As filed with the Securities and Exchange Commission on
December 4, 2001 Reg. No. 33
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE AMANDA COMPANY, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0430260
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) identification No.)
13765 Alton Parkway, Suite F
Irvine, CA 92618
(949) 859-6279
(Address of principal executive offices)
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ADVISORY AND CONSULTING AGREEMENT
(Full title of plan)
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Jose Candia
Chief Executive Office
13765 Alton Parkway, Suite F
Irvine, CA 92618
(Name and address of agent for service)
(949) 859-6279
(Telephone number, including area code of agent for service)
Copy to:
Owen Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261 / (949) 851-9262 (fax)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
====================== ====================== ===================== ====================== ======================
Common Stock
( par value .01) 8,000,000 $0.01 $80,000 $20.00
====================== ====================== ===================== ====================== ======================
Estimated solely for the purpose of determining the amount of registration fee
and pursuant to Rules 457(c) and 457 (h) of the General Rules and Regulations
under the Securities Act of 1993, based upon the exercise price of 8,000,000
shares of stock at $0.01 which is the average of the bid and asked prices per
share of the registrant's common stock reported by the OTC Nasdaq Stock Market
on November 30, 2001.
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PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Amanda Company, Inc. (the "Company"),
formerly Pen Interconnect, Inc., with the Securities and Exchange Commission
(the "Commission") are incorporated by reference herein:
(a) the Company's annual report on Form 10-KSB for the fiscal year ended
September 30, 2000 (Commission File No. 1-14072):
(b) all other reports filed by the Company pursuant to Section 13(a) or
Section 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since September 30, 2000 through the date hereof; and
(c) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Counsel acts as a legal consultant for the Company from time to time.
Item 6. Indemnification of Directors and Officer
The Certificate of Incorporation of the Company provides that all
directors, officers, employees and agents of the Company shall be entitled to be
indemnified by the Company to the fullest extent permitted by law. The
Certificate of Incorporation also provides as follows:
The corporation shall, to the fullest extent permitted by the Act, as the
same may be amended and supplemented, indemnify all directors, officers,
employees, and agents of the corporation whom it shall have power to indemnify
thereunder from and against any and all of the expenses, liabilities, or other
matters referred to therein or covered thereby. Such right to indemnification or
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee, or agent of the corporation, and shall inure to the
benefit of the heirs, executives, and administrators of such persons. The
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indemnification and advancement of expenses provided for herein shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement may be entitled under any bylaw, agreement, vote of stockholders or
of disinterested directors or otherwise. The corporation shall have the right to
purchase and maintain insurance on behalf of its directors, officers, and
employees or agents to the full extent permitted by the Act, as the same may be
amended or supplemented.
Commission Policy
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise, the
Company 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to
Exhibits on page 8.
Item 9. Undertakings
(a) The undersigned 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:
(i) To include any prospectus required by Section 10(a)(3) of the
securities Act 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 paragraph (1)(i) and (I)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraph is contained in periodic reports filed by the
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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 amendments 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.
To remove from registration by mean of a post-effective amendment any of
the securities being registered hereunder that remain unsold at the termination
of the offering.
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 and
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.
(3) 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 of the
requirements for filing a form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California on December 4, 2001.
THE AMANDA COMPANY, INC.
By /s/ Jose Candia
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Jose Candia, Director/CEO
Each person whose signature appears below hereby constitutes and appoints Jose
Candia as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission under the Securities Act
of 1933. Pursuant to the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates indicated.
Signature Title Date
- ---------- --------- ----
/s/ David Woo
David Woo Chairman December 4, 2001
/s/ Jose Candia
Jose Candia Director/CEO December 4, 2001
/s/Brian Bonar
Brian Bonar Director December 4, 2001
/s/ Steve Fryer
Steve Fryer Director December 4, 2001
/s/ Tim Morgan
Tim Morgan Director December 4, 2001
/s/ Bill Prevot
Bill Prevot Director December 4, 2001
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INDEX TO EXHIBITS
Exhibit
NO. Description
4.1 Advisory and Consulting Agreements
5.1 Opinion of Counsel, regarding the legality of the securities registered
hereunder.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (included as part of Exhibit 5.1)
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Exhibit 4.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of November
30, 2001, by and between Frank Kavanaugh, 1301 Dove Street, Suite 800, Newport
Beach, CA, 92663 ("Consultant") and The Amanda Company, Inc. with offices at
13765 Alton Parkway, Suite F, Irvine, CA 92618 (the "Company").
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating to management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on November 30, 2002, unless earlier terminated
in accordance with paragraph 7 herein or extended as agreed to between the
parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to,
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions
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and business opportunities, and shall review and advise the Company regarding
its overall progress, needs and condition. Consultant agrees to provide on a
timely basis the following enumerated services plus any additional services
contemplated thereby:
(a) The implementation of short-range and long-term strategic planning to
fully develop and enhance the Company's assets, resources, products and
services;
(b) The implementation of an international marketing program to enable the
Company to broaden the markets for its services and promote the image of
the Company and its products and services;
(c) Advise the Company relative to the recruitment and employment of key
executives consistent with the expansion of operations of the Company;
(d) The identification, evaluation, structuring, negotiating and closing of
international joint ventures, strategic alliances, business acquisitions
and advice with regard to the ongoing managing and operating of such
acquisitions upon consummation thereof; and
(e) Advice and recommendations regarding corporate financing including the
structure, terms and content of bank loans, institutional loans, private
debt funding, mezzanine financing, blind pool financing and other preferred
and common stock equity private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
5. COMPENSATION.
The Company will immediately grant Consultant 8,000,000 shares of the
Company's Common Stock. Consultant in providing the foregoing services shall be
reimbursed for any pre-approved out-of-pocket costs, including, without
limitation, travel, lodging, telephone, postage and Federal Express charges.
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6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of notice
in writing from the Company will rely on the continuing accuracy of material,
information and data supplied by the Company. Consultant represents that he has
knowledge of and is experienced in providing the aforementioned services.
7. MISCELLANEOUS.
Termination: This Agreement may be terminated by either Party upon written
notice to the other Party for any reason which shall be effective five (5)
business days from the date of such notice. This Agreement shall be terminated
immediately upon written notice for material breach of this Agreement.
Modification: This Consulting Agreement sets forth the entire understanding
of the Parties with respect to the subject matter hereof. This Consulting
Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall be in
writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number, as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court
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having jurisdiction thereof. Arbitration shall occur only in Orange County, CA.
The interpretation and the enforcement of this Agreement shall be governed by
California Law as applied to residents of the State of California relating to
contracts executed in and to be performed solely within the State of California.
In the event any dispute is arbitrated, the prevailing Party (as determined by
the arbiter(s)) shall be entitled to recover that Party's reasonable attorney's
fees incurred (as determined by the arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
THE AMANDA COMPANY, INC. CONSULTANT
/s/ Jose Candia /s/ Frank Kavanaugh
Jose Candia Frank Kavanaugh
Chief Executive Officer/Director
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Exhibit 5.1
OPINION OF COUNSEL
Owen M. Naccarato
Attorney at Law
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261 / (949) 851-9262 (fax)
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December 4, 2001
The Amanda Company, Inc.
13765 Alton Parkway
Irvine, CA 92618
Re: Registration Statement on Form S-8
Gentleman:
I have acted as counsel for The Amanda Company, 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 8,000,000 shares of the Company's common
stock, no par value, (the "common stock"), issuable pursuant to the Company's
Advisory and Consultants Agreements, (the "Plan").
I have examined the Certificate of Incorporation, as amended, 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 and
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in my judgment are necessary or appropriate to enable me to
render the opinions expressed below.
Based on the foregoing examination, I am of the opinion that the shares of
Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
Owen Naccarato, Esq.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8, under
caption "Experts", the reference to our report dated December 28, 2000 with
respect to the Financial Statements of The Amanda Company, Inc, for the year
ended September 30, 2000.
/s/ Pohl, McNabola, Berg & Company LLP
Pohl, McNabola, Berg & Company LLP
December 4, 2001
San Francisco, California
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