner of such Option Shares on the Company's
stock ledger by the Company's registrar and transfer agent, which may
be the Company. Except as set forth in paragraph 13 of this Agreement,
no adjustment will be made for dividends or other rights for which the
record date is prior to the earlier of the events described in clauses
(1) and (2) of this paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that,
upon the Grantee's exercise of the Option in whole or in part, unless
there is in effect at that time under the Securities Act of 1933 a
registration statement relating to the Option Shares, the Grantee will
acquire the Option Shares for the purpose of investment and not with a
view to their resale or further distribution, and that upon such
exercise hereof, the Grantee will furnish to the Company a written
statement to such effect, satisfactory to the Company in form and
substance.
10. Shares Qualified for Listing. Company represents that its Common
Stock is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including, without
limitation, the NASDAQ Bulletin Board, and for trading with the
California Department of Corporations or such other applicable
jurisdictions.
11. Registration Rights. Upon signing this Agreement, the Company
shall immediately, at the Company's expense, use its best efforts to
file with the Securities and Exchange Commission ("SEC"), a
registration statement ("Registration Statement") on Form S-8 or other
comparable form, or if such form is not then available, such other form
of registration statement then available, in such form as to comply
with applicable federal and state laws for the purpose of registering
or qualifying the Option Shares for public resale by the Grantee, and
prepare and file with the appropriate state securities regulatory
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authorities the documents reasonably necessary to register or qualify
the Option Shares, subject to the ability of the Company to register or
qualify the Option Shares under applicable state law.
12. Notices. All notices to the Company shall be addressed to the
Company at the principal office of the Company at the address and
facsimile number set forth on the signature page of this Agreement, and
all notices to the Grantee shall be addressed to the Grantee at the
address and facsimile number of the Grantee set forth on the signature
page of this Agreement or, if different, the last address and facsimile
number on file with the Company, or to such other address and facsimile
number as either may designate to the other in writing. A notice shall
be deemed to be duly given if and when enclosed in a properly addressed
sealed envelope deposited, postage prepaid and followed by facsimile to
the addressee. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to the
Grantee or to the Company (as the case may be) by nationally recognized
courier or overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the
Company after the date of this Agreement affecting in any manner the
number or kind of outstanding shares of Common Stock of the Company,
whether by stock dividend, stock split, reclassification or
recapitalization of such stock, or because the Company has merged or
consolidated with one or more other corporations (and provided the
Option does not thereby terminate pursuant to paragraph 14 of this
Agreement), then the number and kind of shares then subject to the
Option and the exercise price to be paid for the Option Shares shall be
appropriately adjusted by the Board of Directors; provided however,
that in no event shall any such adjustment result in the Company being
required to sell or issue any fractional shares. Any such adjustment
shall be made without change in the aggregate exercise price applicable
to the unexercised portion of the Option, but with an appropriate
adjustment to the exercise price of each Option Share or other unit of
security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other
provision of this Agreement, in the event of the reorganization, merger
or consolidation of the Company with one or more corporations as a
result of which the Company is not the surviving corporation, or the
sale of substantially all the assets of the Company or of more than
fifty percent (50%) of the then outstanding stock of the Company to
another corporation or other entity in a single transaction, the Option
grated hereunder shall terminate, provided however, that not later than
five (5) days before the effective date of such merger or consolidation
or sale of assets in which the Company is not the surviving
corporation, the surviving corporation may, but shall not be so
obligated to, tender to the Grantee an option to purchase a number of
shares of capital stock of the surviving corporation equal to the
number of Option Shares then issuable upon exercise of the Option, and
such new option or options for shares of the surviving corporation
shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the
Option and this Agreement.
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15. Miscellaneous.
(a) Entire Agreement. This Agreement and the Consulting Agreement
contain the entire agreement between the Parties, and may not be
waived, amended, modified or supplemented except by agreement in
writing signed by the Party against whom enforcement of any waiver,
amendment, modification or supplement is sought. Waiver of or failure
to exercise any rights provided by this Agreement and the Consulting
Agreement in any respect shall not be deemed a waiver of any further or
future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of California, and the Parties agree that
the exclusive jurisdiction for any litigation or arbitration arising
from this Agreement shall be in Los Angeles, California or New York
City, New York to be mutually agreed upon by both parties.
(c) Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(d) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall
be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date set forth below.
Date: 5/30/01
Optionee
/s/ Mark Neuhaus
- ----------------
Mark Neuhaus
50 W. Liberty Street
Reno, NV 89501
Company:
THERMAFREEZE, Inc.
By: /s/ Galen Loven
- -------------------
Galen Loven
Chairman
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EXHIBIT 4.2
- -----------
Specimen Stock Certificate is incorporated by reference to the
Company's Registration Statement Form 10-SB filed on March 23, 2000.
EXHIBIT 4.3
- ------------
Certificate of Incorporation, as amended to date(except Certificate of
Amendment of Certificate of Incorporation filed February 6, 2001) and
By-laws is incorporated by reference to the Company's Registration
Statement Form 10-SB filed on March 23, 2000.
Following is Certificate of Amendment of Certificate of Incorporation
filed February 6, 2001.
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STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
ThermaFreeze, Incorporated, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of ThermaFreeze, Incorporated,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the stockholders of
said corporation for consideration thereof. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "four (4)" so that, as
amended, said Article shall be and read as follows:
"The total number of shares of stock which this corporation is
authorized to issue is:
- - 300,000,000 Shares of Common Stock at $.001 Par Value
- - 10,000,000 Shares of Preferred Stock at $.001 Par Value
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of said corporation was
duly called and held upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware at which meeting the
necessary number of shares as required by statute
were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation shall not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by THOMAS PRYOR, an Authorized Officer, this 11th day of May,
1999.
By: s/s Thos Pryor, CFO
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Authorized Officer
THOMAS PRYOR
Chief Financial Officer
State of Delaware
Secretary of State
Division of Corporations
Filed 02:00 PM 02/07/2001
010062536-2503280
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EXHIBIT 5.1
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OPINION OF FRANK A. NORRIS, Jr., ESQ.
FRANK A. NORRIS, JR.
Attorney-at-Law
P.O. BOX 1212
SYOSSET, NEW YORK 11791
(516) 641-5050
May 31, 2001
ThermaFreeze, Inc.
4430 Haskell Avenue
Encino, CA 91436
Re: Registration Statement on Form S-8
Gentlemen:
The undersigned has acted as special counsel to ThermaFreeze, Inc.,
(the "Company") in connection with the preparation and filing of the
Company's Registration Statement on Form S-8 under the Securities Act
of 1933, as amended (the Registration Statement"), relating to
6,410,256 shares of the Company's common stock, $.001 par value (the
"Common Stock"), issuable under the Company's Non-Qualified Stock
Option Plan (the "Plan").
I have examined originals or copies, certified or otherwise, identified
to my satisfaction, of the Plan and of such other documents, corporate
records and other instruments as I have deemed necessary or advisable
for purposes of this opinion.
Based upon the foregoing examination, I am of the opinion that the
shares of Common Stock issuable pursuant to the Plan are duly
authorized, and when issued in accordance with the Plan, will be
validly issued, fully paid and non-assessable.
I consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references therein
The undersigned is a member in good standing of the Bar of the
Commonwealth of Pennsylvania and opines solely on the federal
securities issues presented.
Very truly yours,
/s/ Frank A. Norris Jr.
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Frank A. Norris, Jr.
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EXHIBIT 23.1
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Consent of Independent Accountant
G. BRAD BECKSTEAD
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CERTIFIED PUBLIC ACCOUNTANT
330 E. Warm Springs Rd.
Las Vegas, NV 89119
702.528.1984
425.928.2877 efax
May 31, 2001
To the Board of Directors
ThermaFreeze, Inc.
I hereby consent to the reference to my firm, G. Brad Beckstead, CPA,
in the Registration Statement on Form S-8 for the registration of
6,410,256 shares of ThermaFreeze, Inc. $0.001 par value common stock
pursuant to the Neuhaus Consulting Agreement and Non-Qualified Stock
Option Plan, and to the incorporation by reference therein of my report
relating to the financial statements which appear in the Annual Report
on Form 10-KSB for the year ended December 31, 2000.
/s/ G. Brad Beckstead
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G. Brad Beckstead, CPA
EXHIBIT 23.2
Consent of Frank Norris, Esq. (Please refer to Opinion Letter of Frank
A. Norris, Jr., Esq., Exhibit 5.1, Consent Incorporated)
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