Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
PITTS AND SPITTS, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0393257
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(State or other jurisdiction (IRS Employer
of incorporation) Identification No.)
14221 Eastex Freeway, Houston, Texas 77032
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(Address of Principal Executive Offices) (Zip Code)
Stock Issuances for Consulting and Legal Services
-------------------------------------------------
(Full title of the plan)
Copy to:
Paul Syracuse David Loev
Pitts and Spitts, Inc. Vanderkam & Sanders
14221 Eastex Freeway 440 Louisiana, Suite 475
Houston, Texas 77032 Houston, Texas 77002
(281) 442-5013 (713) 547-8900
(Name, address and telephone
number of agent for service)
Approximate date of proposed sales pursuant to the plan: From time to time
after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
================================ ============== =================== ==================== =============
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration
share (1) price fee
- -------------------------------- -------------- ------------------- -------------------- -------------
Common Stock, $.001 par value 800,000 $ .25 $200,000 $18.40
================================ ============== =================== ==================== =============
(1) Calculated in accordance with Rule 457(c) solely for the purpose of
determining the registration fee. The offering price is based on the
average bid and asked price as reported on the Nasdaq Electronic Bulletin
Board on November 1, 2002.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Information required by Item 1 is included in documents sent or given
to participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Information required by Item 2 is included in documents sent or given
to participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement and are made a part hereof:
(a) The Company's most recent annual report filed on Form 10-KSB filed on
April 22, 2002.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in Item 3(a) above, including, but not limited to,
the Company's quarterly reports on Form 10-QSB filed on May 20, 2002
and August 20, 2002.
All reports and other documents subsequently filed by the Company
pursuant to Sections 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 hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
General. The Company is authorized to issue 80,000,000 shares of Common
Stock, $.001 par value per share.
The holders of the Common Stock are entitled to receive dividends when, as
and if declared by the Board of Directors, out of funds legally available
therefor. In the event of liquidation, dissolution or winding up of the Company,
the holders of the Common Stock are entitled to share ratably in all assets
remaining available for distribution to them after payment of liabilities and
after provision has been made for each class of stock, if any, having preference
over the Common Stock. The holders of the Common Stock as such have no
conversion, preemptive or other subscription rights and there are no redemption
provisions applicable to the Common Stock.
Voting Rights. The holders of the Common Stock are entitled to one vote
for each share held of record on all matters to be voted on by stockholders.
There is no cumulative voting with respect to the election of directors, with
the results that the holders of shares having more than fifty percent (50%) of
the votes for the election of directors can elect all of the directors.
Dividend Policy. To date, the Company has not paid any dividends on its
Common Stock. The payment of dividends, if any, in the future is within the
discretion of the Board of Directors and will depend upon the Company's
earnings, its capital requirements and financial condition and other relevant
factors. The Board does not intend to declare any dividends in the foreseeable
future, but instead intends to retain all earnings, if any, for use in the
Company's business operations.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Vanderkam & Sanders, corporate counsel to the Company, is
receiving 400,000 shares of Company common stock pursuant to this Form S-8
Registration Statement.
ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws eliminate the personal liability of directors,
officers, and persons acting pursuant to instructions from directors and
officers to the Company or its stockholders for monetary damages for breach of
fiduciary duty to the extent permitted by Nevada law. The Company's Bylaws
further provide that the Company shall have the power to indemnify its officers
and directors to the extent permitted by Nevada law. Nevada law authorizes a
corporation to indemnify directors, officers, employees or agents of the
corporation in non-derivative suits if such party acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, as determined in
accordance with Nevada law.
The provisions affecting personal liability do not abrogate a
director's fiduciary duty to the Company and its shareholders, but eliminate
personal liability for monetary damages for breach of that duty. The provisions
do not, however, eliminate or limit the liability of a director for failing to
act in good faith, for engaging in intentional misconduct or knowingly violating
a law, for authorizing the illegal payment of a dividend or repurchase of stock,
for obtaining an improper personal benefit, for breaching a director's duty of
loyalty, which is generally described as the duty not to engage in any
transaction which involves a conflict between the interest of the Company and
those of the director, or for violations of the federal securities laws.
The provisions regarding indemnification provide, in essence, that the
Company will indemnify its directors against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding arising out of the
director's status as a director of the Company, including actions brought by or
on behalf of the Company (shareholder derivative actions). The provisions do not
require a showing of good faith. Moreover, they do not provide indemnification
for liability arising out of willful misconduct, fraud, or dishonesty, for
"short-swing" profits violations under the federal securities laws, for the
receipt of illegal remuneration or if the director received a benefit in money,
property or services to which the director is not legally entitled. The
provisions also do not provide indemnification for any liability to the extent
such liability is covered by insurance.
The provisions also limit or indemnify against liability resulting from
grossly negligent decisions including grossly negligent business decisions
relating to attempts to change control of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Consulting Agreement dated November 1, 2002 with Vanderkam &
Sanders
4.2 Consulting Agreement dated November 1, 2002 with Royall &
Fleschler.
5.1 Opinion and consent of Vanderkam & Sanders re: the legality of
the shares being registered
23.1 Consent of Vanderkam & Sanders (included in Exhibit 5.1)
23.2 Consent of Malone & Bailey, PLLC
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sells
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 or any material change to such information
in the registration statement.
(2) That, for the purpose of determining liability under
the Securities Act of 1933, each post-effective
amendment shall be treated as a new registration
statement of the securities offered, and the offering
of the securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
(b) 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 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.
(c) 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 it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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 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 Houston, Texas on the 5th day of November 2002.
PITTS AND SPITTS, INC.
By: /s/ Kimberly Syracuse
------------------------------
Kimberly Syracuse , President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
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/s/ Kimberly Syracuse President and Director November 5, 2002
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Kimberly Syracuse
/s/ Paul Syracuse Chief Executive Officer and Director November 5, 2002
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Paul Syracuse
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 1st day of
November 2002 by and between Pitts and Spitts, Inc. (the "Company"), and Royall
& Fleschler (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant with respect to
certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof and end on
December 31, 2002.
2. CONSULTING SERVICES
(a) Accounting and assistance with preparation of financial statements.
(b) Compensation. In consideration of the consulting services set forth in
paragraph 2 (a), and subject to the terms and conditions set forth
herein the Company hereby agrees to issue to Consultant 400,000 shares
of the Company's Common stock against amounts owing under the
agreement between the Company and Consultant (the "Shares") and
register such shares at the time of initial issuance, or immediately
thereafter, on Form S-8 under the Securities Act of 1933.
(c) Issuance. Issuance and delivery of the Common Stock shall be within 10
days of the filing of the Form S-8, at which time, the Company shall
deliver to the Consultant:
(i) the certificate or certificates evidencing the Shares to be
issued to the Consultant and the respective dates, registered in
the name of the Consultant; and
(ii)evidence that the Shares have been registered on Form S-8 to be
filed upon issuance of the Shares to the Consultant, registering
for resale thereof.
(d) Expenses.
During the term of the Consultant's engagement hereunder. The Consultant
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Consultant in performing services hereunder.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the providing of
Consulting Services, hereunder, the Company may provide the Consultant with
information concerning the Company which the Company deems confidential (the
"Confidential Information"). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement is secret,
proprietary and of great value to the Company, which value may be impaired if
the secrecy of such information is not maintained. The Consultant further agrees
that she will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information in
confidence and not to disclose such information, either directly or indirectly
to any person or entity during the term of this agreement or any time following
the expiration or termination hereof; provided, however, that the Consultant may
disclose the Confidential Information to an assistant to whom disclosure is
necessary for the providing of services under this agreement.
(b) Exclusions. For purposes of this paragraph 3, the term Confidential
Information shall not include Information which (i) becomes generally available
to the public other than as a result of a disclosure by the Consultant or his
assistants, agents or advisors, or (ii) becomes available on a non-confidential
basis to the Consultant from a source other than the Company or its advisors,
provided that such source is not known to the Consultant to be bound by a
Confidentiality agreement with or other obligation of secrecy to the Company or
another party.
(c) Government Order. Notwithstanding anything to the contrary in this
Agreement, the Consultant shall not be precluded from disclosing any of the
Confidential Information pursuant to a valid order of any governmental or
regulatory authority, or pursuant to the order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a violation of
this paragraph 3 would cause irreparable injury to the Company, and that there
may not be an adequate remedy at law for such violation, the Company shall have
the right in addition to any other remedies available at law or in equity, to
enjoin the Consultant in a court of equity for violating the provisions of this
paragraph 3.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly organized
and validly existing in good standing under the laws of its jurisdiction of
incorporation and has full power and authority to own its respective property,
carry on its respective business as now being conducted, and enter into and
perform its obligations under this Agreement and to issue and deliver the Shares
to be issued by it hereunder. The Company is duly qualified as a jurisdiction in
which it is necessary to be so qualified to transact business as currently
conducted. This Agreement, has been duly authorized by all necessary corporate
action, executed, and delivered by the Company, and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally and to general principals of equity.
(b) Authorization and Validity of Shares. The Shares have been duly
authorized and are validly issued and outstanding, fully paid and non-assessable
and free of any preemptive rights. The Shares are not subject to any lien,
pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all actions and
obtained all consents or approvals necessary to authorize it to enter into this
Agreement.
(d) No Violation. Neither the execution or delivery of this Agreement, the
issuance or delivery of Shares, the performance by the Company of its
obligations under this Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a breach of or a
default (with the passage of time or otherwise) under, require the consent or
approval of or filing with any person (other than consent and approvals which
have been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or assets of the
Company, pursuant to the charter or bylaws of the Company, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instruments, order, judgment, decree, statute, law, rule or regulation to which
the Company is a party or to which any such person or any of their respective
properties or assets is subject.
(e) Registration. The Shares have been, or will be upon the filing of an
S-8 Registration Statement, registered pursuant to the Securities Act of 1933,
as amended, and all applicable state laws.
5. FILINGS
The Company shall furnish to the Consultant, promptly after the sending or
filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD")
6. SUPPLYING INFORMATION
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and
all expenses (including attorneys' fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in connection with such
action, suit or proceeding if (i) the Consultant was made a party to any action,
suit or proceeding by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause or 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 Consultant did not act in good faith in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not indemnify the
Consultant with respect to any claim, issue or matter as to which the Consultant
shall have been adjudged to be liable for gross negligence or willful misconduct
in the performance or other duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and against any and
all expenses (including attorney's fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection with such action,
suit or proceeding if (i) the Company was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was unlawful. Notwithstanding
the foregoing, the Consultant shall not indemnify the Company with respect to
any claim, issue or matter as to which the Company shall have been adjudged to
be liable for gross negligence or willful misconduct in connection with the
performance of the Consultant's duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all circumstances of the case, the Company is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state, or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that the
Consultant is an independent contractor and the Company shall have no right to
control the activities of the Consultant other than during the express period of
time in which the Consultant is performing services hereunder, and that such
services provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the company.
The parties further acknowledge that the Company's services hereunder
are not exclusive, but that the Consultant shall be performing services and
undertaking other responsibilities, for and with other entities or persons,
which may directly or indirectly compete with the Company. Accordingly, the
services of the Consultant hereunder are on a part time basis only, and the
Company shall have no discretion, control of, or interest in, the Consultant's
services which are not covered by the terms of the Agreement. The Company hereby
waives any conflict of interest which now exists or may hereafter arise with
respect to Consultant's current employment and future employment.
9. NOTICE
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
To Consultant: Royall & Fleschler
1010 Lamar, Suite 475
Houston, Texas 77002
To the Company: Pitts and Spitts, Inc.
14221 Eastex Freeway
Houston, Texas 77032
10. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all other
agreements between the parties with respect to any services to be performed by
the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Texas.
(d) Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(e) Construction. The captions and headings contained herein are inserted
for convenient reference only, are not a part hereof and the same shall not
limit or construe the provisions to which they apply. Reference in this
agreement to "paragraphs" are to the paragraphs in this Agreement, unless
otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the cost and
expenses, including, without limitation, attorney's fees, incurred by such party
in connection with negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights or delegate
any of its obligations under this Agreement without the express written consent
of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied is intended or
shall be construed to confer upon or give to any person, firm or corporation,
other than the parties hereto.
i) Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
PITTS AND SPITTS, INC.
By:/s/ Kimberly Syracuse
Its: President
ROYALL & FLESCHLER
By:/s/ Sammy Fleschler
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 1st day of
November 2002 by and between Pitts and Spitts, Inc., (the "Company"), and
Vanderkam & Sanders (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant with respect to
certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof and end on
December 31, 2002.
2. CONSULTING SERVICES
(a) Legal services both current and for services already rendered. Expenses
incurred in the rendering of such services.
(b) Compensation. In consideration of the consulting services set forth in
paragraph 2 (a), and subject to the terms and conditions set forth herein
the Company hereby agrees to issue to Consultant 400,000 shares of the
Company's Common stock (the "Shares") and register such shares at the time
of initial issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933.
(c) Issuance. Issuance and delivery of the Common Stock shall be within 10
days of filing of the Form S-8, at which time, the Company shall deliver to
the Consultant:
(i) the certificate or certificates evidencing the Shares to be issued to
the Consultant and the respective dates, registered in the name of the
Consultant; and
(ii)evidence that the Shares have been registered on Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering for resale
thereof.
(d) Expenses.
During the term of the Consultant's engagement hereunder. The Consultant
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Consultant in performing services hereunder.
3. CONFIDENTIAL INFORMATION
(a) Confidential Information. In connection with the providing of
Consulting Services, hereunder, the Company may provide the Consultant with
information concerning the Company which the Company deems confidential (the
"Confidential Information"). The Consultant understands and agrees that any
Confidential Information disclosed pursuant to this Agreement is secret,
proprietary and of great value to the Company, which value may be impaired if
the secrecy of such information is not maintained. The Consultant further agrees
that it will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information in
confidence and not to disclose such information, either directly or indirectly
to any person or entity during the term of this agreement or any time following
the expiration or termination hereof; provided, however, that the Consultant may
disclose the Confidential Information to an assistant to whom disclosure is
necessary for the providing of services under this agreement.
(b) Exclusions. For purposes of this paragraph 3, the term Confidential
Information shall not include Information which (i) becomes generally available
to the public other than as a result of a disclosure by the Consultant or his
assistants, agents or advisors, or (ii) becomes available on a non-confidential
basis to the Consultant from a source other than the Company or its advisors,
provided that such source is not known to the Consultant to be bound by a
Confidentiality agreement with or other obligation of secrecy to the Company or
another party.
(c) Government Order. Notwithstanding anything to the contrary in this
Agreement, the Consultant shall not be precluded from disclosing any of the
Confidential Information pursuant to a valid order of any governmental or
regulatory authority, or pursuant to the order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a violation of
this paragraph 3 would cause irreparable injury to the Company, and that there
may not be an adequate remedy at law for such violation, the Company shall have
the right in addition to any other remedies available at law or in equity, to
enjoin the Consultant in a court of equity for violating the provisions of this
paragraph 3.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly organized
and validly existing in good standing under the laws of its jurisdiction of
incorporation and has full power and authority to own its respective property,
carry on its respective business as now being conducted, and enter into and
perform its obligations under this Agreement and to issue and deliver the Shares
to be issued by it hereunder. The Company is duly qualified as a jurisdiction in
which it is necessary to be so qualified to transact business as currently
conducted. This Agreement, has been duly authorized by all necessary corporate
action, executed, and delivered by the Company, and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally and to general principals of equity.
(b) Authorization and Validity of Shares. The Shares have been duly
authorized and are validly issued and outstanding, fully paid and non-assessable
and free of any preemptive rights. The Shares are not subject to any lien,
pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all actions and
obtained all consents or approvals necessary to authorize it to enter into this
Agreement.
(d) No Violation. Neither the execution or delivery of this Agreement, the
issuance or delivery of Shares, the performance by the Company of its
obligations under this Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, violate, constitute a breach of or a
default (with the passage of time or otherwise) under, require the consent or
approval of or filing with any person (other than consent and approvals which
have been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or assets of the
Company, pursuant to the charter or bylaws of the Company, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instruments, order, judgment, decree, statute, law, rule or regulation to which
the Company is a party or to which any such person or any of their respective
properties or assets is subject.
(e) Registration. The Shares have been, or will be upon the filing of an
S-8 Registration Statement, registered pursuant to the Securities Act of 1933,
as amended, and all applicable state laws.
5. FILINGS
The Company shall furnish to the Consultant, promptly after the sending or
filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD")
6. SUPPLYING INFORMATION
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and
all expenses (including attorneys' fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in connection with such
action, suit or proceeding if (i) the Consultant was made a party to any action,
suit or proceeding by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause or 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 Consultant did not act in good faith in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not indemnify the
Consultant with respect to any claim, issue or matter as to which the Consultant
shall have been adjudged to be liable for gross negligence or willful misconduct
in the performance or other duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and against any and
all expenses (including attorney's fees), judgments, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection with such action,
suit or proceeding if (i) the Company was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was unlawful. Notwithstanding
the foregoing, the Consultant shall not indemnify the Company with respect to
any claim, issue or matter as to which the Company shall have been adjudged to
be liable for gross negligence or willful misconduct in connection with the
performance of the Consultant's duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all circumstances of the case, the Company is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state, or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that the
Consultant is an independent contractor and the Company shall have no right to
control the activities of the Consultant other than during the express period of
time in which the Consultant is performing services hereunder, and that such
services provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Company's services hereunder
are not exclusive, but that the Consultant shall be performing services and
undertaking other responsibilities, for and with other entities or persons,
which may directly or indirectly compete with the Company. Accordingly, the
services of the Consultant hereunder are on a part time basis only, and the
Company shall have no discretion, control of, or interest in, the Consultant's
services which are not covered by the terms of the Agreement. The Company hereby
waives any conflict of interest which now exists or may hereafter arise with
respect to Consultant's current employment and future employment.
9. NOTICE
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
To Consultant: Vanderkam & Sanders
440 Louisiana, Suite 475
Houston, Texas 77002
To the Company: Pitts and Spitts, Inc.
14221 Eastex Freeway
Houston, Texas 77032
10. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at
any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all other
agreements between the parties with respect to any services to be performed by
the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Texas.
(d) Binding Effect. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
(e) Construction. The captions and headings contained herein are
inserted for convenient reference only, are not a part hereof and the same shall
not limit or construe the provisions to which they apply. Reference in this
agreement to "paragraphs" are to the paragraphs in this Agreement, unless
otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the cost and
expenses, including, without limitation, attorney's fees, incurred by such party
in connection with negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights or
delegate any of its obligations under this Agreement without the express written
consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person, firm or
corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
Pitts and Spitts, Inc.
By:/s/ Kimberly Syracuse
Its: President
Vanderkam & Sanders
By:/s/ David Loev
Vanderkam & Sanders
440 Louisiana, #475
Houston, TX 77002
713-547-8900 phone
713-547-8910 facsimile
November 4, 2002
Pitts and Spitts, Inc.
14221 Eastex Freeway
Houston, Texas 77032
Re: Form S-8 Registration Statement
Gentlemen:
You have requested that we furnish you our legal opinion with respect
to the legality of the following described securities of Pitts and Spitts, Inc.
(the "Company") covered by a Form S-8 Registration Statement, as amended through
the date hereof (the "Registration Statement"), filed with the Securities and
Exchange Commission for the purpose of registering such securities under the
Securities Act of 1933:
1. 800,000 shares of common stock, $.001 par value (the "Shares")
issuable pursuant to Consulting Agreements dated November 1, 2002 (the
"Agreements").
In connection with this opinion, we have examined the corporate records
of the Company, including the Company's Articles of Incorporation, Bylaws, and
the Minutes of its Board of Directors and Shareholders meetings, the Agreements,
the Registration Statement, and such other documents and records as we deemed
relevant in order to render this opinion.
Based on the foregoing, it is our opinion that, after the Registration
Statement becomes effective and the Shares have been issued and delivered as
described therein, the Shares will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with Securities and
Exchange Commission as an exhibit to the Registration Statement and further
consent to statements made therein regarding our firm and use of our name under
the heading "Legal Matters" in the Prospectus constituting a part of such
Registration Statement.
Sincerely,
VANDERKAM & SANDERS
/s/ Vanderkam & Sanders
MALONE & BAILEY, PLLC
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation of our report dated April 16, 2002 in
this Registration Statement on Form S-8 of Pitts and Spitts, Inc.
We also consent to the references to us under the heading "Experts" in such
Document.
November 4, 2002
Malone & Bailey, PLLC
- --------------------------
Malone & Bailey, PLLC
Houston, Texas