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IN ACCORDANCE WITH RULE 201 OF REGULATION S-T, THIS FORM 10-SB IS
BEING FILED IN PAPER PURSUANT TO A TEMPORARY HARDSHIP EXEMPTION.
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
MEDIFORCE, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
FLORIDA 65-0786902
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<S> <C>
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
580 Village Boulevard, Suite 160, West Palm Beach, FL. 33409
- ------------------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (561) 640-6000
-----------------------------
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.0001
- --------------------------------------------------------------------------------
(Title of class)
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PART I.
ITEM 1. DESCRIPTION OF BUSINESS
OVERVIEW
MediForce, Inc. (the "Company"), a Florida corporation, develops,
manufactures and markets state-of-the-art, high quality, transparent,
lightweight, and revolutionary medical body support devices. Currently, the
Company offers four products to the world market and is in the process of
developing other products which will be added to its product line. The Company
sees itself as an innovative major worldwide source for ergonomic devices,
manufactured in the United States, that are cost effective, durable, and
attractive enough to encourage the patient or wearer to actually utilize the
devices in order to receive the device's therapeutic and preventive benefits.
In September 1998, the Company formed MediForce Products, Inc. ("MPI"),
a wholly-owned subsidiary. MPI was established for the purpose of allowing the
Company to separate its business relating to medical devices and allow those
operations to develop separately.
Additionally, in September 1998, the Company agreed to purchase the
outstanding shares of stock of General Environmental Technologies, Inc.
("GETI"), a Florida corporation, in exchange for the issuance of 8,500,000
shares of the Company's stock. GETI is engaged in the business of demolition,
remediation and environmental clean up of polluted land for large corporations
and governmental agencies.
COMPANY HISTORY
In 1986, Michael F. Cox, the former Chairman of the Company, a widely
recognized inventor and artist, injured his back severely and designed a device
to support his back. He continued development of his device, which centers on
the use of light weight, transparent, and cost effective materials which utilize
the physics of opposing forces in order to properly brace various parts of the
human anatomy. On March 25, 1993, Mr. Cox incorporated the Company under the
name Mold-A-Brace, Inc. to develop and market his back device. The Company later
changed its name to MediForce, Inc. on August 22, 1996.
SUBSIDIARIES
MediForce Products, Inc.
On September 8, 1998, the Company's Board of Directors agreed to form a
wholly-owned subsidiary, MediForce Products, Inc. ("MPI"). MPI was incorporated
on October 16, 1998, in the State of Florida. In connection with MPI's
formation, the Company transferred all of its assets and liabilities to MPI,
including the Company's inventory and patents. The Company's founder and former
Chairman of the Board was appointed Chairman of the Board of MPI. MPI will
continue to offer the products offered by the Company, which are described
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below.
General Environmental Technologies, Inc.
General Environmental Technologies, Inc. ("GETI"), was incorporated in
the State of Florida on October 7, 1997, as Clean Land Company, and on May 21,
1998, it changed its name to General Environmental Technologies, Inc. GETI is a
holding company for three wholly-owned subsidiaries engaged in the business of
demolition, remediation and environmental clean up of polluted land for large
corporations and governmental agencies.
On September 9, 1998, the Company agreed to purchase GETI by issuing
8,500,000 shares of its common stock in exchange for 100% of the stock owned by
GETI's shareholders. In addition, it is anticipated the Company will receive
$250,000 over a period of one year from GETI to provide working capital for MPI.
Iroquois Wrecking Corp.
Iroquois Wrecking Corp. ("Iroquois Wrecking"), a wholly-owned
subsidiary of GETI, is a New York corporation, which provides building
demolition services to governmental agencies and all sites which require union
or prevailing wage labor pools. Iroquois Wrecking has just completed demolition
of a structure at Queens Hospital in Queens, New York, and is continuing
operations for the removal of face brick for the New York Housing Authority at
Williamsburg Houses in Brooklyn. In November 1998, Iroquois Wrecking will begin
the demolition of the Brooklyn Psychiatric Center and an abandoned steel mill in
a suburb of Philadelphia, Pennsylvania.
Iroquois Wrecking does not market its services, but instead procures
its contracts by assignment from Iroquois Corp., a related entity. Its parent,
GETI, believes that this is the best method of marketing its services because
the industry users and insurers then rely on one company as a "one stop shop"
for their needs.
Indigo Industries, Inc.
Indigo Industries, Inc. ("Indigo"), a Florida corporation, was
incorporated on January 21, 1997. Indigo, a wholly-owned subsidiary of GETI, has
completed a government-related demolition job for the Veterans Administration
and is awaiting final payment. GETI contemplates that Indigo will be operated as
the asbestos abatement and environmental remediation subsidiary of GETI
beginning in 1999. This operational change will allow Indigo to relieve Iroquois
Corp., a related entity, of its current asbestos abatement operations. Indigo
will begin marketing itself for stand alone operations while providing all
related services required by other GETI subsidiaries.
Competition in asbestos removal and site remediation has dwindled to a
minimal number since the demise of the "Super Fund" program which provided for
site cleanup with guaranteed federal government payments. The majority of the
asbestos removal is now done in buildings undergoing remodeling and in
demolition.
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Iroquois Corporation
Iroquois Corporation ("Iroquois"), a Florida corporation, was
incorporated on April 28, 1998. Iroquois, a wholly-owned subsidiary of GETI,
provides building demolition, tear outs and asbestos abatement services to
property owners who do not require union or prevailing wage labor pools.
Additionally, Iroquois generally removes all scrap metal from demolished
buildings and markets such scrap to enhance each job's profitability. Various
trade-related publications have considered Iroquois to be one of the top twenty
companies in the United States in both demolition and abatement.
Iroquois participates in an extremely fragmented industry in which most
competitors contract for and complete less than $10 million of work annually.
The reasons for this limited competition vary by company; however, all seem to
share common attributes such as lack of bonding capacity, lack of financing
availability and chronic equipment shortages. Iroquois is anticipated to secure
$20 million in contracts in the period from March 1998 through February 1999.
Iroquois believes that adequate funding and bonding commitments are in place to
meet its needs for the foreseeable future.
Iroquois is currently completing a $1.8 million demolition job for
Federated Department Stores in Hempstead, New York. It is anticipated that this
project will be completed in 1998. Additionally, several bids are pending and
one bid has been accepted. Iroquois markets itself in the Northeast,
Pennsylvania, Delaware, Ohio and Michigan. Also, Iroquois intends to utilize its
contacts in the Washington D.C. to Baltimore area as well as in California and
Florida to facilitate expansion.
PRODUCTS
Mold-A-Brace
Mold-A-Brace is a back brace that is a unique transparent body support
and brace designed for localized immobilization of parts of the living body
whereby the supports are conformable to the area that needs immobilization and
healing may be observed. The brace is individually applied on each patient by
heat-forming two opposing transparent plates to the patients abdomen and back,
which are locked in place with velcro straps. MPI designs and manufactures the
brace under the Mold-A-Brace trademark. The Company plans to have Mold-A-Braces
available for twenty different parts of the human body. There is a worldwide
potential need for 16 million conformable braces per year, based upon a rate of
only one brace per month per medical practitioner who utilizes such braces.
Bio-Back
Bio-Back is a pre-formed generic lower back support which uses the
science of physics and applies opposing forces, to align the spine, support the
abdomen, and ergonomically promote correct and erect posture. Bio-Back helps
prevent back injury and promotes correct posture.
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Based upon 80 million Americans who suffer from back pain, the Company
estimates there is a total of 1.1 billion potential users for the Bio-Back in
the marketplace of eighteen countries.
Bio-Wrist
Bio-Wrist is a new state-of-the-art patented product which alleviates
the pain of Carpal Tunnel Syndrome. The Bio-Wrist immobilizes the human wrist
with opposing forces without impeding the use of the hand and fingers. Based
upon 20 million Americans who suffer from wrist pain, the Company estimates
there is a worldwide total of 270 million potential users of the Bio-Wrist.
Bio-Elbow
The Bio-Elbow uses patented opposing forces and an extensor muscle dome
to aid in eliminating the pain of tennis or golf elbow as well as repetitive
motion tendinitis. Based upon 10 million Americans who suffer from forearm
pain, the Company estimates there is a worldwide total of 138.5 million
potential customers for the Bio-Elbow.
SERVICES
GETI, through its wholly-owned subsidiaries, Iroquois Wrecking Corp.,
Indigo Industries, Inc., and Iroquois Corporation, provides services relating to
the demolition, remediation, and environmental clean up of polluted land for
large corporations and governmental agencies. GETI has won several contracts for
services subject to adequate financing of these projects, which total
approximately $14,324,000 and are anticipated to be completed within the next
two years. The subsidiaries provide their services primarily in the Northeast
area of the country. Furthermore, GETI has upcoming bids totalling approximately
$38,600,000 subject to adequate financing which may be completed over the next
one to three years. These bids require adequate working capital to service these
projects. Any environmental compliance costs are contract specific.
THE MARKET
Presently, the Company sells its products nationally. However, the
market for the Company's orthopedic and ergonomic products is growing at a rapid
rate. The world's population is sustaining more recreational and occupational
injuries than ever before. There is a worldwide market of 1.5 billion people
with medical problems, back, wrist, or arm, who need and can use the Company's
current products.
The Company's orthopedic and ergonomic products have a current market
place in the areas of:
<TABLE>
<S> <C> <C>
Medical Practitioners Occupational Safety Internet Sales
Hospitals Sports and Recreation Home Shopping Television
Medical Supply Dealers Mass Marketing Infomercial
Sport Medicine Mail Order Television Commercials
</TABLE>
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The American Institute of Preventive Health estimates that there are 80
million Americans currently suffering from some form of back pain. Back injuries
are the leading cause of Workers Compensation claims, and the second largest
cause of absenteeism. According to CTDNEWS, from the Center for Workplace Health
Information, back supports have annual sales of $300 million in the U.S. alone.
Additionally, due to the increase of occupations requiring repetitive
motion, such as working at a computer, Carpal Tunnel Syndrome is becoming a
major factor in health costs. University of Minnesota researchers estimate that
Carpal Tunnel Syndrome costs Americans at least $2 billion each year.
Marketing Plan
The Company's marketing strategy is to enhance, promote, and support
the fact that the Company's products are state-of-the-art, cost effective, and
offer more benefits than competing products.
Sales Strategy
The Company's sales strategy is to position the Company's products as
the cost effective "Roll Royce" of body supports in both the therapeutic and
preventive marketplaces. Sales strategy specific to the Bio-Wrists and Bio-Elbow
will be based upon test marketing currently being done.
The Company started marketing its products in September of 1995 and has
successfully shown products at the National Safety Council Congress, the Medical
Trade Show, the American Academy of Orthosists and Prosthesists, and the
Promotional Products Association International Show. Additionally, the Company
plans to film commercials which will be produced and used in the Company's
advertising campaign. The Company believes that advertising and promotion, along
with attendant publicity, is the keystone for successful marketing and brand
recognition. The strategy is to position the Company as the leading manufacturer
in the market.
All Company products are presently featured on a CD-ROM medical supply
catalog distributed by the Medical Data Institute. This catalog contains over
575,000 products and is regarded as the main reference source for medical supply
dealers and health care facilities. Products brochures, catalog sheets and the
Bio-Back video are professional state-of-the-art sales materials.
PATENTS
The Mold-A-Brace is protected under United States Patent Number
5,433,697 under its generic name "Conformable Back Brace with Abdominal
Support." This patent is granted to Michael Cox, the Company's former, and MPI's
current, Chairman of the Board. The Bio-Wrist is protected under United States
Patent Number 5,672,150. This patent is also granted to Mr. Cox. All of the
other products of the Company are protected under patent pending as well as
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patents pending in 17 foreign countries granted to Mr. Cox. All medical body
support devices manufactured by MPI are protected under an exclusive patent
license agreement in 18 countries.
On May 25, 1998, the Company executed a license agreement with Mr. Cox
to exclusively use, sell, distribute, manufacture, market, develop and
sublicense the Mold-A-Brace throughout the world. The license agreement will
continue in effect until May 25, 2004. In consideration for this license
agreement, Mr. Cox is to receive $100,000 annually.
EMPLOYEES
As of September 30, 1998, the Company had personnel consisting of 60
full-time employees and 5 part-time employees.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
BUSINESS OPERATIONS OVERVIEW
During the first quarter of the fiscal year 1998, the Company spent the
majority of management time designing new molds for the currently marketed
product and developing additional products for the support of chronically
painful or injured wrists and elbows. The Company also concentrated on
interviewing potential manufacturers and mold makers as well as preparing
additional marketing materials for the roll out of the new and improved product
line.
The Company intends to market all of the products over the remainder of
the fiscal year by returning to television advertising in January 1999, and
hiring a sales force to market directly to the country's major drug store
chains, and general merchandise discounters. Additional niche markets include
golf and tennis pro shops, and medical professional practices, including
orthopedic physicians and chiropractors. All of the above markets will be
attacked nationwide. Initially, the Southeast and East markets will enjoy the
product roll out. The ability to market the product line is dependent upon
receiving adequate financing.
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
attached condensed financial statements and notes thereto.
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Financial Results of Operations
The Comparison of the Three Months Ended June 30, 1998, to the Three
Months Ended June 30, 1997.
The Company's revenue decreased from $357,388 for the quarter ended
June 30, 1997, to $18,317 for the quarter ended June 30, 1998. This decrease is
a direct result of the failure to find suitable manufacturing for the Bio-Back
products after the prior manufacturing of the product was found to be defective.
Cost of sales decreased to $16,230 for the quarter ended June 30, 1998,
from $42,886 for the same quarter in 1997. The reduction is due to the decline
in sales. The increase in the percentage of cost of sales is explained by the
requirement to fulfill warranty requirements for the products returned to the
Company due to the defective manufacturing described above.
The Company's general and administrative costs decreased to $117,532
for the quarter ended June 30, 1998, from $554,927 for the quarter ended June
30, 1997. The decrease is due to the fact the 1997 quarter included $458,127 in
advertising costs for which no comparable costs were incurred in the 1998
quarter.
The Company reported a net loss for the first fiscal quarter of 1998 of
$24,480 compared to a loss of $253,635 for the 1997 first fiscal quarter. The
loss reduction was created by a one-time event for additional earnings not
related to operations totaling $93,258. The largest gain was from the issuance
of common stock for $74,144.
The Comparison of the Year Ended March 31, 1998, to the Year Ended
March 31, 1997.
The Company's annual revenues increased from $113,570 for the year
ended March 31, 1997, to $1,648,606 for the same annual period ending March 31,
1998. This increase was a result of the first full year of direct marketing
efforts for the Bio-Back. Previous product marketing had not been effective.
The Company's cost of sales increased to $107,707 for the year ended
March 31, 1998, from $51,121 for the year ended March 31, 1997. The cost
increase was a direct result of the increase in units sold and the shift to a
new and less expensive product.
The Company's annual general and administrative expenses increased to
$542,601 for the year ended March 31, 1998, from $262,948 for the comparable
period ending in 1997. This increase is explained by increases in personnel and
related expenses. Moreover, cost for advertising increased to $1,669,212 for the
1998 year end from $364,110 for the year ended 1997. The increase was a direct
result of television marketing nationwide designed to introduce the Bio-Back,
which was reasonably successful as evidenced by the increase in revenue.
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For the year ended 1998 the net loss increased to $800,524 from a net
loss of $603,097 for the fiscal year ended 1997 as a result of the increased
costs mentioned above.
LIQUIDITY AND CAPITAL RESOURCES
Because of the improper manufacturing and product failure, which
resulted in the Company honoring requests for refunds, the Company lost a great
deal of money. The Company's management made attempts to secure additional
financing which were ultimately unsuccessful leading to the emergency meeting to
acquire another company which could provide financing.
The infusion of capital by the newly acquired subsidiary will allow the
Company to perform. In the event of an unexpected failure of the business plan
or future financing, the Company will seek revenues from additional business
partners as may be required. As a result of the acquisition, the subsidiary is
required to provide $250,000 for working capital. The subsidiary's commitment
covers a one year time period rather than an immediate cash infusion.
The Company had a net deficit of $1,133,247 at June 30, 1998. The
Company for the years ended March 30, 1998 and 1997, had a negative cash flow
from operations of $598,204 and $623,581, respectively. Furthermore, for three
months ended June 30, 1998, the negative cash flow from operations was $38,056.
Additionally, as a result of the acquisition of General Environmental
Technologies, Inc. ("GETI") and the conversion of debt to equity, the pro forma
stockholder's equity increased to $2,909,458 as if the transaction had occurred
at June 30, 1998. The acquisition of GETI was in the form of an exchange of
stock for stock. As of June 30, 1998, GETI had a book value equity of
$3,065,205. MediForce Products, Inc. must become profitable in the very near
future or it will be spun off as a separate entity.
ITEM 3. DESCRIPTION OF PROPERTY
The Company maintains its headquarters in West Palm Beach, Florida. The
Company rents warehouse space under a two year operating lease expiring January
31, 1999. The lease calls for base rent of $3,000 per month.
GETI maintains its headquarters in Florida and has facilities located
in New York and Michigan. GETI leases its headquarters from its management
and, accordingly, GETI is not
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required to pay rent for its headquarters. However, this arrangement will end
shortly at which time GETI will obtain adequate facilities to service its
operations. GETI and its subsidiaries are not required to pay rent through
September 30, 1999, for its New York City location in Queens County. This
location is shared with several other contractors (unrelated parties) one of
which performed services for the landlord in 1993 and currently receives space
rent free in consideration for those services. That contractor does business
with GETI.
The land and building utilized by GETI in Michigan (part of the related
party transactions) was acquired to provide an area for a demolition yard and
repair facility for anticipated jobs in Detroit and other potential sites in
Michigan, Ohio, and Indiana. It will take approximately $100,000 to renovate the
building to meet the above job requirements plus a commitment to acquire the
needed equipment and vehicles to service such projects is approximately $300,000
of leased equipment (not a capital lease). If the anticipated contracts for
demolition jobs do not materialize, GETI may have to sell or lease the Michigan
property.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth, as of October 28,1998, the number and
percentage of shares of Common Stock owned of record and beneficially by each
officer and/or director of the Company, and by any other person or firm that
owns more than five percent (5%) of the Company's outstanding Common Stock and
by all officers and directors as a group.
<TABLE>
<CAPTION>
NAME AND ADDRESS OF AMOUNT AND PERCENTAGE OF
TITLE OF CLASS BENEFICIAL OWNER NATURE OF OWNER CLASS
- -------------- ------------------- --------------- -------------
<S> <C> <C> <C>
Common Bradley T. Ray 1,501,000 15.7%
580 Village Boulevard
West Palm Beach, Fl. 33409
Common Norman J. Birmingham 1,501,000 15.7%
580 Village Boulevard
West Palm Beach, Fl. 33409
Common Charles C. Chillingworth 1,401,000 14.6%
580 Village Boulevard
West Palm Beach, Fl. 33409
Common Mary Schwab 3,397,500 35.5%
Common All officers and directors 4,403,000 46.0%
as a group
</TABLE>
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ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, AND CONTROL PERSONS
MANAGEMENT -- DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
MediForce, Inc.
The following sets forth the name of the Company's directors, executive
officers, and key employees as of September 9, 1998. The directors of the
Company are elected annually by the shareholders and the officers are appointed
annually by the Board of Directors.
<TABLE>
<CAPTION>
NAME AGE POSITION
<S> <C> <C>
Bradley T. Ray 48 Chairman of the Board of Directors
Norman J. Birmingham 43 Director, Chief Financial Officer
Charles C. Chillingworth 55 Director, President
</TABLE>
All directors hold office until the next annual meeting of shareholders
of the Company and until their successors are elected and qualified, subject to
earlier removal and replacement by the shareholders. Officers hold office until
the first meeting of directors following the annual meeting of shareholders and
until their successors are elected and qualified, subject to earlier removal and
replacement by the Board of Directors.
Biographies of the Company's Directors, Executive Officers and Key Employees
Bradley T. Ray is Chairman of the Board of the Company and GETI. Mr.
Ray is also an executive officer with A/R Mediquest.
Norman J. Birmingham is a director and Chief Financial Officer of the
Company and GETI. Mr. Birmingham is also president of Wolverine Financial
Services, Inc.
Charles C. Chillingworth is a director and President of the Company and
GETI.
MediForce Products, Inc.
Wilma Cox currently serves as President, Secretary and Director of MPI.
Prior to September 1998, Ms. Cox served as President, Secretary and Director of
the Company.
Michael Cox currently serves as Chairman of the Board of Directors MPI.
Prior to September 1998, Mr. served as Chairman of the Board of the Company.
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ITEM 6. COMPENSATION
Director Compensation
The Company does not pay compensation to its directors. However, all
officers and directors are reimbursed for any expenses incurred on behalf of the
Company. Directors are reimbursed for expenses pertaining to attendance at
meetings, including travel, lodging and meals.
Executive Compensation
The Company has written employment agreements with Bradley T. Ray,
Norman J. Birmingham, and Charles C. Chillingworth. Pursuant to the agreements,
the Company has agreed to pay each officer an annual salary of $120,000, plus
two percent (2%) of the annual net pre-tax profit of the Company. In addition,
each officer receives an automobile allowance of $800 a month from the Company.
Each contract is for a term of five years. Prior to entering into the
agreements with the Company, the aforementioned individuals had similar
agreements with GETI. However, these agreements have been superceded by the
agreements with the Company.
Also, GETI entered into a Business Consulting Agreement with Philip
Schwab, pursuant to which GETI pays Mr. Schwab $120,000 per year, for a period
of five years, commencing on January 1, 1998, in exchange for business advice.
Under the Agreement, Mr. Schwab is also entitled to a bonus of two percent (2%)
of the annual net pre-tax profit of GETI.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company was incorporated on March 23, 1993. Since its
incorporation, the Company has issued 8,146,398 shares of its Common Stock.
The former majority stockholder of the Company advanced funds to the
Company during the years ended March 31, 1998 and 1997, for operational expenses
incurred on behalf of the Company. The Company had agreed to repay the advances
when funds were available. In or about September, 1998, the stockholder agreed
to cancel the notes in exchange for shares of the Company's stock.
GETI has a $700,000 line of credit with a national bank secured by
Certificates of Deposit ("CD's") of a related party. GETI is owed $814,596 in
related party receivables from the same individual who secured the credit line
with personal CD's. The net receivable balance is $293,196 and is shown on
GETI's balance sheet as a net receivable since those were related party
transactions in the individual's name. Between November 13, 1998 and December
11, 1998 its anticipated that the credit line will revert to the Company as the
related party individual will repay the Company and remove his personal CD's as
collateral for the credit line.
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ITEM 8. DESCRIPTION OF SECURITIES
The Company is authorized to issue 60,000,000 shares of common
stock, $.0001 par value per share. As of September 7, 1998, 8,146,398 shares of
Common Stock are issued and outstanding. The holders of Common Stock have one
vote per share on all matters (including election of directors) without
provision for cumulative voting. Thus, holders of more than 50% of the shares
voting for the election of directors can elect all of the directors, if they
choose to do so. The Common Stock is not redeemable and has no conversion or
pre-emptive rights. There are no sinking fund provisions. In the event of
liquidation of the Company, the holders of Common Stock will share equally in
any balance of the Company's assets available for distribution to them after
satisfaction of creditors and preferred shareholders, if any. The Company may
pay dividends, in cash or in securities or other property when and as declared
by the Board of Directors from funds legally available therefore, but had paid
no cash dividends on its Common Stock to date.
DIVIDENDS
The payment by the Company of dividends, if any, in the future rests
within the discretion of its Board of Directors and will depend, among other
things, upon the Company's earnings, its capital requirements and its financial
condition, as well as other relevant factors. The Company has not paid any
dividends since its inception, however, it intends to pay dividends as soon as
business operations permit.
ADDITIONAL INFORMATION
The foregoing statements are a summary of the rights and privileges of
the holders of the Company's Common Stock. It does not purport to be complete
and its subject to the provisions of the corporate law of the State of Florida,
the Securities Act of 1993, the Securities Exchange Act of 1934, as amended, and
to the terms of the Company's Articles of Incorporation, as amended, and Bylaws.
The foregoing statements are qualified in their entirety by such references.
PART II.
ITEM 1. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The principal market where the Company's equity is traded is the
Over-the-Counter Bulletin Board ("OTCBB"). The range of high and low bids for
the Company's equity for each of the past three quarters since trading began in
February, 1998 is as follows:
Year Quarter High Low
---- ------- ---- ---
1998 March 2 7/8 2 3/8
1998 June 9/16 1/4
1998 September .85 3/4
Although trading began in February, 1998, the Company's equity was
initially listed on the OTCBB in November, 1997. In or about September, 1998,
the Company approved a reverse stock split of 40-to-1. After the reverse split,
the Company's stock traded at a high and low bid of $28.00 on the quarter
ending September 30, 1998.
ITEM 2. LEGAL PROCEEDINGS
Neither the Company nor its subsidiaries are a party to any legal
actions which could have a material adverse effect on its business, financial
condition or results of operations.
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ITEM 3. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Incorporation, as amended, of the Company provide for
indemnification to the full extent permitted by Florida law of all persons it
has the power to indemnify under Florida law. Such indemnification is not deemed
to be exclusive of any other rights to which those indemnified may be entitled,
under any bylaw, agreement, vote of stockholders or otherwise. The provisions of
the Company's Articles of Incorporation, as amended, which provide for
indemnification may reduce the likelihood of derivative litigation against the
Company's directors and officers for breach of their fiduciary duties, even
though such action, if successful, might otherwise benefit the Company and its
stockholders.
PART F/S
FINANCIAL STATEMENTS
The following selected financial data should be read in conjunction
with the financial statements and the notes thereto and Management's Discussion
and Analysis of Financial Condition and Results of Operations included elsewhere
herein. The Company's statement of operations for the periods ended March 31,
1998 and 1997, and the Company's balance sheet as of March 31, 1998 and 1997 are
derived from, and are qualified by reference to, the audited financial
statements, which have been audited by Weinberg & Company, P.A. and should be
read in conjunction with those financial statements and notes thereto. GETI's
consolidated statement of income from inception on March 23, 1998, until June
30, 1998, and the consolidated balance sheet at June 30, 1998, are derived from,
and are qualified by reference to, the unaudited financial statements, which
have been reviewed by Oppenheim & Ostrick and should be read in conjunction with
those financial statements and notes thereto.
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INDEX TO COMBINED FINANCIAL STATEMENTS
<TABLE>
<S> <C> <C>
PART I - FINANCIAL INFORMATION FOR MEDIFORCE, INC.
ITEM 1 - AUDITED FINANCIAL STATEMENTS:
INDEPENDENT AUDITORS' REPORT WEINBURG & COMPANY, P.A. .................................1
BALANCE SHEETS - MARCH 31, 1998 AND 1997 ..............................................2
STATEMENT OF STOCKHOLDERS' DEFICIT - YEARS ENDED MARCH 31, 1998 AND 1997 ..............3
STATEMENTS OF OPERATIONS - YEARS ENDED MARCH 31, 1998 AND 1997 ........................4
STATEMENTS OF CASH FLOWS - YEARS ENDED MARCH 31, 1998 AND 1997 ........................5-6
NOTES TO FINANCIAL STATEMENTS .........................................................7-15
ITEM 2 UNAUDITED FINANCIAL STATEMENTS:
ACCOUNTANTS' COMPILATION REPORT .......................................................16
BALANCE SHEET - JUNE 30, 1998 .........................................................17
STATEMENT OF OPERATIONS - THREE MONTHS ENDED JUNE 30, 1998 ............................18
STATEMENT OF STOCKHOLDERS' DEFICIT - THREE MONTHS ENDED JUNE 30, 1998 .................19
STATEMENT OF CASH FLOWS - THREE MONTHS PERIODS ENDED JUNE 30, 1998 AND 1997 ...........20
NOTES TO FINANCIAL STATEMENTS .........................................................21
PART II - FINANCIAL INFORMATION FOR GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
ACCOUNTANTS' REVIEW REPORT - OPPENHEIM & OSTRICK, CPA'S ...............................22
CONSOLIDATED BALANCE SHEET - JUNE 30, 1998 ............................................23
CONSOLIDATED STATEMENT OF INCOME - FROM INCEPTION ON MARCH 23, 1998
UNTIL JUNE 30, 1998 .................................................................24
CONSOLIDATED STATEMENT OF STOCKHOLDERS' DEFICIT - FROM
INCEPTION ON MARCH 23, 1998 UNTIL JUNE 30, 1998 .....................................25
CONSOLIDATED STATEMENT OF CASH FLOWS - FROM INCEPTION ON
MARCH 23, 1998 UNTIL JUNE 30, 1998 ..................................................26
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ............................................27-31
PART III - UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
PRO FORMA COMBINED FINANCIAL DATA .....................................................32
PRO FORMA BALANCE SHEET - JUNE 30, 1998 ...............................................33-34
PRO FORMA STATEMENT OF OPERATIONS - JUNE 30, 1998 .....................................35
PRO FORMA STATEMENT OF STOCKHOLDERS' EQUITY - JUNE 30, 1998 ...........................36
NOTES TO PRO FORMA COMBINED FINANCIAL DATA ............................................37
</TABLE>
<PAGE> 16
MEDIFORCE, INC.
FINANCIAL STATEMENTS
AS OF MARCH 31, 1998
[LOGO]
<PAGE> 17
MEDIFORCE, INC.
CONTENTS
<TABLE>
<S> <C>
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEETS AS OF MARCH 31, 1998 AND 1997
PAGE 3 - STATEMENTS OF STOCKHOLDERS' DEFICIENCY
FOR THE YEARS ENDED MARCH 31, 1998 AND 1997
PAGE 4 - STATEMENTS OF OPERATIONS FOR THE YEARS ENDED
MARCH 31, 1998 AND 1997
PAGE 5-6 - STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED
MARCH 31, 1998 AND 1997
PAGE 7-15 - NOTES TO FINANCIAL STATEMENTS AS OF
MARCH 31, 1998 AND 1997
</TABLE>
[LOGO]
<PAGE> 18
[WEINBERG & COMPANY, P.A. LETTERHEAD]
INDEPENDENT AUDITORS' REPORT
To the Stockholders of
Mediforce, Inc.
We have audited the balance sheets of Mediforce, Inc., as of March 31, 1998 and
1997 and the related statements of operations, stockholders' deficiency and cash
flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
These standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Mediforce, Inc. as of March 31,
1998 and 1997 and the results of its operations and its cash flows for the years
then ended, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As shown in the financial statements,
the Company incurred a net loss of $800,524 during the year ended March 31,
1998, and, as of that date, had a working capital deficiency of $355,477 and a
stockholders' deficiency of $1,226,711. As discussed more fully in Note 14 to
the financial statements, the Company's business plan for the year ended March
31, 1999 contemplates reduced operating losses and obtaining additional working
capital from a public offering. The Company's ability to achieve the foregoing
elements of its business plan, which would be necessary for it to realize its
assets and satisfy its liabilities in the ordinary course of business is
uncertain. Those conditions raise some substantial doubt about the Company's
ability to continue as a going concern. The financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
/s/ WEINBERG & COMPANY, P.A.
--------------------------------------
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
June 22, 1998
<PAGE> 19
[WEINBERG & COMPANY, P.A. LETTERHEAD]
INDEPENDENT AUDITORS' REPORT
To the Stockholders of
Mediforce, Inc.
We have audited the balance sheets of Mediforce, Inc., as of March 31, 1998 and
1997 and the related statements of operations, stockholders' deficiency and
cash flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. These standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Mediforce, Inc. as of March
31, 1998 and 1997 and the results of its operations and its cash flows for the
years then ended, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As shown in the financial
statements, the Company incurred a net loss of $800,524 during the year ended
March 31, 1998, and, as of that date, had a working capital deficiency of
$355,477 and a stockholders deficiency of $1,226,711. As discussed more fully
in Note 14 to the financial statements, the Company's business plan for the
year, ended March 31, 1999 contemplates reduced operating losses and
obtaining additional working capital from a public offering. The Company's
ability to achieve the foregoing elements of its business plan, which would be
necessary for it to realize its assets and satisfy its liabilities in the
ordinary course of business is uncertain. Those conditions raise some
substantial doubt about the Company's ability to continue as a going concern.
The financial statements do not include any adjustments that might result
from the outcome of this uncertainty .
/s/ WEINBERG & COMPANY, P.A.
-----------------------------------------
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
June 22, 1998
<PAGE> 20
MEDIFORCE, INC.
BALANCE SHEETS
AS OF MARCH 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 11,919 200,635
Accounts receivable 7,632 30,801
Inventory 62,286 44,407
Prepaid expenses and other
current assets 15,574 5,689
----------- -----------
Total Current Assets 97,411 281,532
PROPERTY AND EQUIPMENT - NET 63,343 65,400
DEPOSITS 5,850 5,600
LICENSES, PATENTS AND TRADEMARKS -
NET OF AMORTIZATION 114,768 23,234
----------- -----------
TOTAL ASSETS $ 281,372 $ 375,766
=========== ===========
LIABILITIES AM STOCKHOLDERS' DEFICIENCY
CURRENT LIABILITIES
Notes payable $ 220,000 $ 50,000
Accounts payable and accrued expenses 232,888 50,909
----------- -----------
Total Current Liabilities 452,888 100,909
NOTES PAYABLE - STOCKHOLDERS 849,959 799,962
ADVANCES FROM STOCKHOLDER 205,236 200,736
----------- -----------
Total Liabilities 1,508,083 1,101,607
----------- -----------
STOCKHOLDERS' DEFICIENCY
Common stock, $.0001 par value,
10,000,000 shares authorized,
3,586,398 and 2,803,300 shares
issued and outstanding respectively
as of March 31, 1998 and 1997 359 280
Common stock warrants 14 13
Capital in excess of par 333,964 34,390
Deficit (1,553,548) (753,024)
----------- -----------
Total (1,219,211) (718,341)
Less Treasury Stock 7,500 7,500
----------- -----------
Total Stockholders' Deficiency (1,226,711) (725,841)
----------- -----------
TOTAL LIABILITIES AND STOCKHOLDERS'
DEFICIENCY $ 281,372 $ 375,766
=========== ===========
</TABLE>
See accompanying notes to financial statements.
2
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<PAGE> 21
MEDIFORCE, INC.
STATEMENTS OF STOCKHOLDERS' DEFICIENCY
FOR THE YEARS ENDED MARCH 31, 1998 AND 1997
<TABLE>
<CAPTION>
COMMON STOCK CAPITAL TOTAL
COMMON STOCK WARRANTS IN EXCESS TREASURY STOCK STOCKHOLDERS'
SHARES AMOUNT NUMBER AMOUNT OF PAR DEFICIT SHARES AMOUNT DEFICIENCY
---------- ------ -------- ------ --------- ----------- ------ ------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE - MARCH 31, 1996 $ 99,800 $ 10 -- -- $ 34,390 $ (149,927) 1,000 $(7,500) $ (123,027)
ISSUANCE OF COMMON STOCK
AND WARRANTS - CASH 2,703,500 270 128,000 13 -- -- -- -- 283
NET (LOSS) FOR THE YEAR
ENDED MARCH 31, 1997 -- -- -- -- -- (603,097) -- -- (603,097)
---------- ---- -------- --- -------- ----------- ------ ------- -----------
BALANCE - MARCH 31, 1997 2,803,300 280 128,000 13 34,390 (753,024) 1,000 (7,500) (725,841)
ISSUANCE OF COMMON STOCK
WARRANTS - CASH 16,000 2 8,000 1 -- -- -- -- 3
ISSUANCE OF COMMON STOCK-
ACQUISITION OF INTANGIBLE
ASSETS 25,000 2 -- -- 87,498 -- -- -- 87,500
ISSUANCE OF COMMON STOCK -
SETTLEMENT OF DEBT 175,000 18 -- -- 174,982 -- -- -- 175,000
ISSUANCE OF COMMON STOCK -
SERVICES 567,098 57 -- -- 37,094 -- -- -- 37,151
NET (LOSS) FOR THE YEAR
ENDED MARCH 31, 1998 -- -- -- -- -- (800,524) -- -- (800,524)
---------- ---- -------- --- -------- ----------- ------ ------- -----------
BALANCE - MARCH 31, 1998 $3,586,398 $359 $136,000 14 $333,964 $(1,553,548) 1,000 $(7,500) $(1,226,711)
========== ==== ======== --- -------- ----------- ------ ------- -----------
</TABLE>
See accompanying notes to financial statements.
3
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<PAGE> 22
MEDIFORCE, INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED MARCH 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
REVENUES NET $ 1,648,606 $ 113,570
COST OF SALES 107,707 51,121
----------- -----------
GROSS PROFIT 1,540,899 62,449
----------- -----------
OPERATING EXPENSES
Advertising 1,669,212 364,110
General and administrative
expense 542,601 262,948
Depreciation and amortization 25,106 13,598
Interest expense 104,504 24,890
----------- -----------
Total Operating Expenses 2,341,423 665,546
----------- -----------
NET (LOSS) $ (800,524) $ (603,097)
=========== ===========
(LOSS) PER SHARE
(Loss) per share (.24) (.23)
=========== ===========
Weighted average shares
outstanding 3,295,200 2,603,467
=========== ===========
</TABLE>
See accompanying notes to financial statements.
4
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<PAGE> 23
MEDIFORCE, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED MARCH 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (loss) from operations $(800,524) (603,097)
Adjustments to reconcile net (loss)
to net cash (used in) operating activities:
Depreciation and amortization 25,106 13,598
Changes in assets (increase) decrease:
Accounts receivable 23,169 (30,801)
Inventory (17,879) (8,195)
Prepaid expenses and other current assets (9,885) (5,689)
Deposits (250) (5,600)
Changes in liabilities increase (decrease):
Customer deposits -- (9,000)
Accounts payable and accrued expenses 181,979 25,203
--------- ---------
Net Cash Flow (Used In)
Operating Activities (598,284) (623,581)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (18,083) (47,047)
License, patents and trademarks (96,500) --
--------- ---------
Net Cash Flows (Used In)
Investing Activities (114,583) (47,047)
--------- ---------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from note payable - bank -- 50,000
Proceeds from note payable - stockholders 49,997 799,962
Proceeds from note payable - Scarlett
Investment Group 170,000 --
Issuance of common stock and warrants 299,654 283
Loans from stockholder 4,500 14,638
--------- ---------
Net Cash Provided By
Financing Activities 524,151 864,883
--------- ---------
NET INCREASE (DECREASE) IN CASH (188,716) 194,255
CASH AND CASH EQUIVALENTS -
BEGINNING 200,635 6,380
--------- ---------
CASH AND CASH EQUIVALENTS -
ENDING $ 11,919 $ 200,635
========= =========
</TABLE>
See accompanying notes to financial statements.
5
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<PAGE> 24
MEDIFORCE, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED MARCH 31, 1998 AND 1997
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
<TABLE>
<CAPTION>
1998 1997
---------- -------
<S> <C> <C>
Cash paid during the years for:
Interest $ 10,459 $5,776
========== ======
</TABLE>
See accompanying notes to financial statements.
6
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<PAGE> 25
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization
Mediforce, Inc., F/K/A Mold-A-Brace, Inc. a Florida corporation
incorporated in 1993, engages in the manufacturing of orthopedic and
ergonomic supports.
On August 10, 1996, the Company changed the Company's name to
Mediforce, Inc. and amended the Articles of Incorporation to
authorize the issuance of up to 10,000,000 shares of $.0001 par
value common stock.
B. Accounts Receivable and Revenue Recognition
Accounts receivable are presented net of the allowance for doubtful
accounts. Revenue is recorded upon shipment of the product to the
customer.
C. Inventory
Inventory consists of raw materials and finished goods which are
stated at the lower of cost or market by the first-in, first-out
method.
D. Property and Equipment
Property and equipment are stated at cost. Depreciation is provided
on the accelerated and straight-line methods over the estimated
useful lives of the respective assets. Maintenance and repairs are
charged to expense as incurred; major renewals and betterments are
capitalized. When items of property or equipment are sold or
retired, the related cost and accumulated depreciation are removed
from the accounts and any gain or loss is included in the results of
operations.
E. License, Patents and Trademarks
License, patents and trademarks are being amortized over their
respective remaining lives, up to 15 years, on a straight line
basis. Accumulated amortization as of March 31, 1998 and 1997 was
$4,966 and $3,112, respectively.
7
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<PAGE> 26
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
F. Industry Segment
The Company is in the business of developing manufacturing and
marketing certain medical brace products. Initial marketing is
contemplated in the major population centers of the United States.
Later expansion will be in additional domestic and international
markets.
G. Advertising Costs
Advertising costs consist of costs relating to the production of video
commercials, infomercials and their marketing costs. All advertising
costs are expensed in the period incurred.
H. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all
highly liquid debt instruments purchased with an original maturity of
three months or less to be cash equivalents.
I. Use of Estimates in the preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and revenues and expenses during the
reporting period. Actual results could differ from those estimates
K. Fair Value
Statement of Financial Accounting Standards No. 107, "Disclosures
about Fair Value of Financial Instruments", requires disclosure of
information about the fair value of certain financial instruments for
which it is practicable to estimate that value. For purposes of this
disclosure, the fair value of a financial instrument is the amount at
which the instrument could be exchanged in a current transaction
between willing parties, other than in a forced sale or liquidation.
8
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<PAGE> 27
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The carrying amounts of the Company's financial instruments, including
receivables, accounts payable and accrued liabilities, approximates
fair value due to the relatively short period to maturity for these
instruments. The carrying value of the Company's notes payable
approximates fair value based on the current rates offered to the
Company for debt of the same remaining maturities.
NOTE 2 - LICENSE AGREEMENT
On May 25, 1993, the Company executed a license agreement with the
inventor and holder of the patents to exclusively use, sell,
distribute, manufacture, market, develop and sublicense the orthopedic
supports in the United States. The license agreement will continue in
effect until the patent expires on December 24, 2008 or, under certain
conditions, the patents will be sold to the Company (See Note 8). In
consideration for this license agreement, the inventor and holder of
the patents is to receive $40,000 annually, payable $10,000 quarterly
for the life of the patent. Subsequent to the fifth year, the payment
shall be two percent of the gross sales rice, payable quarterly if it
is in excess of the $40,000 minimum yearly payment. Included in
accounts payable and accrued expenses is $40,000 relating to this
agreement for the year ended March 31, 1998. All prior amounts owed
under this agreement through March 31, 1997 had been forgiven.
NOTE 3 - RELATED-PARTY TRANSACTIONS
The majority stockholder of the Company advanced funds during the years
ended March 31, 1998 and 1997, to Mediforce, Inc. for operational
expenses incurred on behalf of the Company. The advances are
non-interest bearing and payable to the stockholder when funds are
available. The majority stockholder has agreed to continue advancing
funds as necessary to finance the working capital and other financial
requirements of the Company (See Note 10).
9
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<PAGE> 28
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 4 - INVENTORY
Inventory consists of the following:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Raw materials and supplies $42,834 $ -
Finished goods 19,452 44,407
------- -------
TOTAL $62,286 $44,407
======= =======
</TABLE>
NOTE 5 - PROPERTY AND EQUIPMENT
The following is a summary of property and equipment at March 31,
1998 and 1997:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Molds $46,753 $35,753
Equipment 43,031 36,245
Furniture and fixtures 8,457 8,160
Leasehold improvements 700 700
------- -------
Total 98,941 80,858
Less: Accumulated depreciation 35,598 15,458
------- -------
PROPERTY AND EQUIPMENT - NET $63,343 $65,400
======= =======
</TABLE>
NOTE 6 - NOTES PAYABLE
<TABLE>
<S> <C> <C>
Note payable - bank,
collateralized by an assignment
of a life insurance policy
and the personal guarantee of
the president of the Company.
Interest at 2 1/4% over
bank's prime (10.75% at March 31,
1998) payable monthly. $ 50,000 $50,000
Note payable - Scarlett Investment
Group, Inc., secured by 325,000
shares of stock to be held in
escrow. The loan becomes due 90
days after Mediforce, Inc. is
trading on NASD Electronic
Bulletin Board. Interest is at
7.8%, accrued interest was
$9,554 at March 31, 1998. In June
1998 $20,000 was repaid and $150,0OO
was converted into common stock
(See Note 15). $170,000 -
-------- --------
TOTAL NOTES PAYABLE - CURRENT $220,000 $ 50,000
======== ========
</TABLE>
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<PAGE> 29
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 7 - INCOME TAXES
Income taxes are provided for the tax effects of transactions reported
in the financial statements and consist of taxes currently due plus
deferred taxes related primarily to differences between the basis of
assets and liabilities for financial and income tax reporting. The
deferred tax assets and liabilities represent the future tax return
consequences of those differences, which will either be taxable or
deductible when the assets and liabilities are recovered or settled. As
of March 31, 1998 and 1997, the Company had no material current tax
liability, deferred tax liability or deferred asset because the
Company's valuation reserve is equal to the deferred tax asset arising
from the net operating losses.
As of March 31, 1998, the Company had available, for income tax
purposes, approximate net operating loss carryforwards expiring as
follows:
<TABLE>
<S> <C>
March 31, 2009 $ 25,000
March 31, 2010 76,000
March 31, 2011 45,000
March 31, 2012 603,000
March 31, 2013 800,000
----------
TOTAL $1,549,000
==========
</TABLE>
NOTE 8 - LEASE COMMITMENTS
The Company rents warehouse and office space in Boca Raton, Florida
under two and one year operating leases expiring January 31, 1999 and
October 15, 1998, respectively. The leases call for base rent of $3,000
and $2,092 per month, respectively. The office lease is subject to a 5%
annual base rate adjustment on the yearly anniversary. This lease also
calls for the Company to pay common area maintenance (CAM) expenses (as
defined) in addition to the base rent. Future minimum lease payments due
under noncancellable leases at March 31, 1998 are as follows:
<TABLE>
<S> <C>
For the year ending March 31, 1999 $ 44,650
--------
TOTAL $ 44,650
========
</TABLE>
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<PAGE> 30
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 9 - SIGNIFICANT CONCENTRATION OF CREDIT RISK
The Company's cash balances on deposit with banks are guaranteed by the
Federal Deposit Insurance Corporation up to 100,000. The Company is
exposed to risk for the amount of funds held in any one bank in excess
of the insurance limit. At March 31, 1998, the Company did not have any
bank deposits in excess of the insurance limit. In assessing its risk,
the Company's policy is to bank with high quality financial
institutions.
NOTE 10 - STOCK ISSUANCES AND NOTES PAYABLE - STOCKHOLDERS
During the year 1996, the majority stockholder returned 476,200 shares
to the Company. The financial statements for all of the years have been
adjusted to reflect this transaction.
On August 22, 1996, the Company increased its authorized common stock to
10,000,000 shares, with a par value of $.0001. The Board of Directors
also approved a stock split increasing the number of then outstanding
shares to 2,149,800, of which 2,100,000 are held by the controlling
shareholder.
During the year ended March 31, 1998 and 1997, the Company issued
783,098 and 653,500 new shares at a par value of $.0001 per share.
On June 6, 1996, the Company entered into an agreement with AMG
Investing Group, Inc. (AMG) for the purpose of acquiring interim
financing leading to an initial public offering of the Company's stock.
The interim financing was to generate at lease $1 million followed by an
anticipated initial public offering. Each $25,000 investing unit
consisted of a promissory note, with interest at 10% payable one year in
arrears. Each unit also contained 8,000 shares of common stock which
will have registration rights in the initial public offering, and 4,000
three year warrants to purchase 1 share per warrant of common stock at
$5.00 per share. The common stock underlying the warrant will be
registered with the initial public offering. The notes will be retired
with proceeds of the initial public offering or at the end of two years,
whichever comes first. For each $25,000 unit issued, $.80 was allocated
to common stock and $.40 was allocated to the warrant.
12
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<PAGE> 31
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 10 - STOCK ISSUANCES AND NOTES PAYABLE - STOCKHOLDERS - CONTINUED
In May 1997, the interim financing was completed. Thirty four units were
sold resulting in notes payable balances of $849,959. In addition,
272,000 shares of common stock at a par value of $.0001 totaling $27 and
136,000 warrants amounting to $14 were issued. As of March 31, 1998
accrued interest relating to the notes was $103,615 and is included in
accounts payable and accrued expenses. (See Note 15)
In consideration for the above services being performed by AMG, the
Company agreed to pay AMG 10% on all monies delivered to the Company
from the interim financing, and 1% of all monies delivered by the
initial public offering if said offering is a direct result of AMG's
efforts and set in place by AMG. Total payments made to AMG or any other
agent shall not exceed 10% of total monies raised.
On June 20, 1997, the Company entered into a release and settlement
agreement with AMG Investment Group, Inc. (AMG) for all compensation to
be paid to AMG. The company issued 125,000 shares of founder stock at a
par value of $.0001. Only 13% of the shares (16,250 shares) may be sold
the first day Mediforce, Inc. trades publicly, the remainder falls under
the normal registration period for the founder stock.
NOTE 11 - ASSET ACQUISITION
On August 28, 1997, the Company entered into an agreement with an
individual to purchase molds, inventory and the patent and trademark
rights of a hand exercise devise for 25,000 common shares having a
total value of $87,500.
NOTE 12 - PUBLIC TRADING
On November 25, 1997, the Company was approved by the NASD to list its
common shares on the OTC Electronic Bulletin Board.
NOTE 13 - SALES AND MANUFACTURING INTERRUPTION
In October, 1997, the Company temporarily discontinued manufacturing and
its television advertising program due to a breakage problem with one of
its major products. Although some products sold were replaced, the
Company estimates that approximately $252,000 in sales will be or have
been refunded.
13
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<PAGE> 32
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 13 - SALES AND MANUFACTURING INTERRUPTION - CONTINUED
Laboratory testing results indicated that the Company's primary
subcontractor supplier did not meet the specifications required for
production. In December, 1997, the Company changed suppliers and is
currently producing replacement inventory. In addition, the Company is
pursuing various legal and other remedies to mitigate its financial and
goodwill losses.
No estimates of the potential for recovery of losses can be estimated at
the date of this report.
NOTE 14 - GOING CONCERN UNCERTAINTY
The accompanying financial statements have been prepared in conformity
with generally accepted accounting principles, which contemplates
continuation of the Company as a going concern. However, the Company has
sustained substantial operating losses in recent years. In addition, the
Company has used substantial amounts of working capital in its
operations. Further, at March 31, 1998 current liabilities exceed
current assets by $355,477 and total liabilities exceed total assets by
$1,226,711.
As discussed in Note 13, Sales and Manufacturing Interruption, the
Company sustained substantial operating losses during fiscal year ended
March 31, 1998 due to production defects in one of its major products,
which had since been remedied.
The Company is currently restructuring some of its debt and seeking
alternate public or private financing. (See Note 15)
In view of these matters, realization of a portion of the assets in
the accompanying balance sheet is dependent upon continued operations of
the Company, which in turn is dependent upon the Company's ability to
meet its financing requirements, and the success of its future
operations. Management believes that actions presently being taken to
revise the Company's operating and financial requirements provide the
opportunity for the Company to continue as a going concern.
14
[LOGO]
<PAGE> 33
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
AS OF MARCH 31, 1998 AND 1997
NOTE 15 - SUBSEQUENT EVENTS
Pursuant to the terms of a settlement agreement dated June 25, 1998, the
325,000 shares of common stock held in escrow as collateral for the
$150,000 loan discussed in Note 6 will be owned by Scarlett Investment
Group, Inc. In consideration for taking the shares, Scarlett agreed that
it would not seek payment of the $161,700 in principal and accrued
interest on the loan. Additionally, any 'restrictions placed on the
300,000 freely tradeable shares received by Scarlett in consideration
under the terms of its consulting agreement will be removed.
The Company's management is proposing converting its bridge notes (Note
10) to equity. Under the proposal the Company will issue 100 shares of
its common stock for each $100 of bridge note.
On June 15, 1998, the majority shareholder's wife filed a UCC-1
financing statement in connection with loans to the Company covering all
of Mediforce's assets now owned or subsequently acquired by the
Company.
On June 20, 1998, the majority shareholder advanced $150,000 to the
Company, in the form of a loan.
15
[LOGO]
<PAGE> 34
[OPPENHEIM & OSTRICK, C.P.A.'S LETTERHEAD]
Page 16
ACCOUNTANTS' COMPILATION REPORT
To the Board of Directors
Mediforce, Inc.
West Palm Beach, Florida
We have compiled the accompanying balance sheet of Mediforce, Inc. as of June
30, 1998, and the related statements of operations, stockholders' deficit and
cash flows for the three months ended June 30, 1998 and 1997 in accordance with
Statements on Standards for Accounting and Review Services issued by the
American Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. We have not audited or
reviewed the accompanying financial statements and accordingly, do not express
an opinion or any form of assurance on them.
/s/ OPPENHEIM & OSTRICK
Culver City, California
October 7, 1998
<PAGE> 35
Page 17
MEDIFORCE, INC.
BALANCE SHEET
JUNE 30, 1998
(UNAUDITED)
ASSETS
<TABLE>
<S> <C> <C>
Current Assets:
Cash $ 17,204
Accounts receivable - house, net of allowance
for doubtful accounts of $10,000 8,070
Inventory 47,856
Prepaid expenses 6,104
-----------
Total current assets $ 79,234
Property & equipment (at cost) 98,241
Less accumulated depreciation (39,200)
-----------
Property and equipment, net 59,041
Other assets:
Deposits 5,850
Other assets 112,720
-----------
Total other assets 118,570
-----------
$ 256,845
===========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable 78,356
Loan payable - bank 50,000
-----------
Total current liabilities $ 128,356
Long-term liabilities:
Note payable - stockholders 935,000
Note payable - stockholder 326,736
-----------
Total long-term liabilities 1,261,736
-----------
Total liabilities 1,390,092
Stockholders' deficit:
Common stock, $.0001 par value, authorized 10,000,000
shares, issued and outstanding 3,999,120 shares 400
Stock warrants 14
Additional paid-in capital 456,324
Treasury stock (11,957)
Accumulated deficit (1,578,028)
-----------
Total stockholders' deficit (1,133,247)
------------
$ 256,845
============
</TABLE>
See accompanying selected notes to financial statements
<PAGE> 36
Page 18
MEDIFORCE, INC.
STATEMENT OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
Net sales $ 18,317 $ 357,388
Cost of sales 16,230 42,886
----------- -----------
Gross profit 2,087 314,502
General and administrative expenses 117,532 554,927
----------- -----------
Operating loss (115,445) (240,425)
Other income (expense):
Interest expense (2,293) (23,210)
Miscellaneous income 19,114 0
Gain on issuance of common stock 74,144 0
----------- -----------
90,965 (23,210)
----------- -----------
Net loss $ (24,480) $ (263,635)
=========== ===========
Loss per share $ (.01) $ (.10)
=========== ===========
Weighted average shares outstanding 3,792,759 2,632,300
=========== ===========
</TABLE>
See accompanying notes to financial statements
<PAGE> 37
Page 19
MEDIFORCE, INC.
STATEMENT OF STOCKHOLDERS' DEFICIT
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Common
Common Stock Stock Warrants Paid-in
Shares Amount Number Amount Capital Deficit
----------- ----------- ------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance, March 31, 1998 3,586,398 $ 359 136,000 $ 14 $ 333,964 $(1,553,548)
Legal services rendered 87,722 9 36,991
Exchange of common
stock for debts 325,000 32 74,112
Retirement of common stock 11,257
Net loss for three months
ended June 30, 1998 (24,480)
--------- ----------- ------- ----------- ----------- -----------
Balance, June 30, 1998 3,999,120 $ 400 136,000 $ 14 $ 456,324 $(1,578,028)
========= =========== ======= =========== =========== ===========
<CAPTION>
Total
Treasury Stock Stockholders'
Shares Amount Deficit
------ ----------- -----------
<S> <C> <C> <C>
Balance, March 31, 1998 1,000 $ (7,500) $(1,226,711)
Legal services rendered 37,000
Exchange of common
stock for debts 74,144
Retirement of common stock 20,000 (4,457) 6,800
Net loss for three months
ended June 30, 1998 (24,480)
------ ----------- -----------
Balance, June 30, 1998 21,000 $ (11,957) $(1,133,247)
====== =========== ===========
</TABLE>
See accompanying selected notes to financial statements
<PAGE> 38
Page 20
MEDIFORCE, INC.
STATEMENT OF CASH FLOWS
FOR THE THREE MONTHS ENDED JUNE 30, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (24,480) $(263,635)
Non-cash expenses included in net loss:
Amortization 2,048 2,048
Depreciation 4,302 2,725
Issuance of common stock for professional service
rendered 37,000 0
Gain on exchange of common stock for debts 74,144 0
(Increase) decrease in:
Accounts receivable (438) 12,322
Inventory 14,430 8,225
Prepaid expenses 9,470 (2,293)
Increase (decrease) in:
Accounts payable and accrued expenses (154,532) 72,003
--------- ---------
Net cash used by operating activities (38,056) (168,605)
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment 0 (2,310)
Retired of common stock 6,800 0
--------- ---------
Net cash provided (used) by investing
Activities 6,800 (2,310)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from (payments on) short-term borrowings (170,000) 150,000
Proceeds from short-term borrowings - officer 206,541 49,998
Issuance of common stock and warrants 0 15
--------- ---------
Net cash provided by financing activities 36,541 200,013
--------- ---------
Net increase in cash 5,285 29,098
Cash, beginning of period 11,919 200,635
--------- ---------
Cash, end of period $ 17,204 $ 229,733
========= =========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for interest $ 2,293 $ 2,198
========= =========
Cash paid during the period for income taxes $ 0 $ 0
========= =========
</TABLE>
See accompanying notes to financial statements
<PAGE> 39
Page 21
MEDIFORCE, INC.
NOTES TO FINANCIAL STATEMENTS
1. General:
The unaudited financial statements have been prepared on the same
basis as the audited consolidated financial statements and, in the
opinion of management, reflect all adjustments (consisting of normal
recurring adjustments) necessary for a fair presentation for each of
the periods presented. The results of operations for interim periods
are not necessarily indicative of results to be achieved for full
fiscal years.
The Company is in the business of developing, manufacturing and
marketing certain medical brace products. Initial marketing is
contemplated in the major population centers of the United States.
Later expansion will be in additional domestic and international
markets.
2. Summary of significant accounting policies:
(See audited financial statements in Item 1.)
3. Going concern uncertainty:
(See audited financial statements in Item 1.)
<PAGE> 40
Page 23
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
JUNE 30, 1998
ASSETS
<TABLE>
<S> <C> <C>
Current Assets:
Accounts receivable $ 310,734
Inventory 55,638
Advance to contractors 244,798
Receivable from related party 293,196
-----------
Total current assets $ 904,366
Property & equipment (at cost) 2,973,792
Less accumulated depreciation (69,545)
-----------
Property and equipment, net 2,904,247
Other assets:
Deposits 14,000
-----------
Total other assets 14,000
-----------
$ 3,822,613
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 269,757
Accrued expenses 14,731
Note payable - related party 450,919
Income taxes payable 22,000
-----------
Total current liabilities $ 757,407
Stockholders' equity:
Common stock authorized 10,000,000 shares, no par
value; issued and outstanding 2,969,693 shares 2,969,693
Additional paid-in capital 55,638
Retained earnings 39,874
-----------
Total stockholders' equity 3,065,205
-----------
$ 3,822,612
===========
</TABLE>
See accompanying notes and accountants' review
report which are integral parts of this balance sheet
<PAGE> 41
Page 24
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
From Inception
on March 23, 1998
Until June 30, 1998
-----------------------------------
<S> <C> <C>
Net sales $1,240,742 100.0 %
Cost of sales 813,909 65.6
---------- ----------
Gross profit 426,833 34.4
Operating expenses 364,959 29.4
---------- ----------
Income before taxes 61,874 5.0
Income taxes 22,000 1.8
---------- ----------
Net income $ 39,874 3.2 %
========== ==========
</TABLE>
See accompanying accountants' review report and
notes which are integral parts of this statement
<PAGE> 42
Page 25
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FROM INCEPTION ON MARCH 23, 1998
UNTIL JUNE 30, 1998
<TABLE>
<CAPTION>
Common Stock Paid-in Retained
Shares Amounts Capital Earnings Balance
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Issuance of common stock 2,969,693 $2,969,693 $ 0 $ 0 $2,969,693
Inventory contributed 0 0 55,638 0 55,638
Net income 0 0 0 39,874 39,874
---------- ---------- ---------- ---------- ----------
End of period 2,969,693 $2,969,693 $ 55,638 $ 39,874 $3,065,205
========== ========== ========== ========== ==========
</TABLE>
See accompanying accountants' review report and
notes which are integral parts of this statement
<PAGE> 43
Page 26
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
From Inception
on March 23, 1998
Until June 30, 1998
-------------------
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 39,874
Non-cash expenses included in net income:
Depreciation 69,545
(Increase) decrease in:
Advance to contractors (165,295)
Accounts receivable (310,734)
Prepaid expenses 49,781
Related party receivable (293,196)
Deposits (1,000)
Increase (decrease) in:
Accounts payable 269,757
Related party payables 305,799
Income tax payable 22,000
Accrued expenses 14,731
-----------
Net cash provided by operating activities 1,262
-----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (4,098)
-----------
Net cash used by investing activities (4,098)
-----------
Net decrease in cash (2,836)
Cash, beginning of period 2,836
-----------
Cash, end of period $ 0
===========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the year for interest $ 9,532
===========
Cash paid during the year for income taxes $ 0
===========
SUPPLEMENTAL DISCLOSURES OF NON-CASH FINANCING INFORMATION:
Inventory contributed $ 55,638
===========
Property and equipment contributed $ 2,969,693
===========
</TABLE>
See accompanying accountants' review report and
notes which are integral parts of this statement
<PAGE> 44
Page 27
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JUNE 30, 1998
1. Summary of significant accounting policies and business activity:
Consolidation
The consolidated financial statements for June 30, 1998 include the
accounts of the Company and its wholly owned subsidiaries. Significant
inter-company accounts and transactions have been eliminated.
Organization and principal business activities
The Company was incorporated in Florida on March 1, 1998 as Clean Land
Company. On May 13, 1998, the Company changed its name to General
Environmental Technologies, Inc.
The Company activities are demolition, remediation and environmental
clean up of polluted land for large corporations and governmental
agencies.
On March 1, 1998 the Company contributed plant, equipment and set up
operations on March 23, 1998.
Cash and equivalents
The Company considers all highly liquid debt instruments purchased with
a maturity of three months or less to be cash equivalents for purposes
of the statements of cash flows. The Company held no cash equivalents at
June 30, 1998
Accounts receivable
Accounts receivable are recorded based on the stage of completion
accounting. There is a 10% retainer until final customer approval after
the job is completed. Most jobs are based on bids ending in project job
contracts.
As of June 30, 1998, there were no disputes that would cause the Company
to setup an estimate for uncollectible customer projects.
Inventories
Inventories are stated at lower of cost or market. Cost is determined by
the first-in, first-out method. The Company's inventory consist mostly
of land fill materials used directly in its operations. As of June 30,
1998. The inventory of $55,638 was contributed to the Company by a
stockholder.
Advances to Contractors
The Company has advanced to suppliers and subcontractors in order to
meet delivery schedules specified in their contract with their
customers. It is anticipated all advances will be earned no later than
December 31, 1998 by which time all the projects are anticipated to be
complete.
See accompanying accountants' review report
<PAGE> 45
Page 28
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JUNE 30, 1998
1. Summary of significant accounting policies and business activity (cont'd):
Property and equipment
Major expenditures for property and equipment and those which
substantially increase useful lives are capitalized. Maintenance,
repairs and minor renewals are expensed as incurred. When assets are
retired or other wise disposed of, their costs and related accumulated
amortization and depreciation are removed from the respective accounts
and resulting gains or losses are included in income. Depreciation is
based on a useful life of three (3) years for vehicle and three (3) to
seven (7) years useful life for all other types of equipment. Buildings
have a useful life of thirty nine (39) years.
Deferred income tax accounts
Deferred tax provision/benefits are calculated for certain transactions
and events because of differing treatments under generally accepted
accounting principals and the currently enacted tax laws of the federal
government. The results of these differences on a cumulative basis,
known as temporary differences, result in the recognition and
measurement of deferred tax assets and liabilities in the accompanying
balance sheets.
Management use of estimates and certain significant estimates
The preparation of financial statement in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period.
2. Income taxes:
The Company will file its taxes as a C corporation for the federal and
state tax returns.
See accompanying accountants' review report
<PAGE> 46
Page 29
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JUNE 30, 1998
3. Deferred income taxes:
The Company has adopted SFAS No. 109, "Accounting for Income Taxes,"
which requires a liability approach to financial accounting and
reporting for income taxes.
The difference between the financial statement and tax basis of assets
and liabilities is determined annually. Deferred income tax assets and
liabilities are computed for those differences that have a future tax
consequences using the currently enacted tax laws and rates that apply
to the periods in which they are expected to affect taxable income.
Valuation allowances are established, if necessary, to reduce deferred
tax asset accounts to the amounts that will more likely than not be
realized. Income tax expense is the current tax payable or refundable
for the period, plus or minus the net change in the deferred tax asset
and liability accounts.
4. Related party transactions:
Receivable and payables related party transactions and credit line
facility:
The Company has a $700,000 line of credit with a national bank secured
by certificates of deposits (CD's) of a related party. The interest
rates are 8% fixed on the outstanding loan balance and 5% on the
$700,000 of collateralized CDs per annum, as of June 30, 1998. The
Company had an outstanding loan balance of $521,400 leaving the Company
approximately $179,000 availability on its credit line. The line of
credit is in force over a three year period maturing May 13, 2001.
The Company also is owed $814,596 in related party receivables from the
same individual who secured the credit line with personal CD's. The net
receivable balance is $293,196 and is shown on the balance as a net
receivable since those were related party transactions in the individual
name. Between November 13, 1998 and December 11, 1998 its anticipated
that the line will revert to the Company as the related party individual
will repay the Company and remove his personal CD's as collateral
totaling $700,000 for the line.
See accompanying accountants' review report
<PAGE> 47
Page 30
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JUNE 30, 1998
4. Related party transactions (cont'd):
Notes payable from related parties will mature as follows:
<TABLE>
<S> <C>
Principal payment plus accrued interest at 10%
per annum all payable on March 31, 1999 $241,919
Principal payments plus accrued interest at 10%
per annum all payable on April 30, 1999 209,000
--------
Total principal payments $450,919
========
</TABLE>
None of the above transactions are collateralized by UCC filings or any
conversion rights into shares of common stock.
Capital stock contributed
The Company received an independent appraisal on property, plant and
equipment items totaling $2,721,000 of the $2,969,693 on the June 30,
1998 balance sheet. The other capital expenditure totaling $248,693 were
purchased from an individual in exchange for stock. All of these assets
were contributed to the Company in return for common stock at a price of
one dollar per share. The only related party active is a consultant to
the business who contributed the $419,493 of equipment and vehicles and
the president who is legal counsel to the Company.
Rent
The headquarters building in Florida is rent free from an attorney who
is legal counsel to the Company. This arrangement will end shortly and
the Company will get adequate space to service company operations.
Related party transactions
The Company's source of capital contributions came from the transfer of
equipment of other corporations who are related parties. However, the
Company is taking steps to remove the related party influence. None of
the related parties are directors of the Company as however, one party
is actively engaged as a management consultant because of his stature in
sales and operations within the industry and the president is the firms
attorney. The individual who are related parties plan to put their
shares in a trust with an independent trustee, so there is no appearance
of influence on company activities except for the shareholder who acts
as the management consultant.
See accompanying accountants' review report
<PAGE> 48
Page 31
GENERAL ENVIRONMENTAL TECHNOLOGIES, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JUNE 30, 1998
5. Commitments and contingencies:
The Company and its subsidiaries are not required to pay rent through
September 30, 1999 for its New York City location in Queens County. This
location is shared with several other contractors (unrelated parties)
one of which performed services for the landlord in 1993 and currently
receives space rent free in consideration for those services. That
contractor does business with the Company.
The land and building located in Michigan (part of the related party
transactions) was acquired to provide an area for a demolition yard and
repair facility for anticipated jobs in Detroit and other potential
sites in Michigan, Ohio, and Indiana. It will take approximately
$100,000 to renovate the building to meet the above job requirements
plus a commitment to acquire the needed equipment and vehicles to
service such projects is approximately $300,000 of leased equipment (not
a capital lease). If the anticipated contracts for demolition jobs don't
materialize, the Company may have to sell or lease the Michigan
property.
6. Subsequent events:
The Company has won several contracts for services subject to adequate
financing of these projects, approximating $14,324,000 and are
anticipated to be complete within the next two years.
Furthermore, the Company has upcoming bids totaling approximately
$38,600,000 subject to adequate financing which may be completed over
the next one to three years. These bids require adequate working capital
to service these projects. If the Company can not show adequate working
capital, they will not win these bids.
On September 9, 1998, Mediforce, Inc. purchased General Environmental
Technologies, Inc. (GETI) by issuing 8,500,000 shares of its common
stock in exchange for the 100% shares owned by GETI shareholders.
Furthermore, Mediforce, Inc. will receive $250,000 from GETI to provide
working capital for Mediforce Products, Inc. a wholly owned subsidiary
of Mediforce, Inc. GETI will make payments from anticipated cash flow
within a one year period from the acquisition date from anticipated
equity financing or from current operations.
See accompanying accountants' review report
<PAGE> 49
Page 32
MEDIFORCE, INC.
UNAUDITED PRO FORMA
COMBINED FINANCIAL DATA
The following unaudited pro forma condensed, combined balance sheet of
Mediforce, Inc. has been prepared to present the consolidated financial position
of Mediforce, Inc. a publicly held entity as if the exchange of General
Environmental Technologies, Inc. (GETI) common stock for Mediforce shares of
common stock took place on April 1, 1997.
Upon completion of the transaction, Mediforce, Inc. will own 100% of the
outstanding common stock of GETI, and the corporate name of GETI will be changed
to Mediforce, Inc.
(1) On September 9, 1998, Mediforce, Inc. purchased General Environmental
Technologies, Inc. (GETI) by issuing 8,500,000 shares of its common
stock in exchange for the 100% shares owned by GETI shareholders.
Furthermore, Mediforce, Inc. will receive $250,000 from GETI to provide
working capital for Mediforce Products, Inc. a wholly owned subsidiary
of Mediforce, Inc. GETI will make payments from anticipated cash flow
within a one year period from the acquisition date from anticipated
equity financing or from current operations.
(2) Mediforce, Inc., an electronic bulletin board firm had no ability to
have adequate funding to support its manufacturing and marketing of its
product line, and GETI wants to go public to raise capital to meet the
cash requirements of some larger projects the Company is planning to
bid.
(3) All of the pro forma adjustments were made as of June 30, 1998 in
consideration of the September 9, 1998 acquisition described earlier.
The adjustments reflected transactions effected during the minutes of
shareholders and directors of Mediforce, Inc. meetings on September 8
and 9, 1998. Earnings per share take into effort a 1 for 40 common stock
reverse split of all shares outstanding effective September 8, 1998. On
on September 2, 1998, Mediforce increased its authorized shares of
common stock to 60,000,000. Earnings per share calculations for the
fiscal year ended March 31, 1998 and the three months ended June 30,
1998 take the reverse split into effect.
The purpose for the pro forma adjustments is to reflect the change in
capitalization of the combined entity, with appropriate changes to earnings per
share of Mediforce, Inc. to reflect the acquisition of GETI.
The following unaudited pro forma, condensed financial statements of Operations
of Mediforce, Inc. for the twelve months period ended March 31, 1998 and the
three months ended June 30, 1998 have been prepared as if the exchange of common
stock of GETI for Mediforce, Inc. took place on April 1, 1997.
These unaudited pro forma condensed financial statements should be read in
conjunction with the selected financial data and notes included elsewhere
herein.
The following unaudited pro forma, condensed financial statements are not
necessarily indicative of the results of combined operations that would have
occurred had the acquisition been effective on April 1, 1997 or the future
results of the combined companies. All material non-recurring charges are fully
disclosed in the pro forma financial statements.
<PAGE> 50
Page 33
MEDIFORCE, INC.
UNAUDITED PRO FORMA COMBINED BALANCE SHEETS
JUNE 30, 1998
ASSETS
<TABLE>
<CAPTION>
Mediforce, Pro Forma
Inc. GETI Pro Forma Adjustments Totals
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash $ 17,204 $ 0 $ 0 $ 0 $ 17,204
Accounts receivable - house, net of
allowance for doubtful accounts 8,070 310,734 0 0 318,804
Inventory 47,856 55,638 0 0 103,494
Prepaid expenses 6,104 0 0 0 6,104
Other receivables 0 244,798 0 0 244,798
----------- ----------- ----------- ----------- -----------
Total current assets 79,234 611,170 0 0 690,404
----------- ----------- ----------- ----------- -----------
Property & equipment (at cost) 98,241 2,973,792 0 0 3,072,033
Less accumulated depreciation (39,200) (69,545) 0 0 (108,745)
----------- ----------- ----------- ----------- -----------
Property and equipment, net 59,041 2,904,247 0 0 2,963,288
Investment in wholly owned sub 0 0 3,065,205(5) (3,065,205)(7) 0
Other assets:
Deposits 5,850 14,000 0 0 19,850
Due from related company 0 293,196 0 0 293,196
Organization costs, net of amortization 112,720 0 0 0 112,720
----------- ----------- ----------- ----------- -----------
Total other assets 118,570 307,196 3,065,205 (3,065,205) 425,766
----------- ----------- ----------- ----------- -----------
$ 256,845 $ 3,822,613 $ 3,065,205 $(3,065,205) $ 4,079,458
=========== =========== =========== =========== ===========
</TABLE>
See accompanying accountants' compilation report
<PAGE> 51
Page 34
MEDIFORCE, INC.
UNAUDITED PRO FORMA COMBINED BALANCE SHEETS
JUNE 30, 1998
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Mediforce, Pro Forma
Inc. GETI Pro Forma Adjustments Totals
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Current liabilities:
Accounts payable $ 78,356 $ 269,757 $ 0 $ 0 $ 348,114
Accrued expenses 0 14,731 0 0 14,731
Due to related company 0 450,919 0 0 450,919
Loan payable - bank 50,000 0 0 0 50,000
Income taxes payable 0 22,000 (15,000)(6) 0 7,000
----------- ----------- ----------- ----------- -----------
Total current liabilities 128,356 757,407 (15,000) 0 870,764
----------- ----------- ----------- ----------- -----------
Long-term liabilities:
Note payable, stockholders 935,000 0 (742,500)(1) 0 192,500
Loan payable - stockholders 326,736 0 (220,000)(2) 0 106,736
----------- ----------- ----------- ----------- -----------
Total long-term liabilities 1,261,736 0 (962,500) 0 299,236
----------- ----------- ----------- ----------- -----------
Total liabilities 1,390,092 757,407 (977,500) 0 1,170,000
----------- ----------- ----------- ----------- -----------
Stockholders' equity:
Common stock authorized 60,000,000
shares, par value $.004, issued
and outstanding 9,570,603 shares 400 2,969,693 (2,969,604) 37,793 38,282
Stock warrants 14 0 (14) 0 0
Additional paid-in capital 456,324 55,638 (55,727) 4,034,926 4,491,161
Treasury stock (11,957) 0 0 0 (11,957)
Retained earnings (accumulated
deficit) (1,578,028) 39,874 (69,874) 0 (1,608,028)
----------- ----------- ----------- ----------- -----------
Total stockholders' equity (1,133,247) 3,065,205 (3,095,219) 4,072,719 2,909,458
----------- ----------- ----------- ----------- -----------
$ 256,845 $ 3,822,612 $(4,072,719) $ 4,072,719 $ 4,079,458
=========== =========== =========== =========== ===========
</TABLE>
See accompanying accountants' compilation report
<PAGE> 52
Page 35
MEDIFORCE, INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF INCOME
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Pro Forma
Mediforce, Inc. GETI Adjustments
Amount Percent Amount Percent Amount Percent
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net sales $ 18,317 100.00 % $ 1,240,742 100.00 % $ 0 0.00 %
Cost of sales 16,230 88.61 813,909 65.60 0 0.00
----------- ----------- ----------- ----------- ----------- -----------
Gross profit 2,087 11.39 426,833 34.40 0 0.00
Operating expenses 119,825 654.17 364,959 29.41 45,000(3) 0.00
----------- ----------- ----------- ----------- ----------- -----------
Operating income (loss) (117,738) (642.78) 61,874 4.99 (45,000) 0.00
Other income:
Miscellaneous income 19,114 104.35 0 0.00 0 0.00
Gains on issuance
of stock 74,144 404.78 0 0.00 0 0.00
----------- ----------- ----------- ----------- ----------- -----------
93,258 509.13 0 0.00 0 0.00
----------- ----------- ----------- ----------- ----------- -----------
Income (loss) before
taxes (24,480) (133.65) 61,874 4.99 (45,000) (0.00)
Income taxes (benefit) 0 0.00 22,000 1.77 (15,000)(6) (0.00)
----------- ----------- ----------- ----------- ----------- -----------
Net income (loss) (24,480) (133.65)% 39,874 3.21 % (30,000) (0.00) %
=========== =========== ===========
Accumulated deficit,
beginning (1,553,548) 0 0
Adjustment to retained
Earnings 0 0 (39,874)
----------- ----------- ----------- -----------
Retained earnings,
ending (deficit) $(1,578,028) $ 39,874 $ (69,874)
=========== =========== ===========
<CAPTION>
Pro Forma
Totals
Amount Percent
----------- -----------
<S> <C> <C>
Net sales $ 1,259,059 100.00 %
Cost of sales 830,139 65.93
----------- -----------
Gross profit 428,920 34.07
Operating expenses 529,784 42.08
----------- -----------
Operating income (loss) (100,864) (8.01)
Other income:
Miscellaneous income 19,114 1.52
Gains on issuance
of stock 74,144 5.89
----------- -----------
93,258 7.41
----------- -----------
Income (loss) before taxes (7,606) (0.60)
Income taxes
(benefit) 7,000 0.56
----------- -----------
Net income (loss) (14,606) (1.16)%
Accumulated deficit,
beginning (1,553,548) (123.39)
Adjustment to retained
Earnings (39,874) (3.17)
----------- -----------
Retained earnings,
ending (deficit) $(1,608,028) (127.72)%
=========== ===========
</TABLE>
See accompanying notes to financial statements
<PAGE> 53
Page 36
MEDIFORCE, INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Common
Common Stock Stock Warrants Paid-in
Shares Amount Number Amount Capital Deficit
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Balance, Mediforce, Inc.
June 30, 1998 99,978 $ 400 136,000 $ 14 $ 456,324 $(1,578,028)
Balance, GETI June 30, 1998 2,969,693 55,638 39,874
Exchange of common
stock for debts (1) 103,125 413 742,087
Exchange of common
stock for debts (2) 830,000 3,230 216,770
Issuance of common
stock for professional
service rendered (3) 37,500 150 44,850 (45,000)
Purchase of GETI (5) 8,500,000 34,000 3,031,205
Cancellation of out-
standing stock warrants (4) (136,000) $ (14) 14
Pro forma income tax
Provision adjustment (6) 15,000
Pro Forma elimination (7) (55,727) (39,874)
----------- ----------- ----------- ----------- ----------- -----------
Combined Pro Forma
Balance, June 30, 1998 9,570,603 $ 38,272 0 $ 0 $ 4,481,161 $(1,608,028)
=========== =========== =========== =========== =========== ===========
<CAPTION>
Treasury Total
Stock Investment Stockholders'
Shares Amount in GETI Deficit
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance, Mediforce, Inc.
June 30, 1998 31,000 $ (11,957) $(1,133,247)
Balance, GETI June 30, 1998 3,065,205
Exchange of common
stock for debts (1) 742,500
Exchange of common
stock for debts (2) 220,000
Issuance of common
stock for professional
service rendered (3) 0
Purchase of GETI (5) (3,065,205) 0
Cancellation of out-
standing stock warrants (4) 0
Pro forma income tax
Provision adjustment (6) 15,000
Pro Forma elimination (7) 3,065,205 0
----------- ----------- ----------- -----------
Combined Pro Forma
Balance, June 30, 1998 31,000 $ (11,957) 0 $ 2,909,458
=========== =========== =========== ===========
</TABLE>
See accompanying notes to financial statements
<PAGE> 54
Page 37
NOTES TO UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
(1) To record bridge loan to shareholders conversion into common stock
shares issued 103,125 par value .004 shares converted higher fair market
value than debt owed.
(2) To record 830,000 shares for debts converted to common stock totaling
$220,000 at fair market value par value .004. Debt outstanding since
1995 - valued at 2/3 of 1% a related party transaction.
(3) To record issuance of 37,500 shares for services rendered in law suit
against prior supplier or company product 1/32 fair market value at
transaction date.
(4) To cancel warrants outstanding. (See footnotes on warrants issued March
31, 1998 and 1997.
(5) To record exchange of 8,500,000 shares to GETI in exchange for 100%
shareholder stock of GETI with stockholder equity at book value of
3,065,205 based on 6/30/98 financial statements of GETI.
(6) To setup tax adjustment based on combined taxable income.
(7) To record elimination entry of investment in wholly owned subsidiary
(GETI).
<PAGE> 55
PART III.
ITEM 1. INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
3.1 Articles of Incorporation of Registrant
3.2 Articles of Amendment to Articles of Incorporation of the
Registrant, filed August 22, 1996
3.3 Articles of Amendment to Articles of Incorporation of the
Registrant, filed September 16, 1996
3.4 Articles of Amendment to Articles of Incorporation of the
Registrant, filed September 2, 1998
3.5 Bylaws of the Registrant
10.1.(a) Promissory Note
10.1.(b) Promissory Note
</TABLE>
13
<PAGE> 56
<TABLE>
<S> <C>
10.2 Employment Contract, dated October 8, 1998, between Registrant
and Bradley T. Ray
10.3 Employment Contract, dated October 9, 1998, between Registrant
and Norman J. Birmingham
10.4 Employment Contract, dated October 8, 1998, between Registrant
and Charles C. Chillingworth
10.5 Employment Contract, dated May 1, 1998, between General
Environmental Technologies, Inc. and Bradley T. Ray
10.6 Employment Contract, dated May 1, 1998, between General
Environmental Technologies, Inc. and Norman J. Birmingham
10.7 Employment Contract, dated May 1, 1998, between General
Environmental Technologies, Inc. and Charles C. Chillingworth
10.8 Business Consulting Agreement, dated May 1, 1998, between
General Environmental Technologies, Inc. and Philip B. Schwab
10.9 Lump Sum Contract, dated February 17, 1998, between Federated
Corporate Services, Inc., and Iroquios Corp.
10.10 Assignment of Contract, dated May 11, 1998, between Indigo
Industries Incorporated and Indigo Industries, Inc., with
reference to that certain Contract No. V527C-850, Demolition
of Water Tower and 3 Buildings at the VA St. Albans Extended
Care Center, St. Albans, New York, dated July 25, 1997.
10.11 Assignment of Contract, dated April 17, 1998, between Iroquois
Corp. and Iroquois Wrecking Corp., with reference to that
certain Subcontract between Iroquois Corporation and Trataros
Construction, Inc., dated March 26, 1998.
10.12 Agreement, dated June 14, 1998, between Iroquois Wrecking
Corp. and Rapid Demo.
10.13 Agreement, dated June 15, 1998, between Iroquois Corporation
and Rapid Demo.
10.14 Agreement, dated July 10, 1998, between 95 Lorimer Street,
L.L.C. and Iroquois Wrecking Corp.
</TABLE>
14
<PAGE> 57
<TABLE>
<S> <C>
10.15 License Agreement, dated May 25, 1998, between Registrant and
Michael Cox.
21.1 List of Subsidiaries of the Registrant.
21.2 Articles of Incorporation of MediForce Products, Inc.
21.3 Bylaws of MediForce Products, Inc.
21.4 Articles of Incorporation of General Environmental
Technologies, Inc., formerly known as Clean Land Company.
21.5 Articles of Amendment to Articles of Incorporation of General
Environmental Technologies, Inc., filed May 21, 1998.
21.6 Bylaws of General Environmental Technologies, Inc.
21.7 Articles of Incorporation of Iroquois Corporation
21.8 Bylaws of Iroquois Corporation
21.9 Certificate of Incorporation of Iroquois Wrecking Corporation
21.10 Bylaws of Iroquois Wrecking Corporation
21.11 Articles of Incorporation of Indigo Industries, Inc.
21.12 Bylaws of Indigo Industries, Inc.
23.1 Consent of Weinberg & Company, P.A., independent auditors.
</TABLE>
15
<PAGE> 58
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
Registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
MediForce, Inc.
Date: November 13, 1998 By: /s/ Norman J. Birmingham
-------------------------------
Norman J. Birmingham
Chief Financial Officer
16
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF INCORPORATION FILED
98 MAR 25 AM 11:38
OF
SECRETARY OF STATE
MOLD - A - BRACE, INC. TALLAHASSEE, FLORIDA
ARTICLE 1 - NAME
The name of this corporation is MOLD - A - BRACE, INC.
The principal office of the corporation is located at
10138 LEXINGTON ESTATES BLVD.
BOCA RATON, FL 33428
ARTICLE 2 - DURATION
This corporation shall exist perpetually commencing on the date these
Articles are filed.
ARTICLE 3 - PURPOSE
This corporation is organized for the following purposes:
MANUFACTURE AND SALE OF MEDICAL PRODUCTS
and for the purpose of transacting any or all lawful business.
ARTICLE 4 - CAPITAL STOCK
This corporation is authorized to issue 10,000 shares of ten cents ($.10)
par value common stock which shall be designated "Common Shares".
ARTICLE 5 - INITIAL REGISTERED OFFICE AND AGENT
The street address of the initial registered office of this corporation is
10138 LEXINGTON ESTATES BLVD.
BOCA RATON, FL 33428
and the name of the initial registered agent of this corporation at that
address is WILMA COX
<PAGE> 2
ARTICLE 6 - INITIAL BOARD OF DIRECTORS
This corporation shall have 2 directors initially. The number of directors
may be increased from time to time by the By-Laws, but shall never be less than
2. The name and address of the initial director(s) of this corporation is:
MICHAEL F. AND WILMA COX
10138 LEXINGTON ESTATES BLVD.
BOCA RATON, FL 33428
ARTICLE 7 - INCORPORATOR
The name and address of the person signing these Articles is:
WILMA COX
10138 Lexington Estates Blvd.
Boca Raton, Florida 32428
ARTICLE 8 - RESTRICTIONS ON TRANSFER OF STOCK
Shares of capital stock of this corporation shall be issued initially to
the following persons and in the amounts set opposite their names:
MICHAEL F. AND WILMA COX, JTWROS-1200 SHARES
Shares held by the initial shareholders listed above may not be resold or
otherwise transferred to other persons unless such shares are first offered to
the remaining shareholders or to this corporation. The price and terms at
which, and the time within which, such shares may be offered and sold shall be
further specified by written agreement among all of the shareholders and this
corporation.
ARTICLE 9 - BY-LAWS
The power of adopt, alter, amend or repeal By-Laws shall be vested in the
Board of Directors and shareholders.
<PAGE> 3
ARTICLE 10 - POWERS
This corporation shall have all of the corporate powers enumerated in the
Florida General Corporation Act.
ARTICLE 11 - INDEMNIFICATION
The corporation shall indemnify any officer or director, or any former
officer or director, to the full extent permitted by law.
ARTICLE 12 - AMENDMENT
This corporation reserves the right to amend or repeal any provisions
contained in these Articles of Incorporation.
Any Amendment hereto, and any right conferred upon the shareholders, is
subject to this reservation.
IN WITNESS WHEREOF, the undersigned subscriber has executed these Articles of
Incorporation this 7 day of MARCH, 1993.
/s/ WILMA COX
--------------------------------------
WILMA COX
STATE OF FLORIDA
COUNTY OF PALM BEACH
BEFORE ME, a notary public authorized to take acknowledgements in the
state and county set forth above, personally appeared
WILMA COX
known to me and known by me to be the person who executed the foregoing
Articles of Incorporation and he acknowledged before me that he executed these
Articles of Incorporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the state and county aforesaid, this 7th day of MARCH, 1993.
[SEAL]
/s/ DONALD M. VAN DUSEN
--------------------------------------
DONALD M. VAN DUSEN
<PAGE> 4
ACCEPTANCE OF REGISTERED AGENT
OF
MOLD - A - BRACE, INC.
Having been named to accept service of process for the above-stated
corporation at the placed designated, I hereby accept to act in this capacity
and agree to comply with the provisions of Chapter 48.901, Florida Statutes,
relative to keeping open said office.
/s/ WILMA COX
------------------------------
Wilma Cox
STATE OF FLORIDA
COUNTY OF PALM BEACH
SWORN TO AND SUBSCRIBED before me this 7th day of March, 1993.
My commission expires: /s/ DONALD M. VAN DUSEN
------------------------------
[Seal] Notary Public
<PAGE> 1
EXHIBIT 3.2
[SEAL]
FLORIDA DEPARTMENT OF STATE
Sandra B. Mortham
Secretary of State
August 22, 1996
Mold-A-Brace, Inc.
10138 Lexington Est. Blvd.
Boca Raton, FL 33428
Re: Document Number P93000022580
The Articles of Amendment to the Articles of Incorporation of MOLD - A BRACE,
INC. which changed its name to MEDIFORCE, INC., a Florida corporation, were
filed on August 22, 1996.
Should you have any questions regarding this matter, please telephone (904)
487-6050, the Amendment Filing Section.
Steven Harris
Corporate Specialist
Division of Corporation Letter Number: 89600040004
<PAGE> 2
ARTICLES OF AMENDMENT TO FILED
ARTICLES OF INCORPORATION 96 AUG 22 PM 2:55
OF
MOLD-A-BRACE, INC. SECRETARY OF STATE
TALLAHASSEE, FLORIDA
Pursuant to the provisions of Chapter 607, Florida Statutes, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation, filed March 25, 1993, #P930000225880.
FIRST: The name of the corporation is MOLD-A-BRACE, INC.
SECOND: The following amendment of the Articles of Incorporation was
adopted by the corporation:
Change of Name:
From: MOLD-A-BRACE, INC.
To : MEDIFORCE, INC.
Stock:
This Corporation is authorized to issue ten million (10,000,000)
shares of ten cents ($.10) par value common stock which shall be designated
"COMMON SHARES".
THIRD: The amendment was adopted by the Board of Directors on the 9th
day of August, 1996.
<PAGE> 3
FOURTH: The amendment was approved by a majority of the shareholders of the
corporation on the 9 day of August, 1996.
DATED: August 19, 1996.
MEDIFORCE, INC.
/s/ WILMA COX
------------------------------------
WILMA COX, President
Attest:
/s/ WILMA COX
- ----------------------------------
, Secretary
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgements, personally appeared WILMA COX,
1. ( ) to me personally known to be the person described herein and
who executed the foregoing instrument, and acknowledged under oath that she
executed the same.
OR
2. ( X ) who produced identification in the form of Florida Driver's
License #C200-920-38-746-0 Exp
WITNESS my hand and official seal in the County and State aforesaid this
19th day of August, 1996.
/s/ ESTHER M. MUNNILAL
- --------------------------------
Notary Public
Esther M. Munnilal
- --------------------------------
(Type/print Name of Notary)
My Commission Expires: Dec. 21, 1996
[SEAL]
<PAGE> 1
EXHIBIT 3.3
[SEAL]
FLORIDA DEPARTMENT OF STATE
Sandra B. Mortham
Secretary of State
September 23, 1996
JOHN F. BRADLEY
THE LAW OFFICES OF JOHN BRADLEY & ASSOC.
1215 EAST BROWARD BLVD., SUITE 200
FT. LAUDERDALE, FL 33301
Re: Document Number P93000022580
The Articles of Amendment to the Articles of Incorporation of MEDIFORCE, INC.,
a Florida corporation, were filed on September 16, 1996.
Should you have any questions regarding this matter, please telephone (904)
487-6050, the Amendment Filing Section.
Darlene Connell
Corporate Specialist
Division of Corporations Letter Number: 896A00043763
<PAGE> 2
FILED
96 SEP 16 1:52
SEAL SECY OF STATE
TALLAHASSEE FLORIDA
ARTICALS OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
MEDIFORCE, INC.
Pursuant to the provisions of Chapter 607, Florida Statutes, the undersigned
corporation adopts the following Articles of Amendment to its Articles of
Incorporation, filed March 25, 1993, #P930000225880 and Articles of Amendment
filed August 22, 1996.
FIRST: The following amendment of the Articles of Incorporation was
adopted by the corporation:
Stock:
This Corporation is authorized to issue ten million (10,000,000)
shares of .0001 cents par value common stock which shall be designated "COMMON
SHARES".
SECOND: The amendment was adopted by the Board of Directors on the 30th
Day of August, 1996.
<PAGE> 3
THIRD: The amendment was approved by a majority of the Shareholders of the
corporation on the 30th day of August, 1996. The number of votes cast was
sufficient for approval.
DATED: 9/13/1996
MEDIFORCE, INC.
/s/ WILMA COX
-----------------------------
WILMA COX, President Attest:
/s/ WILMA COX
- -------------------------
Secretary
STATE OF FLORIDA
COUNTY OF BROWARD
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared WILMA COX.
1. ( ) to me personally known to be the person described herein and
who executed the foregoing instrument, and acknowledged under oath that she
executed the same. OR
2. ([check mark]) who produced identification in the form of Florida
Driver's License #C200 920-38-746-0 Exp. 7/02 and acknowledged under oath before
me that she executed the same. WITNESS my hand and official seal in the County
and State aforesaid this 13th day of September, 1996.
/s/ ESTHER M. MUNNILAL
----------------------------------
Notary Public
ESTHER M. MUNNILAL
----------------------------------
(Type or Print Name of Notary)
[SEAL]
My Commission Expires: Dec. 21, 1996
<PAGE> 1
EXHIBIT 3.4
[STATE OF FLORIDA SEAL]
I certify the attached is a true and correct copy of the Articles of Amendment,
filed on September 2, 1998, to Articles of Incorporation for MEDIFORCE, INC., a
Florida corporation, as shown by the records of this office.
The document number of this corporation is P93000022580.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Fourth day of September 1998
/s/ SANDRA B. MORTHAM
----------------------
[GREAT SEAL] Sandra B. Mortham
CR2EO22 (2-95) Secretary of State
<PAGE> 2
Filed
98 SEP - 2 AM 8:03
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION
OF
MEDIFORCE, INC.
Pursuant to the provisions of Chapter 607 of the Florida Statutes, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation, filed on September 16, 1996, #P93000022580:
FIRST: The following Amendment of the Articles of Incorporation was
adopted by the Corporation:
Stock: This Corporation is authorized to issue Sixty Million (60,000,000)
shares of .0001 cent par value common stock, which shall be designated "common
shares."
SECOND: The Amendment was adopted by the Board of Directors on the 18th day
of August, 1998.
THIRD: The Amendment was approved by a majority of the shareholders of the
Corporation on the 17th day of August 1998. The number of votes cast by the
shareholders was sufficient for approval.
MEDIFORCE, INC.
/s/ WILMA COX
----------------------------
WILMA COX, President Attest:
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared WILMA COX,, [X] to me personally known
to be the person described herein and who executed the foregoing instrument, and
acknowledged under oath that she executed the same OR [ ] who produced
identification in the form of Florida Driver's License and acknowledged under
oath before me that she executed the same. WITNESS MY HAND AND OFFICIAL SEAL IN
THE County and State aforesaid this 1st day of September, 1998.
/s/ CAROL A. CULLEN
[STATE OF FLORIDA ----------------------------
NOTARY PUBLIC SEAL] Notary Public
Carol A. Cullen
----------------------------
Type or print name of Notary
My Commission Expires 8/6/00
<PAGE> 1
EXHIBIT 3.5
BY-LAWS OF
ARTICLE I - OFFICES
The principal office of the corporation shall be established and maintained at
1200 N. Federal Highway, Suite 200 in the City of Boca Raton County of Palm
Beach State of Florida. The corporation may also have offices at such places
within or without the State of Florida as the Board may from time to time
establish.
ARTICLE II - STOCKHOLDERS
1. PLACE OF MEETINGS
Meetings of the stockholders shall be held at the principal office of the
corporation or at such place within or without the State of Florida as the Board
shall authorize.
2. ANNUAL MEETING
The annual meeting of stockholders shall be held on the day of ,
at M. in each year; however, if such day falls on a Sunday or a legal
holiday, then on the next business day following at the same time, the
stockholders shall elect a Board of Directors and transact such other business
as may properly come before the meeting.
3. SPECIAL MEETINGS
Special meetings of the stockholders may be called by the Board or by the
president or at the written request of stockholders owning a majority of the
stock entitled to vote at such meeting. A meeting requested by the stockholders
shall be called for a date not less than ten nor more than sixty days after a
request is made. The secretary shall issue the call for the meeting unless the
president, the Board or the stockholders shall designate another to make said
call.
4. NOTICE OF MEETINGS
Written Notice of each meeting of stockholders shall state the purpose of the
meeting and the time and place of the meeting. Notice shall be mailed to each
stockholder having the right and entitled to vote at such meetings, at his last
address as it appears on the records of the corporation, not less than ten nor
more than sixty days before the date set for such meeting. Such notice shall be
sufficient for the meeting and any adjournment thereof. If any stockholder shall
transfer his stock after notice, it shall not be necessary to notify the
transferee. Any stockholder may waive notice of any meeting either before,
during or after the meeting.
5. RECORD DATE
The Board may fix a record date nor more than forty days prior to the date set
for a meeting of stockholders as the date as of which the stockholders of record
who have the right to and are entitled to notice of and to vote at such meeting
and any adjournment thereof shall be determined. Notice that such date has
FL A
<PAGE> 2
been fixed may be published in the city, town or county where the principal
office of the corporation is located and in each city or town where a transfer
agent of the stock of the corporation is located.
6. VOTING
Every stockholder shall be entitled at each meeting and upon each proposal
presented at each meeting to one vote for each share of voting stock recorded in
his name on the books of the corporation on the record date as fixed by the
Board. If no record date was fixed, on the date of the meeting the book of
records of stockholders shall be produced at the meeting upon the request of any
stockholder. Upon demand of any stockholder, the vote for Directors and the vote
upon any question before the meeting, shall be by ballot. All elections for
Directors shall be decided by plurality vote; all other questions shall be
decided by majority vote.
7. QUORUM
The presence, in person or by proxy, of stockholders holding a majority of the
stock of the corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat
present in person or by proxy, shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until the
requisite amount of stock entitled to vote shall be present. At any such
adjourned meeting at which the requisite amount of stock entitled to vote be
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed; but only those stockholders entitled to vote
at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
8. PROXIES
At any stockholders' meeting or any adjournment thereof, any stockholder of
record having the right and entitled to vote thereat may be represented and vote
by proxy appointed in a written instrument. No such proxy shall be voted after
three years from the date of the instrument unless the instrument provides for a
longer period. In the event that any such instrument provides for two or more
persons to act as proxies, a majority of such persons present at the meeting, or
if only one be present, that one, shall have all the powers conferred by the
instrument upon all persons so designated unless the instrument shall otherwise
provide.
9. STOCKHOLDER LIST
After fixing a record date for a meeting, the corporation shall prepare an
alphabetical list of the name of all its shareholders who are entitled to notice
of a shareholder's meeting. Such list shall be arranged by voting group with the
names and addresses of, and the number and class and series if any, of shares
held by each. This list shall be available for inspection by any shareholder for
a period of ten days prior to the meeting.
FL B
<PAGE> 3
ARTICLE III - DIRECTORS
1. BOARD OF DIRECTORS
The business of the corporation shall be managed and its corporate powers
exercised by a Board of Directors each of whom shall be of full age.
It shall not be necessary for Directors to be stockholders.
2. ELECTION AND TERM OF DIRECTORS
Directors shall be elected at the annual meeting of stockholders and each
Director elected shall hold office until his successor has been elected and
qualified, or until the Director's prior resignation or removal.
3. VACANCIES
If the office of any Director, member of a committee or other office becomes
vacant the remaining Directors in office, by a majority vote, may appoint any
qualified person to fill such vacancy, who shall hold office for the unexpired
term and until a successor shall be duly chosen.
4. REMOVAL OF DIRECTORS
Any or all of the Directors may be removed with or without cause by vote of a
majority of all the stock outstanding and entitled to vote at a special meeting
of stockholders called for that purpose.
5. NEWLY CREATED DIRECTORSHIPS
The number of Directors may be increased by amendment of these By-laws by the
affirmative vote of a majority of the Directors, through less than a quorum,
or, by the affirmative vote of a majority in interest of the stockholders, at
the annual meeting or at a special meeting called for that purpose, and by like
vote the additional Directors may be chosen at such meeting to hold office
until the next annual election and until their successors are elected and
qualify.
6. RESIGNATION
A Director may resign at any time by giving written notice to the Board, the
president or the secretary of the corporation. Unless otherwise specified in
the notice the resignation shall take effect upon receipt thereof by the Board
or such officer, and the acceptance of the resignation shall not be necessary
to make it effective.
7. QUORUM OF DIRECTORS
A majority of the Directors shall consitute a quorum for the transaction of
business. If at any meeting of the Board there shall be less than a quorum
present, a majority of those present may adjourn the meeting until a quorum is
obtained and no further notice thereof need be given other than by announcement
at the meeting which shall be so adjourned.
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8. PLACE AND TIME OF BOARD MEETINGS
The Board may hold its meetings at the office of the corporation or at such
other places either within or without the State of Florida as it may from time
to time determine.
9. REGULAR ANNUAL MEETING
A regular annual meeting of the Board shall be held immediately following the
annual meeting of the stockholders at the place of such annual meeting of
stockholders.
10. NOTICE OF MEETINGS OF THE BOARD
Regular meetings of the Board may be held without notice at such time and place
as it shall from time to time determine. Special meetings of the Board shall be
held upon notice to the Directors and may be called by the president upon three
days notice to each Director either personally or by mail or by wire; special
meetings shall be called by the president or by the secretary in a like manner
on written request of two Directors. Notice of a meeting need not be given to
any Director who submits a Waiver of Notice whether before or after the meeting
or who attends the meeting without protesting prior thereto or at its
commencement, the lack of notice to him.
11. EXECUTIVE AND OTHER COMMITTEES
The Board, by resolution, may designate two or more of their number to one or
more committees, which, to the extend provided in said resolution or these
By-laws may exercise the powers of the Board in the management of the business
of the corporation.
12. COMPENSATION
No compensation shall be paid to Directors, as such for their services, but by
resolution of the Board a fixed sum and expenses for actual attendance, at each
regular or special meeting of the Board may be authorized. Nothing herein
contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
ARTICLE IV - OFFICERS
1. OFFICERS, ELECTION AND TERM
A. The Board may elect or appoint a chairman, a president, one or more
vice-presidents, a secretary, an assistant secretary, a treasurer and an
assistant treasurer and such other officers as it may determine who shall have
duties and powers as hereinafter provided.
B. All officers shall be elected or appointed to hold office until the
meeting of the Board following the next annual meeting of stockholders and until
their successors have been elected or appointed and qualified.
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2. REMOVAL, RESIGNATION, SALARY, ETC.
A. Any officer elected or appointed by the Board may be removed by the
Board with or without cause.
B. In the event of the death, resignation or removal of an officer, the
Board in its discretion may elect or appoint a successor to fill the unexpired
term.
C. Any two or more offices may be held by the same person.
D. The salaries of all officers shall be fixed by the Board.
E. The Directors may require any officer to give security for the faithful
performance of his duties.
3. CHAIRMAN
The chairman of the Board, if one be elected, shall preside at all meetings of
the Board and shall have and perform such other duties from time to time as may
be assigned to him by the Board or the executive committee.
4. PRESIDENT
The president shall be the chief executive officer of the corporation and shall
have the general powers and duties of supervision and management usually vested
in the office of the president of the corporation. The president shall preside
at all meetings of the stockholders if present thereat, and in the absence or
non-election of the chairman of the Board, at all meetings of the Board, and
shall have general supervision direction and control of the business of the
corporation. Except as the Board shall authorize the execution thereof in some
other manner, the president shall execute bonds, mortgages and other contracts
in behalf of the corporation and shall cause the seal to be affixed to any
instrument requiring it and when so affixed, the seal shall be attested by the
signature of the secretary or the treasurer or an assistant secretary or an
assistant treasurer.
5. VICE-PRESIDENTS
During the absence or disability of the president, the vice-president, or if
there be more than one, the executive vice-president, shall have all the powers
and functions of the president. Each vice-president shall perform such other
duties as the Board shall prescribe.
6. SECRETARY
The secretary shall attend all meetings of the Board and of the stockholders,
record all votes and minutes of all proceedings in a book to be kept for that
purpose, give or cause to be given notice of all meetings of stockholders and of
meetings and special meetings of the Board, keep in safe custody the seal
FL E
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of the corporation and affix it to any instrument when authorized by the Board
or the president, when required, prepare or cause to be prepared and available
at each meeting of stockholders a certified list in alphabetical order of the
names of stockholders entitled to vote thereat, indicating the number of shares
of each respective class held by each, keep all the documents and records of the
corporation as required by law or otherwise in a proper and safe manner, and
perform such other duties as may be prescribed by the Board or assigned by the
president.
7. ASSISTANT-SECRETARIES
During the absence or disability of the secretary, the assistant-secretary, or
if there are more than one, the one so designated by the secretary or by the
Board, shall have all the powers and functions of the secretary.
8. TREASURER
The treasurer shall have the custody of the corporate funds and securities, keep
full and accurate accounts of receipts and disbursements in the corporate books,
deposit all money and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board, disburse the
funds of the corporation as may be ordered or authorized by the Board and
preserve proper vouchers for such disbursements, render to the president and
Board at the regular meetings of the Board, or whenever they require it, an
account of all the transactions made as treasurer and of the financial condition
of the corporation. The treasurer shall also render a full financial report at
the annual meeting of the stockholders if so requested. The treasurer may
request and shall be furnished by all corporate officers and agents with such
reports and statements as he may require as to all financial transactions of the
corporation, and perform such other duties as are designated by these By-laws or
as from time to time are assigned by the Board of Directors.
9. ASSISTANT-TREASURERS
During the absence or disability of the treasurer, the assistant-treasurer, or
if there be more than one, the one so designated by the treasurer or the Board,
shall have all the powers and functions of the treasurer.
10. SURETIES AND BONDS
In case the Board shall so require, any officer or agent of the corporation
shall execute to the corporation a bond in such sum and with such surety or
sureties as the Board may direct, conditioned upon the faithful performance of
duties to the corporation and including responsibility for negligence and for
the accounting of all property, funds or securities of the corporation which the
officer or agent may be responsible for.
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ARTICLE V - CERTIFICATES FOR SHARES
1. CERTIFICATES
The shares of the corporation shall be represented by certificates. They shall
be numbered and entered in the books of the corporation as they are issued. They
shall exhibit the holder's name, the number of shares and shall be signed by the
president and secretary and shall bear the corporate seal. When such
certificates are signed by the transfer agent or an assistant transfer agent or
by a transfer clerk acting on behalf of the corporation and a registrar, the
signatures of such officers may be facsimiles.
2. LOST OR DESTROYED CERTIFICATES
The Board may direct a new certificate or certificates to be issued in place of
any certificates theretofore issued by the corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board may, in its discretion as a
condition preceding the issuance thereof, require the owner of such lost or
destroyed certificate or certificates, or the owner's legal representative, to
advertise the same in such manner as it shall require and/or give the
corporation a bond in such sum and with such surety or sureties as it may direct
as indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost or destroyed.
3. TRANSFER OF SHARES
Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, and
cancel the old certificate; every such transfer shall be entered on the transfer
book of the corporation which shall be kept at its principal office. Whenever a
transfer shall be made for collateral security, and not absolutely, it expressed
in the entry of the transfer ledger. No transfer shall be made within ten days
next preceeding the annual meeting of the stockholders.
4. CLOSING TRANSFER BOOKS
The Board shall have the power to close the share transfer books of the
corporation for a period of not more than ten days during the thirty day period
immediately preceeding (a) any stockholder's meeting, or (b) any date upon which
stockholders shall be called upon to or have a right to take action without a
meeting, or (c) any date fixed for the payment of a dividend or any other form
of distribution, and only those stockholders of record at the time the transfer
books are closed, shall be recognized as such for the purpose of (a) receiving
notice of or voting at such meeting or (b) allowing them to take appropriate
action, or (c) entitling them to receive any dividend or other form of
distribution.
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ARTICLE VI - DIVIDENDS
The Board may out of funds legally available, at any regular or special meeting,
declare dividends upon the capital stock of the corporation as and when it deems
expedient. Before declaring any dividend there may be set apart out of any funds
of the corporation available for dividends, such sum or sums as the Board from
time to time in their discretion deem proper for working capital or as a reserve
fund to meet contingencies or for equalizing dividends or for such other
purposes as the Board shall deem conducive to the interest of the corporation.
ARTICLE VII - CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name of the
corporation, the year of its organization and the words "CORPORATE SEAL,
FLORIDA". The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporate obligation for the
payment of money may be facsimile, engraved or printed.
ARTICLE VIII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or countersigned,
executed, verified or acknowledged by such officer or officers or other person
or persons as the Board may from time to time designate.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner as shall be determined from time to time by resolution of the Board.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin on the first day of each year.
ARTICLE X - NOTICE AND WAIVER OF NOTICE
Whenever any notice is required by these By-laws to be given, personal notice is
not meant unless expressly so stated, and any notice so required shall be deemed
to be sufficient if given by depositing the same in a post office box in a
sealed postage-paid wrapper, addressed to the person entitled thereto at the
last known post office address, and such notice shall be deemed to have been
given on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise promised by
Statute.
Whenever any notice whatever is required to be given under the provisions of any
law, or under the provisions of the Articles of Incorporation of the corporation
or these By-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
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ARTICLE XI - CONSTRUCTION
Whenever a conflict arises between the language of these By-laws and the
Articles of Incorporation the Articles of Incorporation shall govern.
ARTICLE XII - CLOSE CORPORATION
1. CONDUCT OF BUSINESS WITHOUT MEETINGS
Any action of the stockholders, Directors or committee may be taken without a
meeting if consent in writing, setting forth the action so taken, shall be
signed by all persons who would be entitled to vote on such action at a meeting
and filed with the secretary of the corporation as part of the proceedings of
the stockholders, Director or committees as the case may be.
2. MANAGEMENT BY STOCKHOLDERS
In the event the stockholders are named in the Articles of Incorporation and are
empowered therein to manage the affairs of the corporation in lieu of
Directors, the stockholders of the corporation shall be deemed Directors for
the purposes of these By-laws and wherever the word "Directors", "Board of
Directors" or "Board" appear in these By-laws those words shall be taken to
mean stockholders.
The stockholders may, by majority vote, create a Board of Directors to manage
the business of the corporation and exercise its corporate powers.
ARTICLE XIII - AMENDMENTS
These By-laws may be altered or repealed and By-laws may be made at any annual
meeting of the stockholders or at any special meeting thereof if notice of the
proposed alteration or repeal to be made contained in the notice of such
special meeting, by the affirmative vote of a majority of the stock issued and
outstanding and entitled to vote thereat, or by the affirmative vote of a
majority of the Board at any regular meeting of the Board or at any special
meeting of the Board if notice of the proposed alteration or repeal to be made
is contained in the notice of such special meeting.
ARTICLE XIV - EMERGENCY BY-LAWS
1. CONDUCT OF BUSINESS WITHOUT MEETINGS
Pursuant to Florida Statue 607.0207 the corporation adopts the following
By-laws, which shall be effective only if a quorum of the Directors of the
corporation cannot be readily assembled because of some catastrophic event.
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2. CALLING A MEETING
In the event of such catastrophic event, any member of the Board of
Directors shall be authorized to call a meeting of the Board of Directors.
Such member calling an emergency meeting shall use any means of
communication at their disposal to notify all other members of the Board
of such meeting.
3. QUORUM
Any one member of the Board of Directors shall constitute a quorum of the
Board of Directors. The members of the Board of Directors meeting during
such an emergency, may select any person or persons as additional Board
members, officers or agents of the corporation.
4. INDEMNIFICATION
The members of such emergency Board of Directors are authorized to utilize
any means at their disposal to preserve and protect the assets of the
corporation. Any action taken in good faith and acted upon in accordance
with these By-laws shall bind the corporation; and the corporation shall
hold harmless any Director, officer, employee or agent who undertakes an
action pursuant to these By-laws.
5. TERMINATION OF EMERGENCY BY-LAWS
These emergency By-laws shall not be effective at the end of the emergency
period.
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EXHIBIT 10.1.(A)
PROMISSORY NOTE
$110,000
June 8, 1995
West Palm Beach, Florida
FOR VALUE RECEIVED, the undersigned promises to pay to JEAN JOHNSTONE,
or order, on demand, the principal sum of ONE HUNDRED TEN THOUSAND DOLLARS
($110,000.00), with interest from date at the rate of ten per cent (10%) per
annum on the balance from time to time remaining unpaid. The said principal and
interest shall be payable in lawful money of the United States of America at 117
Windjammer Drive, Lansing, MI 48917, or such place as may hereafter be
designated by written notice from the holder to the maker hereof.
The maker hereby waives presentment, protest, notice, notice of protest
and notice of dishonor and agrees to pay all costs, including a reasonable
attorney's fee, whether suit be brought or not, if, after maturity of this Note
or default hereunder, or under said Mortgage, counsel shall be employed to
collect this Note.
ATTEST: MEDIFORCE, INC.,
a Florida corporation,
____________________________________
Wilma Cox, Secretary By:_________________________________
Michael Cox, Vice President
<PAGE> 1
EXHIBIT 10.1.(B)
PROMISSORY NOTE
$110,000
June 8, 1995
West Palm Beach, Florida
FOR VALUE RECEIVED, the undersigned promises to pay to WILMA COX, or
order, on demand, the principal sum of ONE HUNDRED TEN THOUSAND DOLLARS
($110,000.00), with interest from date at the rate of ten per cent (10%) per
annum on the balance from time to time remaining unpaid. The said principal and
interest shall be payable in lawful money of the United States of America at
10138 Lexington Estates Boulevard, Boca Raton, FL 33486, or such place as may
hereafter be designated by written notice from the holder to the maker hereof.
The maker hereby waives presentment, protest, notice, notice of protest
and notice of dishonor and agrees to pay all costs, including a reasonable
attorney's fee, whether suit be brought or not, if, after maturity of this Note
or default hereunder, or under said Mortgage, counsel shall be employed to
collect this Note.
ATTEST: MEDIFORCE, INC.,
a Florida corporation,
____________________________________
Wilma Cox, Secretary By:_________________________________
Michael Cox, Vice President
<PAGE> 1
EXHIBIT 10.2
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between BRADLEY T. RAY, hereinafter
referred to as "Employee", and MEDIFORCE, INC., a Florida corporation,
hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as Chairman
of the Board, and Employee hereby accepts such employment, on the terms
and conditions described in this Agreement. The Employee's
responsibilities, other than acting as Chairman of the Board and guiding
the company, shall be for public acquisitions, mergers and other public
offerings and shall be the primary officer responsible for strategic
planning and advancement of the business. During such period, he
diligently shall perform such executive and administrative duties as
shall from time to time be assigned to him by the Board of Directors,
and he agrees to give his full-time and attention and his best efforts
to the business and affairs of the company. Full time is defined as
forty (40) hours per week. During such period, he will act as an
officer, if elected to office, without additional compensation. The
above shall not be construed to prevent him from acting as director or
officer of other noncompeting corporations when such activity does not
occupy a substantial part of his business time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely
be given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at
the time of the execution of this Contract, and the Employee understands
that this existing knowledge and skill will become mixed with and
enhanced by the knowledge and skill gained during the course of the
employment, and that the terms of this Contract, including the Trade
Secrets Provision (8), Covenant Not to Compete (9) and Trade Secrets
After Termination of Employment Provision (10) are fully binding on the
Employee notwithstanding the existence of previous extensive knowledge
or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience
and talents, perform all of the duties that may be required of and from
him pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall
in good faith require or as the interest, needs, or business opportunity
of the Company shall require.
3. TERMS OF EMPLOYMENT. The term of this employment shall be from October
1, 1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company
shall pay the Employee, and the Employee shall accept from the
Company, in full payment for Employee's services hereunder,
compensation at the rate of ONE HUNDRED TWENTY THOUSAND DOLLARS
($120,000.00) for and during the first year. It shall not be
necessary to execute a new Employment Contract when the rate of
compensation changes, or when the job title changes. The Company
shall reimburse Employee for all necessary expenses incurred by
Employee while traveling pursuant to the Company's directions.
Said annual salary shall be payable in installments of TEN
THOUSAND DOLLARS ($10,000.00) per month, beginning on the 1st
day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit,
pre-tax, of the Company each year.
C. Health and Disability Insurance. The Company shall provide at
the Company's expense, health care benefits and disability
insurance for Employee and his immediate family members,
consistent with all other insurance for officers and directors
provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate
as of the last day of the month in which the Company ceases operations
at such location with the same force and effect as if such last day of
the month were originally set as the termination date hereof
6. INDEMNIFICATION. The Company will protect and indemnify the Employee
from any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available
to the Company all information concerning the business of the Company,
of which the Employee shall have any knowledge and shall make all
suggestions and recommendations that will be of mutual benefit to the
Company and the Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information
concerning any matters affecting or relating to the business of the
Company, including, without limiting the generality of the foregoing,
its manner of operation, its plans, processes, or other data, without
regard to whether all of the foregoing matters will be deemed
confidential, material or important, the parties hereto stipulate that
as between them the same are important, material and confidential and
gravely affect the effective and successful conduct of the business of
the Company, and the Company's good will, and that any breach of the
terms of this Paragraph shall be a material breach of this agreement.
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<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging
in any business doing the same or a similar kind of business as the
Company" shall include becoming an employee of any present or
prospective customer of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person
engaged in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make
or permit the making of any public announcement or statement of any kind
that he was formerly employed by or connected with the Company, without
the written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any
additional compensation by reason of any service which he may perform as
the member of any managing committee of the Company, or in the event
that he shall at any time be elected an officer or director of the
Company.
12. EMPLOYEE'S ABILITY TO CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement
or any representations including the execution and delivery hereof,
except such representations are specifically set forth herein and each
of the parties hereto acknowledge that any payments or representations
that may have heretofore been made by either of them to the other are of
no effect and that neither of them has relied thereon in connection with
him or its dealings with the other.
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<PAGE> 4
14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration or
litigation between the parties hereto arising out of or affecting this
agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid,
and the parties further agree that the provisions of this Paragraph may
not be waived except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death
while in the employ of the Company during the term of this agreement the
Company agrees to pay to the surviving spouse of the Employee an amount
equal to the remaining term of this Agreement, payable over its original
period. The Company will undertake to insure its obligation under this
Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as
precluding the Company from granting to the Employee, or the Employee
from receiving, any stock option or as depriving him of the right to
participate in any general profit-sharing, pension, bonus or other
remuneration plan or in a group insurance or similar employee benefit
plan established by the Company in which he would otherwise be entitled
to participate under the terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan.
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue,
if unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the
requirements of the business of the Company. Any unused vacation after
two (2) years from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total
sum of Eight Hundred Dollars ($800.00) a month toward vehicle expense.
Such expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum of
Three Hundred Dollars ($300.00) per month for a cellular telephone. Such
expense shall include
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<PAGE> 5
the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary
or involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event that any of them, with the exception of
those contained in Paragraphs 1 and 4 hereof, shall be held to be
invalid by any competent Court, this Contract shall be interpreted as if
such invalid agreements or covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under
and pursuant to the laws of the State of Florida, and that in any
action, special proceeding or other proceeding that may be brought
arising out of, in connection with, or by reason of this agreement, the
laws of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be
instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on
the dates below indicated.
MEDIFORCE, INC.,
a Florida corporation,
/s/ BRADLEY T. RAY By: /s/ BRADLEY T. RAY
- ------------------------------- -------------------------------
Bradley T. Ray Bradley T. Ray, Director
Dated: 10-8-98 By: /s/ NORMAN J. BIRMINGHAM
------------------------- -------------------------------
Norman J. Birmingham, Director
EMPLOYEE
By: /s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-------------------------------
Helen K. Fekete, Secretary
Dated: Oct. 8, 1998
----------------------------
(SEAL)
COMPANY
-6-
<PAGE> 1
EXHIBIT 10.3
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between NORMAN J. BIRMINGHAM, hereinafter
referred to as "Employee", and MEDIFORCE, INC., a Florida corporation,
hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as
Treasurer, Chief Financial Officer and Executive Vice President, and
Employee hereby accepts such employment, on the terms and conditions
described in this Agreement. The Employee's responsibilities, shall be
as Treasurer, Executive Vice President in charge of all financial
matters and shall be the Chief Financial Officer of the Company and
shall have the responsibility for and in charge of all filings required
by regulatory agencies dealing with public corporations and taxation.
During such period, he diligently shall perform such executive and
administrative duties as shall from time to time be assigned to him by
the Board of Directors, and he agrees to give his full-time and
attention and his best efforts to the business and affairs of the
company. Full time is defined as forty (40) hours per week. During such
period, he will act as an officer, if elected to office, without
additional compensation. The above shall not be construed to prevent him
from acting as director or officer of other noncompeting corporations
when such activity does not occupy a substantial part of his business
time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely
be given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at
the time of the execution of this Contract, and the Employee understands
that this existing knowledge and skill will become mixed with and
enhanced by the knowledge and skill gained during the course of the
employment, and that the terms of this Contract, including the Trade
Secrets Provision (8), Covenant Not to Compete (9) and Trade Secrets
After Termination of Employment Provision (10) are fully binding on the
Employee notwithstanding the existence of previous extensive knowledge
or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience
and talents, perform all of the duties that may be required of and from
him pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall
in good faith require or as the interest, needs, or business opportunity
of the Company shall require.
3. TERMS OF EMPLOYMENT. The term of this employment shall be from October
1, 1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company
shall pay the Employee, and the Employee shall accept from the
Company, in full payment for Employee's services hereunder,
compensation at the rate of ONE HUNDRED TWENTY THOUSAND DOLLARS
($120,000.00) for and during the first year. It shall not be
necessary to execute a new Employment Contract when the rate of
compensation changes, or when the job title changes. The Company
shall reimburse Employee for all necessary expenses incurred by
Employee while traveling pursuant to the Company's directions.
Said annual salary shall be payable in installments of TEN
THOUSAND DOLLARS ($10,000.00) per month, beginning on the 1st
day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit,
pre-tax, of the Company each year.
C. Health and Disability Insurance. The Company shall provide at
the Company's expense, health care benefits and disability
insurance for Employee and his immediate family members,
consistent with all other insurance for officers and directors
provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate
as of the last day of the month in which the Company ceases operations
at such location with the same force and effect as if such last day of
the month were originally set as the termination date hereof.
6. INDEMNIFICATION. The Company will protect and indemnify the Employee
from any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available
to the Company all information concerning the business of the Company,
of which the Employee shall have any knowledge and shall make all
suggestions and recommendations that will be of mutual benefit to the
Company and the Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information
concerning any matters affecting or relating to the business of the
Company, including, without limiting the generality of the foregoing,
its manner of operation, its plans, processes, or other data, without
regard to whether all of the foregoing matters will be deemed
confidential, material or important, the parties hereto stipulate that
as between them the same are important, material and confidential and
gravely affect the effective and successful conduct of the business of
the Company, and the Company's good will, and that any breach of the
terms of this Paragraph shall be a material breach of this agreement.
-2-
<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract, regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging
in any business doing the same or a similar kind of business as the
Company" shall include becoming an employee of any present or
prospective customer of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person
engaged in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make
or permit the making of any public announcement or statement of any kind
that he was formerly employed by or connected with the Company, without
the written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any
additional compensation by reason of any service which he may perform as
the member of any managing committee of the Company, or in the event
that he shall at any time be elected an officer or director of the
Company.
12. EMPLOYEE'S ABILITY TO CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement
or any representations including the execution and delivery hereof,
except such representations are specifically set forth herein and each
of the parties hereto acknowledge that any payments or representations
that may have heretofore been made by either of them to the other are of
no effect and that neither of them has relied thereon in connection with
him or its dealings with the other.
-3-
<PAGE> 4
14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration or
litigation between the parties hereto arising out of or affecting this
agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid,
and the parties further agree that the provisions of this Paragraph may
not be waived except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death
while in the employ of the Company during the term of this agreement,
the Company agrees to pay to the surviving spouse of the Employee an
amount equal to the remaining term of this Agreement payable over its
original period. The Company will undertake to insure its obligation
under this Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as
precluding the Company from granting to the Employee, or the Employee
from receiving, any stock option or as depriving him of the right to
participate in any general profit-sharing, pension, bonus or other
remuneration plan or in a group insurance or similar employee benefit
plan established by the Company in which he would otherwise be entitled
to participate under the terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan.
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue,
if unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the
requirements of the business of the Company. Any unused vacation after
two (2) years from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total
sum of Eight Hundred Dollars ($800.00) a month toward vehicle expense.
Such expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum of
Three Hundred Dollars ($300.00) per month for a cellular telephone. Such
expense shall include
4-
<PAGE> 5
the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary
or involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event that any of them, with the exception of
those contained in Paragraphs 1 and 4 hereof, shall be held to be
invalid by any competent Court, this Contract shall be interpreted as if
such invalid agreements or covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under
and pursuant to the laws of the State of Florida, and that in any
action, special proceeding or other proceeding that may be brought
arising out of, in connection with, or by reason of this agreement, the
laws of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be
instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out
of this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on
the dates below indicated.
MEDIFORCE, INC.,
a Florida corporation,
/s/ NORMAN J. BIRMINGHAM By: /s/ BRADLEY T. RAY
- ------------------------------- -------------------------------
Norman J. Birmingham Bradley T. Ray, Director
Dated: 10/9/98 By: /s/ NORMAN J. BIRMINGHAM
------------------------- -------------------------------
Norman J. Birmingham, Director
EMPLOYEE
By: /s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-------------------------------
Helen K. Fekete, Secretary
Dated: Oct. 9, 1998
----------------------------
(SEAL)
COMPANY
-6-
<PAGE> 1
EXHIBIT 10.4
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between CHARLES C. CHILLINGWORTH,
hereinafter referred to as "Employee", and MEDIFORCE, INC., a Florida
corporation, hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as
President, and Employee hereby accepts such employment, on the terms and
conditions described in this Agreement. During such period, he
diligently shall perform such executive and administrative duties as
shall from time to time be assigned to him by the Board of Directors,
and he agrees to give his full-time and attention and his best efforts
to the business and affairs of the company. Full time is defined as
forty (40) hours per week. During such period, he will act as an
officer, if elected to office, without additional compensation. The
above shall not be construed to prevent him from acting as director or
officer of other noncompeting corporations when such activity does not
occupy a substantial part of his business time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely
be given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at
the time of the execution of this Contract, and the Employee understands
that this existing knowledge and skill will become mixed with and
enhanced by the knowledge and skill gained during the course of the
employment, and that the terms of this Contract, including the Trade
Secrets Provision (8), Covenant Not to Compete (9) and Trade Secrets
After Termination of Employment Provision (10) are fully binding on the
Employee notwithstanding the existence of previous extensive knowledge
or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience
and talents, perform all of the duties that may be required of and from
him pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall
in good faith require or as the interest, needs, or business opportunity
of the Company shall require.
3. TERMS OF EMPLOYMENT. The term of this employment shall be from October
1, 1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company
shall pay the Employee, and the Employee shall accept from the
Company, in full payment for Employee's services hereunder,
compensation at the rate of ONE HUNDRED TWENTY THOUSAND DOLLARS
($120,000.00) for and during the first year. It shall not be
necessary to execute a new Employment Contract when the rate of
compensation changes, or when the job title changes. The Company
shall reimburse Employee for all necessary expenses incurred by
Employee while traveling pursuant to the Company's directions.
Said annual salary shall be payable in installments of TEN
THOUSAND DOLLARS ($10,000.00) per month, beginning on the 1st
day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit,
pre-tax, of the Company each year.
C. Health and Disability Insurance. The Company shall provide at
the Company's expense, health care benefits and disability
insurance for Employee and his immediate family members,
consistent with all other insurance for officers and directors
provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate
as of the last day of the month in which the Company ceases operations
at such location with the same force and effect as if such last day of
the month were originally set as the termination date hereof.
6. INDEMNIFICATION. The Company will protect and indemnify the Employee
from any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available
to the Company all information concerning the business of the Company,
of which the Employee shall have any knowledge and shall make all
suggestions and recommendations that will be of mutual benefit to the
Company and the Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information
concerning any matters affecting or relating to the business of the
Company, including, without limiting the generality of the foregoing,
its manner of operation, its plans, processes, or other data, without
regard to whether all of the foregoing matters will be deemed
confidential, material or important, the parties hereto stipulate that
as between them the same are important material and confidential and
gravely affect the effective and successful conduct of the business of
the Company, and the Company's good will, and that any breach of the
terms of this Paragraph shall be a material breach of this agreement.
-2-
<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging
in any business doing the same or a similar kind of business as the
Company" shall include becoming an employee of any present or
prospective customer of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person
engaged in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make
or permit the making of any public announcement or statement of any kind
that he was formerly employed by or connected with the Company, without
the written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any
additional compensation by reason of any service which he may perform as
the member of any managing committee of the Company, or in the event
that he shall at any time be elected an officer or director of the
Company.
12. EMPLOYEE'S ABILITY TO CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement
or any representations including the execution and delivery hereof,
except such representations are specifically set forth herein and each
of the parties hereto acknowledge That any payments or representations
that may have heretofore been made by either of them to the other are of
no effect and that neither of them has relied thereon in connection with
him or its dealings with the other.
-3-
<PAGE> 4
14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration or
litigation between the parties hereto arising out of or affecting this
agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid,
and the parties further agree that the provisions of this Paragraph may
not be waived except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death
while in the employ of the Company during the term of this agreement,
the Company agrees to pay to the surviving spouse of the Employee an
amount equal to the remaining term of this Agreement, payable over its
original period. The Company will undertake to insure its obligation
under this Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as
precluding the Company from granting to the Employee, or the Employee
from receiving, any stock option or as depriving him of the right to
participate in any general profit-sharing, pension, bonus or other
remuneration plan or in a group insurance or similar employee benefit
plan established by the Company in which he would otherwise be entitled
to participate under the terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan.
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue,
if unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the
requirements of the business of the Company. Any unused vacation after
two (2) years from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total
sum of Eight Hundred Dollars ($800.00) a month toward vehicle expense.
Such expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum of
Three Hundred Dollars ($300.00) per month for a cellular telephone. Such
expense shall include
-4-
<PAGE> 5
the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary
or involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event that any of them, with the exception of
those contained in Paragraphs 1 and 4 hereof, shall be held to be
invalid by any competent Court, this Contract shall be interpreted as if
such invalid agreements or covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under
and pursuant to the laws of the State of Florida, and that in any
action, special proceeding or other proceeding that may be brought
arising out of, in connection with, or by reason of this agreement, the
laws of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be
instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on
the dates below indicated.
MEDIFORCE, INC.,
a Florida corporation,
/s/ CHARLES C. CHILLINGWORTH By: /s/ BRADLEY T. RAY
- ------------------------------- -------------------------------
Charles C. Chillingworth Bradley T. Ray, Director
Dated: 8 OCT 98 By: /s/ NORMAN J. BIRMINGHAM
------------------------- -------------------------------
Norman J. Birmingham, Director
EMPLOYEE
By: /s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-------------------------------
Helen K. Fekete, Secretary
Dated: Oct. 8, 1998
----------------------------
(SEAL)
COMPANY
-6-
<PAGE> 1
EXHIBIT 10.5
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between BRADLEY T. RAY, hereinafter
referred to as "Employee", and GENERAL ENVIRONMENTAL TECHNOLOGIES, INC., a
Florida corporation, hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as Chairman
of the Board, and Employee hereby accepts such employment, on the terms
and conditions described in this Agreement. The Employee's
responsibilities, other than acting as Chairman of the Board and guiding
the company, shall be for public acquisitions, mergers and other public
offerings and shall be the primary officer responsible for strategic
planning and advancement of the business. During such period, he
diligently shall perform such executive and administrative duties as
shall from time to time be assigned to him by the Board of Directors,
and he agrees to give his full-time and attention and his best efforts
to the business and affairs of the company. Full time is defined as
forty (40) hours per week. During such period, he will act as an
officer, if elected to office, without additional compensation. The
above shall not be construed to prevent him from acting as director or
officer of other noncompeting corporations when such activity does not
occupy a substantial part of his business time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely
be given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at
the time of the execution of this Contract, and the Employee understands
that this existing knowledge and skill will become mixed with and
enhanced by the knowledge and skill gained during the course of the
employment, and that the terms of this Contract, including the Trade
Secrets Provision (8), Covenant Not to Compete (9) and Trade Secrets
After Termination of Employment Provision (10) are fully binding on the
Employee notwithstanding the existence of previous extensive knowledge
or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience
and talents, perform all of the duties that may be required of and from
him pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall
in good faith require or as the interest, needs, or business opportunity
of the Company shall require.
3. TERMS OF EMPLOYMENT. The term of this employment shall be from January
1, 1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company
shall pay the Employee, and the Employee shall accept from the
Company, in full payment for Employee's services hereunder,
compensation at the rate of ONE HUNDRED TWENTY THOUSAND DOLLARS
($120,000.00) for and during the first year. It shall not be
necessary to execute a new Employment Contract when the rate of
compensation changes, or when the job title changes. The Company
shall reimburse Employee for all necessary expenses incurred by
Employee while traveling pursuant to the Company's directions.
Said annual salary shall be payable in installments of TEN
THOUSAND DOLLARS ($10,000.00) per month, beginning on the 1st
day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit,
pre-tax, of the Company each year.
C. Health and Disability Insurance. The Company shall provide at
the Company's expense, health care benefits and disability
insurance for Employee and his immediate family members,
consistent with all other insurance for officers and directors
provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate
as of the last day of the month in which the Company ceases operations
at such location with the same force and effect as if such last day of
the month were originally set as the termination date hereof.
6. INDEMNIFICATION. The Company will protect and indemnify the Employee
from any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available
to the Company all information concerning the business of the Company,
of which the Employee shall have any knowledge and shall make all
suggestions and recommendations that will be of mutual benefit to the
Company and the Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information
concerning any matters affecting or relating to the business of the
Company, including, without limiting the generality of the foregoing,
its manner of operation, its plans, processes, or other data, without
regard to whether all of the foregoing matters will be deemed
confidential, material or important, the parties hereto stipulate that
as between them the same are important, material and confidential and
gravely affect the effective and successful conduct of the business of
the Company, and the Company's good will, and that any breach of the
terms of this Paragraph shall be a material breach of this agreement.
-2-
<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract, regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging
in any business doing the same or a similar kind of business as the
Company" shall include becoming an employee of any present or
prospective customer of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person
engaged in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make
or permit the making of any public announcement or statement of any kind
that he was formerly employed by or connected with the Company, without
the written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any
additional compensation by reason of any service which he may perform as
the member of any managing committee of the Company, or in the event
that he shall at any time be elected an officer or director of the
Company.
12. EMPLOYEE'S ABILITY To CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement
or any representations including the execution and delivery hereof,
except such representations are specifically set forth herein and each
of the parties hereto acknowledge that any payments or representations
that may have heretofore been made by either of them to the other are of
no effect and that neither of them has relied thereon in connection with
him or its dealings with the other.
-3-
<PAGE> 4
14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be
offered or received in evidence of any proceeding, arbitration or
litigation between the parties hereto arising out of or affecting this
agreement, or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid,
and the parties further agree that the provisions of this Paragraph may
not be waived except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death
while in the employ of the Company during the term of this agreement,
the Company agrees to pay to the surviving spouse of the Employee an
amount equal to the remaining term of this Agreement, payable over its
original period. The Company will undertake to insure its obligation
under this Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as
precluding the Company from granting to the Employee, or the Employee
from receiving, any stock option or as depriving him of the right to
participate in any general profit-sharing, pension, bonus or other
remuneration plan or in a group insurance or similar employee benefit
plan established by the Company in which he would otherwise be entitled
to participate under the terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan,
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue,
if unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the
requirements of the business of the Company. Any unused vacation after
two (2) years from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total
sum of Eight Hundred Dollars ($800.00) a month toward vehicle expense.
Such expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum
of Three Hundred Dollars ($300.00) per month for a cellular telephone.
Such expense shall include
-4-
<PAGE> 5
the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary
or involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event that any of them, with the exception of
those contained in Paragraphs 1 and 4 hereof, shall be held to be
invalid by any competent Court, this Contract shall be interpreted as if
such invalid agreements or covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under
and pursuant to the laws of the State of Florida, and that in any
action, special proceeding or other proceeding that may be brought
arising out of, in connection with, or by reason of this agreement, the
laws of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be
instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on the
dates below indicated.
GENERAL ENVIRONMENTAL
TECHNOLOGIES, INC.
a Florida corporation,
/s/ BRADLEY T. RAY By: /s/ BRADLEY T. RAY
- ------------------------------- -------------------------------
Bradley T. Ray Bradley T. Ray, Director
Dated: 5-1-98 By: /s/ NORMAN J. BIRMINGHAM
------------------------- -------------------------------
Norman J. Birmingham, Director
EMPLOYEE
By: /s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-------------------------------
Helen K. Fekete, Secretary
Dated: May 1, 1998
----------------------------
(SEAL)
COMPANY
-6-
<PAGE> 1
EXHIBIT 10.6
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between NORMAN J. BIRMINGHAM, hereinafter
referred to as "Employee", and GENERAL ENVIRONMENTAL TECHNOLOGIES, INC., a
Florida corporation, hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as Treasurer,
Chief Financial Officer and Executive Vice President, and Employee hereby
accepts such employment, on the terms and conditions described in this
Agreement. The Employee's responsibilities, shall be as Treasurer,
Executive Vice President in charge of all financial matters and shall be
the Chief Financial Officer of the Company and shall have the
responsibility for and in charge of all filings required by regulatory
agencies dealing with public corporations and taxation. During such
period, he diligently shall perform such executive and administrative
duties as shall from time to time be assigned to him by the Board of
Directors, and he agrees to give his full-time and attention and his best
efforts to the business and affairs of the company. Full time is defined
as forty (40) hours per week. During such period, he will act as an
officer, if elected to office, without additional compensation. The above
shall not be construed to prevent him from acting as director or officer
of other noncompeting corporations when such activity does not occupy a
substantial part of his business time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely be
given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at the
time of the execution of this Contract, and the Employee understands that
this existing knowledge and skill will become mixed with and enhanced by
the knowledge and skill gained during the course of the employment, and
that the terms of this Contract, including the Trade Secrets Provision
(8), Covenant Not to Compete (9) and Trade Secrets After Termination of
Employment Provision (10) are fully binding on the Employee
notwithstanding the existence of previous extensive knowledge or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from him
pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall in
good faith require or as the interest, needs, or business opportunity of
the Company shall require.
3. TERMS OF EMPLOYMENT. The term of this employment shall be from January 1,
1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company shall
pay the Employee, and the Employee shall accept from the Company, in
full payment for Employee's services hereunder, compensation at the
rate of ONE HUNDRED TWENTY THOUSAND DOLLARS ($120,000.00) for and
during the first year. It shall not be necessary to execute a new
Employment Contract when the rate of compensation changes, or when
the job title changes. The Company shall reimburse Employee for all
necessary expenses incurred by Employee while traveling pursuant to
the Company's directions. Said annual salary shall be payable in
installments of TEN THOUSAND DOLLARS ($10,000.00) per month,
beginning on the 1st day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit, pre-tax,
of the Company each year.
c. Health and Disability Insurance. The Company shall provide at the
Company's expense, health care benefits and disability insurance for
Employee and his immediate family members, consistent with all other
insurance for officers and directors provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate
as of the last day of the month in which the Company ceases operations at
such location with the same force and effect as if such last day of the
month were originally set as the termination date hereof.
6. INDEMNIFICATION. The Company will protect and indemnify the Employee from
any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available to
the Company all information concerning the business of the Company, of
which the Employee shall have any knowledge and shall make all suggestions
and recommendations that will be of mutual benefit to the Company and the
Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information concerning
any matters affecting or relating to the business of the Company,
including, without limiting the generality of the foregoing, its manner of
operation, its plans, processes, or other data, without regard to whether
all of the foregoing matters will be deemed confidential, material or
important, the parties hereto stipulate that as between them the same are
important, material and confidential and gravely affect the effective and
successful conduct of the business of the Company, and the Company's good
will, and that any breach of the terms of this Paragraph shall be a
material breach of this agreement.
-2-
<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract, regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging in
any business doing the same or a similar kind of business as the Company"
shall include becoming an employee of any present or prospective customer
of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person engaged
in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make or
permit the making of any public announcement or statement of any kind that
he was formerly employed by or connected with the Company, without the
written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any additional
compensation by reason of any service which he may perform as the member
of any managing committee of the Company, or in the event that he shall at
any time be elected an officer or director of the Company.
12. EMPLOYEE'S ABILITY TO CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments, for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement or
any representations including the execution and delivery hereof, except
such representations are specifically set forth herein and each of the
parties hereto acknowledge that any payments or representations that may
have heretofore been made by either of them to the other are of no effect
and that neither of them has relied thereon in connection with him or its
dealings with the other.
-3-
<PAGE> 4
14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith,
and no evidence of any waiver or modification shall be offered or received
in evidence of any proceeding, arbitration or litigation between the
parties hereto arising out of or affecting this agreement, or the rights
or obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid, and the parties
further agree that the provisions of this Paragraph may not be waived
except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death while
in the employ of the Company during the term of this agreement, the
Company agrees to pay to the surviving spouse of the Employee an amount
equal to the remaining term of this Agreement, payable over its original
period. The Company will undertake to insure its obligation under this
Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as precluding
the Company from granting to the Employee, or the Employee from receiving,
any stock option or as depriving him of the right to participate in any
general profit-sharing, pension, bonus or other remuneration plan or in a
group insurance or similar employee benefit plan established by the
Company in which he would otherwise be entitled to participate under the
terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan.
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue, if
unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the requirements
of the business of the Company. Any unused vacation after two (2) years
from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total sum
of Eight Hundred Dollars ($800.00) a month toward vehicle expense. Such
expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum of
Three Hundred Dollars ($300.00) per month for a cellular telephone. Such
expense shall include
-4-
<PAGE> 5
the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary or
involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are severable,
and in the event that any of them, with the exception of those contained
in Paragraphs 1 and 4 hereof, shall be held to be invalid by any competent
Court, this Contract shall be interpreted as if such invalid agreements or
covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under and
pursuant to the laws of the State of Florida, and that in any action,
special proceeding or other proceeding that may be brought arising out of,
in connection with, or by reason of this agreement, the laws of the State
of Florida shall be applicable and shall govern to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
-5-
<PAGE> 6
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on
the dates below indicated.
GENERAL ENVIRONMENTAL
TECHNOLOGIES, INC.,
a Florida corporation,
/s/ NORMAN J. BIRMINGHAM
- -----------------------------------
Norman J. Birmingham By: BRADLEY T. RAY, DIRECTOR
-----------------------------------
Dated: 5/1/98 Bradley T. Ray, Director
-----------------------------
EMPLOYEE By: /s/ NORMAN J. BIRMINGHAM
-----------------------------------
Norman J. Birmingham, Director
By: /s/ CHARLES C. CHILLINGWORTH
-----------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-----------------------------------
Helen K. Fekete, Secretary
Dated: May 1, 1998
---------------------------------
(SEAL)
COMPANY
-6-
<PAGE> 1
EXHIBIT 10.7
EMPLOYMENT CONTRACT
THIS CONTRACT is made this day between CHARLES C. CHILLINGWORTH,
hereinafter referred to as "Employee", and GENERAL ENVIRONMENTAL TECHNOLOGIES,
INC., a Florida corporation, hereinafter referred to as "the Company".
In consideration of the covenants herein contained, and the monies to be
paid hereunder, the parties agree to the following terms and conditions:
1. EMPLOYMENT AND PURPOSE. The Company hereby employs Employee as President,
and Employee hereby accepts such employment, on the terms and conditions
described in this Agreement. During such period, he diligently shall
perform such executive and administrative duties as shall from time to
time be assigned to him by the Board of Directors, and he agrees to give
his full-time and attention and his best efforts to the business and
affairs of the company. Full time is defined as forty (40) hours per week.
During such period, he will act as an officer, if elected to office,
without additional compensation. The above shall not be construed to
prevent him from acting as director or officer of other noncompeting
corporations when such activity does not occupy a substantial part of his
business time.
Employee understands that this Contract is useful and necessary for the
protection of the Company and is a requirement for employment. It
specifies the duties and obligations of each of the parties, and it
provides reasonable safeguarding of the information which will be
entrusted to the Employee. Without a Contract providing for the
safeguarding of such information, the Company would not be able to
continue to conduct its business, because information could not safely be
given to the Employee. The Employee has extensive knowledge and
professional training concerning the work performed by the Company at the
time of the execution of this Contract, and the Employee understands that
this existing knowledge and skill will become mixed with and enhanced by
the knowledge and skill gained during the course of the employment, and
that the terms of this Contract, including the Trade Secrets Provision
(8), Covenant Not to Compete (9) and Trade Secrets After Termination of
Employment Provision (10) are fully binding on the Employee
notwithstanding the existence of previous extensive knowledge or training.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he will at all times,
faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from him
pursuant to the express and implicit terms hereof, to the reasonable
satisfaction of the Company. Such duties shall be rendered in Palm Beach
County, Florida, and at such other place or places as the Company shall in
good faith require or as the interest, needs, or business opportunity of
the Company shall require,
3. TERMS OF EMPLOYMENT. The term of this employment shall be from January 1,
1998, for a period of five (5) years.
<PAGE> 2
4. COMPENSATION OF EMPLOYEE.
a. Base Salary. During the term of this Agreement, the Company shall
pay the Employee, and the Employee shall accept from the Company, in
full payment for Employee's services hereunder, compensation at the
rate of ONE HUNDRED TWENTY THOUSAND DOLLARS ($120,000.00) for and
during the first year. It shall not be necessary to execute a new
Employment Contract when the rate of compensation changes, or when
the job title changes. The Company shall reimburse Employee for all
necessary expenses incurred by Employee while traveling pursuant to
the Company's directions. Said annual salary shall be payable in
installments of TEN THOUSAND DOLLARS ($10,000.00) per month,
beginning on the 1st day of October, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit, pre-tax,
of the Company each year.
c. Health and Disability Insurance. The Company shall provide at the
Company's expense, health care benefits and disability insurance for
Employee and his immediate family members, consistent with all other
insurance for officers and directors provided by the Company.
5. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate as
of the last day of the month in which the Company ceases operations at
such location with the same force and effect as if such last day of the
month were originally set as the termination date hereof.
6. INDEMNIFICATION. The Company will protect and indemnify the Employee from
any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
7. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Employee shall make available to
the Company all information concerning the business of the Company, of
which the Employee shall have any knowledge and shall make all suggestions
and recommendations that will be of mutual benefit to the Company and the
Employee.
8. TRADE SECRETS. Employee shall not at any time or in any manner, either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation, in any manner whatsoever, any information concerning
any matters affecting or relating to the business of the Company,
including, without limiting the generality of the foregoing, its manner of
operation, its plans, processes, or other data, without regard to whether
all of the foregoing matters will be deemed confidential, material or
important, the parties hereto stipulate that as between them the same are
important, material and confidential and gravely affect the effective and
successful conduct of the business of the Company, and the Company's good
will, and that any breach of the terms of this Paragraph shall be a
material breach of this agreement.
-2-
<PAGE> 3
Further, all of the prohibitive terms and conditions hereinabove recited
for trade secrets of the Company shall also apply in the same way to any
trade secrets of customers of the Company, or trade secrets of other
businesses which the Employee learns through employment under this
agreement.
9. COVENANT NOT TO COMPETE. The Employee shall not, during the term of this
Contract, nor for a period of two (2) years after termination of this
Contract, regardless of who initiated the termination, engage in any
business doing the same or similar kind of business. The term "engaging in
any business doing the same or a similar kind of business as the Company"
shall include becoming an employee of any present or prospective customer
of the Company.
This provision shall be construed to prohibit the Employee from working
for or through any other firm or business or for any other person engaged
in the same type of business or a similar type of business or in
competition with the Company in the same area for the same period.
This Section shall not be operative if the Company has discontinued
business under Paragraph 5.
10. TRADE SECRETS AFTER TERMINATION OF EMPLOYMENT. All of the terms of
Paragraphs 8 and 9 shall remain in full force and effect for a period of
three (3) years after the termination of Employee's employment for any
reason, and during such three (3) year period, Employee shall not make or
permit the making of any public announcement or statement of any kind that
he was formerly employed by or connected with the Company, without the
written permission of the Company. Resumes are an exemption to this
provision.
11. ADDITIONAL COMPENSATION. Employee shall not be entitled to any additional
compensation by reason of any service which he may perform as the member
of any managing committee of the Company, or in the event that he shall at
any time be elected an officer or director of the Company.
12. EMPLOYEE'S ABILITY TO CONTRACT FOR COMPANY. Notwithstanding anything
herein contained to the contrary, Employee shall have the right to make
any contracts or commitments for or on behalf of the Company with the
express agreement of the Board of Directors.
13. AGREEMENTS OUTSIDE OF CONTRACT. This Contract contains the complete
agreement concerning the employment arrangement between the parties and
shall, as of the effective date hereof, supersede all other agreements
between the parties. The parties stipulate that neither of them has made
any representation with respect to the subject matter of this agreement or
any representations including the execution and delivery hereof, except
such representations are specifically set forth herein and each of the
parties hereto acknowledge that any payments or representations that may
have heretofore been made by either of them to the other are of no effect
and that neither of them has relied thereon in connection with him or its
dealings with the other.
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14. MODIFICATION OF CONTRACT. No waiver or modification of this agreement or
of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith,
and no evidence of any waiver or modification shall be offered or received
in evidence of any proceeding, arbitration or litigation between the
parties hereto arising out of or affecting this agreement, or the rights
or obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid, and the parties
further agree that the provisions of this Paragraph may not be waived
except as herein set forth.
15. PAYMENT UPON EMPLOYEE'S DEATH. In the event of the Employee's death while
in the employ of the Company during the term of this agreement, the
Company agrees to pay to the surviving spouse of the Employee an amount
equal to the remaining term of this Agreement payable over its original
period. The Company will undertake to insure its obligation under this
Contract.
16. STOCK OPTIONS. Nothing in this agreement shall be construed as precluding
the Company from granting to the Employee, or the Employee from receiving,
any stock option or as depriving him of the right to participate in any
general profit-sharing, pension, bonus or other remuneration plan or in a
group insurance or similar employee benefit plan established by the
Company in which he would otherwise be entitled to participate under the
terms of such plan.
17. PROFIT SHARING PLAN. The Employee will be entitled to participate in the
Profit Sharing Plan now in force or as it is modified from time to time
according to the eligibility requirements and benefits as set forth in
that Plan.
18. SICK OR PERSONAL DAY POLICY. Each Employee shall be entitled to twelve
(12) days per year for sick or personal days. These days shall accrue, if
unused, toward vacation days or compensation.
19. VACATION. The Employee shall be entitled to four (4) weeks' vacation per
year for each and every year of this employment agreement. The dates of
the vacation shall be as agreed by the Company and the Employee with due
consideration given to the convenience of the Company and the requirements
of the business of the Company. Any unused vacation after two (2) years
from the effective date shall not be available.
20. BUSINESS AUTOMOBILE REIMBURSEMENT. The Company shall provide the total sum
of Eight Hundred Dollars ($800.00) a month toward vehicle expense. Such
expense shall include insurance, fuel, mileage and other operating
expenses. It shall be the responsibility of the Employee to see that the
vehicle is properly serviced, lubricated, inspected, cleaned and to care
for the vehicle in general. The Employee shall maintain insurance on the
automobile in an amount of not less than $100,000 per individual and
$300,000 per occurrence.
21. CELLULAR TELEPHONE ALLOWANCE. The Company shall provide the total sum of
Three Hundred Dollars ($300.00) per month for a cellular telephone. Such
expense shall include
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the monthly service charges and all roaming charges. It shall be the
responsibility of the Employee to see that the telephone is properly
maintained.
22. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary or
involuntary alienation, assignment or transfer.
23. SEVERABILITY. All agreements and covenants contained herein are severable,
and in the event that any of them, with the exception of those contained
in Paragraphs 1 and 4 hereof, shall be held to be invalid by any competent
Court, this Contract shall be interpreted as if such invalid agreements or
covenants were not contained herein.
24. CHOICE OF LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under and
pursuant to the laws of the State of Florida, and that in any action,
special proceeding or other proceeding that may be brought arising out of,
in connection with, or by reason of this agreement, the laws of the State
of Florida shall be applicable and shall govern to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
25. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
26. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties Have hereunto executed this Contract on
the dates below indicated.
GENERAL ENVIRONMENTAL
TECHNOLOGIES, INC.,
a Florida corporation,
/s/ CHARLES C. CHILLINGWORTH
- -----------------------------------
Charles C. Chillingworth By: BRADLEY T. RAY
-----------------------------------
Dated: 1 May 98 Bradley T. Ray, Director
-----------------------------
EMPLOYEE By: /s/ NORMAN J. BIRMINGHAM
-----------------------------------
Norman J. Birmingham, Director
By: /s/ CHARLES C. CHILLINGWORTH
-----------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-----------------------------------
Helen K. Fekete,
Dated: May 1, 1998
---------------------------------
(SEAL)
COMPANY
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EXHIBIT 10.8
BUSINESS CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made and executed January
1, 1998, by and between GENERAL ENVIRONMENTAL TECHNOLOGIES, INC., a Florida
corporation, hereinafter referred to as the "Company", and Philip Schwab
hereinafter referred to as the "Consultant". The parties agree as follows:
1. APPOINTMENT OF CONSULTANT. Company hereby engages Consultant and
Consultant agrees to render services to Company as a management
consultant, strategic planner and advisor.
2. DUTIES. During the term of this agreement, Consultant shall provide advice
to, undertake for and consult with the Company concerning management,
marketing, consulting, strategic planning, corporation organization and
structure, financial matters in connection with the operation of the
business of the Company, expansion of services, stockholder relations, and
shall review and advise 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 Company's assets, resources, products
and services;
b. Advise and recommend to Company additional services relating to the
present business and services provided by Company as well as new
products and services that may be provided by Company.
3. TERM. This term of this Agreement shall be from January 1, 1998, for a
period of five (5) years.
4. COMPENSATION.
a. Base Salary. In consideration of the services to be performed by
Company, Consultant shall be paid the sum of ONE HUNDRED TWENTY
THOUSAND AND NO/100 DOLLARS ($120,000.00), per year, payable in
monthly installments of TEN THOUSAND DOLLARS ($10,000.00) per month,
beginning on the 1st day of January, 1998.
b. Bonus in the amount of Two Percent (2%) of the net profit, pre-tax,
of the Company each year.
5. AUTOMOBILE EXPENSES. Consultant shall be entitled to reimbursement by
Company of Eight Hundred Dollars ($800.00) per month for automobile
expenses, including fuel, mileage, tolls, and insurance. The Employee
shall maintain insurance on the automobile in an amount of not less than
$100,000 per individual and $300,000 per occurrence.
6. HEALTH & DISABILITY INSURANCE. Consultant shall be entitled to receive at
the Company's expense, health care benefits and disability insurance for
Employee and his immediate family members.
<PAGE> 2
7. CONFIDENTIALITY. Consultant will not disclose to any other person, firm or
corporation, nor use for his own benefit, during or after the term of this
Consulting Agreement, any trade secrets or other information designated as
confidential by Company which is acquired by Consultant in the course of
him performing services hereunder,
8. GOVERNING LAW. It is the intention of the parties hereto that this
agreement and the performance hereunder and all suits and special
proceedings hereunder shall be construed in accordance with and under and
pursuant to the laws of the State of Florida, and that in any action,
special proceeding or other proceeding that may be brought arising out of,
in connection with, or by reason of this agreement, the laws of the State
of Florida shall be applicable and shall govern to the exclusion of the
law of any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
9. TERMINATION DUE TO DISCONTINUANCE OF BUSINESS. Anything herein contained
to the contrary notwithstanding, in the event that the Company shall
discontinue operating its business, then this agreement shall terminate as
of the last day of the month in which the Company ceases operations at
such location with the same force and effect as if such last day of the
month were originally set as the termination date hereof.
10. ARBITRATION. Any controversy or claim arising out of or related to this
Agreement shall be settled by arbitration in accordance with the rules and
under the auspices of the American Arbitration Association; and any
arbitration shall be conducted in the State of Florida.
11. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements, oral or written, and all other
communications between the parties relating to such subject matter. This
Agreement may not be amended or modified except by mutual written
agreement.
12. INDEMNIFICATION. The Company will protect and indemnify the Employee from
any and all lawsuits or claims arising out of the Employee's proper
performance of his duties for the Company.
13. BINDING AGREEMENT. This agreement shall enure to the benefit of and be
binding upon the Company, its successors and assigns, and the Employee,
his heirs and personal representatives but the Employee's rights under
this contract are personal to him and shall not be subject to voluntary or
involuntary alienation, assignment or transfer.
14. SEVERABILITY. All agreements and covenants contained herein are severable,
and in the event that any of them, with the exception of those contained
in Paragraphs 1 and 4 hereof, shall be held to be invalid by any competent
Court, this Contract shall be interpreted as if such invalid agreements or
covenants were not contained herein.
15. ATTORNEYS' FEES AND COSTS. In the event of any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all
expenses and costs incurred, including attorneys' fees.
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16. VENUE. The venue of any litigation arising out of this Contract shall be
only in Palm Beach County, Florida.
17. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which together shall constitute only one Agreement.
IN WITNESS WHEREOF, the parties have hereunto executed this Contract on
the dates below indicated.
GENERAL ENVIRONMENTAL
TECHNOLOGIES, INC.,
a Florida corporation,
/s/ PHILIP B. SCHWAB
- -----------------------------------
Philip B. Schwab By: BRADLEY T. RAY
-----------------------------------
Dated: 5/1/98 Bradley T. Ray, Director
-----------------------------
CONSULTANT By: /s/ NORMAN J. BIRMINGHAM
-----------------------------------
Norman J. Birmingham, Director
By: /s/ CHARLES C. CHILLINGWORTH
-----------------------------------
Charles C. Chillingworth, Director
ATTEST:
By: /s/ HELEN K. FEKETE
-----------------------------------
Helen K. Fekete,
Dated: 5/1/98
---------------------------------
(SEAL)
COMPANY
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<PAGE> 1
EXHIBIT 10.9
Contract #226311
Vendor #16625
FEDERATED CORPORATE SERVICES, INC.
Abatement, Demolition & Site Clearance
of 150 Fulton Ave. (Former A & S Department Store) and
related work.
LUMP SUM CONTRACT
ARTICLES OF AGREEMENT
This Contract is made as of 2/17/98, between Federated Corporate
Services, Inc. a Delaware Corporation, having a mailing address at 7 West
Seventh Street, Cincinnati, Ohio 45202 (hereinafter called "Federated") acting
herein as agent for an affiliated entity of Federated Department Stores, Inc.
(hereinafter called "Owner") that either owns or has leased from a non-Federated
affiliated entity the Department Store identified below, party of the first
part, and Iroquios Corp, a (New York) Corporation, having its principal office
at 37-55 39th Street, Long Island City, N.Y. (hereinafter called "Contractor"),
party of the second part.
(Department Store) Location of Work: project name: A&S Hempstead Demolition
city/state: Hempstead, New York
Contractor understands and agrees that Federated, in its capacity as
Agent for Owner pursuant to the appointment contained in a certain Agency
Agreement dated July 1, 1993, shall perform hereunder on behalf of the Owner,
and such performances shall have the same force and effect as performance by
Owner would have had.
WITNESSETH
In consideration of the mutual promises hereinafter set forth, the
parties hereto hereby agree as follows:
ARTICLE 1: PERFORMANCE
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Section (a) Contractor shall furnish all services, materials, labor,
tools, equipment, plant facilities and everything necessary to undertake and
complete in a thoroughly first-class and workmanlike manner all of the work
indicated in the Drawings, Specifications and General and Special Conditions,
under the direction and to the satisfaction of Architect and Owner.
Section (b) Contractor shall do all work in accordance with the Contract
Documents. In this Contract, the term "Work" shall mean (1) all the labor,
materials, services, machinery, equipment, tools, plant facilities and other
items required by the Drawings, Specifications and General and Supplementary
Conditions and to fully comply with the requirements of this Contract, (2) the
coordination of Contractor's Work with that of the other trades and the other
contractors and subcontractors, (3) all additional changes in the Work which
Owner may order pursuant to Article IV hereof, and (4) the doing and performance
of everything else required by the Contract.
ARTICLE II: COMMENCEMENT
Contractor shall commence the Work at the site on 3/2/98, and prosecute
the Work continuously, with reasonable diligence, to completion. Completion of
Work shall be accomplished by Contractor by 7/31/98. It is mutually agreed that
the Work shall also be completed in accordance with the interim completion dates
set forth in Schedule "B".
ARTICLE III: PAYMENT
Section (a) Owner shall pay to Contractor, and Contractor shall accept,
in full payment for the full and complete performance of the Contract and all
the Work called for in Article I hereof and in the Contract Documents described
in Schedule A hereof, the sum of One Million Eight Hundred and Eight Thousand
Dollars, no cents ($1,808,000.00) subject to
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additions, amendments, or deductions as provided in this Article III, Article IV
hereof and Article 16 of the General Conditions. This sum (hereafter referred to
as the "Contract Sum") is composed of amounts outlined in schedule "C" attached
hereto along with all applicable sales and use taxes which Contractor is
required to collect. In the event that Contractor is not registered to collect
taxes in the state where the Work is to be performed Owner may accrue and pay
such taxes. Payment shall be made on account of work performed, less a retainage
of Ten percent (10%), to Contractor thirty (30 ) days after receipt by Owner of
a properly completed Application For Payment in accordance with the terms of
this Contract and Owner's Invoicing Procedures, provided however, that such
amount shall not exceed the amount certified as then due and payable.
Section (b) The Contract Sum may be adjusted to include Owner's Optional
Hold Alternates described in Schedule "D" attached hereto and made a part hereof
ARTICLE IV: ADDITIONAL WORK
Section (a) Owner may order, from time to time, without invalidating
this Contract, order additional work or changes by altering, adding to or
deducting from the Work.
Section (b) in accordance with Article 16 of the General Conditions, if
Contractor shall perform additional work on a negotiated lump sum plus a
percentage fee basis or on a cost and percentage fee basis, he shall promptly
submit a proposal to Owner, and said proposal shall be supported by a detailed
estimate calculated in accordance with the following:
(1) Work to be performed by Contractor's own forces:
(a) Estimated direct productive labor costs, including applicable
insurance and taxes, but exclusive of the premium portion of any
overtime (see (d) below); plus
(b) Estimated net cost of direct materials and equipment rentals
including applicable taxes and insurance; plus
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(c) Field overhead (to cover all job costs for supervision;
employees above the level of foreman, timekeeping, checking,
engineering, expediting and other unallocable field costs such
as insurance, utility services, job clean-up, tools, equipment
and the like), home overhead and profit at Fifteen percent (15%)
of (a) plus (b); plus
(d) Premium portion of any estimated overtime, including applicable
insurance and taxes.
(2) Work to be performed by Subcontractors:
(a) Estimated direct productive labor costs, including applicable
insurance and taxes, but exclusive of premium portion of any
overtime (Section (d) below); plus
(b) Net cost of direct materials and equipment rentals including
applicable taxes and insurance; plus
(c) Field Overhead (to cover all costs for supervision; employees
above the level of foreman, timekeeping, checking, engineering,
expediting and other unallocable field costs such as insurance,
utility service, job clean-up, tools, equipment and the like),
home overhead and profit at Fifteen percent (15%) of (a) plus
(b); plus
(d) The premium portion of any overtime, including applicable
insurance and taxes.
(3) General Contractor's markup on subcontractor work:
(a) Additional work performed by subcontractors will be charged at
the subcontractor's estimated price for the work plus Five
percent (5%) thereof exclusive of the premium portion of any
overtime. This represents full compensation for the
undersigned's supervision and general job expense, overhead and
profit.
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(4) When overtime work is performed, only the actual cost of the
premium time plus applicable insurance and taxes will be paid by
Owner. Overhead and profit shall not to be added on premium time
work.
Section (c) If such proposal does not specify the amount or the rate by
which the Contract Sum or Adjusted Contracted Sum shall be adjusted, then there
shall be no adjustment in the Contract Sum or Adjusted Contract Sum. If such
proposal does not state that the time for the completion of the Work will be
extended or shortened, then there shall be no such extension or shortening of
time. If such proposal does state that the time will be extended or shortened,
then there shall be no other extension or shortening of time, unless Contractor,
within the time for making a claim for adjustment in the Contract Sum or
Adjusted Contract Sum, shall make a claim to Owner for a revised extension or
shortening of said time.
Upon delivery of any such claim by Contractor to Owner, Owner shall have
the right to cancel the additional order for changes giving rise to such claim
by Contractor, but if Owner does not cancel same, then Owner and Contractor
shall endeavor to agree on the amount by which the Contract Sum or Adjusted
Contract Sum should be adjusted or on the date when all of said work shall be
completed. If agreement on any of said points is reached, it shall be reduced to
writing and shall be enforceable only when signed by an authorized
representative of the party to be charged. Even if Owner and Contractor cannot
reach an agreement on all of said points, Owner may, nevertheless, direct
Contractor to proceed with the work as changed. In such case, any disputed point
shall be determined by the Architect. The Owner, however, shall have the option
to designate the basis under paragraph (e) of Article 16 of the General
Conditions by which the Architect may make its determinations.
Section (d) Any adjustment to the Contract Sum or Adjusted Contract Sum
that may be agreed upon between Owner and Contractor, shall be deemed to include
therein the profit and overhead of Contractor.
Section (e) Upon formal request by Owner or Architect to Contractor,
Contractor shall, within seven (7) days from the date of such request, furnish
estimates of the cost of additional work involved.
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ARTICLE V: BONDING
Contractor shall execute and deliver to Owner a performance bond for one
hundred percent (100%) of the Contract Sum. Contractor shall furnish a bond
satisfactory to Owner from a surety company approved or designated by Owner for
the performance of the Contract, which bond shall comply with the laws of the
state in which the work is done.
ARTICLE VI: TERMINATION
Section (a) If Owner elects to terminate the Work, it may do so upon ten
(10) days' written notice to Contractor, or, if the Work should be stopped by
Owner for a period of three (3) months through no act or fault of Contractor or
of anyone employed by it, then Contractor may, upon ten (10) days written
notice to Owner (following such three (3) month period), stop work and terminate
this Contract and remove from the site all construction equipment and other
items belonging to it. In the event of termination as provided above, the Owner
shall have no liability to the Contractor other than to pay the Contractor, to
the extent previous payments have not already been made, all reasonable and
proper costs of the Work incurred by the Contractor through the date of
termination, including fair and reasonable compensation for overhead
attributable to such work as the Contractor has performed.
Section (b) Owner may, after giving Contractor ten (10) days' written
notice, terminate the employment of Contractor and take possession of the
jobsite and Work and of all materials, tools, and appliances thereon and finish
the Work by whatever method it may deem expedient upon the occurrence of any of
the following events:
(i) a petition is filed either by or against Contractor in any court
or pursuant to any statute, whether in bankruptcy, insolvency,
or similar proceedings;
(ii) Contractor makes an assignment for the benefit of its creditors,
or a receiver of any property of Contractor is appointed in any
suit or proceedings;
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(iii) Contractor refuses or fails to supply enough properly skilled
workmen or proper materials, or Contractor refuses or fails to
carry out the Work or any part thereof in accordance with the
Contract Documents, within the applicable time specified herein
(or within any extension thereof approved by the Owner) or falls
to make progress as to, in the sole judgment of the Owner,
endangers performance of this Contract in accordance with its
terms;
(iv) Contractor fails to make prompt payment to subcontractors for
materials or labor; or
(v) Contractor disregards laws and ordinances or is otherwise in
violation of any provision of this Contract.
In the event that Contractor shall correct the situation which has
caused the notice of termination to be given by Owner as provided above within
the ten (10) day notice period, the termination shall be deemed waived, and this
Contract shall continue in effect in the same manner as though such cause of
termination had not existed; provided, however, that Owner reserves its right to
damages for breach of any provision of this Contract. In the event of the
termination of the employment of Contractor as provided in this Section (b),
Contractor shall prepare and furnish to Owner a statement of costs to that date,
similar to the monthly statements provided in Paragraph (m) of Article 34 of the
General Conditions, plus all obligations incurred in the interest of the Work
but not yet due. Construction equipment on the site belonging to Contractor may
be used by Owner or its agent until the Work is completed. Should the expense so
incurred by Owner in completing the Work exceed the difference between the
Contract Sum or Adjusted Contract Sum and the total amount paid to Contractor,
Contractor shall pay such excess to Owner upon demand. Should the said expense
be less than the said difference, Owner shall pay to Contractor an amount
equivalent to the portion of the work completed by Contractor prior to the
termination of its employment. The net amount of such statement then unpaid
shall become due and payable to Contractor.
Section (c) Owner may, with or without cause, order the Contractor in
writing to suspend, delay or interrupt the Work in whole or in part for such
period of time as Owner may determine.
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Section (d) An adjustment shall be made for increases in the cost of
performance of the Contract, including profit on the increased cost of
performances, caused by suspension, delay or interruption caused by the Owner.
No adjustment shall be made to the extent that (1) performance is, was or would
have been so suspended, delayed or interrupted by another cause for which
Contractor is responsible; or (2) an equitable adjustment is made or denied
under another provision of this Contract. Adjustments made in the cost of
performance may have a mutually agreed fixed or percentage fee.
ARTICLE VII: HOLD ALTERNATES
Owner shall have the right to order the performance of any or all of the
work specified in Schedule "D" attached hereto. If Owner shall order such work,
then Contractor shall furnish and perform such work in the same manner as the
original work to be furnished by Contractor under the Contract Documents and the
provisions in said Schedule "D" shall apply thereto. However, such work shall be
done only upon subsequent authorization evidenced by the issuance of change
orders pursuant to Article IV hereof.
ARTICLE VIII: CONTRACT DOCUMENTS
The Drawings, Specifications and General and Special Conditions,
together with the Articles of Agreement and other documents listed on Schedule
"A" attached hereto shall constitute the Contract Documents and together
constitute the Contract. The Contract Documents are intended to be
complementary, and what is required in any one of them shall be as binding as if
called for by all. To the extent possible, all parts of the Contract Documents
shall be construed so as to be consistent with each other. However, in the event
of a conflict or inconsistency between the various Contract Documents, the order
of precedence for interpretation of the Contract Documents shall be as follows:
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(1) Articles of Agreement
(2) Letter of Intent
(3) General Conditions
(4) Supplementary Conditions
(5) Latest Addenda
(6) Specifications
(7) Contract Drawings
ARTICLE IX: ASSIGNMENT
Section (a) Contractor may not assign the Contract or sublet it as a
whole without the written consent of Owner, nor shall Contractor assign any
monies due or to become due hereunder without the previous written consent of
Owner.
Section (b) Owner reserves the right to assign the Contract, and in the
event of such assignment, the assignor's obligations under the contract will be
assumed by the assignee who will then be known as Owner under the Contract. Upon
such assignment, the assignor shall be entirely released from all covenants and
obligations under the Contract.
ARTICLE X: AMENDMENTS
No waiver, modification, or amendment of any term, condition, or
provision of this Contract shall be valid or of any force or effect unless made
in writing, signed by the parties hereto and specifying with particularity the
nature and extent of such waiver, modification or amendment. The signing of such
writing or writings in any instance or instances shall not be construed as a
general waiver, abandonment, modification or amendment of any of the terms,
conditions or provisions of the Contract, but the same shall be strictly limited
and restricted to the specific waiver, amendment or modification agreed to by
the parties.
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ARTICLE XI: CHOICE OF LAW
The laws of the state where the Work is being performed shall govern as
to the interpretation, validity and effect of this Contract.
ARTICLE XII: NOTICES
Any notice, demand, request, designation, direction, approval,
authorization, consent, statement, permission or agreement provided for herein
shall be given in writing to the party to whom it is to be given or made, at its
place of business hereinabove stated or such other place as may hereafter in
writing be designated by such party; provided, however, that if it is to be
given to Owner, it shall be given only to a person authorized by Owner, and
provided, however, that any notice thereof will be conclusively deemed to have
been delivered by Owner to Contractor if delivered to Contractor's field
superintendent or authorized agent of Contractor stationed at the site.
ARTICLE XIII: DEFINITIONS
Whenever occurring in this Contract or any of the Contract Documents,
unless the context clearly requires a different meaning, the following terms are
defined terms and are to fit their grammatical use:
"Adjusted Contract Sum" shall mean the Contract Sum as adjusted from
time to time pursuant to Article IV hereof and Section 16 of the General
Conditions. As of any particular time during the performance of this Contract,
the Adjusted Contract Sum as used in this Contract shall mean and refer to such
Adjusted Contract Sum as shall then exist.
"Contractor" shall mean the party of the second part of this Contract.
"Contract Sum" shall mean the dollar amount specified as the Contract
Sum in Article III hereof.
"Cost," as used in Article IV (b) shall mean:
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(a) The amount disbursed by the particular subcontractor or
Contractor for materials and their transportation required for
the proper execution of the particular work, and for large tools
on either a daily or monthly rental basis as elected by Owner.
The rental rate shall be in accordance with the rates
established by A.E.D. or other accepted standard in the
locality. Owner shall be entitled to all trade discounts and to
such cash discounts with respect to which Owner shall have
furnished Contractor with such monies, so that Contractor may
pay with such monies and receive such cash discounts.
(b) Wages paid for labor directly engaged in the work at the
jobsite, including such items in connection with such labor as
welfare and vacation fund, Social Security, unemployment and
disability insurance taxes and other fringe benefits paid in
connection with wages that are paid pursuant to this Contract
and documented to the satisfaction of Owner. Owner shall be
entitled to any credits received by the subcontractor or
Contractor.
(c) At the option of Owner, in lieu of the amount otherwise payable
by Contractor to a subcontractor pursuant to the foregoing
subdivisions, an amount determined with approval of Owner by
estimate, negotiation and acceptance as the lump sum that shall
be paid by Contractor to the subcontractor.
"Drawings" shall mean collectively all of the Drawings listed in
Schedule "A" annexed hereto and such other drawings and revisions, if any,
hereafter prepared by the Architect supplemental thereto, including those
prepared by the Architect in connection with any additional work or changes in
the work which may be ordered pursuant to Article IV hereof.
"General Conditions" shall mean the General Conditions, including any
Supplementary Conditions, which may be modified in the Specifications or
amendments to the Contract, if any, prepared by the Architect.
"Owner" shall mean the party of the first part to this Contract.
"Specifications" or "Project Manual" shall mean collectively all of the
specifications and addenda listed in said Schedule "A" annexed hereto, including
such other specifications.
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amendatory or supplementary specifications, bulletins, addenda and supplements,
if any, that may be issued by Architect supplemental thereto and those prepared
by Architect in connection with any additional work or changes in the work which
may be ordered pursuant to Article IV hereof
"Subcontractor" shall mean only those having a direct contract with
Contractor, including those contracts made by Owner and assigned to Contractor,
and including one who furnishes material worked to a special design according to
the Drawings and Specifications, but not including one who merely furnishes
material not so worked.
"Architect" shall mean the owner and his engineering consultants. Owner
shall have the right to substitute any other Architect or Engineer to perform
any of said services.
ARTICLE XIV: AUDIT RIGHTS
The Contractor shall keep full and detailed accounts as may be necessary
for proper financial management under this Contract in accordance with a system
acceptable to Owner. All accounts contained in books, records, vouchers,
receipts, correspondence and memos pertaining to construction work shall be
preserved by the Contractor for a period of three years after final payment by
Owner. Complete access to these documents and the right to audit and make copies
thereof, during normal working hours and upon reasonable notice to Contractor is
hereby guaranteed to the Owner and its authorized representatives by the
Contractor both during the time when the job is under way and for the period of
time set forth above.
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IN WITNESS WHEREOF, Contractor and Owner have caused this Agreement to
be signed, sealed and delivered by their fully authorized officers as of the
date first above written.
OWNER: OWNER:
FEDERATED CORPORATE SERVICES, INC.
- ---------------------------------- ---------------------------------
By: [SIG] BY: /s/ JAMES B. SNIDOW 3/4/98
------------------------------- ------------------------------
James B. Snidow
Operating Vice President
Title: Senior Vice President
----------------------------
Date 3/10/98 [SIG] 3/6
----------------------------- ------------------------------
CONTRACTOR
IROQUOIS CORPORATION
- ----------------------------------
By: /s/ CHARLES WALKER [SIG] 3/3/98
------------------------------- ------------------------------
Title: Charles Walker, President
----------------------------
Date: 2-27-98
-----------------------------
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SCHEDULE A(Page 1 of 2)
CONTRACT DOCUMENTS
1. All work is to be performed in accordance with the following:
2. Articles Of Agreement (along with Schedules attached thereto) General
Conditions (Schedule E)
3. Project Manuel for Emergency Demolition-Asbestos Removal, Demolition and
Site clearance 150 Fulton Ave. (Former A&S Department Store) Prepared by
Inc. Village of Hempstead Community Development agency.
4. Asbestos removal specification for former Abraham and Strauss dated
February 11, 1998, prepared by Clayton Environmental Consultants, Inc.
5. Proposals dated December 17, 1997 and February 18, 1998 from Iroquois
Corp.
CLARIFICATION:
1. The asbestos removal specification prepared by Clayton Environmental
shall supercede the one in the project manuel prepared by the
incorporated village of Hempstead community developing agency.
2. All work including the asbestos removal work shall be performed union.
3. Contractors shall provide temporary electric, heat and hot water
required for its work.
4. Contractor shall remove foundation and footings of parking structure and
back fill.
5. Satisfactory soil for backfill and fill materials shall be free of clay,
silt, rock or grave larger than 2" in any dimension, debris, waste,
frozen materials, vegetable and other deleterious matter. Material shall
be 10% to 60% by weight passing on a No. 10 sieve and not more than 10%
passing a No. 200 sieve. Final acceptance of material of material shall
rest with the owner and its engineer. The moisture density curve for the
fill used shall be obtained by the Contractor from the approval Testing
Laboratory as a guide for controlling moisture and achieving the
required compaction.
6. All backfill and fill materials shall be comparted to 95 percent
modified proctor.
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SCHEDULE A(Page 2 of 2)
(Continued)
7. Contractor shall remove floor slab foundation and footing of small auto
service building and backfill.
8. Contractor shall remove truck tunnel, electric vault and oil tank and
backfill.
9. Contractor shall disconnect and close all utilities as required by the
utility companies, Contractor shall pay all fee's associated with this
work
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SCHEDULE B
INTERIM COMPLETION DATES
1. Start cleaning interior of building March 2,1998
2. Start abatement work March 30,1998
3. Complete abatement work May 1, 1998
4. Demolish old A&S store May 4,1998
5. Complete Work July 31, 1998
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SCHEDULE C
DETERMINATION OF CONTRACT SUM
<TABLE>
<S> <C>
1. Original lump sum proposal for work indicated in Project Manual for emergency $1,758,000.00
demolition prepared by the Inc. Village of Hempstead Community Development
Agency.
2. Additional cost for asbestos removal due to increased scope
and requirements indicated in asbestos removal specifications $ 30,000.00
prepared by Clayton Environmental Consultants, Inc.
3. Abate and demolish small auto service building. $ 20,000.00
-------------
4. TOTAL LUMP SUM CONTRACT AMOUNT. $1,808,000.00
</TABLE>
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SCHEDULE D
OPTIONAL HOLD ALTERNATES
It is mutually agreed the Hold Alternates listed below shall be available to the
Owner for the time listed below without change in cost to Owner. The Contractor
shall provide the Owner and Architect with written notice ten (10) days prior to
the expiration date of the Hold Alternates. Any Hold Alternate price shall
remain in force until ten (10) days after such notification is received, even
though this date may be later than the Hold Alternate date listed on this
schedule.
NONE
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SCHEDULE E
FEDERATED CORPORATE SERVICES, INC.
GENERAL CONDITIONS
CONTENTS
1. Purpose
2. Articles of Agreement
3. Definitions
4. Drawings and Specifications (DELETED)
5. Shop Drawings (DELETED)
6. Samples
7. Examination of Site and Contract Documents
8. Laying Out Work
9. Permits, Licenses and Certificates
10. Materials and Workmanship
11. Equipment
12. Supervision and Inspection
13. Contractor's Insurance; Indemnity
14. Owner's Insurance (DELETED)
15. Protection of Work, Property and Persons
16. Change in the Work
17. Time of Performance
18. Job Organization, Progress Schedule and Chart
19. Progress and Order of the Work
20. Progress Photographers (DELETED)
21. Separate Contracts (DELETED)
22. Architect's Status
23. Architect's Decision
24. Laws, Ordinances and Regulations
25. Labor Conditions
26. Working Hours
27. Work Sequence
28. Owner's Right to Occupy (DELETED)
29. Use of Premises
30. Owner's Right to do Work
31. Subcontracts
32. Relations of Contractor and Subcontractor
33. Cash Allowance
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34. Payments
35. Correction of Work Before Final Payment
36. Preliminary and Final Acceptance
37. Correction of Work after Final Payment
38. Warranty
39. Damages
40. Litigation
41. Taxes
42. Title to Work and Materials (DELETED)
43. Signs and Advertisements
44. Manufacturer's Directions (DELETED)
45. Cutting and Patching (DELETED)
46. Owner's Contractors (DELETED)
47. Cleaning and Removal of Materials
48. Mechanic's Liens
49. First Aid
50. Watchman (DELETED)
51. Site Regulations
52. Records (DELETED)
53. As Built Drawings (DELETED)
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1. PURPOSE
a. The purpose of these General Conditions shall be to define the relationship
of the Architect, the Owner, and the Contractor, each to the other; to lay down
certain rules which shall be common to them to the end that the Work may be
carried on and completed, in an expeditious, orderly and workmanlike manner; and
these General Conditions, together with the Specifications shall establish the
standard of materials and workmanship to be used, so that the Project shall be a
complete and finished piece of work, and that all portions of the same may be
executed in the best manner known to each representative trade.
b. In case of conflict between these General Conditions and the Specifications,
these General Conditions shall take precedence. A General Condition clause
referring to the work of the Contractor shall, however, be considered as waived
or modified if so noted in the Specifications.
c. All Specifications issued for the work of the several trades employed in the
construction of the Project shall be understood as being prefaced by these
General Conditions.
2. ARTICLES OF AGREEMENT
These General Conditions shall be considered as a part of the Articles of
Agreement executed by the Contractor covering work in or for the Project. Where
there is any conflict, the Articles of Agreement shall take precedence over the
Specifications and these General Conditions as more fully set forth in Article
VIII of the Articles of Agreement.
3. DEFINITIONS
a. The "Contract Documents" collectively referred to as the "Contract" consist
of these General Conditions, the Letter of Intent, the Drawings and
Specifications, the Articles of Agreement (with all schedules attached thereto)
and the other documents referred to in Article VIII of the Articles of Agreement
including all modifications thereof properly incorporated therein by reference
or otherwise.
b. Wherever the term "Contractor" is used in the Contract, it shall mean unless
otherwise noted, the individual firm, or corporation other than the Owner, which
executed the Contract and is to perform the work required thereunder, acting as
General Contractor for the Work, and so identified in the Articles of Agreement.
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(1) As used in the Specifications, the term "Contractor" shall be
construed to mean the General Contractor as well as the
Subcontractor to whom the division of work has been sublet, as
their respective interests may appear.
c. Wherever the terms "Furnish and Install", or "Provide" are used in the
Contract they shall mean all labor, materials, equipment, appliances and
services provided or to be provided by the Contractor to fulfill the
Contractor's obligations and necessary for the completion of the Work as defined
in Article I of the Articles of Agreement.
d. Wherever the terms "or equal", "necessary", "suitable", "as directed", "when
directed", "satisfactory", "good and sufficient", or other general qualifying
terms are used in the Contract they shall be construed as though followed by the
words "in the opinion of the Architect or Owner".
6. SAMPLES
a. Samples, as called for in the various sections of the Specifications, or as
requested by the Architect, shall be submitted in duplicate for his approval,
allowing a reasonable time for their consideration. Samples shall be properly
labeled with the project name and location; manufacturer's name; contractor's
name; type, finish and composition of material; date of submission.
b. If requested, samples as required above shall also be furnished concurrently
to Owner for approval, in duplicate.
7. EXAMINATION OF SITE AND CONTRACT DOCUMENTS
a. The Contractor shall satisfy himself as to the nature and location of the
Work; the character, quality and quantity of surface and subsurface materials to
be encountered; the general and local conditions, particularly those bearing
upon availability of labor; the character of equipment and facilities needed
preliminary to and during the prosecution of the Work; and all other matters
which can in any way affect the Work or the cost thereof under the Contract.
b. The Contractor represents that it has had an opportunity to examine and has
carefully examined the Contract Documents including the Drawings,
Specifications, General Conditions and the Articles of Agreement, and has fully
acquainted itself with the soil conditions described in the project soils
reports, as well as obstructions, grades, excavation, fill and other conditions
at the site and its surroundings; and that it has made all investigations
essential to a full understanding of the difficulties which may be encountered
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in performing the Work. Contractor shall, regardless of any such conditions
relevant to the Work, the site or its surroundings, complete the Work for the
compensation stated in Section (a), Article III of the Articles of Agreement
(except in the case of changes in the Work which will be paid for pursuant to
the provisions of Article IV of the Articles of Agreement and Article 16 hereof)
and assume full and complete responsibility for completion of the Work under any
such conditions which may exist at the site or its surroundings and all risks in
connection therewith. In addition thereto Contractor represents that it is fully
qualified and able to do the Work in accordance with the terms of the Contract
within the time specified.
8. LAYING OUT WORK
a. The Contractor shall lay out his work correctly and shall be responsible for
any damage caused to Owner or other contractors due to incorrect layout of his
work. The Contractor shall engage and hire a licensed surveyor to locate the
structures, to assure their correct and vertical position on the property, to
establish correct levels and bench marks, to make required surveys for verifying
boundary lines and easements, to locate column centers, piers, walls, pits and
trenches and otherwise to fully and completely layout all work required by the
Contract.
b. The Drawings are intended to show correctly existing and contiguous work, but
neither the Architect nor the Owner guarantees that such work will be executed
in exact accordance with the Drawings. The Contractor shall, therefore, examine
and verify any work in place or furnished by others upon which his work is in
any way dependent for its perfect efficiency according to the intent of the
Contract Documents, and shall at once report to the Architect and Owner any
error or discrepancy which may appear in the same, so that any such matter may
be explained or adjusted before the work in question is undertaken. In the event
of the failure of the Contractor to give this notice before proceeding with his
work, or if the Contractor shall connect his work to such erroneous work of
other contractors, he shall assume all charges and make any changes to his work
made necessary by his failure to observe this condition.
9. PERMITS, LICENSES AND CERTIFICATES
a. All necessary permits and licenses shall be obtained for the Owner by the
Contractor and their costs shall be included in the Contract Sum. The Contractor
shall give all necessary notices, pay all fees required by law, and comply with
all governmental laws, ordinances, rules and regulations relative to the Work
and to the preservation of the public health and safety. The Contractor shall
secure and pay for, all certificates of inspection and of occupancy that may be
required and shall furnish them to the Architect for delivery to the Owner.
b. If the Contractor does any wiring or provides any hoists, pumps, fans, motors
or fixtures or performs any other work in which electricity is used, then he
shall furnish
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temporary as well as permanent certificates from the Board of Underwriters and
other bodies having jurisdiction and such certificates shall be filed with the
Owner.
c. Prior to commencement of the Work, the Contractor shall provide evidence
satisfactory to the Owner that the Contractor meets all requirements and is
licensed to do business in the state and location where the Work is located.
10. MATERIALS AND WORKMANSHIP
a. The contractor shall maintain order and discipline among the workmen on
the jobsite at all times and employ only such labor throughout as will
not interfere with the speedy and uninterrupted completion of the work.
b. All materials and equipment shall be delivered at such times and in such
manner as will insure the speedy and uninterrupted progress and completion of
the work. The building shall not be used for the storage of materials except
upon written order of the Owner, and if any materials so stored obstruct the
progress of any portion of the various parts of the Work, they shall be moved
from place to place or from the premises as the Owner may direct, at the expense
of the Contractor.
c. Owner shall, at Owner's cost, make such tests and reports of materials
or work furnished except where stated to the contrary in the Architect's
or Engineer's drawings and specifications.
11. EQUIPMENT
a. The Contractor shall furnish all labor, materials scaffolding, ladders,
planking, centering, false work and forms, tools, machinery, implements,
transportation, cartage and other items requisite and necessary for the proper
and entire finishing of his work and its connection to the work of other
contractors, notwithstanding that each and every item necessary may not be
particularly shown or described, to the end that the Work as a whole may be
completed in a timely manner.
b. DELETED
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c. All hoistways and scaffolds shall be constructed and maintained in strict
accordance with the laws, ordinances and regulations having jurisdiction
relating thereto.
d. Prior approval of location of hoistways and scaffolds shall be obtained from
the Owner and Architect.
e. Under no circumstances shall the Owner's equipment, tools, or appliances be
used by the Contractor or any of his subcontractors.
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12. SUPERVISION AND INSPECTIONS
a. The Contractor shall supervise and direct the Work at the site. The
Contractor shall be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work. He shall place a competent superintendent in charge of the
Work at the site who shall be acceptable to the Owner and who shall remain until
final completion and acceptance of the Work unless removed by reason of
sickness, discharged for cause, or replaced by the Contractor, with the written
consent of the Owner. The Contractor shall be responsible for all acts and
omissions of his superintendent in connection with his Work. The Contractor
shall also employ an assistant superintendent, depending upon job requirements,
so that all operations can be satisfactorily supervised.
b. Wherever reasonably so required by the Architect or the Owner, the Contractor
shall render a detailed report of the condition of the Work in the shop or at
the site.
c. If the Specifications, instructions of the Architect or the Owner, laws,
ordinances or any public authority require any work to be specially tested or
approved, the Contractor shall give the Architect and the Owner timely notice of
its readiness for inspection, and, if the inspection is by an authority other
than the Architect, the Contractor shall inform the Owner and the Architect of
the date fixed for such inspections. Inspections by the Architect shall be made
promptly. If any such work should be covered up without approval or consent of
the Architect or the Owner, it must, if required by the Architect or the Owner,
be uncovered for examination, at the Contractor's expense.
d. Re-examination of questioned work may be ordered by the Architect or the
Owner. If such work is found in accordance with the Contract, the Owner shall
pay the cost of re-examination and replacement. If such work be found not in
accordance with the Contract, through the fault of the Contractor, the
Contractor shall pay such cost.
e. If the Architect or the Owner deem it inexpedient to correct work performed
not in accordance with the Contract, then an equitable deduction from the
Contract Sum shall be made therefor.
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13. CONTRACTOR'S INSURANCE: INDEMNITY
a. The Contractor shall comply with the provisions of Social Security and
unemployment insurance laws, local, state and federal, as may be now or
hereafter in force and applying to the Work and shall accept exclusive liability
and hold the Owner harmless for any contributions or taxes with respect to the
Work payable under such laws.
b. The Contractor, before commencing the Work, shall be qualified under the
Workers' Compensation Law of the state in which the Work is to be done and shall
at all times comply with the provisions of said law. The Contractor shall at all
times pay or cause to be paid any assessment or compensation required to be paid
pursuant to the Workers' Compensation Act or law. The Contractor unconditionally
guarantees to the Owner the full compliance with said conditions, regulations
and laws by any Subcontractor or other person employed by the Contractor or with
whom the Contractor may contract for performance of any work hereunder.
c. To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless Owner, Owner's affiliates, its employees, and authorized
representatives and assigns of each from and against any and all suits, actions,
legal or administrative proceedings, claims, debts, demands, damages,
liabilities, interest, costs and expenses of whatever kind or nature, whether
arising during or after commencement or completion of the Work, which are in any
manner caused, occasioned or contributed to in whole or in part, through any
negligence or willful misconduct of the Contractor, any Subcontractor or
Subsubcontractor or anyone employed by any of them or anyone for whose acts any
of them may be liable in connection with or incident to the Work, even though
the same may have resulted from the joint, concurring or contributory negligence
of Owner or any Other person or persons, unless the same be caused by the sole
negligence or willful misconduct of the party indemnified or held harmless
hereunder provided that such claim, damage, loss or expense is attributable to
injury or death to any person or persons and damage to any property, regardless
of where located, including the property of Owner. In any and all claims against
those indemnified hereunder, the indemnification obligation shall not be limited
in any way by any limit on the amount or type of damage, compensation or
benefits payable under any workers' compensation acts, disability benefit acts
or other employee benefit acts.
d. The Contractor shall indemnify and hold harmless the Owner and the Owner's
Employees and Affiliates from and against any and all loss, damage and expense
(including, but not limited to, attorneys' fees) which any or all of them may
suffer, incur or pay as a result of or arising out of claims made or litigation
begun on account of violation or infringement, or alleged violation or
infringement, of any letters patent or patent rights, resulting from or arising
out of the Work or of methods, materials or things used by the Contractor, and
the Contractor, if requested, shall assume and defend (with counsel approved by
the Owner) at his own cost and expense any such claim or litigation.
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The Contractor shall pay all royalties and license fees. The Contractor shall
defend all suits or claims for infringement of any patent rights and shall
indemnify and save harmless the Owner from loss on account thereof, except that
the Owner shall be responsible for all such loss when a particular process or
product of a particular manufacturer or manufacturers is specified by the Owner,
but if the Contractor has information that the process or article specified is
an infringement of a patent, he shall be responsible for such loss unless he
promptly gives such information to the Owner.
e. For the purposes of this Article 13, the term the "Owner's Employees and
Affiliates" means:
1. all directors, officers, employees and agents of the Owner;
2. any corporation controlling the Owner and any parent
corporations controlling the same (whether directly or
indirectly);
3. any corporation controlled by the Owner and any corporations
controlled by the same (whether directly or indirectly);
4. any Affiliates; and
5. all directors, officers, employees and agents of any corporation
referred to in items 2, 3 or 4 above.
For purposes of this definition, "control" shall mean ownership of more
than twenty per cent (20%) of the common stock of a corporation. "Affiliate"
shall mean any corporation in which any corporation described in item 2 above
owns more than twenty per cent (20%) of the common stock.
f. If at any time claims shall be made against the Owner or the Owner's
Employees and Affiliates against which the Contractor has indemnified them, then
the Owner may withhold from any payment otherwise due to the Contractor an
amount sufficient in the Owner's discretion to protect the Owner and the Owner's
Employees and Affiliates against the cost of such claims and any costs involved
in connection therewith until the cause for withholding is removed by the
Contractor and evidence to that effect satisfactory to the Owner is furnished to
the Owner.
g. Owner and Contractor each waive any rights each may have against the other on
account of any loss or damages occasioned to Owner or Contractor, their
respective property, or to the premises or its contents arising from any
liability, loss, damage or injury caused by fire or other peril for which
property insurance is carried or required to be carried
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pursuant to this Agreement. The insurance policies obtained by Owner and
Contractor pursuant to this Agreement shall contain endorsements or other
provisions, waiving any right of subrogation which the insurer may otherwise
have against the other party. The provisions of this Section 13g shall not limit
the indemnification for liability pursuant to Section 13c.
h. The provisions of this Article 13 shall not in any way limit the Owner's
rights under the Contract or otherwise available under law or at equity.
i. Before commencing the Work, Contractor shall procure from insurers approved
by Owner and maintain at its own expense, until installation of the Work is
completed and accepted, the following minimum insurance, and will deliver to
Owner certificates of the insurers evidencing such coverage:
(1) Workers' Compensation in accordance with the laws of the State
or States in which the work is being performed.
(2) Employer's Liability Insurance of FIVE HUNDRED THOUSAND DOLLARS
($500,000) for each accident or disease: ONE MILLION DOLLARS
($1,000,000) policy limit.
(3) Fire and Extended coverage, sprinkler leakage, water damage,
vandalism and malicious mischief insurance on all materials used
in the performance of the Work hereunder, and on all fixtures in
the process of manufacture, storage or transit, to the full
extent of the value thereof.
(4) Commercial General Liability Insurance or Owner's and
Contractor's Protective Liability Insurance, including Broad
Form Property Damage and Contractual Liability Coverage, with
the following minimum limits:
<TABLE>
<S> <C>
Bodily Injury, including Death $5,000,000 per occurrence
Property Damage $1,000,000 per occurrence
</TABLE>
(5) Motor Vehicle Liability Insurance covering each motor vehicle
used in connection with the Work in the following amounts: (1)
TWO MILLION DOLLARS ( $2,000,000.00) per occurrence / FIVE
MILLION DOLLARS ($5,000,000.00) policy limit with respect to
injury or death to an individual,; and (2) TWO MILLION DOLLARS
($2,000,000.00) for each accident /and a FIVE MILLION DOLLAR
($5,000,000.00) policy limit for property damage.
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j. Owner shall be named as an additional insured party under the policies as
referred to in paragraphs (3) and (4) above. All policies of insurance referred
to hereinabove shall stipulate that such insurance is primary and is not
additional to any insurance carried by Owner or any additional insureds and
further provide that the particular policies shall not be canceled or coverage
reduced unless and until thirty (30) days prior written notice of such
cancellation or reduction shall be delivered to Owner by the Insurance Company.
k. The Insurance Company must have a "B+VII" or Better "Best" Rating, as shown
on Best's Latest Rating Publication.
1. Certificates of all such insurance policies shall be delivered to the Owner
prior to commencement of the Work and shall contain a thirty (30) days' notice
of cancellation to the Owner. If the insurance required hereunder is canceled
and Contractor cannot or will not reinstate it such shall be a default under the
Contract and Owner may terminate the Contract or exercise any of its other
rights under the Contract.
15. PROTECTION OF WORK, PROPERTY AND PERSONS
a. The Contractor shall be solely responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract. The Contractor shall provide sufficient, safe and
proper facilities and safeguards at all times for the prosecution of the Work
and the inspection of the Work by the Owner and for the protection of the public
from injury. The Contractor shall, on written notice from the Owner, remove all
materials, whether worked or unworked, and all portions of the Work which
Architect or the Owner shall determine to be unsound or unsatisfactory. The
Contractor shall protect and care for his work from the time of delivery at the
site until final acceptance of same by the Architect and the Owner. Any portion
of the work liable to injury or soiling shall be carefully boxed or otherwise
protected by the Contractor in a manner satisfactory to the Architect and the
Owner, and, in like manner, he shall protect the Owner's property and the
property of any other contractor having a separate agreement with the Owner from
injury or loss arising in connection with the Contract. This protection shall be
carefully maintained during the construction of the entire Work, and shall be
removed from the premises when requested by the Architect or Owner.
Should the Contractor fail to properly protect his Work, such protection may be
installed by the Owner at the Contractor's expense. The Owner will not assume
any responsibility for tools, materials or other property of the Contractor left
on the premises.
b. The Contractor shall take all necessary precautions for the safety of
employees on the Work, and shall comply with all applicable provisions of
federal, state, county and local safety laws and building codes to prevent
accidents or injury to persons on, about or
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adjacent to the premises where the work is being performed. He shall erect and
properly maintain at all times, as required by the conditions and progress of
the Work, all necessary safeguards as required by the conditions and progress of
the Work, all necessary safeguards for the protection of workers and the public,
and shall post danger signs warning against the hazards created by such features
of construction as protruding nails, hoists, elevator hatchways, scaffolding,
window openings, stairways and falling materials; and he shall designate a
responsible member of his organization on the Work whose duty shall be the
prevention of accidents. The name and position of the person so designated shall
be reported to the Architect and the Owner by the Contractor.
c. The Contractor shall adequately protect all adjoining and adjacent property,
private or public, and he shall repair any and all damage or injury that is a
result of his work. He shall leave the property in as good condition as before
work was started, and he shall relieve the Owner of all responsibility for any
claims due to such injury and must defend any action of law brought by reason
thereof.
d. In an emergency affecting the safety of life or of the work of adjoining
property, the Contractor, without special instructions or authorization from the
Architect or Owner is hereby permitted to act, at his discretion, to prevent
such threatened loss or injury, and he shall so act, without appeal, as if so
instructed or authorized. Any compensation claimed by the Contractor on account
of emergency work shall be determined as stipulated in the Article 16, entitled
"Change in the Work". The Contractor shall, at his earliest opportunity notify
the Owner of such emergency.
16. CHANGE IN THE WORK
a. The Owner without invalidating the Contract, may order extra work or make
changes by altering, adding to or deducting from the Work, the Contract Sum
being adjusted accordingly. All the stipulations, provisions and conditions
contained in the General Conditions and in the Specifications shall apply with
full force and effect to any and all omissions and/or changes and/or additions
to the work under the Contract.
b. No order for additional work or changes given to the Contractor (and no
cancellation of such order) shall be deemed authorized or to bind or obligate
the Owner in any way unless same shall have been previously signed on behalf of
the Owner by an authorized representative of the Owner in the form of a Change
Order. The sole exception to this is the issuance by Owner of an emergency work
order whereby the Contractor is authorized to proceed upon receipt of a special
verbal emergency work order number issued by Owner with an agreed "not to
exceed" price.
c. Any work commenced by the Contractor prior to the time a claim is made by the
Contractor that such work is not provided for in the Contract, where the Owner
shall not
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have issued an order for extra work, shall be deemed to be included in the
Contract, and not additional work.
d. In giving instructions, the Owner shall have authority to make minor changes
in the Work, not involving extra cost, and not inconsistent with the purposes of
the Work, but otherwise, except in an emergency endangering life or property, no
extra work or change shall be made unless in pursuance of a written order or
emergency work order from the Owner and no claim for an addition to the Contract
Sum shall be valid unless so ordered.
e. The amount of the adjustment of the Contract Sum by reason of any such extra
work or change shall be determined, at the option of the Owner, in either one or
more of the following bases, as selected by the Owner.
(1) by estimate, negotiation and acceptance of a lump sum plus a
percentage fee;
(2) by the unit prices stated in the general contract or
subcontracts;
(3) by Cost and a percentage fee, subject to a guaranteed maximum
price;
(4) in the case of an deletion of any work, the Contract Sum or
Adjusted Contract Sum shall be reduced in an amount equal to the
estimated but reasonable value of the deleted work in relation
to the Contract Sum or Adjusted Contract Sum;
(5) in case there be any substitution of work pursuant to request of
Owner, then Owner shall receive full credit for the omitted
work, at the same rate that Contractor shall receive for
additional work, and Contractor shall be entitled to payment for
the additional work;
(6) or any combination of the above acceptable to Owner.
f. Adjustments in time of performance for work under the Contract by reason of
any changes in the work shall be made in accordance with Article 17, entitled
"Time of Performance", hereinbelow and such adjustments in time of performance
shall be stated in the pertinent change authorizations. No further claim for
adjustment in time of performance by reason of changes in the work will be
considered after approval of such pertinent change authorizations.
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17. TIME OF PERFORMANCE
a. Time is of the essences for all time limits stated in the Contract.
b. Should the completion of the Work be delayed beyond the time stated in the
Contract, the Owner may, but shall not be required to, grant the Contractor
additional time for completion thereof; provided that if in the Owner's opinion
the failure of the Contractor to complete the Work within the time specified
arises from unavoidable delays (as defined hereinafter), then the Owner may
grant such additional time for completion as he may find reasonable and proper
after consideration of the extent of the unavoidable delay. Unavoidable delays
shall mean (1) delays which result from causes beyond the Contractor's control
and which he could not have provided against by the exercise of reasonable
foresight, care, prudence or diligence; (2) delays which result from Change
Orders altering or increasing the amount of work or quantity of materials and
which shall be as stated in the approved applicable change authorizations; and
(3) delays resulting from damage to the Contractor's work by other contractors
or because of improper work of other contractors, provided however, that the
Owner is promptly notified in writing of such delay and immediate written demand
is made by the Contractor for extension of time for completion. The extension of
time hereinabove provided for shall be the Contractor's exclusive remedy in the
event of such a delay, no matter how or by whom caused.
Delays on account of loss of time resulting from the necessity of
submitting specifications, drawings or samples for approval and from making
surveys, measurements and inspections, and such interruptions as may occur on
account of reasonable interference by other contractors employed by the Owner
but which do not necessarily prevent the completion of the whole work within the
time specified, are not unavoidable delays, and the Owner shall not be under any
obligation to grant any extensions of time by reason thereof.
c. Any other claims involving loss of time shall be submitted at the time of
occurrence of the alleged cause of such loss of time; in no case will any
consideration be given to such claims submitted more than fourteen calendar days
after such occurrence.
18. JOB ORGANIZATION, PROGRESS SCHEDULE AND CHART
a. The Contractor shall submit, prior to starting work, a job organization chart
which shall be subject to approval of the Owner.
b. The Contractor shall promptly, upon award of the Contract, submit to the
Architect and the Owner a detailed schedule by trade, showing the order in which
he proposes to carry
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on the Work, with dates at which the several parts of the Work will start and
the estimated dates of completion of same.
c. The Contractor shall prepare a progress chart in the form of a plan, at
suitable scale, which shall indicate the salient features of the Work, with
symbols to indicate the progress at any time.
d. The above stipulated progress chart and schedule shall be submitted to the
Architect and the Owner for approval before the Work is commenced. All work
under the Contract shall in general be done in such order and by such methods as
shall produce the best economy, safety and speed.
e. The Contractor shall bring all progress schedules and charts up-to-date
approximately every two weeks.
19. PROGRESS AND ORDER OF THE WORK
The Owner shall have the right, without giving the Contractor the right to any
extra compensation, at any time when, in the judgment of the Architect or the
Owner, the Work is not proceeding in accordance with the approved progress
schedule, to require the Contractor to take such measures or adopt such methods
as may be necessary in the Architect's or the Owner's opinion, to obtain and
maintain satisfactory progress, but the failure of the Architect or the Owner to
demand that the Contractor adopt such measures shall not relieve the Contractor
of his obligation to secure the rate of progress necessary to complete the Work
within the time required by the Contract.
22. ARCHITECT'S STATUS
a. The Architect shall be an Owner's representative during the construction
period and he shall observe the work in process on behalf of the Owner. He is
the agent of the Owner only to the extent provided in the Contract and when in
special instances he is authorized by the Owner so to act, and in such instances
he shall, upon request, show the Contractor written authority. He has authority
to reject the Work for failure to comply with the Contract Documents.
b. As the Architect is, in the first instance, the interpreter of the conditions
of the Contract and the judge of its performance, he shall side neither with the
Owner nor with the Contractor, but shall use his authority under the contract to
enforce its faithful performance by all.
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c. In case of the termination of the employment of the Architect, the Owner
shall appoint a capable and reputable Architect, whose status under the Contract
shall be that of the former Architect.
23. ARCHITECT'S DECISION
a. The Architect, if requested by either the Owner or the Contractor, shall,
within a reasonable time, make decisions on all claims of the Owner or the
Contractor and on all other matters relating to the execution of the Work or the
interpretation of the Contract Documents.
The Architect's decisions shall be final in matters pertaining to interpretation
of Contract Documents and certification of value of work performed or omitted.
24. LAWS, ORDINANCES AND REGULATIONS
The Contractor shall comply with all federal, state and local laws,
ordinances, rules and regulations, and he shall give all notices and obtain all
permits for obstructions, encroachments and as otherwise necessary for the
conduct of the Work as drawn and specified, and he shall pay all fees and costs
in connection with the same unless otherwise stated herein. If the Contractor
observes that the Drawings and Specifications are at variance with the laws,
ordinances, rules and regulations above referred to, he shall promptly notify
the Architect and the Owner in writing, and any necessary changes shall be
adjusted as provided in these General Conditions under Article 16, entitled
"Change in the Work". If the Contractor performs any work knowing it to be
contrary to such laws, ordinances, rules and regulations, and without such
notice to the Architect and Owner, he shall assume all responsibility for such
work and shall bear attributable costs.
25. LABOR CONDITIONS
a. The Contractor shall employ only such labor as, to the satisfaction of the
Architect or the Owner, will work in harmony with other trades engaged upon work
at or about the premises. The Contractor shall maintain order and discipline
among the workmen at all times.
b. If, at any time, it shall be impracticable or contrary to the interests of
the Owner in its sole judgment, to proceed with or continue the performance of
the Work or any part thereof, whether or not for reasons for which either of the
parties is responsible, the Owner may order the Contractor to suspend
performance until such time as the Owner may deem it practicable to proceed.
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26. WORKING HOURS
a. When so directed by the Architect or the Owner and when not directed by Owner
as a remedy to comply with the project schedule, the Contractor shall perform
his Work on an overtime basis and the cost to be charged therefor shall be only
the actual wages in excess of straight time wages normally paid by the
Contractor, plus any increased payroll taxes, insurance premiums and welfare
payments attributable to the premium portion of these wages in accordance with
Article IV of the Articles of Agreement.
b. Should the Contract Documents require that the Contractor's work be performed
after normal working hours, or should the Contractor elect to perform work after
normal working hours, any additional cost of such work shall be borne by the
Contractor.
27. WORK SEQUENCE
If, in the judgment of the Architect or the Owner, it becomes necessary at any
time to accelerate the overall work, the Contractor, when ordered and directed
by the Architect or the Owner, shall cease work at any particular point and
transfer its workers to such point or points, and execute such portion of its
work as may be required, to enable other contractors to hasten and properly
engage and carry on their work, all as directed by the Architect and the Owner.
29. USE OF PREMISES
The Contractor shall not load or permit any part of any structure to be
loaded with a weight that will endanger its safety. The Contractor shall enforce
the Architect's and Owner's instructions regarding signs, advertisements, fires
and smoking.
30. OWNER'S RIGHT TO DO WORK
If the Contractor should neglect to prosecute the Work properly or fail
to perform any provision of the Contract, the Owner, after seven days' written
notice to the Contractor, may, without prejudice to any other remedy he may
have, make good such deficiencies and may deduct the cost thereof, including
Architect's additional services and expenses made necessary by such default,
neglect or failure, from the payment then or thereafter due the Contractor,
provided however, that the Architect shall have approved both such action and
the amount charged to the Contractor.
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31. SUBCONTRACTS
a. Contractor may not employ any subcontractor without the prior consent of
owner and shall not employ any that the Architect or the Owner may within a
reasonable time object to as incompetent or unfit.
b. The Contractor shall obtain from Owner the names of subcontractors proposed
by the Owner for some of the principal parts of the work and the employment of
all subcontractors shall be subject to the approval of the Owner. The Contractor
shall not be required to employ for any of the Work a subcontractor against whom
he has a reasonable objection. The Owner and Contractor shall mutually agree to
a list of subcontractors permitted to bid on principal portions of the Work. The
subcontractor's bids shall be opened and analyzed in full consultation with
Owner and in accordance with Owner's bid opening procedures.
c. If the Contractor has submitted before execution of the Contract a list of
subcontractors and the change of any name on such list is required in writing by
the Owner after such execution, the Contract Sum shall be increased or
diminished by the difference in cost occasioned by such change.
d. The Contractor agrees that he is as fully responsible to the Owner for the
acts and omissions of his Subcontractors and of persons either directly or
indirectly employed by them, as he is for the acts and omissions of persons
directly employed by him.
e. Nothing contained in the Contract shall create any contractual relation or
any other obligation between any Subcontractor and the Owner.
32. RELATIONS OF CONTRACTOR AND SUBCONTRACTOR
a. The Contractor shall procure the Owner's written approval before entering
into any contract for the purchase of items of material or before subcontracting
for any portion of the work. The Contractor may, at its own cost and expense,
require surety bonds from subcontractors. In no event shall the cost of such
bonds be included in the Contract Sum. If requested by the Owner, all
subcontracts and contracts entered into in connection with the Work shall be on
the forms specified or approved by the Owner. The approval by the Owner of any
subcontract shall not release Contractor from any responsibility or liability in
connection with said subcontract or from the Contract Documents including the
Drawings, Specifications and General Conditions .
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b. By appropriate agreement, written where legally required for validity, the
Contractor shall require each Subcontractor, to the extent of the Work to be
performed by the Subcontractor, to be bound to the Contractor by terms of the
Contract Documents, and to assume toward the Contractor all the obligations and
responsibilities which the Contractor, by the Contract Documents, assumes toward
the Owner and the Architect. Each subcontract agreement shall preserve and
protect the rights of the Owner and the Architect under the Contract Documents
with respect to the work to be performed by the Subcontractor so that
subcontracting thereof will not prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract
agreement, the benefit of all rights, remedies and redress against the
Contractor that the Contractor, by the Contract Documents, has against the
Owner. Where appropriate, the Contractor shall require each Subcontractor to
enter into similar agreements with sub-subcontractors. The Contractor shall make
available to each proposed Subcontractor, prior to the execution of the
subcontract agreement, copies of the Contract Documents to which the
Subcontractor will be bound, and, upon written request of the Subcontractor,
identify to the Subcontractor terms and conditions of the proposed subcontract
agreement which may be at variance with the Contract Documents. Subcontractors
shall similarly make copies of applicable portions of such documents available
to their respective proposed sub-subcontractors.
c. The Contractor agrees:
(1) to be bound to the Subcontractor by all the obligations that the
Owner assumes to the Contractor under the Contract, and by all
the provisions thereof affording remedies and redress to the
Contractor from the Owner.
(2) to pay the Subcontractor, upon the payment of certificates, if
issued under the schedule of values described in the Article 34,
entitled "Payments", the amount allowed to the Contractor on
account of the Subcontractor's work to the extent of the
Subcontractor's interest therein.
(3) to pay the Subcontractor, upon the payment of certificates, if
issued otherwise than as in paragraph c (2) immediately above,
so that at all times his total payments shall be as large in
proportion to the value of the work done by him as the total
amount certified to the Contractor is to the value of the work
done by him.
(4) to pay the Subcontractor to such extent as may be provided by
the Contract or the subcontract, if either of these provides for
earlier or larger payments than the above.
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(5) to pay the Subcontractor on demand for his work or materials as
far as executed and fixed in place, less the retained
percentage, at the time the certificate should issue, even
though the certificate is not issued for any cause not the fault
of the Subcontractor.
(6) to pay the Subcontractor a just share of any insurance money
received by the Contractor under the Article 14, entitled
"Owner's Insurance".
(7) to make no demand for liquidated damages or penalty for delay in
any sum in excess of such amount as may be specifically named in
the subcontract.
(8) that no claim for services rendered or materials furnished by
the Contractor to the Subcontractor shall be valid unless
written notice thereof is given by the Contractor to the
Subcontractor during the first ten days of the calendar month
following that in which the claim originated.
(9) to require the Subcontractor to be present and to submit
evidence in any judicial proceeding or other proceeding
involving his portion of the Work.
d. Nothing contained in this article shall create any obligation on the part of
the Owner to pay to or to see to the payment of any sums to any Subcontractor.
33. CASH ALLOWANCE
Wherever cash allowances are stated in the Contract Documents, it shall
be understood that such allowances represent the absolute net cost to the
Contractor, and it shall be understood that the total Contract Sum includes
charges of every nature, as well as overhead and profit, in connection with the
items covered by such cash allowances. If the items covered by cash allowances
cost more or less than the stated allowance, the net difference in cost will be
added to or deducted from the Contract Sum, and if the entire item is omitted,
the full amount of the cash allowance shall be deducted from the Contract Sum.
34. PAYMENTS
a. The Contractor shall submit to the Owner an application for each payment, and
receipts or other vouchers, showing his payments for materials and labor,
including payments to Subcontractors as required under the Article 32, entitled
"Relations of Contractor and Subcontractor". Each such application shall be
accompanied by adequate
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evidence of such payments during the period since the last approved application
for payment and by a statement of the amounts of the Contractor's intended
payments during the current payment period.
b. In addition to the withholding provided for in Article III of the Articles of
Agreement, the Owner may withhold or, on account of subsequently discovered
evidence, nullify the whole or a part of any certificate to such extent as may
be necessary to protect the Owner from loss on account of:
(1) Defective work not remedied.
(2) Claims filed or evidence indicating probable filing of claims.
(3) Failure of the Contractor to make payments properly to
subcontractors or for material or labor.
(4) A reasonable doubt that the contract can be completed for the
unpaid balance of the Contract Sum.
(5) Damage to another Contractor or Subcontractor.
(6) Loss, damage, cost or expense for which Contractor may be
liable.
(7) Reasonable evidence that the Work will not be completed within
the Contract time.
(8) Persistent failure to carryout the Work in accordance with the
Contract Documents.
When the above causes are remedied to the satisfaction of Owner, payment shall
be made for amounts withheld because of them.
c. Payments made on valuation of work done shall require that the application be
submitted at least thirty days before each payment falls due. The Contractor
shall, before the first application, submit to the Owner a schedule of values of
the various parts of the work, including quantities, aggregating the total sum
of the Contract, divided so as to facilitate payments to Subcontractors made out
in such form as the Owner and the Contractor may agree upon, and supported by
such evidence as to its correctness as the Owner may direct as well as to submit
a separate breakdown of the valuation of the work in a form acceptable to Owner
to provide Owner with accurate "database" cost information.
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The schedule, when approved by the Owner, shall be used as a basis for
certificates of payments, unless it be found to be in error. No payments will be
made until such schedule is submitted and agreed to by Owner. The Contractor
shall, from time to time, upon request of the Owner, revise such breakdown so
that it will be satisfactory and acceptable to the Owner as to content,
distribution of costs, detail of breakdown and form. In applying for payments,
the Contractor shall, in addition to the other material submitted with the
application for payment, submit a statement based upon this schedule and, if
required, itemized in such form and supported by such evidence as the Owner may
direct, showing his right to the payment claimed.
d. Contractor's written demands shall be directed and sent to the Owner c/o
Federated Corporate Services, 7 West Seventh St., Cincinnati, OH 45202,
attention: Senior Vice President/Store Planning and Construction or to such
other address as may be designated by the Owner.
e. The Owner shall not be in default to the Contractor by reason of non-payment
of any money due to the Contractor until Owner shall have failed to pay for a
period of fifteen (15) days after the due date specified in this paragraph or
is otherwise found to be due and payable unless Owner is permitted to withhold
such payment in accordance with the provisions of this Contract.
f. With the second and subsequent requisitions for payment, Contractor shall
submit to Owner Release and Waiver of Lien forms (from the Contractor and all
Subcontractors) in a form acceptable to Owner indicating that all charges
previously included on the statement of said month have actually been paid in
full by the Contractor.
g. Upon completion of the Work by the Contractor in accordance with the
Drawings, Specifications, General Conditions and other Contract Documents, the
Contractor shall tender the Work to the Owner and if the Owner shall accept the
Work, the remaining balance of the Contract Sum or Adjusted Contract Sum shall
be due to Contractor within thirty (30) days after delivery to the Owner of the
Contractor's final notarized application for payment and the forms hereinafter
mentioned. Final payment shall be conditioned upon the receipt by the Owner of a
final statement covering all items under the Contract, together with
Contractor's Final Release and Waiver of Lien form in a form acceptable to Owner
and signed and notarized by the Contractor, Release and Waiver of Lien forms
signed and notarized by all subcontractors and material suppliers of the
Contractor on forms acceptable to Owner, and a certificate of the Contractor to
the effect that all bills and claims incurred in the furtherance of the Work,
whether by the Contractor or any subcontractor engaged by the Contractor, have
been satisfied.
h. Submission of an application for payment shall constitute a representation
and warranty by Contractor that all of the said bills due and payable prior to
the time of each request have been paid, by the applications to such payment of
the funds received by the Contractor pursuant to each such request.
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35. CORRECTION OF WORK BEFORE FINAL PAYMENT
a. The Contractor shall do the Work in accordance with the Drawings,
Specifications, and General Conditions and other Contract Documents and shall
furnish all labor, equipment, materials and other necessary services for the
complete performance of the Work in a good and first-class workmanlike manner.
Neither acceptance of or payment for the Work or any part thereof, nor the
partial or entire use or occupancy of the Work by Owner, shall release
Contractor from liability for any warranties of material or equipment installed
or for workmanship which is faulty, unsound, improper, not first-class
workmanship, or not in accordance with the Drawings, Specifications and General
Conditions as approved by the Owner, and the Contractor shall, at its own
expense, take down and replace all such portions of the Work determined by the
Architect as failing to conform to the Contract, whether incorporated or not and
whether done by him or his Subcontractors, and shall bear the expense to the
Owner of making good all work of other contractors destroyed or damaged by such
removal or replacement, and shall remedy any defects which shall appear within a
period of two years (or longer, per specifications) from the date of completion
of the Work. The Owner shall give notice of observed defects with reasonable
promptness.
b. If the Contractor does not remove such non-conforming work within a
reasonable time, fixed by written notice, the Owner may remove it and may store
the material at the expense of the Contractor. If the Contractor does not pay
the expenses of such removal within ten days' time thereafter, the Owner may,
upon ten day's written notice, sell such materials at auction or at private sale
and shall account for the net proceeds thereof, after deducting all the costs
and expenses that should have been borne by the Contractor.
36. PRELIMINARY AND FINAL ACCEPTANCE
a. Upon notification by the Contractor that he has completed all work under the
Contract, the Architect and Owner will inspect all work and issue a "punch list"
with an agreed upon time limit stipulated for correction of all items listed
therein. The issuance of a "punch list" shall constitute preliminary acceptance.
The Owner reserves the right to accept work subject to compliance with all
"punch list" requirements, and such acceptance shall constitute substantial
completion only for the Work accepted.
b. The final certificate of payment together with a certificate of final
acceptance, will be issued only after all "punch list" items have been corrected
to the satisfaction of the Architect and Owner. The completion of all "punch
list" requirements and the issuance of the final certificates of payment and
acceptance shall constitute final acceptance for purposes of Article 38. In the
event that the Contractor does not complete all punch list items within two
"call-back" inspections by the Owner or Architect, Owner may deduct its costs
(including architects' fees, travel expenses and any other costs incurred for
any subsequent call-back) from the final payment due to Contractor.
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c. Should the Contractor neglect to correct "punch list" items within the
stipulated period of time (not to exceed 60 days), the Owner may, after 3 days'
written notice to the Contractor, without prejudice to any other remedy he may
have, make good such deficiencies and may deduct the cost thereof from the
payment then due the Contractor.
37. CORRECTION OF WORK AFTER FINAL PAYMENT
a. Neither the final certificate of payment nor any provision in the Contract
shall relieve the Contractor of responsibility for faulty materials or
workmanship and, unless otherwise provided herein or specified, he shall remedy
any defects due thereto and pay for any damage to other work resulting therefrom
which shall appear within a period of two years from the date of the final
certificate covering all contract work.
b. Where guarantees or warranties are written in any section of the
Specifications for terms longer than two years, the longer term shall apply.
c. The Owner shall give notice of observed defects with reasonable promptness.
38. WARRANTY
a. The Contractor shall deliver to the Architect and the Owner, upon completion
of all work under the Contract, his written warranty made out to the Owner and
in form satisfactory to the Architect and the Owner, warranting and guaranteeing
all of the work under the Contract, including work performed by subcontractors,
to be free from faulty materials, and free from improper workmanship, and, other
than proper and usual wear, agreeing to replace or re-execute, without cost to
the Owner, such work as may be found to be improper or imperfect and to make
good all damage caused to other work or materials due to such required
replacements or re-execution.
b. This warranty shall be made to cover a period of two years from the date of
final acceptance of all work under the Contract (except as specified for
substantial completion in paragraph c below) as evidenced by the Architect's
final certificate, or for other periods where so stipulated in the various trade
specifications. It shall be the Contractor's responsibility in negotiating
subcontracts to provide for subcontract warranties for a period of two (2)
years, or longer if noted in the Specifications.
c. Should the Owner before the completion of the Work as a whole, accept for
occupancy and occupy a portion of the Work, upon issuance by the Architect of a
certificate of substantial completion for that portion, the period of warranty
for the work of that portion shall commence upon the date of the Architect's
certificate of substantial completion.
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d. Warranties must be furnished and approved by the Architect and the Owner
before acceptance and final payments are made.
e. Neither the final certificate nor payment nor any provision in the Contract
shall relieve the Contractor of responsibility for neglect, faulty materials or
workmanship during the period covered by the warranty.
f. Consistent with the above, in the case of work performed by Subcontractors
where warranties or guarantees are required under the various sections of the
Specifications, the Contractor shall secure such warranties or guarantees from
said Subcontractors addressed to and for the benefit of the Contractor and the
Owner and deliver the original and one copy of same to the Architect and the
Owner before completion of the Work as above defined.
g. All warranties or guarantees received by the Contractor from material, men,
equipment makers, or Subcontractors shall be approved by the Contractor and the
Owner, but shall be made directly to the Owner. Such guarantees, however, shall
be enforced by the Contractor if occasion arises. If the makers of the
guarantees fail to fulfill their guarantee obligations, any costs incurred by
Owner in connection therewith shall be at the expense of Contractor, and
Contractor shall indemnify and hold harmless Owner for all such costs and
expenses.
39. DAMAGES
a. If either party to the Contract should suffer damage in any manner because of
any wrongful act or neglect of the other party or of anyone employed by him,
then he shall be reimbursed by the other party for such damage.
b. Claims under this clause shall be made in writing to the party liable within
a reasonable time of the first observance of such damage and not later than the
time of final payment, except as expressly stipulated otherwise in the case of
faulty work or materials, and shall be adjusted by agreements or arbitration.
40. LITIGATION
In the event that any litigation shall, at any time or place wherever
the place of jurisdiction may be, be commenced against the Owner, by reason of
any claim, whether under any contract, in negligence or any other tort, or
otherwise, which will pertain or be alleged to pertain to any work, labor,
services or equipment or their transportation or storage, furnished or to be
furnished by Contractor, any of its Subcontractors, material men,
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Vendor #
or any of their respective agents, representatives, employees, invitees or any
other person, firm or corporation engaged or retained by any of them, or to or
for failure by any of them to furnish any work, labor, services or equipment, or
their transportation or storage, required under the Contract, then the Owner
shall have the right to join the Contractor as a party defendant in such
litigation. The Contractor agrees that the Contractor may so be made party
defendant in such litigation and the Contractor also agrees to accept service of
process in such litigation and to subject himself to the jurisdiction of the
court in which such litigation is pending, to the end that the rights of the
claimant or claimants and the rights and the obligations of the Owner and the
Contractor as to each other may be determined in such litigation. In the event
that the Contractor shall for any reason fail to accept such service of process
and to subject himself to the jurisdiction of such court, then the Contractor
shall be liable to the Owner in the amount of and for any judgments and costs
that may be assessed against the Owner in such litigation, including legal
interest thereon and including any attorneys' fees and any other expenses that
may be incurred by the Owner in such litigation.
41. TAXES
Any taxes imposed by any law of the federal government, any state or any
subdivision thereof, or any local government, on any materials, articles or
services required to be furnished by the Contractor, shall be paid by the
Contractor without recourse against or reimbursement thereof from the Owner. The
Contractor shall pay all payroll taxes, contributions, unemployment insurance or
other similar taxes now or hereafter in effect.
43. SIGNS AND ADVERTISEMENTS
Contractor may, subject to compliance with all requirements of all
public authorities having jurisdiction, display not more than one advertising
sign in a place at the site, to be designated by Architect. This sign shall be
paid for, erected, maintained and removed at the completion of the Work by the
Contractor and shall contain the project name, the Owner's and Architect's name,
his name and that of such Subcontractors as he may elect. The sign shall be of
size, type and general design as approved by the Architect and the Owner.
45
<PAGE> 46
Contract #226311
Vendor #
47. CLEANING AND REMOVAL OF MATERIALS
a. It shall be the Contractor's duty to keep the buildings and the site at all
times in orderly condition for the proper coordination and prosecution of the
Work; and he shall turn over the premises to the Owner in a properly cleaned
condition as described herein.
b. The Contractor upon completion of all contract work, and prior to final
inspection and acceptance of the Work by the Architect and owner shall
thoroughly clean the site.
48. MECHANIC'S LIENS
The Contractor shall remove or bond immediately any lien on Owner's
premises that may be filed against any part of or the entire Work or against any
part of or the entire site for any work, materials, labor or services that may
be or will be furnished or alleged to be furnished by any of the Contractor's
Subcontractors or material men, whether actual or alleged. Contractor shall
indemnify and hold harmless the Owner against all loss and expenses, including
all attorney's fees, arising from each and every such lien and the removal of
each and every such lien. The Contractor further agrees that so much of the
monies due under the Contract, as may be considered necessary by the Owner, may
be retained by the Owner until all such suits, claims for damages or expenses,
as aforesaid shall have been settled and paid and each and every such lien
removed and satisfied. If the Contractor fails to remove any such lien, (in
addition to all other rights and remedies available to the Owner) the Owner may
satisfy, remove or discharge such lien; and at Owner's election, the Owner may
deduct the entire cost or any part thereof (including, but not limited to,
attorneys' fees) from the Contract Sum or Adjusted Contract Sum, as the case may
be, or the Contractor shall pay the same to the Owner upon demand.
49. FIRST AID
a. All articles necessary for "First Aid" shall be provided by the Contractor in
his field office. The Contractor shall have standing arrangements for the
immediate removal and hospital treatment of any employees who may be injured or
who may become ill.
b. In case of accidents, the Contractor shall immediately furnish the Owner with
full data relative to such accidents.
46
<PAGE> 47
Contract #226311
Vendor #
51. SITE REGULATIONS
All regulations and rules of the Owner which may be in effect at the site
regarding employment, passes, badges and conduct at the site shall be rigidly
observed by the Contractor, his Subcontractors and material men and their
respective personnel and employees. The Contractor shall remove from the site or
the Work any employee not satisfactory to the Owner.
47
<PAGE> 48
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
PERFORMANCE AND PAYMENT BOND
BOND NO. -PA7575001
KNOW ALL MEN BY THESE PRESENTS, that we, IROQUOIS CORPORATION 37-55 39TH STREET
of LONG ISLAND CITY, NY as Principal (hereinafter called the Principal), and The
Insurance Company of the State of Pennsylvania, a corporation under the laws of
the State of Pennsylvania, as Surety (hereinafter called the Surety) are held
and firmly bound unto FEDERATED CORPORATION SERVICES, INC. 11107 WEST SEVENTH
STREET of CINCINNATI OHIO.
(hereinafter called the Owner), and to all persons who furnish labor or material
directly to the Principal for use in the prosecution of the work hereinafter
named, in the just and full sum of ONE MILLION EIGHT HUNDRED AND EIGHT
THOUSAND DOLLARS ($1,808,000.00), to the payment of which sum, well and truly
to be made, the said Principal and Surety bind themselves, and their respective
heirs, administrators, executors, successors and assigns, jointly and severally,
firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract, with the
Owner, dated the 17TH day of FEBRUARY, 1998, to DEMOLITION & RELATED WORK AT
THE A&S HEMPSTEAD DEMOLITION SITE HEMPSTEAD, NY which contract is hereby
referred to and made a part hereof as fully and to the same extent as if copied
at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS such that, if Contractor
shall promptly and faithfully perform said Contract, then this obligation shall
be null and void: otherwise it shall remain in full force and effect.
Whenever Contractor shall be, and declared by Owner to be, in default under the
Contract, the Owner having performed Owner's obligation thereunder, the Surety
may promptly remedy the default, or shall promptly
1) Complete the Contract in accordance with its terms and conditions,
or
2) Obtain a bid or bids for completing the Contract in accordance with
its terms and conditions, and upon determination by Surety of the lowest
responsible bidder, or, if the Owner elects, upon determination by the Owner
and the Surety jointly of the lowest responsible bidder, arrange for a contract
between such bidder and Owner, and make available as work progresses (even
though there should be a default or a succession of defaults under the contract
or contracts of completion arranged under this paragraph)sufficient funds to
pay the cost of completion less the balance of the contract price: but not
exceeding, including other costs and damages for which the Surety may be liable
hereunder, the amount set forth in the first paragraph hereof. The term
"balance of the contract price," as used in this paragraph, shall mean the total
amount payable by Owner to Contractor under the Contract and any amendments
thereto, less the amount properly paid by Owner to Contractor.
Any suit under this bond must be instituted before the expiration of two (2)
years from the date on which final payment under the Contract falls due.
No right of action shall accrue on this bond to or for the use of any person or
corporation other than the Owner named herein or the heirs, executors,
administrators or successors of the Owner.
NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal
shall promptly make payment to all claimants as hereinafter defined, for all
labor and material used or reasonably required for use in the performance of
the Contract, then this obligation shall be void: otherwise it shall remain in
full force and effect, subject, however, to the following conditions.
1. A claimant is defined as one having direct contract with the
Principal or with a Subcontractor of the Principal for labor, material, or
both, used or reasonably required for use in the performance of the Contract,
labor and material being construed to include that part of water, gas,light,
heat, oil, gasoline, telephone service or rental of equipment directly
applicable to the Contract.
2. The above named Principal and Surety hereby jointly and severally
agree with the Owner that every claimant as herein defined, who has not been
paid in full before the expiration of a period of ninety (90) days after the
date on which the last of such claimant's work or labor was done or performed,
or materials were furnished by such claimant, may sue on this bond for the use
of such claimant, prosecute the suit to final judgment for such sum or sums as
may be justly due claimant, and have execution thereon. The Owner shall not be
liable for the payment of any costs or expenses of any such suit.
3. No suit or action shall be commenced hereunder by any claimant:
a. A claimant not having a direct contractual relationship with
the principal contractor shall not have a right of action upon the payment bond
unless (1) he has within 30 days after furnishing
<PAGE> 49
NEW HAMPSHIRE INSURANCE COMPANY POWER OF ATTORNEY
Principal Bond Office: 70 Pine Street, New York, NY 10270 PA7575001
(Void unless numbered in red)
KNOW ALL MEN BY THESE PRESENTS, that THE INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA and NEW HAMPSHIRE INSURANCE COMPANY have made, constituted and
appointed, and by these presents does make, constitute and appoint
Floyd C. Reynolds, III, Chris T. Reynolds, William F. Ezekiel, Jr., Gregory
LeFevre of Cherry Hill, NJ
its true and lawful attorney-in-fact, for it and in its name, place, and stead
to execute on behalf of the said Company, as surety, bonds, undertakings and
contracts of suretyship to be given to
ALL OBLIGEES
provided that no bond or undertaking or contract of suretyship executed under
this authority shall exceed in amount the sum of
******Three Million Dollars ($3,000,000.00)******
This Power of Attorney is granted and is signed and sealed by facsimile
under and by the authority of the following Resolution adopted by the Board of
Directors of the Company on the 5th day of January, 1998.
"RESOLVED, that the Chairman of the Board, the Vice Chairman of the Board,
the President an Executive Vice President or a Senior Vice President or a Vice
President of the Company, be, and that each or any of them is, authorized to
execute Powers of Attorney, qualifying the attorney-in-fact named in the given
Power of Attorney to execute in behalf of the Company, bonds, undertakings and
all contracts of suretyship: and that an Assistant Vice President, a Secretary
or an Assistant Secretary be, and that each or any of them hereby is, authorized
to attest the execution of any such Power of Attorney and to attach thereto
the seal of the Company.
FURTHER RESOLVED, that the signatures of such officers and the seal of the
Company may be affixed to any such Power of Attorney or to any certificate
relating thereto by facsimile, and any such Power of Attorney or certificate
bearing such facsimile signatures or facsimile seal shall be valid and binding
upon the Company when so affixed and in the future with respect to any bond,
undertaking or contract of suretyship to which it is attached."
In witness Whereof, The Insurance Company of the State of Pennsylvania and
New Hampshire Insurance Company has caused its official seal to be hereunto
affixed, and these presents to be signed by one of its Vice Presidents and
attested by one of its Assistant Vice Presidents this 5th day of January, 1998.
attest:
(SEAL) The Insurance Company of the State of Pennsylvania
New Hampshire Insurance Company
By
/s/ DAVID J. WALSH
-------------------------------------
David J. Walsh, Senior Vice President
- -------------------------------------------------------------------------------
LUCILLE SALERNO
Notary Public, State of New York
No. 01SA4974380
Qualified in Suffolk County
Commission Expires 11/13/75
/s/ LUCILLE SALERNO
---------------------------------
NOTARY SIGNATURE AND
SEAL (REQUIRED)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss:
On this 5th day of January 1998 before me came the above named officer of The
Insurance Company of the State of Pennsylvania and New Hampshire Insurance
Company, to me personally known to be the individual and officer described
herein, and acknowledged that he executed the foregoing instrument and affixed
the seals of said corporations thereto by authority of his office.
- -------------------------------------------------------------------------------
I, Elizabeth Tuck, Secretary of The Insurance Company of the State of
Pennsylvania and New Hampshire Insurance Company do hereby certify that the
foregoing and attached Power of Attorney remains in full force and has not been
revoked; and therefore that the Resolutions of the Board of Directors, act
forth in the said Power of Attorney, is now in force.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal
of each corporation
(SEAL) this 1ST day of APRIL, 1998
/s/ ELIZABETH M. TUCK
-----------------------------
Elizabeth M. Tuck, Secretary
<PAGE> 50
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
Executive Offices
70 Pine Street
New York, New York 10270
- --------------------------------------------------------------------------------
FINANCIAL STATEMENT
as of December 31, 1996
<TABLE>
<CAPTION>
ASSETS LIABILITIES
- ------ -----------
<S> <C> <C> <C>
Bonds ......................................... $ 809,672,652 Reserve for Losses and Loss Expense ......... $ 746,162,443
Stocks ........................................ 490,322,429 Reserve for Unearned Premiums ............... 189,453,341
Collateral Loans .............................. -0- Reserve for Expenses, Taxes,
Cash & Short-Term Investments ................. 840,837 Licenses and Fees ......................... 1,439,332
Agents' Balances or Uncollected Premiums ...... 289,007,135 Provisions for Reinsurance .................. 22,785,096
Funds Held By Ceding Reinsurers ............... 1,260,935 Funds Held Under Reinsurance Treaties ....... 14,927,709
Reinsurance Recoverable on Loss Payments ...... 70,524,427 Other Liabilities ........................... 17,735,784
Equities & Deposits in Pools & Associations.... 23,734,640 Capital Stock ............................... 5,005,500
Other Admitted Assets ......................... 128,789,245 Surplus ..................................... 616,643,095
--------------
TOTAL ASSETS ............................. $1,614,152,300 TOTAL POLICYHOLDERS' SURPLUS................. 621,648,595
-------------- --------------
TOTAL LIABILITIES AND POLICYHOLDERS'
SURPLUS ..................................... $1,614,152,300
--------------
</TABLE>
- --------------------------------------------------------------------------------
Bonds and stocks are valued in accordance with the basis adopted by the
National Association of Insurance Commissioners.
Securities carried at $109,809,196 in the above Statement are deposited as
required by law.
- --------------------------------------------------------------------------------
CERTIFICATE
ELIZABETH M. TUCK, Secretary and MICHAEL J. CASTELLI, Comptroller of The
Insurance Company of the State of Pennsylvania being duly sworn, each for
himself deposes and says that they are above described officers of the said
Company and that on the 31st day of December, 1996, the Company actually
possessed the assets set forth in the foregoing statement and that such assets
were available for the payment of losses and claims and held for the protection
of its policyholders and creditors, except as hereinbefore indicated, and that
the foregoing statement is a correct exhibit of such assets and liabilities of
the said company on the 31st day of December, 1996, according to the best of
their information, knowledge and belief, respectively.
[SEAL] /s/ ELIZABETH M. TUCK /s/ MICHAEL J. CASTELLI
---------------------- -----------------------
Secretary Comptroller
- --------------------------------------------------------------------------------
STATE OF NEW YORK ) SS.:
COUNTY OF NEW YORK )
On this 1st Day of April, 1997 /s/ CAROL RAGAB
Before me came the above named officers --------------------------------
of the AIU Insurance Company, to me CAROL RAGAB
personally shown to be the individuals Notary Public, State of New York
and officers described herein, and No. 01RA5052011
acknowledged that they executed the Qualified in Kings County
foregoing instrument and attached the
seal of said corporation thereto by
authority of their offices.
<PAGE> 51
the first of such material or performance the first of such labor served on the
principal contractor, a written notice, which shall inform the principal of the
nature of the materials being furnished or to be furnished, or labor being
performed or to be performed, and identifying the party contracting for such
labor or materials and the site for the performance of such labor or the
delivery of such materials, and (2) he has given written notice to the principal
contractor and the governmental unit involved within 30 days from the date on
which the claimant performed the last of the labor or furnished or supplied the
last of the material for which the claim is made, stating with substantial
accuracy the amount claimed and the name of the party to whom the material was
furnished or supplied or for whom the labor was done or performed.
b. After the expiration of one (1) year following the date on which Principal
ceased Work on said Contract, it being understood, however, that if any
limitations embodied in this bond are prohibited by [?????] laws controlling
the construction hereof, such limitations shall be deemed to be amended so as
to be equal to the minimum period of limitations permitted by such law.
c. Other than in a state court of competent jurisdiction in and for the county
or other political subdivision of the state in which the Project, or any part
thereof, is situated, or in the United States District Court for the district
in which the Project, or any part thereof, is situated, and not elsewhere.
4. The amount of this bond shall be reduced by and to the extent of any payment
or payments made in good faith hereunder, inclusive of the payment by Surety of
mechanics' liens which may be filed of record against said improvement, whether
or not claim for the amount of such lien be presented under and against this
bond.
Signed and sealed this 1ST day of APRIL, 1998.
<TABLE>
<S> <C>
IROQUOIS CORPORATION
/s/ [SIG] /s/ [SIG] (President)
- --------------------------------------- ---------------------------------------
(Witness) (Principal) (Seal)
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
/s/ NANCY M. SMITH
- ---------------------------------------
NANCY M. SMITH (Witness) By: /s/ WILLIAM F. EZEKIEL, JR.
---------------------------------------
(Seal)
William F. Ezekiel, Jr. (Attorney-in-Fact)
</TABLE>
Page 2 of 2
<PAGE> 1
EXHIBIT 10.10
RETURN TO:
This Instrument prepared by:
Charles C. Chillingworth, Esq.
CHILLINGWORTH & CONWAY, P.A.
2090 Palm Beach Lakes Blvd., Suite 800
West Palm Beach, Florida 33409
ASSIGNMENT OF CONTRACT
KNOW ALL MEN BY THESE PRESENTS: That INDIGO INDUSTRIES INCORPORATED, TAX
I.D. #88-0270266, Assignor, in consideration of TEN AND 00/00 DOLLARS ($10.00),
hereby assigns unto INDIGO INDUSTRIES, INC., TAX I.D. #65-0767802, a Florida
corporation, Assignee, all the right, title and interest in that certain
Contract No. V527C-850 (IFB 527-30-96), Demolition of Water Tower and 3
Buildings at the VA St. Albans Extended Care Center, St. Albans, New York,
dated the 25th day of July, 1997, by and between Indigo Industries and the
Department of Veterans Affairs.,
IN WITNESS WHEREOF, the said Assignor has hereunto signed and sealed
these presents the day and year first above written.
<TABLE>
<S> <C>
ATTEST: INDIGO INDUSTRIES INCORPORATED
TAX I.D. #88-0270266, Assignor
/s/ HELEN K. FEKETE By: /s/ CHARLES C. CHILLINGWORTH
- --------------------------------------- ---------------------------------------
Helen K. Fekete, Secretary Charles C. Chillingworth, Vice President
</TABLE>
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that the foregoing instrument was sworn to, subscribed
and acknowledged before me this date by Charles C. Chillingworth and Helen K.
Fekete, Vice President and Secretary, respectively, of Indigo Industries
Incorporated, who are personally known to me, and who did not take an oath.
WITNESS my hand and official seal in the County and State last aforesaid
this 11th day of May, 1998.
<TABLE>
<S> <C>
/s/ JEANNE O. CONWAY
[SEAL] ---------------------------------------
Jeanne O. Conway
Notary Public
Commission Seal
</TABLE>
<PAGE> 2
<TABLE>
<S><C>
- -----------------------------------------------------------------------------------------------------------------------------------
1. THIS CONTRACT IS A RATED ORDER RATING PAGE OF
SOLICITATION, OFFER AND AWARD UNDER DPAS (15 CFR 350) > 1 PAGES
- -----------------------------------------------------------------------------------------------------------------------------------
2. CONTRACT NO. 3. SOLICITATION NO. 4. TYPE OF SOLICITATIONS 5. DATE ISSUED 6. REQUISITION/PURCHASE
[X] SEALED BID (IFB) 29 July 1996 NO.
V527C-850 527-30-96 [ ] NEGOTIATED (RFP) 527-C83475
- -----------------------------------------------------------------------------------------------------------------------------------
7. ISSUED BY CODE 8. ADDRESS OFFER TO (If other than Item 7)
Contracting Officer, (90C) -----------
DVA Medical Center Same as Block #7
800 Poly Place, Building 4
Brooklyn, New York 11209
- -----------------------------------------------------------------------------------------------------------------------------------
NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder".
- -----------------------------------------------------------------------------------------------------------------------------------
SOLICITATION
- -----------------------------------------------------------------------------------------------------------------------------------
9. Sealed offers in original and one copies for furnishing the supplies or services in the Schedule will be received at the place
specified in Item 8, or handcarried, in the depository located in (see Block #7) until 2:00pm local time 29 August 1996.
------ --------------
(Hour) (Date)
CAUTION - LATE Submissions, Modifications and Withdrawals: See Section L, Provision No. 52.214-7 or 52.215-10. All offers are
subject to all terms and conditions contained in this solicitation.
- -----------------------------------------------------------------------------------------------------------------------------------
10. FOR INFORMATION A. NAME B. TELEPHONE NO. (Include area code) (NO COLLECT CALLS)
CALL: > Jo Ann Petrillo (718) 630-3566
- -----------------------------------------------------------------------------------------------------------------------------------
11. TABLE OF CONTENTS
- -----------------------------------------------------------------------------------------------------------------------------------
[x] SEC. DESCRIPTION PAGE(S) [x] SEC. DESCRIPTION PAGE(S)
- -----------------------------------------------------------------------------------------------------------------------------------
PART I - THE SCHEDULE PART II - CONTRACT CLAUSES
- -----------------------------------------------------------------------------------------------------------------------------------
x A SOLICITATION/CONTRACT FORM 1 x I CONTRACT CLAUSES
- -----------------------------------------------------------------------------------------------------------------------------------
x B SUPPLIES OR SERVICES AND PRICES/COSTS 2-4 PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
x C DESCRIPTION/SPECS./WORK STATEMENT 5 x J LIST OF ATTACHMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
D PACKAGING AND MARKING N/A PART IV - REPRESENTATIONS AND INSTRUCTIONS
- -----------------------------------------------------------------------------------------------------------------------------------
E INSPECTION AND ACCEPTANCE N/A REPRESENTATIONS, CERTIFICATIONS AND
- ---------------------------------------------------------- K OTHER STATEMENTS OF OFFERORS
F DELIVERIES OR PERFORMANCE N/A x
- -----------------------------------------------------------------------------------------------------------------------------------
G CONTRACT ADMINISTRATION DATA N/A x L INSTRS., CONDS., AND NOTICES TO OFFERORS
- -----------------------------------------------------------------------------------------------------------------------------------
H SPECIAL CONTRACT REQUIREMENTS N/A M EVALUATION FACTORS FOR AWARD N/A
- -----------------------------------------------------------------------------------------------------------------------------------
OFFER (Must be fully completed by offeror)
- -----------------------------------------------------------------------------------------------------------------------------------
NOTE: Item 12 does not apply if the solicitation includes the provisions at 52.214-16, Minimum Bid Acceptance Period.
- -----------------------------------------------------------------------------------------------------------------------------------
12. In compliance with the above, the undersigned agrees, if this offer is accepted within 60 calendar days (60 calendar days unless
a different period is inserted by the offeror) from the date for receipt of offers specified above, to furnish any or all items
upon which prices are offered at the price shown opposite each item, delivered at the designated point(s), within the time
specified in the schedule.
- -----------------------------------------------------------------------------------------------------------------------------------
13. DISCOUNT FOR PROMPT PAYMENT 10 CALENDAR DAYS 20 CALENDAR DAYS 30 CALENDAR DAYS CALENDAR DAYS
(See Section I, Clause No. 52-232-8) 2% 1% 0% --
- -----------------------------------------------------------------------------------------------------------------------------------
14. ACKNOWLEDGEMENT OF AMENDMENTS AMENDMENT NO. DATE AMENDMENT NO. DATE
(The offeror acknowledges receipt -----------------------------------------------------------------------------------------
of amendments to the SOLICITATION A0001 8/16/96
for offerors and related documents -----------------------------------------------------------------------------------
numbered and dated:
- -----------------------------------------------------------------------------------------------------------------------------------.
NAME CODE FACILITY 16. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN
AND ---------- ---------- OFFER (Type or print)
ADDRESS INDIGO INDUSTRIES INCORPORATED
OF 37-61 39TH STREET CHARLES E. TASSLER
OFFEROR LONG ISL. CITY, N.Y. 11101 VICE PRESIDENT
- -----------------------------------------------------------------------------------------------------------------------------------
15B. TELEPHONE NO. (Include area 15C. CHECK IF REMITTANCE ADDRESS 17. SIGNATURE 18. OFFER DATE
code) [ ] IS DIFFERENT FROM ABOVE - ENTER /s/ CHARLES E. TASSLER 8/29/96
(718) 482-7878 SUCH ADDRESS IN SCHEDULE.
- -----------------------------------------------------------------------------------------------------------------------------------
AWARD (To be completed by Government)
- -----------------------------------------------------------------------------------------------------------------------------------
19. ACCEPTED AS TO ITEMS NUMBERED 20. AMOUNT 21. ACCOUNTING AND APPROPRIATION
Bid Item #1 $369,200.00 367-80160-8968/870040/230050143
- ---------------------------------------------------------------------------
22. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETI- ---------------------------------------------------
TION: 23. SUBMIT INVOICES TO ADDRESS SHOWN IN > ITEM
[ ] 10 U.S.C. 2304 (c)( ) [ ] 41 U.S.C. 253(c)( ) (4 copies unless otherwise specified) #7
- -----------------------------------------------------------------------------------------------------------------------------------
24. ADMINISTERED BY (If other than Item 7) CODE 25. PAYMENT WILL BE MADE BY CODE
----------- -----------
SAME AS Item #7
- -----------------------------------------------------------------------------------------------------------------------------------
26. NAME OF CONTRACTING OFFICER (Type or print) 27. UNITED STATES OF AMERICA 28. AWARD DATE
PHYLLIS LA MOTTE /s/ PHYLLIS LA MOTTE Feb 25, 1998
(Signature of Contracting Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
IMPORTANT - Award will be made on this Form, or on Standard Form 26, or by other authorized official written notice.
- -----------------------------------------------------------------------------------------------------------------------------------
7540-01-152-8064
</TABLE>
<PAGE> 3
<TABLE>
<S><C>
- -----------------------------------------------------------------------------------------------------------------------------------
1. CONTRACT ID CODE PAGE OF PAGES
AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT 1 8
- -----------------------------------------------------------------------------------------------------------------------------------
AMENDMENT/MODIFICATION NO. 3. EFFECTIVE DATE 4. REQUISITION/PURCHASE REQ. NO. 5. PROJECT NO. (If applicable)
A0001 16 August 1996 N/A 527-96-125Z
- -----------------------------------------------------------------------------------------------------------------------------------
6. ISSUED BY CODE 90C 7. ADMINISTERED BY (If other than Item 6) CODE
-------------- --------------
Contracting Officer (A&MM)
DVA Medical Center
800 Poly Place
Building 4
Brooklyn, New York 11209
- -----------------------------------------------------------------------------------------------------------------------------------
8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State and ZIP Code) [X] 9A. AMENDMENT OF SOLICITATION NO.
--- IFB 527-30-96
-----------------------------------------------
XX 9B. DATED (SEE ITEM 11)
29 July 1996
--------------------------------------------------
10A. MODIFICATION OF CONTRACT/ORDER
NO.
-----------------------------------------------
- -------------------------------------------------------------------------------- 10B. DATED (SEE ITEM 13)
CODE FACILITY CODE
- -----------------------------------------------------------------------------------------------------------------------------------
11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
[X] The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers [ ] is
extended, [XX] is not extended.
Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of
the following methods:
(a) By completing Items 8 and 15, and returning ONE copies of the amendment; (b) By acknowledging receipt of this amendment on each
copy of the offer submitted; or (c) By separate letter or telegram which includes a reference to the solicitation and amendment
numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE
SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted,
such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this
amendment, and is received prior to the opening hour and date specified.
- -----------------------------------------------------------------------------------------------------------------------------------
12. ACCOUNTING AND APPROPRIATION DATA (If required)
N/A
- -----------------------------------------------------------------------------------------------------------------------------------
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.
IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
- -----------------------------------------------------------------------------------------------------------------------------------
[X] A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT
- ---- ORDER NO. IN ITEM 10A.
- -----------------------------------------------------------------------------------------------------------------------------------
B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying offices,
appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b).
- -----------------------------------------------------------------------------------------------------------------------------------
C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:
- -----------------------------------------------------------------------------------------------------------------------------------
D. OTHER (Specify type of modification and authority)
- -----------------------------------------------------------------------------------------------------------------------------------
E. IMPORTANT: Contractor [ ] is not, [ ] is required to sign this document and return _____ copies to the issuing office.
- -----------------------------------------------------------------------------------------------------------------------------------
14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter
where feasible.)
The above referenced solicitation for demolition of a water tower, water tank, pump station and three (3) quarters buildings
is amended as follows:
A. THE BID OPENING DATE REMAINS 29 August 1996 at 2:00 PM.
B. Section I entitled CONTRACT CLAUSES mistakenly has a heading on each page referring to IFB 527-29-96 Replacement of
Chiller Unit, DVA Brooklyn. This was a typographical error. The heading should read "IFB 527-30-96, Demolition of Water
Tower, DVA ST. ALBANS"
(Continued on Page 2)
Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains
unchanged and in full force and effect.
- -----------------------------------------------------------------------------------------------------------------------------------
15A. NAME AND TITLE OF SIGNER (Type or print) 16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)
- -----------------------------------------------------------------------------------------------------------------------------------
15B. CONTRACTOR/OFFEROR 15C. DATE SIGNED 16B. UNITED STATES OF AMERICA 16C. DATE SIGNED
BY BY
---------------------------------------- ----------------------------------------
(Signature of person authorized to sign) (Signature of Contracting Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
STANDARD FORM 30 (REV. 10-31)
</TABLE>
<PAGE> 4
Solicitation 527-30-96
Amendment No. A0001
dated 16 August 1996 Page 2 of 8
C. In response to questions raised at the pre bid meeting and the discovery of
lead and additional asbestos containing materials, Addendum No. 1 to the
Specification is attached herewith and shall be incorporated into the
solicitation and resulting contract.
D. Bidders are advised that a Bid Guarantee is required in the amount of 20% of
the bid price for all bids in excess of $25,000. Refer to FAR clause 52.228-01
for further requirements concerning bid guarantees.
A Performance Bond and a Payment Bond are also required after contract award in
the amounts shown in the appropriate clauses in Section I of the solicitation.
E. Delete the FAR clause 52.249-02 entitled Termination for Convenience of the
Government (Fixed-Price) Alternate I and insert the following clause in its
place which hereby becomes a part of the solicitation and the resulting
contract.
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (DISMANTLING, DEMOLITION, OR
REMOVAL OF IMPROVEMENTS) (APR 1984) FAR 52.249-03
(a) The Government may terminate performance of work under this
contract, in whole or, from time to time, in part if the Contracting Officer
determines that a termination is in the Government's interest. The Contracting
Officer shall terminate by delivering to the Contractor a Notice of Termination
specifying the extent of termination and the effective date. Upon receipt of the
notice, if title to property is vested in the Contractor under this contract, it
shall revest in the Government regardless of any other clause of this contract,
except for property that the Contractor disposed of by bona fide sale or removed
from the site.
(b) After receipt of a Notice of Termination, and except as directed by
the Contracting Officer, the Contractor shall immediately proceed with the
following obligations, regardless of delay in determining or adjusting any
amounts due under this clause:
(1) Stop work as specified in the notice.
(2) Place no further subcontracts or orders (referred to as subcontracts in this
clause) for materials, services, or facilities, except as necessary to complete
the continued portion of the contract.
<PAGE> 5
Solicitation 527-30-96
Amendment No. A0001 Page 3 of 8
16 August 1996
(3) Terminate all subcontracts to the extent they relate to the work terminated.
(4) Assign to the Government, as directed by the Contracting Officer, all right,
title, and interest of the Contractor under the subcontracts terminated, in
which case the Government shall have the right to settle or to pay any
termination settlement proposal arising out of those terminations.
(5) With approval or ratification to the extent required by the Contracting
Officer, settle all outstanding liabilities and termination settlement proposals
arising from the termination of subcontracts; the approval or ratification will
be final for purposes of this clause.
(6) As directed by the Contracting Officer, transfer title and deliver to the
Government (i) the fabricated or unfabricated parts, work in process, completed
work, supplies, and other material produced or acquired for the work terminated,
and (ii) the completed or partially completed plans, drawings, information, and
other property that, if the contract has been completed, would be required to be
furnished to the Government.
(7) Complete performance of the work not terminated.
(8) Take any action that may be necessary, or that the Contracting Officer may
direct, for the protection and preservation of the property related to this
contract that is in the possession of the Contractor and in which the Government
has or may acquire an interest.
(9) Use its best efforts to sell, as directed or authorized by the Contracting
Officer, any property of the types referred to in subparagraph (6) above;
provided, however, that the Contractor (i) is not required to extend credit to
any purchaser and (ii) may acquire the property under the conditions prescribed
by, and at prices approved by, the Contracting Officer. The proceeds of any
transfer or disposition will be applied to reduce any payments to be made by the
Government under this contract, credited to the price or cost of the work, or
paid in any other manner directed by the Contracting Officer.
(c) After expiration of the plant clearance period as defined in subpart
45.6 of the Federal Acquisition Regulation, the Contractor may submit to the
Contracting Officer a list, certified as to quantity and quality, of termination
inventory not previously disposed of, excluding items authorized for disposition
by the Contracting Officer. The Contractor may
<PAGE> 6
Solicitation 527-30-96
Amendment No. A0001 Page 4 of 8
16 August 1996
request the Government to remove those items or enter into an agreement for
their storage. Within 15 days, the Government will accept title to those items
and remove them or enter into a storage agreement. The Contracting Officer may
verify the list upon removal of the items, or if stored, within 45 days from
submission of the list, and shall correct the list, as necessary, before final
settlement.
(d) After termination, the Contractor shall submit a final termination
settlement proposal to the Contracting Officer in the form and with the
certification prescribed by the Contracting officer. The Contractor shall submit
the proposal promptly, but no later than 1 year from the effective date of
termination, unless extended in writing by the Contracting Officer upon written
request of the Contractor within this 1-year period. However, if the Contracting
Officer determines that the facts justify it, a termination settlement proposal
may he received and acted on after 1 year or any extension. If the Contractor
fails to submit the proposal within the time allowed, the Contracting Officer
may determine, on the basis of information available, the amount, if any, due
the Contractor because of the termination and shall pay the amount determined.
(e) Subject to paragraph (d) above, the Contractor and the Contracting
Officer may agree upon the whole or any part of the amount to be paid because of
the termination. The amount may include a reasonable allowance for profit on
work done. However, the agreed amount, whether under this paragraph (e) or
paragraph (f) below, exclusive of settlement costs, may not exceed the total
contract price as reduced by (1) the amount of payments previously made and (2)
the contract price of work not terminated. The contract shall be amended and the
Contractor paid the agreed amount. Paragraph (f) below shall not limit,
restrict, or affect the amount that may be agreed upon to be paid under this
paragraph.
(f) If the Contractor and the Contracting Officer fail to agree on the
whole amount to be paid because of the termination of work, the Contracting
Officer shall pay the Contractor the amounts determined by the Contracting
Officer as follows; but without duplication of any amounts agreed on under
paragraph (e) above:
(1) For contract work performed before the effective date of termination, the
total (without duplication of any items) of
(i) The cost of this work;
<PAGE> 7
Solicitation 527-30-96
Amendment No. A0001 Page 5 of 8
16 August 1996
(ii) The cost of settling and paying termination settlement proposals under
terminated subcontracts that are properly chargeable to the terminated portion
of the contract, if not included in subdivision (i) above; and (iii) A sum, as
profit on subdivision (i) above, determined by the Contracting Officer under
section 49.202 of the Federal Acquisition Regulation, in effect on the date of
this contract, to be fair and reasonable; however, if it appears that the
Contractor would have sustained a loss on the entire contract had it been
completed, the Contracting Officer shall allow no profit under this subdivision
(iii) and shall reduce the amount of the settlement to reflect the indicated
rate of loss.
(2) The reasonable costs of settlement of the work terminated, including --
(i) Accounting, legal, clerical, and other expenses reasonably necessary for the
preparation of termination settlement proposals and supporting data;
(ii) The termination and settlement of subcontracts (excluding the amounts of
such settlements); and
(iii) Preservation and protection of property under subparagraph (b)(8) above.
(g) Except for normal spoilage, and except to the extent that the
Government expressly assumed the risk of loss, the Contracting Officer shall
exclude from the amounts payable to the Contractor under paragraph (f) above,
the fair value as determined by the Contracting Officer, of property that is
destroyed, lost, stolen, or damaged so as to become undeliverable to the
Government or to a buyer.
(h) The cost principles and procedures of part 31 of the Federal
Acquisition Regulation, in effect on the date of this contract, shall govern all
costs claimed, agreed to, or determined under this clause.
(i) The Contractor shall have the right of appeal, under the Disputes
clause, from any determination made by the Contracting Officer under paragraph
(d), (f), or (k), except that if the Contractor failed to submit the termination
settlement proposal within the time provided in paragraph (d) or (k) and failed
to request a time extension, there is no right of appeal. If the Contracting
officer has made a determination of the amount due under paragraph (d), (f), or
(k), the Government shall pay the Contractor (1) the amount determined by the
Contracting Officer, if there is no right of appeal or if no timely appeal has
been
<PAGE> 8
Solicitation 527-30-96
Amendment No. A0001 Page 6 of 8
dtd 16 August 1996
taken, or (2) the amount finally determined on an appeal.
(j) In arriving at the amount due the Contractor under this clause,
there shall be deducted -
(1) All unliquidated advance or other payments to the Contractor under the
terminated portion of this contract;
(2) Any claim which the Government has against the Contractor under this
contract; and
(3) The agreed price for, or the proceeds of sale of, materials, supplies, or
other things acquired by the Contractor or sold under the provisions of this
clause and not recovered by or credited to the Government.
(k) If the termination is partial, the Contractor may file a proposal
with the Contracting officer for an equitable adjustment of the price(s) of the
continued portion of the contract. The Contracting Officer shall make any
equitable adjustment agreed upon. Any proposal by the Contractor for an
equitable adjustment under this clause shall be requested within 90 days from
the effective date of termination unless extended in writing by the Contracting
Officer.
(1)(l) The Government may, under the terms and conditions it prescribes, make
partial payments and payments against cost incurred by the Contractor for the
terminated portion of the contract, if the Contracting Officer believes the
total of these payments will not exceed the amount to which the Contractor will
be entitled.
(2) If the total payments exceed the amount finally determined to be due, the
Contractor shall repay the excess to the Government upon demand, together with
interest computed at the rate established by the Secretary of the Treasury under
50 U.S.C. App 1215(b)(2). Interest shall be computed for the period from the
date the excess payment is received by the Contractor to the date the excess is
repaid. Interest shall not be charged on any excess payment due to a reduction
in the Contractor's termination settlement proposal because of retention or
other disposition of termination inventory until 10 days after the date of the
retention or disposition, or a later date determined by the Contracting Officer
because of the circumstances.
(m) Unless otherwise provided in this contract or by statute, the
Contractor shall maintain all records and documents relating to the terminated
portion of this contract for 3 years after final settlement. This includes all
books and other
<PAGE> 9
Solicitation 527-30-96
Amendment No. A0001 Page 7 of 8
dtd 16 August 1996
evidence bearing on the Contractor's costs and expenses under this contract. The
Contractor shall make these records and documents available to the Government,
at the Contractor's office, at all reasonable times, without any direct charge.
If approved by the Contracting Officer, photographs, microphotographs, or other
authentic reproductions may be maintained instead of original records and
documents.
(End of clause)
F. The following provisions are added to the solicitation. Each Bidder is
required to complete these certifications. Bidders are further reminded that all
representations and certifications shall be completed and submitted with their
bid, particularly the Procurement Integrity certification. Failure to do so will
render the bid non responsive and it will be rejected.
WOMEN-OWNED BUSINESS FAR 52.204-05 (OCT 1995)
(a) Representation. The offeror represents that it [ ] is, [ ] is not a
women-owned business concern.
(b) Definition. "Women-owned business concern," as used in this provision, means
a concern which is at least 51 percent owned by one or more women; or in the
case of any publicly owned business, at least 51 percent of the stock of which
is owned by one or more women; and whose management and daily business
operations are controlled by one or more women.
CERTIFICATION OF TOXIC CHEMICAL RELEASE REPORTING FAR 52.223-13 (OCT 1995)
(a) The offeror, by signing this offer, certifies that --
_______ (1) To the best of its knowledge and belief, it is not subject to the
filing and reporting requirements described in Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA) sections 313(a) and (g) and Pollution
Prevention Act (PPA) section 6607 because none of its owned or operated
facilities to be used in the performance of this contract currently --
_______ (i) Manufacture, process or otherwise use any toxic chemicals listed
under section 313(c) of EPCRA, 42 U.S.C. 11023(c).
_______ (ii) Have more than 10 or more full-time employees as specified in
section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A).
<PAGE> 10
Solicitation 527-30-96
Amendment No. A0001 Page 8 of 8
dtd 16 August 1996
_______ (iii) Meet the reporting thresholds in toxic chemicals established under
section 313(f) of EPCRA, 42 U.S.C. 11023(f) (including the alternate thresholds
at 40 CFR 372.27, provided an appropriate certification form has been filed with
EPA).
_______ (iv) Fall within Standard Industrial Classification Code (SIC)
designations 20 through 39 as set forth in FAR section 19.102.
_______ (2) If awarded a contract resulting from this solicitation, its owned or
operated facilities to be used in the performance of this contract, unless
otherwise exempt, will file and continue to file for the life of the contract
the Toxic Chemical Release Inventory Form (Form R) as described in EPCRA
sections 313(a) and (g) and PPA section 6607 (42 U.S.C. 13106).
(b) Submission of this certification is a prerequisite for making or
entering into this contract imposed by Executive order 12969, August 8, 1995 (60
FR 40989-40992).
Enclosure (1): Addendum No. 1 to Specification for Project No. 527-96-125Z
(3 pages)
<PAGE> 11
ADDENDUM NO. 1 to Specification for Project No. 527-96-125Z
EXISTING CONCRETE STRUCTURES AND FOUNDATIONS
A. Concrete demolition debris may be used as fill in the bottom of foundations
provided that the following conditions are met:
1. Only concrete debris from this project may be used. Use in any way of
concrete debris from projects other than the VA Water Tower Demolition
Project is strictly prohibited.
2. Remaining volume of foundation is to be backfilled with sand and 6" of
topsoil submit 5 lb. sample of each to VA engineer.
3. The origin of all backfill material must be documented and copies of
these documents must be submitted to the VA Engineer.
4. The finished grade around all demolished foundations must cover the
foundations by at least 2'.
5. All existing trees must be protected from damage.
6. The contractor is responsible to keep the construction site fenced in
at all times and to protect the surrounding neighborhood from damage due to
his demolition activity. Immediately following completion of work and prior
to final acceptance, the entire perimeter fence must be restored to its
pre-demolition condition.
7. Bidders are advised that the 100,000 gal water tower tank is empty and
the 600,000 underground concrete water storage tank is full.
PETROLEUM CONTAMINATED SOIL
1. Contractor shall remove a total of 30 yards of petroleum contaminated
soil. Veterans administration will retain an Industrial Hygienist who will
be on site during removal of soil. Industrial Hygienist will have a PID
(photo ionizer detector) in order to test soil in excavation to determine
the point at which no contaminated soil remains.
2. Contractor shall comply with all EPA, DEC, DEP, State, and Local
Regulations concerning handling and disposal of Petroleum contaminated
soil.
ADDITIONAL ASBESTOS INSULATION IN THREE RESIDENCE BUILDINGS
1. Contractor shall, in addition to asbestos pipe insulation, remove all
asbestos batting insulation in exterior walls of the three residence
buildings. The exact quantity (sq ft) of insulation shall be determined by
the contractor from the as built plans provided in the bid package.
2. Contractor shall comply with all EPA, DEC, DEP, State, and Local
Regulations concerning handling and disposal of asbestos material.
Page 1 of 3
<PAGE> 12
Lead Based Paint
A. General: Prior tests have indicated that materials impacted by the
demolition project have been coated with lead based paint. Therefore the
contractor is hereby made aware that all procedures, methodology and
personnel shall reflect this knowledge. To this effect the contractor
shall comply with all EPA, NESHAP, OSHA, state and local regulations
dealing with the handling and disposal of lead containing materials.
The contractor shall utilize all precautions including protective clothing
and respiratory protection needed to insure the safety and health of
persons working on this project. In addition the contractor shall take all
necessary precautions and procedures to protect the neighborhood and the
environment from lead as a result of this demolition project. This health
and safety plan shall be specific to the project and submitted to the VA
prior to performance of work.
B. Work Plan: Prior to performing work under this contract, the contractor
shall prepare and submit to the VA a detailed plan showing the methods and
procedure used to prevent contamination by the lead based paint during the
demolition process.
The contractor should be aware of the prevailing weather conditions so as
to prevent the transport and/or deposit of lead contaminated debris or
other windborne materials.
C. Permits, documentation and licenses: Prior to any work being performed the
contractor shall submit to the contracting officer copies of all
necessary training certificates, respiratory protection training and
procedures and/or other documentation that may be required by this
section.
Copies of all test results, manifests and/or other data shall be promptly
submitted to the VA.
Any and all facilities receiving lead contaminated materials shall be
appropriately permitted and copies of the permit shall be supplied to the
VA.
D. Clean up and housekeeping: During the work the contractor is responsible
to keep the area clean of any debris, waste or other material resulting
from the demolition process. All waste shall be containerized and
controlled and shall not be allowed to accumulate or contaminate persons,
areas or environment.
E. Disposal: The contractor is responsible to control, separate and
containerize all demolished materials and in general keep the work area
clean during and after all work
Addendum No. 1 Page 2 of 3
<PAGE> 13
procedures. Lead based painted asbestos containing exterior siding shall
be packaged and disposed of se lead contaminated waste.
All the materials that are to be wasted from the project shall be sampled
and tested and classified by the toxicity characteristic leaching
procedure (TCLP) for lead. The waste shall then be disposed of in a manner
consistent with federal, state and local regulation. The VA's
representative shall be made aware of the TCLP results and supplied with a
copy of the report prior to the removal of the waste from the facility.
Copies of all waste manifests will be supplied to the VA and become part
of the project documentation.
Addendum No. 1 Page 3 of 3
<PAGE> 14
[TYPE WAS CUT OFF ON THIS PAGE]
Addendum 1
<PAGE> 15
procedures. Lead based painted asbestos containing exterior siding shall
be packaged and disposed of as lead contaminated waste.
All the materials that are to be wasted from the project shall be sampled
and tested and classified by the toxicity characteristic leaching
procedure (TCLP) for lead. The waste shall then be disposed of in a manner
consistent with federal, state and local regulation. The VA's
representative shall be made aware of the TCLP results and supplied with a
copy of the report prior to the removal of the waste from the facility.
Copies of all waste manifests will be supplied to the VA and become part
of the project documentation.
Addendum No. 1 Page 3 of 3
<PAGE> 16
IFB 527-30-96
Demolition of Water
Tower
Page 2
SECTION B
SUPPLIES/SERVICES/PRICES
BID SHEET
BIDDERS SHALL INSERT BID PRICES BELOW
BASE BID
BID ITEM #1
Provide all labor, material & equipment necessary to completely demolish
and remove (3) quarters buildings, (1) water tower, (1) pump station, (1)
600,000 gallon underground water storage tank in accordance with the
specification and drawing listed in the list of attachments that form a
part of this solicitation.
LUMP SUM BID $369,200.00
--------------------------
ALTERNATE BID ITEMS
BID ITEM #2
Provide all labor, material & equipment necessary to perform all work in
Bid Item #1 with the exception of the demolition and asbestos abatement in
(1) Quarters Building.
The completion time for Bid Item #2 is 170 calendar days.
LUMP SUM BID $329,800.00
--------------------------
BID-ITEM #3
Provide all labor, material & equipment necessary to perform all work in
Bid Item #1 with the exception of the demolition and asbestos abatement in
(2) Quarters Building.
The completion time for Bid Item #2 is 160 calendar days.
LUMP SUM BID $290,400.00
--------------------------
<PAGE> 17
IFB 527-30-96
Demolition of Water
Tower
Page 3
BID ITEM #4
Provide all labor, material & equipment necessary to perform all work in
Item #1 with the exception of the demolition and asbestos abatement in (3)
Quarters Building.
The completion time for Bid Item #4 is 120 calendar days.
LUMP SUM BID $251,000.00
--------------------------
BID ITEM #5
Provide all labor, material & equipment necessary to perform all work in
Bid Item #1 with the exception of the demolition and asbestos abatement of
(3) Quarters Buildings, and the pump station.
The completion time for Bid Item #5 is 120 calendar days.
LUMP SUM BID $211,100.00
--------------------------
BID ITEM #6
Provide all labor, material & equipment necessary to perform all work in
Bid Item #1 with the exception of the demolition and asbestos abatement of
(3) Quarters, the pump station and the 600,000 gallon underground water
storage tank.
The completion time for Bid Item #6 is 80 calendar days.
LUMP SUM BID $67,100.00
--------------------------
<PAGE> 18
IFB 527-30-96
Demolition of Water
Tower
Page 4
NOTICE TO BIDDERS
It is the DVA's intention to award a single contract to the lowest
responsive, responsible bidder based on the following formula. Award will
be made on the Base Bid (Bid Item #1) unless insufficient funds are
available. In that case Award will be made on one of the Alternate Bid
Items in descending order depending upon the amount of funds available.
Example:- If the bid price for the Base Bid (Bid Item #1) exceeds the
amount of funds available, award will be made on Bid Item #2. If the bid
price for Bid Item #2 exceeds the amount of funds available, award will be
made on Bid Item #3 etc .....
<PAGE> 19
IFB 527-30-96
Demolition of
Water Tower
DVA ST. ALBANS
Page 5
SECTION C
DESCRIPTION OF WORK
This work will include furnishing all labor, supervision, materials,
equipment, and necessary transportation to completely demolish and remove
the existing water tower, 600,000 gallon underground water storage tank,
pump station and (3) Quarters Buildings located at the St. Albans Extended
Care Center located at 179th Street and Linden Blvd. in St. Albans,
Queens, New York. Work includes but is not limited to demolishing the
structures to a depth of 2' below grade; remove all asbestos insulation
and demolition debris, equipment, piping conduit contained in the
structures, cap remaining abandoned conduit and water (lines,
backfill,remaining foundations and compact soil with a vibratory roller;
plant grass and grade soil to a slope not to exceed 1:10 at any point on
the demolition site.
NOTICE TO BIDDERS: THE NUMBER OF STRUCTURES TO BE DEMOLISHED AND THE COMPLETION
TIME FOR ALL WORK WILL DEPEND ON THE BID ITEM AWARDED. IT IS THE GOVERNMENT'S
INTENTION THAT ALL STRUCTURES AWARDED TO BE DEMOLISHED SHALL BE DEMOLISHED
CONCURRENTLY.
<PAGE> 1
EXHIBIT 10.11
RETURN TO:
This Instrument prepared by:
Charles C. Chillingworth, Esq.
CHILLINGWORTH & CONWAY, P.A.
2090 Palm Beach Lakes Blvd., Suite 800
West Palm Beach, Florida 33409
ASSIGNMENT OF CONTRACT
KNOW ALL MEN BY THESE PRESENTS: That IROQUOIS CORP., a New York
corporation, Tax I.D. #11-3336072, Assignor, in consideration of TEN AND 00/00
DOLLARS ($10.00), hereby assigns unto IROQUOIS WRECKING CORP., a New York
corporation, Tax I.D. #11-3434589, Assignee, all the right, title and interest
in that certain Subcontract between Iroquois Corporation and Trataros
Construction, Inc., for the Structural and water intrusion repairs at
Williamsburg Houses (Contract No. DC9300004), dated the 26th day of March, 1998.
IN WITNESS WHEREOF, the said Assignor has hereunto signed and sealed these
presents this 17th day of April, 1998.
ATTEST: IROQUOIS CORP.,
a New York corporation, Assignor
/s/ HELEN K. FEKETE
- -------------------------------- By: /s/ NORMAN J. BIRMINGHAM
Helen K. Fekete, Secretary -------------------------------
Norman J. Birmingham, President
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that the foregoing instrument was sworn to, subscribed
and acknowledged before me this date by NORMAN J. BIRMINGHAM and HELEN K.
FEKETE, as President and Secretary, respectively, of IROQUOIS CORP., a New York
corporation, who are personally known to me, and who did not take an oath.
WITNESS my hand and official seal in the County and State last aforesaid
this 17th day of April, 1998.
/s/ JEANNE O. CONWAY
----------------------------
[SEAL] Jeanne O. Conway
Notary Public
<PAGE> 2
[TRATAROS CONSTRUCTION, INC. LETTERHEAD]
SUBCONTRACT AGREEMENT
This subcontract made this 17th day of March 1998, by and between
TRATAROS, the General Contractor (hereinafter "Contractor") and IROQUOI
CORPORATION 37-55 39th STREET, LONG ISLAND CITY, N.Y. 11101 hereinafter
"Subcontractor") (hereinafter collectively "Parties")
WITNESSETH:
WHEREAS, Contractor and New York City Housing Authority, 250 Broadway,
New York, NY 10007 (hereinafter "Owner") have entered into a contract for the
Structural and water intrusion repairs at Williamsburg Houses (Contract No.
DC9300004) (hereinafter "Project"), according to the Contract Documents listed
in Exhibit A attached hereto (hereinafter "Contract Documents") which are made
a part of this Subcontract insofar as they apply; and
WHEREAS, Contractor desires to subcontract certain work specified in the
Contract Documents, and Subcontractor desires to perform said work at the
prices and upon the terms and conditions hereinafter expressed:
NOW, THEREFORE, in consideration of the mutual agreements herein
expressed, the Parties contract as follows:
1. Subcontractor's Work
a. Subcontractor shall perform all work and shall furnish all
supervision, labor, materials, plant, hoisting, scaffolding, tools, equipment,
supplies and all other things necessary for the construction and completion of
the work described in Exhibit B (hereinafter "Work") and work incidental
thereto, in strict accordance and full compliance with the terms of this
Subcontract, and to the satisfaction of Contractor and Owner.
b. In respect of work covered by this Subcontract, and except as
expressly modified herein. Subcontractor shall have all rights which contractor
has under the Contract Documents, and Subcontractor shall assume all
obligations, risks and responsibilities which Contractor has assumed towards
Owner in the Contract Documents. Subcontractor shall have the right to enforce
its rights and remedies and to defend against claims against it by the Owner as
provided in Article 9.
2. Payment
a. Contractor shall pay Subcontractor for performance of the
Work, subject to additions and deductions by change order, approximately SEVEN
HUNDRED SIXTY THREE THOUSAND dollars ($763,000.00) (hereinafter "Subcontract
Price")
b. Partial payments shall be due Subcontractor in the amount of
95% of the Work in place, and for which payment has been made to Contractor by
Owner. If the Contract Documents allow Contractor partial payments for stored
materials, partial payments shall also be due Subcontractor in the amount of
95% of stored materials for which payment has been made to Contractor by Owner.
Subcontractor shall submit a breakdown of the total Subcontract Price in form
and detail acceptable to Contractor. In the event Contractor disapproves said
breakdown, Contractor shall establish a reasonable breakdown which shall serve
as the basis for partial payments. Partial payments to be made every two (2)
weeks as submitted based on progress.
c. Partial payments shall be due on or about the fifteenth day
following receipt of payment from Owner by Contractor. No partial payment made
under this Subcontract shall be considered an acceptance of the Work in whole
or in part. All material and Work covered by partial payments shall become the
property of Contractor, or, if the Contract Documents so provide, the property
of Owner, however, this provision shall not relieve Subcontractor from the sole
responsibility and liability for all Work and materials upon which payments
have been made until final acceptance thereof by Owner.
d. Subcontractor shall ensure that all sub-subcontractors,
employees and suppliers at all times, are paid all amounts due in connection
with the performance of this Subcontract. After the first partial payment
hereunder, Contractor shall have the right to withhold any subsequent partial
payments until Subcontractor submits evidence satisfactory to Contractor that
all previous amounts owed in connection with performance of this Subcontract
have been paid. In addition to the requirements for payment in the Contract, as
requested by Contractor, Subcontractor may be required to furnish with any
payment application (a) an affidavit stating that all obligations directly or
indirectly related to any payment have been paid, (b) a lien waiver for
Subcontractor and its subcontracts and suppliers in a form acceptable to
Contractor, and (c) certified copies of payrolls of Subcontractor and its
subcontractors. Subcontractor shall also immediately reimburse Contractor for
any amounts paid by Contractor or under Contractor's payment bond in connection
with this Subcontract caused by failure by Subcontractor to make payment as
provided in this Article. Contractor may withhold amounts otherwise due under
this Subcontract or any other contractual arrangement between the parties to
cover any costs or liability Contractor has incurred or may incur for which
Subcontractor may be responsible hereunder.
e. Subcontractor expressly agrees that payment by the Owner to
the Contractor for any Work performed by the Subcontractor is a condition
precedent to any payment by the Contractor to the Subcontractor and that the
Contractor is under no obligation until and unless the Contractor has been paid
by the Owner.
f. Final payment shall be made after Subcontractor's work has
been accepted by Owner, satisfactory proof of payment of all amounts owed by
Subcontractor in connection with this Subcontract has been provided, consent of
Subcontractor's surety has been received, the Subcontractor's Work is complete,
and Contractor has been paid in full for the Subcontractor's Work.
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Subcontract No: B02-02090 B
g. Subcontractor accepts exclusive liability for all taxes and
contributions required of Subcontractor by federal, state or local acts or
regulations, including, without limitation, the Federal Social Security Act and
the Unemployment Compensation Law or similar laws in any state with respect to
the employees of Subcontractor and the performance of the Work. Subcontractor
agrees to furnish Contractor with suitable written evidence that it has
fulfilled such obligation. Subcontractor shall indemnify and hold harmless
Contractor with respect to the payment of any such taxes of contributions under
any applicable act, law or regulation.
h. Contractor may withhold from any payment, including final
payment, such amount as Contractor, in its discretion, deems reasonably
necessary to protect itself against any actual or potential liability or damage
or indirectly relating to the Subcontract, or for any liability or damage for
which Subcontractor otherwise may be liable to Contractor.
3. Subcontractor's Investigations and Representations
Subcontractor represents that it is fully qualified to perform
this Subcontract, and acknowledges that, prior to the execution of this
Subcontract, it has (a) by its own independent investigation as ascertained (i)
the Work required by this Subcontract, (ii) the conditions involved in
performing the Work, and (iii) the obligations of this Subcontract and the
Contract Documents; and (b) verified all information furnished by the Contractor
or others satisfying itself as to the correctness and accuracy of that
information. Any failure by Subcontractor to independently investigate and
become fully informed will not relieve Subcontractor from its responsibilities
hereunder.
4. Subcontractors Liability
a. Subcontractor hereby assumes the entire responsibility and
liability for all Work, supervision, labor and materials provided hereunder,
whether or not erected in place, and for all plant, scaffolding, tools,
equipment, supplies and other things provided by Subcontractor until final
acceptance of the Work by Owner. In the event of any loss, damage or destruction
thereof from any cause, Subcontractor shall be liable therefor, and shall
repair, rebuild and make good said loss, damage or destruction at
Subcontractor's cost as directed by the contractor.
b. Subcontractor shall be liable for all costs Contractor incurs
as a result of Subcontractor's failure to perform this Subcontract in accordance
with its terms. Subcontractor's failure to perform shall include the failure of
its suppliers or subcontractors of any tier to perform. Subcontractor's
liability shall include, but not be limited to (1) damages and other delay costs
payable by Contractor to Owner; (2) Contractor's increased costs of performance,
delays or improper Subcontractor work; (3) warranty and rework costs; (4)
liability to third parties; and (5) attorneys' fees and related costs.
c. Indemnification
To the fullest extent permitted by law, the Subcontractor
shall indemnify, hold harmless and defend the Contractor, Owner and all of their
agents, directors and employees from and against all claims, damages, demands,
losses, expenses, causes of action, suits or other liabilities (including all
costs and reasonable attorneys' fees), arising out of or resulting from the
performance of Subcontractor's Work under the Subcontract, provided any such
claim, damage, demand, loss or expense is attributable to bodily injury,
personal injury, sickness, disease or death, or to injury to or destruction of
tangible property, including the loss of use resulting therefrom, to the extent
caused in whole or in part by any negligent act or omission of the Subcontractor
or anyone directly or indirectly employed by him or anyone for whose acts he may
be liable, regardless whether it is caused in part by a party indemnified
hereunder. This indemnification shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits payable by
or for the Subcontractor under any workers' compensation acts, disability
benefits acts or other employee benefits acts. This indemnification shall be in
addition to any indemnity liability imposed by the Contract Documents.
d. In the event that Subcontractor or any of its agents,
employees, suppliers, or lower-tier subcontractors utilizes any machinery,
equipment, tools, scaffolding, hoists, lifts or similar items belonging to or
under the control of Contractor, Subcontractor shall be liable to Contractor for
any loss or damage (including personal injury or death) which may arise from
such use, except where such loss or damage shall be due solely to the negligence
of Contractor's employees operating Contractor-owned or leased equipment.
e. Subcontractor's assumption of liability is independent from,
and not limited in any manner by, the Subcontractor's insurance coverage
obtained pursuant to Article 5, or otherwise.
5. Subcontractor's Insurance
Prior to commencing the Work, Subcontractor shall procure, with
Contractor and Owner as additional insured parties, and thereafter maintain, at
its own expense, until final acceptance of the Work, insurance coverage as more
fully described in Exhibit C in a form and from insurers acceptable to
Contractor.
6. Time Performance
a. Subcontractor will proceed with the Work in a prompt and
diligent manner, in accordance with Contractor's schedule, as reasonably amended
from time to time. TIME IS OF THE ESSENCE. Subcontractor shall be entitled to
additional compensation for compliance with schedule amendments only to the
extent, if any, that the Contract Documents entitle Contractor to reimbursement.
b. If requested by Contractor, Subcontractor Shall submit a
detailed schedule for performance of the Subcontract, in a form acceptable to
Contractor, which shall comply with all scheduling requirements of the Contract
Documents and with Article 6. a. above. Contractor may, at its sole discretion,
direct Subcontractor to make reasonable modifications and revisions in said
schedule.
c. Subcontractor will coordinate its work with the work of the
Contractor, other subcontractors, and Owner's other builders, if any, so no
delays or interference will occur in the completion of any part or all of the
Project.
d. Should the Subcontractor's performance of this Subcontract be
delayed, impacted or disrupted by any acts of the Contractor, other
subcontractors, or the Contractor's suppliers, or delayed, impacted or disrupted
by any acts or causes which would entitle Contractor to an extension of time
under the Contract Documents, the Subcontractor shall receive an equitable
extension of time for the performance of this Subcontract, but shall not be
entitled to any increase in the Subcontract Price or to damages or additional
compensation as a consequence of such delays, disruptions, or acceleration
resulting therefrom unless the Owner is liable and pays Contractor for such
delays, impacts, disruptions, or acceleration. Contractor will pay the
Subcontractor the amount allowed and paid by the Owner for the Subcontractor's
delay, impact, disruption or acceleration. Within five (5) days after the
commencement of any delay, impact or disruption, or acceleration caused by
Contractor, other subcontractors, or the Contractor's suppliers, the
Subcontractor shall notify Contractor in writing stating full details of the
cause of the alleged delay, impact, disruption or disruptions or acceleration
for which the Owner is responsible in sufficient time so that its claim may be
timely processed against the Owner.
7. Changes and Claims
a. Contractor may, at any time, unilaterally or by agreement with
Subcontractor, and without notice to the sureties, make changes in the Work
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Subcontract No: B02-02090 B
covered by the Subcontract. Any unilateral change or agreement, under this
Article 7.a. shall be in writing. Subcontractor shall perform the Work as
changed without delay.
b. Subcontractor shall submit in writing any claims for
adjustment in the price, schedule or other provisions of the Subcontract claimed
by Subcontractor for changes directed by Owner, or for damages for which the
Owners liable, or as a result of deficiencies or discrepancies in the Contract
Documents, to Contractor in time to allow Contractor to comply with the
applicable provisions of the Contract Documents. Contractor shall process said
claims in the manner provided by and according to the provisions of the Contract
Documents so as to protect the interests of Subcontractor and others including
Contractor. Subcontract adjustments shall be made only to the extent that
Contractor receives relief from or must grant relief to Owner. Further, each
Subcontract adjustment shall be equal in laid Subcontractor's allocable share of
any adjustment in Contractor's contract with owner. Subcontractor's allocable
share shall be determined by Contractor, after allowance of Contractor's normal
overhead, profit and other interest in any recovery, by making a reasonable
apportionment, if applicable, among Subcontractor, Contractor and other
subcontractors or persons with interest in the adjustment. This paragraph will
also cover other equitable adjustments or other relief allowed by the Contract
Documents.
c. For changes ordered by Contractor independent of Owner of
Contract Documents, Subcontractor shall be entitled to equitable adjustment in
the Subcontract Price if Subcontractor submits in writing to Contractor its
claim within five (5) days of the beginning of the event for which claim is
made.
d. Pending resolution of any claim, dispute or other controversy
nothing shall excuse Subcontractor from proceeding with prosecution of the
Subcontract Work.
e. Subcontractor shall indemnify and hold Contractor harmless
from any cost, expense, fine or liability resulting from a claim or claim
certification deemed wrongful in whole or in part.
8. Subcontractor's Failure to Perform.
a. If in the opinion of Contractor, Subcontractor shall at any
time (1) refuse or fail to provide sufficient properly skilled workmen or
materials of the proper quality, (2) fail in any respect to prosecute the Work
according to the current schedule, (3) cause, by any action or omission, the
stoppage, delay of, or interference with the work of Contractor or of any other
builder or subcontractor, (4) fail to comply with all provisions of this
Subcontract or the Contract Documents, (5) be adjudged a bankrupt, or make a
general assignment for the benefits of its creditors, (6) have a receiver
appointed, or (7) become insolvent or a debtor in reorganization proceedings,
then, after serving three (3) days' written notice, unless the condition
specified in such notice shall have been eliminated within such three (3) days,
the Contractor may at its option (i) without voiding the other provisions of the
Subcontract and without notice to the sureties, take such steps as are necessary
to overcome the condition, in which case the Subcontractor shall be liable to
Contractor for the cost thereof, or (ii) terminate the Subcontract for default,
or (iii) seek specific performance of Subcontractor's obligations hereunder, it
being agreed by Subcontractor that specific performance may be necessary to
avoid irreparable harm to Contractor and/or Owner. In the event of termination
for default, Contractor may, at its option, (1) enter on the premises and take
possession, for the purpose of completing the Work, of all materials and
equipment of Subcontractor, (2) require Subcontractor to assign to Contractor
any or all of its subcontracts or purchase orders involving the Project, or (3)
complete the Work either by itself or through others, by whatever method
Contractor may deem expedient. In case of termination for default, Subcontractor
shall not be entitled to receive any further payment until the Work shall be
fully completed and accepted by Owner. At such time, if the unpaid balance of
the Subcontract Price to be paid shall exceed the expense incurred by
Contractor, including an overhead fee of ten percent (10%) of the costs of
finishing the Work, such excess shall be paid by Contractor to Subcontractor. If
such amount due Contractor shall exceed such unpaid balance, then Subcontractor
shall pay Contractor the difference within five (5) business days following
demand by Contractor. Subcontractor shall pay all reasonable costs of
collection, if any.
b. If Contractor wrongfully terminates Subcontractor under
Article 8, the termination shall be deemed to be a termination for convenience,
as provided in Article 13.
9. Settlement and Disputes
a. In case of any dispute between Contractor and Subcontractor,
due to any action of Owner or involving the Contract Documents, Subcontractor
agrees to be bound to the same extent that Contractor is bound to Owner, by the
terms of the Contract Documents, and by any and all preliminary and final
decisions or determinations made thereunder by the party, board or court so
authorized in the Contract Documents or by law, whether or not Subcontractor is
a party to such proceedings. In case of such dispute, Subcontractor will comply
with all provisions of the Contract Documents allowing reasonable time for
contractor to analyze and forward to Owner any required communications or
documentation. Contractor will, at its option (1) present to Owner, in
Contractor's name, or (2) authorize Subcontractor to present to Owner in
Contractor's name, all of Subcontractor's claims and answer Owner's claims
involving Subcontractor's Work, whenever Contractor is permitted to do so by the
terms of the Contract Documents. If such dispute is prosecuted or defended by
Contractor, Subcontractor agrees to furnish all documents, statements,
witnesses, and other information required, and to pay or reimburse Contractor
for all coss, including attorneys' fees, incurred in connection therewith. The
Subcontract Price shall be adjusted by Subcontractor's allocable share
determined in accordance with Article 7 hereof.
b. With respect to any controversy between Contractor and
Subcontractor not involving Owner or the Contract Documents, Contractor shall
issue a decision which shall be followed by Subcontractor. If the Subcontractor
is correct as to the controversy, Subcontractor shall be entitled to an
equitable adjustment in the Subcontract Price as its sole remedy. Notification
of any such claim for equitable adjustment must be asserted in writing within
ten (10) days of Subcontractor's knowledge of the claim.
c. Anything to the contrary in the Contract Documents
notwithstanding, any controversy between Contractor and Subcontractor not
involving Owner or the Contract Documents and which is not amicably resolved by
the Parties will be submitted to a court of competent jurisdiction in the State
of New York, 2nd department, County of Kings. In no event will any such
controversy be submitted to arbitration, except at the sole option of
Contractor.
10. Warranty
Subcontractor warrants its Work hereunder to Contractor on the
same terms, and for the same period, as Contractor warrants to Owner under the
Contract Documents, and with respect to Subcontractor's Work, Subcontractor
shall perform all warranty obligations and responsibilities assumed by
Contractor under the Contract Documents.
11. Liens
a. In the event that liens are filed by anyone in relation to the
labor or material being furnished by Subcontractor, Subcontractor and its surety
agree to protect, indemnify and hold harmless Contractor and Owner therefrom, to
have the same discharged or removed, by posting a bond with the appropriate
authorities, or otherwise, at its own cost and expense (including attorneys'
fees) within five (5) days of notice. In the event such lien is not so
discharged, such circumstance shall be deemed a failure to perform the Work on
the part of the Subcontractor, subject to the conditions and terms set forth in
Article 8 above.
b. Subcontractor shall, as often as required by Contractor,
furnish a sworn statement showing all Parties who furnish labor or material to
Subcontractor, with their names and addresses and the amount due or to become
due to each. Like statements may be required from any subcontractors or vendors,
of any tier, of Subcontractor.
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Subcontract No: B02-02090 B
c. Prior to final payment, Subcontractor shall provide to
Contractor a release of its liens and claims and all liens and claims of all
persons furnishing labor or materials for the performance of the Subcontractor
in the form acceptable to Contractor, and satisfactory evidence that there are
no other liens or claims whatsoever outstanding against the Work.
d. If required by Contractor, Subcontractor shall furnish
releases of liens with respect to all prior payments, as part of each request
for partial payment other than the initial request.
12. Inspection and Acceptance
Subcontractor shall provide appropriate facilities at all
reasonable times for inspection by Contractor or Owner of the Work and materials
provided under this Subcontract whether at the Project site or at any place
where such Work or materials may be in preparation, manufacture, storage, or
installation. Subcontractor shall promptly replace or correct any Work or
materials which Contractor or Owner shall reject as failing to conform to the
requirements of this Subcontract. The Work shall be accepted according to the
terms of the Contract Documents. However, unless otherwise agreed in writing,
entrance and use by Owner or Contractor shall not constitute acceptance of the
Work.
13. Termination for Convenience
Contractors shall have there right to terminate this Subcontract,
in whole or in part, for convenience, if there is a termination of Contractor's
contract with Owner, by providing Subcontractor with a written notice of
termination, to be effective upon receipt by Subcontractor. If the Subcontract
is terminated for convenience, the Subcontractor shall be paid the amount
representing costs which are due from the Owner for its Work, as provided in the
Contract Documents, after payment therefore by the Owner to Contractor. The
Subcontractor's remedy under this Article 13 shall be exclusive. Nothing herein
shall bar withholdings by Contractor permitted by other provisions of the
Subcontract.
14. Approvals
a. Subcontractor shall deliver to Contractor copies of shop
drawings, cuts, samples and material lists required by Contractor or the
Contract Documents and in accordance with the Contract Documents within
sufficient time so as not to delay performance of the Project or within
sufficient time for contract or to submit same within the time stated in the
Contract Documents, whichever is earlier. Any deviation from the Contract
Documents shall be clearly identified on shop drawings.
b. Contractor's review of shop drawings, cuts, samples and
material lists is only for the convenience of the Owner and shall not relieve
the Subcontractor of its obligation to perform the Work in strict accordance
with Contract Documents, including addenda, or the proper matching and fitting
of the work with contiguous Work. In the event that discrepancies exist in the
contract documents which preclude proper matching and fitting of the work with
contiguous work the subcontractor shall at the contractor's direction make the
necessary changes to effect proper matching and fitting with contiguous work.
There will be no change in contract price unless the owner issues a contract
modification. Should the proper and accurate performance of the Work included in
this Subcontract depend upon the proper and accurate performance of other work
not included in this Subcontract, Subcontractor shall use all necessary means to
discover defects in such other work and shall report the said defects in writing
to contractor before proceeding with the Work, and shall allow the Contractor a
reasonable time to remedy such defects.
c. Subcontractor warrants and agrees that it can and will obtain
all requisite approvals from Owner as to its eligibility to serve as a
subcontractor and the approvals of all materials and performance of the Work as
required by the Contract Documents.
15. Cleanup
Subcontractor shall cleanup its Work and remove all debris
resulting from its Work in a manner that will not impede either the progress of
the Project or of other trades. If Subcontractor fails to comply with this
Article within 24 hours after receipt of notice of noncompliance from
Contractor, Contractor may perform such necessary clean-up and deduct the cost
from any amounts due to Subcontractor. See Exhibit B (paragraph 2N).
16. Assignment
Subcontractor shall not sub-subcontract the Work of this
Subcontract and shall not assign or transfer this Subcontract, or funds due
hereunder, without the prior written consent of Subcontractor and
Subcontractor's surety. Contractor shall not unreasonably withhold its consent
to the assignment of funds due hereunder.
17. Patents and Royalties
Except as otherwise provided by the Contract Documents,
Subcontractor shall pay all royalties and license fees which may be due on the
inclusion of any patented materials in the Work. Subcontractor shall defend all
suits or claims for infringement of any patent rights that may be brought
against Contractor or Owner arising out of the Work, and shall be liable to
contractor and Owner for all loss, including all costs and expenses, on account
thereof.
18. Taxes and Permits
Except as otherwise provided by the Contract Documents,
Subcontractor agrees to pay and comply with and hold Contractor harmless against
the payment of all contributions, taxes or premiums which may be payable by it
under federal, state or local laws arising out of the performance of this
Subcontract, and all sales, use or other taxes of whatever nature levied or
assessed against Owner, Contractor, or Subcontractor arising out of this
Subcontract, including any interest or penalties. Subcontractor shall obtain and
pay for all permits, licenses, fees and certificates of inspection necessary for
the prosecution and completion of its Work and shall arrange for all necessary
inspections and approvals by public officials.
19. Laws, Regulations and Ordinances
Subcontractor agrees to be bound by, and, at its own cost, comply
with all Federal, state and local laws, ordinances and regulations to this
Subcontract and the performance of the Work hereunder including the Occupational
Safety and Health Act of 1970. Subcontractor shall be duly licensed to operate
under the law of the applicable jurisdictions. Subcontractor shall be liable to
Contractor and Owner for all loss, cost and expense attributable to any acts of
commission or omission by Subcontractor, its employees and agents resulting from
failure to comply including, but not limited to, any fines, penalties or
corrective measures.
20. Labor
a. Subcontractor and its lower-tier subcontractors shall not
employ anyone in Subcontract Work whose employment may be objected to by
Contractor or Owner.
b. Should any workers performing work covered by this Subcontract
engage in a strike or other work stoppage or cease to work due to picketing or a
labor dispute of any kind, said circumstances shall be deemed a failure to
perform the Work on the part of the Subcontractor subject to the conditions and
terms set forth in Article 8 above.
21. Equal Opportunity
a. In connection with the performance of Work under this
Subcontract, Subcontractor agrees not to discriminate against any employee or
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Subcontract No: B02-02090 B
applicant for employment because of race, religion, sex, handicap, color or
national origin. The aforesaid provision shall include, but not be limited to,
the following: employment, upgrading, demotion or transfer, recruitment or
adversely layoff or termination; rates of pay or other forms of compensation,
and selection for training, including apprenticeship. Subcontractor agrees to
post hereafter, in conspicuous places, available or employees and applicants for
employment, notices, prepared by Subcontractor, and approved by the government
when required, setting forth the provision of this Article 21.
b. Subcontractor shall permit access to its books, records and
accounts by representatives of Contractor or Owner for purposes of investigation
to ascertain compliance with the provisions of this Article 21.
c. In the event of Subcontractor's non-compliance with the equal
opportunity provisions of this Subcontract, this Subcontract may be terminated
for default.
d. Subcontractor shall include the provisions of this Article 21
in every lower-tier subcontract and purchase order. The requirements of this
Article 21 shall be in addition to any equal opportunity provisions of the
Contract Documents.
22. Notices
All notices shall be addressed to the Parties at the addresses
set out herein, and shall be considered as delivered when postmarked, if
dispatched by registered mail, or when received in all other cases.
23. Safety
Subcontractor agrees that the prevention of accidents to workers
engaged in the Work is the responsibility of the Subcontractor. Subcontractor
agrees to comply with all labor department laws, regulations and codes
concerning safety as shall be applicable to the Work and to the safety standards
established during the progress of the Work by the Contract. When so ordered,
the Subcontractor agrees to stop any part of the Work which the Contractor deems
unsafe until corrective measures satisfactory to the Contractor have been taken,
and further agrees to make no claim for damages growing out of such Work
stoppages. Should the Subcontractor neglect to adopt such corrective measures,
Contractor may perform them and deduct the cost from payments due or to become
due to Subcontractor. Failure on the part of Contractor to stop unsafe practices
shall in no way relieve Subcontractor of its responsibility.
24. Severability
The partial or complete invalidity of any one or more provisions
of this Subcontract shall not affect the validity or continuing force and effect
of any other provision. The failure of either party to insist, in any one or
more instances, upon the performance of any of the terms, covenants, or
conditions of this Subcontract, or to exercise and right herein, shall not be
construed as a waiver or relinquishment of such term, covenant, condition or
right as respects further performance.
25. Governing Law
This Subcontract shall be governed by and construed in accordance
with the laws of the State of New York.
26. Advertising
Neither Subcontractor, its subcontractors, suppliers nor
employees shall take photographs of the Work on site, or publish or display
advertising matter of any description relating to the Project without first
obtaining the written consent of Contractor and Owner.
27. Bond
This contract includes the cost of a payment and performance bond
in the amount of $3,000,000.00 which is to be maintained as each building is
completed.
28. Execution
The Subcontract is signed and received by a legal representative
of the Subcontractor authorized to bind Subcontractor, be it individual,
partnership or corporation, to all terms of this Subcontract. Should this
Subcontract, because of the manner of execution, not be legally binding upon the
Subcontractor for any reason whatsoever, all Work under this Subcontract shall
be performed at the risk of the Subcontractor, and, should this Subcontract be
voided due to improper execution, Subcontractor agrees to waive all claims for
compensation for Work performed.
29. Complete Agreement
This Subcontract contains the entire agreement between the
Parties hereto with respect to the matters covered herein. No other agreements,
representations, warranties, or other matters, oral or written, shall be deemed
to bind the Parties hereto.
IN WITNESS WHEREOF, the Parties, by their duly authorized
representatives, have hereunto executed this Subcontract, on the day and year
and above written.
Exhibits: A - Contract Documents; B - Scope of Work; C -
Insurance; D Partial Lien Waivers; E - Final Release; F - Rider to All
Subcontracts and/or Purchase Orders.
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Subcontractor: Iroquois Corporation Trataros Construction
- ---------------------------------- ---------------------
By: /s/ PHILIP SCHWAB By: COSTAS N. TRATAROS
- ---------------------------------- ----------------------
Philip Schwab Costas N. Trataros/President
Witness: Witness:
- ---------------------------------- ----------------------
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EXHIBIT A
LIST OF CONTRACT DOCUMENTS
CONTRACT NO. DC9300004
Subcontractor's attention is specifically directed to the following contract
specification sections which are incorporated herein:
A. Special Notice to Contractors
Par. 1 Liquidation Damages
Par. 3 Incorporation of Contract Documents
Par. 7 Commencement of Physical Work
B. Instructions to Bidders
Par. 4 Incorporation of Contract Documents
Par. 12 A through F Equal Employment Opportunity
Par. 13 For Federally Funded Contracts
C. Form of Proposal
D. General Conditions
E. Amendments to General Conditions
Par. 13 Time of Completion
Par. 46 Hours of Work
F. Supplementary General Conditions
G. Special Conditions
Par. 5 Resident Employment and Business Opportunity
The contract work to be performed pursuant to this contract with the
Authority is assisted under the Comprehensive Grant Program which
provides direct Federal Assistance from HUD and is subject to the
requirements of Section 3 of the Housing and Urban Developments Act of
1968, as amended, 12 U.S.C. 1701u ("Section 3"), as amended by the
Housing and Community Developments Act of 1992. Section 3 requires
that to the greatest extent feasible, opportunities for job training
and employment be given to lower income residents of the areas of the
Section 3 Covered Project, and contracts for work in connection with
the contract work shall be awarded to business concerns which are
located in or owned in substantial part by persons residing in the
areas of the Section 3 Covered Project.
I. General Requirements - Division 1
Section 01340 Submittals and Substitutions
Section 01500 Temporary Facilities
Par. 1.4B Horizontal Scaffolding
Par. 1.4C Hanging Scaffolding
Par. 1.4G Names of Manufacturers, and Suppliers
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Addendums
The following Addenda have been issued for this contract.
Addendas include both notes and sketches SK-1 thru SK-39 A-O
Addendum No. 1. dated 9/15/1993
Addendum No. 2. dated 10/14/1993
Addendum No. 3. dated 12/02/1993
Addendum No. 4. dated 1/10/1994
Addendum No. 5. dated 1/25/1994
Specifications Sections:
01040 Project Coordination
02050 Selective Demolition
Drawings
T-001 Title Sheet
T-002 Drawing Index
T-003 General Notes, Loading Criteria and Finish Schedule
G-001 Site Plan and Site Notes
G-002 Block I Site Plan and Notes
G-003 Block II Site Plan
G-004 Block III Site Plan
G-005 Block IV Site Plan
100 Building Elevations
G-101 Bldg #1 Elevation Part A
G-102 Bldg #1 Elevation Part B
G-103 Bldg #2 Elevation Part A
G-104 Bldg #2 Elevation Part B
G-105 Bldg #3 Elevation Part A
G-106 Bldg #3 Elevation Part B
G-107 Bldg #4 Elevation Part A
G-108 Bldg #4 Elevation Part B
G-109 Bldg #5 Elevation Part A
G-110 Bldg #5 Elevation Part B
G-111 Bldg #6 Elevation Part A
G-112 Bldg #6 Elevation Part B
G-117 Bldg #9 Elevation Part A
G-118 Bldg #9 Elevation Part B
G-301 Roof Plan Bldg # 1, 2, 5, & 6
G-302 Roof Plan Bldg #3, 4, 7, 8, 11, 12, 17 & 18
G-303 Roof Plan Bldg #9, 10, 14, 15, 16 & 20
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STRUCTURAL AND WATER INTRUSION REPAIR AT
WILLIAMSBURG HOUSES
EXHIBIT B
SCOPE OF WORK
CONTRACT NO. DC9300004
A. SCOPE OF WORK
Without restricting the generality of work which shall be performed within
the contract price, it is clearly understood and agreed that the
Subcontractor shall provide all material, labor, trucking, hoisting,
engineering, scaffolding, power hookups, protection, shop drawings,
permits, layout, warranties, submittals, equipment, supervision,
insurance, etc., necessary for the furnishing and installation of all
specified and related work contained herein in accordance with the
Contract Drawings, Specifications and Amendments, all of which become part
of this Subcontract.
The Scope of Work shall include, but not be limited to, all the work in the
following Specification Section(s), except such work as may be specifically
excluded in Paragraph "B" "WORK NOT IN SUBCONTRACT."
Specification Section(s) - General Conditions and Amendments
Supplementary General Conditions
Special Conditions
01040 - Project Coordination
02050 - Selective Demolition
Subcontractor shall be responsible for examining all of the Documents listed on
the "List of Drawings and Specifications (EXHIBIT A)" and all items related to
this subcontractor's and called for in these documents shall be included in
Subcontract price.
In addition to the above Specification, this Subcontractor's work will include
but not be limited to the following items, clarifications and/or modifications.
Provide all materials, equipment and labor for the demolition of work
in seven buildings, in strict conformance with the contract
documents. Specifically, the work includes but is not limited to the
removal and disposal of the following:
1. Existing face brick on BLDG. #1, 2, 3, 4, 5, 6 & 9 including
parapets, firewalls, areaways, terra cotta copings, metal parapet
rails, aluminum rails at low roofs, entire bulkhead parapets, etc.
2. Existing precast copings at stair bulkheads.
3. Existing chimney's at selected buildings. 3 Total
4. Existing canopies including light fixtures. 6 buildings
5. Brick anchors from all buildings noted above.
6. "Snots" from back-up terra cotta walls in preparation for the
application of parging.
7. All excess mortar from columns, spandrels, etc.
8. Horizontal reinforcement from the roof column extensions.
9. The complete removal of caulking from window frames.
10. In the prosecution of the above work, the subcontractor must
provide all necessary protection in accordance with the contract
documents and must remove and dispose of the demolition debris on a
daily basis, using water to control dust as required.
11. The Subcontractor shall provide all chutes and water hoses as
necessary.
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<PAGE> 11
__________ will be provided by the general contractor up to the height of
the parapet walls. For bulkhead and chimney _____ demo, Trataros
Construction will provide the scaffolding, and Iroquois Corporation will
effect and dismantle same ______ required.
12. Contract price includes an allowance of 5 to 10 broken windows per
building by this subcontractor. Any more breakage of windows per building
will be charged to this subcontractor's account.
13. The Subcontractor represents that he is familiar with, and has the
experience in the scope of this work. The Subcontractor has visited and
carefully examined the project site and is familiar with the existing
conditions, quantities of work and difficulties that may affect the
execution of own work. Subcontractor agrees that this Subcontract
agreement includes all work for that scope as may be required to make a
complete job which may be fully defined in the contract documents.
B. WORK NOT IN SUBCONTRACT
1. Containers for rubbish removal, but subcontractor will clean on a
daily basis and place debris and rubbish in containers furnished by others;
C. TIME OF PERFORMANCE
This Subcontractor understands the Project Schedule provided by owner.
Subcontractor shall immediately expedite the submission of shop drawing
samples and ordering of materials and equipment so that work of this
Subcontract shall be installed in sufficient time to comply with the
Project Construction Schedule. This Subcontractor agrees that the
following specific scheduling intervals shall be maintained by him and
coordinated with other trades provided that the work of others has
advanced sufficiently to permit the sequencing as called for:
1. Work under this Subcontract shall commence immediately upon receipt of
instructions from the General Contractor and shall proceed when and
where directed, with sufficient labor and manpower, to allow the
entire Project to be completed in accordance with the Project
Construction Schedule. The work under this Subcontract shall be
coordinated with the work of other trades in order not to delay the
progress of the job. The Subcontractor shall follow all interim
schedules that may be issued by the General Contractor as the job
conditions require.
2. Due to the aggressive schedule provided by owner, all drawings,
schedules, literature, samples, certifications, schedule of values,
etc. as required by specifications shall be submitted immediately so
as not to delay project schedule.
3. The Subcontractor understands that work of this trade may not be
continuous and that he may be required to work out of sequence and/or
leave a portion of work out due to coordination at the direction of
the General Contractor. There shall be no charges for "comeback time"
or out of sequence work.
4. The Subcontractor shall be prepared to commence his work as directed
by General Contractor provided that the work of others has advance
sufficiently to permit such a start and shall be capable of
completing his work in accordance with the Project Construction
Schedule.
D. PERFORMANCE AND PAYMENT BONDS
Performance and payment bonds for Subcontractor's work shall be provided
by the Subcontractor and are to be issued by a U.S. Department of Treasury
listed bonding company acceptable to the general contractor for the full
amount of the subcontract. The cost is to be borne by the subcontractor,
and will be paid the sum of $22,890.00 when the bond is submitted (3%).
Two party check upon receipt of invoice.
Page 10
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Subcontract No: B02-02090 B
STRUCTURAL AND WATER INTRUSION REPAIRS AT
WILLIAMSBURG HOUSES
EXHIBIT C
INSURANCE AND INDEMNIFICATION RIDER
CONTRACT No. DC 9300004
INSURANCE AND INDEMNIFICATION RIDER
Prior to commencement of any work under this Contract and until all obligations
under this contract are fulfilled, the subcontractor and each and every lower
tier Subcontract of the Subcontractor shall, at its sole expense, maintain the
following insurance on its own behalf and furnish to Trataros Construction, Inc.
(hereinafter referred to as "Contractor"), certificates of insurance evidencing
same and reflecting the effective date of such coverage as follows:
The term "Subcontractor" as used in this insurance rider, shall mean and include
Subcontractors of every tier.
Subcontractor shall, at its own expense, maintain in effect until final
completion and acceptance with insurers and through policy forms satisfactory
to Contractor, minimum insurances as descried below. Before permitting any
lower tier Subcontractor to perform any work under this subcontract,
Subcontractor shall require that Contractor be furnished satisfactory evidence
that the lower tier Subcontractor maintains insurance similar to that required
below.
Subcontractor shall procure and maintain the following minimum insurance
coverages:
The following limits or specific coverages do not restrict or limit any
contractual obligation between the parties as may be defined elsewhere.
Contractor failure to identify insurance deficiencies does not relieve the
Subcontractor from any insurance obligations.
I) WORKER'S COMPENSATION AND OCCUPATIONAL DISEASE INSURANCE & EMPLOYER'S
LIABILITY INSURANCE covering all Subcontractor's employees directly or
indirectly engaged in the performance of the subcontract. The latter insurance
shall not provide less that $1,000,000 including.
- - Worker's compensation as required by State Law.
- - Employer's Liability - $100,000.00 per person.
- USL&H - 'if any' basis, where applicable
- Include all states endorsement, where applicable
- All insurers shall agree to waive the right of subrogation
against the Owner and Contractor
- Certificate must clearly identify that coverage applies in
state of operation.
The Subcontractor shall provide a copy of the "Employer's First Report of
Injury" or its equivalent to Contractor within thirty (30) days of any injury
or illness to any employee of the contractor arising out of or alleged to have
arisen out of or during the course of work performed on this project.
II) DISABILITY INSURANCE: As required by New York State Law
III) GENERAL LIABILITY
A) Commercial General Liability Form
1988 ISO Occurrence Form or equivalent (identify form # and edition
date on certificate)
Limits: $5,000,000 - Each occurrence for Bodily
Injury and Property Damage
$5,000,000 - Products, Completed
Operations Aggregate Limit
$5,000,000 - General Aggregate* Limit
(other than Products/
Complied Operations)
$5,000,000 - Personal Injury Liability
*General Aggregate MUST include per project endorsement (must evidence on
certificate).
Above limits will be revised to coincide with Owner's requirements if
necessary.
Policy coverage terms and conditions to include:
1) Premises/Operations - must cover all work to be performed by Subcontractor &
their Subcontractors.
2) Contractual Liability written specifically for this contract.
3) Products/Completed Operations must include a two year extension beyond
acceptance date (refer to attached wording).
4) Broad Form Property Damage including completed operations.
5) Independent Contractors.
6) Blanket Explosion, Collapse & Underground Property Damage Liability
7) Employees as additional insureds.
8) Supplementary payments in addition to limit of liability.
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<PAGE> 13
(
Subcontract No: B02-02090 B
-----------
9) Contractual exclusion pertaining to operations performed within 50' of
railroad must be eliminated (if applicable)
10) Additional Insureds:
A) Owner
B) Contractor
C) Other
11) Any deductible causes, exclusions or special endorsements must be approved
by contractor prior to inclusion.
12) Insuring agreement to read "to pay on behalf of".
13) Waiver of subrogation for Owner, Contractor,its director, officers,
employees, subsidiaries and affiliates.
14) Severability of interests. (cross liability)
IV) COMMERCIAL BUSINESS AUTOMOBILE
Motor Vehicle Liability (for each motor vehicle)
Bodily Injury or Death -- $200,000/person
$500,000/occurrence
Covering all owned,
non-owned & hired vehicles
Limit (Property Damage) -- $20,000/occurrence
-- Contractual liability
-- All insurers agree to waive their rights of subrogation against Owner
and Contractor, its directors, officers, employees, subsidiaries and
affiliates.
V) BUILDER'S RISK/INSTALLATION FLOATER
Where an Off Project Site Property exposure exists, the Contractor at its
sole expense shall furnish to Contractor Certificates of Insurance and
other required documentation evidencing the following coverage which shall
provide for the interests of Contractor To be named to Loss Payees and
shall contain a provision requiring the insurance carriers to waive their
rights of subrogation against all indemnities named in the contract.
NAMED INSURED: Owner, contractor & Subcontractor, AIMA
LIMITS OF LIABILITY: Amount of subcontract (unless otherwise specified
in owner's specifications)
DEDUCTIBLE: $500 per occurrence
COVERAGE INCLUDING:
1. 60 days notice of cancellation, non-renewal or material policy change
2. "All risk" of loss including floor, earthquake and earth movement
3. Replacement cost valuation
4. Transit limit to offsite storage
5. Agreed amount clause
6. Property in the insured's care, custody and control covered
7. Testing/processing shall be a covered peril.
8. Electrical injury/damage shall be a covered peril.
9. Waive rights of subrogation against contractor and owner.
10. Coverage to apply until machinery/equipment, etc. has been installed
and been accepted as satisfactory, coverage to apply after materials
have become a physical part of realty.
11. Error, omission or deficiency in design, workmanship or materials
shall be considered a covered peril.
12. Exclusion pertaining to property, while it is on premises owned,
leased or operated by the insured shall be deleted.
13. Full theft coverage without exception.
14. Permission granted to complete and occupy (if applicable)
15. Eliminate underground exclusion
16. Standard city wording or special cancellation clauses, when mandated.
VI) POLLUTION LIABILITY INSURANCE
When applicable, Subcontractor shall furnish evidence that it has provided
Pollution Liability Insurance covering all lead, asbestos and pollution
operations with limits not less than $1,000,000* each occurrence combined
single limit for bodily injury, property damage and clean-up costs
including completed operations (5 year continuation beyond acceptance),
broad form contractual (including coverage for third party over claims),
and independent contractors coverage. If policy contains a general
aggregate, this aggregate must apply on a per project basis, all of which
must be evidenced on certificate. All insurers agree to waive their rights
of subrogation against the additional insured and the Contractor and its
directors, officers, employees, subsidiaries, and affiliates.
- - Defense costs must be payable in addition to limit of liability
- - Any deductibles, clauses, exclusions or special endorsements must be
approved by Contractor prior to inclusion.
- - Coverage must include on-site, off-site and in-transit exposures.
- - Policy to read "to pay on behalf of" (in lieu of indemnify).
- - Must include loading and unloading coverages.
- - Must be written on occurrence form.
- - Policy to be submitted to the Contractor for review and approval.
- - Higher limit to be obtained, if mandated.
Page 12
<PAGE> 14
SUBCONTRACT NO. B02-02090 B
Note: The Contractor, at its option, may require a separate contractor's
protective liability policy in Contractor's name (at Subcontractor's expense)
VII) ADDITIONAL INSURED ENDORSEMENTS:
Insurance policies specified in III and IV above shall be endorsed to name
Owner and Contractor, its directors, officers, employees, subsidiaries and
affiliates as additional insured, and shall stipulate that this insurance
is primary, that any other insurance or self-insurance maintained by Owner
and Contractor be excess only and shall not be called upon to contribute
with this insurance. ISO Additional Insurance Endorsement form number
CG2010 1185. Contractors Form B must be utilized accompany the Certificate
of Insurance.
NOTE: Contractor at its option, may require a separate contractor's
protective liability policy in contractor's name (at subcontractor's
expense.)
APPLICABLE TO ALL INSURANCES:
1. Higher limits required depending upon particulars of each specific
contract may be obtained. The above limits may be written by combination
of CGL & Umbrella policies.
2. Certificates must include an insurer obligation to provide sixty (60 days)
prior written notice of cancellation, material change and non-renewal by
certified mail, return receipt requested.
3. Certificates and endorsements as required must be submitted to Contractor
prior to commencement of any work.
4. Contractor has the right but not the duty to receive copies of all
insurance policies upon request. Policies shall not contain any exclusion
that are unacceptable to Contractor. If requested by Contractor, all
policies must be certified by an insurance carrier as being true and
complete.
5. Contractor must be provided updated renewal certificates and required
endorsement as appropriate. Failure of Contractor to request renewal
certificates or endorsement does not relieve the Subcontractor from the
obligation to maintain such insurances as required herein.
6. Any deductibles or self-insured retention included within any of the above
insurances shall be the responsibility of the Subcontractor.
7. Owner and Contractor have no obligation for premium payments.
Subcontractor acknowledges that any sums necessary for premium payment
related to this Subcontractor will not be in addition to the price of this
Subcontract.
8. If at any time during the period of this subcontract, insurance as
required is not in effect of proof thereof is not provided to Contractor.
Contractor shall have the option to:
a) Direct the Subcontractor to suspend work with no additional cost
of extension for time due on account thereof; or
b) Treat such failure as a material breach/default in respect of the
Subcontract.
9. If subcontracted operations involve or are anticipated to involve
hazardous operations including but not limited to lead, pollution or
asbestos liability, special insurance must be implemented for same.
Subcontractor will be responsible for premium.
10. If required by Owner, Contractor may require Subcontractor to carry an
Installation Floater covering materials to be installed under
Subcontractor's portion of the work. Contractor will advise Subcontractor
of same by addendum.
11. Contractor may, at its option, allocate to Subcontractor its proportionate
share of the cost of obtaining Builder's Risk (All Risk) insurance, as
required by Owner.
12. Claims made policies are not acceptable.
13. The amount of insurance contained in aforementioned insurance coverages,
shall not be a limitation of the liability on the part of the
Subcontractors or any of their Subcontractors in any tier.
14. The subcontractor shall file certificates of insurance prior to the
commencement of work and/or payment with the Contractor which shall be
subject to the Contractor's approval of adequacy of protection and the
satisfactory character of the Insurer.
VIII) HOLD HARMLESS AGREEMENT/INDEMNIFICATION AGREEMENT TO ALL WHOM THESE
PRESENTS SHALL COME OR MAY CONCERN. To the fullest extent permitted by
law, the Subcontractor shall indemnify, hold harmless and defend the
Contractor, Owner and all of their agents, directors and employees from
and against all claims, damages, demands, losses, expenses, causes of
action, suits or other liabilities, (including all costs and reasonable
attorneys' fees), arising out of or resulting from the performance of
Subcontractor's Work under the Subcontract, provided any such claim,
damage, demand, loss or expense is attributable to bodily injury, personal
injury, sickness, disease or death, or to injury to or destruction of
tangible property, including the loss of use resulting therefrom, to the
extent caused in whole or in part by any negligent act or omission of the
Subcontractor or anyone directly or indirectly employed by him or anyone
for whose acts he may be liable, regardless whether it is caused in part
by a party indemnified hereunder. This indemnification shall not be
limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable by or for the Subcontractor under any
workers' compensation acts, disability benefits acts or other employee
benefits acts. This indemnification shall be in addition to any indemnity
liability imposed by the Contract Documents.
IX) WAIVER OF SUBROGATION
The General Liability, Automobile Liability, Employers' Liability and
Umbrella Liability policies are required to contain a waiver of all
subrogation rights of both the subcontractor and their Insurance Company
against Trataros Construction Inc. The Certificate of Insurance shall
indicate that such waiver is in effect.
Page 13
<PAGE> 15
Subcontract No: B02-02090 B
STRUCTURAL AND WATER INTRUSION REPAIRS AT
WILLIAMSBURG HOUSES
EXHIBIT D
LIABILITY LIEN WAIVER
CONTRACT No. DC9300004
GREETINGS: KNOW YE, that _______________________________________,
(Subcontractor supplier, corporation organized and existing under and by virtue
of the laws of the State of _________________, with an office and principal
place of business in ________________, acknowledges receipt of payment for all
labor, materials or services up to and including the date of ______________
referred to hereinafter as the "release date" paid by TRATAROS CONSTRUCTION,
INC., a corporation organized an existing under the laws of the State of NEW
YORK with an office and principal place of business in BROOKLYN, has to the
"release date" remised, released and forever discharged, and by these presents
does for itself and its successors, remised release and forever discharge
TRATAROS CONSTRUCTION, INC. and __________________ (surety) a corporation
organized and existing under the laws of the New York with an office and
principal place of business in ________________, its successors, heirs,
executors and administrators, of and from all, and all manner of action and
actions, cause and causes of action, suits debts, dues, sums of money,
accounts, reckoning, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims and demands whatsoever, in laws, in admiralty, or
in equity which against the said TRATAROS CONSTRUCTION, INC. and said
, said ever lead, now lead or which it or its
successors, hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the
"release date", and especially in connection with any and all claims of any
nature whatsoever arising out of the construction project known as located at
in the Town of and the State of.
FURTHER, and in addition to the foregoing, said ______________ does hereby
to the "release date" forever waive, relinquish and release any mechanic's,
materialman's or like liens, and all claims of liens it now has, may have or
may obtain in the future upon a piece of land and all the buildings thereon
standing, known as ______________________ situated in _________________________.
FURTHER and in addition to the foregoing, said ________________ does
hereby expressly release, waive and relinquish any and all right or claim it
may now have or may hereafter have under the Surety Labor and Material Payment
Bond provided on said project by TRATAROS CONSTRUCTION, INC. as principal and
the as surety.
IN WITNESS WHEREOF, the said _________________________ has caused its corporate
seal to be hereunto affixed and these presents to be signed by its __________ on
the day of _____________, nineteen hundred and ninety.
Signed, sealed and delivered
in the presence of:
- ----------------------------- BY
- ----------------------------- Its
STATE OF
SS:
COUNTY OF
On this the __________________ day of _____________________, 19__, before me,
___________________ the undersigned officer, personally appeared ______________
who acknowledged himself to be the ______________________ of ________________
and to be duly authorized by said corporation to execute the foregoing document
on behalf of said corporation, and that he, being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing" the
name of the corporation by himself as _________________________.
In witness whereof I hereunto set my hand and official seal.
------------------------------
Commissioner of the Superior
Court/Notary Public
Page 14
<PAGE> 16
Subcontract No: B02-02090 B
STRUCTURAL AND WATER INTRUSION REPAIRS AT
WILLIAMSBURG HOUSES
EXHIBIT E
FINAL RELEASE
CONTRACT No. DC9300004
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN.
GREETINGS: KNOW YE, that ______________________________________________________,
(A supplier/Subcontractor to our Subcontractor/Supplier)
a corporation organized and existing under and by virtue of the laws of the
State of ________________ with an office and principal place of business in
_________, for and consideration of the sum of one dollar ($1.00) lawful money
of the United States of America and other good consideration to it in hand paid
by ______________________________ a corporation organized ai-id existing, under
the laws of the State of - with an office and principal place of business in
tie receipt whereof is acknowledged, has remised released and forever
discharged, hereby and by these presents does for itself and its successors,
remise, release and forever discharge TRATAROS CONSTRUCTION, INC. a corporation
organized and existing under the laws of the State of New York and ,
(surety) a corporation organized and existing under the laws of the State
of with an office and principal place of business in ,
its successors, heirs, executors and ad, administrators of and from all, and
all manner of action and actions, cause and causes of actions, suits, debts,
dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, execution, claims and demands whatsoever, in laws in
admiralty, or in equity which against the said TRATAROS CONSTRUCTION, INC. and
said , NY, said ever had, now had or which; it or its
successors, hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day of
the date of these presents, and especially in connection with any and all
claims of any nature whatsoever arising out of the construction project known
as ______________________ located at _________________________ in the Town of
________________________ and the State of ________________________.
FURTHER, and in addition to the foregoing, said ______________ does hereby
forever waive, relinquish and release any mechanic's, materialman's or like
liens, and all claims of liens it now has, may have or may obtain in the future
upon a piece of land and all the buildings thereon standing, known as
______________________, situated in _________________________.
FURTHER and in addition to the foregoing, said ________________ does
hereby expressly release, waive and relinquish any and all right or claim it
may now have or may hereafter have under the Surety Labor and Material Payment
Bond provided on said project by TRATAROS CONSTRUCTION, INC. as principal and
the as surety.
IN WITNESS WHEREOF, the said _________________________ has caused its corporate
seal to be hereunto affixed and these presents to be signed by its __________ on
the day of _____________, nineteen hundred and ninety.
Signed, sealed and delivered
in the presence of:
- ----------------------------- BY
- ----------------------------- Its
STATE OF
SS:
COUNTY OF
On this the __________________ day of _____________________, 19__, before me,
___________________ the undersigned officer, personally appeared ______________
who acknowledged himself to be the ______________________ of ________________
and to be duly authorized by said corporation to execute the foregoing document
on behalf of said corporation, and that he, being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing" the
name of the corporation by himself as _________________________.
In witness whereof I hereunto set my hand and official seal.
------------------------------
Commissioner of the Superior
Court/Notary Public
Page 15
<PAGE> 17
Subcontract No: B02-02090-B
RIDER "F" TO ALL SUBCONTRACTS AND/OR PURCHASE ORDERS
In accordance with terms of the contract, you are required to provide the
following information within five (5) working days:
E) Name and Address of Material Vendor/Supplier:
---------------------------------------------------
---------------------------------------------------
F) Name of Material Fabricator:
---------------------------------------------------
---------------------------------------------------
G) Name of Equipment Rental/Distributor:
---------------------------------------------------
---------------------------------------------------
H) Certified Payroll Report;
I) Certificate of Insurance;
J) Proposed Delivery Schedule;
K) Proposed Itemized Contract Cost Breakdown, including Labor,
Materials, Equipment;
L) Certified Statement Confirming Labor Benefits Contributions have been
satisfied;
Include address, telephone number, fax number and person to contact.
Be advised that progress payments and/or final payment, payment of retainage,
shall be subject to receipt, acceptance and verification of Item "A" through
"H" mentioned above.
SUBCONTRACTOR:
IROQUOIS CORPORATION
BY: [SIG}
------------------------
DATE: MARCH 26, 1998
----------------------
Page 16
<PAGE> 1
EXHIBIT 10.12
IROQUOIS WRECKING CORPORATION
37-55 39th Street
Long Island City, NY 11101
Tel: (718) 482-0346 Fax: (718) 482-1130
June 14, 1998
AGREEMENT
This agreement made this 14th day of June, 1998 between Rapid Demo with its
principal office located at 405 92nd Street, Brooklyn and Iroquois Wrecking
Corp. with its principal office located at 37-65 39th Street, Long Island City,
N.Y. 11101, for the demolition of the Queens Hospital Center located at 164th
Street, Building B, Queens, N.Y. in accordance with plans and specifications
prepared by The State of N.Y. Dormitory Authority for the lump sum of Two
Hundred Ninety Thousand ($290,000.00) Dollars.
The following is a list of what Rapid is to perform and a list of what Iroquois
is to perform.
RAPID LIST
1. Rapid is to furnish the insurance and the bond to the Dormitory Authority.
2. Rapid will make all payrolls and provide a full time representative on the
job.
3. Rapid will secure and pay for all engineering and permits required to
accomplish the work. All utilities will be disconnected and paid for by
Rapid Demo.
4. All reports to the Dormitory Authority will be the responsibility of
Rapid.
5. A telephone and fax machine will be paid for by Rapid Demo.
6. If a trailer is required by the Dormitory Authority, it will be furnished
and paid for by Rapid Demo.
<PAGE> 2
IROQUOIS'S LIST OF WORK TO BE PERFORMED
1. Iroquois will furnish all labor, machinery and material to complete the
contract, (including fences)
2. Iroquois will pay for all trucking, dump fees and trucking of every kind
and description.
3. All salvage to become the property of Iroquois.
4. Any additional backfill required will be paid for and furnished by
Iroquois Wrecking Corp.
No environmental work is included in this contract. It is the intent of this
agreement that Rapid will manage the job and Iroquois will perform the
demolition and backfilling. If there are changes in the contract Rapid Demo and
Iroquois Wrecking Corp. agree to negotiate a fair extra or deduct for both
parties.
The signing by both parties shall constitute an agreement between:
RAPID DEMOLITION IROQUOIS WRECKING CORP.
[SIG] [SIG]
------------------------ --------------------------------
(President) (General Manager)
<PAGE> 1
EXHIBIT 10.13
IROQUOIS CORPORATION
37-55 39th Street
Long Island City, NY 11101
Tel: (718) 482-0346 Fax: (718) 482-1130
JUNE 15, 1998
AGREEMENT
This agreement made this 14th day of June, 1998 between Rapid Demo with its
principal office located at 405 92nd Street, Brooklyn and Iroquois Wrecking
Corp. with its principal office located at 37-55 39th Street, Long Island City,
N.Y. 11101, for the demolition of the Brooklyn Psychiatric Center located at 681
Clarkson Street, Brooklyn, N.Y. in accordance with plans and specifications
prepared by Dormitory Authority and the State of N.Y. Dormitory Authority for
the lump sum of $1,550,000.00 (One Million Five Hundred Fifty Thousand Dollars).
The following is a list of what Rapid is to perform and a list of what Iroquois
is to perform.
RAPID LIST
1. Rapid is to furnish the insurance and the bond to the Dormitory Authority.
2. Rapid will make all payrolls and provide a full time representative on the
job.
3. Rapid will secure and pay for all engineering and permits required to
accomplish the work. All utilities will be disconnected and paid for by
Rapid Demo.
4. All Reports to the Dormitory Authority will be the responsibility of
Rapid.
5. A telephone and fax machine will be paid for by Rapid Demo.
6. If a trailer is required by the Dormitory Authority, it will be furnished
and paid for by Rapid Demo.
<PAGE> 2
IROQUOIS'S LIST OF WORK TO BE PERFORMED
1. Iroquois will furnish all labor, machinery and material to complete the
contract, (including fences)
2. Iroquois will pay for all trucking, dump fees and trucking of every kind
and description.
3. All salvage to become the property of Iroquois.
4. Any additional backfill required will be paid for and furnished by
Iroquois Wrecking Corp.
No environmental work is included in this contract. It is the intent of this
agreement that Rapid will manage the job and Iroquois will perform the
demolition and backfilling. If there are changes in the contract Rapid Demo and
Iroquois Wrecking Corp. agree to negotiate a fair extra or deduct for both
parties.
The signing by both parties shall constitute an agreement between:
RAPID DEMOLITION IROQUOIS WRECKING CORP.
/s/ [SIG] /s/ [SIG]
------------------------ --------------------------------
(President) (General Manager)
<PAGE> 1
EXHIBIT 10.14
THE AMERICAN INSTITUTE OF ARCHITECT
[LOGO]
- --------------------------------------------------------------------------------
AIA Document A101
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR
where the basis of payment is a
STIPULATED SUM
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
The 1987 Edition of AIA Document A201, General Conditions of the Contract
for Construction, is adopted in this document by reference. Do not use
with other general conditions unless this document is modified.
This document has been approved and endorsed by
The Associated General Contractors of America.
- --------------------------------------------------------------------------------
AGREEMENT
made as of the 10th day of July in the year of Nineteen Hundred and Ninety Eight
BETWEEN the Owner: 95 Lorimer Street L.L.C.
(Name and address) 95 Lorimer Street L.L.C., Brooklyn, New York
and the Contractor: Iroquois Wrecking Corp.
(Name and address) 37-55 39th Street
Long Island, City, NY 11101
The Project is: The demolition and removal at 95-107 Lorimer Street
(Name and location) 128-140 Middleton St.
1 Six story concrete building
1 Five story wood building
1 Six story wood building
1 Two story power house and brick stack
The Architect is: NONE
(Name and address)
The Owner and Contractor agree as set forth below.
- --------------------------------------------------------------------------------
Copyright 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, (c)
1987 by The American Institute of Architects, 1735 New York Avenue, N.W.,
Washington, D.C. 20006. Reproduction of the material herein or substantial
quotation of its provisions without written permission of the AIA violates the
copyright laws of the United States and will be subject to legal prosecution.
- --------------------------------------------------------------------------------
1
<PAGE> 2
ARTICLE I
THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of the Contract
(General, Supplementary and other Conditions), Drawings, Specifications, addenda
issued prior to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement; these form
the Contract, and are as fully a part of the Contract as if attached to this
Agreement or repeated herein. The Contract represents the entire and integrated
agreement between the parties hereto and supersedes prior negotiations,
representations or agreements, either written or oral. An enumeration of the
Contract Documents, other than Modifications, appears in Article 9.
ARTICLE 2
THE WORK OF THIS CONTRACT
The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, or as follows:
The demolition and removal at the following buildings:
1 Six story concrete building
1 Five story brick and wood building
1 Six story brick and wood building
1 Two story brick power house with stack
The work includes excavation, foundation removal and backfill.
The asbestos on the roof is included in this contract.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract Time of
Paragraph 3.2 is measured, and shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
Unless the date of commencement is established by a notice to proceed issued by
the Owner, the Contractor shall notify the Owner in writing not less than five
days before commencing the Work to permit the timely filing of mortgages,
mechanic's liens and other security interests.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not
later than December 31, 1998.
(Insert the calendar date or number of calendar days after the date of
commencement. Also insert any requirements for earlier Substantial Completion of
certain portions of the Work, if not stated elsewhere in the Contract
Documents.)
subject to adjustments of this Contract Time as provided in the Contract
Documents.
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
NONE
- --------------------------------------------------------------------------------
2
<PAGE> 3
ARTICLE 4
---------
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the Contract Sum of Nine Hundred Seventy Thousand
Dollars ($977,000.00), subject to additions and deductions as provided in the
Contract Documents.
4.2 The Contract Sum is based upon the following alternates, if any, which are
described in the Contract Documents and are hereby accepted by the Owner.
(State the numbers or other identification of accepted alternates. If decisions
on other alternates are to be made by the Owner subsequent to the execution of
this Agreement, attach a schedule of such other alternates showing the amount
for each and the date until which that amount is valid.)
4.3 Unit prices, if any, are as follows:
Bond 3% $ 29,310.00
Asbestos Removal Roof Only $ 80,000.00
6 Story concrete building $360,000.00 ($60,000.00 per floor)
Story brick & wood building $175,000.00 ($35,000.00 per floor)
6 Story brick & wood building $ 72,000.00 ($12,000.00 per floor)
2 Story power house & stack $ 40,000.00 (25,000.00 PH-$15,000.stac)
Clean out loose trash-all buildings $ 20,000.00
Excavation $120,000.00
Foundation removal - lump sum $ 40,690.00
Backfill - lump sum $ 40,000.00
-----------
$977,000.00
No work will be performed on Saturdays or Jewish Holidays and Chol Hamoes
(except security).
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3
<PAGE> 4
ARTICLE 5
---------
PROGRESS PAYMENTS
5.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the Owner
shall make progress payments on account of the Contract Sum to the Contractor
as provided below and elsewhere in the Contract Documents.
5.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month, or as follows:
The bond is to be paid for when it is submitted to the owner. All other
payments are to be made twice a month for actual work performed on the
15th and 30th. The bill will be presented on the 7th and the 23rd at each
month, the allow the owner or his agent to approve the payment request.
5.3
5.4 Each Application for Payment shall be based upon the schedule of values
submitted by the Contractor in accordance with the Contract Documents. The
schedule of values shall allocate the entire Contract Sum among the various
portions of the Work and be prepared in such form and supported by such data to
substantiate its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for reviewing the
Contractor's Applications for Payment.
5.5 Applications for Payment shall indicate the percentage of completion of
each portion of the Work as of the end of the period covered by the Application
for Payment.
(If it is intended, prior to Substantial Completion of the entire Work, to
reduce or limit the retainage resulting from the percentages inserted in
Subparagraphs 5.6.1 and 5.6.2 above, and this is not explained elsewhere in the
Contract Documents, insert here provisions for such reduction or limitation.)
- --------------------------------------------------------------------------------
4
<PAGE> 5
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after execution of
this Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner
and Contractor, AIA Document A101, 1987 Edition.
9.1.2 The General Conditions are the General Conditions of the Contract for
Construction, AIA Document A201, 1987 Edition.
9.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated , and are as
follows:
DOCUMENT TITLE PAGES
NONE
9.1.4 The Specifications are those contained in the Project Manual dated as in
Subparagraph 9.1.3 and are as follows:
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
SECTION TITLE PAGES
All work to be performed in accordance with all New York City Laws and
Ordinances.
- --------------------------------------------------------------------------------
5
<PAGE> 6
9.1.5 The Drawings are as follows, and are dated unless a
different date is shown below:
(Either list the Drawings here or refer to an exhibit attached to this
Agreement)
Number Title Date
See attached lot map.
9.1.6 The addenda, if any, are as follows:
Number Date Pages
NONE
Portions of addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 9.
- --------------------------------------------------------------------------------
6
<PAGE> 7
9.1.7 Other documents, if any, forming part of the Contract Documents are as
follows:
(List here any additional documents which are intended to form part of the
Contract Documents. The General Conditions provide that building requirements
such as advertisement or invitation to bid instructions to Bidders, sample
forms and the Contractor's bid are not part of the Contract Documents unless
enumerated in this Agreement. They should be listed here only if intended to be
part of the Contract Documents.)
This Agreement is entered into 25 of the day and year first written above and
is executed in at least three original copies of which one is to be delivered
to the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER 95 LORIMER LLC CONTRACTOR Iroquois Wrecking Corp.
/s/ JOSEPH LANDAU X /s/ NORMAN BIRMINGHAM
- --------------------------- ------------------------------
Joseph Landau Member Norman Birmingham, President
- --------------------------- ------------------------------
(Printed name and title) (Printed name and title)
[AIA LOGO] CAUTION: You should sign an original AIA document which has this
caution printed in red. An original assures that changes will not be obscured
as may occur when documents are reproduced.
- --------------------------------------------------------------------------------
7
<PAGE> 8
[MIDDLETON STREET MAP]
<PAGE> 9
[MIDDLETON STREET MAP]
<PAGE> 10
RIDER TO AGREEMENT BETWEEN OWNER AND CONTRACTOR
This rider hereby is made a part of the Agreement Between Owner and Contractor,
dated July 10, 1998, between 95 Lorimer, LLC, having an address at 95 Lorimer
Street, Brooklyn, New York ("Owner"), and Iroquois Wrecking Corp., having an
address at 37-55 39th Street, Long Island City, New York ("Contractor"), for the
for the demolition and removal of the structures existing at 95-107 Lorimer
Street and 128-140 Middelton Street, Brooklyn, New York. If there is any
conflict between this Rider and the remainder of the Agreement, the provisions
of this Rider shall govern.
1. The Project shall include demolition of all structures
presently on the site, including, without limitation, the demolition of the
buildings set forth in the agreement, and the excavation of the site. No
structures are to be left. All foundations and footing are to be removed. All
concrete slabs are to be removed from the basement. The contractor shall provide
ramps as specified by owner for trucks to come onto the site adequate to support
trucks that would normally enter upon a construction site of this sort. The
excavation shall be conducted in accordance with the instructions of owner and
the plans of the architect, Bricolage Designs, or amendments thereof. The depth
of the new foundation is to be approximately 5'6" below legal trade. The rear
yard is to be back filled and graded to approximately 4'5" above legal grade,
the upper two feet to be clean fill. All other areas are to be back filled and
graded to legal grade, except for the ramp area. All back fills are to be free
and clear of debris.
2. The contractor agrees to keep the work premises and adjoining
ways free of waste material and rubbish. The contractor further agrees to remove
all waste material and rubbish on termination of the project, together with all
its tools, equipment, machinery and surplus materials. It agrees, on terminating
its work at the site, to conduct general clean-up operations.
3. Contractor shall, prior to commencement of work under this
contract, furnish to Owner a performance bond covering the faithful performance
of this contract and the payment of all obligations arising under it in the
amount of $977,000.00 and in a form and with a surety or sureties satisfactory
to owner.
4. The contractor shall ensure that the site is safe and secure,
and shall post a security guard on the site at all times, until the completion
of the project, to protect the equipment and the public safety.
5. The contractor agrees to pay for and keep in force during the
entire period of construction on the project such liability insurance as will
protect it from claims, under workers' compensation and other employee benefit
laws, for bodily injury and death, and for property damage, that may arise out
of work under this contract, whether directly or indirectly by the contractor,
or directly or indirectly by a subcontractor. The minimum liability
<PAGE> 11
limits of such insurance shall not be less than $2,000,000.00 per occurrence.
Such insurance shall name owner as additional insured, and shall include
contractual liability insurance applicable to the contractor's obligations under
this contract. Proof of such insurance shall be filed by the contractor with the
owner within a reasonable time after execution of this contract.
6. Construction under this contract shall begin as soon as is
practicable after the execution of this agreement, and shall be completed no
later than December 31, 1998, time being of the essence.
7. The contractor shall, as soon as is practicable after the
execution of this contract, notify the owner in writing of the names of any
subcontractors proposed for the various parts of the work. If either the owner
has an objection to any subcontractor whose name is submitted, he must notify
the contractor in writing within 15 days after receipt of the list of proposed
subcontractors.
All subcontractors employed on the work shall operate from an
established place of business, preferably located in the community in which the
work is conducted. All agreements between the contractor and subcontractors
shall be bona fide contracts, including all costs for labor and materials
involved under the various subcontracts. No divided agreements for materials and
labor or profit-sharing agreements between the contractor and the subcontractors
shall be allowed. All agreements between the contractor and the subcontractors
shall contain provisions specifying: (1) that the work performed by the
subcontractors must be in accordance with the terms of the contract documents;
(2) that nothing contained in such agreements shall impair the rights of the
owner or the architect under the contract documents; and (3) that in case of a
conflict between such an agreement and the contract documents, the dispute shall
be resolved in favor of the latter.
The contractor agrees that it is as fully responsible to the owner for the
acts and omissions of the subcontractors and of persons either directly or
indirectly employed by them as it is for the acts and omissions of persons
directly employed by it.
Nothing contained in the contract documents shall create any contractual
relation between any subcontractor and the owner.
8. Any governmental violations occurring on the property from the
date of this agreement to the date of the completion of the project, including
without limitation Environmental Control Board Violations, shall be cured by the
contractor. Notwithstanding any provision of this agreement to the contrary, the
contractor shall not be entitled to the final payment until a search shows that
all such violations are cured and paid for.
2
<PAGE> 12
9 All tools and materials are to be kept in an orderly fashion
and in compliance with any applicable, laws, rules, statutes, codes, or
ordinances. Owner shall in no way be responsible for any materials, tools, or
equipment on the job site or on the street.
10. Contractor shall not engage in any work outside of the scope
of this agreement without the prior express written permission of the owner.
11. The contractor agrees to indemnify and hold harmless the
owner, and its agents and employees, from and against all claims, damages,
losses, and expenses, including reasonable attorneys' fees in case it shall be
necessary to file an action, arising out of performance of the work, which are
(1) for bodily injury, illness, or death, or for property damage, including loss
of use, and (2) caused in whole or in part by the contractor's negligent act or
omission, or that of a subcontractor, or that of anyone employed by them or for
whose acts the contractor or subcontractor may be liable.
12. The contractor shall provide and pay for all labor, materials,
and equipment, including tools, construction equipment, and machinery,
utilities, including water, transportation, and all other facilities and
services necessary for the proper completion of work on the project. The owner
may, at its option, pay for materials and the amounts so expended shall be
deducted from the amount payable to the contractor under this agreement.
13. If the contractor causes damage in any manner whatsoever to
construction taking place in other areas of the site, the amount payable to the
contractor hereunder shall be reduced by the amount necessary to repair the
damage cause by the contractor.
14. The contractor shall not perform any work or be present on the
job site on Saturdays or any Jewish Holiday, including, without limitation, the
intermediate says of Succoth and Passover, except with respect to the
contractor's obligations with regard to keeping the premises safe and secure
outlined above.
15. Final payment shall not be due until the contractor has
delivered to the owner, in recordable form, a complete release of all liens
arising out of this contract, or receipts in full covering all labor, materials
and equipment for which a lien could be filed, or in the alternative a bond
satisfactory to the owner indemnifying the owner against such liens.
16. The contractor shall comply with all public laws, statutes,
ordinances, rules, and regulations respecting the work, including but not
limited to compliance with OSHA regulations, and shall pay all taxes required by
law in connection with work on the project in accordance with this contract
including sales, use, and
3
<PAGE> 1
EXHIBIT 10.15
LICENSE AGREEMENT
This agreement is made on May 25, 1998, and MICHAEL F. COX, an
individual, (hereinafter the "Licensor") and MEDIFORCE PRODUCTS, INC., having
its principal place of business at 1200 North Federal Highway, Suite 200, Boca
Raton, Florida 33432, (hereinafter the (hereinafter the "Licensee").
WHEREAS, the Licensor represents that he is the sole and exclusive owner
of, and has the sole and exclusive right to grant licenses under Letters Patent
of the United States issued to him, to wit, No. 5,433,697, issued on July 18,
1995; and
WHEREAS, the Licensee is desirous of acquiring the exclusive right and
license to manufacture, sell, and use apparatus embodying, employing and
containing the invention patented in aforesaid Letters Patent, throughout the
worldwide;
NOW, THEREFORE, the parties hereto have covenanted and agreed, and do
hereby covenant and agree as follows:
1. Licensor has granted, conveyed, and by these presents does grant and
convey unto the Licensee the exclusive right and license to manufacture,
sell and use apparatus embodying, employing, and containing the
inventions patented in the aforesaid Letters Patent, throughout the
worldwide, to the full end of the term or terms for which said Letters
Patent have been or may be granted , and any reissue or reissues
thereof, unless this Agreement is sooner terminated, as hereinafter
provided:
2. The Licensor, as a condition and covenant, hereby represents, covenants
and agrees that to the best of its knowledge it is the sole and
exclusive of the entire right, title and interest in and to the
aforesaid United States patent, and that he has the right to grant the
exclusive
<PAGE> 2
right, license and privilege hereby granted; that he has executed no
contract or agreement in conflict herewith, and that it has not granted
to any other person, firm or corporation any right, license, shop-right,
or privilege hereunder.
3. Licensee covenants and agrees to pay the Licensor commencing May 25,
1999, and thereafter during the continuance of this Agreement, the sum
of One Hundred Thousand Dollars, and annually thereafter for a period of
five years, or May 25, 2004.
4. In the event that any national government imposes any taxes on any part
of the payments required hereunder by Licensee to Licensor and requests
Licensee to withhold taxes from such payment, Licensee may deduct such
taxes from such payments. Tax receipts indicating payments or
withholding of taxes on behalf of Licensor shall be promptly submitted
to Licensor. Licensee shall cooperate with Licensor in a determination
of the proprietary of imposition of any such tax.
5. Licensee shall have the sole and exclusive right to institute and
prosecute any and all suits to enjoin any and all infringers of said
Letters Patent; and from time to time during the continuance of this
Agreement, and at his own expense, may institute any suit or suits which
he may deem necessary; the Licensee to have the sole right to institute
and prosecute such suits and to employ therefor his own counsel, and he
shall pay for all services rendered by counsel so retained, and all
costs and expenses incidental thereto.
6. Licensor agrees that the Licensee may join as part Plaintiff if the
Licensee should find it necessary or desirable in any suit or suits
which the Licensee may institute, involving said Letters Patent, it
being expressly understood and agreed that in such event the Licensor
shall not be chargeable for any costs or expenses by reason of being
joined as party plaintiff, but that the Licensee shall bear all such
expenses.
<PAGE> 3
7. The Licensor agrees to execute any and all papers, documents or other
instruments which may be found necessary or desirable to effect the
exclusive right and license herein granted to the Licensee; and also to
execute any and all papers which may be found necessary or desirable in
any suit or suits brought under and pursuant to this Agreement; and the
Licensor further covenants and agrees that it will testify in any
interference or litigation whenever requested so to do by the Licensee,
all however at the expense of the Licensee.
8. Licensee agrees that all information and documentation made available or
disclosed to Licensor by Licensee as a result of or related to this
Agreement, or any negotiations therefor, shall be received and treated
by Licensor on a non-confidential and unrestricted basis, any legends or
proprietary notices of license to the contrary notwithstanding;
provided, however, all information relating to royalties paid hereunder
by Licensee shall not be disclosed to third parties, except and to the
extent required to comply with applicable law, regulation or court
order.
9. Unless otherwise terminated and/or canceled as set forth herein, this
Agreement and the license granted shall continue in force for a period
of five (5) years from the date of execution of this Agreement. This
Agreement and the license granted herein may be extended on the terms
and conditions to be mutually agreed upon prior to the expiration of the
initial five (5) year term.
10. If Licensee shall at any time default in the payment of any monies due
hereunder, or in fulfilling any of the other obligations hereof, and
such default shall not be cured within thirty (30) days after written
notice thereof is given by Licensor to Licensee, Licensor shall have the
right to terminate and/or cancel this Agreement by giving written notice
of
<PAGE> 4
termination/cancellation to Licensee; this Agreement thereby being
terminated/canceled fifteen (15) days after such notice of
termination/cancellation is mailed by Licensor. Licensee shall have the
right to cure any such default up to, but not after, the giving of such
notice of termination/cancellation. Licensor shall have the right to
terminate/cancel this Agreement by giving written notice of
termination/cancellation to Licensee in the event of any one of the
following, such termination/cancellation being effective upon receipt of
such notice or five (5) days after such notice is mailed, whichever is
earlier:
a. Liquidation of Licensee;
b. Insolvency or bankruptcy of Licensee, whether voluntary or
involuntary;
c. Failure of Licensee to satisfy any judgment against him;
d. Appointment of a Trustee or Receiver for Licensee.
11. The waiver of any default under this Agreement by either party shall not
constitute a waiver of the right to terminate/cancel this Agreement for
any subsequent or like default, and the exercise of the right of
termination/cancellation shall not impose any liability by reason of
termination/cancellation nor have the effect of waiving any damages t
which the terminating/canceling party might otherwise be entitled.
12. This Agreement shall bind and apply to the successors and assigns of the
Licensor, and may inure to the benefit of, may be transferable to, and
be binding upon the successors and assigns of the Licensee.
<PAGE> 5
13. The terms and conditions of this Agreement shall be interpreted and
governed by the laws of the State of Florida. Venue shall be in Palm
Beach County, Florida.
14. The terms and conditions of this Agreement shall not be strictly
construed against one party or the other but shall be construed in such
a manner as is fair, just and reasonable to both parties.
15. In the event this Agreement is the subject of any proceeding to
interpret or enforce its terms or conditions, or to remedy a breach
thereof, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
16. In the event that any portion of this Agreement is held invalid by a
Court of competent jurisdiction the remaining portions of this Agreement
shall continue in full force and effect.
17. Each party to this Agreement shall satisfy the conditions and perform
the terms thereof in good faith and with fair dealing to the other
party.
18. Each party shall fully cooperate with the other party and exercise due
diligence and reasonable efforts in the satisfaction of the conditions
and in the performance of the terms of this Agreement.
19. Each party shall do such and further acts as are reasonably necessary to
satisfy the conditions and to preform the terms of this Agreement.
20. Each party in the satisfaction of the conditions and in the performance
of the terms of this Agreement shall comply with all applicable local,
state and federal law.
21. Each party represents and warrants to the other party that it has the
full right, power and authority to enter into this Agreement and not as
the result of the execution or performance of this Agreement be in
knowing violation of any private contract or federal
<PAGE> 6
or state law, regulation, ruling, order or decree. The execution and
delivery of this Agreement by the parties has been duly authorized as
appropriate.
MEDIFORCE PRODUCTS, INC.
________________________________ By:_____________________________________
Michael F. Cox Its:____________________________________
Licensor Licensee
<PAGE> 1
EXHIBIT 21.1
LIST OF SUBSIDIARIES OF THE REGISTRANT
MediForce Products, Inc., a Florida corporation
General Environmental Technologies, Inc., a Florida corporation
Iroquois Corporation, a Florida corporation
Iroquois Wrecking Corporation, a New York corporation
Indigo Industries, Inc., a Florida corporation
<PAGE> 1
EXHIBIT 21.2
ARTICLES OF INCORPORATION
OF
MEDIFORCE PRODUCTS, INC.
ARTICLE 1 - NAME
The name of this corporation of is MEDIFORCE PRODUCTS, INC.
ARTICLE II - EFFECTIVE DATE AND DURATION
This corporation shall begin existence on the date of filing.
ARTICLE III - PURPOSE
This corporation is organized for the purpose of transacting any and all
lawful business.
ARTICLE IV - COMMON STOCK
This corporation is authorized to issue Sixty Million (60,000,000) shares
of common stock with a par value of .0001 cents.
ARTICLE V - AUTHORITY
This corporation has the authority to conduct any and all lawful business
which can be legally conducted by any corporation.
ARTICLE VI - DIVIDENDS
This corporation shall pay dividends upon the terms and conditions
specified by the Board of Directors from time to time.
ARTICLE VII - INCORPORATOR
The name of and address of the incorporator of this corporation is as
follows:
Jeanne O. Conway, Esq.
Jeanne Odom Conway, P.A.
580 Village Boulevard
Suite 160
West Palm Beach, FL 33409
FILED
98 OCT 16 AM 11:32
DIVISION OF CORPORATIONS
TALLAHASSEE, FLORIDA
[JEANNE ODOM CONWAY, P.A. LETTERHEAD]
<PAGE> 2
ARTICLE VIII - OFFICERS AND DIRECTORS
The following persons hereby hold the offices indicated, subscribe to the
number of shares indicated, and reside at the addresses listed:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES OFFICE
- ---- --------- ------
<S> <C> <C>
Charles C. Chillingworth 1 Director
580 Village Boulevard
Suite 160
West Palm Beach, FL 33409
Wilma Cox 0 President, Secretary &
1200 N. Federal Highway Director
Suite 200
Boca Raton, FL 33432
Michael F. Cox 0 Vice President & Treasurer
1200 N. Federal Highway
Suite 200
Boca Raton, FL 33432
</TABLE>
Directors shall hold office for a period of one (1) year and shall be
elected at each shareholder's meeting. There shall be two (2) directors
initially.
ARTICLE IX - POWERS OF DIRECTORS
In furtherance and not in limitation of the powers conferred by Statute,
the Board of Directors is expressly authorized to make and alter the By-Laws of
this corporation to fix the amount to be reserved as working capital over and
above its capital stock paid in, and to authorize and cause to be executed
mortgages and liens upon real and personal property belonging to this
corporation. The Board of Directors shall also have the authority to hire and
fire all employees of the corporation and to fix their compensation, unless
these responsibilities are delegated to an officer.
ARTICLE X - PRINCIPAL PLACE OF BUSINESS
The principal place of business of this corporation shall be 1200 N.
Federal Highway Suite 200, Boca Raton, FL 33432. The Board of Directors may
from time to time move the place of business of this corporation.
2
<PAGE> 3
ARTICLE XI - REGISTERED AGENT
The Registered Agent for service of process of this corporation, who shall
serve until removed by the Board of Directors, is Jeanne O. Conway, Jeanne Odom
Conway, P.A., Suite 160, 580 Village Boulevard, West Palm Beach, FL 33409.
ARTICLE XII - PRIVATE PROPERTY OF SHAREHOLDERS
The private property of the shareholders shall not be subject to the
payment of any corporate debts to any extent whatsoever.
ARTICLE XIII - EXCESS SALARY
In the event that the Internal Revenue Service determines that a portion
of the salary paid by this corporation to any of its employees, including its
officers and directors, is excessive under the law as it exists at that time,
and will not allow the corporation to deduct said portion of salary from its
earnings as an operating expense, said portion of salary deemed to be excessive
shall be automatically repaid to the corporation.
ARTICLE XIV - EXCESS BUSINESS EXPENSE
In the event that the Internal Revenue Services determines that any
business expense of the corporation is invalid or excessive under the law as it
exists at that time, and will not allow the corporation to deduct a portion of
said business expense, said portion of the business expense deemed to be
excessive shall be automatically repaid to the corporation.
ARTICLE XV - AMENDMENTS
This corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation or any amendment hereto, and any
right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned, being the incorporator for the purpose
of forming a corporation to do business under the laws of the State of Florida,
does hereby make and file these Articles of Incorporation, hereby declaring and
certifying that the facts herein stated are true, and hereunto has set her hand
and seal this 15th day of October, 1998.
By: /s/ JEANNE O. CONWAY
---------------------------
Jeanne O. Conway
3
<PAGE> 4
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgements, personally appeared Jeanne O. Conway, to me known
personally to be the person described in, and who executed the foregoing
instrument, and who did not take an oath, and acknowledged before me that she
executed the same.
WITNESS my hand and official seal in the County and State last aforesaid
this 15th day of October, 1998.
/s/ HELEN K. FEKETE
----------------------------
[SEAL] Helen K. Fekete
Notary Public
My Commission Expires:
ACCEPTANCE
I, Jeanne O. Conway, whose address is Jeanne Odom Conway, P.A., Suite 160,
580 Village Boulevard, West Palm Beach, FL 33409, do hereby accept the
appointment of Registered Agent for MEDIFORCE PRODUCTS, INC.
/s/ JEANNE ODOM CONWAY
----------------------------
Jeanne Odom Conway
Registered Agent
FILED
98 OCT 16 AM 11:32
DIVISION OF CORPORATIONS
TALLAHASSEE, FLORIDA
4
<PAGE> 1
EXHIBIT 21.3
BYLAWS
OF
MEDIFORCE PRODUCTS, INC.
ARTICLE I - OFFICES
The principal office of the corporation shall be established and
maintained at 1200 N. Federal Highway, Suite 200, in the City of Boca Raton,
County of Palm Beach, State of Florida. The corporation may also have offices
at such places within or without the State of Florida as the board may from
time to time establish.
ARTICLE II - STOCKHOLDERS
PLACE OF MEETINGS. Meetings of stockholders shall be held at the principal
office of the corporation or at such place within or without the State of
Florida as the board shall authorize.
ANNUAL MEETING. The annual meeting of stockholders shall be held on the
16th day of October at 11:00 o'clock a.m. each year; however, if such day falls
on a Sunday or a legal holiday, then on the next business day following at the
same time, the stockholders shall elect a board of directors and transact such
other business as may properly come before the meeting.
SPECIAL MEETINGS. Special meetings of the stockholders may be called by
the board of by the president or at the written request of stockholders owning
a majority of the stock entitled to vote at such meeting. A meeting requested
by stockholders shall be called for a date not less than ten (10) nor more than
sixty (60) days after the request is made. The secretary shall issue the call
for the meeting unless the president, the board or the stockholders shall
designate another to make said call.
NOTICE OF MEETINGS. Written notice of each meeting of stockholders shall
state the purpose of the meeting and the time and place of the meeting. Notice
shall be mailed to each stockholder having the right and entitled to vote at
such meeting at his last address as it appears on the records of the
corporation, not less than ten (10) nor more than sixty (60) days before the
date set for such meeting. Such notice shall be sufficient for the meeting and
any adjournment thereof. If any stockholder shall transfer his stock after
notice, it shall not be necessary to notify the transferee. Any stockholder may
waive notice of any meeting either before, during or after the meeting. If no
notice is submitted, a waiver of notice is agreed to by all parties in
attendance at the meeting.
VOTING. Every stockholder shall be entitled at each meeting and upon each
proposal presented at each meeting to one vote for each share of voting stock
recorded in his name on the books of the corporation on the date of the meeting.
The books of stockholders shall be produced at the meeting upon the request of
any stockholder. Upon the demand of any stockholder, the vote for directors and
the vote upon any question before the meeting, shall be by ballot. All elections
for directors shall be decided by plurality vote; all other questions shall be
decided by majority vote.
Exhibit 21.3
<PAGE> 2
QUORUM. The presence, in person, of stockholders holding a majority of the
stock of the corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned
meeting at which the requisite amount of stock entitled to vote shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed, but only those stockholders entitled to vote
at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
ARTICLE III -- DIRECTORS
BOARD OF DIRECTORS. The business of the corporation shall be managed and
its corporate powers exercised by a board of director(s), all of whom shall be
of full age. It shall not be necessary for directors to be stockholders.
ELECTION AND TERM OF DIRECTORS. Directors shall be elected at the annual
meeting of stockholders and each director elected shall hold office until
his successor has been elected and qualified, or until his prior resignation or
removal.
VACANCIES. If the office of any director, member of a committee or other
officer becomes vacant, the remaining directors in office, by a majority vote,
may appoint any qualified person to fill such vacancy, who shall hold office
for the unexpired term and until his successor shall be duly chosen.
REMOVAL OF DIRECTORS. Any or all of the directors may be removed with or
without cause by vote of a majority of all the stock outstanding and entitled
to vote at a special meeting of stockholders called for that purpose.
NEWLY CREATED DIRECTORSHIPS. The number of directors may be increased by
amendment of these By-Laws by the affirmative vote of a majority of the
directors, or, by the affirmative vote of a majority of interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
RESIGNATION. Any director may resign at anytime by giving written notice
to the board, the president or the secretary of the corporation. Unless
otherwise specified in the notice, the resignation shall take effect upon
receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
QUORUM OF DIRECTORS. A majority of the directors shall constitute a quorum
for the transaction of business. If at any meeting of the board there shall be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time until a quorum is obtained, and no further notice thereof
need be given other than by announcement at the meeting which shall be so
adjourned.
-2-
<PAGE> 3
PLACE AND TIME OF BOARD MEETINGS. The board may hold its meetings at the
office of the corporation or at such other places, either within or without the
State of Florida as it may from time to time determine.
REGULAR ANNUAL MEETING. A regular annual meeting of the board shall be
held immediately following the annual meeting of stockholders at the place of
such annual meeting of stockholders.
NOTICE OF MEETINGS OF THE BOARD. Regular meetings of the board may be
held without notice at such time and place as it shall from time to time
determine. Special meetings of the board shall be held upon notice to the
directors and may be called by the president upon three (3) days notice to each
director either personally or by mail or by wire; special meetings shall be
called by the president or by the secretary in a like manner upon written
request of any director. Notice of a meeting need not be given to any director
who submits a waiver of notice whether before or after the meeting or who
attends the meeting without protesting prior thereto or at its commencement,
the lack of notice to him or her.
COMMITTEES. The board, by resolution, may designate no more than two (2)
of their number to one or more committees, which, to the extent provided in
said resolution or these By-Laws may exercise the powers of the board in the
management of the business of the corporation.
COMPENSATION OF DIRECTORS. No compensation shall be paid to directors, as
such, for their services, but by resolution of the board a fixed sum and
expenses for actual attendance, at each regular or special meeting of the board
may be authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV -- OFFICERS
The board may elect or appoint a chairman, a president, one or more vice
presidents, a secretary, and a treasurer, and such other officers as it may
determine, who shall have such duties and powers as hereinafter provided.
All officers shall be elected or appointed to hold office until the
meeting of the board following the next annual meeting of stockholders and
until their successors have been elected or appointed and qualified.
Any officer elected or appointed by the board may be removed by the board
with or without cause.
In the event of death, resignation or removal of an officer, the board in
its discretion may elect or appoint a successor to fill the unexpired term.
Any two or more offices may be held by the same person.
-3-
<PAGE> 4
The salaries of all officers shall be fixed by the board.
The directors may require any officer to give security for the faithful
performance of his or her duties.
PRESIDENT. The president shall be the chief executive officer of the
corporation and shall have the general powers and duties of supervision and
management usually vested in the office of president of a corporation. He shall
preside at all meetings of the stockholders if present thereat, unless a
chairman has been elected by the board, and shall have general supervision,
direction and control of the business of the corporation. Except as the board
shall authorized the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts in behalf of the corporation, and shall
cause the seal to be affixed to any instrument requiring it and when so
affixed, the seal shall be attested by the signature of the secretary or the
treasurer or an assistant secretary or an assistant treasurer.
VICE PRESIDENT. During the absence or disability of the president, the
vice president, or if there are more than one, the executive vice president,
shall have all the powers and functions of the president. Each vice president
shall perform such other duties as the board shall prescribe.
SECRETARY. The secretary shall attend all meetings of the board and of the
stockholders, record all votes and minutes of all proceedings in a book to be
kept for that purpose, give or cause to be given notice of all meetings of
stockholders and of special meetings of the board, keep in safe custody the
seal of the corporation and affix it to any instrument when authorized by the
board, when required, prepare or cause to be prepared and available at each
meeting of stockholders a certified list in alphabetical order of the names of
stockholders entitled to vote thereat, indicating the number of shares of each
respective class held by each, keep all the documents and records of the
corporation as required by law or otherwise in a proper and safe manner, and
perform such other duties as may be prescribed by the board, or assigned to him
or her by the president.
ASSISTANT SECRETARY. During the absence or disability of the secretary,
the assistant secretary, or if there are more than one, the one so designated
by the secretary or by the board, shall have all the powers and functions of
the secretary.
TREASURER. The treasurer shall have the custody of the corporate funds and
securities, keep full and accurate accounts of receipts and disbursements in
the corporate books, deposit all money and other valuables in the name and to
the credit of the corporation in such depositories as may be designated by the
board, disburse the funds of the corporation as may be ordered or authorized by
the board and preserve proper vouchers for such disbursements, render to the
president and board at the regular meetings of the board, or whenever they
require it, an account of all his transactions as treasurer and of the
financial condition of the corporation, render a full financial report at the
annual meeting of the stockholders if so requested, be furnished by all
corporate officers and agents at his or her request with such reports and
statements as he or she may require as to all financial transactions of the
corporation, and perform such other duties as are given to him or her by these
By-Laws or as from time to time are assigned to him by the board or the
president.
-4-
<PAGE> 5
ASSISTANT TREASURER. During the absence or disability of the treasurer,
the assistant treasurer, or if there are more than one, the one so designated
by the secretary or by the board, shall have all the powers and functions of
the treasurer.
SURETIES AND BONDS. In case the board shall so require, any officer or
agent of the corporation shall execute to the corporation a bond in such sum
and with such surety or sureties as the board may direct, conditioned upon the
faithful performance of his duties to the corporation and including
responsibility for negligence and for the accounting for all property, funds or
securities of the corporation which may come into his or her hands.
ARTICLE V -- CERTIFICATES FOR SHARES
CERTIFICATES. The shares of the corporation shall be represented by
certificates. They shall be numbered and entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and the
number of shares and shall be signed by the president or a vice president and
the treasurer or the secretary and shall bear the corporate seal. When such
certificates are signed by a transfer agent or an assistant transfer agent or
by a transfer clerk acting on behalf of the corporation and a registrar, the
signatures of such officers may be facsimiles.
LOST OR DESTROYED CERTIFICATES. The board may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation, alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost or destroyed. When authorizing such issue of a new
certificate or certificates, the board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the corporation a bond in such
sum and with such surety or sureties as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
TRANSFER OF SHARES. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate; every such
transfer shall be entered on the transfer book of the corporation which shall
be kept at its principal office. Whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer. No transfer shall be made within ten (10) days next preceding
the annual meeting of stockholders.
ARTICLE VI -- DIVIDENDS
The board may out of funds legally available therefor at any regular or
special meeting, declare dividends upon the capital stock of the corporation as
when it deems expedient. Before declaring any dividend there may be set apart
out of any funds of the corporation available for dividends, such sum or sums
as the board from time to time in their discretion deem proper for working
capital or as a reserve fund to meet contingencies or for equalizing dividends
or for such other purposes as the board shall deem conducive to the interests
of the corporation.
-5-
<PAGE> 6
ARTICLE VII - CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name
of the corporation, the year of its organization and the words "CORPORATE SEAL,
FLORIDA." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporate obligation for the
payment of money may be facsimile, engraved or printed.
ARTICLE VIII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer or officers
or other person or persons as the board may from time to time designate.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner as shall be determined from time to time by resolution of the board.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin the first day of [9] in each year.
ARTICLE X - NOTICE AND WAIVER OF NOTICE
Whenever any notice is required by these By Laws to be given, personal
notice is not meant unless expressly so stated, and any notice so required
shall be deemed to be sufficient if given by depositing the same in a post
office box in a sealed postage paid wrapper, addressed to the person entitled
thereto at his or her last known post office address, and such notice shall be
deemed to have been given on the day of such mailing. Stockholders not entitled
to vote shall not be entitled to receive notice of any meetings except as
otherwise provided by Statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE XI - CONSTRUCTION
Whenever a conflict arises between the language of these By Laws and
the Certificate of Incorporation, the Certificate of Incorporation shall govern.
ARTICLE XII - CLOSE CORPORATION
Any action of the stockholder, directors or committee may be taken
without a meeting if consent in writing, setting forth the action so taken,
shall be signed by all persons who would be
-6-
<PAGE> 7
entitled to vote on such action at a meeting and filed with the secretary of the
corporation as part of the proceedings of the stockholders, directors or
committees as the case may be.
In the event that the stockholders are named in the Articles of
Incorporation and are empowered therein to manage the affairs of the corporation
in lieu of directors, the stockholders of the corporation shall be deemed
directors for the purposes of these By Laws and wherever the words "directors",
"board of directors" or "board" appear in these By Laws those words shall be
taken to mean stockholders.
The shareholders may, by majority vote, create a board of directors to
manage the business of the corporation and exercise its corporate powers.
ARTICLE XIII-AMENDMENTS
These By Laws may be altered or repealed and By Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the proposed alteration or repeal to be made be contained in the notice of
such special meeting, by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative vote of a
majority of the board at any regular meeting of the board or at any special
meeting of the board if notice of the proposed alteration or repeal to be made,
be contained in the notice of such special meeting.
-7-
<PAGE> 1
EXHIBIT 21.4
[STATE OF FLORIDA SEAL]
I certify the attached is a true and correct copy of the
Articles of Incorporation of CLEAN LAND COMPANY, a Florida
corporation, filed on October 7, 1997, as shown by the records of
this office.
The document number of this corporation is P97000086936.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Eighth day of October, 1997
[GREAT SEAL]
/s/ SANDRA B. MORTHAM
Sandra B. Mortham
CR2EO22 (2-95) Secretary of State
<PAGE> 2
FILED
SECRETARY OF STATE
DIVISION OF CORPORATIONS
97 OCT-7 PM 1:17
ARTICLES OF INCORPORATION
OF
CLEAN LAND COMPANY
ARTICLE I - NAME
The name of this corporation is CLEAN LAND COMPANY.
ARTICLE II - EFFECTIVE DATE AND DURATION
This corporation shall begin existence as of the date of filing with
the Secretary of State and continue perpetually unless dissolved.
ARTICLE III - PURPOSE
This corporation is organized for the purpose of transacting any and
all lawful business.
ARTICLE IV - COMMON STOCK
This corporation is authorized to issue one hundred (100) shares of
common stock with a par value of none.
ARTICLE V - AUTHORITY
This corporation has the authority to conduct any and all lawful
business which can be legally conducted by any corporation.
ARTICLE VI - DIVIDENDS
This corporation shall pay dividends upon the terms and conditions
specified by the Board of Directors from time to time.
ARTICLE VII - INCORPORATOR
The name of and address of the incorporator of this corporation is as
follows:
Charles C. Chillingworth, Esq.
Chillingworth & Conway, P.A.
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
[CHILLINGWORTH & CONWAY, P.A. LETTERHEAD]
<PAGE> 3
ARTICLE VIII - OFFICERS AND DIRECTORS
The following persons hereby hold the offices indicated, subscribe to
the number of shares indicated, and reside at the addresses listed:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES OFFICE
---- --------- ------
<S> <C> <C>
Charles C. Chillingworth 1 President, Treasurer &
2090 Palm Beach Lakes Boulevard Director
Suite 800
West Palm Beach, FL 33409
Helen K. Fekete 0 Secretary
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
</TABLE>
Directors shall hold office for a period of one (1) year and shall be
elected at each shareholder's meeting. There shall be (1) director initially.
ARTICLE IX - POWERS OF DIRECTORS
In furtherance and not in limitation of the powers conferred by Statute,
the Board of Directors is expressly authorized to make and alter the By-Laws of
this corporation to fix the amount to be reserved as working capital over and
above its capital stock paid in, and to authorize and cause to be executed
mortgages and liens upon real and personal property belonging to this
corporation. The Board of Directors shall also have the authority to hire and
fire all employees of the corporation and to fix their compensation, unless
these responsibilities are delegated to an officer.
ARTICLE X - PRINCIPAL PLACE OF BUSINESS
The principal place of business of this corporation shall be 2090 Palm
Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409. The Board of
Directors may from time to time move the place of business of this corporation.
ARTICLE XI - REGISTERED AGENT
The Registered Agent for service of process of this corporation,
who shall serve until removed by the Board of Directors, is
CHARLES C. CHILLINGWORTH, ESQ., Chillingworth & Conway, P.A., 2090 Palm Beach
Lakes Boulevard, Suite 800, West Palm Beach, FL 33409.
2
<PAGE> 4
ARTICLE XII - PRIVATE PROPERTY OF SHAREHOLDERS
The private property of the shareholders shall not be subject to the
payment of any corporate debts to any extent whatsoever.
ARTICLE XIII - EXCESS SALARY
In the event that the Internal Revenue Service determines that a portion
of the salary paid by this corporation to any of its employees, including its
officers and directors, is excessive under the law as it exists at that time,
and will not allow the corporation to deduct said portion of salary from its
earnings as an operating expense, said portion of salary deemed to be excessive
shall be automatically repaid to the corporation.
ARTICLE XIV - EXCESS BUSINESS EXPENSE
in the event that the Internal Revenue Service determines that any
business expense of the corporation is invalid or excessive under the law as it
exists at that time, and will not allow the corporation to deduct a portion of
said business expense, said portion of the business expense deemed to be
excessive shall be automatically repaid to the corporation.
ARTICLE XV - AMENDMENTS
This corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation or any amendment hereto, and any
right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned, being the original subscriber to
the shares of capital stock hereinabove described, for the purpose of forming a
corporation to do business under the laws of the State of Florida, does hereby
make and file these Articles of Incorporation, hereby declaring and certifying
that the facts herein stated are true, and does agree to take the number of
shares as hereinabove set forth, and hereunto has set his hand and seal this 6th
day of October, 1997.
/s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth
3
<PAGE> 5
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified
to take acknowledgments, personally appeared CHARLES C. CHILLINGWORTH, to me
known personally to be the person described in, and who executed the foregoing
instrument, and who did not take an oath, and acknowledged before me that he
executed the same.
WITNESS my hand and official seal in the County and State last aforesaid
this 6th day of October, 1997.
[SEAL] /s/ HELEN K. FEKETE
-------------------------------
Helen K. Fekete
Notary Public
My Commission Expires:
ACCEPTANCE
I, CHARLES C. CHILLINGWORTH, whose address is Chillingworth & Conway,
P.A, 2090 Palm Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409, do
hereby accept the appointment of Registered Agent for CLEAN LAND COMPANY.
/s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth
Registered Agent
4
<PAGE> 1
EXHIBIT 21.5
[STATE OF FLORIDA SEAL]
I certify the attached is a true and correct copy of the Articles of Amendment,
filed on May 21, 1998, to Articles of Incorporation for CLEAN LAND COMPANY which
changed its name to GENERAL ENVIRONMENTAL TECHNOLOGIES, INC., a Florida
corporation, as shown by the records of this office.
The document number of this corporation is P97000086936.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Twenty-eighth day of May, 1998
[GREAT SEAL] /s/ SANDRA B. MORTHAM
-------------------------
Sandra B. Mortham
CR2EO22 (2-95) Secretary of State
<PAGE> 2
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
Pursuant to the provisions of Chapter 607, Florida Statutes, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation.
1. The name of the corporation is CLEAN LAND COMPANY
2. The following amendments of the Articles of Incorporation were adopted
by the corporation:
ARTICLE I - NAME
The name of this corporation is GENERAL ENVIRONMENTAL
TECHNOLOGIES, INC.
ARTICLE IV - PREFERRED AND COMMON STOCK
The corporation is authorized to issue up to One Million
(1,000,000) shares of preferred stock with a par value of One and 00/100
Dollar ($1.00). Additionally, the corporation is authorized to issue up
to Ten Million (10,000,000) shares of common stock with a par value of
None.
3. The effective date of these Articles of Amendment shall be as of
May 1, 1998.
4. The foregoing Amendment was adopted by a unanimous vote of the
shareholders of the corporation on May 8, 1998. The number of votes cast
by the shareholders for the amendment was sufficient for approval.
Dated: May 13, 1998.
ATTEST: CLEAN LAND COMPANY
By: /s/ HELEN K. FEKETE By: /s/ CHARLES C. CHILLINGWORTH
------------------------------- ------------------------------------
Helen K. Fekete, Secretary Charles C. Chillingworth, President
FILED
98 MAY PM 2:04
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
[CHILLINGWORTH & CONWAY, P.A. LETTERHEAD]
<PAGE> 3
STATE OF FLORIDA
COUNTY OF PALM BEACH
BEFORE ME, the undersigned authority, this day personally appeared
Charles C. Chillingworth and Helen K. Fekete, personally known to me and known
to me to be the individuals described in and who executed the foregoing Articles
of Amendment to Articles of Incorporation as President and Secretary of Clean
Land Company, and who acknowledged before me that they executed the same for the
purposes therein expressed.
WITNESS my hand and official seal this 13th day of May, 1998.
/s/ JEANNE O. CONWAY
-------------------------------
Jeanne O. Conway
Notary Public
[SEAL]
2
<PAGE> 1
EXHIBIT 21.6
BYLAWS
OF
CLEAN LAND COMPANY
ARTICLE I - OFFICES
The principal office of the corporation shall be established and
maintained at 2090 Palm Beach Lakes Boulevard, Suite 800, in the City of West
Palm Beach, County of Palm Beach, State of Florida, 33409. The corporation may
also have offices at such places within or without the State of Florida as the
board may from time to time establish.
ARTICLE II - STOCKHOLDERS
PLACE OF MEETINGS. Meetings of stockholders shall be held at the
principal office of the corporation or at such place within or without the State
of Florida as the board shall authorize.
ANNUAL MEETING. The annual meeting of stockholders shall be held on the
7th day of October, at 11:00 o'clock a.m. each year; however, if such day falls
on a Sunday or a legal holiday, then on the next business day following at the
same time, the stockholders shall elect a board of directors and transact such
other business as may properly come before the meeting.
SPECIAL MEETINGS. Special meetings of the stockholders may be called by
the board of by the president or at the written request of stockholders owning a
majority of the stock entitled to vote at such meeting. A meeting requested by
stockholders shall be called for a date not less than ten (10) nor more than
sixty (60) days after the request is made the secretary shall issue the call
for the meeting unless the president, the board or the stockholders shall
designate another to make said call.
NOTICE OF MEETINGS. Written notice of each meeting of stockholders shall
state the purpose of the meeting and the time and place of the meeting. Notice
shall be mailed to each stockholder having the right and entitled to vote at
such meeting at his last address as it appears on the records of the
corporation, not less than ten (10) nor more than sixty (60) days before the
date set for such meeting. Such notice shall be sufficient for the meeting and
any adjournment thereof. If any stockholder shall transfer his stock after
notice, it shall not be necessary to notify, the transferee. Any stockholders
may waive notice of any meeting either before, during or after the meeting. If
no notice is submitted, a waiver of notice is agreed to by all parties in
attendance at the meeting.
VOTING. Every stockholder shall be entitled at each meeting and upon
each proposal presented at each meeting to one vote for each share of voting
stock recorded in his name on the books of the corporation on the date of the
meeting. The books of stockholders shall be produced at the meeting upon the
request of any stockholder. Upon the demand of any stockholder, the vote for
directors and the vote upon any questions before the meeting, shall be by
ballot. All elections for directors shall be decided by plurality vote; all
other questions shall be decided by majority vote.
<PAGE> 2
QUORUM. The presence, in person, of stockholders holding a majority of
the stock of the corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned meeting
at which the requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at the meeting
as originally noticed, but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof
ARTICLE III - DIRECTORS
BOARD OF DIRECTORS. The business of the corporation shall be managed and
its corporate powers exercised by a board of director(s), all of whom shall be
of full age. It shall not be necessary for directors to be stockholders.
ELECTION AND TERM OF DIRECTORS. Directors shall be elected at the annual
meeting of stockholders and each director elected shall hold office until his
successor has been elected and qualified, or until his prior resignation or
removal.
VACANCIES. If the office of any director, member of a committee or other
officer becomes vacant, the remaining directors in office, by a majority vote,
may appoint any qualified person to fill such vacancy, who shall hold office for
the unexpired term and until his successor shall be duly chosen,
REMOVAL OF DIRECTORS. Any or all of the directors may be removed with or
without cause by vote of a majority of all the stock outstanding and entitled to
vote at a special meeting of stockholders called for that purpose.
NEWLY CREATED DIRECTORSHIPS. The number of directors may be increased by
amendment of these By-Laws by the affirmative vote of a majority of the
directors, or, by the affirmative vote of a majority in interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
RESIGNATION. Any director may resign at anytime by giving written notice
to the board, the president or the secretary of the corporation. Unless
otherwise specified in the notice, the resignation shall take effect upon
receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
QUORUM OF DIRECTORS. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the board there
shall be less than a quorum present, a
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<PAGE> 3
majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned.
PLACE AND TIME OF BOARD MEETINGS. The board may hold its meetings at the
office of the corporation or at such other places, either within or without the
State of Florida as it may from time to time determine.
REGULAR ANNUAL MEETING. A regular annual meeting of the board shall be
held immediately following the annual meeting of stockholders at the place of
such annual meeting of stockholders.
NOTICE OF MEETINGS OF THE BOARD. Regular meetings of the board may be
held without notice at such time and place as it shall from time to time
determine. Special meetings of the board shall be held upon notice to the
directors and may be called by the president upon three (3) days notice to each
director either personally or by mail or by wire; special meetings shall be
called by the president or by the secretary in a like manner upon written
request of any director. Notice of a meeting need not be given to any director
who submits a waiver of notice whether before or after the meeting or who
attends the meeting without protesting prior thereto or at its commencement, the
lack of notice to him or her.
COMMITTEES. The board, by resolution, may designate no more than two (2)
of their number to one or more committees, which, to the extent provided in said
resolution or these By-Laws may exercise the powers of the board in the
management of the business of the corporation.
COMPENSATION OF DIRECTORS. No compensation shall be paid to directors,
as such, for their services, but by resolution of the board a fixed sum and
expenses for actual attendance, at each regular or special meeting of the board
maybe authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV - OFFICERS
The board may elect or appoint a chairman, a president, one or more vice
presidents, a secretary, and a treasurer, and such other officers as it may
determine, who shall have such duties and powers as hereinafter provided.
All officers shall be elected or appointed to hold office until the
meeting of the board following the next annual meeting of stockholders and until
their successors have been elected or appointed and qualified.
Any officer elected or appointed by the board may be removed by the
board with or without cause.
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<PAGE> 4
In the event of death, resignation or removal of an officer, the board
in its discretion may elect or appoint a successor to fill the unexpired term.
Any two or more offices may be held by the same person.
The salaries of all officers shall be fixed by the board.
The directors may require any officer to give security for the faithful
performance of his or her duties.
PRESIDENT. The president shall be the chief executive officer of the
corporation and shall have the general powers and duties of supervision and
management usually vested in the office of president of a corporation. He shall
preside at all meetings of the stockholders if present thereat, unless a
chairman has been elected by the board, and shall have general supervision,
direction and control of the business of the corporation. Except as the board
shall authorized the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts in behalf of the corporation, and shall
cause the seal to be affixed to any instrument requiring it and when so affixed,
the seal shall be attested by the signature of the secretary or the treasurer or
an assistant secretary or an assistant treasurer.
VICE PRESIDENT. During the absence or disability of the president, the
vice president, or if there are more than one, the executive vice president
shall have all the powers and functions of the president. Each vice president
shall perform such other duties as the board shall prescribe.
SECRETARY. The secretary shall attend all meetings of the board and of
the stockholders, record all votes and minutes of all proceedings in a book to
be kept for that purpose, give or cause to be given notice of all meetings of
stockholders and of special meetings of the board, keep in safe custody the seal
of the corporation and affix it to any instrument when authorized by the board,
when required, prepare or cause to be prepared and available at each meeting of
stockholders a certified list in alphabetical order of the names of stockholders
entitled to vote thereat, indicating the number of shares of each respective
class held by each, keep all the documents and records of the corporation as
required by law or otherwise in a proper and safe manner, and perform such other
duties as may be prescribed by the board, or assigned to him or her by the
president.
ASSISTANT SECRETARY. During the absence or disability of the secretary,
the assistant secretary, or if there are more than one, the one so designated by
the secretary or by the board, shall have ALL the powers and functions of the
secretary.
TREASURER. The treasurer shall have the custody of the corporate funds
and securities, keep full and accurate accounts of receipts and disbursements in
the corporate books, deposit all money and other valuables in the name and to
the credit of the corporation in such depositories as may be designated by the
board, disburse the funds of the corporation as may be ordered or authorized by
the board and preserve proper vouchers for such disbursements, render to the
president and board
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<PAGE> 5
at the regular meetings of the board, or whenever they require it, an account of
all his transactions as treasurer and of the financial condition of the
corporation, render a full financial report at the annual meeting of the
stockholders if so requested, be furnished by all corporate officers and agents
at his or her request with such reports and statements as he or she may require
as to all financial transactions of the corporation, and perform such other
duties as are given to him or her by these By-Laws or as from time to time are
assigned to him by the board or the president.
ASSISTANT TREASURER. During the absence or disability of the treasurer,
the assistant treasurer, or if there are more than one, the one so designated by
the secretary or by the board, shall have all the powers and functions of the
treasurer.
SURETIES AND BONDS. In case the board shall so require, any officer or
agent of the corporation shall execute to the corporation a bond in such sum and
with such surety or sureties as the board may direct, conditioned upon the
faithful performance of his duties to the corporation and including
responsibility for negligence and for the accounting for all property, funds or
securities of the corporation which may come into his or her hands.
ARTICLE V - CERTIFICATES FOR SHARES
CERTIFICATES. The shares of the corporation shall be represented by
certificates. They shall be numbered and entered in the books of the corporation
as they are issued. They shall exhibit the holder's name and the number of
shares and shall be signed by the president or a vice president and the
treasurer or the secretary and shall bear the corporate seal. When such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the corporation and a registrar, the
signatures of such officers may be facsimiles.
LOST OR DESTROYED CERTIFICATES. The board may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation, alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost or destroyed. When authorizing such issue of a new
certificate or certificates, the board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the corporation a bond in such
sum and with such surety or sureties as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
TRANSFER OF SHARES. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate; every such transfer
shall be entered on the transfer book of the corporation which shall be kept at
its principal office. Whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry
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<PAGE> 6
of the transfer. No transfer shall be made within ten (10) days next preceding
the annual meeting of stockholders.
ARTICLE VI - DIVIDENDS
The board may out of funds legally available therefor at any regular or
special meeting, declare dividends upon the capital stock of the corporation as
when it deems expedient. Before declaring any dividend there may be set apart
out of any funds of the corporation available for dividends, such sum or sums as
the board from time to time in their discretion deem proper for working capital
or as a reserve fund to meet contingencies or for equalizing dividends or for
such other purposes as the board shall deem conducive to the interests of the
corporation.
ARTICLE VII - CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name
of the corporation, the year of its organization and the words "CORPORATE SEAL,
FLORIDA." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporate obligation for the
payment of money may be facsimile, engraved or printed.
ARTICLE VIII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer or officers or
other person or persons as the board may from time to time designate.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner as shall be determined from time to time by resolution of the board.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin the first day of January in each year.
ARTICLE X - NOTICE AND WAIVER OF NOTICE
Whenever any notice is required by these By Laws to be given, personal
notice is not meant unless expressly so stated, and any notice so required shall
be deemed to be sufficient if given by
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<PAGE> 7
depositing the same in a post office box in a sealed postage paid wrapper,
addressed to the person entitled thereto at his or her last known post office
address, and such notice shall be deemed to have been given on the day of such
mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by Statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE XI - CONSTRUCTION
Whenever a conflict arises between the language of these By Laws and the
Certificate of Incorporation, the Certificate of Incorporation shall govern.
ARTICLE XII - CLOSE CORPORATION
Any action of the stockholder, directors or committee may be taken
without a meeting if consent in writing, setting forth the action so taken,
shall be signed by all persons who would be entitled to vote on such action at a
meeting and filed with the secretary of the corporation as part of the
proceedings of the stockholders, directors or committees as the case may be.
In the event that the stockholders are named in the Articles of
Incorporation and are empowered therein to manage the affairs of the corporation
in lieu of directors, the stockholders of the corporation shall be deemed
directors for the purposes of these By Laws and wherever the words "directors",
"board of directors" or "board" appear in these By Laws those words shall be
taken to mean stockholders.
The shareholders may, by majority vote, create a board of directors to
manage the business of the corporation and exercise its corporate powers.
ARTICLE XIII - AMENDMENTS
These By Laws may be altered or repealed and By Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the proposed alteration or repeal to be made be contained in the notice of
such special meeting, by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative vote of a
majority of the board at any regular meeting of the board or at any special
meeting of the board if notice of the proposed alteration or repeal to be made,
be contained in the notice of such special meeting.
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<PAGE> 8
ADOPTION
IN WITNESS WHEREOF, the undersigned directors have executed these By
Laws of the corporation on this 7th day of October, 1997, and have hereunto set
their hands and seals.
ATTEST:
/s/ HELEN K. FEKETE /s/ CHARLES C. CHILLINGWORTH
- ------------------------------- -------------------------------
Helen K. Fekete, Secretary Charles C. Chillingworth, Director
(Corporate Seal)
8
<PAGE> 1
EXHIBIT 21.7
[STATE OF FLORIDA SEAL]
I certify the attached is a true and correct copy of the Articles of
Incorporation of IROQUOIS CORPORATION, a Florida corporation, filed on April 28,
1998, as shown by the records of this office.
The document number of this corporation is P98000039013.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Thirtieth day of April, 1998
[GREAT SEAL] /s/ SANDRA B. MORTHAM
---------------------------------
Sandra B. Mortham
Secretary of State
CR2EO22 (2-95)
<PAGE> 2
ARTICLES OF INCORPORATION FILED
OF 98 APR 28 AM 8:16
IROQUOIS CORPORATION SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLE I - NAME
The name of this corporation is IROQUOIS CORPORATION.
ARTICLE II - EFFECTIVE DATE AND DURATION
This corporation shall begin existence as of the date of filing with the
Secretary of State and continue perpetually unless dissolved.
ARTICLE III - PURPOSE
This corporation is organized for the purpose of transacting any and all
lawful business.
ARTICLE IV - COMMON STOCK
This corporation is authorized to issue One Million (1,000,000) shares
of common stock with a par value of Ten Dollars ($10.00).
ARTICLE V - AUTHORITY
This corporation has the authority to conduct any and all lawful
business which can be legally conducted by any corporation.
ARTICLE VI - DIVIDENDS
This corporation shall pay dividends upon the terms and conditions
specified by the Board of Directors from time to time.
ARTICLE VII - INCORPORATOR
The name of and address of the incorporator of this corporation is as
follows:
Charles C. Chillingworth, Esq.
Chillingworth & Conway, P.A.
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
[CHILLINGWORTH & CONWAY, P.A. LETTERHEAD]
<PAGE> 3
ARTICLE VIII - OFFICERS AND DIRECTORS
The following persons hereby hold the offices indicated, subscribe to
the number of shares indicated, and reside at the addresses listed:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES OFFICE
- ---- ------ ------
<S> <C> <C>
Norman J. Birmingham 1 President, Treasurer & Director
10250 NW 52nd Street
Coral Springs, FL 33076
Bradley T. Ray 1 Chairman of the Board & Director
7105 Catalina Isle Drive
Lake Worth, FL 33437
Charles C. Chillingworth 1 Vice President & Director
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach FL 33409
Helen K. Fekete Secretary
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
</TABLE>
Directors shall hold office for a period of one (1) year and shall be
elected at each shareholder's meeting. There shall be three (3) directors
initially.
ARTICLE IX - POWERS OF DIRECTORS
In furtherance and not in limitation of the powers conferred by Statute,
the Board of Directors is expressly authorized to make and alter the By-Laws of
this corporation to fix the amount to be reserved as working capital over and
above its capital stock paid in, and to authorize and cause to be executed
mortgages and liens upon real and personal property belonging to this
corporation. The Board of Directors shall also have the authority to hire and
fire all employees of the corporation and to fix their compensation, unless
these responsibilities are delegated to an officer.
ARTICLE X - PRINCIPAL PLACE OF BUSINESS
The principal place of business of this corporation shall be 2090 Palm
Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409. The Board of
Directors may from time to time move the place of business of this corporation.
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<PAGE> 4
ARTICLE XI - REGISTERED AGENT
The Registered Agent for service of process of this corporation, who
shall serve until removed by the Board of Directors, is CHARLES C.
CHILLINGWORTH, ESQ., Chillingworth & Conway, P.A., 2090 Palm Beach Lakes
Boulevard, Suite 800, West Palm Beach, FL 33409.
ARTICLE XII - PRIVATE PROPERTY OF SHAREHOLDERS
The private property of the shareholders shall not be subject to the
payment of any corporate debts to any extent whatsoever.
ARTICLE XIII - EXCESS SALARY
In the event that the Internal Revenue Service determines that a portion
of the salary paid by this corporation to any of its employees, including its
officers and directors, is excessive under the law as it exists at that time,
and will not allow the corporation to deduct said portion of salary from its
earnings as an operating expense, said portion of salary deemed to be excessive
shall be automatically repaid to the corporation.
ARTICLE XIV - EXCESS BUSINESS EXPENSE
In the event that the Internal Revenue Service determines that any
business expense of the corporation is invalid or excessive under the law as it
exists at that time, and will not allow the corporation to deduct a portion of
said business expense, said portion of the business expense deemed to be
excessive shall be automatically repaid to the corporation.
ARTICLE XV - AMENDMENTS
This corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation or any amendment hereto, and any
right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned, being the original subscriber to
the shares of capital stock hereinabove described, for the purpose of forming a
corporation to do business under the laws of the State of Florida, does hereby
make and file these Articles of Incorporation, hereby declaring and certifying
that the facts herein stated are true, and does agree to take the number of
shares as hereinabove set forth, and hereunto has set his hand and seal this
24th day of April, 1998.
/s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth
3
<PAGE> 5
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgements, personally appeared CHARLES C. CHILLINGWORTH, to me
known personally to be the person described in, and who executed the foregoing
instrument, and who did not take an oath, and acknowledged before me that he
executed the same.
WITNESS my hand and official seal in the County and State last aforesaid
this 24th day of April, 1998.
/s/ HELEN K. FEKETE
----------------------------
[SEAL] Helen K. Fekete
Notary Public
My Commission Expires:
ACCEPTANCE
I, CHARLES C. CHILLINGWORTH, whose address is Chillingworth & Conway,
P.A., 2090 Palm Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409, do
hereby accept the appointment of Registered Agent for IROQUOIS CORPORATION.
/s/ CHARLES C. CHILLINGWORTH
----------------------------
Charles C. Chillingworth
Registered Agent
FILED
98 APR 28 AM 8:16
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
4
<PAGE> 1
EXHIBIT 21.8
BY LAWS
OF
IROQUOIS CORPORATION
ARTICLE I - OFFICES
The principal office of the corporation shall be established and
maintained at 2090 Palm Beach Lakes Boulevard, Suite 800, in the City of West
Palm Beach, County of Palm Beach, State of Florida. The corporation may also
have offices at such places within or without the State of Florida as the board
may from time to time establish.
ARTICLE II - STOCKHOLDERS
PLACE OF MEETINGS. Meetings of stockholders shall be held at the
principal office of the corporation or at such place within or without the State
of Florida as the board shall authorize.
ANNUAL MEETING. The annual meeting of stockholders shall be held on the
28th day of April at o'clock 2:00 p.m. each year; however, if such day falls on
a Sunday or a legal holiday, then on the next business day following at the same
time, the stockholders shall elect a board of directors and transact such other
business as may properly come before the meeting.
SPECIAL MEETINGS. Special meetings of the stockholders may be called by
the board or by the president or at the written request of stockholders owning a
majority of the stock entitled to vote at such meeting. A meeting requested by
stockholders shall be called for a date not less than ten (10) nor more than
sixty (60) days after the request is made. The secretary shall issue the call
for the meeting unless the president, the board or the stockholders shall
designate another to make said call.
NOTICE OF MEETINGS. Written notice of each meeting of stockholders shall
state the purpose of the meeting and the time and place of the meeting. Notice
shall be mailed to each stockholder having the right and entitled to vote at
such meeting at his last address as it appears on the records of the
corporation, not less than ten (10) nor more than sixty (60) days before the
date set for such meeting. Such notice shall be sufficient for the meeting and
any adjournment thereof. If any stockholder shall transfer his stock after
notice, it shall not be necessary to notify the transferee. Any stockholder may
waive notice of any meeting either before, during or after the meeting. If no
notice is submitted, a waiver of notice is agreed to by all parties in
attendance at the meeting.
VOTING. Every stockholder shall be entitled at each meeting and upon
each proposal presented at each meeting to one vote for each share of voting
stock recorded in his name on the books of the corporation on the date of the
meeting. The books of stockholders shall be produced at the meeting upon the
request of any stockholder. Upon the demand of any stockholder, the vote for
directors and the vote upon any questions before the meeting, shall be by
ballot. All elections for directors shall be decided by plurality vote; all
other questions shall be decided by majority vote.
<PAGE> 2
QUORUM. The presence, in person, of stockholders holding a majority of
the stock of the corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned meeting
at which the requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at the meeting
as originally noticed, but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof.
ARTICLE III - DIRECTORS
BOARD OF DIRECTORS. The business of the corporation shall be managed and
its corporate powers exercised by a board of director(s), all of whom shall be
of full age. It shall not be necessary for directors to be stockholders.
ELECTION AND TERM OF DIRECTORS. Directors shall be elected at the annual
meeting of stockholders and each director elected shall hold office until his
successor has been elected and qualified, or until his prior resignation or
removal.
VACANCIES. If the office of any director, member of a committee or other
officer becomes vacant, the remaining directors in office, by a majority vote,
may appoint any qualified person to fill such vacancy, who shall hold office for
the unexpired term and until his successor shall be duly chosen.
REMOVAL OF DIRECTORS. Any or all of the directors may be removed with or
without cause by vote of a majority of all the stock outstanding and entitled to
vote at a special meeting of stockholders called for that purpose.
NEWLY CREATED DIRECTORSHIPS. The number of directors may be increased by
amendment of these By-Laws by the affirmative vote of a majority of the
directors, or, by the affirmative vote of a majority in interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
RESIGNATION. Any director may resign at any time by giving written
notice to the board, the president or the secretary of the corporation. Unless
otherwise specified in the notice, the resignation shall take effect upon
receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
QUORUM OF DIRECTORS. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the board there
shall be less than a quorum present, a
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<PAGE> 3
majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned.
PLACE AND TIME OF BOARD MEETINGS. The board may hold its meetings at the
office of the corporation or at such other places, either within or without the
State of Florida as it may from time to time determine.
REGULAR ANNUAL MEETING. A regular annual meeting of the board shall be
held immediately following the annual meeting of stockholders at the place of
such annual meeting of stockholders.
NOTICE OF MEETINGS OF THE BOARD. Regular meetings of the board may be
held without notice at such time and place as it shall from time to time
determine. Special meetings of the board shall be held upon notice to the
directors and may be called by the president upon three (3) days notice to each
director either personally or by mail or by wire; special meetings shall be
called by the president or by the secretary in a like manner upon written
request of any director. Notice of a meeting need not be given to any director
who submits a waiver of notice whether before or after the meeting or who
attends the meeting without protesting prior thereto or at its commencement the
lack of notice to him or her.
COMMITTEES. The board, by resolution, may designate no more than two (2)
of their number to one or more committees, which, to the extent provided in said
resolution or these By-Laws may exercise the powers of the board in the
management of the business of the corporation.
COMPENSATION OF DIRECTORS. No compensation shall be paid to directors,
as such, for their services, but by resolution of the board a fixed sum and
expenses for actual attendance, at each regular or special meeting of the board
may be authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV - OFFICERS
The board may elect or appoint a chairman, a president, one or more vice
presidents, a secretary, and a treasurer, and such other officers as it may
determine, who shall have such duties and powers as hereinafter provided.
All officers shall be elected or appointed to hold office until the
meeting of the board following the next annual meeting of stockholders and until
their successors have been elected or appointed and qualified.
Any officer elected or appointed by the board may be removed by the
board with or without cause.
3
<PAGE> 4
In the event of death, resignation or removal of an officer, the board
in its discretion may elect or appoint a successor to fill the unexpired term.
Any two or more offices may be held by the same person.
The salaries of all officers shall be fixed by the board.
The directors may require any officer to give security for the faithful
performance of his or her duties.
PRESIDENT. The president shall be the chief executive officer of the
corporation and shall have the general powers and duties of supervision and
management usually vested in the office of president of a corporation. He shall
preside at all meetings of the stockholders if present thereat, unless a
chairman has been elected by the board, and shall have general supervision,
direction and control of the business of the corporation. Except as the board
shall authorized the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts in behalf of the corporation, and shall
cause the seal to be affixed to any instrument requiring it and when so affixed,
the seal shall be attested by the signature of the secretary or the treasurer or
an assistant secretary or an assistant treasurer.
VICE PRESIDENT. During the absence or disability of the president, the
vice president, or if there are more than one, the executive vice president,
shall have all the powers and functions of the president. Each vice president
shall perform such other duties as the board shall prescribe.
SECRETARY. The secretary shall attend all meetings of the board and of
the stockholders, record all votes and minutes of all proceedings in a book to
be kept for that purpose, give or cause to be given notice of all meetings of
stockholders and of special meetings of the board, keep in safe custody the seal
of the corporation and affix it to any instrument when authorized by the board,
when required, prepare or cause to be prepared and available at each meeting of
stockholders a certified list in alphabetical order of the names of stockholders
entitled to vote thereat indicating the number of shares of each respective
class held by each, keep all the documents and records of the corporation as
required by law or otherwise in a proper and safe manner, and perform such other
duties as may be prescribed by the board, or assigned to him or her by the
president.
ASSISTANT SECRETARY. During the absence or disability of the secretary,
the assistant secretary, or if there are more than one, the one so designated by
the secretary or by the board, shall have all the powers and functions of the
secretary.
TREASURER. The treasurer shall have the custody of the corporate funds
and securities, keep full and accurate accounts of receipts and disbursements in
the corporate books, deposit all money and other valuables in the name and to
the credit of the corporation in such depositories as may be designated by the
board, disburse the funds of the corporation as may be ordered or authorized by
the board and preserve proper vouchers for such disbursements, render to the
president and board
4
<PAGE> 5
at the regular meetings of the board, or whenever they require it, an account of
all his transactions as treasurer and of the financial condition of the
corporation, render a full financial report at the annual meeting of the
stockholders if so requested, be furnished by all corporate officers and agents
at his or her request with such reports and statements as he or she may require
as to all financial transactions of the corporation, and perform such other
duties as are given to him or her by these By-Laws or as from time to time are
assigned to him by the board or the president.
ASSISTANT TREASURER. During the absence or disability of the treasurer,
the assistant treasurer, or if there are more than one, the one so designated by
the secretary or by the board, shall have all the powers and functions of the
treasurer.
SURETIES AND BONDS. In case the board shall so require, any officer or
agent of the corporation shall execute to the corporation a bond in such sum and
with such surety or sureties as the board may direct, conditioned upon the
faithful performance of his duties to the corporation and including
responsibility for negligence and for the accounting for all property, funds or
securities of the corporation which may come into his or her hands,
ARTICLE V - CERTIFICATES FOR SHARES
CERTIFICATES. The shares of the corporation shal1 be represented by
certificates. They shall be numbered and entered in the books of the corporation
as they are issued. They shall exhibit the holder's name and the number of
shares and shall be signed by the president or a vice president and the
treasurer or the secretary and shall bear the corporate seal. When such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the corporation and a registrar, the
signatures of such officers may be facsimiles.
LOST OR DESTROYED CERTIFICATES. The board may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation, alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost or destroyed. When authorizing such issue of a new
certificate or certificates, the board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the corporation a bond in such
sum and with such surety or sureties as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
TRANSFER OF SHARES. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate; every such transfer
shall be entered on the transfer book of the corporation which shall be kept at
its principal office. Whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry
5
<PAGE> 6
of the transfer. No transfer shall be made within ten (10) days next preceding
the annual meeting of stockholders.
ARTICLE VI - DIVIDENDS
The board may out of funds legally available therefor at any regular or
special meeting, declare dividends upon the capital stock of the corporation as
when it deems expedient. Before declaring any dividend there may be set apart
out of any funds of the corporation available for dividends, such sum or sums as
the board from time to time in their discretion deem proper for working capital
or as a reserve fund to meet contingencies or for equalizing dividends or for
such other purposes as the board shall deem conducive to the interests of the
corporation.
ARTICLE VII - CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name
of the corporation, the year of its organization and the words "CORPORATE SEAL,
FLORIDA." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporate obligation for the
payment of money may be facsimile, engraved or printed.
ARTICLE VII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer or officers or
other person or persons as the board may from time to time designate.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner as shall be determined from time to time by resolution of the board.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin the first day of [9] in each year.
ARTICLE X - NOTICE AND WAIVER OF NOTICE
Whenever any notice is required by these By Laws to be given, personal
notice is not meant unless expressly so stated, and any notice so required shall
be deemed to BE sufficient if given by
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<PAGE> 7
depositing the same in a post office box in a sealed postage paid wrapper,
addressed to the person entitled thereto at his or her last known post office
address, and such notice shall be deemed to have been given on the day of such
mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by Statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE XI - CONSTRUCTION
Whenever a conflict arises between the language of these By Laws and the
Certificate of Incorporation, the Certificate of Incorporation shall govern.
ARTICLE XII - CLOSE CORPORATION
Any action of the stockholder, directors or committee may be taken
without a meeting if consent in writing, setting forth the action so taken,
shall be signed by all persons who would be entitled to vote on such action at a
meeting and filed with the secretary of the corporation as part of the
proceedings of the stockholders, directors or committees as the case may be.
In the event that the stockholders are named in the Articles of
Incorporation and are empowered therein to manage the affairs of the corporation
in lieu of directors, the stockholders of the corporation shall be deemed
directors for the purposes of these By Laws and wherever the words "directors",
"board of directors" or "board" appear in these By Laws those words shall be
taken to mean stockholders.
The shareholders may, by majority vote, create a board of directors to
manage the business of the corporation and exercise its corporate powers.
ARTICLE XIII - AMENDMENTS
These By Laws may be altered or repealed and By Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the proposed alteration or repeal to be made be contained in the notice of
such special meeting, by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative vote of a
majority of the board at any regular meeting of the board or at any special
meeting of the board if notice of the proposed alteration or repeal to be made,
be contained in the notice of such special meeting,
7
<PAGE> 8
ADOPTION
IN WITNESS WHEREOF, the undersigned directors have executed these By
Laws of the corporation on this 30th day of April, 1998 and have hereunto set
their hands and seals.
ATTEST:
/s/ HELEN K. Fekete /s/ NORMAN J. BIRMINGHAM
- ------------------------------- -------------------------------
Helen K. Fekete, Secretary Norman J. Birmingham, Director
BRADLEY T. RAY
-------------------------------
Bradley T. Ray, Director
[CORPORATE SEAL] /s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth, Director
8
<PAGE> 1
EXHIBIT 21.9
Certificate of Incorporation
of
THE IROQUOIS WRECKING CORP.
Pursuant to Section 402 of the Business Corporation Law
BLU-39 STATE OF NEW YORK
BILLED DEPARTMENT OF ???
FILED: APR 30, 1998
TAX: $10
By: SGW ???
Filed By: FILED
--------- APR 30 12:00 PM '98
CERTILMAN BALIN ADLER & HYMAN
90 MERRICK AVENUE
EAST MEADOW NY 11554
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
THE IROQUOIS WRECKING CORP.
Pursuant to Section 402 of the Business Corporation Law
I, the undersigned, a natural person of at least 18 years of age, for the
purpose of forming a corporation under Section 402 of the Business Corporation
Law of the State of New York hereby certify:
FIRST: The name of the corporation is:
THE IROQUOIS WRECKING CORP
SECOND: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under Article IV of
the Business Corporation Law, except that it is not formed to engage
in any act or activity requiring the consent or approval of any state
official, department, board, agency or other body without such consent
or approval first being obtained.
THIRD: The office of the corporation is to be located in the County of NASSAU
State of New York.
FOURTH: The aggregate number of shares which the corporation shall have the
authority to issue is TWO HUNDRED, each of which shall be common stock
with no par value.
FIFTH: The Secretary of State is designated as agent of the corporation upon
whom process against it may be served. The post office address to
which the Secretary of State shall mail a copy of any process against
the corporation served upon him is:
C/O THE CORPORATION
150 FULTON STREET
HEMPSTEAD, NY 11550
<PAGE> 3
SIXTH: No director of the corporation shall have personal liability to the
corporation or to its shareholders for damages for any breach of duty
in such capacity, provided, however, that the provision shall not
eliminate or limit:
(a) the liability of any director of the corporation if a judgment or
other final adjudication adverse to him establishes that his acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled or, with respect to any director of the corporation, that his
acts violated Section 719 of the Business Corporation Law of the State
of New York, or
(b) the liability of a director for any act or omission prior to the
final adoption of this article.
SEVENTH: The holders of any of the corporation's equity shares shall be
entitled to preemptive rights in accordance with the provisions of BCL
section 622.
IN WITNESS WHEREOF, this certificate of incorporation has been subscribed by
the undersigned this 04/30/98, who affirms the statements made herein are true
under the penalties of perjury.
/s/ Sharon Babala
-------------------------------
Sharon Babala, Incorporator
Blumberg Excelsior Corporate
Services, Inc.
488 Broadway
Albany, New York 12207
2
<PAGE> 1
EXHIBIT 21.10
BY-LAWS
OF
IROQUOIS WRECKING CORP.
Incorporated under the Business Corporation Law of the State of New York
1. PRINCIPAL OFFICE
(1.1) INITIAL LOCATION. The principal office of the corporation shall
initially be located at 37-55 39th Street, Long Island City, NY
(1.2) CHANGE OF LOCATION. The board of directors may, upon reasonable
written notice to all shareholders, relocate the principal office of the
corporation.
(1.3) OTHER OFFICES. In addition to its principal office, the corporation
may have such other offices, either within or without the state of
incorporation, as the board of directors may designate.
2. DIRECTORS
(2.1) NUMBER. The number of directors shall be that number as may from
time to time be fixed by the board of directors, but not less than the minimum
number required by law.
(2.2) QUALIFICATION. No person shall serve as a director unless such
person is at least 18 years of age.
(2.3) NOTICES. Upon taking office, each director shall file with the
secretary a written designation of the address that the director desires to be
used for the purpose of giving notices to him/her. Until the director shall have
effectively done so, he/she shall be deemed to have designated either the
principal office of the corporation or any other address that the sender of the
notice could reasonably believe to be an appropriate address. Any designated
address may be redesignated by similar filing with the secretary. The secretary
shall give each of the other directors prompt notice of every designation or
re-designation filed. The designation or re-designation shall be effective three
business days after the secretary's action or upon earlier receipt. Any notice
to a director shall be valid if sent to either (a) the director's designated
address or (b) any other address used in good faith unless it be shown that
prejudice resulted from use of such other address. All notices must be in
writing. Any notice may be
Exhibit 21.10
<PAGE> 2
delivered by hand or sent by telecommunications device, by mail or by similar
means. If a notice is sent by registered mail or return receipt requested,
another copy shall at the same time be sent by ordinary first class mail.
(2.4) RESIGNATION. A director may resign at any time by giving notice to
each of the other directors. Unless otherwise specified, the notice shall be
effective immediately and acceptance shall not be necessary to make it
effective. A director need not assign cause for resigning.
(2.5) REMOVAL. A director may be removed by the shareholders without
cause or by the board of directors with cause.
3. BOARD OF DIRECTORS
(3.1) REGULAR MEETINGS. A regular meeting shall be held immediately after
and at the same place as the annual meeting of shareholders. The board of
directors may provide for other regular meetings. Notice need not be given of
any regular meeting.
(3.2) SPECIAL MEETINGS. The president or any two directors may call a
special meeting upon not less than 5 business days notice to every director of
the time and place of the special meeting. The special meeting notice does not
have to specify the business to be transacted.
(3.3) ADJOURNED MEETINGS. Whether or not a quorum is present, a majority
of the directors present may adjourn any meeting to such time and place as they
shall decide. Notice of any adjourned meeting need not be given. At any
adjourned meeting, whether adjourned once or more, any business may be
transacted that might have been transacted at the meeting of which it is an
adjournment. Additional business may also be transacted if proper notice shall
have been given.
(3.4) ORGANIZATION. The chairperson of the meeting shall be the president
if taking part in the meeting or, if not, any director elected by a majority of
the directors present. The secretary of the meeting shall be the secretary if
taking part in the meeting or, if not, any director appointed by the chairman
of the meeting.
(3.5) COMMITTEES. The board of directors may, by resolution passed by a
majority of the full board of directors (a) designate three or more of its
number to constitute an executive committee, or one or more other committees,
which, so far as may be permitted by law and to the extent and in that manner
provided in said resolution, shall have and may exercise, between meetings of
the board of directors, the powers of the board of directors in the management
of the affairs and business of the corporation, (b) at any time change the
members of any such committee, (c) fill vacancies in any such committee, and
(d) discharge any such committee, with or without cause. The board of directors
may provide for regular meetings of any such committee with or without notice
as the board of directors may prescribe. To the extent authority of the board
of directors has been delegated to any such committee, any reference in these
by-laws to the board of directors shall be deemed a reference to such committee.
(3.6) TELECOMMUNICATIONS PARTICIPATION. Any one or more directors may
participate in a meeting of the board or any committee by means of a conference
telephone or other type of telecommunications equipment allowing persons
participating in the meeting to hear each other at the same time.
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<PAGE> 3
(3.7) REGULATIONS. The board of directors may adopt rules and regulations,
not inconsistent with law, the certificate of incorporation or these by-laws,
for the conduct of its meetings and the management of all aspects of the affairs
of the corporation.
4. SHARES AND CERTIFICATES
(4.1) FORM OF CERTIFICATES. Certificates representing shares shall be in
the form determined by the board of directors. All certificates issued shall be
consecutively numbered or otherwise appropriately identified.
(4.2) SHARE TRANSFER LEDGER. There shall be kept a share transfer ledger
in which shall be entered full and accurate records including the names and
addresses of all shareholders, the number of shares issued to each shareholder
and the dates of issuance. All transfers of shares shall be promptly reflected
in the share transfer ledger. Unless otherwise directed by the board of
directors, the share transfer ledger shall be kept at the principal office of
the corporation.
(4.3) TRANSFER OF SHARES. Upon (a) receipt of the certificate representing
the shares to be transferred, either duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, (b) payment of any
required transfer taxes, and (c) payment of any reasonable charge the board of
directors may have established, the surrendered certificate shall be canceled
and a new certificate or certificates shall be issued to the person(s) entitled
to it.
(4.4) REPLACEMENT CERTIFICATES. Replacement certificates will be issued at
the request of the shareholder upon payment of any reasonable charge the board
of directors may have established. In case of a lost, mislaid, destroyed or
mutilated certificate, proof of the facts, by affidavit or otherwise, may also
be required, as may be a bond or other proper indemnification for the
corporation and its agents.
(4.5) RECORD OWNER TO BE TREATED AS OWNER. Unless otherwise directed by a
court of competent jurisdiction, the corporation shall treat the holder of
record of any share as the holder in fact and accordingly shall not recognize
any equitable or other claim to or interest in the shares on the part of any
other persons, whether or not it shall have express or other notice of it.
5. SHAREHOLDERS' MEETINGS
(5.1) ANNUAL MEETING. The annual meeting of the shareholders shall be held
on the 30th day in the month of April in each year at the principal office of
the corporation. If the day fixed for the annual meeting is a Saturday, Sunday
or holiday at the place it is to be held, the meeting shall be held on the
following day that is not such a day. Unless otherwise stated in the notice of
meeting pursuant to direction of the board of directors, the annual meeting
shall be held at the principal office of the corporation.
(5.2) SPECIAL MEETINGS. A special meeting of the shareholders may be
called by any two or more directors, the president or the holders of no less
than 10% of all the shares entitled to vote at the meeting.
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<PAGE> 4
(5.3) ADJOURNED MEETINGS. Whether or not a quorum is present, a majority
in voting power of the shareholders present in person or by proxy and entitled
to vote may adjourn any meeting to a time and place as they shall decide.
Notice of any adjourned meeting need not be given. At any adjourned meeting,
whether adjourned once or more, any business may be transacted that might have
been transacted at the meeting of which it is an adjournment. Additional
business may also be transacted if proper notice shall have been given.
(5.4) ORGANIZATION. The president shall be chairman of the meeting. The
secretary shall be secretary of the meeting. If neither the president nor any
vice president is present, the shareholders shall choose a chairman of the
meeting. If neither the secretary nor any assistant secretary is present, the
chairman of the meeting shall appoint a secretary of the meeting.
(5.5) ORDER OF BUSINESS. The order of business shall be as determined by
the chairman of the meeting, but the order may be changed by a majority in
voting power of the shareholders present in person or by proxy and entitled to
vote. Unless otherwise determined as aforesaid, the order shall be as follows:
1. Roll call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Unfinished business.
8. New business.
(5.6) VOTING. Upon demand of any shareholder, voting shall be by ballot,
in which event each ballot shall be signed by the shareholder or his proxy and
shall state the number shares votes. Otherwise, voting need not be in writing.
6. OFFICERS
(6.1) ADDITIONAL OFFICERS. In addition to the president, secretary,
treasurer and any other officers required by law, the corporation may have one
or more vice presidents elected by the board of directors, one of whom may be
designated as executive vice president. The corporation may also have such
other or assistant officers as may be elected by, or appointed in a manner
prescribed by, the board of directors.
(6.2) SENIORITY. The executive vice president, if there is one, shall be
deemed senior to all other vice presidents. Unless otherwise determined by, or
under rules prescribed by, the board of directors, seniority of any officer
shall be determined by length of continuous service in that office.
(6.3) CONTINUATION IN OFFICE. Unless otherwise provided by the board of
directors, every officer shall serve until death, incapacity, resignation or
removal by the board of directors. Any resignation or removal shall be without
prejudice to any contractual rights of the corporation or the officer.
9
<PAGE> 5
(6.4) DUTIES IN GENERAL. Subject to these by-laws, the authority and
duties of all officers shall be determined by, or in the manner prescribed by,
the board of directors. Except as may be specifically restricted by the board
of directors, any officer may delegate any of his/her authority and duties to
any subordinate officer.
(6.5) DUTIES OF THE PRESIDENT. The president shall be the principal
executive officer of the corporation and, subject to the control of the board
of directors, shall in general supervise and control all of the business and
affairs of the corporation. The president may sign, with the secretary or any
other proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments that the board of directors has
authorized to be executed, except in cases where the signing and execution
shall be expressly delegated by the board of directors or by these by-laws to
some other officer or agent of the corporation or shall be required by law to
be otherwise signed and executed, and in general shall perform all duties
incident to the office of president and such other duties as may be prescribed
by the board of directors from time to time.
(6.6) DUTIES OF VICE PRESIDENTS. In the absence or incapacity of the
president, the senior vice president shall perform the duties of the president
and, when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. Each vice president shall perform any other
duties as may be assigned by the president or by the board of directors.
(6.7) DUTIES OF SECRETARY. The secretary shall keep the minutes of the
shareholders' and the directors' meetings in one or more books provided for
that purpose, see that all notices are duly given in accordance with the
provisions of these by-laws or as otherwise required, be custodian of the
corporate records and of the seal of the corporation, keep a register of the
post office addresses of each shareholder, have general charge of the share
transfer books of the corporation, and in general perform all duties incident
to the office of secretary and other duties as may be assigned by the president
or by the board of directors.
(6.8) DUTIES OF TREASURER. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his/her duties in a
sum and with any surety or sureties as the board of directors shall determine.
The treasurer shall have charge and custody of and be responsible for all funds
and securities of the corporation, receive and give receipts for monies due and
payable to the corporation from any source whatsoever, and deposit all such
monies in the name of the corporation in the banks, trust companies or other
depositories as shall be selected in accordance with these by-laws, and in
general perform all the duties incident to the office of treasurer and such
other duties as may be assigned by the president or the board of directors.
(6.9) SALARIES. No officer shall receive any salary unless provided or
authorized by the board of directors. No officer shall be prevented from
receiving a salary by reason of the fact that he/she is a director.
7. SEAL
(7.1) FORM. The seal of the corporation shall be in the form impressed
in the margin.
10
<PAGE> 6
(7.2) USE. The seal may be used by causing it to be impressed directly
on the instrument or writing to be sealed, or upon an adhesive substance
annexed. The seal on certificates for shares or other documents may be a
facsimile, engraved or imprinted.
8. AMENDMENTS
(8.1) BY BOARD. These by-laws may be amended or repealed by the board of
directors.
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<PAGE> 1
EXHIBIT 21.11
[STATE OF FLORIDA SEAL]
I certify the attached is a true and correct copy of the
Articles of Incorporation of INDIGO INDUSTRIES, INC., a Florida
corporation, filed on January 21, 1997, as shown by the records
of this office.
The document number of this corporation is P97000007975.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Twenty-eighth day of January, 1997
[GREAT SEAL]
/s/ SANDRA B. MORTHAM
Sandra B. Mortham
CR2EO22 (2-95) Secretary of State
<PAGE> 2
FILED
97 JAN 21 AM 10:24
SECRETARY OF STATE
TALLAHASSE, FLORIDA
ARTICLES OF INCORPORATION
OF
INDIGO INDUSTRIES, INC.
ARTICLE I - NAME
The name of this corporation is INDIGO INDUSTRIES, INC.
ARTICLE II - EFFECTIVE DATE AND DURATION
This corporation shall begin existence as of the date of filing with the
Secretary of State and continue perpetually unless dissolved.
ARTICLE III - PURPOSE
This corporation is organized for the purpose of transacting any and
lawful business.
ARTICLE IV - COMMON STOCK
This corporation is authorized to issue one hundred (100) shares of
common stock with a par value of none.
ARTICLE V - AUTHORITY
This corporation has the authority to conduct any and all lawful
business which can be legally conducted by any corporation.
ARTICLE VI - DIVIDENDS
This corporation shall pay dividends upon the terms and conditions
specified by the Board of Directors from time to time.
ARTICLE VII - INCORPORATOR
The name of and address of the incorporator of this corporation is as
follows:
Charles C. Chillingworth, Esq.
Chillingworth & Conway, P.A.
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
[CHILLINGWORTH & CONWAY, P.A. LETTERHEAD]
<PAGE> 3
ARTICLE VIII - OFFICERS AND DIRECTORS
The following persons hereby hold the offices indicated, subscribe to
the number of Shares indicated, and reside at the addresses listed:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES OFFICE
---- --------- ------
<S> <C> <C>
Karl Schwab 1 President & Director
6275 North Ocean Boulevard
Ocean Ridge, FL 33435
Charles C. Chillingworth 0 Treasurer & Director
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach, FL 33409
Helen K. Fekete 0 Secretary
2090 Palm Beach Lakes Boulevard
Suite 800
West Palm Beach FL 33409
</TABLE>
Directors shall hold office for a period of one (1) year and shall be
elected at each shareholder's meeting. There shall be two (2) directors
initially.
ARTICLE IX - POWERS OF DIRECTORS
In furtherance and not in limitation of the powers conferred by Statute,
the Board of Directors is expressly authorized to make and alter the By-Laws of
this corporation to fix the amount to be reserved as working capital over and
above its capital stock paid in, and to authorize and cause to be executed
mortgages and liens upon real and personal property belonging to this
corporation. The Board of Directors shall also have the authority to hire and
fire all employees of the corporation and to fix their compensation, unless
these responsibilities are delegated to an officer.
ARTICLE X - PRINCIPAL PLACE OF BUSINESS
The principal place of business of this corporation shall be 2090 Palm
Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409. The Board of
Directors may from time to time move the place of business of this corporation.
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ARTICLE XI - REGISTERED AGENT
The Registered Agent for service of process of this corporation,
who shall serve until removed by the Board of Directors, is
CHARLES C. CHILLINGWORTH, ESQ., Chillingworth & Conway, P.A., 2090 Palm Beach
Lakes Boulevard, Suite 800, West Palm Beach, FL 33409.
ARTICLE XII - PRIVATE PROPERTY OF SHAREHOLDERS
The private property of the shareholders shall not be subject to the
payment of any corporate debts to any extent whatsoever.
ARTICLE XIII - EXCESS SALARY
In the event that the Internal Revenue Service determines that a portion
of the salary paid by this corporation to any of its employees, including its
officers and directors, is excessive under the law as it exists at that time,
and will not allow the corporation to deduct said portion of salary from its
earnings as an operating expense, said portion of salary deemed to be excessive
shall be automatically repaid to the corporation.
ARTICLE XIV - EXCESS BUSINESS EXPENSE
In the event that the Internal Revenue Service determines that any
business expense of the corporation is invalid or excessive under the law as it
exists at that time, and will not allow the corporation to deduct a portion of
said business expense, said portion of the business expense deemed to be
excessive shall be automatically repaid to the corporation.
ARTICLE XV - AMENDMENTS
This corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation or any amendment hereto, and any
right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned, being the original incorporator for
the purpose of farming a corporation to do business under the laws of the State
of Florida, does hereby make and file these Articles of Incorporation, hereby
declaring and certifying that the facts herein stated are true, and does agree
to take the number of shares as hereinabove set forth, and hereunto has set his
hand and seal this 17th day of January, 1997.
/s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth
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STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY that on this day before me, an officer duly qualified
to take acknowledgments, personally appeared CHARLES C. CHILLINGWORTH, to me
known personally to be the person described in, and who executed the foregoing
instrument, and who did not take an oath, and acknowledged before me that he
executed the same.
WITNESS my hand and official seal in the County and State last aforesaid
this 17th day of January, 1997.
/s/ KRIS L. LEAL
-------------------------------
Kris L. Leal [SEAL]
Notary Public
My Commission Expires:
ACCEPTANCE
I, CHARLES. C. CHILLINGWORTH, whose address is Chillingworth & Conway,
P.A., 2090 Palm Beach Lakes Boulevard, Suite 800, West Palm Beach, FL 33409, do
hereby accept the appointment of Registered Agent for INDIGO INDUSTRIES, INC.
/s/ CHARLES C. CHILLINGWORTH
-------------------------------
Charles C. Chillingworth
Registered Agent
FILED
97 JAN 21 AM 10:24
SECRETARY OF STATE
TALLAHASSEE FLORIDA
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EXHIBIT 21.12
BY LAWS
OF
INDIGO INDUSTRIES, INC.
ARTICLE I - OFFICES
The principal office of the corporation shall be established and
maintained at 2090 Palm Beach Lakes Boulevard, Suite 800, in the City of West
Palm Beach, County of Palm Beach, State of Florida. The corporation may also
have offices at such places within or without the State of Florida as the board
may from time to time establish.
ARTICLE II - STOCKHOLDERS
PLACE OF MEETINGS. Meetings of stockholders shall be held at the
principal office of the corporation or at such place within or without the State
of Florida as the board shall authorize.
ANNUAL MEETING. The annual meeting of stockholders shall be held on the
21st day of January at 11:00 o'clock a.m. each year; however, if such day falls
on a Sunday or a legal holiday, then on the next business day following at the
same time, the stockholders shall elect a board of directors and transact such
other business as may properly come before the meeting.
SPECIAL MEETINGS. Special meetings of the stockholders may be called by
the board or by the president or at the written request of stockholders owning a
majority of the stock entitled to vote at such meeting. A meeting requested by
stockholders shall be called for a date not less than ten(10) nor more than
sixty (60) days after the request is made. The secretary shall issue the call
for the meeting unless the president, the board or the stockholders shall
designate another to make said call.
NOTICE OF MEETINGS. Written notice of each meeting of stockholders shall
state the purpose of the meeting and the time and place of the meeting. Notice
shall be mailed to each stockholder having the right and entitled to vote at
such meeting at his last address as it appears on the records of the
corporation, not less than ten (10) nor more than sixty (60) days before the
date set for such meeting. Such notice shall be sufficient for the meeting and
any adjournment thereof. If any stockholder shall transfer his stock after
notice, it shall not be necessary to notify the transferee. Any stockholder may
waive notice of any meeting either before, during or after the meeting. If no
notice is submitted, a waiver of notice is agreed to by all parties in
attendance at the meeting.
VOTING. Every stockholder shall be entitled at each meeting and upon
each proposal presented at each meeting to one vote for each share of voting
stock recorded in his name on the books of the corporation on the date of the
meeting. The books of stockholders shall be produced at the meeting upon the
request of any stockholder. Upon the demand of any stockholder, the vote for
directors and the vote upon any questions before the meeting, shall be by
ballot. All elections for directors shall be decided by plurality vote; all
other questions shall be decided by majority vote.
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QUORUM. The presence, in person, of stockholders holding a majority of
the stock of the corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned meeting
at which the requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at the meeting
as originally noticed, but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof.
ARTICLE III - DIRECTORS
BOARD OF DIRECTORS. The business of the corporation shall be managed and
its corporate powers exercised by a board of director(s), all of whom shall be
of full age. It shall not be necessary for directors to be stockholders.
ELECTION AND TERM OF DIRECTORS. Directors shall be elected at the annual
meeting of stockholders and each director elected shall hold office until his
successor has been elected and qualified, or until his prior resignation or
removal.
VACANCIES. If the office of any director, member of a committee or other
officer becomes vacant, the remaining directors in office, by a majority vote,
may appoint any qualified person to fill such vacancy, who shall hold office for
the unexpired term and until his successor shall be duly chosen.
REMOVAL OF DIRECTORS. Any or all of the directors may be removed with or
without cause by vote of a majority of all the stock outstanding and entitled to
vote at a special meeting of stockholders called for that purpose.
NEWLY CREATED DIRECTORSHIPS. The number of directors may be increased by
amendment of these By-Laws by the affirmative vote of a majority of the
directors, or, by the affirmative vote of a majority in interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
RESIGNATION. Any director may resign at anytime by giving written notice
to the board, the president or the secretary of the corporation. Unless
otherwise specified in the notice, the resignation shall take effect upon
receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
QUORUM OF DIRECTORS. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the board there
shall be less than a quorum present, a
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majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned.
PLACE AND TIME OF BOARD MEETINGS. The board may hold its meetings at the
office of the corporation or at such other places, either within or without the
State of Florida as it may from time to time determine.
REGULAR ANNUAL MEETING. A regular annual meeting of the board shall be
held immediately following the annual meeting of stockholders at the place of
such annual meeting of stockholders.
NOTICE OF MEETINGS OF THE BOARD. Regular meetings of the board may be
held without notice at such time and place as it shall from time to time
determine. Special meetings of the board shall be held upon notice to the
directors and may be called by the president upon three (3) days notice to each
director either personally or by mail or by wire; special meetings shall be
called by the president or by the secretary in a like manner upon written
request of any director. Notice of a meeting need not be given to any director
who submits a waiver of notice whether before or after the meeting or who
attends the meeting without protesting prior thereto or at its commencement, the
lack of notice to him or her.
COMMITTEES. The board, by resolution, may designate no more than two (2)
of their number to one or more committees, which, to the extent provided in said
resolution or these By-Laws may exercise the powers of the board in the
management of the business of the corporation.
COMPENSATION OF DIRECTORS. No compensation shall be paid to directors,
as such, for their services, but by resolution of the board a fixed sum and
expenses for actual attendance, at each regular or special meeting of the board
may be authorized. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV - OFFICERS
The board may elect or appoint a chairman, a president, one or more vice
presidents, a secretary, and a treasurer, and such other officers as it may
determine, who shall have such duties and powers as hereinafter provided.
All officers shall be elected or appointed to hold office until the
meeting of the board following the next annual meeting of stockholders and until
their successors have been elected or appointed and qualified.
Any officer elected or appointed by the board may be removed by the
board with or without cause.
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In the event of death, resignation or removal of an officer, the board
in its discretion may elect or appoint a successor to fill the unexpired term.
Any two or more offices may be held by the same person.
The salaries of all officers shall be fixed by the board.
The directors may require any officer to give security for the faithful
performance of his or her duties.
PRESIDENT. The president shall be the chief executive officer of the
corporation and shall have the general powers and duties of supervision and
management usually vested in the office of president of a corporation. He shall
preside at all meetings of the stockholders if present thereat, unless a
chairman has been elected by the board, and shall have general supervision,
direction and control of the business of the corporation. Except as the board
shall authorize the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts in behalf of the corporation, and shall
cause the seal to be affixed to any instrument requiring it and when so affixed,
the seal shall be attested by the signature of the secretary or the treasurer or
an assistant secretary or an assistant treasurer.
VICE PRESIDENT. During the absence or disability of the president, the
vice president, or if there are more than one, the executive vice president,
shall have all the powers and functions of the president. Each vice president
shall perform such other duties as the board shall prescribe.
SECRETARY. The secretary shall attend all meetings of the board and of
the stockholders, record all votes and minutes of all proceedings in a book to
be kept for that purpose, give or cause to be given notice of all meetings of
stockholders and of special meetings of the board, keep in safe custody the seal
of the corporation and affix it to any instrument when authorized by the board,
when required, prepare or cause to be prepared and available at each meeting of
stockholders a certified list in alphabetical order of the names of stockholders
entitled to vote thereat, indicating the number of shares of each respective
class held by each, keep all the documents and records of the corporation as
required by law or otherwise in a proper and safe manner, and perform such other
duties as may be prescribed by the board, or assigned to him or her by the
president.
ASSISTANT SECRETARY. During the absence or disability of the secretary,
the assistant secretary, or if there are more than one, the one so designated by
the secretary or by the board, shall have all the powers and functions of the
secretary.
TREASURER. The treasurer shall have the custody of the corporate funds
and securities, keep full and accurate accounts of receipts and disbursements in
the corporate books, deposit all money and other valuables in the name and to
the credit of the corporation in such depositories as may be designated by the
board, disburse the funds of the corporation as may be ordered or authorized by
the board and preserve proper vouchers for such disbursements, render to the
president and board
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at the regular meetings of the board, or whenever they require it, an account of
all his transactions as treasurer and of the financial condition of the
corporation, render a full financial report at the annual meeting of the
stockholders if so requested, be furnished by all corporate officers and agents
at his or her request with such reports and statements as he or she may require
as to all financial transactions of the corporation, and perform such other
duties as are given to him or her by these By-Laws or as from time to time are
assigned to him by the board or the president.
ASSISTANT TREASURER. During the absence or disability of the treasurer,
the assistant treasurer, or if there are more than one, the one so designated by
the secretary or by the board, shall have all the powers and functions of the
treasurer.
SURETIES AND BONDS. In case the board shall so require, any officer or
agent of the corporation shall execute to the corporation a bond in such sum and
with such surety or sureties as the board may direct, conditioned upon the
faithful performance of his duties to the corporation and including
responsibility for negligence and for the accounting for all property, funds or
securities of the corporation which may come into his or her hands.
ARTICLE V - CERTIFICATES FOR SHARES
CERTIFICATES. The shares of the corporation shall be represented by
certificates. They shall be numbered and entered in the books of the corporation
as they are issued. They shall exhibit the holder's name and the number of
shares and shall be signed by the president or a vice president and the
treasurer or the secretary and shall bear the corporate seal. When such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the corporation and a registrar, the
signatures of such officers may be facsimiles.
LOST OR DESTROYED CERTIFICATES. The board may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation, alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost or destroyed. When authorizing such issue of a new
certificate or certificates, the board may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or give the corporation a bond in such
sum and with such surety or sureties as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
TRANSFER OF SHARES. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate; every such transfer
shall be entered on the transfer book of the corporation which shall be kept at
its principal office. Whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry
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of the transfer. No transfer shall be made within ten (10) days next preceding
the annual meeting of stockholders.
ARTICLE VI - DIVIDENDS
The board may out of funds legally available therefor at any regular or
special meeting, declare dividends upon the capital stock of the corporation as
when it deems expedient. Before declaring any dividend there may be set apart
out of any funds of the corporation available for dividends, such sum or sums as
the board from time to time in their discretion deem proper for working capital
or as a reserve fund to meet contingencies or for equalizing dividends or for
such other purposes as the board shall deem conducive to the interests of the
corporation.
ARTICLE VII - CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name
of the corporation, the year of its organization, and the words "CORPORATE SEAL,
FLORIDA." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificates for shares or on any corporate obligation for the
payment of money may be facsimile, engraved or printed.
ARTICLE VIII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer or officers or
other person or persons as the board may from time to time designate.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner as shall be determined from time to time by resolution of the
board.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin the first day of [9] in each year.
ARTICLE X - NOTICE AND WAIVER OF NOTICE
Whenever any notice is required by these By Laws to be given, personal
notice is not meant unless expressly so stated, and any notice so required shall
be deemed to be sufficient if given by
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depositing the same in a post office box in a sealed postage paid wrapper,
addressed to the person entitled thereto at his or her last known post office
address, and such notice shall be deemed to have been given on the day of such
mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by Statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the corporation or these By Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE XI - CONSTRUCTION
Whenever a conflict arises between the language of these By Laws and the
Certificate of Incorporation, the Certificate of Incorporation shall govern.
ARTICLE XII - CLOSE CORPORATION
Any action of the stockholder, directors or committee may be taken
without a meeting if consent in writing, setting forth the action so taken,
shall be signed by all persons who would be entitled to vote on such action at
a meeting and filed with the secretary of the corporation as part of the
proceedings of the stockholders, directors or committees as the case may be.
In the event that the stockholders are named in the Articles of
Incorporation and are empowered therein to manage the affairs of the corporation
in lieu of directors, the stockholders of the corporation shall be deemed
directors for the purposes of these By Laws and wherever the words "directors",
"board of directors" or "board" appear in these By Laws those words shall be
taken to mean stockholders.
The shareholders may, by majority vote, create a board of directors to
manage the business of the corporation and exercise its corporate powers,
ARTICLE XIII - AMENDMENTS
These By Laws may be altered or repealed and By Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the proposed alteration or repeal to be made be contained in the notice of
such special meeting, by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative vote of a
majority of the board at any regular meeting of the board or at any special
meeting of the board if notice of the proposed alteration or repeal to be made,
be contained in the notice of such special meeting.
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ADOPTION
IN WITNESS WHEREOF, the undersigned directors have executed these By
Laws of the corporation on this 26th day of January, 1997, and have hereunto set
their hands and seals.
ATTEST:
/s/ Helen K. Feket /s/ Charles C. Chillingworth
- ------------------------------- ---------------------------------
Helen K. Feket, Secretary Charles C. Chillingworth, Director
(Corporate Seal)
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration Statement, of
Mediforce, Inc. our report for the year ended March 31, 1998, dated June 22,
1998 relating to the financial statements of Mediforce, Inc. which appear in
such form 10-SB.
WEINBERG & COMPANY, P.A.
----------------------------------------
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
November 13, 1998
Exhibit 23.1
