<PAGE> 1
As filed with the Securities and Exchange Commission on March 5, 1998
Registration No. 333-38623
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
Amendment No. 2 to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
MAXXIS GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
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Georgia 4813 58-2278241
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Number)
Incorporation or Organization) Classification Code Number)
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1901 Montreal Road, Suite 108
Tucker, Georgia 30084
(770) 552-4766
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
------------------------------------
Thomas O. Cordy
Chief Executive Officer and President
Maxxis Group, Inc.
1901 Montreal Road, Suite 108
Tucker, Georgia 30084
(770) 552-4766
(770) 552-8471 (Fax)
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
------------------------------------
Copies of all correspondence to:
Glenn W. Sturm, Esq.
James Walker IV, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 817-6000
(404) 817-6050 (Fax)
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box.[ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 5, 1998
PROSPECTUS
450,000 SHARES
[MAXXIS LOGO]
COMMON STOCK
This Prospectus relates to the offering (the "Offering") of 450,000 shares
of Common Stock, no par value per share (the "Common Stock" or the "Shares"), of
MAXXIS GROUP, INC., a Georgia corporation (the "Company"). All of the Shares
offered hereby are being sold by the Company. Following the Offering, assuming
the sale of 450,000 Shares offered hereby, the directors and executive officers
and relatives and affiliates of directors and executive officers of the Company
and its subsidiaries, acting as a group and by reason of their ownership of
Common Stock, will hold approximately 48.8% of the voting power (on a fully
diluted basis) of the Company with respect to substantially all
(cover continued on next page)
SEE"RISK FACTORS" BEGINNING ON PAGE 8 FOR A DISCUSSION OF CERTAIN FACTORS,
INCLUDING THE RISK OF SUBSTANTIAL DILUTION, THAT SHOULD BE CONSIDERED
BY PROSPECTIVE PURCHASERS OF THE SHARES OFFERED HEREBY.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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==========================================================================================================================
PRICE TO UNDERWRITING DISCOUNTS PROCEEDS TO
PUBLIC(1) AND COMMISSIONS(2) COMPANY(3)
- --------------------------------------------------------------------------------------------------------------------------
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Per Share.................. $5.50 $ - $5.50
- --------------------------------------------------------------------------------------------------------------------------
Total...................... $2,475,000 $ - $2,475,000
==========================================================================================================================
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(1) The offering price has been arbitrarily established by the Company. See
"Risk Factors - Arbitrary Determination of Offering Price."
(2) In certain states, this Offering is expected to be made on behalf of the
Company solely by certain of its directors and executive officers, to whom
no commission or other compensation will be paid on account of such
activity, although they will be reimbursed for reasonable expenses incurred
in connection with such activity. The Company believes such participating
officers and directors shall not be deemed brokers under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), based on reliance on
Rule 3a4-1 of the Exchange Act. In addition, in the states of Florida,
Maryland, North Carolina, Texas and Virginia and, in the event this
Offering is registered or qualified in other states where directors and
officers are not permitted to effect offers and sales, in such other
states, the Company will offer shares of Common Stock through
broker/dealers who will enter into selling agent agreements with the
Company, whereby they will use their best efforts to sell the Common Stock
in those states. The Company will amend the Registration Statement to set
forth the terms of any agreement with any broker/dealer.
(3) Before deducting estimated expenses of $400,000 related to the Offering.
See "Use of Proceeds."
PROSPECTIVE PURCHASERS MUST EXECUTE A SUBSCRIPTION AGREEMENT (A
"SUBSCRIPTION AGREEMENT") IN ORDER TO OFFER TO PURCHASE SHARES. ONCE A
SUBSCRIPTION AGREEMENT IS RECEIVED BY THE COMPANY OR A BROKER/DEALER, AS THE
CASE MAY BE, A PROSPECTIVE PURCHASER WILL NOT HAVE THE RIGHT TO REVOKE OR
WITHDRAW SUCH SUBSCRIPTION AGREEMENT. ANY SUBSCRIPTION AGREEMENT MAY BE REJECTED
BY THE COMPANY FOR ANY REASON OR NO REASON WHATSOEVER. ACCEPTANCE OF ANY
PARTICULAR SUBSCRIPTION AGREEMENT BY THE COMPANY SHALL IN NO CASE REQUIRE THE
COMPANY TO ACCEPT ANY OTHER SUBSCRIPTION AGREEMENT. PROSPECTIVE PURCHASERS MUST
WARRANT IN THE SUBSCRIPTION AGREEMENT THAT THEY HAVE RECEIVED A COPY OF THIS
PROSPECTUS, AS AMENDED OR SUPPLEMENTED. SEE "THE OFFERING - HOW TO SUBSCRIBE."
No escrow account has been established, and all subscription funds will be
paid directly to the Company. Upon acceptance of a subscription by the Company,
subscription proceeds will be available for immediate use by the Company. There
can be no assurance that the Company will receive sufficient proceeds from the
Offering to fund any of the stated purposes of the Offering. See "Use of
Proceeds." In addition, there is no minimum number of Shares which must be sold
in this Offering, and there can be no assurance that any or all of the Shares
offered hereby will be sold. Once the Company accepts a subscription, the
Company will not refund the funds received in payment for such subscription in
the event that less than the maximum number of Shares offered hereby are sold
prior to the termination of the Offering. See "The Offering - No Escrow" and
"Risk Factors - No Minimum Offering Amount; Irrevocability of Subscriptions; No
Escrow."
------------------------------------
The date of this Prospectus is , 1998
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(cover continued from previous page)
matters submitted to a vote of the shareholders. See "Risk Factors - Management
will Maintain Control of the Company."
Prior to this Offering, there has been no public market for the Shares,
and it is currently anticipated that there will be no active trading market for
the Shares. The price of the Shares has been arbitrarily established by the
Company and does not necessarily bear any relationship to the Company's asset
value, net worth or other established criteria of value. See "Risk Factors -
Arbitrary Determination of Offering Price."
Sales of the Shares are expected to commence on or about March 17,
1998. This is a "best efforts" offering by the Company, and it will expire on
May 1, 1999, unless terminated earlier or extended by the Company for additional
90-day periods ending no later than December 31, 2000. The Company reserves the
right to terminate the Offering at any time.
The Company intends to offer the Shares primarily to regional and
executive directors and strategic partners of the Company. The Company has
established a minimum subscription of 20 Shares and maximum subscriptions of 20
Shares and 200 Shares, respectively, for each person who qualifies as a regional
or executive director in the Company's marketing system; provided, that the
aggregate number of Shares sold in this Offering shall not exceed 450,000.
However, the Company reserves the right to not sell to any particular regional
or executive director, to waive the maximum subscription amount or to allocate
additional Shares to regional and executive directors without notifying any
purchaser or prospective purchaser. The Company has not established minimum or
maximum subscriptions for strategic partners. See "The Offering."
------------------------------------
ADDITIONAL INFORMATION
The Company has not previously been subject to the reporting
requirements of the Exchange Act. The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (which term
shall include any amendments thereto) on Form S-1 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Shares to be
offered pursuant hereto. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the Shares, reference is made to the Registration
Statement, including the exhibits and schedules thereto, copies of which may be
examined without charge at the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549 and the regional offices of the Commission
located at 7 World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois
60661-2511. Copies of such materials may be obtained from the Public Reference
Section of the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at its public reference facilities in New York, New York, and
Chicago, Illinois, at prescribed rates. The Commission maintains a World Wide
Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission.
The address of the Commission's web site is http:\\www.sec.gov. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance reference is made to
the copy of such contract or other document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
The Company is not a reporting company as defined by the Commission.
The Company intends to furnish holders of the Shares with annual reports
containing financial statements audited by an independent public accounting firm
and quarterly reports containing unaudited financial information for the first
three quarters of each fiscal year.
The Company has applied for federal registration for the mark "MAXXIS."
This Prospectus includes product names and other trade names and trademarks of
the Company and of other companies.
2
<PAGE> 4
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including "Risk Factors" and the
consolidated financial statements and related notes thereto, appearing elsewhere
in this Prospectus. Maxxis Group, Inc. conducts all of its business and
operations through its wholly owned subsidiaries: Maxxis 2000, Inc. ("Maxxis
2000"); Maxxis Telecom, Inc. ("Maxxis Telecom"); and Maxxis Nutritional, Inc.
("Maxxis Nutritional"). Unless the context indicates otherwise, all references
to the "Company" or "Maxxis" refer to Maxxis Group, Inc. and its subsidiaries.
On October 8, 1997, the Company effected a one-for-five reverse stock split of
all outstanding shares of Common Stock. On February 17, 1998, the Company
effected a one-for-11 reverse stock split of all outstanding shares of Common
Stock and effected a plan of reorganization pursuant to which each outstanding
share of Class A Common Stock and Class B Common Stock was converted into one
share of Common Stock. All share and per share data have been adjusted to
reflect the reverse stock splits and the reorganization.
THE COMPANY
Maxxis markets telecommunications services and nutritional products in
the United States through its multi-level network marketing system of
"independent associates," or "IAs." The Company currently operates through its
subsidiaries: Maxxis 2000, which conducts network marketing operations; Maxxis
Telecom, which provides long distance services; and Maxxis Nutritional, which
provides private label nutritional products. The Company currently markets
1-Plus long distance service, value-added telecommunications services such as
prepaid phone cards, and nutritional products. The Company was incorporated in
January 1997 and began sponsoring IAs and marketing telecommunications services
in March 1997. For the period of January 24, 1997 to June 30, 1997 (the
"Inception Period") and the six months ended December 31, 1997, the Company
generated aggregate gross revenues of approximately $2,691,000 and $3,444,000,
respectively.
The Company initially intends to build a customer base for its
telecommunications services without having to commit capital or management
resources to construct its own telecommunications network and transmission
facilities. In February 1997, Maxxis Telecom contracted with Colorado River
Communications, Corp. ("CRC") to obtain switching and network services and to
allow CRC's telecommunications services to be sold by the Company's IAs. In the
future, the Company may contract with other providers of long distance services
and intends to analyze the feasibility of developing its own long distance
network. In November 1997, the Company began marketing several private label
dietary supplements to its customers and IAs. The Company's nutritional products
are manufactured by various suppliers.
The Company conducts its marketing activities exclusively through its
network of IAs. The Company believes that IAs are generally attracted to the
Company's multi-level network marketing system because of the potential for
supplemental income and because the IAs are not required to purchase any
inventory, have no monthly sales quotas or account collection issues, have
minimal required paperwork and have a flexible work schedule. The Company
encourages IAs to enroll subscribers with whom the IAs have an ongoing
relationship, such as family members, friends, business associates and
neighbors. The Company also sponsors opportunity meetings at which current IAs
are encouraged to bring in potential candidates for an introduction to the
Company's marketing system. The Company's multi-level network marketing system
and the Company's reliance upon IAs are intended to reduce net marketing costs,
subscriber acquisition costs and subscriber attrition. The Company believes that
its multi-level network marketing system will build a base of potential
customers for additional services and products.
The Company's goal is to develop a national distribution system through
which large volumes of telecommunications services, nutritional products and
other products and services may be sold. The Company intends to increase its
revenues by: (i) expanding its marketing network; (ii) increasing the number of
customers who purchase products and services offered by the Company; and (iii)
providing additional products and services for sale through its IAs. The Company
intends to achieve its goal by:
- Growing and Developing its Network of IAs by enhancing the
sponsoring and training services offered to IAs, continuing to
support the marketing efforts of IAs and introducing new
income opportunities for IAs.
3
<PAGE> 5
- Maintaining and Expanding the Number of Customers by offering
high quality, competitively-priced products and services
through a highly motivated network of IAs.
- Offering Additional Telecommunications Products by entering
into agreements for the marketing of additional products that
meet the needs of subscribers, which may include, among
others, paging, conference calling, wireless cable, cellular
and local phone service.
- Improving and Expanding its Product Lines by continuing to
evaluate and offer products that are attractive to its IAs and
customers. In addition to telecommunications products, the
Company recently began marketing a line of private label
nutritional products to its customers and IAs.
- Obtaining Competitive Prices on products and services through
the purchasing power of the Company's nationwide network.
Currently, the Company has five IA positions in its marketing system:
associate; senior associate; director; regional director; and executive
director. A director increases the size of the director's sales organization by
sponsoring additional persons to become senior associates. These senior
associates, and all senior associates that they, in turn, sponsor, become part
of the sales organization of the director who sponsored them. Senior associates,
through the growth of their sales organizations, may become directors, regional
directors or executive directors and thereby increase the size of the sales
organization of the person who was their original sponsor. The organization that
grows below each director through this process is called a "downline."
IAs are paid only by commissions and do not receive any salary from the
Company. All IA commissions are paid directly by the Company and are a specified
percentage or a designated amount of the gross proceeds received by the Company
on the sale of services and products. The Company designates a portion of its
gross commissions as "commission value," or "CV," and allocates the CV among
eligible participants in its marketing system. Currently, 20% of the CV earned
with respect to a long distance subscriber is paid weekly to the IA who
sponsored such subscriber, 75% of the CV is paid monthly to eligible directors
who have the IA who sponsored the subscriber in their downline and the remaining
5% is retained by the Company to be paid out to directors, regional directors
and executive directors in the Company's incentive bonus programs. All
directors, executive directors and regional directors who (i) have personally
gathered four active subscribers; (ii) have sponsored at least two new senior
associates who have gathered four active subscribers during the quarter; and
(iii) are certified as marketing directors ("MDs") are eligible to receive an
additional "Leadership Bonus." The Leadership Bonus is payable quarterly and
equals, in the aggregate, 1% of the total revenues of Maxxis 2000 during the
quarter. The Leadership Bonus is divided equally among all directors, regional
directors and executive directors who qualify for a Leadership Bonus. In order
to encourage the growth of the Company's marketing system, the Company also pays
eligible directors a weekly bonus amount, which is designated as "bonus value,"
or "BV," for each sale of bonus-eligible products. The Company primarily
designates retail priced phone cards and nutritional paks as bonus-eligible
products.
To become an associate, individuals (other than individuals in North
Dakota) must complete an application and purchase a distributor kit for $30. IAs
also pay an annual fee in order to maintain their status as IAs. The Company
provides training to all IAs which includes a detailed explanation of the
Company's products, the IA compensation plan and the use of the various
marketing tools available to the IA. The Company encourages senior associates,
directors and regional directors to become MDs. MDs provide personal training to
IAs. To become a MD, a senior associate, director or regional director must
attend a Company approved training school. The fee to attend the training school
is currently $99, and MDs must attend continuing education training schools each
year which also are subject to a fee. National training directors that are
selected by the Company are paid a fee by the Company for training MDs. The
Company does not receive any fees from IAs for the training provided by MDs.
The Company believes that maintaining sophisticated and reliable
transaction processing systems is essential for multi-level network marketing
companies. Accordingly, the Company invests in maintaining and enhancing its
computer systems. The Company's systems are designed to process detailed and
customized IA commission payments, monitor and analyze financial and operating
trends and track each IA's personal organization.
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As of February 1, 1998, the Company employed approximately 26 people,
not including IAs who are classified by the Company as independent contractors.
The Company's employees are not unionized, and the Company believes its
relationship with its employees is good.
The Company's principal executive office is located at 1901 Montreal
Road, Suite 108, Tucker, Georgia 30084, and its telephone number is (770)
552-4766.
THE OFFERING
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Common Stock outstanding.......................... 1,571,187 shares
Common Stock to be offered hereby................. 450,000 shares
Common Stock to be outstanding after
the Offering.................................... 2,021,187 shares
Use of Proceeds................................... Development of additional product lines, including an internet
access product; development and/or acquisition of
information, accounting and/or inventory control systems; and
for working capital and general corporate purposes. There
can be no assurance that the Company will receive sufficient
proceeds from the Offering to fund any of the proposed uses
of proceeds. See "Use of Proceeds."
Terms of the Offering; Irrevocability
of Subscriptions................................. Prospective purchasers must deliver to the Company or a
broker/dealer, as the case may be, a completed and executed
Subscription Agreement, the form of which is attached hereto
as Appendix A. An executed Subscription Agreement will
constitute a prospective purchaser's offer to purchase shares
of Common Stock as set forth in this Prospectus.
Prospective purchasers submitting completed and executed
Subscription Agreements will not have the right to revoke or
withdraw such Subscription Agreements. See "The Offering
- General."
No Minimum Offering Amount;
No Escrow........................................ There is no minimum number of Shares which must be sold in
this Offering, and there can be no assurance that any or all
of the Shares offered hereby will be sold. No escrow
account has been established, and all subscription funds will
be paid directly to the Company. Upon acceptance of a
subscription by the Company, subscription proceeds will be
available for immediate use by the Company. Once the
Company accepts a subscription, the Company will not
refund the funds received in payment for such subscription in
the event that less than the maximum number of Shares
offered hereby are sold prior to the termination of the
Offering. See "The Offering - No Escrow" and "Risk
Factors - No Minimum Offering Amount; Irrevocability of
Subscriptions; No Escrow."
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Transfer Restrictions............................. Each certificate evidencing the Shares will bear a legend
restricting the transfer of the Shares to individuals in any
jurisdiction where the offer or sale of the Shares would be
unlawful prior to registration or qualification of such offer or
sale under the laws of any such jurisdiction. In addition,
pursuant to the Subscription Agreement, each purchaser of
the Shares offered hereby agrees not to sell or otherwise
transfer the Shares or any securities issued on account of
such Shares during the Lock-up Period (as defined herein).
The Company may impose transfer restrictions during the
Lock-up Period by giving notice to the holders of record of
the Shares. The certificates evidencing the Shares will bear
a legend referencing these potential restrictions on transfer.
See "Risk Factors - Absence of Trading Market; Transfer
Restrictions" and "The Offering - Transfer Restrictions."
Plan of Distribution.............................. In certain states, offers and sales of the Common Stock will be
made on behalf of the Company by certain of its officers
and directors. The officers and directors will receive no
commissions or other remuneration in connection with such
activities, but they will be reimbursed for reasonable
expenses incurred in connection with the Offering. In
addition, in the states of Florida, Maryland, North Carolina,
Texas and Virginia and in any other states where officers
and directors of the Company are not permitted to make
offers and sales, the Company will offer shares of Common
Stock through broker/dealers who will use their best efforts
to sell the Common Stock in those states. See "The
Offering - Plan of Distribution."
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RISK FACTORS
Prospective purchasers of the Common Stock should carefully consider
the matters set forth herein under "Risk Factors," as well as the other
information set forth in this Prospectus.
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SUMMARY CONSOLIDATED FINANCIAL DATA
The following table sets forth summary consolidated financial data for
the periods presented. The Company was incorporated on January 24, 1997 and
began operations in March 1997. The statement of operations data for the
Inception Period is derived from the audited consolidated financial statements
and other data of the Company. The consolidated financial statements for the
Inception Period were audited by Arthur Andersen LLP, independent public
accountants. The statement of operations data for the six months ended December
31, 1997 and the balance sheet data as of December 31, 1997 have been derived
from the unaudited condensed consolidated financial statements of the Company
which include all adjustments, consisting of only normal recurring adjustments,
which the Company considers necessary for a fair presentation of the results of
operations for the period. All numbers have been rounded. Results for interim
periods are not necessarily indicative of the results to be expected for a full
fiscal year. The following summary consolidated financial data should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the consolidated financial statements and the
related notes thereto appearing elsewhere in this Prospectus.
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JANUARY 24, 1997 SIX MONTHS
(INCEPTION) ENDED
TO JUNE 30, 1997 DECEMBER 31, 1997
------------------ --------------------
(UNAUDITED)
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STATEMENT OF OPERATIONS DATA:
Revenues:
Telecommunications services...................................... $ 2,322,000 $ 2,588,000
Nutritional products............................................. -- 186,000
Marketing services............................................... 369,000 670,000
------------------ --------------------
Total revenues................................................ 2,691,000 3,444,000
------------------ --------------------
Cost of services:
Telecommunications services...................................... 761,000 868,000
Nutritional products............................................. -- 77,000
Marketing services............................................... 255,000 228,000
------------------ --------------------
Gross margin....................................................... 1,675,000 2,271,000
------------------ --------------------
Operating expenses:
Selling and marketing............................................ 1,089,000 1,326,000
General and administrative....................................... 660,000 1,111,000
------------------ --------------------
Total operating expenses...................................... 1,749,000 2,437,000
------------------ --------------------
Interest expense................................................... -- 2,000
Loss before income tax benefit..................................... (74,000) (168,000)
Income tax benefit................................................. -- --
------------------ --------------------
Net loss........................................................... $ (74,000) $ (168,000)
================== ====================
PER SHARE DATA:
Net loss per share................................................. $ (0.05) $ (0.11)
================== ====================
Weighted average number of shares outstanding...................... 1,571,187 1,571,187
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AS OF
DECEMBER 31, 1997
---------------------
(UNAUDITED)
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BALANCE SHEET DATA:
Working capital...................................................................... $ (133,000)
Property and equipment, net.......................................................... 167,000
Total assets......................................................................... 908,000
Long-term obligations................................................................ --
Shareholders' equity................................................................. 212,000
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RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a
high degree of risk. Before purchasing any Shares offered by this Prospectus,
prospective purchasers should carefully consider the following factors relating
to the Company and the Offering, together with the other information and
financial data appearing elsewhere in this Prospectus. This Prospectus contains
"forward-looking statements" relating to, without limitation, future economic
performance, plans and objectives of management for future operations and
projections of revenues and other financial items that are based on the beliefs
of the Company's management, as well as assumptions made by, and information
currently available to, the Company's management. The words "expect,"
"estimate," "anticipate," "believe" and similar expressions and variations
thereof are intended to identify forward-looking statements. The cautionary
statements set forth in this "Risk Factors" section and elsewhere in this
Prospectus identify important factors with respect to such forward-looking
statements, including certain risks and uncertainties, that could cause actual
results to differ materially from those in such forward-looking statements.
NEW ENTERPRISE
The Company currently is in the organizational stage and has a limited
operating history. As a consequence, prospective purchasers of the Shares have
limited information upon which to base an investment decision. The Company's
operations are subject to the risks inherent in the establishment of any new
business. The Company expects that it will incur substantial initial expenses,
and there can be no assurance that the Company will achieve or maintain
profitability. There can be no assurance that the products or services offered
by the Company will receive market acceptance or that the Company's prices and
demand for products and services offered by the Company will be at a level
sufficient to provide profitable operations. The Company has entered into an
agreement with CRC, a provider of switching and network transmission services,
and the Company purchases its private label nutritional products from several
manufacturers. However, there can be no assurance that the Company will be able
to maintain these relationships or enter into new contracts with other suppliers
on terms acceptable to the Company or at all. See "- Dependence upon Suppliers,"
"Business Competition," "- Strategy" and "- Products and Services."
The Company will use the proceeds of the Offering, in part, to pay
organizational and offering expenses in connection with the start-up of the
Company's business and, in particular, the establishment of the Company's
multi-level network marketing system. The Company believes that the proceeds of
the Offering, together with cash generated through operations, will be
sufficient to enable the Company to pay organizational and offering expenses and
to fund continued operations, including the development of additional product
lines. However, there can be no assurance that the Company will generate
sufficient proceeds from this Offering and its ongoing operations to establish
its multi-level network marketing system or to maintain its operations, or that
the Company's business will be successful. See "- Broad Discretion in
Application of Proceeds; Unspecified Acquisitions; Possible Need for Additional
Capital" and "Use of Proceeds."
NO MINIMUM OFFERING AMOUNT; IRREVOCABILITY OF SUBSCRIPTIONS; NO ESCROW
There is no minimum number of Shares which must be sold in this
Offering, and there can be no assurance that any or all of the Shares offered
hereby will be sold. Once a Subscription Agreement is received by the Company, a
prospective purchaser will not have the right to revoke or withdraw such
Subscription Agreement. In addition, the Company reserves the right to reject,
in whole or in part and in its sole discretion, any subscription. No escrow
account has been established, and all subscription funds will be paid directly
to the Company. Acceptance and/or deposit of any subscription funds by the
Company shall not constitute acceptance of a subscription. Upon acceptance of a
subscription by the Company, subscription proceeds will be available for
immediate use by the Company. Once the Company accepts a subscription, the
Company will not refund the funds received in payment for such subscription in
the event that less than the maximum number of Shares offered hereby are sold
prior to the termination of the Offering. See "The Offering - No Escrow."
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BROAD DISCRETION IN APPLICATION OF PROCEEDS; UNSPECIFIED ACQUISITIONS; POSSIBLE
NEED FOR ADDITIONAL CAPITAL
The Company intends to use: (i) approximately $53,000, or 2.6%, of the
net proceeds will be used to repay a note outstanding to the Company's Chief
Executive Officer; (ii) approximately $900,000, or 43.4%, of the net proceeds
for the development of additional product lines, including an internet access
product; (iii) approximately $500,000, or 24.1%, of the net proceeds for the
development and/or acquisition of information, accounting and/or inventory
control systems; and (iv) approximately $622,000, or 29.9%, of the net proceeds
for working capital and general corporate purposes. However, the specific uses
for much of the net proceeds will be at the complete discretion of the Board of
Directors of the Company and may be allocated based upon circumstances arising
from time to time in the future.
The Company may in the future utilize a portion of the net proceeds of
the Offering to pursue acquisitions or complementary services or businesses.
Future acquisitions may result in potentially dilutive issuances of equity
securities, the incurrence of additional debt, the write-off of costs and the
amortization of expenses related to goodwill and other intangible assets, all of
which could have a material adverse effect on the Company's business, financial
condition or results of operations. The Company currently has no agreements or
understandings with regard to any acquisitions. Shareholders may not be entitled
to vote on any potential acquisitions nor have the opportunity to review any
potential acquisition candidate. See "Use of Proceeds."
The Company anticipates that it will require approximately $1.9 million
in capital to fund its ongoing operations through December 31, 1998. The Company
anticipates that the proceeds of this Offering, together with borrowings and
cash generated from operations, will be sufficient to meet the Company's capital
requirements through December 31, 1998. However, there can be no assurance that
the Company will receive enough proceeds from the Offering to fund any of the
proposed uses of proceeds, including raising enough proceeds to fund its
operations or to cover the estimated offering expenses. If the Company does not
receive sufficient funds from its operations, its borrowings and from the
Offering to fund its operations, the Company may need to raise additional
capital. Sources of additional capital may include venture capital financing,
cash flow from operations, lines of credit and private equity and debt
financings. The Company may also require additional financing in the event it
decides to develop additional product lines or to engage in acquisitions. The
extent of additional financing required will depend partially on the success of
the Company's business. There can be no assurance that additional financing will
be available to the Company or, if available, that it can be obtained on terms
acceptable to the Company. The Company's inability to obtain additional capital
on terms favorable to the Company could have a material adverse effect on the
Company's business, financial condition and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources."
NET LOSS; ACCUMULATED DEFICIT; NEGATIVE WORKING CAPITAL
For the six months ended December 31, 1997, the Company had a net loss
of $168,000. As of December 31, 1997, the Company had an accumulated deficit of
$242,000 representing accumulated losses from operations during the Inception
Period and the six months ended December 31, 1997, and negative working capital
of $133,000. See "Selected Consolidated Financial Information" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations." The
Company's operating expenses have increased as its business has grown and can be
expected to increase significantly if the Company continues to grow. There is no
assurance that future operating results will result in a profit, will eliminate
the accumulated deficit or will generate positive working capital or that
additional losses from operations will not be sustained by the Company, each of
which would result in further increases of such accumulated deficit and negative
working capital.
DEPENDENCE ON IAS
The Company's success depends heavily upon its ability to attract,
maintain and motivate a large base of IAs who, in turn, sponsor subscribers,
customers and other IAs. The Company anticipates a significant turnover among
IAs, which the Company believes is typical of businesses involved in direct
selling. The Company encourages existing IAs to sponsor new IAs in order to
maintain or increase the overall IA force. Activities of the IAs in obtaining
new subscribers will particularly be influenced by changes in the level of IA
motivation, which in turn can be positively or negatively affected by general
economic conditions, modifications
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in commission and training fees and in the Company's marketing plan, the prices
and competitive positions of the products and services offered by the Company
and a number of other intangible factors. The Company's ability to attract IAs
could be negatively affected by adverse publicity relating to the Company or its
services or its operations, including its multi-level network marketing system.
Administrative or technological problems of the type that may be encountered by
both early stage and mature companies, such as malfunctions in accounting
systems or computer information systems, may lead to the immediate and dramatic
attrition of IAs and subscribers. The Company has begun establishing its network
of IAs. However, there can be no assurance that the Company will be successful
in establishing a viable network of IAs. Because of the number of factors that
affect the Company's ability to attract and retain IAs, the Company cannot
predict when or to what extent increases or decreases in the level of IA
retention or attrition will occur. In addition, the number of IAs as a
percentage of the population could reach levels that become difficult to exceed
due to the finite number of persons inclined to pursue an independent direct
selling business opportunity. There can be no assurance that the number or
productivity of IAs will be sufficient to support the Company's proposed
products and services in the future or to allow the Company to achieve its
objectives.
The Company is subject to competition for IAs from other network
marketing organizations, including those that market long distance services,
health products, cosmetics and dietary supplements, such as EXCEL
Communications, Inc. ("EXCEL"), American Communications Network ("ACN"), Amway
Corporation ("Amway"), TDG Communications ("TDG"), BeautiControl Cosmetics,
Inc., Herbalife International, Inc. ("Herbalife") and Mary Kay, Inc. EXCEL
representatives sell a variety of long distance telecommunications services, ACN
representatives sell long distance services for LCI International, Inc. ("LCI")
and other long-distance carriers, Amway distributors sell 1-Plus long distance
service for MCI Communications Corporation ("MCI"), TDG sells MCI Paging
Services and the MCI VNet Calling Cards and Herbalife markets food and dietary
supplements. See "Business - Strategy," "- Marketing" and "- Regulation."
RELATIONSHIP WITH IAS
Because IAs are classified as independent contractors, the Company is
unable to provide them the same level of direction and oversight as Company
employees. While the Company has policies and rules in place governing the
conduct of the IAs and intends to review periodically the sales tactics of the
IAs, it may be difficult to enforce such policies and rules. Violations of these
policies and rules might reflect negatively on the Company and may lead to
complaints to or by various federal and state regulatory authorities. Violation
of the Company's policies and rules could subject the Company and its long
distance provider to complaints regarding the unauthorized switching of
subscribers' long distance carriers (also known in the industry as "slamming").
Such complaints could have a material adverse effect on the Company's business,
financial condition and results of operations. See "Business - Relationship with
IAs."
REGULATION OF NETWORK MARKETING; EFFECT OF STATE SECURITIES LAWS
The Company's multi-level network marketing system is subject to or
affected by extensive government regulation including, without limitation,
federal and state regulations governing the offer and sale of business
franchises, business opportunities and securities. Various governmental agencies
monitor direct selling activities, and the Company could be required to supply
information regarding its marketing plan to such agencies. Although the Company
believes that its multi-level network marketing system is in material compliance
with the laws and regulations relating to direct selling activities, there can
be no assurance that legislation and regulations adopted in particular
jurisdictions in the future will not adversely affect the Company's business,
financial condition and results of operations. The Company also could be found
not to be in compliance with existing statutes or regulations as a result of,
among other things, misconduct by IAs, who are considered independent
contractors over whom the Company has limited control, the ambiguous nature of
certain of the regulations and the considerable interpretive and enforcement
discretion given to regulators. Any assertion or determination that the Company
or the IAs are not in compliance with existing statutes or regulations could
have a material adverse effect on the Company's business, financial condition
and results of operations. An adverse determination by any one state on any
regulatory matter could influence the decisions of regulatory authorities in
other jurisdictions.
The Company has not obtained any no-action letters or advance rulings
from any federal or state securities regulator or other governmental agency
concerning the legality of the Company's operations, and the
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Company is not relying on an opinion of counsel to such effect. The Company
accordingly is subject to the risk that its multi-level network marketing system
could be found to be in noncompliance with applicable laws and regulations,
which could have a material adverse effect on the Company's business, financial
condition or results of operations. Such a decision could require the Company to
modify its multi-level network marketing system, result in negative publicity,
or have a negative effect on distributor morale and loyalty. In addition, the
Company's multi-level network marketing system will be subject to regulations in
foreign markets administered by foreign agencies should the Company expand its
network marketing organization into such markets. See "Business - Marketing" and
"- Regulation - Regulation of Network Marketing."
The primary goal of the Offering is to increase the motivation of
regional and executive directors by allowing them to purchase an interest in the
Company. Accordingly, because the Company desires the ability to offer its
Common Stock to regional and executive directors in California, Florida,
Georgia, Maryland, Michigan, New York, North Carolina, South Carolina, Texas,
Virginia and Washington, the Company has filed the Registration Statement of
which this Prospectus forms a part with the state securities regulators for such
states in order to apply for registration or qualification of the Offering in
such states. Due to the varying nature of state securities regulations and the
considerable discretion given to state securities regulators, the Company
anticipates that it will be unable to register or qualify the Offering in
certain of these states, and there can be no assurance that the Company will be
able to register or qualify the Offering in any of these states. The inability
of the Company to offer and sell the Shares to residents of certain states may
limit the ability of the Company to attract IAs in such states, or lead to
increased attrition of IAs in such states, and may have a material adverse
effect on the Company's business, prospects, financial condition and results of
operations. An adverse determination by any one state regulator on a securities
regulatory matter could influence the decisions of state regulatory authorities
in other jurisdictions. See "Business - Regulation - Effect of State Securities
Laws."
INTENSE COMPETITION
The Company faces competition in the United States for both the
products and services it sells and for the sponsoring and retaining of
independent salespeople. The United States long distance telecommunications
industry is intensely competitive, rapidly evolving and subject to rapid
technological change. In addition, the industry is significantly influenced by
the marketing and pricing practices of the major industry participants. AT&T
Corp. ("AT&T"), MCI, Sprint Corporation ("Sprint") and WorldCom, Inc.
("WorldCom") are the dominant competitors in the domestic long distance
telecommunications industry. All of these companies are significantly larger
than the Company and have substantially greater resources. According to a 1995
report by the Federal Communications Commission (the "FCC"), AT&T, MCI, Sprint
and WorldCom accounted for approximately 56%, 17%, 10% and 5%, respectively, of
total domestic long distance revenue for calendar year 1994. Many of the
Company's current and potential competitors have longer operating histories,
greater name recognition, larger customer bases and substantially greater
financial, personnel, marketing, technical and other resources than the Company.
These competitors employ various means to attract new subscribers, including
television and other advertising campaigns, telemarketing programs, network
marketing and cash payments and other incentives. The Company's ability to
compete effectively depends upon, among other factors, its ability to offer high
quality products and services at competitive prices. There can be no assurance
that the Company will be able to compete successfully. See "Business -
Competition."
On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996, as amended (the "1996 Telecommunications Act"),
that will allow local exchange carriers ("LECs"), including the Bell Operating
Companies ("BOCs"), to provide long distance telephone service inter-LATA (a
"LATA" is a Local Access and Transport Area), which will likely significantly
increase competition for long distance services. The new legislation also grants
the FCC the authority to deregulate other aspects of the telecommunications
industry. Such increased competition could have a material adverse effect on the
Company's business, financial condition and results of operations.
Telecommunications companies compete for subscribers based on price,
among other things, with major long distance carriers conducting extensive
advertising campaigns to capture market share. There can be no assurance that a
decrease in the rates charged for communications services by the major long
distance carriers or other competitors, whether caused by general competitive
pressures or the entry of the BOCs and other LECs
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into the long distance market, would not have a material adverse effect on the
Company's business, financial condition and results of operations.
The Company expects that the telecommunications services markets will
continue to attract new competitors and new technologies, possibly including
alternative technologies that are more sophisticated and cost effective than the
technologies included in the products and services offered by the Company. The
Company does not have the contractual right to prevent subscribers from changing
to a competing service, and the subscribers may terminate their service at will.
The Company also competes in the highly competitive market of dietary
supplements. This market segment includes numerous manufacturers, other network
marketing companies, catalog companies, distributors, marketers, retailers and
physicians that actively compete for the business of consumers. The Company
competes with other providers of such products, especially retail outlets, based
upon convenience of purchase, price and immediate availability of the purchased
product. For the most part, the Company's competitors offering comparable
products are substantially larger and have available considerably greater
financial resources than the Company. The market is highly sensitive to the
introduction of new products (including various prescription drugs) that may
rapidly capture a significant share of the market. As a result, the Company's
ability to remain competitive depends in part upon the successful introduction
of new products at competitive prices.
The Company also competes for IAs with other direct selling
organizations, some of which have longer operating histories and greater
visibility, name recognition and financial resources. The largest network
marketing companies in the Company's markets are EXCEL, ACN and Amway. The
Company competes for IAs on the basis of the Company's reputation, perceived
opportunity for financial success and quality and range of products offered for
sale. Management envisions the entry of many more direct selling organizations
into the marketplace. There can be no assurance that the Company will be able to
successfully meet the challenges posed by this increased competition. The
Company competes for the time, attention and commitment of its IAs. Given that
the pool of individuals interested in the business opportunities presented by
direct selling is limited in each market, the potential pool of IAs for the
Company's products and services is reduced to the extent other network marketing
companies successfully attract these individuals. Although management believes
that the Company offers an attractive business opportunity, there can be no
assurance that other network marketing companies will not be able to convince
the Company's existing IAs to joint their organization or to deplete the pool of
potential IAs in a given market, and in such event, the Company's business,
financial condition and results of operations could be materially adversely
affected. See "Business - Competition."
DEPENDENCE UPON SUPPLIERS
The Company does not own a long distance network. As a result, Maxxis
Telecom has entered into an agreement (the "1-Plus Agreement") with CRC to
obtain switching and network services. The Company now depends exclusively on
CRC for the transmission of subscriber phone calls and the activation of prepaid
phone cards. Subscribers are long distance customers on CRC's network, and CRC
provides subscriber support for the Company's subscribers. Subscribers have the
right to change their service at any time. The 1-Plus Agreement, which expires
on February 20, 2000, provides that the Company will have such rights to the
subscriber base developed under the agreement only upon achieving certain
minimum levels of monthly revenues on CRC's network. Once the Company reaches
these minimum levels, the Company will have the right to market other carriers
to the subscriber base in the event the Company contracts with such carriers.
There can be no assurance that the Company will achieve the minimum level of
monthly revenues on CRC's network necessary to obtain rights to the subscriber
base. Although the Company does not currently intend to use a different carrier,
minimum monthly revenues may be more difficult to maintain if the Company
utilizes additional carriers, and the Company could be subject to additional
minimum commitments including, but not limited to, minimum monthly revenues or
minimum monthly minutes of usage, with such new carriers. The accurate and
prompt billing of the subscribers originated by the IAs is also dependent upon
CRC. The failure of CRC to accurately and promptly bill subscribers could lead
to a loss of subscribers and could have a material adverse effect on the
Company's business, financial condition and results of operations. The Company
would be required to use another carrier if the 1-Plus Agreement is terminated,
the usage or number of subscribers originated by the Company's IAs exceeds the
capacity of CRC or CRC fails to provide quality services. In such event, or in
the event the Company otherwise elects to use other carriers, the cost paid by
the Company for such long distance services may exceed that paid under the
1-Plus Agreement. If the 1-Plus Agreement is
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terminated, there can be no assurance that the Company could enter into new
contracts with other providers on terms favorable to the Company or at all, and
the termination of the 1-Plus Agreement or the failure of CRC to provide quality
services, quality customer support or accurate and timely billing could have a
material adverse effect on the Company's business, financial condition and
results of operations. See "Business - Suppliers" and "Management's Discussion
and Analysis of Financial Condition and Results of Operations."
In November 1997, the Company began marketing a line of private label
nutritional products. All of the nutritional products offered and distributed by
the Company are developed and manufactured by third-party suppliers. Certain of
the nutritional products offered by the Company are proprietary to such
suppliers. The Company does not have any written contracts with or commitments
from any of its suppliers or manufacturers to continue to sell nutritional
products to the Company. The Company believes that its relationships with its
suppliers are satisfactory; however, there can be no assurance that any or all
of these suppliers will continue to be reliable suppliers to the Company.
Accordingly, there is a risk that any or all of the Company's suppliers or
manufacturers, including suppliers which provide proprietary products to the
Company, could discontinue selling their nutritional products to the Company.
In the event any of the third-party manufacturers become unable or unwilling to
continue to provide the nutritional products in required volumes, the Company
would be required to identify and obtain acceptable replacement sources, and no
assurance can be given that any alternative manufacturing sources would become
available to the Company on a timely basis. See "Business - Suppliers."
MANAGEMENT WILL MAINTAIN CONTROL OF THE COMPANY
Following the Offering, assuming the sale of 450,000 Shares offered
hereby, the directors and executive officers and relatives and affiliates of
directors and executive officers of the Company and its subsidiaries will own,
in the aggregate, 987,270 shares of Common Stock which collectively represents
approximately 48.8% of the total outstanding shares of Common Stock, and
investors purchasing in this Offering would own 22.3% of the total outstanding
shares of Common Stock. Accordingly, the directors and executive officers and
relatives and affiliates of directors and executive officers of the Company and
its subsidiaries, acting as a group, will have the ability to elect all of the
directors of the Company and control the Company's management, operations and
affairs for the foreseeable future. See "Principal Shareholders" and
"Description of Capital Stock."
ABILITY TO MANAGE GROWTH
The Company's goal is to develop a nationwide network of IAs and to
offer long distance telecommunications products, nutritional products and other
products and services throughout the United States. The Company's strategy of
growth and expansion will place substantial demands upon the Company's current
management and other resources and may require a substantial amount of working
capital, as well as management, operational and other financial resources. The
success of the Company will depend on various factors, including, among others,
federal and state regulation of the telecommunications industry and dietary
supplement industry, competition and the capability and capacity of the
Company's long distance carriers. Not all of the foregoing factors are within
the control of the Company. The Company's ability to manage growth successfully
will require the Company to develop strong operational, management, financial
and information systems and controls. No assurance can be given that the Company
will experience growth or that, if it does, that management will be able to
manage growth effectively. In such event, the Company's business, financial
condition and results of operations could be materially adversely affected. See
"Business - Strategy," "- Marketing," "- Information Systems," "- Suppliers," "-
Employees" and "Management."
DEPENDENCE ON KEY PERSONNEL
The Company believes that its success will depend to a significant
extent upon the abilities and efforts of its senior management, particularly
Ivey J. Stokes, its Chairman of the Board, and Thomas O. Cordy, its Chief
Executive Officer and President. The Company does not maintain key man life
insurance on Mr. Stokes, Mr. Cordy or any other person. Many of the Company's
executive officers and other key employees, including the Company's Chief
Financial Officer, Daniel McDonough, have only recently joined the Company. The
loss of the services of any of such individuals could have a material adverse
effect on the Company's business, financial condition and results of operations.
The success of the Company will also depend, in part, upon the Company's ability
to find, hire and retain additional key management personnel. The inability to
find, hire and
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retain such personnel could have a material adverse effect upon the Company's
business, financial condition and results of operations. See "Management --
Executive Officers and Directors."
SUBSCRIBER ATTRITION
The Company believes that a high level of subscriber attrition is a
characteristic of the domestic residential long distance industry. Attrition is
attributable to a variety of factors, including the termination of subscribers
for non-payment and the initiatives of existing and new competitors as they
engage in, among other things, national advertising campaigns, telemarketing
programs and the issuance of cash or other forms of incentives. Such attrition
could have a material adverse effect upon the Company's business, financial
condition and results of operations. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
REGULATION OF LONG DISTANCE TELEPHONE SERVICES
Various regulatory factors may have an impact on the Company's ability
to compete and on its financial performance. CRC is subject to regulation by the
FCC and by various state public service and public utility commissions. Federal
and state regulations and regulatory trends have had, and may have in the
future, both positive and negative effects on the Company and on the
telecommunications service industry as a whole. FCC policy currently requires
interexchange carriers to provide resale of the use of their transmission
facilities. The FCC also requires LECs to provide all interexchange carriers
with equal access to the origination and termination of calls. If either or both
of these requirements were removed, CRC and, therefore, the Company could be
adversely affected. CRC may experience disruptions in service due to factors
outside CRC's and the Company's control, which may cause CRC to lose the ability
to complete its subscribers' long distance calls. The Company believes that CRC
has made all filings with the FCC necessary to allow CRC to provide interstate
and international long distance service. In order to provide intrastate long
distance service, CRC is required to obtain certification to provide
telecommunications services from the public service or public utility
commissions of each state, or to register or be found exempt from registration
by such commissions. While the Company believes that CRC is in compliance with
the applicable state and federal regulations governing telecommunications
service, and the Company believes that it is not required to obtain
certification or to be registered with public utility commissions, there can be
no assurance that the FCC or any state regulatory authority in one or more
states will not raise material issues with regard to CRC's or the Company's
compliance with applicable regulations, or that regulatory activities with
respect to CRC or the Company, will not have a material adverse effect on the
Company's business, financial condition and results of operations.
In February 1996, the enactment of the 1996 Telecommunications Act
served to increase competition in the long distance and local telecommunications
markets. The 1996 Telecommunications Act opens competition in the local services
market and, at the same time, contains provisions intended to protect consumers
and businesses from unfair competition by incumbent LECs, including the BOCs.
The 1996 Telecommunications Act allows BOCs to provide long distance service
outside of their local service territories but bars them from immediately
offering in-region inter-LATA long distance services until certain conditions
are satisfied. A BOC must apply to the FCC to provide in-region inter-LATA long
distance services and must satisfy a set of pro-competitive criteria intended to
ensure that BOCs open their own local markets to competition before the FCC will
approve such application. The Company is unable to determine how the FCC will
rule on any such application. The new legislation may result in increased
competition to the Company from others, including the BOCs, and increased
transmission costs in the future. See "- Intense Competition." If the federal
and state regulations requiring the LECs to provide equal access for the
origination and termination of calls by long distance subscribers change or if
the regulations governing the fees to be charged for such access services
change, particularly if such regulations are changed to allow variable pricing
of such access fees based upon volume, such changes could have a material
adverse effect upon the Company's business, financial condition and results of
operations. See "Business - Competition" and "- Regulation - Regulation of Long
Distance Telephone Services."
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REGULATION AFFECTING NUTRITIONAL PRODUCTS
The formulation, manufacturing, packaging, labeling, advertising,
distribution and sale of the Company's nutritional products are subject to
regulation by a number of governmental agencies, the most active of which is the
Food and Drug Administration (the "FDA"), which regulates the Company's products
under the Federal Food, Drug, and Cosmetic Act (the "FDCA") and regulations
promulgated thereunder. The Company's products are also subject to regulation by
the Federal Trade Commission (the "FTC"), the Consumer Product Safety Commission
(the "CPSC"), the United States Department of Agriculture (the "USDA") and the
Environmental Protection Agency (the "EPA"). The FDCA has been amended several
times with respect to dietary supplements, most recently by the Nutrition
Labeling and Education Act of 1990 (the "NLEA") and the Dietary Supplement
Health and Education Act of 1994 (the "DSHEA"). The Company's nutritional
products are generally classified and regulated as dietary supplements under the
FDCA, as amended, and therefore are not subject to pre-market approval by the
FDA. However, these products are subject to extensive labeling regulation by the
FDA and can be removed from the market if shown to be unsafe. Moreover, if the
FDA determines on the basis of labeling or advertising claims by the Company,
that the "intended use" of any of the Company's nutritional products is for the
diagnosis, cure, mitigation, treatment or prevention of disease, the FDA can
regulate those products as drugs and require pre-market clearance for safety and
effectiveness. In addition, if the FDA determines that claims have been made
regarding the effect of dietary supplements on the "structure or function" of
the body, such claims could result in the regulation of such products as drugs.
The FTC and certain states regulate advertising, product claims, and
other consumer matters, including advertising of the Company's products. In the
past several years, the FTC has instituted enforcement actions against several
dietary supplement companies for false and misleading advertising of certain
products. In addition, the FTC has increased its scrutiny of the use of
testimonials. There can be no assurance that the FTC will not question the
Company's advertising or other operations. Moreover, there can be no assurance
that a state will not interpret product claims presumptively valid under federal
law as illegal under that state's regulations. Furthermore, the Company's IAs
and customers may file actions on their own behalf, as a class or otherwise, and
may file complaints with the FTC or state or local consumer affairs offices.
These agencies may take action on their own initiative or on a referral from
IAs, customers or others, including actions resulting in entries of consent
decrees and the refund of amounts paid by the complaining IA or customer,
refunds to an entire class of IAs or customers, or other damages, as well as
changes in the Company's method of doing business. A complaint because of a
practice of one IA, whether or not that practice was authorized by the Company,
could result in an order affecting some or all IAs in a particular state, and an
order in one state could influence courts or government agencies in other
states. Proceedings resulting from these complaints may result in significant
defense costs, settlement payments or judgments and could have a material
adverse effect on the Company's business, financial condition or results of
operations. See "Business - Regulation Regulation Affecting Nutritional
Products."
OFFERING ADDITIONAL PRODUCTS AND SERVICES
The Company's strategy includes offering additional products and
services in the future, which may include, among others, paging, wireless cable,
conference calling, cellular phone service and local phone service, additional
nutritional products and other non-communications and non-nutritional related
consumer products. In November 1997, the Company began marketing a line of
private label nutritional products to its customers and its IAs. Entry into new
markets entails risks associated with the state of development of the market,
intense competition from companies already operating in those markets, potential
competition from companies that may have greater financial resources and
experience than the Company, increased selling and marketing expenses and
regulatory issues. There can be no assurance that: (i) the Company will be
successful in developing and marketing new products and services that respond to
the needs of a particular market; (ii) the Company will not experience
difficulties that could delay or prevent the successful development,
introduction and marketing of new products or services; or (iii) its new
products and services will adequately meet the requirements of the marketplace
and achieve market acceptance. Delays in the introduction of new products and
services, the inability of the Company to develop and market such new products
or services and the failure of such products or services to achieve market
acceptance could have a material adverse effect on the Company's business,
financial condition or results of operations. See "Business - Competition," "-
Strategy" and "- Products and Services."
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EFFECT OF UNFAVORABLE PUBLICITY
The Company believes the dietary supplement products market is affected
by national media attention regarding the consumption of such products. There
can be no assurance that future scientific research or publicity will not be
unfavorable to the dietary supplement market or any particular product, or be
inconsistent with earlier favorable research or publicity. Future reports of
research that are perceived as less favorable than or that question earlier
research could have a material adverse effect on the Company's business,
financial condition or results of operations. Because of the Company's
dependence upon consumer perceptions, adverse publicity associated with illness
or other adverse effects resulting from the consumption of the Company's
nutritional products, or any similar products distributed by other companies,
could have a material adverse effect on the Company's business, financial
condition or results of operations. Such adverse publicity could arise even if
the adverse effects associated with such products result from failure to consume
such nutritional products as directed. In addition, the Company may not be able
to counter the effects of negative publicity concerning the efficacy of its
nutritional products.
ABSENCE OF CLINICAL STUDIES
Although many of the ingredients in the Company's nutritional products
are vitamins, minerals, herbs and other substances for which there is a long
history of human consumption, some of the Company's nutritional products contain
ingredients as to which there is little history of human consumption. The
Company has not tested, and has not engaged any independent third party to test,
any of its nutritional products. Accordingly, no assurance can be given that the
Company's nutritional products, even when used as directed, will have the
effects intended. Although the Company believes that its nutritional products
are safe when consumed as directed, the Company has not sponsored clinical
studies on the long-term effect of human consumption. See "- Effect of
Unfavorable Publicity," and "- Product Liability," and "Business - Regulation."
POSSIBLE CLAIMS RELATING TO OWNERSHIP OF PROPRIETARY RIGHTS
The Company has applied for a federal registration for the mark
"MAXXIS." In addition, the Company relies upon common law rights to protect
other marks used by the Company and other rights that the Company considers to
be its intellectual property. There can be no assurance that the Company's
measures to protect this intellectual property will prevent or deter the use or
misappropriation of the Company's intellectual property by other parties. The
Company's inability to protect its intellectual property from use or
misappropriation from others could have a material adverse effect upon the
Company's business, financial condition and results of operations. From time to
time, companies may assert other trademark, service mark or intellectual
property rights in marks (including the mark "MAXXIS") or other intellectual
property used by the Company. The Company could incur substantial costs to
defend any legal action taken against the Company. If, in any legal action that
might arise, the Company's asserted trademarks, service marks or other rights
that the Company considers to be its intellectual property should be found to
infringe upon intellectual property rights of other parties, the Company could
be enjoined from further infringement and required to pay damages. In the event
a third party were to sustain a valid claim against the Company, and in the
event any required license were not available on commercially reasonable terms,
the Company's business, financial condition and results of operations could be
materially adversely affected. Litigation, which could result in substantial
cost to and diversion of resources of the Company, may also be necessary to
enforce intellectual property rights of the Company or to defend the Company
against claimed infringement of the rights of others. See "Business -
Proprietary Rights."
TRANSACTIONS WITH RELATED PARTIES
The Company has in the past entered into agreements and arrangements
with certain officers, directors and principal shareholders of the Company.
Certain of these transactions may have been made on terms more favorable to such
officers, directors and principal shareholders than could have been obtained
from an unaffiliated third party. The Company has adopted a policy requiring
that all material transactions between the Company and its officers, directors
or other affiliates must: (i) be approved by a majority of the disinterested
members of the Board of Directors of the Company; and (ii) be on terms no less
favorable to the Company than could be obtained from unaffiliated third parties.
See "Certain Transactions."
16
<PAGE> 18
ARBITRARY DETERMINATION OF OFFERING PRICE
The purchase price of the Common Stock was arbitrarily determined by
the Company and does not necessarily bear any relationship to the Company's
asset value, net worth or other established criteria of value. Each prospective
investor should make an independent evaluation of the fairness of such price. No
assurance is or can be given that any of the shares will be able to be resold
for the offering price or for any other amount. See "Capitalization" and
"Dilution."
ABSENCE OF TRADING MARKET; TRANSFER RESTRICTIONS
There is currently no market for the Shares. Although the Company has
filed a Registration Statement with the Commission to register the issuance of
the Shares in the Offering under the Securities Act, it is unlikely that any
trading market will develop for the shares in the future. There are no present
plans for the Shares to be traded on any stock exchange or in the
over-the-counter market. As a result, investors who may need or wish to dispose
of all or part of their Shares may be unable to do so. In addition, sales of
substantial amounts of the Shares after the Offering could adversely affect
prevailing market prices, if any. See "- Application of the Penny Stock Rules"
and "Shares Eligible for Future Sale."
Each certificate evidencing the Shares will bear a legend restricting
the transfer of the Shares to individuals in any jurisdiction where the offer or
sale of the Shares would be unlawful prior to registration or qualification of
such offer or sale under the laws of any such jurisdiction. The Company is not
obligated to register or qualify, or to maintain the registration or
qualification of, the Shares for sale or resale in any jurisdiction. In
addition, pursuant to the Subscription Agreement, each purchaser of the Shares
offered hereby agrees not to sell or otherwise transfer the Shares or any
securities issued on account of such Shares during the Lock-up Period (as
defined herein). The Company may impose transfer restrictions during the Lock-up
Period by giving notice to the holders of record of the Shares. A purchaser of
the Shares offered hereby will not be able to transfer such Shares during the
Lock-up Period and may have substantial difficulty transferring such Shares
after the expiration of the Lock-up Period. The certificates evidencing the
Shares will bear a legend referencing these potential restrictions on transfer.
See "The Offering - Transfer Restrictions."
ANTI-TAKEOVER CONSIDERATIONS
The Board of Directors has authority to issue up to 10,000,000 shares
of preferred stock and to fix the rights, preferences, privileges and
restrictions, including voting rights, of the preferred stock without further
vote or action by the Company's shareholders. In November 1997, the Company
entered into a demand promissory note to fund expenses incurred in connection
with the launch of the Company's nutritional product line. As of March 1, 1998,
the Company had borrowed $177,500 under the promissory note. The Company intends
to convert the principal amount of the promissory note into units (the "Units")
at a price of $5.50 per Unit with each Unit consisting of one share of
convertible preferred stock (the "Preferred Stock") and a warrant (a "Warrant")
to purchase one share of Common Stock at a price of $5.50 per share. The
Preferred Stock will be: (i) non-voting; (ii) entitled to an antidilution
adjustment only upon a stock split, recapitalization or similar event; (iii)
entitled to a liquidation preference over the Common Stock; and (iv) convertible
into Common Stock at the option of the holder at any time commencing 14 months
following the date of the issuance of the Preferred Stock and automatically upon
the closing of a public offering that occurs at least 14 months following the
issuance of the Preferred Stock and that provides gross proceeds to the Company
of at least $7,500,000. The Warrants will be entitled to an antidilution
adjustment only upon a stock split, recapitalization or similar event, will not
be exercisable until 14 months following their date of issuance and will remain
exercisable at the option of the holder until the seventh anniversary of their
issuance. The rights of the holders of Common Stock will be subject to, and may
be adversely affected by, the rights of the holders of the Preferred Stock and
any additional preferred stock that may be issued in the future. In addition, an
issuance of preferred stock could have the effect of making it more difficult
for a third party to acquire control of the Company. See "Description of Capital
Stock - Preferred Stock and Warrants."
The Articles, Amended and Restated Bylaws (the "Bylaws") and the
Georgia Business Corporation Code, as amended (the "Georgia Law"), contain
certain additional provisions that could have the effect of making it more
difficult for a party to acquire, or of discouraging a party from attempting to
acquire, control of the
17
<PAGE> 19
Company without approval of the Company's Board of Directors. See "Description
of Capital Stock - Certain Provisions of the Articles, Bylaws and Georgia Law."
SHARES ELIGIBLE FOR FUTURE SALE
Sales of shares of Common Stock following the Offering could adversely
affect the price of the Company's Common Stock. Upon completion of the Offering,
assuming 450,000 Shares offered hereby are sold, the Company will have
outstanding 2,021,187 shares of Common Stock. Of these shares, the 450,000
Shares offered hereby will be freely tradeable without restriction or further
registration under the Securities Act, unless purchased by "affiliates" of the
Company, as that term is defined in Rule 144 ("Rule 144") under the Securities
Act. However, such shares will be subject to certain restrictions on transfer,
including the restrictions set forth in the Subscription Agreement. See "The
Offering - Transfer Restrictions." The remaining 1,571,187 shares of Common
Stock outstanding upon completion of the Offering are "restricted securities,"
as that term is defined in Rule 144. Upon compliance by the Company with the
current public information requirements of Rule 144(c), all of such restricted
securities will be eligible for sale in the open market under, and subject to
the restrictions contained in, Rule 144.
The Company and certain of its directors, officers and major
shareholders have entered into a shareholders agreement (the "Shareholders'
Agreement") whereby such shareholders agreed to certain restrictions on the
transfer or other disposition of the shares of Common Stock held by each holder.
In the event a shareholder intends to transfer his or her Common Stock to a
non-permitted transferee, the Company and the remaining shareholders have a
right of first refusal to purchase the transferring shareholder's Common Stock
at fair market value. In addition, if the Company terminates a shareholder's
employment or engagement as a sales representative or consultant for cause (or
the employment or engagement of certain persons associated with a shareholder),
the Company shall have the right to repurchase, at fair market value, a
percentage of the shareholder's Common Stock which begins at 100% and declines
20% per year for each completed year of service with the Company. If either the
right of first refusal or the Company's right to purchase is exercised, either
provision could have the effect of further concentrating the stock ownership and
voting power of the Company. See "Description of Capital Stock - Shareholders'
Agreement" and "Shares Eligible for Future Sale."
DILUTION TO NEW INVESTORS
Investors purchasing shares of Common Stock in the Offering will
experience immediate and substantial dilution of $4.38 per share in net tangible
book value, or 79.6% of the initial public offering price of $5.50 per share. In
addition, assuming the sale of the 450,000 Shares offered hereby, the Board of
Directors of the Company has the authority to issue up to approximately
17,980,000 additional shares of Common Stock, and such amount may be increased
and new securities may be authorized in the future upon the determination of the
Board of Directors with the consent of the shareholders. See "- Management will
Maintain Control of the Company."
The Board of Directors intends (subject to shareholder approval or
ratification) to adopt a stock option plan which will permit the Company to
grant options to purchase shares of its Common Stock to officers, directors, key
employees, advisors and consultants of the Company. Exercise of these options
could have a dilutive effect on the shareholders' interest in the Company's
earnings and on net tangible book value per share.
See "Dilution."
LACK OF DIVIDENDS
The Company does not intend to pay any cash dividends with respect to
its Common Stock in the foreseeable future. See "Dividend Policy."
18
<PAGE> 20
APPLICATION OF THE PENNY STOCK RULES
The Common Stock offered hereby may be considered "penny stock." The
Commission has adopted rules that regulate broker/dealer practices in connection
with transactions in "penny stocks." The Commission defines a "broker" as any
person engaged in the business of effecting transactions in securities for the
account of others, but does not include a bank, and a "dealer" as any person
engaged in the business of buying and selling securities for his own account,
through a broker or otherwise, but does not include a bank, or any person
insofar as he buys or sells securities for his own account, either individually
or in some fiduciary capacity, but not as part of a regular business. Penny
stocks generally are equity securities with a price of less than $5.00 (other
than securities registered on certain national securities exchanges or quoted on
the NASDAQ Stock Market's National Market, provided that current price and
volume information with respect to transactions in such securities is provided
by the exchange or system). The penny stock rules require a broker-dealer, prior
to a transaction in a penny stock not otherwise exempt from the rules, to
deliver a standardized risk disclosure document prepared by the Commission that
provides information about penny stocks and the nature and level of risks in the
penny stock market. The broker-dealer also must provide the customer with bid
and offer quotations for the penny stock, the compensation of the broker-dealer
and its salesperson in the transaction and monthly account statements showing
the market value of each penny stock held in the customer's account. In
addition, the penny stock rules require that prior to a transaction in a penny
stock not otherwise exempt from such rules the broker-dealer must make a special
written determination that the penny stock is a suitable investment for the
purchaser and receive the purchaser's written agreement to the transaction. If
the Common Stock is considered penny stock, these disclosure requirements
imposed on broker-dealers may discourage them from effecting transactions in the
Common Stock, thereby severely limiting the market liquidity of the Common Stock
and the ability of purchasers in the Offering to sell the Common Stock in the
secondary market. See "- Absence of Trading Marketing; Transfer Restrictions."
19
<PAGE> 21
THE OFFERING
GENERAL
The Company intends to offer for sale pursuant to this Prospectus up to
450,000 shares of its Common Stock. The Company intends to offer the Shares to
regional and executive directors and strategic partners of the Company. The
Company has established a minimum subscription of 20 Shares and maximum
subscriptions of 20 Shares and 200 Shares, respectively, for each person who
qualifies as a regional or executive director in the Company's marketing system;
provided, that the aggregate number of Shares sold in this Offering shall not
exceed 450,000. However, the Company reserves the right to not sell shares to
any particular regional or executive director or strategic partner, to waive the
maximum subscription amount or to allocate additional Shares to regional and
executive directors without notifying any purchaser or prospective purchaser.
The Company has not established minimum or maximum subscriptions for strategic
partners.
Subscriptions to purchase Shares may be delivered to the Company until
12:00 p.m., E.S.T., on May 1, 1999, unless all of the Shares are earlier sold or
the Offering is earlier terminated or extended by the Company. The Company
reserves the right to terminate the Offering at any time or to extend the
expiration date for additional 90-day periods not to extend beyond December 31,
2000. The date the Offering terminates is referred to herein as the "Expiration
Date." No notice of an extension of the offering period need be given prior to
any extension, and any such extension will not alter the binding nature of
subscriptions already received by the Company. The Company intends to provide
quarterly communications to all purchasers which will include information
concerning any extensions of the Offering. Extension of the Expiration Date
might cause an increase in the Company's organizational and pre-opening expenses
and in the expenses incurred in connection with this Offering.
Prospective purchasers must deliver to the Company or a broker/dealer,
as the case may be, a completed and executed Subscription Agreement, the form of
which is attached hereto as Appendix A. An executed Subscription Agreement will
constitute a prospective purchaser's offer to purchase shares of Common Stock as
set forth in this Prospectus. Prospective purchasers must warrant in the
Subscription Agreement that they have received a copy of this Prospectus, as
amended or supplemented. Once a Subscription Agreement is received by the
Company or a broker/dealer, as the case may be, a prospective purchaser may not
revoke or withdraw such Subscription Agreement except with the consent of the
Company. In addition, the Company reserves the right to reject, in whole or in
part and in its sole discretion, any subscription for any reason or no reason
whatsoever. Acceptance of any particular Subscription Agreement by the Company
shall in no case require the Company to accept any other Subscription Agreement.
The Company may, in its sole discretion, allocate Shares among prospective
purchasers in the event of an oversubscription for the Shares. In determining
which subscriptions to accept, in whole or in part, the Company may take into
account any factors it considers relevant, including, without limitation, the
order in which subscriptions are received and a prospective purchaser's
perceived potential to do business with, or to direct customers or IAs to, the
Company.
Certificates representing Shares duly subscribed and paid for will be
issued by the Company promptly after the Company accepts a subscription.
NO ESCROW
There is no minimum number of Shares which must be sold in this
Offering, and no escrow account has been established. All subscription funds
will be paid directly to the Company. Acceptance and/or deposit of any
subscription funds by the Company shall not constitute acceptance of a
subscription. Upon acceptance of a subscription by the Company, subscription
proceeds will be available for immediate use by the Company. Once a subscription
is accepted by the Company, the Company will not refund the funds for any
subscription in the event that less than the maximum number of Shares offered
hereby are sold prior to the termination of the Offering. In the event the
Company rejects all, or accepts less than all, of any subscription, the Company
will refund promptly an amount remitted equal to the purchase price for such
Shares multiplied by the number of Shares as to which the subscription is not
accepted. See "Risk Factors - No Minimum Offering Amount; Irrevocability of
Subscriptions; No Escrow."
20
<PAGE> 22
TRANSFER RESTRICTIONS
The Company has filed this Registration Statement of which this
Prospectus forms a part with the state securities commissions of 11 states in
order to apply for registration or qualification of the Offering in such states.
Due to the varying nature of state securities regulations and the considerable
discretion given to state securities regulators, the Company anticipates that it
will be unable to register or qualify the Offering in certain of these states,
and there can be no assurance that the Company will be able to register or
qualify the Offering in any of these states. See "Risk Factors - Regulation of
Network Marketing; Effect of State Securities Laws." Each certificate evidencing
the Shares will bear a legend restricting the transfer of the Shares to
individuals in any jurisdiction where the offer or sale of the Shares would be
unlawful prior to registration or qualification of such offer or sale under the
laws of any such jurisdiction.
Pursuant to the Subscription Agreement, each purchaser of the Shares
offered hereby: (i) agrees during the Lock-up Period (as defined below) not to
(x) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any of the Shares or (y) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated with the
ownership of any Shares (regardless of whether any of the transactions described
in clause (x) or (y) is to be settled by the delivery of Shares, or such other
securities, in cash or otherwise); (ii) authorizes the Company to cause the
transfer agent during the Lock-up Period to decline to transfer any Shares
and/or to note stop transfer restrictions on the transfer books and records of
the Company with respect to any Shares; and (iii) agrees that a legend in
substantially the following form will be placed on certificates representing the
Shares:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (THE "SHARES") ARE
SUBJECT TO CONDITIONS THAT MAY LIMIT THEIR TRANSFERABILITY.
SUCH CONDITIONS ARE SET FORTH IN A SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") BY AND BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES. ANY TRANSFEREE OF THESE
SHARES TAKES SUCH SHARES SUBJECT TO THE CONDITIONS SET FORTH
IN THE SUBSCRIPTION AGREEMENT.
IN SUMMARY, THESE CONDITIONS PROVIDE THAT THESE SHARES MAY NOT
BE SOLD OR TRANSFERRED IN ANY JURISDICTION WHERE THE OFFER OR
SALE OF SUCH SHARES WOULD BE UNLAWFUL PRIOR TO THE
REGISTRATION OR QUALIFICATION OF SUCH OFFER AND SALE UNDER THE
LAWS OF SUCH JURISDICTION UNLESS: (I) SUCH REGISTRATION OR
QUALIFICATION IS THEN EFFECTIVE IN SUCH JURISDICTION AND SETS
FORTH SUCH INFORMATION AS IS IN THE COMPANY'S SOLE JUDGMENT
THEN REQUIRED TO BE DISCLOSED PURSUANT TO THE LAWS AND
REGULATIONS OF SUCH JURISDICTION; OR (II) REGISTRATION AND
QUALIFICATION ARE NOT REQUIRED IN SUCH JURISDICTION AND, IN
SUCH CASE, THE PROSPECTIVE TRANSFEROR, AS A CONDITION TO
EFFECTING THE TRANSFER OF THE SHARES, PROVIDES TO THE COMPANY
AT SUCH TRANSFEROR'S EXPENSE A LEGAL OPINION, WHICH MUST BE
SATISFACTORY TO THE COMPANY AND THE COMPANY'S LEGAL COUNSEL IN
THEIR SOLE DISCRETION, STATING THAT THE OFFER AND SALE OF SUCH
SHARES IN SUCH JURISDICTION MAY BE ACCOMPLISHED WITHOUT
REGISTRATION OR QUALIFICATION UNDER THE LAWS OF SUCH
JURISDICTION.
IN ADDITION, THE ISSUER MAY ELECT TO IMPOSE A PROHIBITION ON
THE SALE OR TRANSFER OF THESE SHARES IN THE EVENT THE ISSUER
DETERMINES TO FILE A REGISTRATION STATEMENT WITH THE U.S.
SECURITIES AND EXCHANGE COMMISSION THAT SEEKS TO REGISTER
SECURITIES OF THE ISSUER IN AN INITIAL PUBLIC OFFERING THAT IS
FIRMLY UNDERWRITTEN. SUCH RESTRICTION MAY REMAIN IN EFFECT FOR
A PERIOD ENDING 180 DAYS FOLLOWING THE EFFECTIVENESS OF SUCH
REGISTRATION STATEMENT. THE ISSUER MAY IMPOSE THESE CONDITIONS
BY GIVING WRITTEN NOTICE TO THE
21
<PAGE> 23
HOLDER OF RECORD OF THESE SHARES. THE FOREGOING SUMMARY IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE SUBSCRIPTION
AGREEMENT, A COPY OF WHICH WILL BE PROVIDED FREE OF CHARGE BY
THE ISSUER TO ANY HOLDER, PROSPECTIVE PURCHASER OR TRANSFEREE
OF THESE SHARES UPON THEIR REQUEST."
The transfer restrictions may be imposed and terminated by the Company
by giving notice of the imposition or termination of such restriction (the
"Lock-up Notice") to holders of record of the Shares by first class mail,
postage prepaid (or, at the Company's option, certified mail, return receipt
requested), at the address of the holders of record of the Shares on a date
chosen by the Company that is at least one but no more than 15 days prior to
such mailing. The restrictions and the termination of such restrictions shall be
effective upon receipt of such notice, which date of receipt shall be deemed to
be three days following such mailing. The Lock-up Notice may be given by the
Company such that it is received during the period beginning 15 days prior to
the filing by the Company of a registration statement with the U.S. Securities
and Exchange Commission (the "SEC") whereby the Company first seeks to register
its securities for sale to the public in a firmly underwritten public offering
(the "IPO Registration Statement"), and ending upon the date that the IPO
Registration Statement is declared effective by the SEC (the "Effective Date").
The transfer restrictions shall be effective on the date of receipt of
the Lock-up Notice and shall remain in force and effect until 180 days following
the Effective Date (such period being referred to as the "Lock-up Period") at
which time such Lock-up Period shall automatically terminate; provided, however,
that the Company in its sole discretion may elect to terminate the Lock-up
Period from time to time prior to the expiration of such 180-day period with
respect to an identical specified percentage of each holder's Shares by giving
notice of such earlier termination. The Lock-up Period shall terminate if the
Company files an IPO Registration Statement but such registration statement is
subsequently withdrawn or is not declared effective within 120 days of filing
with the SEC, or if the Company transmits a Lock-up Notice prior to the filing
of an IPO Registration Statement but the IPO Registration Statement is not filed
within 15 days of receipt of such notice; provided, however, that in any such
event the restrictions set forth in Section 3(a)(ii) shall survive and shall be
applicable to each subsequent filing of an IPO Registration Statement by the
Company until an IPO Registration Statement is first declared effective by the
SEC. See "Risk Factors - Absence of Trading Market; Transfer Restrictions."
PLAN OF DISTRIBUTION
In certain states, offers and sales of the Common Stock will be made on
behalf of the Company by certain of its officers and directors. The officers and
directors will receive no commissions or other remuneration in connection with
such activities, but they will be reimbursed for reasonable expenses incurred in
connection with the Offering.
In the states of Florida, Maryland, North Carolina, Texas and Virginia
and, in the event this Offering is registered or qualified in other states where
the Company's directors and officers are not permitted to effect offers and
sales, in such other states, the Company will offer shares of Common Stock
through broker/dealers who are licensed to effect sales in such states. The
Company will amend the Registration Statement to set forth the terms of any
agreement with any broker-dealer.
HOW TO SUBSCRIBE
A Subscription Agreement, a form of which is attached hereto as
Appendix A, must be completed, executed and delivered to the Company on or prior
to the Expiration Date. Prospective purchasers should retain a copy of the
completed Subscription Agreement for their records. The subscription price is
due and payable when the Subscription Agreement is delivered. Payment must be
made in United States dollars by cash or by check, bank draft or money order
drawn to the order of Maxxis Group, Inc., in the amount of $5.50 multiplied by
the number of Shares subscribed for.
22
<PAGE> 24
USE OF PROCEEDS
The net proceeds to the Company from the sale of 450,000 Shares offered
hereby (after deducting estimated offering expenses not including any
broker/dealer fees and expenses) are estimated to be approximately $2,075,000 if
all the Shares offered hereby are sold. Assuming the sale of all 450,000 Shares
offered hereby, the following table sets forth the intended uses of proceeds
from the Offering:
<TABLE>
<CAPTION>
APPROXIMATE
APPROXIMATE PERCENTAGE
APPLICATION OF PROCEEDS DOLLAR AMOUNT OF NET PROCEEDS
----------------------- --------------- -----------------
<S> <C> <C>
Repayment of promissory note(1)........................................ $ 53,000 2.6%
Development of additional product lines(2)............................. 900,000 43.4
Development and/or acquisition of information,
accounting and/or inventory control systems......................... 500,000 24.1
Working capital and general corporate purposes(3)...................... 622,000 29.9
--------------- -----------------
Total............................................................ $ 2,075,000 100.0%
=============== =================
</TABLE>
- ----------------
(1) On February 28, 1998, the Company entered into a demand promissory note
(the "Cordy Note") with Thomas O. Cordy, the Chief Executive Officer of
the Company, to memorialize a loan from Mr. Cordy to the Company to
fund certain operational expenses. The Cordy Note bears interest at 6%
per annum and is payable on demand at any time.
(2) The Company intends to develop additional product lines to be marketed
through the Company's IAs, including an internet access product.
(3) Such purposes may include general and administrative expenses, capital
expenditures, payment of accounts payable and accrued expenses,
marketing expenses, payment of organizational and offering expenses and
satisfaction of certain corporate obligations.
A portion of the net proceeds may be used for acquisitions of
complementary services or businesses. The Company currently has no agreements or
understandings with regard to any acquisitions. Shareholders may not be able to
vote on any potential acquisitions (unless required by applicable law) nor have
the opportunity to review any potential acquisition candidate. The Company
anticipates that it will require approximately $1.9 million in capital to fund
its ongoing operations through December 31, 1998. The Company anticipates that
the proceeds of this Offering, together with borrowings and cash generated from
operations, will be sufficient to meet the Company's capital requirements
through December 31, 1998. The foregoing allocation of proceeds represents the
Company's current estimate of its allocation of the net proceeds of the Offering
based upon the current status of its business operations, its current plans, and
current economic and industry conditions. Future events, as well as changes in
economic or competitive conditions of the Company's business and the results of
the Company's marketing activities, may make different uses of funds necessary
or desirable. In addition, there can be no assurance that the Company will
receive enough proceeds from the Offering to fund any of the uses of proceeds,
including raising enough proceeds to fund its operations or to cover the
estimated offering expenses. If the Company does not receive sufficient funds
from its operations, its borrowings and from the Offering to fund its
operations, the Company may need to raise additional capital. See "Risk Factors
- - Broad Discretion in Application of Proceeds; Unspecified Acquisitions;
Possible Need for Additional Capital." Pending application of the net proceeds
as described above, the Company will invest such proceeds in short-term,
interest-bearing instruments and investment grade securities.
23
<PAGE> 25
DIVIDEND POLICY
The Company anticipates that for the foreseeable future its earnings,
if any, will be retained for the operation and expansion of its business and
that it will not pay cash dividends. The Company's Board of Directors will
determine the Company's dividend policy in the future based upon, among other
things, the Company's results of operations, financial condition, business
opportunities, capital requirements, contractual restrictions and other factors
deemed relevant at the time.
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
December 31, 1997. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Certain Transactions."
<TABLE>
<CAPTION>
DECEMBER 31, 1997
-----------------
<S> <C>
Stock subscription deposits........................................................ $ --
Common Stock, no par value; 20,000,000 shares authorized;
1,571,187 shares issued and outstanding.......................................... --
Subscription receivable............................................................ (120,000)
Additional paid-in capital......................................................... 574,000
Accumulated deficit................................................................ (242,000)
-----------------
Total shareholders' equity.................................................... $ 212,000
=================
</TABLE>
24
<PAGE> 26
DILUTION
The net tangible book value of the Company as of December 31, 1997, was
$186,000, or $0.12 per share of Common Stock outstanding. Net tangible book
value per share represents the amount of the Company's total assets (excluding
organizational costs) less total liabilities, divided by the total number of
outstanding shares of Common Stock. After giving effect to the sale of 450,000
Shares offered hereby and the receipt and application of the estimated proceeds
therefrom (at a public offering price of $5.50 per share and after deducting
estimated expenses of the Offering), the pro forma net tangible book value of
the Company at December 31, 1997 would have been $2,261,000, or $1.12 per share
of Common Stock. This represents an immediate increase in the net tangible book
value of $1.00 per share to existing shareholders and an immediate dilution to
new investors purchasing shares of Common Stock in the Offering of $4.38 per
share. The following table illustrates the per share dilution to new investors
at December 31, 1997, assuming the Offering was made at that time:
<TABLE>
<S> <C> <C>
Initial offering price per share of Common Stock...................... $ 5.50
Net tangible book value per share of
Common Stock before the Offering.................................. 0.12
Increase per share attributable to new investors.................... 1.00
----
Pro forma net tangible book value per share of Common
Stock after the Offering............................................ 1.12
----------
Dilution per share to new investors................................... $ 4.38
==========
</TABLE>
The following table sets forth as of December 31, 1997, after giving
effect to the Offering, the difference between existing shareholders and the new
investors purchasing shares of Common Stock in the Offering with respect to the
number of shares of Common Stock purchased from the Company, the total
consideration paid therefor and the average price per share paid to the Company
on an as adjusted basis:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
---------------------- ------------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
----------- ------- ------------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing shareholders................... 1,571,187 77.7% $ 574,000 18.8% $ 0.37
New investors........................... 450,000 22.3 2,475,000 81.2 5.50
----------- ----- ------------- -----
Total................................ 2,021,187 100.0% $ 3,049,000 100.0%
=========== ===== ============= =====
</TABLE>
In addition, the Board of Directors intends (subject to shareholder
approval or ratification) to adopt a stock option plan which will permit the
Company to grant options to purchase shares of Common Stock to officers,
directors, key employees, advisors and consultants of the Company. Exercise of
these options could have a dilutive effect on the shareholders' interest in the
Company's earnings and on net tangible book value per share. See "Risk Factors -
Dilution to New Investors."
25
<PAGE> 27
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated financial data for
the periods presented. The Company was incorporated on January 24, 1997 and
began operations in March 1997. The statement of operations data for the
Inception Period and the balance sheet data as of June 30, 1997 are derived from
the audited consolidated financial statements of the Company. The consolidated
financial statements for the Inception Period were audited by Arthur Andersen
LLP, independent public accountants. The statement of operations data for the
six months ended December 31, 1997 and the balance sheet data as of December 31,
1997 have been derived from the unaudited condensed consolidated financial
statements of the Company which include all adjustments, consisting of only
normal recurring adjustments, which the Company considers necessary for a fair
presentation of the results of operations for the period. All numbers have been
rounded. Results for interim periods are not necessarily indicative of the
results to be expected for a full fiscal year. The selected consolidated
financial data should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the consolidated
financial statements and the related notes thereto appearing elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
JANUARY 24, 1997 SIX MONTHS
(INCEPTION) ENDED
TO JUNE 30, 1997 DECEMBER 31, 1997
----------------- -------------------
(UNAUDITED)
<S> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
Telecommunications services................................... $ 2,322,000 $ 2,588,000
Nutritional products.......................................... -- 186,000
Marketing services............................................ 369,000 670,000
----------------- -------------------
Total revenues............................................. 2,691,000 3,444,000
----------------- -------------------
Cost of services:
Telecommunications services................................... 761,000 868,000
Nutritional products.......................................... -- 77,000
Marketing services............................................ 255,000 228,000
----------------- -------------------
Gross margin.................................................... 1,675,000 2,271,000
----------------- -------------------
Operating expenses:
Selling and marketing......................................... 1,089,000 1,326,000
General and administrative.................................... 660,000 1,111,000
----------------- -------------------
Total operating expenses................................... 1,749,000 2,437,000
----------------- -------------------
Interest expense................................................ - 2,000
Loss before income tax benefit.................................. (74,000) (168,000)
Income tax benefit.............................................. - -
----------------- -------------------
Net loss........................................................ $ (74,000) $ (168,000)
================= ===================
PER SHARE DATA:
Net loss per share.............................................. $ (0.05) $ (0.11)
================= ===================
Weighted average number of shares outstanding................... 1,571,187 1,571,187
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31, 1997
-----------------
(UNAUDITED)
<S> <C>
BALANCE SHEET DATA:
Working capital........................................................................ $ (133,000)
Property and equipment, net............................................................ 167,000
Total assets........................................................................... 908,000
Long-term obligations.................................................................. --
Shareholders' equity................................................................... 212,000
</TABLE>
26
<PAGE> 28
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction
with the "Selected Consolidated Financial Data" and the consolidated financial
statements and notes thereto included elsewhere in this Prospectus. This
Prospectus contains certain forward-looking statements relating to, without
limitation, future economic performance, plans and objectives of management for
future operations and projections of revenues and other financial items that are
based on the beliefs of the Company's management, as well as assumptions made
by, and information currently available to, the Company's management. The
cautionary statements set forth in the "Risk Factors" section and elsewhere in
this Prospectus identify important factors with respect to such forward-looking
statements, including certain risks and uncertainties, that could cause actual
results to differ materially from those in such forward-looking statements. See
"Risk Factors" for a discussion of factors that could cause or contribute to
such material differences.
GENERAL
Maxxis was incorporated on January 24, 1997 and began accepting IAs and
marketing telecommunications services in March 1997. The Company conducts all of
its business and operations through its wholly-owned subsidiaries Maxxis 2000,
Maxxis Telecom and Maxxis Nutritional.
Maxxis 2000 is a network marketing company that currently markets
1-Plus long distance services, travel cards, prepaid phone cards, 800 service
and international telecommunications services. Maxxis Telecom obtains
telecommunications services through its contract with CRC. Maxxis Telecom also
purchases telecommunications time for its prepaid 5 hour, 1 hour, 30 minute and
10 minute phone cards from CRC. The Company believes that its multi-level
network marketing system allows it to obtain customers for its products in a
cost effective manner and to enhance customer retention because of the
relationships between the Company's IAs and customers. The telecommunications
customer base developed by the Company's IAs provides a potential customer base
for the Company's nutritional products and for future products. Maxxis
Nutritional purchases private label nutritional products which the Company
distributes through its network of IAs.
The Company derives revenues from telecommunications services,
nutritional products and marketing services. Telecommunications services
revenues are comprised of sales of prepaid phone cards to the Company's IAs and
commissions from the Company's agreement with CRC whereby the Company receives a
percentage of the long distance billings received by CRC from the customers
originated by the Company's IAs, net of allowances for bad debts and billing
adjustments. The Company's aggregate revenues from 1-Plus services were $25,000,
or only 0.93% of the Company's total revenues, for the Inception Period, and
$329,000, or 9.6% of the Company's total revenues, for the six months ended
December 31, 1997. Because of the administrative procedures that must be
complied with in order to establish 1-Plus customers, there is generally a delay
of between three to four months from the time a prospective customer indicates a
desire to become a 1-Plus customer and the time that the Company begins to
receive commissions from such customer's usage. In the future, the Company
believes that commissions generated on the sales of 1-Plus long distance
services will constitute a significant percentage of its total revenues.
Nutritional products revenues include sales of private-label
nutritional products to the Company's IAs. Marketing services revenues include
application fees from IAs and purchases of sales aids by IAs, including
distributor kits which consist of forms, promotional brochures, marketing
materials and presentation materials. Marketing services revenues also include
training fees paid by MDs. To become an associate, individuals (other than
individuals in North Dakota) must complete an application and purchase a
distributor kit for $30. IAs also pay an annual fee in order to maintain their
status as an IA, which fee the Company intends to amortize over the renewal
period. To become a MD, a senior associate, director or regional director must
attend a Company approved training school. The fee to attend the training school
is currently $99, and MDs must attend continuing education training schools each
year which also are subject to a fee. The training fees are recognized at the
time the training is received. The Company does not receive any fees from IAs
for the training provided by MDs.
27
<PAGE> 29
Cost of services consists of telecommunications services costs,
nutritional products costs and marketing services costs. Telecommunications
services cost includes the cost of purchasing activated prepaid phone cards.
Nutritional products cost consists of the cost of purchasing private label
nutritional products. Marketing services cost includes the costs of purchasing
IA distributor kits, sales aids and promotional materials and training costs.
Operating expenses consist of selling and marketing expenses, which include
commissions paid to IAs based on usage of long distance services by subscribers
and sales of IA distributor kits and products to new IAs sponsored into the
Company and sales of additional products to customers, and general and
administrative expenses, which include costs for IA support services,
information systems services and administrative personnel to support the
Company's operations and growth.
The Company has a limited operating history, and its operations are
subject to the risks inherent in the establishment of any new business. The
Company expects that it will incur substantial initial expenses, and there can
be no assurance that the Company will achieve or maintain profitability. If the
Company continues to grow rapidly, the Company will be required to continually
expand and modify its operational and financial systems, add additional IAs and
new customers, and train and manage both current and new employees and IAs. Such
rapid growth would place a significant strain on the Company's operational
resources and systems, and the failure to effectively manage this projected
growth could have a material adverse effect on the Company's business, financial
condition and results of operations. See "Risk Factors - New Enterprise" and "-
Ability to Manage Growth."
RESULTS OF OPERATIONS
The following table sets forth historical revenues and cost of revenues
by category and the percentage of total revenues attributable to each category
for the periods shown.
<TABLE>
<CAPTION>
JANUARY 24, 1997 SIX MONTHS
(INCEPTION) ENDED
TO JUNE 30, 1997 DECEMBER 31, 1997
---------------- -----------------
<S> <C> <C>
Revenues:
Telecommunications services...................................... 86.3% 75.1%
Nutritional products............................................. - 5.4
Marketing services............................................... 13.7 19.5
------ ------
Total revenues................................................ 100.0% 100.0%
====== ======
Cost of services:
Telecommunications services ..................................... 28.3% 25.2%
Nutritional products............................................. -- 2.2
Marketing services .............................................. 9.5 6.6
------ ------
Total cost of services........................................ 37.8 34.0
Operating expenses:
Selling and marketing............................................ 40.5 38.5
General and administrative....................................... 24.5 32.3
------ ------
Total operating expenses...................................... 65.0% 70.8%
====== ======
</TABLE>
The Company was incorporated in January 1997 and commenced operations
in March 1997. No comparisons are presented for the six months ended December
31, 1997 and the Inception Period because the Company was not in existence for
the corresponding prior periods in 1996. Results of operations for the six
months ended December 31, 1997 and the Inception Period are not necessarily
indicative of the results to be expected for a full fiscal year.
28
<PAGE> 30
SIX MONTHS ENDED DECEMBER 31, 1997
Revenues
Total revenues consist of telecommunications services, nutritional
products and marketing services revenues. Total revenues were $3,444,000 for the
six months ended December 31, 1997. For the six months ended December 31, 1997,
telecommunications services revenues were $2,588,000, or 75.1% of total
revenues. Telecommunications services revenues consist of sales of prepaid phone
cards by IAs and commissions generated from long distance usage of customers
originated by IAs. For the six months ended December 31, 1997, nutritional
products revenues were $186,000, or 5.4% of total revenues. Nutritional products
revenues consist of sales of private label nutritional products. For the six
months ended December 31, 1997, marketing services revenues were $670,000, or
19.5% of total revenues. Marketing services revenues consist of application fees
paid by IAs, purchases of sales aids by IAs and training fees paid to become a
MD.
Cost of Services
Cost of services includes telecommunications services costs,
nutritional products costs and marketing services costs. Total cost of services
for the six months ended December 31, 1997 was $1,173,000, or 34.0% of total
revenues. For the six months ended December 31, 1997, telecommunications
services cost was $868,000, or 25.2% of total revenues. Telecommunications
services cost includes the cost of purchasing activated prepaid phone cards from
CRC. The Company then sells activated phone cards to its IAs.
Telecommunications services cost also includes, as a minor component, the costs
of materials that are used to package the phone cards. For the six months ended
December 31, 1997, nutritional products cost was $77,000, or 2.2% of total
revenues. Nutritional products cost consists of the cost of purchasing private
label nutritional products. Marketing services cost was $228,000, or 6.6% of
total revenues, for the six months ended December 31, 1997. Marketing services
cost primarily consists of the costs of purchasing IA distributor kits, sales
aids and promotional materials and training costs.
Operating Expenses
For the six months ended December 31, 1997, selling and marketing
expenses were $1,326,000, or 38.5% of total revenues. Selling and marketing
expenses consist of commissions paid to IAs based on (i) usage of long distance
services, (ii) sales of IA distributor kits and products for any new IAs they
sponsor into the Company and (iii) sales of additional products to customers.
General and administrative expenses were $1,111,000, or 32.3% of total
revenues, for the six months ended December 31, 1997. General and administrative
expenses consist of salary expense for the Company's customer service personnel,
office staff and executive personnel and the cost of IA support services and
information systems services. Interest expense on the Company's outstanding
promissory note was $2,000 for the six months ended December 31, 1997.
INCEPTION PERIOD (JANUARY 24, 1997 TO JUNE 30, 1997)
Revenues
For the Inception Period, telecommunications services revenues were
$2,322,000, or 86.3% of total revenues, and marketing services revenues were
$369,000, or 13.7% of total revenues. Telecommunications services revenues
consist of sales of prepaid phone cards to the Company's IAs and commissions
generated from 1-Plus services commissions generated from long distance usage of
customers generated by the Company's IAs. This amount was minimal for the
Inception Period because no customers were utilizing long distance services
until May 1997. In the future, the Company believes that commissions generated
on sales of 1-Plus long distance services will constitute a more significant
percentage of telecommunications services revenues. Marketing services revenues
include application fees from IAs, purchases of sales aids by IAs and training
fees paid to become a MD.
29
<PAGE> 31
Cost of Services
Telecommunications services cost was $761,000, or 28.3% of total
revenues, for the Inception Period. Telecommunications services cost includes
the cost of purchasing activated prepaid phone cards. Marketing services cost,
which includes the cost of the IA distributor kits and promotional materials,
was $255,000, or 9.5% of total revenues, for the Inception Period.
Operating Expenses
Selling and marketing expenses principally consist of commissions paid
to IAs based on (i) usage of long distance services, (ii) sales of IA
distributor kits and products for any new IAs they sponsor into the Company and
(iii) sales of additional products to customers. Selling and marketing expenses
were $1,089,000, or 40.5% of total revenues, for the Inception Period.
General and administrative expenses were $660,000, or 24.5% of total
revenues, for the Inception Period. General and administrative expenses consist
primarily of salary expense for the Company's customer service personnel, office
staff and executive personnel. Such expenses also include costs for IA support
services and information systems services.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company has primarily financed all of its
operations through the sale of its securities in private placements. During the
six months ended December 31, 1997, cash flows from financing activities totaled
approximately $317,000 related to the sales of equity securities and short-term
borrowings. In November 1997, the Company entered into a demand promissory note
to fund expenses incurred in connection with the launch of the Company's
nutritional product line. As of March 1, 1998, the Company had borrowed $177,500
under such promissory note. The Company intends to convert the outstanding
principal amount under the promissory note into Units at a price of $5.50 per
Unit with each Unit consisting of one share of Preferred Stock and one Warrant.
In February 1998, the Company entered into the Cordy Note to memorialize a loan
in December 1997 of $52,890 from the Chief Executive Officer of the Company to
fund certain operational expenses. The Cordy Note bears interest at a fixed rate
of 6% per year. The Company intends to repay the Cordy Note out of the proceeds
of the Offering.
As of December 31, 1997, the Company had cash and cash equivalents of
$129,000 and negative working capital of $133,000. Cash used in operating
activities for the six months ended December 31, 1997 was $86,000.
The Company's investing activities principally consisted of the
purchase of office and computer equipment for $87,000 and software development
costs of $50,000 for the six months ended December 31, 1997.
The Company anticipates that it will require approximately $1.9 million
in capital to fund its ongoing operations through December 31, 1998. The Company
anticipates that the proceeds of this Offering, together with borrowings and
cash generated from operations, will be sufficient to meet the Company's capital
requirements through December 31, 1998. However, if the Company does not receive
sufficient funds from its operations, its borrowings and from the Offering to
fund its operations, the Company may need to raise additional capital. In
addition, any increases in the Company's growth rate, shortfalls in anticipated
revenues, increases in expenses or significant acquisitions could have a
material adverse effect on the Company's liquidity and capital resources and
could require the Company to raise additional capital. The Company may also need
to raise additional funds in order to take advantage of unanticipated
opportunities, such as acquisitions of complementary businesses or the
development of new products, or otherwise respond to unanticipated competitive
pressures. Sources of additional capital may include venture capital financing,
cash flow from operations, additional lines of credit and private equity and
debt financings. The Company's cash and financing needs for 1998 and beyond will
be dependent on the Company's level of IA and customer growth and the related
capital expenditures, advertising costs and working capital needs necessary to
support such growth. The Company believes that major capital expenditures may be
necessary over the next few years to develop additional product
30
<PAGE> 32
lines to sell through its IAs and to develop and/or acquire information,
accounting and/or inventory control systems to monitor and analyze the Company's
growing multi-level network marketing system. The Company has not identified
financing sources to fund such cash needs in 1998 and beyond. There can be no
assurance that the Company will be able to raise any such capital on terms
acceptable to the Company or at all. See "Risk Factors - Broad Discretion in
Application of Proceeds; Unspecified Acquisitions; Possible Need for Additional
Capital," "- New Enterprise" and "- Ability to Manage Growth."
31
<PAGE> 33
BUSINESS
Maxxis markets telecommunications services in the United States through
its multi-level network marketing system of "independent associates," or "IAs."
The Company operates through its subsidiaries: Maxxis 2000, which conducts
network marketing operations; Maxxis Telecom, which provides long distance
services; and Maxxis Nutritional, which provides private label nutritional
products. The Company currently markets both 1-Plus long distance service,
value-added telecommunications services, such as prepaid phone cards, and
nutritional products. The Company was incorporated in January 1997 and began
accepting IAs and marketing telecommunications services in March 1997. For the
Inception Period and the six months ended December 31, 1997, the Company
generated aggregate gross revenues of approximately $2,691,000 and $3,444,000,
respectively.
The Company initially intends to build a customer base without having
to commit capital or management resources to construct its own
telecommunications network and transmission facilities. In February 1997, Maxxis
Telecom contracted with CRC to obtain switching and network services and to
allow CRC's telecommunications services to be sold by the Company's IAs. In the
future, the Company may contract with other providers of long distance services
and intends to analyze the feasibility of developing its own long distance
network. In November 1997, the Company began marketing several private label
dietary supplements to its customers and IAs. The Company's nutritional products
are manufactured by various suppliers.
The Company conducts its marketing activities exclusively through its
network of IAs. The Company believes that IAs are generally attracted to the
Company's multi-level network marketing system because of the potential for
supplemental income and because the IAs are not required to purchase any
inventory, have no monthly sales quotas or account collection issues, have
minimal required paperwork and have a flexible work schedule. The Company
encourages IAs to enroll subscribers with whom the IAs have an ongoing
relationship, such as family members, friends, business associates and
neighbors. The Company also sponsors opportunity meetings at which current IAs
are encouraged to bring in potential candidates for an introduction to the
Company's marketing system. The Company's multi-level network marketing system
and the Company's reliance upon IAs are intended to reduce net marketing costs,
subscriber acquisition costs and subscriber attrition. The Company believes that
its multi-level network marketing system will continue to build a base of
potential customers for additional services and products.
The Company offers its IAs a number of support services. The Company
currently provides to each IA without charge one printed report describing such
IA's organization and provides additional reports for a fee. In addition, the
Company offers training, information and motivational support to the IA network
through: (i) its training organization; (ii) monthly newsletters; and (iii)
regional rallies.
STRATEGY
The Company's goal is to develop a national distribution system through
which large volumes of telecommunications services, nutritional products and
other products and services may be sold. The Company intends to increase its
revenues by: (i) expanding its marketing network; (ii) increasing the number of
customers who purchase products and services offered by the Company; and (iii)
providing additional products and services for sale through its IAs. The Company
intends to achieve its goal by:
- Growing and Developing its Network of IAs by enhancing the
sponsoring and training services offered to IAs, continuing to
support the marketing efforts of IAs and introducing new
income opportunities for IAs.
- Maintaining and Expanding the Number of Customers by offering
high quality, competitively-priced products and services
through a highly motivated network of IAs.
32
<PAGE> 34
- Offering Additional Telecommunications Products by entering
into agreements for the marketing of additional products that
meet the needs of subscribers, which may include, among
others, paging, conference calling, wireless cable, cellular
and local phone service.
- Improving and Expanding its Product Lines by continuing to
evaluate and offer products that are attractive to its IAs and
customers. In addition to telecommunications products, the
Company recently began marketing a line of private label
nutritional products to its customers and IAs.
- Obtaining Competitive Prices on products and services through
the purchasing power of the Company's nationwide network.
MARKETING
The Company markets products and services exclusively through its
network of IAs. Currently, the Company has five IA positions in its marketing
system: associate; senior associate; director; regional director; and executive
director. IAs are paid only by commissions and do not receive any salary from
the Company. All IA commissions are paid directly by the Company and are a
specified percentage or a designated amount of the gross proceeds received by
the Company on the sale of services and products. The Company designates a
portion of its gross commissions as "commission value," or "CV," and allocates
the CV among eligible participants in its marketing system. Currently, 20% of
the CV earned with respect to a long distance subscriber is paid weekly to the
IA who sponsored such subscriber, 75% of the CV is paid monthly to eligible
directors who have the IA who sponsored the subscriber in their downline and the
remaining 5% is retained by the Company to be paid out to directors, regional
directors and executive directors in the Company's incentive bonus programs. All
directors, executive directors and regional directors who (i) have personally
gathered four active subscribers; (ii) have sponsored at least two new senior
associates who have gathered four active subscribers during the quarter; and
(iii) are certified as MDs are eligible to receive an additional Leadership
Bonus. The Leadership Bonus is payable quarterly and equals, in the aggregate,
1% of the total sales of Maxxis 2000 during the quarter. The Leadership Bonus is
divided equally among all directors, regional directors and executive directors
who qualify for a Leadership Bonus.
To become an associate, individuals (other than individuals in North
Dakota) must complete an application and purchase a distributor kit for $30. IAs
also pay an annual fee in order to maintain their status as IAs. The distributor
kit is a package of basic materials which assists an associate in beginning his
or her business. Associates may gather long distance customers and receive 20%
of the CV generated by such customers. Associates are also entitled to purchase
products from the Company at discounted prices for retail sales. An associate
becomes a senior associate when the associate sells $100 of bonus-eligible
products. Senior associates continue to receive a percentage of CV with regard
to all subscribers personally gathered by them and are also entitled to purchase
products from the Company at discounted prices for retail sales.
To become a director, a senior associate must sponsor two additional
senior associate positions. A director increases the size of the director's
sales organization by sponsoring additional persons to become senior associates.
These senior associates, and all senior associates that they, in turn, sponsor,
become part of the sales organization of the director who sponsored them. Senior
associates, through the growth of their sales organizations, may become
directors, regional directors or executive directors and thereby increase the
size of the sales organization of the person who was their original sponsor. The
organization that grows below each director through this process is called a
"downline." Directors are eligible to receive the same commissions as senior
associates and, if they directly gather and maintain a minimum of four active
1-Plus long distance customers, are eligible to receive a percentage of the CV
produced by each IA that is within 15 levels below them in their downline. In
order to encourage the growth of the Company's marketing system, the Company
also pays eligible directors a bonus amount, which is designated as "bonus
value," or "BV," for each sale of bonus-eligible products. The Company primarily
designates retail priced phone cards and nutritional paks as bonus-eligible
products. Directors become regional directors and executive directors upon the
achievement of certain IA sales goals. Regional directors and executive
directors are eligible to receive the same commissions as directors and, if they
qualify, share in the Leadership Bonus. Regional directors and executive
directors are
33
<PAGE> 35
eligible to serve on the Maxxis 2000 Advisory Board, which advises management on
issues regarding field leadership.
The maximum aggregate long distance usage commissions the Company may
be required to pay with respect to a single subscriber's long distance usage are
approximately 40% of the gross commissions payable to the Company with respect
to such usage, but the Company anticipates that the actual amounts paid will be
less than 40% as the usage increases. The difference between actual commission
payments and the maximum payment is expected to occur because certain IAs fail
to maintain active status necessary to receive commissions from sales made by
persons in their downline.
RELATIONSHIP WITH IAS
The Company seeks to contractually limit the statements that IAs make
about the Company's business. Each IA also must agree to policies and procedures
to be followed in order to maintain the IA's status in the organization. IAs are
expressly forbidden from making any representation as to the possible earnings
of any IA from the Company. IAs are also prohibited from creating any marketing
literature that has not been pre-approved by the Company. While the Company has
these policies and procedures in place governing the conduct of the IAs, it is
difficult to enforce such policies and procedures. Because the IAs are
classified as independent contractors, the Company is unable to provide them the
same level of direction and oversight as Company employees. Violations of the
Company's policies and procedures may reflect negatively on the Company and
could have a material adverse effect on the Company's business, financial
condition and results of operations. See "Risk Factors - Dependence on IAs" and
"- Relationship with IAs."
TRAINING AND MARKETING SUPPORT
The Company provides all IAs with the opportunity to receive training
through the Company's training program. The training is conducted by the
Company's MDs and includes a detailed explanation of the Company's products, the
IA compensation plan and the use of the various marketing tools available to the
IA. The Company intends to publish a newsletter for the IAs containing
informative and motivational articles and recognizing IA achievements. The
Company's first annual convention was held in August 1997, and the Company
intends to continue to hold annual conventions for IAs. This event provides
recognition to the top performers, direct access to senior management and a
chance for IAs to share experiences and develop support systems. The Company
intends to organize additional conventions throughout the country that current
IAs and potential new IAs can attend to learn more about the Company.
The Company encourages senior associates, directors and regional
directors to become MDs. MDs provide personal training to IAs. To become a MD, a
senior associate, director or regional director must attend a Company approved
training school. The fee to attend the training school is currently $99, and MDs
must attend continuing education training schools each year which also are
subject to a fee. National training directors that are selected by the Company
are paid a fee by the Company for training MDs. The Company does not receive any
fees from IAs for the training provided by MDs.
The Company operates a call center to answer IA questions and provide
IA support. This system includes a current database of all IAs, their personal
organizations and their subscribers. In addition, the Company has licensed a
commission processing software system to process the high volume of data
necessary to calculate commissions. This system prepares weekly commission
payments.
34
<PAGE> 36
PRODUCTS AND SERVICES
Following is a summary of the various services and products the Company
currently provides to IAs and customers.
Telecommunications Products. The Company markets a variety of long
distance and value-added telecommunications services and products to customers
in equal access areas, which currently include 1-Plus long distance service and
prepaid phone cards.
- 1-Plus Long Distance. The Company's 1-Plus long distance
service serves as a replacement for a customer's former long
distance service (such as the long distance services provided
by AT&T, MCI and Sprint). The 1-Plus services marketed by the
Company are billed on a flat rate basis, where the cost of a
call does not vary depending upon the distance of a call or
the time of day or day of week when the call is originated or
terminated. Residential 1-Plus services marketed by the
Company are billed based on one minute increments, and
business 1-Plus service is billed based on 6-second increments
with a 30-second minimum.
- Prepaid Phone Cards. The Company offers prepaid phone cards in
domestic time increments of 5 hours, 1 hour, 30 minutes and 10
minutes. These cards may be used for domestic and
international calls. If used for international calls, a
greater number of minutes will be deducted from the call in
proportion to the differential between the domestic and
applicable international rate.
The Company may add products to and remove products from its telecommunications
product line from time to time.
Nutritional Products. The Company recently began marketing a line of
private label nutritional products to its IAs and customers. The Company offers
private label dietary supplements that contain herbs, vitamins, minerals and
other natural ingredients. Representative products include:
- 40/30/30 Maxxis Bar - an energy bar intended as a meal
replacement which contains approximately 40% carbohydrates,
30% protein, 30% dietary fat and various vitamins and
minerals.
- Maxx-A-Chol - a dietary supplement which is a specialized
combination of six herbs.
- MAXXIS MSM - a dietary supplement consisting of
methylsulfonylmethane, vitamin C, citrus bioflavonoid complex
and ginseng.
- MAXXIS Multivitamin - a multivitamin nutritional supplement
which is delivered by means of a spray.
- MAXXIS 02 - a nutritional supplement that contains
electrolytes, oxygen, trace elements, enzymes and amino acids.
The Company anticipates adding products to and may remove products from its
nutritional product line from time to time.
Promotional Materials. The Company also derives revenues from the sale
of various educational and promotional materials designed to aid its IAs in
maintaining and building their businesses. Such materials include various sales
aids, informational videotapes and cassette recordings and product and marketing
brochures.
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INFORMATION SYSTEMS
The Company believes that maintaining sophisticated and reliable
transaction processing systems is essential for multi-level network marketing
companies. Accordingly, the Company invests in maintaining and enhancing its
computer systems. The Company's systems are designed to process detailed and
customized IA commission payments, monitor and analyze financial and operating
trends and track each IA's personal organization.
IA SUPPORT
The Company operates a call center where advisors answer IA questions
and provide information to IAs. This system includes a current database of all
IAs, their personal organizations and their subscribers. The Company has
licensed a commission processing software system that incorporates the
provisions of the Company's marketing program for purposes of calculating
commissions. The Company also maintains transaction processing systems that
facilitate the shipment of IA training and marketing materials. In addition, the
Company's order processing system tracks the receiving, storage, shipment and
purchasing of sales aid products.
SUPPLIERS
The Company does not own a long distance network. As a result, Maxxis
Telecom has contracted with CRC to obtain switching and network services. The
Company now depends exclusively on CRC for the transmission of subscriber phone
calls and the activation of prepaid phone cards. Subscribers are long distance
customers on CRC's network, and CRC provides subscriber support for the
Company's subscribers. Subscribers have the right to change their service at any
time. CRC provides subscriber support for the Company. The Company's 1-Plus
Agreement with CRC, which expires on February 20, 2000, provides that the
Company will have such rights to the subscriber base developed under the
agreement upon achieving certain minimum levels of monthly revenues on CRC's
network. Once the Company reaches these minimum levels, the Company will have
the right to market other carriers to the subscriber base in the event the
Company contracts with such carriers. There can be no assurance that the Company
will achieve the minimum level of monthly revenues on CRC's network necessary to
have rights to the subscriber base. Although the Company does not currently
intend to use a different carrier, minimum monthly revenues may be more
difficult to maintain if the Company utilizes additional carriers, and the
Company could be subject to additional minimum commitments including, but not
limited to, minimum monthly revenues or minimum monthly minutes of usage, with
such new carriers. The accurate and prompt billing of subscribers originated by
the IAs is also dependent upon CRC. The failure of CRC to accurately and
promptly bill subscribers could lead to a loss of subscribers and could have a
material adverse effect on the Company's business, financial condition and
results of operations. The Company would be required to use another carrier if
the 1-Plus Agreement is terminated, the usage or number of subscribers
originated by the Company's IAs exceeds the capacity of CRC or CRC fails to
provide quality services. In such event, or in the event the Company otherwise
elects to use other carriers, the cost paid by the Company for such long
distance services may exceed that paid under the 1-Plus Agreement. If the 1-Plus
Agreement is terminated, there can be no assurance that the Company could enter
into new contracts with other providers on terms favorable to the Company or at
all. The termination of the 1-Plus Agreement could have a material adverse
effect on the Company's business, financial condition and results of operations.
In November 1997, the Company began marketing a line of private label
nutritional products. All of the nutritional products offered and distributed by
the Company are developed and manufactured by third-party suppliers. Certain of
the nutritional products offered by the Company are proprietary to such
suppliers. The Company does not have any written contracts with or commitments
from any of its suppliers or manufacturers to continue to sell nutritional
products to the Company. The Company believes that its relationships with its
suppliers are satisfactory; however, there can be no assurance that any or all
of these suppliers will continue to be reliable suppliers to the Company.
Accordingly, there is a risk that any or all of the Company's suppliers or
manufacturers, including suppliers which provide proprietary products to the
Company, could discontinue selling their nutritional products to the Company. In
the event any of the third-party manufacturers become unable or unwilling to
continue to provide the nutritional products in required volumes, the Company
would be required to identify and obtain acceptable replacement sources, and no
assurance can be given that any
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<PAGE> 38
alternative manufacturing sources would become available to the Company on a
timely basis. See "Risk Factors - Dependence Upon Suppliers."
SUBSCRIBER SUPPORT
CRC's is responsible for the billing of long distance customers and for
providing customer service. Services are provided under CRC's state, national
and international tariffs. The Company has been informed that CRC possesses all
tariffs necessary to offer such services.
COMPETITION
The Company faces competition in the United States for both the
products and services it sells and for the sponsoring and retaining of
independent salespeople. The United States long distance telecommunications
industry is intensely competitive, rapidly evolving and subject to rapid
technological change. In addition, the industry is significantly influenced by
the marketing and pricing practices of the major industry participants. AT&T,
MCI, Sprint and WorldCom are the dominant competitors in the domestic long
distance telecommunications industry. All of these companies are significantly
larger than the Company and have substantially greater resources. According to a
1995 FCC report, AT&T, MCI, Sprint and WorldCom accounted for approximately 56%,
17%, 10% and 5%, respectively, of total domestic long distance revenue for
calendar year 1994. Many of the Company's current and potential competitors have
longer operating histories, greater name recognition, larger customer bases and
substantially greater financial, personnel, marketing, technical and other
resources than the Company. These competitors employ various means to attract
new subscribers, including television and other advertising campaigns,
telemarketing programs, network marketing and cash payments and other incentives
to new subscribers. The Company's ability to compete effectively depends upon,
among other factors, its ability to offer high quality products and services at
competitive prices. There can be no assurance that the Company will be able to
compete successfully.
The evolving regulatory environment of the United States
telecommunications industry significantly influences the Company's ability to
compete. On February 8, 1996, President Clinton signed into law the 1996
Telecommunications Act that will allow LECs, including the BOCs, to provide long
distance telephone service inter-LATA, which will likely significantly increase
competition for long distance services. The new legislation also grants the FCC
the authority to deregulate other aspects of the telecommunications industry.
Such increased competition could have a material adverse effect on the Company's
business, financial condition and results of operations.
Telecommunications companies compete for subscribers based on price,
among other things, with major long distance carriers conducting extensive
advertising campaigns to capture market share. There can be no assurance that a
decrease in the rates charged for communications services by the major long
distance carriers or other competitors, whether caused by general competitive
pressures or the entry of the BOCs and other LECs into the long distance market,
would not have a material adverse effect on the Company's business, financial
condition and results of operations.
The Company expects that the telecommunications services markets will
continue to attract new competitors and new technologies, possibly including
alternative technologies that are more sophisticated and cost effective than the
technologies included in the products and services offered by the Company. The
Company does not have the contractual right to prevent subscribers from changing
to a competing service, and the subscribers may terminate their service at will.
The Company also competes in the highly competitive market of dietary
supplements. This market segment includes numerous manufacturers, other network
marketing companies, catalog companies, distributors, marketers, retailers and
physicians that actively compete for the business of consumers. The Company
competes with other providers of such nutritional products, especially retail
outlets, based upon convenience of purchase, price and immediate availability of
the purchased product. For the most part, the Company's competitors offering
comparable products are substantially larger and have available considerably
greater financial resources than the Company. The market is highly sensitive to
the introduction of new products (including various
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<PAGE> 39
prescription drugs) that may rapidly capture a significant share of the market.
As a result, the Company's ability to remain competitive depends in part upon
the successful introduction of new products at competitive prices.
The Company also competes for IAs with other direct selling
organizations, some of which have longer operating histories and greater
visibility, name recognition and financial resources. The largest network
marketing companies in the Company's markets are EXCEL, ACN and Amway. The
Company competes for new IAs on the basis of the Company's reputation, perceived
opportunity for financial success and quality and range of products offered for
sale. Management envisions the entry of many more direct selling organizations
into the marketplace. There can be no assurance that the Company will be able to
successfully meet the challenges posed by this increased competition. The
Company competes for the time, attention and commitment of its IAs. Given that
the pool of individuals interested in the business opportunities presented by
direct selling is limited in each market, the potential pool of IAs for the
Company's products and services is reduced to the extent other network marketing
companies successfully attract these individuals. Although management believes
that the Company offers an attractive business opportunity, there can be no
assurance that other network marketing companies will not be able to convince
the Company's existing IAs to join their organization or to deplete the pool of
potential IAs in a given market and, in such event, the Company's business,
financial condition and results of operations could be materially adversely
affected.
PROPRIETARY RIGHTS
The Company has applied for a federal registration for the mark
"MAXXIS." In addition, the Company relies upon common law rights to protect
other marks used by the Company and other rights that the Company considers to
be its intellectual property. There can be no assurance that the Company's
measures to protect this intellectual property will prevent or deter the use or
misappropriation of the Company's intellectual property by other parties. The
Company's inability to protect its intellectual property from use or
misappropriation from others could have a material adverse effect upon the
Company's business, financial condition and results of operations. From time to
time, companies may assert other trademark, service mark or intellectual
property rights in marks (including the mark "MAXXIS") or other intellectual
property used by the Company. The Company could incur substantial costs to
defend any legal action taken against the Company. If, in any legal action that
might arise, the Company's asserted trademarks, service marks or other rights
that the Company considers to be its intellectual property should be found to
infringe upon intellectual property rights of other parties, the Company could
be enjoined from further infringement and required to pay damages. In the event
a third party were to sustain a valid claim against the Company, and in the
event any required license were not available on commercially reasonable terms,
the Company's business, financial condition and results of operations could be
materially adversely affected. Litigation, which could result in substantial
cost to and diversion of resources of the Company, may also be necessary to
enforce intellectual property rights of the Company or to defend the Company
against claimed infringement of the rights of others.
REGULATION
Regulation of Long Distance Telephone Services. Various regulatory
factors may have an impact on the Company's ability to compete and on its
financial performance. The Company's carrier, CRC, is subject to regulation by
the FCC and by various state public service and public utility commissions.
Federal and state regulations and regulatory trends have had, and may have in
the future, both positive and negative effects on the Company and on the
telecommunications service industry as a whole. FCC policy currently requires
interexchange carriers to provide resale of the use of their transmission
facilities. The FCC also requires LECs to provide all interexchange carriers
with equal access to the origination and termination of calls. If either or both
of these requirements were removed, CRC and, therefore, the Company could be
adversely affected. CRC may experience disruptions in service due to factors
outside CRC's and the Company's control, which may cause CRC to lose the ability
to complete its subscribers' long distance calls. The Company believes that CRC
has made all filings with the FCC necessary to allow CRC to provide interstate
and international long distance service. In order to provide intrastate long
distance service, CRC is required to obtain certification to provide
telecommunications services from the public service or public utility
commissions of each state, or to register or be found exempt from registration
by such commissions. While the Company believes that CRC is in
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<PAGE> 40
compliance with the applicable state and federal regulations governing
telecommunications service, there can be no assurance that the FCC or any state
regulatory authority in one or more states will not raise material issues with
regard to CRC's compliance with applicable regulations, or that regulatory
activities with respect to CRC will not have a material adverse effect on the
Company's business, financial condition and results of operations.
In February 1996, the enactment of the 1996 Telecommunications Act
served to increase competition in the long distance and local telecommunications
markets. The 1996 Telecommunications Act opens competition in the local services
market and, at the same time, contains provisions intended to protect consumers
and businesses from unfair competition by incumbent LECs, including the BOCs.
The 1996 Telecommunications Act allows BOCs to provide long distance service
outside of their local service territories but bars them from immediately
offering in-region inter-LATA long distance services until certain conditions
are satisfied. A BOC must apply to the FCC to provide in-region inter-LATA long
distance services and must satisfy a set of pro-competitive criteria intended to
ensure that BOCs open their own local markets to competition before the FCC will
approve such application. The Company is unable to determine how the FCC will
rule on any such application. The new legislation may result in increased
competition to the Company from others, including the BOCs, and increased
transmission costs in the future. See "Risk Factors - Intense Competition." If
the federal and state regulations requiring the LECs to provide equal access for
the origination and termination of calls by long distance subscribers change or
if the regulations governing the fees to be charged for such access services
change, particularly if such regulations are changed to allow variable pricing
of such access fees based upon volume, such changes could have a material
adverse effect upon the Company's business, financial condition and results of
operations. See "- Competition."
Regulation Affecting Nutritional Products. The formulation,
manufacturing, packaging, labeling, advertising, distribution and sale of the
Company's nutritional products are subject to regulation by a number of
governmental agencies, the most active of which is the FDA, which regulates the
Company's nutritional products under the FDCA and regulations promulgated
thereunder. The Company's products are also subject to regulation by the FTC,
the CPSC, the USDA, and the EPA. The FDCA has been amended several times with
respect to dietary supplements, most recently by the NLEA and the DSHEA. The
Company's nutritional products are generally classified and regulated as dietary
supplements under the FDCA, as amended, and therefore are not subject to
pre-market approval by the FDA. However, these products are subject to extensive
labeling regulation by the FDA and can be removed from the market if shown to be
unsafe. Moreover, if the FDA determines on the basis of labeling or advertising
claims by the Company, that the "intended use" of any of the Company's
nutritional products is for the diagnosis, cure, mitigation, treatment or
prevention of disease, the FDA can regulate those products as drugs and require
pre-market clearance for safety and effectiveness. In addition, if the FDA
determines that claims have been made regarding the effect of dietary
supplements on the "structure or function" of the body, such claims could result
in the regulation of such products as drugs.
The FTC and certain states regulate advertising, product claims, and
other consumer matters, including advertising of the Company's nutritional
products. In the past several years the FTC has instituted enforcement actions
against several dietary supplement companies for false and misleading
advertising of certain products. In addition, the FTC has increased its scrutiny
of the use of testimonials, such as those utilized by the Company. There can be
no assurance that the FTC will not question the Company's past or future
advertising or other operations. Moreover, there can be no assurance that a
state will not interpret product claims presumptively valid under federal law as
illegal under that state's regulations. Furthermore, the Company's IAs and
customers of IAs may file actions on their own behalf, as a class or otherwise,
and may file complaints with the FTC or state or local consumer affairs offices.
These agencies may take action on their own initiative or on a referral from
IAs, customers or others, including actions resulting in entries of consent
decrees and the refund of amounts paid by the complaining IA or customer,
refunds to an entire class of IAs or customers, or other damages, as well as
changes in the Company's method of doing business. A complaint because of a
practice of one IA, whether or not that practice was authorized by the Company,
could result in an order affecting some or all IAs in a particular state, and an
order in one state could influence courts or government agencies in other
states. Proceedings resulting from these complaints may result in significant
defense costs, settlement payments or judgments and could have a material
adverse effect on the Company's business, financial condition or results of
operations.
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<PAGE> 41
Regulation of Network Marketing. The Company's multi-level network
marketing system is subject to or affected by extensive government regulation
including, without limitation, federal and state regulations governing the offer
and sale of business franchises, business opportunities and securities. Various
governmental agencies monitor direct selling activities, and the Company could
be required to supply information regarding its marketing plan to such agencies.
Although the Company believes that its multi-level network marketing system is
in material compliance with the laws and regulations relating to direct selling
activities, there can be no assurance that legislation and regulations adopted
in particular jurisdictions in the future will not adversely affect the
Company's business, financial condition and results of operations. The Company
also could be found not to be in compliance with existing statutes or
regulations as a result of, among other things, misconduct by IAs, who are
considered independent contractors over whom the Company has limited control,
the ambiguous nature of certain of the regulations and the considerable
interpretive and enforcement discretion given to regulators. Any assertion or
determination that the Company or the IAs are not in compliance with existing
statutes or regulations could have a material adverse effect on the Company's
business, financial condition and results of operations. An adverse
determination by any one state on any regulatory matter could influence the
decisions of regulatory authorities in other jurisdictions.
The Company has not obtained any no-action letters or advance rulings
from any federal or state securities regulator or other governmental agency
concerning the legality of the Company's operations, and the Company is not
relying on an opinion of counsel to such effect. The Company accordingly is
subject to the risk that its multi-level network marketing system could be found
to be in noncompliance with applicable laws and regulations, which could have a
material adverse effect on the Company's business, financial condition or
results of operations. Such a decision could require the Company to modify its
multi-level network marketing system, result in negative publicity, or have a
negative effect on distributor morale and loyalty. In addition, the Company's
multi-level network marketing system will be subject to regulations in foreign
markets administered by foreign agencies should the Company expand its network
marketing organization into such markets.
Effect of State Securities Laws. Furthermore, the primary goal of the
Offering is to increase the motivation of regional directors by allowing them to
purchase an interest in the Company. Accordingly, because the Company desires
the ability to offer its Common Stock to regional directors in certain states,
the Company will attempt to register or qualify the Offering in such states. Due
to the varying nature of state securities regulations and the considerable
discretion given to state securities regulators, the Company may be unable to
register or qualify the Offering in certain states. The inability of the Company
to offer the Shares to residents of certain states may limit the ability of the
Company to attract IAs in such states, or lead to increased attrition of IAs in
such states, and may have a material adverse effect on the Company's business,
prospects, financial condition and results of operations. An adverse
determination by any one state regulator on a securities regulatory matter could
influence the decisions of securities regulatory authorities in other
jurisdictions.
FACILITIES
The Company operates out of offices in Atlanta, Georgia consisting of
approximately 7,200 square feet of general and administrative office space and
approximately 5,500 square feet of training space. The Company believes that it
will be required to lease or build additional facilities, including at least one
additional call center and new corporate headquarters, in order to meet
adequately its needs in the future. The Company believes that suitable
additional or alternative space will be available in the future on commercially
reasonable terms as needed.
EMPLOYEES
As of February 1, 1998, the Company employed approximately 26 people.
The Company's IAs are classified by the Company as independent contractors;
however, two of the Company's employees are also IAs. The Company's employees
are not unionized, and the Company believes its relationship with its employees
is good.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The directors and executive officers of the Company are set forth
below. The Company's Board of Directors consists of nine directors divided into
three classes of directors, serving staggered three-year terms. Directors and
executive officers of the Company are elected to serve until they resign or are
removed, or are otherwise disqualified to serve, or until their successors are
elected and qualified. Directors of the Company are elected at the annual
meeting of shareholders. Officers of the Company are appointed at the Board's
first meeting after each annual meeting of shareholders. The ages of the persons
set forth below are as of October 1, 1997.
<TABLE>
<CAPTION>
TERM AS
DIRECTOR
NAME AGE POSITIONS WITH THE COMPANY EXPIRES
- ---- --- -------------------------- --------
<S> <C> <C> <C>
Ivey J. Stokes.................. 38 Chairman of the Board of Directors 1998
Thomas O. Cordy................. 56 Chief Executive Officer, President and
Director 1998
Daniel McDonough................ 50 Chief Financial Officer --
James W. Brown.................. 62 Executive Vice President, Secretary and
Director 1999
Larry W. Gates, II.............. 34 Vice President - Human Resources and
Director 1999
Charles P. Bernstein............ 47 Director 2000
Alvin Curry..................... 40 Director 1998
Robert J. Glover, Jr............ 36 Director 1999
Terry Harris.................... 43 Director 2000
Philip E. Lundquist............. 61 Director 2000
</TABLE>
The Company has adopted a policy requiring that any material
transactions between the Company and persons or entities affiliated with
officers, directors or principal shareholders of the Company be on terms no less
favorable to the Company than reasonably could have been obtained in arm's
length transactions with independent third parties. Any other matters involving
potential conflicts of interests are to be resolved on a case-by-case basis. See
"Certain Transactions."
IVEY J. STOKES has served as Chairman of the Board of Directors of the
Company since its inception. Mr. Stokes started his marketing career in 1982 at
A.L. Williams Corporation ("A.L. Williams") where he became one of less than 400
National Sales Directors out of 1.3 million insurance agents. In March 1991, Mr.
Stokes left the financial services industry to launch his own independent
marketing firm, Global Marketing Alliance ("Global Alliance"). Over the next
five years, Mr. Stokes became one of the leading money earners in several
national network marketing firms. Mr. Stokes' marketing firm, Global Alliance,
has sponsored and trained over 150,000 distributors since 1991. Mr. Stokes has a
bachelors degree in industrial management from Georgia Tech University.
THOMAS O. CORDY has served as Chief Executive Officer, President and a
Director of the Company since May 1997. Prior to that time, he served as
President and Chief Executive Officer of CI Cascade Corp. Mr. Cordy currently
serves as Vice Chairman of the Board of Trustees for Clark Atlanta University,
Chairman of the Board of Renaissance Capital Corporation and a Director of Cox
Enterprises. Mr. Cordy has a bachelors degree from Morehouse College and a
masters degree from Atlanta University. Mr. Cordy has attended the
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Stanford Executive Program at the Stanford School of Business and the University
of Oklahoma National Lending School.
DANIEL MCDONOUGH has served as Chief Financial Officer of the Company
since October 1997. Prior to his employment with the Company, Mr. McDonough
provided financial consulting services to a number of start up companies at
Creative Benefits, Inc. In addition, from 1992 to 1994, Mr. McDonough was the
controller of Jostens Learning Corporation, a $75 million technology company
specializing in educational software. Prior to his employment with Jostens, Mr.
McDonough served as assistant controller to Alumax, Inc., a $2.5 billion
integrated aluminum company with over 100 manufacturing operations throughout
the United States. From 1973 to 1980, Mr. McDonough was employed by Price
Waterhouse & Co. Mr. McDonough is a licensed CPA and also holds a masters of
business administration from the University of Buffalo.
JAMES W. BROWN currently serves as Executive Vice President and
Secretary of the Company and has been a Director of the Company since May 1997.
He served as President and Chief Executive Officer of the Company from inception
to April 1997. He has also served as Chief Executive Officer, President and a
Director of Maxxis 2000 since its inception. From 1995 to 1997, Mr. Brown has
served as a manager of NetWorld Communications, L.L.C. Since 1979, Mr. Brown has
also served as President and Chief Executive Officer of Marketing Ideas, Ltd.
Mr. Brown has a bachelors degree from the University of Georgia. He also
attended the John Marshall School of Law and the American Mutual Institute of
Management.
LARRY W. GATES, II has served as Vice President of Human Resources
since the Company's inception and a Director of the Company since May 1997. Mr.
Gates became a part-time independent insurance agent for A.L. Williams in 1989
while serving in the U.S. Army. In 1993, he left the financial services industry
and became a full-time independent marketer of telecommunications services
through his own independent marketing firm, Classic Enterprises. Mr. Gates built
a downline of over 10,000 distributors between 1993 and 1996. Mr. Gates has an
associates degree from Pierre College.
CHARLES P. BERNSTEIN has served as a Director of the Company since May
1997. Since 1992, Mr. Bernstein has also served as President of Harvest Mortgage
Co. From 1989 to 1992, Mr. Bernstein was the Vice President of Nationwide
Mortgage Resources, an underwriter and servicer of loans on residential and
commercial real estate. Mr. Bernstein holds an associates degree from the
University of South Carolina.
ALVIN CURRY has served as a Director of the Company since its
inception. He also serves as Executive Vice President and Chief Operating
Officer of Maxxis 2000. Mr. Curry started his marketing career in 1986 with A.L.
Williams, where he attained the position of Senior Vice President in less than
three years with A.L. Williams. In March 1991, Mr. Curry left the financial
services industry to join Mr. Stokes in Global Alliance. Mr. Curry attended
Northwest Mississippi Junior College and Tacoma Community College, and he
received a degree from the Knapp College of Business.
ROBERT JAMES GLOVER, JR. has served as a Director of the Company since
its inception. Mr. Glover started his marketing career as an independent
insurance agent with A.L. Williams in 1985, where he attained the sales position
of Senior Vice President. In December 1993, Mr. Glover left the financial
services industry and became an independent marketer of telecommunications
services through his own independent marketing firm, Glover Enterprises. Mr.
Glover's network marketing firm has sponsored and trained over 10,000
distributors. Mr. Glover attended Maryland University.
TERRY HARRIS has served as a Director of the Company since May 1997.
Since 1982, Mr. Harris has served as Pastor and President of Tacoma Christian
Center Inc. Mr. Harris has a bachelors degree from the University of Puget Sound
and attended Rhema Bible School.
PHILIP E. LUNDQUIST has served as a Director of the Company since May
1997. He also serves as Chairman of Christopher Partners Inc. Since 1988, Mr.
Lundquist has owned and operated an investment banking consulting company as a
sole proprietorship. From 1985 to 1988, Mr. Lundquist was the Director of
Corporate Finance for Deloitte Haskins & Sells in Atlanta, Georgia. Mr.
Lundquist has a bachelors degree
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<PAGE> 44
from Williams College and attended the Institute of Investment Banking at the
Wharton School, University of Pennsylvania.
COMMITTEES OF THE BOARD
The Company's Board of Directors recently established Executive, Audit
and Compensation Committees. The Executive Committee may, within certain
limitations, during the interval between Board meetings, exercise all of the
powers of the Company's Board of Directors. The Audit Committee is responsible
for reviewing and making recommendations regarding the Company's independent
auditors, the annual audit of the Company's financial statements and the
Company's internal accounting practices and policies. The Compensation Committee
will review and approve compensation arrangements for key employees, key
independent sales representatives and key consultants of the Company.
DIRECTOR COMPENSATION
Members of the Board of Directors are reimbursed for their
out-of-pocket expenses for each meeting attended, but otherwise serve without
compensation.
EXECUTIVE COMPENSATION
The following Summary Compensation Table sets forth the compensation
earned by the Company's current Chief Executive Officer and its former chief
executive officer for the Inception Period. No executive officers of the Company
received a combined salary and bonus in excess of $100,000 during the Inception
Period.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
INCEPTION PERIOD
COMPENSATION
------------------------------
SALARY BONUS
NAME AND PRINCIPAL POSITION ($) ($)
- --------------------------- ------------- -------------
<S> <C> <C>
Thomas O. Cordy(1)......................................... $5,250 $ -
Chief Executive Officer and President
James W. Brown(1).......................................... 7,950 -
Executive Vice President
</TABLE>
- ------------------
(1) Mr. Brown served as the Chief Executive Officer and President of the
Company from inception to April 30, 1997, and Mr. Cordy has served as
Chief Executive Officer of the Company since May 1, 1997.
OPTION GRANTS DURING 1997
As of June 30, 1997, no options had been granted to the Chief Executive
Officer of the Company, and no executive officer of the Company received a
combined salary and bonus in excess of $100,000 during the Inception Period.
EMPLOYMENT AGREEMENTS
In May 1997, the Company entered into an employment agreement with Mr.
Cordy, and in September 1997, the Company entered into employment agreements
with each of Messrs. Brown and Curry and Mr. Shawn Dinwiddie (collectively, the
"Employment Agreements"). The Company intends to enter into an employment
agreement with Mr. McDonough. Generally, the Employment Agreements provide for a
minimum weekly salary. In addition, the employee may participate in a bonus
program and shall be eligible to receive quarterly
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<PAGE> 45
or annual payments of a performance bonus based upon the achievement of targeted
levels of performance and such other criteria as the Board of Directors shall
establish from time to time. Mr. Cordy's employment agreement provides for an
additional bonus payment on July 1, 1998 and the purchase of Class A Common
Stock. Each employee may participate in insurance and other benefit plans of
similarly situated employees, including any stock option plans of the Company.
Each of the Employment Agreements has a term of one year, and the term
renews daily until either party fixes the remaining term at one year by giving
written notice. The Company can terminate each employee upon death or disability
(as defined in the Employment Agreements) or with or without cause upon delivery
to the employee of a notice of termination. If the employee is terminated
because of death, disability or cause, the employee will receive any accrued
compensation through the termination date and any accrued performance bonus,
unless the employee is terminated for cause. If the employee is terminated
without cause, the Company shall pay the employee severance payments equal to
his minimum base salary for each week during the six-month period following the
termination date. If the employee is a director or officer of the Company or any
of its affiliates, the employee shall tender his resignation to such positions
effective as of the termination date.
Under the Employment Agreements, each employee agrees to maintain the
confidentiality of the Company's trade secrets and confidential business
information. The employee also agrees for a period of one year following the
termination date, if he is terminated or resigns for any reason, not to compete
with or solicit employees or customers of the Company or any of its affiliates
within a 30-mile radius of the Company's corporate offices; provided, that if
the employee is terminated without cause, the non-compete period shall be six
months.
SALES REPRESENTATIVE AGREEMENTS
In September 1997, the Company entered into independent sales
representative agreements (collectively, the "Sales Representative Agreements")
with ten independent sales representatives, including Messrs. Stokes, Gates and
Glover. The Sales Representative Agreements provide for a minimum fee of $800.00
per week. Each sales representative shall also be eligible to receive quarterly
payments of a performance bonus which shall be a percentage of total revenue
from Maxxis 2000. To be paid a bonus, a sales representative must have 180 new
activations in a quarter. The bonus amount is then determined by the number of
open centers in that quarter. The bonus ranges from 0.5% of total revenue from
Maxxis 2000 if six centers are opened to 3.0% of the revenue if 27 centers are
opened. Each sales representative is an independent contractor, and the Company
does not exercise control over the activities of the sales representatives other
than as set forth in the Sales Representative Agreements.
Each of the Sales Representative Agreements has a term of one year, and
the term renews daily until either party fixes the remaining term at one year by
giving written notice. The Company can terminate each sales representative upon
death or disability (as defined in the Sales Representative Agreements) or with
or without cause upon delivery to the sales representative of a notice of
termination. If a sales representative is terminated, the sales representative
will receive any accrued fees through the termination date and any accrued
performance bonus, unless the sales representative is terminated for cause. If
the sales representative is a director or officer of the Company or any of its
affiliates, the sales representative shall tender his resignation to such
positions effective as of the termination date. Under the Sales Representative
Agreements, each sales representative agrees to maintain the confidentiality of
the Company's trade secrets and confidential business information.
CONSULTING AGREEMENT
In September 1997, the Company entered into a consulting agreement with
Mr. Robert P. Kelly. The consulting agreement provides for a minimum weekly
salary, and the consultant may participate in a bonus program and shall be
eligible to receive quarterly or annual payments of a performance bonus based
upon the achievement of targeted levels of performance and such other criteria
as the Board of Directors shall establish from time to time. The consultant is
an independent contractor, and the Company does not exercise control over the
activities of the consultant other than as set forth in the consulting
agreement.
44
<PAGE> 46
The consulting agreement has a term of one year, and the term renews
daily until either party fixes the remaining term at one year by giving written
notice. The Company can terminate the consultant upon death or disability (as
defined in the consulting agreement) or with or without cause upon delivery to
the consultant of a notice of termination. If the consultant is terminated
because of death, disability or cause, the consultant will receive any accrued
fees through the termination date and any accrued performance bonus, unless the
consultant is terminated for cause. If the consultant is terminated without
cause, the Company shall pay the consultant severance payments equal to his
minimum base salary for each week during the six-month period following the
termination date.
Under the consulting agreement, the consultant agrees to maintain the
confidentiality of the Company's trade secrets and confidential business
information. The consultant also agrees for a period of one year following the
termination date, if he is terminated or resigns for any reason, not to compete
with or solicit employees or customers of the Company or any of its affiliates
within a 30-mile radius of the Company's corporate offices; provided, that if
the consultant is terminated without cause, the non-compete period shall be six
months.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the Articles, the Company is obligated to indemnify each of
its directors and officers to the fullest extent permitted by Georgia Law with
respect to all liability and loss suffered and reasonable expenses incurred by
such person in any action, suit or proceeding in which such person was or is
made or threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the Company. The
Company is obligated to pay the reasonable expenses of the directors or officers
incurred in defending such proceedings if the indemnified party agrees to repay
all amounts advanced by the Company if it is ultimately determined that such
indemnified party is not entitled to indemnification. See "Description of
Capital Stock - Limitations on Liability of Officers and Directors."
STOCK OPTION PLAN
The Board of Directors intends (subject to shareholder approval or
ratification) to adopt a stock option plan which will permit the Company to
grant options to purchase shares of Common Stock to officers, directors, key
employees, advisors and consultants of the Company.
45
<PAGE> 47
CERTAIN TRANSACTIONS
On February 16, 1997, Glover Enterprises, Inc., an affiliate of Robert
J. Glover, a director of the Company, loaned the Company $50,000 to fund initial
start-up costs of the Company. The Company has repaid this loan.
During the Inception Period, the Company paid a fee of $184,000 to IS
14, Inc. ("IS 14"), a former Delaware corporation which was controlled by
certain of the directors and officers of the Company. The IS 14 fee was
comprised of compensation for managerial, marketing and administrative services
performed by certain of the Company's officers and sales representatives prior
to the establishment of the Company's payroll. IS 14 has been dissolved, and the
Company will not make any additional payments to IS 14.
Pursuant to Mr. Cordy's employment agreement, The Anchora Company, an
affiliate of Mr. Cordy, purchased 800,000 shares of Class A Common Stock, at a
price of $0.15 per share. In exchange, The Anchora Company gave the Company a
$120,000 full recourse promissory note which bears interest at an annual rate of
8.75%. Mr. Cordy guaranteed the promissory note. The principal and interest on
the promissory note are due and payable on the earlier of May 1, 2002 or the
closing of an underwritten public offering where the Company receives aggregate
net proceeds of at least $5,000,000.
In December 1997, the Company borrowed approximately $52,980 from Mr.
Cordy to fund certain operational expenses. In February 1998, the Company
entered into the Cordy Note to memorialize such borrowing. The Cordy Note bears
interest at a fixed rate of 6% per year and is payable on demand. The Company
intends to repay the Cordy Note out of the proceeds of the Offering.
Certain of the transactions described above may be on terms more
favorable to officers, directors and principal shareholders than they could
obtain in a transaction with an unaffiliated third party. The Company has
adopted a policy requiring that all material transactions between the Company
and its officers, directors or other affiliates must: (i) be approved by a
majority of the disinterested members of the Board of Directors of the Company;
and (ii) be on terms no less favorable to the Company than could be obtained
from unaffiliated third parties. See "Risk Factors - Transactions with Related
Parties."
46
<PAGE> 48
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding the
beneficial ownership of the Common Stock, as of March 1, 1998, and as adjusted
to reflect the sale of 450,000 Shares of Common Stock offered hereby, by: (i)
each person known by the Company beneficially to own more than 5% of the
outstanding shares of the Common Stock; (ii) each director of the Company; and
(iii) all directors and executive officers of the Company as a group. Except as
otherwise indicated, all persons listed have sole voting and investment power
with respect to their shares.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO OWNED AFTER
THE OFFERING(B) THE OFFERING(B)
--------------------- --------------------
NUMBER PERCENTAGE NUMBER PERCENTAGE
------ ---------- ------ ----------
<S> <C> <C> <C> <C>
NAME AND ADDRESS(A) OF BENEFICIAL OWNER
- ---------------------------------------
Alvin Curry(c)....................................... 636,363 40.5% 636,363 31.5%
King David Trust(d).................................. 454,545 28.9 454,545 22.5
Cynthia Glover, trustee(e)........................... 181,818 11.6 181,818 9.0
The Anchora Company(f)............................... 72,727 4.6 72,727 3.6
Charles P. Bernstein................................. -- -- -- --
James W. Brown....................................... 47,272 3.0 47,272 2.3
Thomas O. Cordy(g)................................... -- -- -- --
Larry W. Gates, II................................... 45,454 2.9 45,454 2.3
Robert J. Glover(h).................................. -- -- -- --
Terry Harris......................................... 3,636 * 3,636 *
Philip E. Lundquist.................................. -- -- -- --
Ivey J. Stokes(i).................................... -- -- -- --
All directors and executive officers as a group
(10 persons) (c) - (i)............................. 987,270 62.8 987,270 48.8
</TABLE>
- ----------------------
* Less than one percent
(a) The address of the King David Trust and Alvin Curry is c/o Maxxis
Group, Inc., 1901 Montreal Drive, Suite 108, Tucker, Georgia 30084. The
address of Cynthia Glover, trustee, U/A Louise Glover dated January 10,
1997 is 7839 Taylor Circle, Riverdale, Georgia 30274. The address of
the Anchora Company is c/o Salem Management Company, Ltd., Design
House, Leeward Highway, P.O. Box 150, Providenciales Turks & Caicos
Island, B.W.I.
(b) In accordance with Rule 13d-3 under the Exchange Act, a person is
deemed to be the beneficial owner, for purposes of this table, of any
shares of Common Stock if such person has or shares voting power or
investment power with respect to such security, or has the right to
acquire beneficial ownership at any time within 60 days from March 1,
1998. As used herein, "voting power" is the power to vote or direct the
voting of shares and "investment power" is the power to dispose or
direct the disposition of shares.
(c) Includes 454,545 shares owned by the King David Trust of which Mr.
Curry, a director of the Company, is the trustee. Mr. Curry disclaims
beneficial ownership of such shares.
(d) All such shares are owned by the King David Trust of which Mr. Curry is
the trustee and Mr. Stokes' minor children are the beneficiaries. Mr.
Stokes, the Chairman of the Board, disclaims beneficial ownership of
such shares.
(e) All such shares are owned by Cynthia Glover, trustee, U/A Louise Glover
dated January 10, 1997. Ms. Glover is the wife of Robert J. Glover, a
director of the Company. Mr. Glover is the sole beneficiary and
disclaims beneficial ownership of such shares. In addition, Ms. Glover
disclaims beneficial ownership of such shares.
(f) All such shares are owned by The Anchora Company of which Mr. Cordy,
Chief Executive Officer and President of the Company, is the protector.
Mr. Cordy disclaims beneficial ownership of such shares.
(g) Excludes 72,727 shares owned by The Anchora Company, of which Mr. Cordy
is the protector. Mr. Cordy disclaims beneficial ownership of such
shares.
(h) Excludes 181,818 shares owned by Cynthia Glover, trustee, U/A Louise
Glover dated January 10, 1997 of which Mr. Glover is the sole
beneficiary. Mr. Glover disclaims beneficial ownership of such shares.
(i) Excludes 454,545 shares owned by the King David Trust of which Mr.
Stokes' minor children are the beneficiaries. Mr. Stokes disclaims
beneficial ownership of such shares.
47
<PAGE> 49
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock is only a summary and is
subject to the provisions of the Articles and Bylaws, which are included as
exhibits to the Registration Statement of which this Prospectus forms a part,
and the applicable provisions of Georgia Law.
GENERAL
The Articles authorize the Company to issue up to 20,000,000 shares of
Common Stock. As of the date hereof, 1,571,187 shares of Common Stock are issued
and outstanding and are held of record by 56 shareholders. In addition, the
Articles authorize the Company to issue up to 10,000,000 shares of preferred
stock, no par value per share, with such rights and preferences as the Board of
Directors shall determine.
COMMON STOCK
Each holder of shares of Common Stock is entitled to one vote at
shareholders' meetings for each share held. Subject to the prior rights of any
series of Preferred Stock that may be issued, holders of shares of Common Stock
are entitled to receive, pro rata, such dividends as may be declared by the
Board of Directors out of funds legally available therefor, and are also
entitled to share, pro rata, in any other distributions to the shareholders. The
Company anticipates that for the foreseeable future its earnings will be
retained for the operation and expansion of its business and that it will not
pay cash dividends. See "Dividend Policy." There are no redemption or sinking
fund provisions applicable to the Common Stock. Holders of shares of Common
Stock do not have any preemptive rights or other rights to subscribe for
additional shares. The outstanding shares of Common Stock are, and the shares
sold by the Company pursuant to this Offering will be, when issued and paid for,
fully paid and non-assessable.
PREFERRED STOCK
The Articles provide that the Board of Directors shall be authorized,
without further action by the holders of the Common Stock, to provide for the
issuance of shares of the preferred stock in one or more classes or series and
to fix the designations, powers, preferences and relative, participating,
optional and other rights, qualifications, limitations and restrictions thereof,
including the dividend rate, conversion rights, voting rights, redemption price
and liquidation preference; and to fix the number of shares to be included in
any such classes or series. Any preferred stock so issued may rank senior to the
Common Stock with respect to the payment of dividends or amounts upon
liquidation, dissolution or winding-up, or both. In addition, any such shares of
preferred stock may have class or series voting rights. Issuances of preferred
stock, while providing the Company with flexibility in connection with general
corporate purposes, may, among other things, have an adverse effect on the
rights of holders of Common Stock and, in certain circumstances, could have the
effect of making it more difficult for a third party to acquire control of the
Company or the effect of decreasing the market price of the Common Stock.
In November 1997, the Company entered into a demand promissory note to
fund expenses incurred in connection with the launch of the Company's
nutritional product line. As of March 1, 1998, the Company had borrowed $177,500
under the promissory note. The Company intends to convert the principal amount
of the promissory note into Units at a price of $5.50 per Unit with each Unit
consisting of one share of Preferred Stock and a Warrant to purchase one share
of Common Stock at a price of $5.50 per share. The Preferred Stock will be: (i)
non-voting; (ii) entitled to an antidilution adjustment only upon a stock split,
recapitalization or similar event; (iii) entitled to a liquidation preference
over the Common Stock; and (iv) convertible into Common Stock at the option of
the holder at any time commencing 14 months following the date of the issuance
of the Preferred Stock and automatically upon the closing of a public offering
that occurs at least 14 months following the issuance of the Preferred Stock and
that provides gross proceeds to the Company of at least $7,500,000. The Warrants
will be entitled to an antidilution adjustment only upon a stock split,
recapitalization or similar event and will not be exercisable until 14 months
following their date of issuance and will remain exercisable at the option of
the holder until the seventh anniversary of their issuance.
48
<PAGE> 50
CERTAIN PROVISIONS OF THE ARTICLES, BYLAWS AND GEORGIA LAW
Certain provisions of the Articles and Bylaws and the Georgia Law,
summarized in the following paragraphs, may be considered to have antitakeover
effects and may hinder, delay, deter or prevent a tender offer, proxy contest or
other attempted takeover that a shareholder may deem to be in such shareholder's
best interest, including such an attempted transaction as might result in
payment of a premium over the market price for shares held by such shareholder.
Classified Board of Directors. The Articles of Incorporation divide the
Board of Directors into three classes of directors serving staggered three-year
terms. As a result, approximately one-third of the Board of Directors are
elected at each annual meeting of shareholders. Currently, the terms of Class I
directors expire in 1998, the terms of Class II directors expire in 1999 and the
terms of Class III directors expire in 2000.
Advance Notice Provisions for Shareholder Nominations and Shareholder
Proposals; Actions by Written Consent of Shareholders. The Bylaws establish an
advance notice procedure for shareholders to make nominations of candidates for
election as directors or to bring other business before any meeting of
shareholders of the Company. Any shareholder nomination or proposal for action
at an upcoming shareholder meeting must be delivered to the Company no later
than the deadline for submitting shareholder proposals pursuant to Rule 14a-8
under the Exchange Act. The presiding officer at any shareholder meeting is not
required to recognize any proposal or nomination which did not comply with such
deadline.
The purpose of requiring shareholders to give the Company advance
notice of nominations and other business is to afford the Board of Directors a
meaningful opportunity to consider the qualifications of the proposed nominees
or the advisability of the other proposed business and, to the extent deemed
necessary or desirable by the Board of Directors, to inform shareholders and
make recommendations about such qualifications or business, as well as to
provide a more orderly procedure for conducting meetings of shareholders.
Although the Bylaws do not give the Board of Directors any power to disapprove
timely shareholder nominations for the election of directors or proposals for
action, they may have the effect of precluding a contest for the election of
directors or the consideration of shareholder proposals if the proper procedures
are not followed and of discouraging or deterring a third party from conducting
a solicitation of proxies to elect its own slate of directors or to approve its
own proposal.
Actions required to be taken at a shareholder meeting may be taken
without a meeting only if the unanimous written consent of the shareholders
entitled to vote at such meeting is obtained and delivered to the Company for
inclusion in its minute book or other corporate records.
Georgia Business Combination Statute. Pursuant to its Bylaws, the
Company is subject to the provisions of the Georgia Law, including provisions
prohibiting various "business combinations" involving "interested shareholders"
for a period of five years after the shareholder becomes an interested
shareholder of the Company. Such provisions prohibit any business combination
with an interested shareholder unless either (i) prior to such time, the Board
of Directors approves either the business combination or the transaction by
which such shareholder became an interested shareholder; (ii) in the transaction
that resulted in the shareholder becoming an interested shareholder, the
interested shareholder became the beneficial owner of at least 90% of the
outstanding voting stock of the Company which was not held by directors,
officers, affiliates thereof, subsidiaries or certain employee option plans of
the Company, or (iii) subsequent to becoming an interested shareholder, such
shareholder acquired additional shares resulting in such shareholder owning at
least 90% of the outstanding voting stock of the Company and the business
combination is approved by a majority of the disinterested shareholders' shares
not held by directors, officers, affiliates thereof, subsidiaries or certain
employee stock option plans of the Company. Under the relevant provisions of the
Georgia Law, a "business combination" is defined to include, among other things,
(i) any merger, consolidation, share exchange or any sale, transfer or other
disposition (or series of related sales or transfers) of assets of the Company
having an aggregate book value of 10% or more of the Company's net assets
(measured as of the end of the most recent fiscal quarter), with an interested
shareholder of the Company or any other corporation which is or, after giving
effect to such business combination, becomes an affiliate of any such interested
shareholder, (ii) the liquidation or dissolution of the Company, (iii) the
receipt by an interested shareholder of any benefit from any loan, advance,
guarantee,
49
<PAGE> 51
pledge, tax credit or other financial benefit from the Company, other than in
the ordinary course of business and (iv) certain other transactions involving
the issuance or reclassification of securities of the Company which produce the
result that 5% or more of the total equity shares of the Company, or of any
class or series thereof, is owned by an interested shareholder. An "interested
shareholder" is defined by the Georgia Law to include any person or entity that,
together with affiliates, beneficially owns or has the right to own 10% or more
of the outstanding voting shares of the Company, or any person that is an
affiliate of the Company and has, at any time within the preceding two-year
period, been the beneficial owner of 10% or more of the outstanding voting
shares of the Company. The restrictions on business combinations shall not apply
to any person who was an interested shareholder before the adoption of the
Bylaws which made the provisions applicable to the Company nor to any persons
who subsequently become interested shareholders inadvertently, subsequently
divest sufficient shares so that the shareholder ceases to be an interested
shareholder and would not, at any time within the five-year period immediately
before a business combination involving the shareholder have been an interested
shareholder but for the inadvertent acquisition.
Constituency Provisions. In addition to considering the effects of any
action on the Company and its shareholders, the Articles permit the Board of
Directors and the committees and individual members thereof to consider the
interests of various constituencies, including employees, customers, suppliers,
and creditors of the Company, communities in which the Company maintains offices
or operations, and other factors which such directors deem pertinent, in
carrying out and discharging the duties and responsibilities of such positions
and in determining what is believed to be in the best interests of the Company.
LIMITATIONS ON LIABILITY OF OFFICERS AND DIRECTORS
The Articles provide that no director shall be personally liable to the
Company or any of its shareholders for any breach of the duties of such
position, except that such elimination of liability does not apply to: (i)
appropriations of business opportunities from the Company in violation of such
director's duties; (ii) knowing or intentional misconduct or violation of law;
(iii) liability for assent to distributions which are illegal or improper under
the Georgia Law or the Articles; and (iv) liability for any transaction in which
an improper personal benefit is derived. In addition, the Articles state that if
the Georgia Law is ever amended to allow for greater exculpation of directors
than presently permitted, the directors shall be relieved from liabilities to
the fullest extent provided by the Georgia Law, as so amended, without further
action by the Board or the shareholders of the Company, unless the Georgia Law
provides otherwise. No modification or repeal of this provision will adversely
affect the elimination or reduction in liability provided thereby with respect
to any alleged act occurring before the effective date of such modification or
repeal.
The Company intends to enter into agreements with each of its current
directors and executive officers pursuant to which it is obligated to indemnify
those persons to the fullest extent authorized by law and to advance payments to
cover defense costs against an unsecured obligation to repay such advances if it
is ultimately determined that the recipient of the advance is not entitled to
indemnification. The indemnification agreements will provide that no
indemnification or advancement of expenses shall be made (a) if a final
adjudication establishes that his actions or omissions to act were material to
the cause of action so adjudicated and constitute: (i) a violation of criminal
law (unless the indemnitee had reasonable cause to believe that his actions were
lawful); (ii) a transaction from which the indemnitee derived an improper
personal benefit; (iii) an unlawful distribution or dividend under the Georgia
Law; or (iv) willful misconduct or a conscious disregard for the just interests
of the Company in a derivative or shareholder action; (b) for liability under
Section 16(b) of the Exchange Act, or (c) if a final decision by a court having
jurisdiction in the matter determines that indemnification is not lawful.
At present, the Company is not aware of any pending or threatened
litigation or proceeding involving a director, officer, employee or agent of the
Company in which indemnification would be required or permitted under the Bylaws
or the Georgia Law.
50
<PAGE> 52
SHAREHOLDERS' AGREEMENT
The Company and certain of its officers, directors and major
shareholders have entered into a Shareholders' Agreement whereby the
shareholders agreed to certain restrictions on the transfer or other disposition
of the shares of Common Stock held by each holder. In the event a shareholder
intends to transfer his or her Common Stock to a non-permitted transferee, the
Company and the remaining shareholders have a right of first refusal to purchase
the transferring shareholder's Common Stock at fair market value. In addition,
if the Company terminates a shareholder's employment or engagement (or the
employment or engagement of certain persons associated with a shareholder) as a
sales representative or consultant for cause, the Company shall have the right
to repurchase, at fair market value, an amount of the shareholder's Common Stock
which begins at 100% and declines 20% per year for each completed year of
service with the Company. If either the right of first refusal or the Company's
right to purchase is exercised, either provision could have the effect of
further concentrating the stock ownership and voting power of the Company. See
"Risk Factors - Shares Eligible for Future Sale."
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, assuming the sale of 450,000 Shares
offered hereby, the Company will have outstanding 2,021,187 shares of Common
Stock. Of these shares, the 450,000 shares offered hereby will be freely
tradeable without restriction or further registration under the Securities Act,
unless purchased by "affiliates" of the Company as that term is defined in Rule
144 under the Securities Act. However, such shares will be subject to certain
restrictions on transfer including the restrictions set forth in the
Subscription Agreement. See "The Offering - Transfer Restrictions." The
remaining 1,571,187 shares of Common Stock outstanding upon completion of the
Offering are "Restricted Securities" under Rule 144 of the Securities Act in
that they were originally issued and sold by the Company in private transactions
in reliance upon exemptions from the registration provisions of the Securities
Act.
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated), including persons deemed to be affiliates, whose
Restricted Securities have been fully paid for and held for at least one year
from the date of issuance by the Company may sell such securities in brokers'
transactions or directly to market makers, provided the number of shares sold in
any three-month period does not exceed the greater of 1% of the then outstanding
shares of the Common Stock (approximately 20,000 shares based on the number of
shares to be outstanding after this Offering) or the average weekly trading
volume in the public market during the four calendar weeks preceding the filing
of the Seller's Form 144. Sales under Rule 144 are also subject to certain
notice requirements and the availability of current public information
concerning the Company. After two years have elapsed from the issuance of
Restricted Securities by the Company, such shares generally may be sold without
limitation by persons who have not been affiliates of the Company for at least
quarter. Rule 144 also provides that affiliates who are selling shares which are
not Restricted Securities must nonetheless comply with the same restrictions
applicable to Restricted Securities with the exception of the holding period
requirements.
Prior to the Offering, there has been no public market for the Common
Stock of the Company, and any sale of substantial amounts of Common Stock in the
open market may adversely affect the market price of the Common Stock offered
hereby. See "Risk Factors - Shares Eligible for Future Sale."
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia.
51
<PAGE> 53
EXPERTS
The audited consolidated financial statements of the Company as of June
30, 1997 included in this Prospectus and elsewhere in the Registration Statement
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of such firm as experts in giving said report.
52
<PAGE> 54
MAXXIS GROUP, INC. AND SUBSIDIARIES
FINANCIAL STATEMENTS AS OF JUNE 30, 1997
TOGETHER WITH
AUDITORS' REPORT
F-1
<PAGE> 55
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Maxxis Group, Inc.:
We have audited the accompanying consolidated balance sheet of MAXXIS GROUP,
INC. (a Georgia corporation) AND SUBSIDIARIES as of June 30, 1997 and the
related consolidated statements of operations, shareholders' equity, and cash
flows for the period from January 24, 1997 (inception) to June 30, 1997. 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.
Those 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 Maxxis Group, Inc. and
subsidiaries as of June 30, 1997 and the results of their operations and their
cash flows for the period from January 24, 1997 (inception) to June 30, 1997 in
conformity with generally accepted accounting principles.
Atlanta, Georgia
September 22, 1997
F-2
<PAGE> 56
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
JUNE 30, 1997
<TABLE>
<S> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 35,000
Short-term investments 10,000
Telecommunications receivables 25,000
Inventories 185,000
Prepaid expenses 12,000
Other current assets 23,000
--------
290,000
PROPERTY AND EQUIPMENT, NET 92,000
ORGANIZATIONAL COSTS, NET 76,000
CAPITALIZED SOFTWARE DEVELOPMENT COSTS, NET 118,000
OTHER ASSETS 20,000
--------
$596,000
========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $158,000
Commissions payable 42,000
Accrued liabilities 103,000
--------
303,000
--------
COMMITMENTS AND CONTINGENCIES (NOTE 7)
SHAREHOLDERS' EQUITY:
Stock subscription deposits 360,000
Class A common stock, no par value; 1,363,636 shares authorized, 1,299,992 shares issued
and outstanding 0
Class B common stock, no par value; 16,818,182 shares authorized, 0 shares issued and
outstanding 0
Subscription receivable (120,000)
Additional paid-in capital 127,000
Accumulated deficit (74,000)
--------
Total shareholders' equity 293,000
--------
$596,000
========
</TABLE>
The accompanying notes are an integral part of this consolidated balance sheet.
F-3
<PAGE> 57
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE PERIOD FROM JANUARY 24, 1997 (INCEPTION)
TO JUNE 30, 1997
<TABLE>
<S> <C>
REVENUES:
Telecommunication services $ 2,322,000
Marketing services 369,000
-----------
Total revenues 2,691,000
-----------
COST OF SERVICES:
Telecommunication services 761,000
Marketing services 255,000
-----------
Total cost of services 1,016,000
-----------
GROSS MARGIN 1,675,000
-----------
OPERATING EXPENSES:
Selling and marketing 1,089,000
General and administrative 660,000
-----------
Total operating expenses 1,749,000
-----------
LOSS BEFORE INCOME TAX BENEFIT (74,000)
INCOME TAX BENEFIT 0
-----------
NET LOSS $ (74,000)
===========
NET LOSS PER SHARE $ (0.05)
===========
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING 1,571,187
===========
</TABLE>
The accompanying notes are an integral part of this consolidated statement.
F-4
<PAGE> 58
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
FOR THE PERIOD FROM JANUARY 24, 1997 (INCEPTION)
TO JUNE 30, 1997
<TABLE>
<CAPTION>
CLASS A
COMMON STOCK STOCK ADDITIONAL
----------------------- SUBSCRIPTION SUBSCRIPTION PAID-IN ACCUMULATED
SHARES AMOUNT DEPOSITS RECEIVABLE CAPITAL DEFICIT TOTAL
--------- --------- ------------ ------------ ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 24, 1997 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
Issuance of common stock 1,299,992 0 0 (120,000) 127,000 0 7,000
Stock subscription deposits 0 0 360,000 0 0 0 360,000
Net loss 0 0 0 0 0 (74,000) (74,000)
--------- --------- --------- --------- --------- --------- ---------
BALANCE, JUNE 30, 1997 1,299,992 $ 0 $ 360,000 $(120,000) $ 127,000 $ (74,000) $ 293,000
========= ========= ========= ========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of this consolidated statement.
F-5
<PAGE> 59
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM JANUARY 24, 1997 (INCEPTION)
TO JUNE 30, 1997
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (74,000)
---------
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation and amortization 54,000
Changes in assets and liabilities:
Subscriber receivables (25,000)
Inventories (185,000)
Prepaid expenses (12,000)
Deposits and other (43,000)
Commissions payable 42,000
Accounts payable 158,000
Accrued liabilities 103,000
---------
Total adjustments 92,000
---------
Net cash provided by operating activities 18,000
---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (99,000)
Purchase of short-term investment (10,000)
Software development and organizational costs (241,000)
---------
Net cash used in investing activities (350,000)
---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from stock subscriptions 360,000
Proceeds from issuance of common stock 7,000
---------
Net cash provided by financing activities 367,000
---------
NET INCREASE IN CASH AND CASH EQUIVALENTS 35,000
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 0
---------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 35,000
=========
SUPPLEMENTAL CASH FLOW DISCLOSURES:
Cash paid for interest $ 0
=========
Cash paid for income taxes $ 0
=========
Stock issued for note receivable $ 120,000
=========
</TABLE>
The accompanying notes are an integral part of this consolidated statement.
F-6
<PAGE> 60
MAXXIS GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1997
1. ORGANIZATION AND PRESENTATION
DESCRIPTION OF BUSINESS AND OPERATIONS
Maxxis Group, Inc., a Georgia corporation, was incorporated on January 24,
1997 (inception) and is headquartered in Tucker, Georgia. The Company's
principal business operations are carried out through its wholly owned
subsidiaries, Maxxis 2000, Inc. and Maxxis Telecom, Inc., which began
operations in March 1997. Maxxis Group, Inc., together with its wholly
owned subsidiaries (collectively referred to as the "Company"), was
founded for the purpose of providing long-distance services and other
consumable products through a multilevel marketing system of independent
associates ("Associates") to subscribers throughout the United States. The
Company currently markets both long-distance services and value-added
telecommunications services, such as travel cards, prepaid phone cards,
800 service, and international telecommunications service.
The Company has a limited operating history, and its operations are
subject to the risks inherent in the establishment of any new business.
Since the Company has only recently made the transition to an operating
company, the Company's ability to manage its growth and expansion will
require it to implement and continually expand its operational and
financial systems, recruit additional employees, and train and manage both
current and new employees. Growth may place a significant strain on the
Company's operational resources and systems, and failure to effectively
manage this projected growth would have a material adverse effect on the
Company's business.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
All significant intercompany balances and transactions have been
eliminated in consolidation.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with original
maturities of three months or less to be cash equivalents.
REVENUE RECOGNITION
Telecommunications services revenues are primarily comprised of prepaid
phone card sales to Associates. The Company purchases prepaid phone cards
from an independent tariffed long-distance reseller (the "Reseller").
Associates purchase these prepaid phone cards from the Company. Revenues
from the sale of these prepaid phone cards are recognized when the cards
are
F-7
<PAGE> 61
sold to the Associates, net of an estimate of sales returns for defective
or unused cards. Associates have the right of return for defective or
unused cards for up to 30 days after the date of purchase.
Telecommunications services also consist of revenues generated from the
Company's agreement with the Reseller that provides for the Company to
receive a percentage of the gross long-distance revenues generated by the
Company's subscribers, less billing adjustments. The Company recognizes
long-distance revenues when services are provided by the Reseller, net of
an estimate for billing adjustments. The Reseller assumes the risk of all
bad debts. Amounts due to the Company related to this agreement are
included in telecommunication receivables in the accompanying balance
sheet.
Marketing services revenues primarily consist of receipts from Associates
for application fees and purchases of distributor kits and sales aids,
which include starter kits of forms, promotional brochures, marketing
materials, and presentation materials.
COST OF SERVICES
Telecommunication services costs include the costs of purchasing the
prepaid phone cards from the Reseller.
Marketing services costs include the costs for printing and designing of
applications, starter kits, and sales aids.
SELLING AND MARKETING EXPENSES
Selling and marketing expenses primarily consist of commissions paid to
Associates based on long-distance usage and the cost of sponsoring new
associates.
CONCENTRATIONS OF CREDIT RISK
The Company's subscribers are primarily residential and are not
concentrated in any specific geographic region of the United States. The
Company purchases its prepaid phone card services from a long-distance
reseller. Failure of this reseller to provide quality services and
customer support could have a material adverse effect on the Company's
results of operations. The Company has an additional agreement with the
long-distance reseller to provide subscriber services, which if terminated
or canceled may significantly impact results of operations of the Company.
While the Company believes it could contract with another long-distance
reseller, the potential disruption of services may have a material effect
on the Company's results of operations.
The Company's success will depend heavily on its ability to attract,
maintain, and motivate a large base of Associates who, in turn, sponsor
subscribers, customers, and other Associates. The Company anticipates a
significant turnover among Associates, which the Company believes is
typical of direct selling. The Company has begun establishing its network
of Associates; however, there can be no assurance that the Company will be
successful in establishing a viable network of Associates.
USE OF ESTIMATES
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
F-8
<PAGE> 62
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. Actual results could differ from
those estimates.
INVENTORIES
Inventories consist of the following:
<TABLE>
<S> <C>
Prepaid phone cards $ 25,000
Sales aids 160,000
--------
$185,000
========
</TABLE>
Inventories are valued at the lower of purchased cost (determined on a
first-in, first-out basis) or market.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost and depreciated using the
straight-line method over the estimated useful lives of five years.
INCOME TAXES
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income
Taxes," which requires that deferred income tax expenses be provided based
on estimated future tax effects of differences between the carrying
amounts of assets and liabilities for financial reporting purposes and the
amounts used for income tax purposes calculated based on provisions of
enacted tax laws (Note 4).
ORGANIZATIONAL COSTS
The Company has capitalized certain organizational costs related to
start-up activities and the legal formation of the Company. These costs
are amortized over one year, and amortization expense was $25,000 for the
period from inception to June 30, 1997.
CAPITALIZED SOFTWARE DEVELOPMENT COSTS
Certain software development costs pertaining to a software application
which is used internally for processing applications and customer service
have been capitalized as incurred. Capitalization of software development
costs begins upon the establishment of technological feasibility. The
establishment of technological feasibility and the ongoing assessment of
recoverability of capitalized software development costs require
considerable judgement by management with respect to certain external
factors, including but not limited to anticipated future revenues,
estimated economic life, and changes in software and hardware
technologies. These software development costs are amortized over the
estimated useful life of three years, and amortization expense was $21,000
for the period from inception to June 30, 1997.
OTHER ASSETS
Other assets include security deposits for lease obligations totaling
$20,000.
F-9
<PAGE> 63
SHORT-TERM INVESTMENTS
Included in short-term investments is a certificate of deposit recorded at
cost, which approximates the estimated fair value and matures in May 1998.
This investment has been pledged as collateral for one of the Company's
cash accounts.
NET LOSS PER SHARE
Net loss per share is based on the weighted average number of shares of
common stock outstanding under the requirements of Staff Accounting
Bulletin 83. As a result, all shares issued prior to the issuance in
connection with the Registration Statement have been included as
outstanding since inception.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist primarily of cash, accounts
receivable, and accounts payable. The carrying amounts of cash, accounts
receivable, and accounts payable approximate their fair values because of
the short-term maturity of such instruments.
NEW ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 128, "Earnings Per Share," which specifies the computation,
presentation, and disclosure requirements for earnings per share. The
Company will be required to adopt this new standard in the quarter ending
December 31, 1997.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income," which establishes standards for reporting and display of
comprehensive income and its components in a full set of general-purpose
financial statements. The Company will be required to adopt the new
standard in 1998, and all prior period information will be restated.
Also in June 1997, the FASB issued SFAS No. 131, "Disclosure About
Segments of an Enterprise and Related Information." This statement
requires companies to determine segments based on how management makes
decisions about allocating resources to segments and measuring their
performance. Disclosures for each segment are similar to those required
under current standards, with the addition of certain quarterly disclosure
requirements. SFAS No. 131 also requires entitywide disclosure about the
products and services an entity provides, the countries in which it holds
material assets and reports material revenues, and its significant
customers. The Company will be required to adopt the new standard in 1998,
and all prior period information presented will be restated.
The effect of adopting the above statements is not expected to be material
to the consolidated financial statements.
3. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following at June 30, 1997:
F-10
<PAGE> 64
<TABLE>
<S> <C>
Furniture and fixtures $99,000
Less accumulated depreciation (7,000)
-------
Property and equipment, net $92,000
=======
</TABLE>
4. INCOME TAXES
Significant components of the Company's deferred tax assets and
liabilities are as follows at June 30, 1997:
<TABLE>
<S> <C>
Net operating losses $ 18,000
Valuation allowance (18,000)
--------
Net deferred tax assets $ 0
========
</TABLE>
Based on uncertainties associated with the future realization of deferred
tax assets, the Company established a valuation allowance of $18,000 at
June 30, 1997. At June 30, 1997, the Company had net operating loss
carryforwards of approximately $50,000, which will expire in the year 2012
unless previously utilized.
The benefit for income taxes at June 30, 1997 was different than the
amount computed using the statutory income tax rate as follows:
<TABLE>
<S> <C>
Taxes computed at statutory rate $(17,000)
State income taxes, net of federal benefit (2,000)
Nondeductible expenses 1,000
Change in valuation allowance 18,000
--------
$ 0
========
</TABLE>
5. TRANSACTIONS WITH AFFILIATES
The Company has significant transactions with IS 14, Inc. ("IS 14"), which
is affiliated through common ownership. IS 14 has provided funding for
certain expenses incurred by the Company, and all amounts have been repaid
as of June 30, 1997. The Company paid to IS 14 in consideration for
marketing support a fee equivalent to a percentage of revenues totaling
$184,000 from inception to June 30, 1997, which is included in selling and
marketing operating expense in the accompanying consolidated statement of
operations. Amounts due to IS 14 related to this fee and included in
commissions payable in the accompanying consolidated balance sheet totaled
$9,000 at June 30, 1997.
6. SHAREHOLDERS' EQUITY
The articles of incorporation (the "Articles") authorize the Company to
issue up to 1,363,636 shares of Class A common stock and 16,818,182 shares
of Class B common stock. As of June 30, 1997, 1,299,992 shares of Class A
common stock are issued and outstanding and are held of record by 15
shareholders and the Company had received paid subscriptions for 218,181
shares of Class B common stock. In addition, the Articles authorize the
Company to issue up to 10,000,000 shares of preferred stock, no par value
per share, with such rights and preferences as the board of directors
shall determine; however, no preferred stock has been issued as of June
30, 1997.
F-11
<PAGE> 65
In February 1997, the Company sold 1,227,265 shares of the Company's Class
A common stock to the founders of the Company at $.006 per share. In May
1997, the Company sold 72,727 shares of Class A common stock to an
executive officer for $1.65 per share in exchange for a $120,000 note
receivable to an affiliate of that individual due on the earlier of (i)
May 1, 2002 or (ii) the closing of an underwritten initial public offering
with aggregate net proceeds of at least $5 million. The note is guaranteed
by the executive officer, bears interest at 8.75% per year, compounded
annually, and is classified as a subscription receivable in the balance
sheet. Each holder of the Class A common stock is entitled to ten votes
per share with respect to each company matter voted on.
The Company and all of the holders of Class A common stock have entered
into a shareholders' agreement whereby the shareholders agreed to certain
restrictions on the transfer or other disposition of the shares of Class A
common stock held by each holder. In the event a shareholder intends to
transfer his or her Class A common stock to a nonpermitted transferee, the
Company and the remaining shareholders have a right of first refusal to
purchase the transferring shareholder's Class A common stock at fair
market value. In addition, if the Company terminates a shareholder's
employment or engagement as a sales representative or consultant for
cause, the Company shall have the right to repurchase, at fair market
value, an amount of the shareholder's Class A common stock which starts at
100% and declines 20% per year for each completed year of service with the
Company. If the right of first refusal or the Company's right to purchase
is exercised, these provisions could have the effect of further
concentrating the stock ownership and voting power of the Company.
Additionally, in February 1997, the Company completed a private placement
offering for 272,727 shares of Class B common stock at a price of $1.65
per share. The Class B common stock entitles each holder to one vote per
share with respect to each company matter voted on. Potential investors
were required to complete subscription agreements for the Class B common
stock and submit cash at the date of subscription. The Company reserved
the right to reject a subscription and refund amounts to a Class B
subscriber at any time prior to the acceptance of the subscription. At
June 30, 1997, the Company had received paid subscriptions for 218,181
shares of Class B common stock. However, since these subscriptions had not
yet been accepted by the Company and no shares had been issued as of June
30, 1997, amounts received from subscribers are included in stock
subscription deposits in the accompanying balance sheet. Subsequent to
June 30, 1997, the Company has accepted these subscriptions and additional
subscriptions for 53,014 shares of the Class B common stock.
Upon the closing of an initial public offering, each share of Class A
common stock then outstanding shall automatically be converted into one
fully paid and nonassessable share of Class B common stock. An "initial
public offering" means a public offering of the Company's capital stock
for cash which is offered and sold in a transaction that is registered
under the Securities Act through one or more underwriters, pursuant to an
underwriting agreement between the Company and such underwriters,
resulting in aggregate net proceeds of $5 million to the Company.
7. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
The Company leases certain office equipment and office space under
operating leases. Total rental expense for the period ended June 30, 1997
was approximately $45,000.
F-12
<PAGE> 66
Minimum lease payments under noncancelable leases for the years subsequent
to June 30, 1997 are as follows:
<TABLE>
<S> <C>
1998 $124,000
1999 72,000
2000 39,000
2001 34,000
2002 and thereafter 0
--------
$269,000
========
</TABLE>
LITIGATION
The Company is subject to various claims and legal actions which arise in
the ordinary course of business. In the opinion of management, the
ultimate resolution of such matters will not have a material adverse
effect on the Company's financial position, liquidity, or results of
operations.
EMPLOYMENT AGREEMENTS
In May 1997, the Company entered into an employment agreement with the
chief executive officer, and in September 1997, the Company entered into
employment agreements with the executive vice president, the chief
financial officer, and a director (collectively, the "Employment
Agreements"). Generally the Employment Agreements provide for a minimum
weekly salary. In addition, the employee may participate in a bonus
program and shall be eligible to receive quarterly or annual payments of a
performance bonus based on the achievement of targeted levels of
performance and such other criteria as the board of directors shall
establish from time to time. The chief executive officer's Employment
Agreement provides for an additional bonus payment on July 1, 1998. Each
employee may participate in insurance and other benefit plans of similarly
situated employees, including any stock option plans of the Company.
Each of the Employment Agreements has a term of one year, and the term
renews daily until either party fixes the remaining term at one year by
giving written notice. The Company can terminate each employee upon death
or disability (as defined in the Employee Agreements) or with or without
cause upon delivery of a notice of termination. If the employee is
terminated because of death, disability, or cause, the employee will
receive any accrued compensation through the termination date and any
accrued performance bonus, unless the employee is terminated for cause. If
the employee is terminated without cause, the Company shall pay the
employee severance payments equal to his minimum base salary for each week
during the six-month period following the termination date. If the
employee is a director or officer of the Company or any of its affiliates,
the employee shall tender his resignation to such positions effective as
of the termination date.
Under the Employment Agreements, each employee agrees to maintain the
confidentiality of the Company's trade secrets and confidential business
information. The employee also agrees for a period of one year following
the termination date if he is terminated or resigns for any reason not to
compete with or solicit employees or customers of the Company or any of
its affiliates within a 30-mile radius of the Company's corporate offices,
provided that if the employee is terminated without cause, the noncompete
period shall be six months.
F-13
<PAGE> 67
RELATIONSHIP WITH ASSOCIATES
Because Associates are classified as independent contractors and not as
employees of the Company, the Company is unable to provide them with the
same level of direction and oversight as company employees. While the
Company has policies and rules in place governing the conduct of the
Associates and intends to review periodically the sales tactics of the
Associates, it may be difficult to enforce such policies and rules.
Violation of these policies and rules might reflect negatively on the
Company and may lead to complaints to or by various federal and state
regulatory authorities. Violation of the Company's policies and rules
could subject the Company and its long-distance provider to complaints
regarding the unauthorized switching of subscribers' long-distance
carriers (also known in the industry as "slamming"). Such complaints could
have a material adverse effect on the Company's business, financial
condition, and results of operations.
REGULATION OF NETWORK MARKETING; EFFECT OF STATE LAWS
The Company's network marketing system is subject to or affected by
extensive government regulation, including, without limitation, federal
and state regulations governing the offer and sale of business franchises,
business opportunities, and securities. Various governmental agencies
monitor direct selling activities, and the Company could be required to
supply information regarding its marketing plan to such agencies. Although
the Company believes that its network marketing system is in material
compliance with the laws and regulations relating to direct selling
activities, there can be no assurance that legislation and regulations
adopted in particular jurisdictions in the future will not adversely
affect the Company's business, financial condition, and results of
operations. The Company could also be found to be in noncompliance with
existing statutes or regulations as a result of, among other things,
misconduct by Associates, who are considered independent contractors over
whom the Company has limited control; the ambiguous nature of certain of
the regulations; and the considerable interpretive and enforcement
discretion given to regulators. Any assertion or determination that the
Company or the Associates are not in compliance with existing statutes or
regulations could have a material adverse effect on the Company's
business, financial condition, and results of operations. An adverse
determination by any one state on any regulatory matter could influence
the decisions of regulatory authorities in other jurisdictions.
8. SUBSEQUENT EVENTS
In September 1997, the Company entered into independent sales
representative agreements (collectively, the "Sales Representative
Agreements") with ten independent sales representatives. The Sales
Representative Agreements provide for a minimum weekly salary, and each
sales representative shall be eligible to receive quarterly payments of a
performance bonus based on the achievement of targeted levels of
performance. Each sales representative is an independent contractor, and
the Company does not exercise control over the activities of the sales
representatives other than as set forth in the Sales Representative
Agreements.
Each of the Sales Representative Agreements has a term of one year, and
the term renews daily until either party fixes the remaining term at one
year by giving written notice. The Company can terminate each sales
representative upon death or disability (as defined in the Sales
Representative Agreements) or with or without cause upon delivery to the
sales representative of a notice of termination. If a sales representative
is terminated, the sales representative will receive any accrued fees
through the termination date and any accrued performance bonus, unless the
sales
F-14
<PAGE> 68
representative is terminated for cause. If the sales representative is a
director or officer of the Company or any of its affiliates, the sales
representative shall tender his resignation to such positions effective as
of the termination date. Under the Sales Representative Agreements, each
sales representative agrees to maintain the confidentiality of the
Company's trade secrets and confidential business information.
9. SUBSEQUENT TO DATE OF AUDITORS' REPORT
All share, per share, and weighted average share information in the
financial statements and notes thereto has been restated to reflect a
one-for-five reverse stock split effective October 8, 1997 and a
one-for-eleven reverse stock split effective February 17, 1998 for all
classes of common stock.
In addition, on February 17, 1998, the Company effected a plan of
reorganization pursuant to which each outstanding share of Class A common
stock and Class B common stock was converted into one share of common
stock.
F-15
<PAGE> 69
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1997 1997
- ------------------------------------------------------------------------------------- -------- ------------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 35,000 $129,000
Short-term investments 10,000 10,000
Telecommunication receivables 25,000 204,000
Inventories 185,000 184,000
Prepaid expenses 12,000 36,000
Other current assets 23,000 0
-------- --------
290,000 563,000
PROPERTY AND EQUIPMENT, NET 92,000 167,000
ORGANIZATIONAL COSTS, NET 76,000 26,000
CAPITALIZED SOFTWARE DEVELOPMENT COSTS, NET 118,000 131,000
OTHER ASSETS 20,000 21,000
-------- --------
$596,000 $908,000
======== ========
<CAPTION>
June 30, December 31,
LIABILITIES AND SHAREHOLDERS' EQUITY 1997 1997
- ------------------------------------------------------------------------------------- --------- ------------
(Unaudited)
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 158,000 $ 342,000
Commissions payable 42,000 76,000
Loan from shareholder 0 52,000
Note payable 0 178,000
Accrued liabilities 103,000 48,000
--------- ---------
303,000 696,000
--------- ---------
COMMITMENTS AND CONTINGENCIES (NOTE 7)
SHAREHOLDERS' EQUITY:
Stock subscription deposits 360,000 0
Class A common stock, no par value; 1,363,636 shares authorized, 1,299,992
shares issued and outstanding 0 0
Class B common stock, no par value; 16,818,182 shares authorized, 0 and
271,195 shares issued and outstanding at June 30, 1997 and December 31,
1997, respectively 0 0
Subscription receivable (120,000) (120,000)
Additional paid-in capital 127,000 574,000
Accumulated deficit (74,000) (242,000)
--------- ---------
Total shareholders' equity 293,000 212,000
--------- ---------
$ 596,000 $ 908,000
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated balance sheet.
F-16
<PAGE> 70
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED DECEMBER 31, 1997
(UNAUDITED)
<TABLE>
<S> <C>
REVENUES:
Telecommunication services $2,588,000
Nutritional products 186,000
Marketing services 670,000
----------
Total revenues 3,444,000
----------
COST OF SERVICES:
Telecommunication services 868,000
Nutritional products 77,000
Marketing services 228,000
----------
Total cost of services 1,173,000
----------
GROSS MARGIN 2,271,000
----------
OPERATING EXPENSES:
Selling and marketing 1,326,000
General and administrative 1,111,000
----------
Total operating expenses 2,437,000
----------
INTEREST EXPENSE 2,000
----------
LOSS BEFORE INCOME TAX BENEFIT (168,000)
INCOME TAX BENEFIT 0
----------
NET LOSS $ (168,000)
==========
NET LOSS PER SHARE $ (0.11)
----------
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING 1,571,187
==========
</TABLE>
The accompanying notes are an integral part of this consolidated statement.
F-17
<PAGE> 71
MAXXIS GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED DECEMBER 31, 1997
(UNAUDITED)
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(168,000)
---------
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization 99,000
Changes in assets and liabilities:
Subscriber receivables (179,000)
Inventories 1,000
Prepaid expenses (24,000)
Deposits and other 22,000
Commissions payable 34,000
Accounts payable 184,000
Accrued liabilities 55,000
---------
Total adjustments 82,000
---------
Net cash provided by operating activities (86,000)
---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (87,000)
Software development costs (50,000)
---------
Net cash used in investing activities (137,000)
---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings 230,000
Proceeds from issuance of common stock 87,000
---------
Net cash provided by financing activities 317,000
---------
NET INCREASE IN CASH AND CASH EQUIVALENTS 94,000
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 35,000
---------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 129,000
=========
SUPPLEMENTAL CASH FLOW DISCLOSURES:
Cash paid for interest $ 0
=========
Cash paid for income taxes $ 0
=========
</TABLE>
The accompanying notes are an integral part of this consolidated statement.
F-18
<PAGE> 72
MAXXIS GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
1. BASIS OF PRESENTATION
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to Article
10 of Regulation S-X of the Securities and Exchange Commission. The
accompanying unaudited consolidated financial statements reflect, in the
opinion of management, all adjustments necessary to achieve a fair
statement of financial position and results for the interim periods
presented. All such adjustments are of a normal and recurring nature. It
is suggested that these consolidated financial statements be read in
conjunction with the annual financial statements of Maxxis Group, Inc. and
Subsidiaries (the "Company") and the notes thereto.
2. PROMISSORY NOTE
On November 26, 1997, the Company entered into a promissory note (the
"Note") agreement with various lenders for an aggregate principal amount
up to $200,000, which is secured primarily by all of the assets of the
Company. The Note accrues interest at 10%, payable monthly beginning on
January 1, 1998, and principal is due on demand.
3. SUBSEQUENT EVENT
Effective February 17, 1998, the Company declared a one for eleven reverse
stock split for all classes of common stock. All share, per share, and
weighted average share information in the financial statements has been
restated for this stock split.
In addition, on February 17, 1998, the Company effected a plan of
reorganization pursuant to which each outstanding share of Class A common
stock and Class B common stock was converted into one share of common
stock.
On February 28, 1998, the loan from shareholder was converted into a
demand promissory note (the "Shareholder Note"). The Shareholder Note
accrues interest at 6% and is payable monthly beginning on January 1,
1998.
F-19
<PAGE> 73
APPENDIX A
MAXXIS GROUP, INC. SUBSCRIPTION AGREEMENT
MAXXIS GROUP, INC.
1901 Montreal Road, Suite 108
Tucker, Georgia 30084
Ladies and Gentlemen:
You have informed me that Maxxis Group, Inc., a Georgia corporation
(the "Company"), is offering up to 450,000 shares of its Common Stock, no par
value per share (the "Common Stock"), at a price of $5.50 per share payable as
provided herein and as described in the Prospectus furnished with this
Subscription Agreement to the undersigned (the "Prospectus").
1. SUBSCRIPTION. Subject to the terms and conditions hereof, the
undersigned subscriber hereby tenders this subscription, together with payment
in United States currency by check, bank draft or money order payable to "Maxxis
Group, Inc." in the amount indicted below (the "Funds"), representing the
payment of $5.50 per share for the number of shares of Common Stock indicated
below. The total subscription price must be paid at the time the Subscription
Agreement is executed. Tender of this Subscription Agreement by the undersigned
subscriber constitutes the undersigned subscriber's offer to purchase the number
of shares of Common Stock indicated below.
2. ACCEPTANCE OF SUBSCRIPTION. It is understood and agreed that the
Company shall have the right to accept or reject this subscription in whole or
in part, for any reason whatsoever. The Company may reduce the number of shares
for which the undersigned subscriber has subscribed for any reason whatsoever by
indicating acceptance of less than all of the shares subscribed on its written
form of acceptance. This Subscription Agreement shall not be deemed accepted by
the Company until it is countersigned by a duly authorized officer of the
Company. Acceptance and/or deposit of the Funds by the Company shall not
constitute acceptance of this Subscription Agreement. However, if the Company
determines not to accept this Subscription Agreement, it shall return any Funds
received to the undersigned subscriber promptly following such determination.
3. LIMITATION ON DISPOSITIONS.
(a) To induce the Company to sell shares of Common Stock to the
undersigned subscriber, the undersigned subscriber:
(i) agrees not to sell or transfer the shares of Common Stock
purchased pursuant to this Subscription Agreement or any securities issued in
respect or on account thereof, whether by stock split, stock dividend or
otherwise (collectively, the "Shares") in any jurisdiction where the offer or
sale of such Shares would be unlawful prior to the registration or qualification
of such offer and sale under the laws of such jurisdiction unless: (i) such
registration or qualification is then effective in such jurisdiction and sets
forth such information as is in the Company's sole judgment then required to be
disclosed pursuant to the laws and regulations of such jurisdiction; or (ii)
registration and qualification are not required in such jurisdiction and, in
such case, as a condition to effecting the transfer of the Shares, agrees to
provide to the Company at the subscriber's expense a legal opinion, which must
be satisfactory to the Company and the Company's legal counsel in their sole
discretion, stating that the offer and sale of such Shares in such jurisdiction
may be accomplished without registration or qualification under the laws of such
jurisdiction;
(ii) agrees during the Lock-up Period (as defined in Section 3(c)
below) not to (x) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any Shares or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences
A-1
<PAGE> 74
associated with the ownership of any Shares (regardless of whether any of the
transactions described in clause (x) or (y) is to be settled by the delivery of
Shares, or such other securities, in cash or otherwise);
(iii) authorizes the Company to cause the transfer agent during the
Lock-up Period (as defined in Section 3(c) below) to decline to transfer any
Shares and/or to note stop transfer restrictions on the transfer books and
records of the Company with respect to any Shares; and
(iv) agrees that a legend in substantially the following form will be
placed on certificates representing the Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE (THE "SHARES") ARE
SUBJECT TO CONDITIONS THAT MAY LIMIT THEIR TRANSFERABILITY.
SUCH CONDITIONS ARE SET FORTH IN A SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") BY AND BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES. ANY TRANSFEREE OF THESE
SHARES TAKES SUCH SHARES SUBJECT TO THE CONDITIONS SET FORTH
IN THE SUBSCRIPTION AGREEMENT.
IN SUMMARY, THESE CONDITIONS PROVIDE THAT THESE SHARES MAY NOT
BE SOLD OR TRANSFERRED IN ANY JURISDICTION WHERE THE OFFER OR
SALE OF SUCH SHARES WOULD BE UNLAWFUL PRIOR TO THE
REGISTRATION OR QUALIFICATION OF SUCH OFFER AND SALE UNDER THE
LAWS OF SUCH JURISDICTION UNLESS: (I) SUCH REGISTRATION OR
QUALIFICATION IS THEN EFFECTIVE IN SUCH JURISDICTION AND SETS
FORTH SUCH INFORMATION AS IS IN THE COMPANY'S SOLE JUDGMENT
THEN REQUIRED TO BE DISCLOSED PURSUANT TO THE LAWS AND
REGULATIONS OF SUCH JURISDICTION; OR (II) REGISTRATION AND
QUALIFICATION ARE NOT REQUIRED IN SUCH JURISDICTION AND, IN
SUCH CASE, THE PROSPECTIVE TRANSFEROR, AS A CONDITION TO
EFFECTING THE TRANSFER OF THE SHARES, PROVIDES TO THE COMPANY
AT SUCH TRANSFEROR'S EXPENSE A LEGAL OPINION, WHICH MUST BE
SATISFACTORY TO THE COMPANY AND THE COMPANY'S LEGAL COUNSEL IN
THEIR SOLE DISCRETION, STATING THAT THE OFFER AND SALE OF SUCH
SHARES IN SUCH JURISDICTION MAY BE ACCOMPLISHED WITHOUT
REGISTRATION OR QUALIFICATION UNDER THE LAWS OF SUCH
JURISDICTION.
IN ADDITION, THE ISSUER MAY ELECT TO IMPOSE A PROHIBITION ON
THE SALE OR TRANSFER OF THESE SHARES IN THE EVENT THE ISSUER
DETERMINES TO FILE A REGISTRATION STATEMENT WITH THE U.S.
SECURITIES AND EXCHANGE COMMISSION THAT SEEKS TO REGISTER
SECURITIES OF THE ISSUER IN AN INITIAL PUBLIC OFFERING THAT IS
FIRMLY UNDERWRITTEN. SUCH RESTRICTION MAY REMAIN IN EFFECT FOR
A PERIOD ENDING 180 DAYS FOLLOWING THE EFFECTIVENESS OF SUCH
REGISTRATION STATEMENT. THE ISSUER MAY IMPOSE THESE CONDITIONS
BY GIVING WRITTEN NOTICE TO THE HOLDER OF RECORD OF THESE
SHARES. THE FOREGOING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE SUBSCRIPTION AGREEMENT, A COPY OF WHICH WILL
BE PROVIDED FREE OF CHARGE BY THE ISSUER TO ANY HOLDER,
PROSPECTIVE PURCHASER OR TRANSFEREE OF THESE SHARES UPON THEIR
REQUEST.
(b) The restriction set forth in Section 3(a)(ii) may be imposed and
terminated by the Company by giving notice of the imposition or termination of
such restriction (the "Lock-up Notice") to holders of record of the Shares by
first class mail, postage prepaid (or, at the Company's option, certified mail,
return receipt requested), at the address of the holders of record of the Shares
on a date chosen by the Company that is at least one but no more than fifteen
days prior to such mailing. The restrictions set forth herein and the
termination of such restrictions shall be effective upon receipt of such notice,
which date of receipt shall be deemed to be three days following such mailing.
The Lock-up Notice may be given by the Company such that
A-2
<PAGE> 75
it is received during the period beginning fifteen days prior to the filing by
the Company of a registration statement with the U.S. Securities and Exchange
Commission (the "SEC") whereby the Company first seeks to register its
securities for sale to the public in a firmly underwritten public offering (the
"IPO Registration Statement"), and ending upon the date that the IPO
Registration Statement is declared effective by the SEC (the "Effective Date").
(c) The restrictions set forth in Section 3(a)(ii) hereof shall be
effective on the date of receipt of the Lock-up Notice and shall remain in force
and effect until 180 days following the Effective Date (such period being
referred to as the "Lock-up Period") at which time such Lock-up Period shall
automatically terminate; provided, however, that the Company in its sole
discretion may elect to terminate the Lock-up Period from time to time prior to
the expiration of such 180-day period with respect to an identical specified
percentage of the Shares held as of the date of the Lock-up Notice by each
person who holds Shares. The Lock-up Period shall terminate if the Company files
an IPO Registration Statement but such registration statement is subsequently
withdrawn or is not declared effective within 180 days of filing with the SEC,
or if the Company transmits a Lock-up Notice prior to the filing of an IPO
Registration Statement but the IPO Registration Statement is not filed within 15
days of receipt of such notice; provided, however, that in any such event the
restrictions set forth in Section 3(a)(ii) shall survive and shall be applicable
to each subsequent filing of an IPO Registration Statement by the Company until
an IPO Registration Statement is first declared effective by the SEC.
(d) All obligations of the undersigned subscriber set forth herein
shall be binding upon the undersigned subscriber's heirs, personal
representatives, successors, transferees and assigns.
4. ACKNOWLEDGMENTS. The undersigned subscriber hereby acknowledges that
he or she has received and reviewed a copy of the Prospectus and all amendments
thereto. This Subscription Agreement creates a legally binding obligation, and
the undersigned subscriber agrees to be bound by the terms of this Agreement.
5. REVOCATION. The undersigned subscriber agrees that once this
Subscription Agreement is tendered to the Company, it may not be withdrawn and
that this Agreement shall survive the death or disability of the undersigned
subscriber.
BY EXECUTING THIS AGREEMENT, THE UNDERSIGNED SUBSCRIBER IS NOT WAIVING
ANY RIGHTS HE OR SHE MAY HAVE UNDER FEDERAL SECURITIES LAWS, INCLUDING THE
SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934.
A-3
<PAGE> 76
Please indicate in the space provided below the exact name or names and
addresses in which the stock certificate representing shares subscribed for
hereunder should be registered.
- --------------------------------- -------------------------------------------
Number of Shares Subscribed Name or Names of Subscribers (please print)
for (minimum 20 shares)
$
- --------------------------------- -------------------------------------------
Total Subscription Price at Please indicate form of ownership desired
$5.50 per share (individual, joint tenants with right of
(funds must be enclosed) survivorship, tenants in common, trust,
corporation, partnership, custodian, etc.)
Date: (L.S.)
--------------------------- -------------------------------------
Signature of Subscriber(s)*
(L.S.)
- --------------------------------- -------------------------------------
Social Security Number or Federal Signature of Subscriber(s)*
Taxpayer Identification Number
STATE OF LEGAL RESIDENCE: STREET (RESIDENCE) ADDRESS:
- --------------------------------- -------------------------------------------
-------------------------------------------
-------------------------------------------
City, State and Zip Code
* When signed as attorney, trustee, administrator or guardian, please
give your full title as such. If a corporation, please sign in full
corporate name by president or other authorized officer. In the case of
joint tenants or tenants in common, each owner must sign.
FEDERAL INCOME TAX BACKUP WITHHOLDING
In order to prevent the application of federal income tax backup
withholding, each subscriber must provide the Escrow Agent with a correct
Taxpayer Identification Number ("TIN"). An individual's social security number
is his or her TIN. The TIN should be provided in the space provided in the
Substitute Form W-9, which is set forth below.
Under federal income tax law, any person who is required to furnish his
or her correct TIN to another person, and who fails to comply with such
requirements, may be subject to a $50 penalty imposed by the IRS.
Backup withholding is not an additional tax. Rather, the tax liability
of persons subject to backup withholding will be reduced by the amount of tax
withheld. If backup withholding results in an overpayment of taxes, a refund may
be obtained from the IRS. Certain taxpayers, including all corporations, are not
subject to these backup withholding and reporting requirements.
If the shareholder has not been issued a TIN and has applied for a TIN
or intends to apply for a TIN in thee near future, "Applied For" should be
written in the space provided for the TIN on the Substitute Form W-9.
A-4
<PAGE> 77
SUBSTITUTE FORM W-9
Under penalties of perjury, I certify that: (i) the number shown on
this form is my correct Taxpayer Identification Number (or I am waiting for a
Taxpayer Identification Number to be issued to me), and (ii) I am not subject to
backup withholding because: (a) I am exempt from backup withholding; or (b) I
have not been notified by the Internal Revenue Service ("IRS") that I am subject
to backup withholding as a result of a failure to report all interest or
dividends; or (c) the IRS has notified me that I am no longer subject to backup
withholding.
You must cross out item (ii) above if you have been notified by the IRS
that you are subject to backup withholding because of underreporting interest or
dividends on your tax return. However, if after being notified by the IRS that
you were subject to backup withholding you received another notification from
the IRS that you are no longer subject to backup withholding, do not cross out
item (ii).
Each subscriber should complete this section.
- ------------------------------------ -----------------------------------
Signature of Subscriber Signature of Subscriber
- ------------------------------------ -----------------------------------
Printed Name Printed Name
- ------------------------------------ -----------------------------------
Social Security or Employer Social Security or Employer
Identification No. Identification No.
TO BE COMPLETED BY THE COMPANY:
Accepted as of ____________________, 199___, as to ______________
shares.
MAXXIS GROUP, INC.
By:
---------------------------------------
Name:
Title:
A-5
<PAGE> 78
================================================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE HEREBY. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
UNTIL , 1998, ALL DEALERS EFFECTING TRANSACTIONS IN THE
REGISTERED SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE
REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF
DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO
THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Additional Information.................................................... 2
Prospectus Summary........................................................ 3
Risk Factors.............................................................. 8
The Offering.............................................................. 20
Use of Proceeds........................................................... 23
Dividend Policy........................................................... 24
Capitalization............................................................ 24
Dilution.................................................................. 25
Selected Consolidated Financial Data...................................... 26
Management's Discussion and
Analysis of Financial Condition
and Results of Operations............................................... 27
Business.................................................................. 32
Management................................................................ 41
Certain Transactions...................................................... 46
Principal Shareholders.................................................... 47
Description of Capital Stock.............................................. 48
Shares Eligible for Future Sale........................................... 51
Legal Matters............................................................. 51
Experts................................................................... 52
Index to Consolidated Financial Statements................................ F-1
Subscription Agreement.................................................... A-1
</TABLE>
================================================================================
================================================================================
450,000 SHARES
[LOGO]
MAXXIS GROUP, INC.
COMMON STOCK
-----------------------------
P R O S P E C T U S
-----------------------------
, 1998
================================================================================
<PAGE> 79
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the estimated expenses and costs (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities registered hereby:
<TABLE>
<S> <C>
Registration Fee........................................ $ 758
Blue Sky Fees and Expenses.............................. 50,000*
Printing and Engraving.................................. 100,000*
Legal Fees and Expenses................................. 100,000*
Accounting Fees and Expenses............................ 100,000*
Miscellaneous........................................... 49,242*
------------
Total............................................... $ 400,000*
============
</TABLE>
- -------------------------------
* Estimated for filing purposes.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Georgia Business Corporation Code (the "Georgia Law") permits a
corporation to eliminate or limit the personal liability of a director to the
corporation or its shareholders for monetary damages for a breach of duty,
provided that no provision shall eliminate or limit the liability of a director
for: an appropriation of any business opportunity of the corporation; any act or
omission which involves an intentional misconduct or a knowing violation of law;
any transaction from which the director derives an improper personal benefit; or
any distribution that is illegal under Section 14-2-832 of the Georgia Law. The
Company's Articles contain a provision which limits the liability of a director
to the Company or its shareholders for any breach of duty as a director except
for a breach of duty for which the Georgia Law prohibits such limitation of
liability. This provision does not limit the right of the Company or its
shareholders to seek injunctive or other equitable relief not involving monetary
damages.
The Company's Articles and Bylaws contain certain provisions which
provide indemnification to directors of the Company that is broader than the
protection expressly mandated in Sections 14-2-852 and 14-2- 857 of the Georgia
Law. If a director or officer of the Company has been wholly successful, on the
merits or otherwise, in the defense of any action or proceeding brought by
reason of the fact that such person was a director or officer of the Company,
Sections 14-2-852 and 14-2-857 of the Georgia Law would require the Company to
indemnify such person against expenses (including attorneys' fees) actually and
reasonably incurred in connection therewith. The Georgia Law expressly allows
the Company to provide for greater indemnification rights to its officers and
directors, subject to shareholder approval.
The indemnification provisions in the Company's Articles and Bylaws
require the Company to indemnify and hold harmless each of its directors,
officers, employees and agents to the extent that he or she is or was a party,
or is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that such person is or was a director,
officer, employee or agent of the Company, against expenses (including, but not
limited to, attorneys' fees and disbursements, court costs and expert witness
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with the action, suit or proceeding.
Indemnification would be disallowed under any circumstances where
indemnification may not be authorized by action of the board of directors, the
shareholders or otherwise, including any liability of a director for: (i) any
II-1
<PAGE> 80
appropriation, in violation of his duties, of any business opportunity of the
Company; (ii) any acts or omissions involving intentional misconduct or a
knowing violation of the law; (iii) any unlawful distribution as set forth in
Section 14-2-832 of the Georgia Law; or (iv) any transaction from which the
director received an improper personal benefit. Indemnified persons would also
be entitled to have the Company advance expenses prior to the final disposition
of the proceeding. If it is ultimately determined that they are not entitled to
indemnification, however, such amounts must be repaid.
The Company has the power, under its Bylaws, to obtain insurance on
behalf of any director, officer, employee or agent of the Company against any
liability asserted against or incurred by such person in any such capacity,
whether or not the Company has the power to indemnify such person against such
liability at that time under the Articles, Bylaws or the Georgia Law.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following information relates to securities of the Company issued
or sold since the inception of the Company which were not registered under the
Securities Act:
(i) in February 1997, the Company sold 1,227,265 shares of Common
Stock to the founders of the Company for $0.006 per share;
(ii) in May 1997, in connection with Mr. Thomas O. Cordy's
employment as President and Chief Executive Officer of the
Company, the Company sold 72,727 shares of Common Stock to The
Anchora Company, an entity of which Mr. Cordy serves as
protector, for $1.65 per share; and
(iii) in August 1997, the Company sold 271,195 shares of Common
Stock to 42 purchasers in a private placement for $1.65 per
share.
Each of these transactions was completed without registration of the
respective securities under the Securities Act in reliance upon the exemptions
provided by Section 4(2) of the Securities Act and the rules and regulations
promulgated thereunder on the basis that such transactions did not involve a
public offering. All share data has been adjusted to reflect a one-for-five
reverse stock split effective October 8, 1997, a one-for-11 reverse stock split
effective February 17, 1998 and the conversion of each outstanding share of
Class A Common Stock and Class B Common Stock for one share of Common Stock
effective February 17, 1998.
ITEM 16. EXHIBITS
The exhibits filed as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
EXHIBIT NO. Exhibit Description
----------- -------------------
<S> <C>
2.1 Plan of Reorganization of the Company effective as of February 17, 1998.
3.1 Amended and Restated Articles of Incorporation of the Company, as amended to date.
3.2 Amended and Restated Bylaws of the Company, as amended to date.
4.1** See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws defining the
rights of holders of Common Stock of the Company.
4.2 Specimen Common Stock certificate.
4.3** Shareholders Agreement, dated as of September 1, 1997 among the Company and the
holders of Class A Common Stock.
4.4 Amended and Restated Shareholders Agreement, dated as of February 18, 1998 among
the Company and certain holders of its Common Stock.
</TABLE>
II-2
<PAGE> 81
<TABLE>
<CAPTION>
EXHIBIT NO. Exhibit Description
----------- -------------------
<S> <C>
5.1* Opinion of Nelson Mullins Riley & Scarborough, L.L.P., counsel to the Company, as
to the legality of the shares being registered.
10.1** Form of Employment Agreement by and between the Company and certain of its
officers.
10.2** Employment Agreement by and between the Company and Thomas O. Cordy dated
May 1, 1997.
10.3** Promissory Note by The Anchora Company in favor of the
Company dated as of May 1, 1997 in the original principal
amount of $120,000.
10.4** Guarantee by Thomas O. Cordy in favor of the Company dated May 1, 1997.
10.5** Form of Independent Sales Representative Agreement by and between the Company and
certain of its sales representatives.
10.6** Consulting Agreement by and between the Company and Robert P. Kelly dated as of
September 1, 1997.
10.7** Software License Agreement between Summit V. Inc., a subsidiary of Jenkon
International, Inc. and the Company dated February 2, 1997.
10.8** Software Service Agreement between Summit V. Inc., a subsidiary of Jenkon
International, Inc. and the Company dated February 2, 1997.
10.9R** Equipment Purchase Agreement between Summit V. Inc., a subsidiary of Jenkon
International, Inc. and the Company dated February 2, 1997.
10.10** Agreement for 1-Plus Services between Colorado River Communications Corporation
and the Company dated February 20, 1997.+
10.11** Sublease Agreement between DowElanco and the Company dated February 14, 1997.++
10.12** Warehouse lease between Malon D. Mimms and the Company dated March 17, 1997.
10.13** Warehouse lease between Malon D. Mimms and the Company dated June 23, 1997.
10.14** Demand Secured Promissory Note dated November 26, 1997 by the Company in favor
of the lenders named on Schedule I thereto.
10.15** Sub-Sublease Agreement between the Company and Simons Engineering, Inc. dated
September 1, 1997.++
10.16 Demand Promissory Note dated February 28, 1998 by the Company in favor of
Thomas O. Cordy.
21.1 Subsidiaries of the Company.
23.1 Consent of Arthur Andersen LLP.
23.2* Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included in Exhibit 5.1).
24.1** Power of Attorney (contained on the signature page hereto with respect to Mr.
McDonough and previously filed with respect to all other signatories).
27.1 Financial Data Schedule.
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment has been requested for certain confidential
portions of this exhibit pursuant to Rule 406 under the Securities Act.
In accordance with Rule 406, these confidential portions have been
omitted from this exhibit and filed separately with the Commission.
++ The Registrant agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon
request, as provided in Item 601(b)(2) of Regulation S-K.
ITEM 17. UNDERTAKINGS
The undersigned Company hereby undertakes as follows:
II-3
<PAGE> 82
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
II-4
<PAGE> 83
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on the 3rd day of March, 1998.
MAXXIS GROUP, INC.
By: /s/ Thomas O. Cordy
-------------------------------------
Thomas O. Cordy
Chief Executive Officer and President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ivey J. Stokes and Thomas O. Cordy, and
each of them, as his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any related Registration
Statement pursuant to Rule 462 under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all which said attorney-in-fact and agent or his substitute or
substitutes may lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
* Chairman of the Board March 3, 1998
- ---------------------------------------------
Ivey J. Stokes
/s/ Thomas O. Cordy Chief Executive Officer, President March 3, 1998
- --------------------------------------------- and Director (Principal executive
Thomas O. Cordy officer)
/s/ Daniel McDonough Chief Financial Officer March 3, 1998
- --------------------------------------------- (Principal financial
Daniel McDonough and accounting officer)
* Director and Secretary March 3, 1998
- ---------------------------------------------
James W. Brown
* Director March 3, 1998
- ---------------------------------------------
Charles P. Bernstein
* Director March 3, 1998
- ---------------------------------------------
Alvin Curry
* Director March 3, 1998
- ---------------------------------------------
Larry W. Gates, II
</TABLE>
II-5
<PAGE> 84
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
* Director March 3, 1998
- ------------------------------------------------
Robert J. Glover, Jr.
* Director March 3, 1998
- ------------------------------------------------
Terry Harris
* Director March 3, 1998
- ------------------------------------------------
Phil Lundquist
*By: /s/ Thomas O. Cordy
---------------------------------------------
Thomas O. Cordy
Attorney-in-Fact pursuant to the power of
attorney granted in Registration
Statement (No. 333-38623) as filed
October 24, 1997.
</TABLE>
II-6
<PAGE> 85
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. Exhibit Description
----------- -------------------
<S> <C> <C>
2.1 Plan of Reorganization of the Company effective as of
February 17, 1998.
3.1 Amended and Restated Articles of Incorporation of the
Company, as amended to date.
3.2 Amended and Restated Bylaws of the Company, as amended to
date.
4.1 ** See Exhibits 3.1 and 3.2 for provisions of the Amended and
Restated Articles of Incorporation and Amended and
Restated Bylaws defining the rights of holders of Common
Stock of the Company.
4.2 Specimen Common Stock certificate.
4.3 ** Shareholders Agreement, dated as of September 1, 1997
among the Company and the holders of Class A Common Stock.
4.4 Amended and Restated Shareholders Agreement, dated as of
February 18, 1998 among the Company and certain holders of
its Common Stock.
5.1 * Opinion of Nelson Mullins Riley & Scarborough, L.L.P.,
counsel to the Company, as to the legality of the shares
being registered.
10.1 ** Form of Employment Agreement by and between the Company
and certain of its officers.
10.2 ** Employment Agreement by and between the Company and Thomas
O. Cordy dated as of May 1, 1997.
10.3 ** Promissory Note by The Anchora Company in favor of the
Company dated as of May 1, 1997 in the original principal
amount of $120,000.
10.4 ** Guarantee by Thomas O. Cordy in favor of the Company dated
May 1, 1997.
10.5 ** Form of Independent Sales Representative Agreement by and
between the Company and certain of its sales
representatives.
10.6 ** Consulting Agreement by and between the Company and Robert
P. Kelly dated as of September 1, 1997.
10.7 ** Software License Agreement between Summit V. Inc., a
subsidiary of Jenkon International, Inc. and the Company
dated February 2, 1997.
10.8 ** Software Service Agreement between Summit V. Inc., a
subsidiary of Jenkon International, Inc. and the Company
dated February 2, 1997.
10.9R ** Equipment Purchase Agreement between Summit V. Inc., a
subsidiary of Jenkon International, Inc. and the Company
dated February 2, 1997.
10.10 ** Agreement for 1-Plus Services between Colorado River
Communications Corporation and the Company dated February
20, 1997.+
10.11 ** Sublease Agreement between DowElanco and the Company dated
February 14, 1997.++
10.12 ** Warehouse lease between Malon D. Mimms and the Company
dated March 17, 1997.
10.13 ** Warehouse lease between Malon D. Mimms and the Company
dated June 23, 1997.
10.14 ** Demand Secured Promissory Note dated November 26, 1997 by
the Company in favor of the lenders named on Schedule I
thereto.
10.15 ** Sub-Sublease Agreement between the Company and Simons
Engineering, Inc. dated September 1, 1997.++
10.16 Demand Promissory Note dated February 28, 1998 by the
Company in favor of Thomas O. Cordy.
21.1 Subsidiaries of the Company.
23.1 Consent of Arthur Andersen LLP.
23.2 * Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(included in Exhibit 5.1).
24.1 ** Power of Attorney (contained on the signature page hereto
with respect to Mr. McDonough and previously filed with
respect to all other signatories).
27.1 Financial Data Schedule.
</TABLE>
- ----------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment has been requested for certain confidential
portions of this exhibit pursuant to Rule 406 under the Securities Act.
In accordance with Rule 406, these confidential portions have been
omitted from this exhibit and filed separately with the Commission.
++ The Registrant agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon
request, as provided in Item 601(b)(2) of Regulation S-K.
<PAGE> 1
EXHIBIT 2.1
PLAN OF REORGANIZATION
OF
MAXXIS GROUP, INC.
The Board of Directors of MAXXIS GROUP, INC. (the "Corporation") has
unanimously approved and recommends to the shareholders of the Corporation for
their approval the reorganization of the Corporation as hereinafter set forth.
Furthermore, the Board of Directors has unanimously approved and recommends to
the shareholders of the Corporation for their approval Amended and Restated
Articles of Incorporation that effect the reorganization.
1. PRESENT CAPITALIZATION
The authorized capital stock of the Corporation presently
consists of: (i) 15,000,000 shares of Class A Common Stock, no par value per
share (the "Class A Common Stock"), 14,300,000 of which are issued, fully paid
and outstanding; (ii) 185,000,000 shares of Class B Common Stock, no par value
per share (the "Class B Common Stock"), of which 2,983,333 are issued, fully
paid and outstanding; and (iii) 10,000,000 shares of preferred stock, no par
value per share, of which no shares are issued or outstanding.
2. PLAN OF REORGANIZATION
Pursuant to Amended and Restated Articles of Incorporation,
the Corporation will authorize the creation of 30,000,000 shares of capital
stock which shall consist of 20,000,000 shares of Common Stock, no par value per
share (the "Common Stock"), and 10,000,000 shares of preferred stock, no par
value per share (the "Preferred Stock"). Pursuant to this Plan and upon filing
of the Amended and Restated Articles of Incorporation in substantially the form
as attached hereto as Exhibit A, 1,299,992 shares of the Common Stock will be
issued in exchange for 14,300,000 of Class A Common Stock, and 271,195 shares of
the Common Stock will be issued in exchange for 2,983,333 shares of Class B
Common Stock.
3. BUSINESS PURPOSE OF THE REORGANIZATION
The Board of Directors believes that this Plan of
Reorganization will be in the best interests of the Corporation and its
shareholders.
4. EXPENSES
The expenses incurred in carrying out the Plan of
Reorganization, including the filing of the Amended and Restated Articles of
Incorporation, will be paid by the Corporation.
5. METHOD OF EFFECTUATING THE PLAN OF REORGANIZATION
The proposed Amended and Restated Articles of Incorporation
and this Plan of Reorganization will be presented for consideration, and
following the approval by the shareholders of the Corporation, the officers of
the Corporation will proceed to execute and file the necessary documents to
effectuate the Plan of Reorganization.
<PAGE> 2
IN WITNESS WHEREOF, MAXXIS GROUP, INC., pursuant to the authority duly
given by the Board of Directors has caused this Plan of Reorganization to be
duly executed by its Chief Executive Officer and President.
MAXXIS GROUP, INC.
By: /s/ Thomas O. Cordy
----------------------------------------
Thomas O. Cordy
Chief Executive Officer and President
<PAGE> 3
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MAXXIS GROUP, INC.
ARTICLE I
The name of the corporation is "Maxxis Group, Inc." The principal
executive office of the corporation is 1901 Montreal Road, Suite 108, Tucker,
Georgia 30084.
ARTICLE II
The corporation shall have authority to issue not more than 30,000,000
shares of capital stock which shall consist of:
(i) 20,000,000 shares of Common Stock, no par value per share
(the "Common Stock"); and
(ii) 10,000,000 shares of preferred stock, no par value per
share (the "Preferred Stock").
A. Common Stock.
Subject to all of the rights of the Preferred Stock as expressly
provided herein, by law or by the Board of Directors pursuant to this Article
II, the Common Stock shall possess all such rights and privileges as are
afforded to capital stock by applicable law in the absence of any express grant
of rights or privileges in the Amended and Restated Articles of Incorporation,
including, but not limited to, the following rights and privileges:
(i) dividends may be declared and paid or set apart for payment upon
the Common Stock out of any assets or funds of the corporation legally available
for the payment of dividends;
(ii) the holders of Common Stock shall have the right to vote for the
election of directors and on all other matters requiring shareholder action,
each share being entitled to one vote; and
(iii) upon the voluntary or involuntary liquidation, dissolution or
winding-up of the corporation, the net assets of the corporation available for
distribution shall be distributed pro rata to the holders of the Common Stock in
accordance with their respective rights and interests.
B. Preferred Stock.
In addition to the Common Stock, the corporation shall have the
authority, exercisable by its Board of Directors, to issue up to 10,000,000
shares of Preferred Stock, any part or all of which shares of Preferred Stock
may be established and designated from time to time by the
<PAGE> 4
Board of Directors by filing an amendment to these Amended and Restated Articles
of Incorporation, which shall be effective without shareholder action, in
accordance with the appropriate provisions of the Georgia Business Corporation
Act (the "Act") and any amendment or supplement thereto (a "Preferred Stock
Designation"), in such series and with such preferences, limitations and
relative rights as may be determined by the Board of Directors. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
a majority of the votes of the Common Stock, without a vote of the holders of
the shares of Preferred Stock, or of any series thereof, unless a vote of any
such holders is required by law or pursuant to the Preferred Stock Designation
or Preferred Stock Designations establishing the series of Preferred Stock.
ARTICLE III
The corporation shall have not more than fifteen directors, and the
number of directors shall be set by the Board of Directors as set forth in the
corporation's Amended and Restated Bylaws. The Board of Directors shall be
divided into three classes to be known as Class I, Class II, and Class III,
which shall be as nearly equal in number as possible. Except in case of death,
resignation, disqualification or removal for cause, each director shall serve
for a term ending on the date of the third annual meeting of shareholders
following the annual meeting at which the director was elected; provided,
however, that each initial director in Class I shall hold office until the first
annual meeting of shareholders after his election; each initial director in
Class II shall hold office until the second annual meeting of shareholders after
his election; and each initial director in Class III shall hold office until the
third annual meeting of shareholders after his election. Despite the expiration
of a director's term, he shall continue to serve until his successor, if there
is to be any, has been elected and qualified. In the event of any increase or
decrease in the authorized number of directors, the newly created or eliminated
directorships resulting from such an increase or decrease shall be apportioned
among the three classes of directors so that the three classes remain as nearly
equal in size as possible; provided, however, that there shall be no
classification of additional directors elected by the Board of Directors until
the next meeting of shareholders called for the purpose of electing directors,
at which meeting the terms of all such additional directors shall expire, and
such additional directors positions, if they are to be continued, shall be
apportioned among the classes of directors and nominees therefor shall be
submitted to the shareholders for their vote. Any vacancy occurring on the Board
of Directors, including a vacancy resulting from an increase in the number of
directors, may only be filled by the affirmative vote of the remaining directors
even if the remaining directors constitute less than a quorum of the Board of
Directors. Any director or the entire Board of Directors may be removed with or
without cause by a majority vote of the holders of Common Stock then entitled to
vote thereon.
ARTICLE IV
No director of the corporation shall be personally liable for monetary
damages to the corporation or its shareholders for breach of the duty of care or
any other duty as a director, except that such liability shall not be eliminated
for:
(i) any appropriation, in violation of the director's
duties, of any business opportunity of the corporation;
<PAGE> 5
(ii) acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) liability under Section 14-2-832 (or any successor
provision or redesignation thereof) of the Act; and
(iv) any transaction from which the director received an
improper personal benefit.
If at any time the Act shall have been amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
each director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended, without further action by the
shareholders, unless the provisions of the Act, as amended, require further
action by the shareholders. Any repeal or modification of the foregoing
provisions of this Article IV shall not adversely affect the elimination or
limitation of liability or alleged liability pursuant hereto of any director of
the corporation for or with respect to any alleged act or omission of the
director occurring prior to such repeal or modification.
ARTICLE V
All actions by the shareholders shall be taken at a meeting, with prior
notice which complies with the notice provisions of the corporation's Amended
and Restated Bylaws, and with a vote of the holders of the outstanding stock of
each voting group entitled to vote thereon.
ARTICLE VI
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the corporation, the
Board of Directors, committees of the Board of Directors and individual
directors, in addition to considering the effects of any action on the
corporation or its shareholders, may consider the interests of the employees,
customers, suppliers and creditors of the corporation and its subsidiaries, the
communities in which offices or other establishments of the corporation and its
subsidiaries are located and all other factors such directors consider
pertinent; provided, however, that any such provision shall be deemed solely to
grant discretionary authority to directors and shall not be deemed to provide to
any constituency any right to be considered.
The amendments contained herein were duly approved by the holders of a
majority of the shares of the Class A Common Stock and Class B Common Stock of
the corporation entitled to be cast on the amendments, voting as separate
classes, in accordance with Section 14-2-1003 of the Act at a special meeting of
the shareholders held on February 16, 1998.
IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation as of the ____ day of February, 1998.
--------------------------------------------
Thomas O. Cordy
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MAXXIS GROUP, INC.
ARTICLE I
The name of the corporation is "Maxxis Group, Inc." The principal
executive office of the corporation is 1901 Montreal Road, Suite 108, Tucker,
Georgia 30084.
ARTICLE II
The corporation shall have authority to issue not more than 30,000,000
shares of capital stock which shall consist of:
(i) 20,000,000 shares of Common Stock, no par value per share
(the "Common Stock"); and
(ii) 10,000,000 shares of preferred stock, no par value per
share (the "Preferred Stock").
A. Common Stock.
Subject to all of the rights of the Preferred Stock as expressly
provided herein, by law or by the Board of Directors pursuant to this Article
II, the Common Stock shall possess all such rights and privileges as are
afforded to capital stock by applicable law in the absence of any express grant
of rights or privileges in the Amended and Restated Articles of Incorporation,
including, but not limited to, the following rights and privileges:
(i) dividends may be declared and paid or set apart for payment upon
the Common Stock out of any assets or funds of the corporation legally available
for the payment of dividends;
(ii) the holders of Common Stock shall have the right to vote for the
election of directors and on all other matters requiring shareholder action,
each share being entitled to one vote; and
(iii) upon the voluntary or involuntary liquidation, dissolution or
winding-up of the corporation, the net assets of the corporation available for
distribution shall be distributed pro rata to the holders of the Common Stock in
accordance with their respective rights and interests.
B. Preferred Stock.
In addition to the Common Stock, the corporation shall have the
authority, exercisable by its Board of Directors, to issue up to 10,000,000
shares of Preferred Stock, any part or all of which shares of Preferred Stock
may be established and designated from time to time by the
<PAGE> 2
Board of Directors by filing an amendment to these Amended and Restated Articles
of Incorporation, which shall be effective without shareholder action, in
accordance with the appropriate provisions of the Georgia Business Corporation
Act (the "Act") and any amendment or supplement thereto (a "Preferred Stock
Designation"), in such series and with such preferences, limitations and
relative rights as may be determined by the Board of Directors. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
a majority of the votes of the Common Stock, without a vote of the holders of
the shares of Preferred Stock, or of any series thereof, unless a vote of any
such holders is required by law or pursuant to the Preferred Stock Designation
or Preferred Stock Designations establishing the series of Preferred Stock.
ARTICLE III
The corporation shall have not more than fifteen directors, and the
number of directors shall be set by the Board of Directors as set forth in the
corporation's Amended and Restated Bylaws. The Board of Directors shall be
divided into three classes to be known as Class I, Class II, and Class III,
which shall be as nearly equal in number as possible. Except in case of death,
resignation, disqualification or removal for cause, each director shall serve
for a term ending on the date of the third annual meeting of shareholders
following the annual meeting at which the director was elected; provided,
however, that each initial director in Class I shall hold office until the first
annual meeting of shareholders after his election; each initial director in
Class II shall hold office until the second annual meeting of shareholders after
his election; and each initial director in Class III shall hold office until the
third annual meeting of shareholders after his election. Despite the expiration
of a director's term, he shall continue to serve until his successor, if there
is to be any, has been elected and qualified. In the event of any increase or
decrease in the authorized number of directors, the newly created or eliminated
directorships resulting from such an increase or decrease shall be apportioned
among the three classes of directors so that the three classes remain as nearly
equal in size as possible; provided, however, that there shall be no
classification of additional directors elected by the Board of Directors until
the next meeting of shareholders called for the purpose of electing directors,
at which meeting the terms of all such additional directors shall expire, and
such additional directors positions, if they are to be continued, shall be
apportioned among the classes of directors and nominees therefor shall be
submitted to the shareholders for their vote. Any vacancy occurring on the Board
of Directors, including a vacancy resulting from an increase in the number of
directors, may only be filled by the affirmative vote of the remaining directors
even if the remaining directors constitute less than a quorum of the Board of
Directors. Any director or the entire Board of Directors may be removed with or
without cause by a majority vote of the holders of Common Stock then entitled to
vote thereon.
ARTICLE IV
No director of the corporation shall be personally liable for monetary
damages to the corporation or its shareholders for breach of the duty of care or
any other duty as a director, except that such liability shall not be eliminated
for:
(i) any appropriation, in violation of the director's
duties, of any business opportunity of the corporation;
<PAGE> 3
(ii) acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) liability under Section 14-2-832 (or any successor
provision or redesignation thereof) of the Act; and
(iv) any transaction from which the director received an
improper personal benefit.
If at any time the Act shall have been amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
each director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended, without further action by the
shareholders, unless the provisions of the Act, as amended, require further
action by the shareholders. Any repeal or modification of the foregoing
provisions of this Article IV shall not adversely affect the elimination or
limitation of liability or alleged liability pursuant hereto of any director of
the corporation for or with respect to any alleged act or omission of the
director occurring prior to such repeal or modification.
ARTICLE V
All actions by the shareholders shall be taken at a meeting, with prior
notice which complies with the notice provisions of the corporation's Amended
and Restated Bylaws, and with a vote of the holders of the outstanding stock of
each voting group entitled to vote thereon.
ARTICLE VI
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the corporation, the
Board of Directors, committees of the Board of Directors and individual
directors, in addition to considering the effects of any action on the
corporation or its shareholders, may consider the interests of the employees,
customers, suppliers and creditors of the corporation and its subsidiaries, the
communities in which offices or other establishments of the corporation and its
subsidiaries are located and all other factors such directors consider
pertinent; provided, however, that any such provision shall be deemed solely to
grant discretionary authority to directors and shall not be deemed to provide to
any constituency any right to be considered.
The amendments contained herein were duly approved by the holders of a
majority of the shares of the Class A Common Stock and Class B Common Stock of
the corporation entitled to be cast on the amendments, voting as separate
classes, in accordance with Section 14-2-1003 of the Act at a special meeting of
the shareholders held on February 16, 1998.
IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation as of the 17th day of February, 1998.
/s/ Thomas O. Cordy
--------------------------------------------
Thomas O. Cordy
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
MAXXIS GROUP, INC.
EFFECTIVE AS OF: FEBRUARY 3, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I - Offices.......................................................... 1
ARTICLE II - Shareholders' Meetings.......................................... 1
Section 1. Place of Meeting........................................... 1
Section 2. Annual Meeting............................................. 1
Section 3. Special Meetings........................................... 2
Section 4. Notice..................................................... 2
Section 5. Quorum..................................................... 2
Section 6. Voting, Proxies............................................ 2
Section 7. Fixing of Record Date...................................... 3
Section 8. Shareholders' List for Meeting............................. 3
Section 9. Nominations of Directors and Shareholder Proposals......... 3
Section 10. Voting Trust Agreements.................................... 5
ARTICLE III - Directors...................................................... 5
Section 1. General Powers............................................. 5
Section 2. Number and Tenure.......................................... 6
Section 3. Vacancies and Removal...................................... 6
Section 4. Place of Meeting........................................... 6
Section 5. Compensation............................................... 7
Section 6. Regular Meetings........................................... 7
Section 7. Special Meetings........................................... 7
Section 8. Notice, Waiver by Attendance............................... 7
Section 9. Quorum and Voting.......................................... 7
Section 10. Manner of Acting........................................... 7
Section 11. Committees................................................. 8
Section 12. Action Without a Meeting................................... 8
Section 13. Conference Call Meetings................................... 8
ARTICLE IV - Officers........................................................ 9
Section 1. Offices.................................................... 9
Section 2. Term....................................................... 9
Section 3. Compensation............................................... 9
Section 4. Removal.................................................... 9
Section 5. Chairman of the Board...................................... 9
Section 6. President.................................................. 9
Section 7. Vice Presidents............................................ 10
Section 8. Secretary.................................................. 10
Section 9. Treasurer.................................................. 10
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V - Capital Stock.................................................... 10
Section 1. Form....................................................... 10
Section 2. Rights of Corporation with Respect to Registered Owners.... 11
Section 3. Transfers of Shares........................................ 11
Section 4. Duty of Corporation to Register Transfer................... 11
Section 5. Lost, Stolen or Destroyed Certificates..................... 11
Section 6. Business Combination....................................... 11
ARTICLE VI - Fiscal Year..................................................... 11
ARTICLE VII - Seal........................................................... 12
ARTICLE VIII - Annual Statements............................................. 12
ARTICLE IX - Indemnification................................................. 12
Section 1. Indemnification of Directors............................... 12
Section 2. Indemnification of Others.................................. 13
Section 3. Other Organizations........................................ 13
Section 4. Determination.............................................. 13
Section 5. Advances................................................... 13
Section 6. Non-Exclusivity............................................ 14
Section 7. Insurance.................................................. 14
Section 8. Notice..................................................... 14
Section 9. Security................................................... 14
Section 10. Amendment.................................................. 14
Section 11. Agreements................................................. 15
Section 12. Continuing Benefits........................................ 15
Section 13. Successors................................................. 15
Section 14. Severability............................................... 15
Section 15. Additional Indemnification................................. 15
Section 16. Changes in the Act......................................... 15
ARTICLE X - Notices and Waiver of Notice..................................... 15
Section 1. Notices.................................................... 15
Section 2. Waiver of Notice........................................... 16
ARTICLE XI - Miscellaneous................................................... 16
Section 1. Execution of Documents..................................... 16
Section 2. Deposits................................................... 16
Section 3. Proxies in Respect of Stock or Other Securities
of Other Corporations...................................... 16
ARTICLE XII - Amendments..................................................... 17
</TABLE>
ii
<PAGE> 4
AMENDED AND RESTATED BYLAWS
OF
MAXXIS GROUP, INC.
EFFECTIVE AS OF: FEBRUARY 3, 1998
References in these Bylaws to "Articles of Incorporation" are to the
Amended and Restated Articles of Incorporation of Maxxis Group, Inc., a Georgia
corporation (the "Corporation"), as amended and restated from time to time.
All of these Bylaws are subject to contrary provisions, if any, of the
Articles of Incorporation (including provisions designating the preferences,
limitations, and relative rights of any class or series of shares), the Georgia
Business Corporation Code (the "Act"), and other applicable law, as in effect on
and after the effective date of these Bylaws. References in these Bylaws to
"Sections" shall refer to sections of the Bylaws, unless otherwise indicated.
ARTICLE I
OFFICES
The address of the registered office of the Corporation is
1901 Montreal Road, Suite 108, Tucker, Georgia 30084. The Corporation may have
other offices at such places within or without the State of Georgia as the Board
of Directors may from time to time designate or the business of the Corporation
may require or make desirable.
ARTICLE II
SHAREHOLDERS' MEETINGS
SECTION 1. PLACE OF MEETING. The Board of Directors may
designate any place within or without the State of Georgia as the place of
meeting for any annual or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate any place within or without the State of Georgia as the
place for the holding of such meeting. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal
office of the Corporation in the State of Georgia.
SECTION 2. ANNUAL MEETING. An annual meeting of the
shareholders shall be held on such day, and at such time and place as the Board
of Directors shall determine, at which
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time the shareholders shall elect a Board of Directors and transact such other
business as may be properly brought before the meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by the
Act or the Articles of Incorporation, may be called only by the Board of
Directors or the Chairman of the Board. In addition, the Secretary shall call a
special meeting when requested in writing by shareholders owning at least 10% of
all shares entitled to vote at the meeting. Such written shareholder request
shall comply with the notice provisions of Section 9 hereof.
SECTION 4. NOTICE. Except as otherwise provided by the Act or
the Articles of Incorporation, written notice stating the place, day, and hour
of each meeting of the shareholders, whether annual or special, shall be
delivered, either personally or by first-class mail, to each shareholder of
record entitled to vote at such meeting, not less than ten nor more than 60 days
before the meeting. If the notice is mailed at least 30 days before the date of
the meeting, it may be done by a class of United States mail other than first
class. If mailed, such notice shall be deemed to be delivered when deposited in
the United States mail addressed to a shareholder at his address as it appears
on the records of the Corporation. Notice of any special meeting of shareholders
shall state the purpose or purposes for which the meeting is called. Notice of
any meeting of shareholders shall not be required to be given to any shareholder
who, in person or by his attorney thereunto authorized, either before or after
such meeting, shall waive such notice. Attendance of a shareholder at a meeting,
either in person or by proxy, shall itself constitute waiver of notice and
waiver of any and all objections to the place and time of the meeting and manner
in which it has been called or convened, except when a shareholder attends a
meeting solely for the purpose of stating, at the beginning of the meeting, any
such objections to the transaction of business. Notice of the time and place of
any adjourned meeting need not be given otherwise than by the announcement at
the meeting at which adjournment is taken. If, however, after the adjournment of
any meeting the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given in compliance with
this Section 4 to each shareholder of record entitled to vote on the new record
date.
SECTION 5. QUORUM. The holders of a majority of the stock
issued, outstanding and entitled to vote, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders and shall
be sufficient for the transaction of business, except as otherwise provided by
law or the Articles of Incorporation. If, however, such majority shall not be
present or represented at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until the requisite amount of voting stock shall be present. At
such adjourned meeting at which a quorum shall be present in person or by proxy,
any business may be transacted that might have been transacted at the meeting
originally called. Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjourned meeting unless a new record date is or must be set for that
adjourned meeting.
SECTION 6. VOTING, PROXIES. At every meeting of the
shareholders, any shareholder having the right to vote shall be entitled to vote
in person or by proxy, but no proxy
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shall be voted after 11 months from its date, unless the proxy provides for a
longer period. Each holder of Class A Common Stock shall have ten votes for each
share of Class A Common Stock registered in his name on the books of the
Corporation. Each holder of Class B Common Stock shall have one vote for each
share of Class B Common Stock registered in his name on the books of the
Corporation. If a quorum is present, the affirmative vote of a majority of the
shares represented shall be the act of the shareholders, except as otherwise
provided by law, the Articles of Incorporation or these Bylaws.
SECTION 7. FIXING OF RECORD DATE. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of dividends, or in order to make a determination of shareholders for
any other purpose, the Board of Directors may fix in advance a date as the
record date for any such determination of shareholders, such date in any case to
be not less than ten nor more than 60 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of dividends, the date on which notice of the meeting is mailed,
or the date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record date. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section 7, such determination shall apply to
any adjournment thereof, unless the Board of Directors fixes a new record date,
which it must do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
SECTION 8. SHAREHOLDERS' LIST FOR MEETING. After fixing a
record date for a meeting, the Corporation shall prepare an alphabetical list of
the names of all its shareholders who are entitled to notice of the
shareholders' meeting, arranged by voting group with the address of, and the
number and class and series, if any, of shares held by, each. The shareholders'
list shall be available for inspection by any shareholder for a period of ten
days prior to the meeting, or such shorter time as exists between the record
date and the meeting, and continuing through the meeting at the Corporation's
principal office or at such other place as may be permitted by the Act. Subject
to any limitations provided by the Act, a shareholder or his agent or attorney
shall be entitled on written demand to inspect the list during regular business
hours and at such shareholder's expense, during the period it is available for
inspection. Refusal or failure to comply with requirements of this Section 8
shall not affect the validity of any action taken at a shareholders' meeting,
unless otherwise provided by the Act.
SECTION 9. NOMINATIONS OF DIRECTORS AND SHAREHOLDER PROPOSALS.
(a) Nominations of Directors. Only persons who are nominated
by, or at the direction of, the Board of Directors or by a shareholder who has
given timely written notice to the Secretary prior to the meeting at which
directors are to be elected will be eligible for election as directors of the
Corporation. For notice of shareholder nominations to be timely, such notice
must be received by the Corporation not less than 90 days prior to the first
anniversary of the previous year's annual meeting. Such notification shall
contain the following information:
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(i) the name, age and business and residence
addresses of each proposed nominee;
(ii) the principal business or occupation of each
proposed nominee during the last five years;
(iii) with respect to each proposed nominee, any
affiliation with or material interest in the Corporation or
any transaction involving the Corporation, and any affiliation
with or material interest in any person or entity having an
interest materially adverse to the Corporation;
(iv) the name and residence address of the
notifying shareholder; and
(v) the number and class of shares of capital
stock of the Corporation owned by the notifying shareholder.
(b) Shareholder Proposals. At annual and special meetings only
such business may be conducted as has been brought before the meeting by, or at
the direction of, the Chairman of the Board or by a shareholder who has given
timely written notice to the Secretary of the Corporation of such shareholder's
intention to bring such business before such meeting. For notice of business to
be conducted at an annual or special meeting to be timely, such notice must be
received by the Corporation, in the case of an annual meeting, not less than 90
days prior to the first anniversary of the previous year's annual meeting or, in
the case of a special meeting, not less than 90 days prior to the date of the
meeting as set forth in the written request to the Corporation provided pursuant
to Section 3 hereof. Such notification shall contain the following information:
(i) a brief description of the business desired
to brought before the annual meeting and the reasons for
conducting such business at the annual meeting;
(ii) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such
business;
(iii) the class and number of shares of the
Corporation's capital stock that are beneficially owned by
such shareholder; and
(iv) any material interest of such shareholder in
such business.
(c) Certain Procedures. The Chairman of the Board, or his
designee, at any meeting of shareholders at which one or more directors are to
be elected may disregard any nomination not made in accordance with this Section
9, and upon the instructions of the Chairman of the Board, or his designee, the
vote tellers shall disregard all votes cast for such nominees. In addition, the
Chairman of the Board, or his designee, at any annual or special meeting of
shareholders may disregard any shareholder proposals not made in accordance with
this Section 9. The Chairman of the Board, or his designee, for good cause shown
and with
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proper regard for the orderly conduct of business at the meeting, may waive in
whole or in part the operation of this Section 9.
(d) Section 14 of the Exchange Act. Notwithstanding anything
to the contrary in this Section 9, any shareholder requesting that a proposal be
included in the Corporation's proxy statement must also meet all of the
requirements of Section 14 of the Securities Exchange Act of 1934, as amended,
and Regulation 14A thereunder.
SECTION 10. VOTING TRUST AGREEMENTS.
(a) Any number of shareholders of the Corporation may create a
voting trust for the purpose of conferring on a trustee or trustees the right to
vote or otherwise represent their shares. Any such agreement shall be in
writing, shall not exceed ten years in duration, and shall specify the terms and
conditions of the voting trust.
(b) On the transfer of such shares in trust, voting trust
certificates shall be issued by the trustee or trustees to the transferring
shareholders. Such trustee or trustees shall keep a record of the holders of the
voting trust certificates evidencing a beneficial interest in the voting trust,
giving the names and addresses of all such holders, and the number and class of
shares in respect of which the voting trust certificates held by each are
issued, and shall deposit a copy of such record with the Corporation at its
registered office.
(c) The counterpart of the voting trust agreement and the copy
of such record so deposited with the Corporation shall be subject to the same
right of inspection by shareholders of the Corporation, in person or by
attorney, as are the books and records of the Corporation, and such documents
shall be subject to examination by any holder of record voting trust
certificates either in person or by agent or attorney, at any reasonable time
for any reason.
(d) At any time before the expiration of a voting trust
agreement, as originally fixed, or as extended one or more times under this
Section 10, one or more holders of voting trust certificates may, by agreement
in writing, extend the duration of a voting trust agreement nominating the same
or substitute trustee or trustees, for an additional period not to exceed ten
years. Such extension agreement shall not affect the rights or obligations of
persons not parties to the agreement, and such persons shall be entitled to
remove their shares from the trust upon any such extension and to have their
share certificates promptly reissued to them. The extension agreement shall be
executed in the manner specified in clause (a) above and shall be subject to all
other provisions of this Section 10.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, the Board of Directors. In
addition to the powers and authority expressly conferred by these Bylaws, the
Board of Directors may exercise all such powers of the
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Corporation and do all such lawful acts and things as are not by law, or by any
legal agreement among shareholders, or by the Articles of Incorporation or by
these Bylaws directed or required to be exercised or done by the shareholders.
SECTION 2. NUMBER AND TENURE.
(a) Number. The number of directors shall be fixed by
resolution of the Board of Directors from time to time so long as the number of
directors does not exceed 15.
(b) Election and Term of Office Generally. The Board of
Directors shall be divided into three classes to be known as Class I, Class II
and Class III, which shall be as nearly equal in number as possible. Except in
case of death, resignation, disqualification, or removal for cause, each
director shall serve for a term ending on the date of the third annual meeting
of shareholders following the annual meeting at which the director was elected;
provided, however, that each initial director in Class I shall hold office until
the first annual meeting of shareholders after his election; each initial
director in Class II shall hold office until the second annual meeting of
shareholders after his election; and each initial director in Class III shall
hold office until the third annual meeting of shareholders after his election.
Despite the expiration of a director's term, he shall continue to serve until
his successor, if there is to be any, has been elected and has qualified. In the
event of any increase or decrease in the authorized number of directors, the
newly created or eliminated directorships resulting from such an increase or
decrease shall be apportioned among the three classes of directors so that the
three classes remain as nearly equal in size as possible; provided, however,
that there shall be no classification of additional directors elected by the
Board of Directors until the next meeting of shareholders called for the
purposes of electing directors, at which meeting the terms of all such
additional directors shall expire, and such additional directors positions, if
they are to be continued, shall be apportioned among the classes of directors
and nominees therefor shall be submitted to the shareholders for their vote.
SECTION 3. VACANCIES AND REMOVAL.
(a) Vacancies. Any vacancy occurring on the Board of
Directors, including a vacancy resulting from an increase in the number of
directors, may only be filled by the affirmative vote of the remaining
directors, even if the remaining directors constitute less than a quorum of the
Board of Directors. A director elected to fill a vacancy shall hold office only
until the next election of directors by the shareholders.
(b) Removal. At a meeting of the shareholders called expressly
for the purpose of removing a director, a director may be removed, with or
without cause, if a majority of the holders of Common Stock then entitled to
vote thereon votes in favor of such removal. If any removed director is a member
of any committee of the Board of Directors, he shall cease to be a member of
that committee when he ceases to be a director.
SECTION 4. PLACE OF MEETING. The Board of Directors may hold
its meetings at such place or places as it may from time to time determine.
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SECTION 5. COMPENSATION. Directors may be allowed such
compensation for attendance at regular or special meetings of the Board of
Directors and at any special meeting of standing committees thereof as may from
time to time be determined by resolution of the Board of Directors.
SECTION 6. REGULAR MEETINGS. A regular annual meeting of the
Board of Directors shall be held without other notice than as provided in these
Bylaws immediately after, and at the same place as, the annual meeting of
shareholders. The Board of Directors may provide, by resolution, the time and
place within or without the State of Georgia, for the holding of additional
regular meetings without other notice than such resolution.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on 24
hours' notice by first-class mail, overnight courier, telephone, telecopier,
electronic communication or personal delivery to each director and shall be
called by the Chairman of the Board or the President in like manner and on like
notice on the written request of any two or more directors. Any such special
meeting shall be held at such time and place as shall be stated in the notice of
the meeting. The notice need not describe the purpose of the special meeting.
SECTION 8. NOTICE, WAIVER BY ATTENDANCE. No notice of a
meeting of the Board of Directors need be given to any director who signs a
waiver of notice either before or after the meeting. The attendance of a
director at a meeting shall constitute a waiver of notice of such meeting and a
waiver of any and all objections to the place of the meeting, the time of the
meeting, or the manner in which it has been called or convened, except when a
director states, at the beginning of the meeting (or promptly upon arrival at
the meeting), any objection to the transaction of business because the meeting
is not lawfully called or convened.
SECTION 9. QUORUM AND VOTING. At all meetings of the Board of
Directors, the presence of a majority of the directors shall constitute a quorum
for the transaction of business. In the absence of a quorum, a majority of the
directors present at any meeting may adjourn from time to time until a quorum is
present. Notice of the time and place of any adjourned meeting need only be
given by announcement at the meeting at which adjournment is taken. Except as
set forth in the Articles of Incorporation, the act of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. A director who is present at a meeting when corporate
action is taken is deemed to have assented to the action unless he objects at
the beginning of the meeting (or promptly upon his arrival) to holding such
meeting or transacting specified business at the meeting, or he votes against or
abstains from voting on the action taken.
SECTION 10. MANNER OF ACTING. Notwithstanding any provision in
these Bylaws to the contrary, no contract or other transaction between the
Corporation and any one or more of its directors or between the Corporation and
any other corporation, firm, association or other entity, in which one or more
of its directors are directors or officers or are financially interested, shall
be void or voidable solely: (i) because of such relationship or interest; (ii)
because such director or directors are present at the meeting of the Board of
Directors or committee thereof which authorizes, approves or ratifies such
contracts or transactions; or (iii) because the presence of such director or
directors are counted for the purpose of
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determining the presences of a quorum of directors if: (A) the facts of such
relationship or interest are disclosed or known to the Board of Directors or
committee, and the Board of Directors or the committee in good faith authorizes,
approves, or ratifies the contract or transaction by the affirmative vote or
written consent of a majority of disinterested directors or (B) the facts of
such relationship or interest are disclosed or known to the holders of the
shares entitled to vote thereon and the holders of a majority of such shares
authorize, approve or ratify such contract or transaction by vote or written
consent with the shares of the interested director not entitled to vote thereon.
An interested director may be counted in determining the presence of a quorum at
a meeting of the Board of Directors or committee thereof which authorizes,
approves or ratifies such contract or transaction, but shall not be counted in
determining whether the Corporation shall award any contract or engage in any
transaction in which the director is an interest person, which determination may
only be authorized by a majority of disinterested directors or by a solely
disinterested director, even though such directors or director may be less than
a quorum.
SECTION 11. COMMITTEES. In furtherance and not in limitation
of the powers conferred by the Act, the Board of Directors by resolution adopted
by a majority of the full Board of Directors may designate from among its
members one or more other committees each of which, to the extent provided in
such resolution or in the Articles of Incorporation or these Bylaws, shall have
authority to exercise all the powers of the Board of Directors which may be
lawfully delegated and not inconsistent with these Bylaws or the Act, at any
time and when the Board of Directors is not in session. The committee shall
elect a chairman, and a majority of the entire committee shall constitute a
quorum; and the act of a majority of members present at a meeting at which a
quorum is present shall be the act of the committee provided all members of the
committee have had notice of such meeting or waived such notice.
SECTION 12. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if written consent thereto is
signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of the
proceedings of the Board of Directors or committee. Such consent shall have the
same effect as a unanimous vote.
SECTION 13. CONFERENCE CALL MEETINGS. Members of the Board of
Directors, or any committee designated by such Board, may participate in a
meeting of such Board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 13 shall constitute presence in person at such meeting.
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ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of a President, a Secretary, and a Treasurer, each of whom shall be
elected or appointed by the Board of Directors. The Board of Directors may also
elect a Chairman of the Board from among its members. The Board of Directors
from time to time may create and establish the duties of other offices and may
elect or appoint, or authorize specific senior officers to appoint, the persons
who shall hold such other offices, including one or more Vice Presidents
(including Executive Vice Presidents, Senior Vice Presidents, Assistant Vice
Presidents, and the like), one or more Assistant Secretaries, and one or more
Assistant Treasurers. Whether or not so provided by the Board of Directors, the
Chairman of the Board may appoint one or more Assistant Secretaries and one or
more Assistant Treasurers. Any two or more offices may be held by the same
person.
SECTION 2. TERM. Each officer shall serve at the pleasure of
the Board of Directors (or, if appointed by a senior officer pursuant to this
Article Four, at the pleasure of the Board of Directors or any senior officer
authorized to have appointed the officer) until his death, resignation, or
removal, or until his replacement is elected or appointed in accordance with
this Article IV.
SECTION 3. COMPENSATION. The compensation of all officers of
the Corporation shall be fixed by the Board of Directors or by a committee or
officer appointed by the Board of Directors. Officers may serve without
compensation.
SECTION 4. REMOVAL. All officers (regardless of how elected or
appointed) may be removed, with or without cause, by the Board of Directors, and
any officer appointed by another officer may also be removed, with or without
cause, by any senior officer authorized to have appointed the officer to be
removed. Removal will be without prejudice to the contract rights, if any, of
the person removed, but shall be effective notwithstanding any damage claim that
may result from infringement of such contract rights.
SECTION 5. CHAIRMAN OF THE BOARD. The Chairman of the Board
(if there be one) shall preside at and serve as chairman of meetings of the
shareholders and of the Board of Directors. The Chairman of the Board shall
perform other duties and have other authority as may from time to time be
delegated by the Board of Directors.
SECTION 6. PRESIDENT. Unless otherwise provided in these
Bylaws or by resolution of the Board of Directors, the President shall be the
chief executive officer of the Corporation, shall be charged with the general
and active management of the business of the Corporation, shall see that all
orders and resolutions of the Board of Directors are carried into effect, shall
have the authority to select and appoint employees and agents of the
Corporation, and shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
The President shall perform any other duties and have any other authority as may
be delegated from time to time by the Board of Directors, and shall be subject
to the limitations fixed from time to time by the Board of Directors.
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SECTION 7. VICE PRESIDENTS. The Vice President (if there be
one) shall, in the absence or disability of the President, or at the direction
of the President, perform the duties and exercise the powers of the President,
whether the duties and powers are specified in these Bylaws or otherwise. If the
Corporation has more than one Vice President, the one designated by the Board of
Directors or the President (in that order of precedence) shall act in the event
of the absence or disability of the President. Vice Presidents shall perform any
other duties and have any other authority as from time to time may be delegated
by the Board of Directors or the President.
SECTION 8. SECRETARY. The Secretary shall be responsible for
preparing minutes of the meetings of shareholders, directors, and committees of
directors and for authenticating records of the Corporation. The Secretary or
any Assistant Secretary shall have authority to give all notices required by law
or these Bylaws. The Secretary shall be responsible for the custody of the
corporate books, records, contracts, and other documents. The Secretary or any
Assistant Secretary may affix the corporate seal to any lawfully executed
documents requiring it, may attest to the signature of any officer of the
Corporation, and shall sign any instrument that requires the Secretary's
signature. The Secretary or any Assistant Secretary shall perform any other
duties and have any other authority as from time to time may be delegated by the
Board of Directors or the President.
SECTION 9. TREASURER. Unless otherwise provided by the Board
of Directors, the Treasurer shall be responsible for the custody of all funds
and securities belonging to the Corporation and for the receipt, deposit, or
disbursement of these funds and securities under the direction of the Board of
Directors. The Treasurer shall cause full and true accounts of all receipts and
disbursements to be maintained and shall make reports of these receipts and
disbursements to the Board of Directors and President upon request. The
Treasurer or Assistant Treasurer shall perform any other duties and have any
other authority as from time to time may be delegated by the Board of Directors
or the President.
ARTICLE V
CAPITAL STOCK
SECTION 1. FORM. The interest of each shareholder shall be
evidenced by a certificate representing shares of stock of the Corporation,
which shall be in such form as the Board of Directors may from time to time
adopt and shall be numbered and shall be entered in the books of the Corporation
as they are issued. Each certificate shall exhibit the name of the Corporation,
the holder's name, the number of shares and class of shares and series, if any,
represented thereby, a statement that the Corporation is organized under the
laws of the State of Georgia, and the par value of each share or a statement
that the shares are without par value. Each certificate shall be signed by the
President and the Secretary or an Assistant Secretary and may be sealed with the
seal of the Corporation or a facsimile thereof. In case any officer who signed,
or whose facsimile signature has been placed upon, such certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer at the date of
its issuance.
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SECTION 2. RIGHTS OF CORPORATION WITH RESPECT TO REGISTERED
OWNERS. Prior to due presentation for transfer of registration of its shares,
the Corporation may treat the registered owner of the shares (or the beneficial
owner of the shares to the extent of any rights granted by a nominee certificate
on file with the Corporation pursuant to any procedure that may be established
by the Corporation in accordance with the Act) as the person exclusively
entitled to vote the shares, to receive any dividend or other distribution with
respect to the shares, and for all other purposes; and the Corporation shall not
be bound to recognize any equitable or other claim to or interest in the shares
on the part of any other person, whether or not it has express or other notice
of such a claim or interest, except as otherwise provided by the Act.
SECTION 3. TRANSFERS OF SHARES. Transfers of shares shall be
made upon the books of the Corporation kept by the Corporation or by the
transfer agent designated to transfer the shares, only upon direction of the
person named in the certificate or by an attorney lawfully constituted in
writing. Before a new certificate is issued, the old certificate shall be
surrendered for cancellation or, in the case of a certificate alleged to have
been lost, stolen, or destroyed, the provisions of these Bylaws shall have been
complied with.
SECTION 4. DUTY OF CORPORATION TO REGISTER TRANSFER.
Notwithstanding any of the provisions of Section 3 of this Article V, the
Corporation is under a duty to register the transfer of its shares only if: (a)
the share certificate is endorsed by the appropriate person or persons; (b)
reasonable assurance is given that each required endorsement is genuine and
effective; (c) the Corporation has no duty to inquire into adverse claims or has
discharged any such duty; (d) any applicable law relating to the collection of
taxes has been complied with; (e) the transfer is in fact rightful or is to a
bona fide purchaser; and (f) the transfer is in compliance with applicable
provisions of any transfer restrictions of which the Corporation shall have
notice.
SECTION 5. LOST, STOLEN OR DESTROYED CERTIFICATES. Any person
claiming a certificate of stock to be lost, stolen or destroyed shall make an
affidavit or affirmation of the fact in such manner as the Board of Directors
may require and shall, if the Board of Directors so requires, give the
Corporation a bond of indemnity in the form and amount and with one or more
sureties satisfactory to the Board of Directors, whereupon an appropriate new
certificate may be issued in lieu of the one alleged to have been lost, stolen
or destroyed.
SECTION 6. BUSINESS COMBINATION. The Corporation hereby elects
to be governed by the provisions of Section 14-2-1132 of the Act, pertaining to
business combinations with interested shareholders. This Section 6 is adopted by
the Corporation as of October 8, 1997, pursuant to an amendment to the Bylaws in
accordance with Section 14-2-1133 of the Act.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall end on the 30th day
of June in each year, or on such other date as may be established by the Board
of Directors of the Corporation.
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ARTICLE VII
SEAL
The corporate seal shall be in such form as the Board of
Directors may from time to time determine.
ARTICLE VIII
ANNUAL STATEMENTS
Not later than four months after the close of each fiscal
year, and in any case prior to the next annual meeting of shareholders, the
Corporation shall prepare (a) a balance sheet showing in reasonable detail the
financial condition of the Corporation as of the close of its fiscal year, and
(b) a profit and loss statement showing the results of its operations during its
fiscal year. Upon receipt of written request, the Corporation promptly shall
mail to any shareholder of record a copy of the most recent such balance sheet
and profit and loss statement, in such form and with such information as the Act
may require.
ARTICLE IX
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF DIRECTORS. The Corporation shall
indemnify and hold harmless any person (an "Indemnified Person") who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, whether formal or informal, including any action or suit by or
in the right of the Corporation (for purposes of this Article IX, collectively,
a "Proceeding") because he is or was a director of the Corporation, against any
judgment, settlement, penalty, fine, or reasonable expenses (including, but not
limited to, attorneys' fees and disbursements, court costs, and expert witness
fees) incurred with respect to the Proceeding (for purposes of this Article IX,
a "Liability"), if he acted in a manner he believed in good faith to be in or
not opposed to the best interests of the Corporation, and, in the case of any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful; provided, however, that no indemnification shall be made for any
Liability for which, under the Act, indemnification may not be authorized by
action of the Board of Directors, the shareholders, or otherwise, including, but
not limited to, any Liability of a director to the Corporation for: (a) any
appropriation by a director, in violation of the director's duties, of any
business opportunity of the corporation; (b) any acts or omissions of a director
that involve intentional misconduct or a knowing violation of law; (c) the types
of liability set forth in Section 14-2-832 of the Act; or (d) any transaction
from which the director received an improper personal benefit. Indemnification
in connection with a Proceeding brought by or in the right of the Corporation is
limited to reasonable expenses incurred in connection with the Proceeding.
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<PAGE> 16
SECTION 2. INDEMNIFICATION OF OTHERS. The Board of Directors shall have
the power to cause the Corporation to provide to officers, employees, and agents
of the Corporation all or any part of the right to indemnification and other
rights of the type provided under Sections 1, 5, and 11 of this Article IX
(subject to the conditions, limitations, and obligations specified in those
sections) upon a resolution to that effect identifying officers, employees, or
agents (by position or name) to be indemnified and specifying the particular
rights provided, which may be different for each of the persons identified. Each
officer, employee, or agent of the Corporation so identified shall be an
"Indemnified Person" for purposes of the provisions of this Article IX.
SECTION 3. OTHER ORGANIZATIONS. The Board of Directors shall have the
power to cause the Corporation to provide to any director, officer, employee, or
agent of the Corporation who is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise
all or any part of the right to indemnification and other rights of the type
provided under Sections 1, 5, and 11 of this Article IX (subject to the
conditions, limitations, and obligations specified in those sections) upon a
resolution to that effect identifying the persons to be identified and
specifying the particular rights provided, which may be different for each of
the persons identified. Each person so identified shall be an "Indemnified
Person" for purposes of the provisions of this Article IX.
SECTION 4. DETERMINATION. Notwithstanding any judgment, order,
settlement, conviction, or plea in any Proceeding, an Indemnified Person shall
be entitled to indemnification as provided in Section 1 of this Article IX if a
determination that such Indemnified Person is entitled to such indemnification
shall be made (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not at the time parties to the Proceeding; (b)
if a quorum cannot be obtained under (a) above, by majority vote of a committee
duly designated by the Board of Directors (in which designation directors who
are parties may participate), consisting solely of two or more directors who are
not at the time parties to the Proceeding; (c) in a written opinion by special
legal counsel selected as required by the Act; or (d) by the shareholders;
provided, however, that shares owned by or voted under the control of directors
who are at the time parties to the Proceeding may not be voted on the
determination.
SECTION 5. ADVANCES. To the extent the Corporation has funds reasonably
available to be used for this purpose, expenses (including, but not limited to,
attorneys' fees and disbursements, court costs, and expert witness fees)
incurred by the Indemnified Person in defending any Proceeding of the kind
described in Section 1 (or in Sections 2 or 3, if the Board of Directors has
specified that advancement of expenses be made available to such Indemnified
Person) shall be paid by the Corporation in advance of the final disposition of
such Proceeding as set forth herein. The Corporation shall promptly pay the
amount of such expenses to the Indemnified Person, but in no event later than 10
days following the Indemnified Person's delivery to the Corporation of a written
request for an advance pursuant to this Section 9.5, together with a reasonable
accounting of such expenses; provided, however, that the Indemnified Person
shall furnish the Corporation a written affirmation of his good faith belief
that he has met the standard of conduct set forth in the Act and a written
undertaking and agreement to repay to the Corporation any advances made pursuant
to this Section 5 if it shall be determined that the Indemnified Person is not
entitled to be indemnified by the Corporation for such amounts.
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<PAGE> 17
The Corporation may make the advances contemplated by this Section 5 regardless
of the Indemnified Person's financial ability to make repayment. Any advances
and undertakings to repay pursuant to this Section 5 may be unsecured and
interest-free.
SECTION 6. NON-EXCLUSIVITY. Subject to any applicable limitation
imposed by the Act or the Articles of Incorporation, the indemnification and
advancement of expenses provided by or granted pursuant to this Article IX shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any provision
of the Articles of Incorporation, or any Bylaw, resolution, or agreement
specifically or in general terms approved or ratified by the affirmative vote of
holders of a majority of the shares entitled to be voted thereon.
SECTION 7. INSURANCE. The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the Corporation, or who, while serving in such a
capacity, is also or was also serving at the request of the Corporation as a
director, officer, trustee, partner, employee, or agent of any corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against any Liability that may be asserted against him or incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article IX.
SECTION 8. NOTICE. If the Corporation indemnifies or advances expenses
to a director under any of Sections 14-2-851 through 14-2-854 of the Act (or any
equivalent provision of these Bylaws) in connection with a Proceeding by or in
the right of the Corporation, the Corporation shall, to the extent required by
Section 14-2-1621 or any other applicable provision of the Act, report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders' meeting.
SECTION 9. SECURITY. The Corporation may designate certain of its
assets as collateral, provide self-insurance, establish one or more
indemnification trusts, or otherwise secure or facilitate its ability to meet
its obligations under this Article IX, or under any indemnification agreement or
plan of indemnification adopted and entered into in accordance with the
provisions of this Article IX, as the Board of Directors deems appropriate.
SECTION 10. AMENDMENT. Any amendment to this Article IX that limits or
otherwise adversely affects the right of indemnification, advancement of
expenses, or other rights of any Indemnified Person hereunder shall, as to such
Indemnified Person, apply only to Proceedings based on actions, events, or
omissions occurring after such amendment and after delivery of notice of such
amendment to the Indemnified Person so affected (collectively, "Post Amendment
Events"). Any Indemnified Person shall, as to any Proceeding based on actions,
events, or omissions occurring prior to the date of receipt of such notice, be
entitled to the right of indemnification, advancement of expenses, and other
rights under this Article IX to the same extent as if such provisions had
continued as part of the Bylaws of the Corporation without such amendment. This
Section 10 cannot be altered, amended, or repealed in a manner effective as to
any Indemnified Person (except as to Post Amendment Events) without the prior
written consent of such Indemnified Person.
14
<PAGE> 18
SECTION 11. AGREEMENTS. The provisions of this Article IX shall be
deemed to constitute an agreement between the Corporation and each Indemnified
Person hereunder. In addition to the rights provided in this Article IX, the
Corporation shall have the power, upon authorization by the Board of Directors,
to enter into an agreement or agreements providing to any Indemnified Person
indemnification rights substantially similar to those provided in this Article
IX.
SECTION 12. CONTINUING BENEFITS. The rights of indemnification and
advancement of expenses permitted or authorized by this Article IX shall, unless
otherwise provided when such rights are granted or conferred, continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
SECTION 13. SUCCESSORS. For purposes of this Article IX, the term
"Corporation" shall include any corporation, joint venture, trust, partnership,
or unincorporated business association that is the successor to all or
substantially all of the business or assets of this Corporation, as a result of
merger, consolidation, sale, liquidation, or otherwise, and any such successor
shall be liable to the persons indemnified under this Article IX on the same
terms and conditions and to the same extent as this Corporation.
SECTION 14. SEVERABILITY. Each of the Sections of this Article IX, and
each of the clauses set forth herein, shall be deemed separate and independent,
and should any part of any such Section or clause be declared invalid or
unenforceable by any court of competent jurisdiction, such invalidity or
unenforceability shall in no way render invalid or unenforceable any other part
thereof or any separate Section or clause of this Article IX that is not
declared invalid or unenforceable.
SECTION 15. ADDITIONAL INDEMNIFICATION. In addition to the specific
indemnification rights set forth herein, the Corporation shall indemnify each of
its directors and such of its officers as have been designated by the Board of
Directors to the full extent permitted by action of the Board of Directors
without shareholder approval under the Act or other laws of the State of Georgia
as in effect from time to time.
SECTION 16. CHANGES IN THE ACT. The Board of Directors of the
Corporation may amend any Section of this Article IX without shareholder
approval such that each Section of this Article IX will be in conformity with
the Act at all times.
ARTICLE X
NOTICES AND WAIVER OF NOTICE
SECTION 1. NOTICES. Except as otherwise provided in these
Bylaws, whenever under the provisions of these Bylaws notice is required to be
given to any shareholder, director or officer, such notice shall be given either
by personal notice, telephone, telecopier, or electronic communication, or by
overnight courier or mail by depositing the same in the post office or letter
box in a postpaid sealed envelope, addressed to such shareholder, officer or
15
<PAGE> 19
director at such address as appears on the books of the Corporation, and such
notice shall be deemed to be given at the time when the same shall be thus sent
or mailed.
SECTION 2. WAIVER OF NOTICE. Whenever any notice whatsoever is
required to be given by the Act, by the Articles of Incorporation or by these
Bylaws, a waiver thereof, in writing, signed by the person or persons entitled
to such notice given before or after the time stated therein, which shall
include a waiver given by telephone, telecopier, or electronic communication,
shall be deemed equivalent thereto. No notice of any meeting need be given to
any person who shall attend such meeting.
ARTICLE XI
MISCELLANEOUS
SECTION 1. EXECUTION OF DOCUMENTS. The Board shall designate
the officers, employees, and agents of the Corporation who shall have power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, and
documents for and in the name of the Corporation, and may authorize such
officers, employees, and agents to delegate such power (including authority to
redelegate) by written instrument to other officers, employees, or agents of the
Corporation. Unless so designated or expressly authorized by these Bylaws, no
officer or agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable pecuniarily for any purpose or any amount.
SECTION 2. DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation or otherwise as the Board or the Treasurer, or any other officer of
the Corporation to whom power in this respect shall have been given by the
Board, shall select.
SECTION 3. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OF
OTHER CORPORATIONS. The Board shall designate the officers of the Corporation
who shall have authority to appoint from time to time agents of the Corporation
to exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, and to vote or consent in respect of such stock or
securities. Such designated officers may instruct the agents so appointed as to
the manner of exercising such powers and rights, and such designated officers
may execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal or otherwise such written proxies, powers of
attorney, or other instruments as they may deem necessary or proper in order
that the Corporation may exercise such powers and rights.
16
<PAGE> 20
ARTICLE XII
AMENDMENTS
Except as otherwise provided under the Act, the Board of
Directors shall have the power to alter, amend, or repeal these Bylaws or adopt
new Bylaws. Any Bylaws adopted by the Board of Directors may be altered,
amended, or repealed, and new Bylaws adopted, by the shareholders. The
shareholders may prescribe in adopting any Bylaw or Bylaws that the Bylaw or
Bylaws so adopted shall not be altered, amended, or repealed by the Board of
Directors.
17
<PAGE> 1
EXHIBIT 4.2
[FORM OF FACE OF CERTIFICATE]
MAXXIS GROUP, INC.
INCORPORATED UNDER THE LAWS OF GEORGIA
AUTHORIZED 20,000,000 SHARES OF COMMON STOCK, NO PAR VALUE
This certifies that _____________________________________ is the registered
holder of ______________________________________ Shares of Common Stock which
are fully paid and non-assessable and transferable only on the books of the
Corporation by the holder hereof in person or by Attorney upon surrender of this
Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to
be signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this __________ day of __________________ A.D. 19____
- ----------------------------------- -----------------------------------
JAMES W. BROWN SECRETARY THOMAS O. CORDY PRESIDENT
[FORM OF BACK OF CERTIFICATE]
THE SHARES REPRESENTED BY THIS CERTIFICATE (THE "SHARES") ARE SUBJECT TO
CONDITIONS THAT MAY LIMIT THEIR TRANSFERABILITY. SUCH CONDITIONS ARE SET FORTH
IN A SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT") BY AND BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES. ANY TRANSFEREE OF THESE SHARES
TAKES SUCH SHARES SUBJECT TO THE CONDITIONS SET FORTH IN THE SUBSCRIPTION
AGREEMENT.
IN SUMMARY, THESE CONDITIONS PROVIDE THAT THESE SHARES MAY NOT BE SOLD OR
TRANSFERRED IN ANY JURISDICTION WHERE THE OFFER OR SALE OF SUCH SHARES WOULD BE
UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION OF SUCH OFFER AND SALE UNDER
THE LAWS OF SUCH JURISDICTION UNLESS: (I) SUCH REGISTRATION OR QUALIFICATION IS
THEN EFFECTIVE IN SUCH JURISDICTION AND SETS FORTH SUCH INFORMATION AS IS IN THE
COMPANY'S SOLE JUDGMENT THEN REQUIRED TO BE DISCLOSED PURSUANT TO THE LAWS AND
REGULATIONS OF SUCH JURISDICTION; OR (II) REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED IN SUCH JURISDICTION AND, IN SUCH CASE, THE PROSPECTIVE TRANSFEROR, AS
A CONDITION TO EFFECTING THE TRANSFER OF THE SHARES, PROVIDES TO THE COMPANY AT
SUCH TRANSFEROR'S EXPENSE A LEGAL OPINION, WHICH MUST BE SATISFACTORY TO THE
COMPANY AND THE COMPANY'S LEGAL COUNSEL IN THEIR SOLE DISCRETION, STATING THAT
THE OFFER AND SALE OF SUCH SHARES IN SUCH JURISDICTION MAY BE ACCOMPLISHED
WITHOUT REGISTRATION OR QUALIFICATION UNDER THE LAWS OF SUCH JURISDICTION.
IN ADDITION, THE ISSUER MAY ELECT TO IMPOSE A PROHIBITION ON THE SALE OR
TRANSFER OF THESE SHARES IN THE EVENT THE ISSUER DETERMINES TO FILE A
REGISTRATION STATEMENT WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION THAT
SEEKS TO REGISTER SECURITIES OF THE ISSUER IN AN INITIAL PUBLIC OFFERING THAT IS
FIRMLY UNDERWRITTEN. SUCH RESTRICTION MAY REMAIN IN EFFECT FOR A
<PAGE> 2
PERIOD ENDING 180 DAYS FOLLOWING THE EFFECTIVENESS OF SUCH REGISTRATION
STATEMENT. THE ISSUER MAY IMPOSE THESE CONDITIONS BY GIVING WRITTEN NOTICE TO
THE HOLDER OF RECORD OF THESE SHARES. THE FOREGOING SUMMARY IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE SUBSCRIPTION AGREEMENT, A COPY OF WHICH WILL BE
PROVIDED FREE OF CHARGE BY THE ISSUER TO ANY HOLDER, PROSPECTIVE PURCHASER OR
TRANSFEREE OF THESE SHARES UPON THEIR REQUEST.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT--______Custodian_______
(Cust) (Minor)
under Uniform Gifts to Minors Act________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
__________________________________________________________________________Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ____________________ Attorney to transfer the said shares on the books
of the within-named Corporation with full power of substitution in the premises.
Dated, _____________________
-----------------------------------
In presence of
- -----------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.4
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (this "Agreement") is
made and entered into as of the 18th day of February, 1998, by and among the
persons signing as a "Shareholder" at the end of this Agreement (individually, a
"Shareholder" and collectively, the "Shareholders") and MAXXIS GROUP, INC., a
Georgia corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Shareholders, as the result of a reorganization of the
Company and by virtue of their ownership immediately prior to the reorganization
of Class A Common Stock of the Company, are or will become the holders of the
number of shares of Common Stock, no par value per share (the "Common Stock"),
of the Company set forth opposite their names on Schedule I attached hereto;
WHEREAS, the Shareholders and the Company deem it expedient and in
their best interests to provide for certain agreements with respect to the
transfer of the Common Stock of the Company, as set forth in this Agreement; and
WHEREAS, the Shareholders and the Company desire to amend and restate
that certain Shareholders' Agreement dated as of September 1, 1997 and, in so
doing, to make promises for their mutual benefit and the benefit of the Company,
as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS; BINDING AGREEMENT; RESTRICTIONS ON TRANSFER;
SECURITIES LAWS.
1.1 DEFINITIONS. For purposes of this Agreement:
"ACT" shall mean the Securities Act of 1933, as amended.
"CONVERTED CLASS A SHARES" shall mean the shares of Common Stock held
by each Shareholder set forth on Schedule I hereto which were issued or are to
be issued to such Shareholder upon conversion of such Shareholder's Class A
Common Stock of the Company upon the effectiveness of that certain Plan of
Reorganization of Maxxis Group, Inc. dated February 17, 1998.
"PERMITTED TRANSFEREE," as to any Shareholder, shall mean: (i) any
trust or custodianship having that Shareholder (or another Permitted Transferee)
as the sole trustee(s) or custodian(s) and having that Shareholder (or another
Permitted Transferee) and/or his spouse, natural-born or adoptive children,
and/or his or their lineal descendants as its sole beneficiaries; (ii) a
personal representative, trustee, executor or similar fiduciary acting on behalf
of that
<PAGE> 2
Shareholder (or another Permitted Transferee) following such Shareholder's death
or incapacity; (iii) any other Shareholder who is a party to this Agreement; or
(iv) any other person or entity that the Company agrees in writing may become a
transferee of Restricted Stock; provided, however, that such a person or entity
shall become a Permitted Transferee only if such person or entity agrees in
writing to be bound by the provisions of this Agreement as if the Restricted
Stock continued to be held by the referenced Shareholder.
"RESTRICTED STOCK" shall mean all Converted Class A Shares of the
Company held or to be held by each Shareholder as set forth on Schedule I
hereto, together with any other rights or interests in stock or securities
resulting from any stock dividend, stock split, merger or consolidation,
recapitalization, reclassification or other event involving the Converted Class
A Shares.
"TRANSFER," used as a noun or verb, whether or not capitalized, shall
mean any sale, assignment, transfer, pledge, encumbrance, gift (whether by
lifetime transfer or, upon death, by testamentary devise or nontestamentary
disposition pursuant to the laws of intestate succession) or other disposition,
whether with or without consideration and whether voluntary or involuntary.
1.2 PARTIES SUBJECT TO AGREEMENT. This Agreement will be binding upon
the Shareholders who are parties to this Agreement, the Company and each and
every person, firm or corporation claiming by, through or under them.
1.3 NOTICE ON STOCK CERTIFICATES AND RESTRICTIONS ON TRANSFER AGENTS.
No officer, director, transfer agent or employee of the Company will cause or
permit any certificate representing Restricted Stock (a "Certificate") to be
issued without proof of compliance with the terms of this Agreement. Every
Certificate now or hereafter owned by a Shareholder or anyone claiming by,
through or under any of them (whether owned by such Shareholder individually or
collectively with any other person, firm or corporation) will bear a legend, in
addition to any other legend on the certificate required to secure an offering
exemption under the Act, which will give notice of the terms of this Agreement
to all others, in form and content substantially as follows:
NOTICE IS HEREBY GIVEN that the transfer of the securities represented
by this Certificate is restricted by the issuer, and all rights,
powers, restrictions, limitations, redemption and repurchase privileges
reserved by the Company and its Shareholders are hereby incorporated
into and made a part hereof as embodied in that certain Amended and
Restated Shareholders' Agreement dated as of February 18, 1998 (the
"Shareholders' Agreement"), as such may be amended from time to time.
Any attempted transfer, pledge or other disposition of these securities
that is not made in compliance with the Shareholders' Agreement shall
be void. The Shareholders' Agreement is on file in the principal office
of the Company, and a copy of such will be provided without cost to a
bona fide prospective transferee of these securities upon such
prospective transferee's request.
2
<PAGE> 3
1.4 RESTRICTIONS ON DISPOSITION. The Restricted Stock is restricted,
and no Transfer of Restricted Stock may be made by a Shareholder in the absence
of an effective registration statement under the Act or upon the delivery of an
opinion of counsel (which opinion and counsel shall be satisfactory to the
Company in the Company's sole discretion) that registration is not required.
1.5 INVESTMENT INTENT. Each Shareholder hereby represents, warrants and
covenants as follows:
(a) The Shareholder understands that the Restricted Stock held
by him under this Agreement has not been registered under the Act in reliance
upon exemptions contained in the Act and any applicable regulations promulgated
thereunder or interpretations thereof, and cannot be offered for sale, sold or
otherwise Transferred unless such Restricted Stock subsequently is so registered
or qualified for exemption from registration under the Act; that the
certificates representing shares of Restricted Stock bear legends substantially
in the form set forth in Sections 1.3 and 1.6 hereof; and that any transfer
agent employed or utilized by the Company shall be instructed not to effect any
transfer of such Restricted Stock without prior written authorization from the
Company (or, if the Company serves as its own transfer agent, a notation shall
be made in the Company's records indicating the transfer restrictions to which
such Restricted Stock is subject); provided that the Company covenants that any
transfer agent the Company employs or utilizes shall be instructed to (or, if
the Company serves as its own transfer agent, the Company shall itself) transfer
Restricted Stock at the request of a Shareholder provided that all provisions of
this Agreement have been satisfied and all tests required under the Act for the
transfer of Restricted Stock have been met.
(b) Such Restricted Stock was acquired during the formation of
the Company or was transferred pursuant to this Agreement to such Shareholder in
good faith solely for its own account, for investment and not with a view toward
resale or other distribution within the meaning of the Act; and such Restricted
Stock shall not be offered for sale, sold or otherwise transferred without
either registration or exemption from registration under the Act.
(c) Such Shareholder has such knowledge and experience in
financial and business matters that such Shareholder is capable of evaluating
the merits and risks of its investment in such Restricted Stock; and such
Shareholder understands and is able to bear any economic risks associated with
such investment (including the necessity of holding such Restricted Stock for an
indefinite period of time, inasmuch as such Restricted Stock has not been
registered under the Act).
(d) Such Shareholder is familiar with the business which is
presently being conducted and is intended to be conducted by the Company,
including financial matters relating to such business; such Shareholder has been
given the opportunity to obtain such information as it has requested concerning
the business of the Company.
(e) Such Shareholder understands that such Restricted Stock
will be considered "restricted securities" within the meaning of Rule 144 under
the Act; that Rule 144 is not currently and may not ever be available to exempt
from the registration requirements of the Act
3
<PAGE> 4
sales of such "restricted securities;" that if Rule 144 is available, sales may
be made in reliance upon Rule 144 only in accordance with the terms and
conditions of Rule 144, which among other things generally requires that the
securities be held for at least one year and that sales be made in limited
amounts and in "brokers' transactions" (volume and manner of sale requirements
are subject to certain exceptions depending upon whether the seller is an
"affiliate" within the meaning of Rule 144 and how long the securities have been
held); and that, if an exemption for such sales is not available, registration
of such Restricted Stock may be required, but that the Company is under no
obligation to register such Restricted Stock or to facilitate compliance or to
comply with any exemption except to the extent set forth in this Agreement.
1.6 LEGEND ON CERTIFICATES. In addition to the legend required by
Section 1.3, the certificates representing the Restricted Stock shall bear a
legend in substantially the following form:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") or applicable state
securities laws and cannot be offered, sold or transferred in the
absence of registration or the availability of an exemption from
registration under the Act, applicable state securities laws and
regulations promulgated thereunder.
The Company covenants that if and when it becomes subject to the reporting
requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended, it shall comply with the then current public information
requirements of Rule 144(c)(1) and shall so certify to the Shareholders,
providing them upon request with copies of all filings.
1.7 SECURITIES LAW COVENANT OF THE COMPANY. The Company hereby
covenants with every Shareholder that it will use the information provided to it
by the Shareholders pursuant to this Agreement in a manner consistent with
applicable securities laws, rules and regulations (but by this covenant takes no
responsibility for the accuracy or completeness of such information).
SECTION 2. COMPANY'S OPTION TO PURCHASE.
2.1 TERMINATION OF EMPLOYMENT OR ENGAGEMENT FOR CAUSE. (a) If the
Company terminates a Shareholder's employment with the Company (or, if a
Shareholder is an independent contractor or consultant, such Shareholder's
engagement by the Company as an independent contractor or consultant) for
"cause" (as defined in the agreement between such Shareholder and the Company),
the Company shall have the right to repurchase, at a price equal to the Fair
Market Value (as defined below), an amount of the Shareholder's Restricted Stock
according to the following formula: (i) 100% if termination of employment or
engagement as an independent contractor or consultant occurs prior to July 1,
1998; (ii) 80% if termination of employment or engagement as an independent
contractor or consultant occurs prior to July 1, 1999; (iii) 60% if termination
of employment or engagement as an independent contractor or consultant occurs
prior to July 1, 2000; (iv) 40% if termination of employment or engagement as an
independent contractor or consultant occurs prior to July 1, 2001; (v) 20% if
termination of employment or engagement as an independent contractor or
consultant occurs prior to July
4
<PAGE> 5
1, 2002; provided, however, that such repurchase right with respect to King
David Trust would be triggered by the termination for cause of Ivey J. Stokes,
such repurchase right with respect to Cynthia Glover would be triggered by the
termination for cause of Robert Glover and such repurchase right with respect to
The Anchora Company would be triggered by the termination for cause of Thomas O.
Cordy. The closing of such repurchase shall occur on the 20th business day
following receipt by the Company of the final report from the Appraiser (as
defined below), but otherwise will be in accordance with Section 2.2 below.
(b) For the purposes of this Agreement, "Fair Market Value" shall mean
the price per share of the Common Stock as determined by an investment banking,
appraisal or advisory firm chosen by the Company (the "Appraiser") and
reasonably acceptable to the Shareholder, it being agreed that the firm of
Gross, Collins + Cress, if chosen by the Company, shall be acceptable to the
Shareholder. The determination of the Fair Market Value of the Common Stock by
the Appraiser will be conclusive and binding on the parties, absent fraud. The
Company will pay all fees and expenses of the Appraiser.
2.2 CLOSING OF OPTION PURCHASE. On the closing date agreed to by the
Shareholder and the Company (or upon the date determined in accordance with
Section 2.1 of this Agreement, as the case may be), the Shareholder shall sell
to the Company all right, title and interest in and to the Restricted Stock,
free and clear of any lien, charge, encumbrance or restriction (other than
transfer restrictions imposed by applicable securities laws), and the Company
shall purchase the Restricted Stock from the Shareholder. At the closing of such
purchase, the Shareholder shall deliver to the Company the Certificate(s)
representing the Restricted Stock duly endorsed for transfer, and the Company
shall deliver to the Shareholder a check in the amount of the Fair Market Value
of the Restricted Stock.
SECTION 3. OTHER TRANSFERS; RIGHT OF FIRST REFUSAL.
3.1 PROHIBITION ON TRANSFER. Until the earlier of (i) July 1, 2002 or
(ii) the closing of an underwritten public offering of the Company's common
stock registered under the Act in which aggregate proceeds to the Company, net
of all underwriting discounts and commissions and other expenses of issuance and
distribution, are equal to at least $5,000,000, each Shareholder shall refrain
from making any transfer of any shares of Restricted Stock, unless such transfer
complies with the restrictions set forth in Section 1 of this Agreement and
either:
(a) such transfer is to a Permitted Transferee; or
(b) the proposed terms of the transfer are for cash
consideration from a bona fide offer, and the
Shareholder has complied with the provisions of
Section 3.2 below.
For purposes of this Section 3, a "bona fide offer" shall mean a good faith
offer, in writing, issued by a third party unaffiliated with the Shareholder,
with the intent to purchase and sell, and without fraud or collusion. Any
transfer or attempted transfer made in contravention of this prohibition shall
be null and void.
5
<PAGE> 6
3.2 RIGHT OF FIRST REFUSAL.
(a) Prior to any transfer of Restricted Stock by a Shareholder, such
Shareholder (the "Transferor") shall, as set forth in this Section 3.2, provide
the Company and, in the event the Company does not exercise its right of first
refusal with respect to all of such shares of Restricted Stock, the other
Shareholders (the "Remaining Shareholders"), with a right of first refusal with
respect to such transfer.
(b) Prior to any transfer of Restricted Stock, the Transferor shall
notify the Company and the Remaining Shareholders in writing of his intention to
effect such transfer of the Restricted Stock. Such written notice shall
constitute an offer (the "Offer Notice") to sell all, but not less than all,
such Restricted Stock to the Company and the Remaining Shareholders on the terms
and conditions set forth in this Section 3.2. Such Offer Notice shall set forth
all information regarding the proposed transfer, including the number of shares
of Restricted Stock proposed to be transferred; the name, address, background
and financial capacity of the proposed transferee; and the terms and conditions
(including price per share) of the proposed transfer. The Transferor shall also
obtain promptly and provide such further information concerning the proposed
transfer or proposed transferee as the Company or any Remaining Shareholder may
reasonably request.
(c) The Company may elect to purchase some or all of the shares of the
Restricted Stock subject to the Offer Notice by delivery of a written notice to
the Transferor and the Remaining Shareholders within 30 days of receipt of the
Offer Notice. In the event the Company does not elect to purchase all of the
shares of Restricted Stock subject to such Offer Notice, each of the Remaining
Shareholders may elect to purchase all (but not less than all) of the shares of
Restricted Stock not elected to be purchased by the Company (the "Remaining
Shares") by delivery of a written notice to the Transferor within 30 days of
receipt of the Company's response to the Offer Notice. If the Remaining
Shareholders who elect to purchase Remaining Shares (the "Electing
Shareholders") elect to purchase, in the aggregate, a number of shares greater
than the number of Remaining Shares, the number of Remaining Shares to be
purchased by each of the Electing Shareholders shall be allocated by multiplying
the number of shares requested by each Electing Shareholder by a fraction, the
numerator of which equals the Remaining Shares and the denominator of which is
the total number of shares requested by the Electing Shareholders, with the
number of shares eligible for purchase by each Electing Shareholder being
rounded to the nearest whole share in a manner that results in all (but not less
than all) of the Remaining Shares being purchased by the Electing Shareholders.
The expiration of the foregoing periods without notice of exercise of such
rights of first refusal shall constitute the Company's election and/or the
Remaining Shareholders' election not to exercise such rights of first refusal.
If the Company elects to purchase some but not all of the shares of Restricted
Stock subject to such Offer Notice, and if the Remaining Shareholders elect to
purchase a number of shares that is less than the total number of Remaining
Shares, then the Company and the Remaining Shareholders shall be deemed to have
elected not to exercise their rights of first refusal with respect to any of the
Restricted Stock subject to such Offer Notice, the Transferor shall not be
obligated to sell any such Restricted Stock to the Company or the Remaining
Shareholders pursuant to this Section 3, and the Transferor may transfer such
Restricted Stock pursuant to Section 3.2(d).
6
<PAGE> 7
(d) If the Company or the Shareholders elect not to exercise their
rights of first refusal, the Transferor may, subject to compliance with
applicable regulatory requirements, transfer the shares of Restricted Stock
proposed to be transferred in accordance with the information, including the
terms and conditions, set forth in the Offer Notice; provided, however, that (i)
such transfer must comply with all other terms and conditions of this Agreement,
(ii) the shares of Restricted Stock so transferred shall remain subject to all
provisions of this Agreement (including, but not limited to, this Section 3.2)
with respect to any subsequent transfer thereof by the transferee and (iii) the
Company may require the transferee to agree in writing to be bound by such
restrictions as a condition to the effectiveness of the proposed transfer. If
the Transferor does not complete such transfer within 90 days after the Company
or the Shareholders have elected not to exercise their rights of first refusal,
or if there is any material change in the terms or conditions of the proposed
transfer, the transfer shall again be subject to the right of first refusal set
forth in this Section 3.2.
(e) The closing of the purchase of the Restricted Stock pursuant to the
Company's and/or the Shareholders' exercise of their rights of first refusal
shall occur as provided in Section 3.3 hereof.
3.3 CLOSING.
(a) In the event that the Company and/or the Electing Shareholders, as
the case may be, elect to purchase all (but not less than all) Restricted Stock
offered under Section 3.2 hereof, the Transferor shall tender the certificates
or other instruments evidencing such Restricted Stock, duly endorsed, at the
Company's offices at such date and time as the Company or the Electing
Shareholders, as the case may be, may designate.
(b) The Company or the Electing Shareholders, as the case may be, shall
deliver the purchase price for such Restricted Stock to the Transferor upon
receipt of the certificates or other instruments evidencing such Restricted
Stock.
(c) The Company may, at its option, assign its rights under Sections
3.2 hereof to one or more other purchasers on one or more occasions.
SECTION 4. CONFIDENTIALITY.
(a) Each Shareholder shall maintain in strict confidence, and shall use
and disclose only as authorized by the Company or as he otherwise reasonably
determines to be in pursuance of the best interests and in compliance with the
internal procedures of the Company, all information of a competitively sensitive
or proprietary nature which he receives in connection with the transactions
contemplated hereby, as a holder of Common Stock, or in any representative
capacity on behalf of the Company. Each Shareholder shall use his best efforts
to cause his attorneys, accountants, representatives and designees to do
likewise.
(b) These restrictions shall not be construed to apply to: (i)
information generally available to the public; (ii) information released by the
Company generally without restriction; (iii) information independently developed
or acquired by a Shareholder without reliance in any
7
<PAGE> 8
way on other protected information of the Company; or (iv) information approved
by the Company in writing for unlimited use and disclosure by the Shareholders.
(c) Notwithstanding the foregoing restrictions, a Shareholder may use
and disclose any such information to the extent required by an order of any
court or other governmental authority, but only after the Company has been so
notified and has had the opportunity, if possible, to obtain reasonable
protection for such information in connection with its disclosure.
SECTION 5. MISCELLANEOUS.
5.1 EQUITABLE REMEDIES. The parties hereto declare that it is
impossible to measure in money the damages which may accrue to a party hereto or
to the estate or personal representative of a decedent, by reason of a failure
to perform any of the obligations of this Agreement. Therefore, if any party
hereto or the personal representative of a decedent shall institute any action
or proceeding to enforce the provisions hereof, any other party against whom
such action or proceeding is brought shall have no right to make the claim or
defense therein, that such party or such personal representative has an adequate
remedy at law. The parties further agree that the shares of Restricted Stock are
unique chattels and that the equitable remedy of specific performance shall be
available to enforce the terms of this Agreement.
5.2 POST-TRANSFER RESTRICTIONS ON STOCK. From and after the date of the
sale or other transfer of any shares of Restricted Stock, including a transfer
by operation of law, the transferee Stockholders shall be subject to all of the
limitations, terms, conditions, and provisions of this Agreement as if they were
original parties.
5.3 NOTICES. Notices given hereunder shall be deemed to have been duly
given on the date of personal delivery or on the date of postmark if mailed by
certified or registered mailed by certified or registered mail, return receipt
requested, to the party being notified at his or its address specified on
Schedule II hereto or such other address as the addressee may subsequently
notify the other parties of in writing.
5.4 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement amends, restates
and supersedes that certain Shareholders' Agreement dated September 1, 1997 to
which the Company and the Shareholders are parties. This Agreement, together
with the subscription and investment agreements, subscription agreements and/or
investment letters executed by the parties hereto upon the initial offer and
sale of the Restricted Stock, constitute the entire agreement of the parties
with respect to the subject matter hereof, and neither this Agreement nor any
provision hereof may be waived, modified, amended or terminated except by a
written agreement signed by Shareholders holding not less than 80% of the
Restricted Stock then outstanding.
5.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to otherwise
applicable principles of conflict of laws.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and,
subject to the restrictions set forth in this Agreement, inure to the benefit of
the Shareholders and their
8
<PAGE> 9
permitted successors and assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and its successors and assigns.
5.7 WAIVERS. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
5.8 SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
effect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision weren't contained therein.
5.9 CAPTIONS. Captions are for convenience only and are not deemed to
be part of this Agreement.
5.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one of the same instrument.
5.11 LIMITATION OF BENEFITS. It is the explicit intention of the
parties hereto that no person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants, undertakings and
agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective successors,
heirs, executors, administrators, legal representatives and permitted assigns.
5.12 FURTHER ASSURANCES. Each individual Shareholder agrees to insert
in his will, or to execute a codicil thereto including, a direction to his
personal representative to fulfill and comply with the provisions hereof and to
sell and transfer his shares in accordance herewith, but failure to do so shall
not release the Restricted Stock owned by the decedent from the restriction of
this Agreement or the personal representative from being bound by and acting in
accordance with the terms thereof.
5.13 GENDER AND PLURALS. Where appropriate herein, the references to
the masculine gender shall include the feminine and neuter, the singular shall
include the plural and the plural shall include the singular, in each case as
the context may require.
9
<PAGE> 10
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
MAXXIS GROUP, INC.
By:/s/ Thomas O. Cordy
-----------------------------------------
Name: Thomas O. Cordy
Title: President and CEO
SHAREHOLDERS
KING DAVID TRUST
/s/ Alvin Curry
--------------------------------------------
Alvin Curry, Trustee
/s/ Alvin Curry
--------------------------------------------
Alvin Curry
/s/ Cynthia Glover
--------------------------------------------
Cynthia Glover, trustee, U/A Louise
Glover dated January 10, 1997
/s/ James W. Brown
--------------------------------------------
James W. Brown
/s/ Maxine Graves
--------------------------------------------
Maxine Graves, trustee, U/A Corrine
Woods dated January 20, 1997
/s/ Larry W. Gates
--------------------------------------------
Larry W. Gates
/s/ Victor Jemison
--------------------------------------------
Victor Jemison
10
<PAGE> 11
/s/ Edward A. Kelly
--------------------------------------------
Edward A. Kelly, trustee, U/A Sara
K. Parlee dated April 19, 1995
/s/ Kim M. Jaggers
--------------------------------------------
Kim M. Jaggers, trustee, U/A Hortense
Kirkman Bey dated January 11, 1996
THE ANCHORA COMPANY
By: It's Secretaries, Bruce Secretaries Ltd.
By:/s/ M. Catherine Bruce
-----------------------------------------
Title: Secretary
--------------------------------------
/s/ Terrell Chambers
--------------------------------------------
Terrell Chambers
/s/ Jennifer A. Parks
--------------------------------------------
Jennifer A. Parks
/s/ John T. Petty, Jr.
--------------------------------------------
John T. Petty, Jr.
/s/ Paul Seagraves
--------------------------------------------
Paul Seagraves
/s/ Richard Willis, Jr.
--------------------------------------------
Richard Willis, Jr.
11
<PAGE> 1
EXHIBIT 10.16
Tucker, Georgia $52,893.56 Principal Amount
February 28, 1998
DEMAND PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to the
order of Thomas O. Cordy (the "Lender"), at 1901 Montreal Road, Suite 108,
Tucker, Georgia 30084, or at such other place or places as the Lender may from
time to time designate, the aggregate principal sum of FIFTY TWO THOUSAND EIGHT
HUNDRED NINETY THREE AND 56/100 DOLLARS ($52,893.56), together with interest
thereon at the rate or rates hereafter specified and any and all other sums
which may be owing to the Lender by Borrower pursuant to this Promissory Note.
1. INTEREST. From the date hereof until all sums due hereunder, including
principal, interest, charges, fees and expenses are paid in full, the
principal amount outstanding from time to time pursuant to this
Promissory Note shall bear interest at the fixed per annum rate of 6%.
2. CALCULATION OF INTEREST. Interest shall be calculated on the basis of a
360 day year applied to the actual days on which there exists an unpaid
balance hereunder.
3. REPAYMENT. BORROWER SHALL MAKE PAYMENTS OF PRINCIPAL AND ALL UNPAID
INTEREST, EXPENSES, CHARGES AND OTHER FEES IN FULL TO A LENDER ON
DEMAND BY SUCH LENDER, WHICH MAY BE MADE AT ANY TIME, WITHOUT NOTICE,
AND WITHOUT REGARD TO WHETHER A DEFAULT HAS OCCURRED. All accrued and
unpaid interest shall be paid by Borrower on the first day of each
successive month, beginning on January 1, 1998, and continuing until
the maturity of this Promissory Note (whether upon demand, stated
maturity, acceleration or otherwise) at which time all sums due
hereunder, including principal, interest, charges, fees and expenses,
shall be paid in full.
4. LATE PAYMENT CHARGE. If any payment due hereunder (including any
payment in whole or in part of principal) is not received by a Lender
within 15 calendar days after its due date, Borrower shall pay a late
payment charge equal to 5% of the amount then due.
5. APPLICATION OF PAYMENTS. All payments made pursuant to this Promissory
Note shall be applied first to accrued and unpaid interest, then to
unpaid expenses and charges payable hereunder, and then to principal,
or in such other order or proportion as any Lender, in such Lender's
sole discretion, may elect from time to time.
6. USE OF PROCEEDS. Borrower represents and agrees that the proceeds of
the loan evidenced by this Promissory Note shall be used solely for
working capital business purposes (namely, to purchase inventory
necessary to launch Borrower's nutritional product line) and shall not
be used for any personal, family, household, consumer or other purpose,
including but not limited to the purchase or carrying of margin stock
or other securities.
1
<PAGE> 2
7. DEFAULT. Any of the following will be a default under this Promissory
Note: (a) failure to pay any principal, expense, fee, charge or
interest when due, or failure to perform any other obligations
hereunder; (b) a default by any Borrower upon any of the existing or
future obligations of Borrower to the Lender; (c) a material adverse
change in the financial condition of Borrower from that expressed in
the financial statement most recently submitted to the Lender prior to
the date of this Promissory Note, as determined in good faith by the
Lender in his sole discretion; (d) institution of bankruptcy,
insolvency, reorganization or receivership proceedings by or against
Borrower in any state or federal court; (e) the appointment of a
receiver, assignee, custodian, trustee or similar official under any
federal or state insolvency or creditors' rights law for any property
of Borrower; (f) failure of Borrower to furnish to the Lender such
collateral or additional collateral as the Lender may in good faith
request; (g) the occurrence of any event which is, or would be with the
passage of time or the giving of notice or both, a default under any
indebtedness of Borrower to any person other than the Lender; (h) the
sale, transfer, lease, encumbrance or other disposition of all or any
material part of the assets of Borrower other than in the ordinary
course of business of Borrower; (i) the entry of any final judgment
against Borrower for the payment of money in excess of $5,000; (j) the
levy upon or attachment of any assets of Borrower; (k) the recordation
of any federal, state or local tax lien against Borrower; or (l) a
change of ownership or dissolution, merger, consolidation, liquidation
or reorganization of Borrower.
8. REMEDIES. Upon a default, in addition to all other rights and remedies
available to the Lender under any other document or agreement between
Borrower and the Lender or under applicable law (including the Uniform
Commercial Code), the Lender, in his sole discretion and without notice
or demand, may: (a) raise the rate of interest accruing on the unpaid
balance due under this Promissory Note by two percentage points above
the rate of interest otherwise applicable, independent of whether the
Lender elects to accelerate the unpaid principal balance as a result of
such default; and (b) declare the entire unpaid principal balance plus
accrued interest and all other sums due hereunder immediately due and
payable. Borrower agrees that any notice required to be given under
applicable law or otherwise in connection with the Lender's exercise of
his remedies hereunder shall be deemed to be reasonable if given at
least five business days in advance at the address set forth below by
Borrower's signature. Borrower waives the benefit of any and every
statute, ordinance, or rule of court which may be lawfully waived
conferring upon Borrower any right or privilege of exemption, homestead
rights, stay of execution, or supplementary proceedings, or other
relief from the enforcement or immediate enforcement of a judgment or
related proceedings on a judgment.
9. INTEREST RATE AFTER JUDGMENT. If judgment is entered against Borrower
on this Promissory Note, the amount of the judgment entered (which may
include principal, interest, charges, fees, and expenses) shall bear
interest at the higher of the above described default interest rate as
determined on the date of the entry of the judgment, or the legal rate
of interest then applicable to judgments in the jurisdiction in which
judgment was entered.
2
<PAGE> 3
10. EXPENSES OF COLLECTION. Borrower shall pay all costs and expenses
incurred by the Lender in collecting sums due under this Promissory
Note, including without limitation the costs of any lien, judgment or
other record searches, appraisals, travel expenses and the like. In
addition, if this Promissory Note is referred to an attorney for
collection, whether or not suit has been filed, Borrower shall pay all
of the Lender's costs, fees (including, but not limited to, the
Lender's attorneys' fees, charges and expenses) and all other expenses
resulting from such referral.
11. NEGOTIABLE INSTRUMENT. Borrower agrees that this Promissory Note shall
be deemed to be a negotiable instrument, even though this Promissory
Note may not qualify under applicable law, absent this paragraph, as a
negotiable instrument.
12. WAIVERS. Borrower, and all parties to this Promissory Note, whether
maker, endorser or guarantor, waive presentment, demand, notice of
dishonor and protest.
13. EXTENSIONS OF MATURITY. All parties to this Promissory Note, whether
maker, endorser or guarantor, agree that the maturity of this
Promissory Note, or any payment due hereunder, may be extended at any
time or from time to time without releasing, discharging or affecting
the liability of such party.
14. NOTICES. Any notice or demand required or permitted by or in connection
with this Promissory Note, without implying the obligation to provide
any notice or demand, shall be in writing at the addresses set forth
below to such other address as may be hereafter specified by written
notice to the Lender by Borrower. Any such notice or demand shall be
deemed to be effective as of the date of hand delivery or facsimile
transmission, one day after dispatch if sent by telegram, mailgram,
overnight delivery, express mail or Federal Express, or three days
after mailing if sent by first class mail with postage prepaid.
15. ASSIGNABILITY. This Promissory Note may be assigned by the Lender or
any holder at any time.
16. JOINT AND SEVERAL LIABILITY. If more than one person or entity is
executing this Promissory Note as Borrower, all liabilities under this
Promissory Note shall be joint and several with respect to each of such
persons or entities.
17. BINDING NATURE. This Promissory Note shall inure to the benefit of and
be enforceable by Lender and his successors and assigns and any other
person to whom such Lender may grant an interest in Borrower's
obligations to the Lender, and shall be binding and enforceable against
Borrower and Borrower's personal representatives, successors and
assigns.
18. INVALIDITY OF ANY PART. If any provision or part of any provision of
this Promissory Note shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Promissory Note, and this Promissory Note shall be construed as if such
invalid, illegal or unenforceable provision or part thereof had never
been contained herein, but only to the extent of its invalidity,
illegality or unenforceability.
3
<PAGE> 4
19. MAXIMUM RATE OF INTEREST; COMMERCIAL LOAN. Notwithstanding any
provision of this Promissory Note to the contrary, Borrower shall not
be obligated to pay interest hereunder in excess of the maximum rate of
interest permitted by the laws of any state determined to govern this
Promissory Note or the laws of the United States applicable to loans in
such state. If any provision of this Promissory Note shall ever be
construed to require the payment of any amount of interest in excess of
that permitted by applicable law, then the interest to be paid
hereunder shall be held subject to reduction to the amount allowed
under applicable law, and any sums paid in excess of the interest rate
allowed by law shall be applied in reduction of the principal balance
outstanding under this Promissory Note. Borrower acknowledges that it
has been contemplated at all times by Borrower that the laws of the
State of Georgia will govern the maximum rate of interest that it is
permissible for the Lender to charge Borrower under this Promissory
Note. Borrower warrants that this Promissory Note evidences a loan made
solely to acquire or carry on a business or commercial purpose.
20. CHOICE OF LAW; CONSENT TO VENUE AND JURISDICTION. THIS PROMISSORY NOTE
SHALL BE GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA, EVEN IF THE GEORGIA RULES GOVERNING
CONFLICTS OF LAWS WOULD OTHERWISE REQUIRE THAT THE LAWS OF ANOTHER
JURISDICTION GOVERN THIS PROMISSORY NOTE. BORROWER CONSENTS TO THE
JURISDICTION AND VENUE OF THE COURTS OF ANY COUNTY IN THE STATE OF
GEORGIA OR TO THE JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF GEORGIA IN ANY ACTION OR JUDICIAL PROCEEDING
BROUGHT TO ENFORCE, CONSTRUE OR INTERPRET THIS PROMISSORY NOTE.
21. UNCONDITIONAL OBLIGATIONS. Borrower's obligations under this Promissory
Note shall be the absolute and unconditional duties and obligations of
Borrower and shall be independent of any rights of set-off, recoupment
or counterclaim which Borrower might otherwise have against the Lender,
and Borrower shall pay absolutely the payments of principal, interest,
fees, charges and expenses hereunder, free of any deductions and
without abatement, diminution or set-off.
22. ACTIONS AGAINST LENDER. Any action brought by Borrower against any
Lender which is based, directly or indirectly, or in whole or in part,
upon this Promissory Note or any matter related to this Promissory Note
shall be brought only in the courts of the State of Georgia
23. TIME IS OF THE ESSENCE. Time is of the essence in the payment and
performance of this Promissory Note.
24. WAIVER OF JURY TRIAL. BORROWER (BY EXECUTION OF THIS PROMISSORY NOTE)
AND LENDER (BY ACCEPTANCE OF THIS PROMISSORY NOTE) AGREE THAT ANY SUIT,
ACTION, OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY BORROWER OR THE LENDER ON OR WITH RESPECT TO THIS
PROMISSORY NOTE OR WHICH IN ANY WAY RELATES, DIRECTLY OR INDIRECTLY, TO
THE OBLIGATIONS OF BORROWER TO THE LENDER UNDER THIS PROMISSORY NOTE,
OR THE DEALINGS OF THE PARTIES WITH RESPECT THERETO, SHALL BE TRIED
ONLY BY A COURT AND NOT BY A JURY. BORROWER (BY EXECUTION OF THIS
PROMISSORY NOTE) AND LENDER (BY ACCEPTANCE OF THIS PROMISSORY NOTE)
HEREBY EACH EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH
SUIT, ACTION, OR
4
<PAGE> 5
PROCEEDING. BORROWER (BY EXECUTION OF THIS PROMISSORY NOTE) AND LENDER
(BY ACCEPTANCE OF THIS PROMISSORY NOTE) ACKNOWLEDGE AND AGREE THAT THIS
PROVISION IS A SPECIFIC AND MATERIAL ASPECT OF THE AGREEMENT BETWEEN
THE PARTIES AND THAT THE LENDER WOULD NOT ENTER INTO THE TRANSACTION
WITH BORROWER IF THIS PROVISION WERE NOT A PART OF THEIR AGREEMENT.
[Remainder of page left intentionally blank.]
5
<PAGE> 6
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned hereby executes this Promissory Note under seal, as Borrower, as of
the date first written above.
WITNESS/ATTEST*: Maxxis Group, Inc.
----------------------------------------
1901 Montreal Road, Suite 108
----------------------------------------
(Street Address)
Tucker, Georgia 30084
----------------------------------------
(City-State-Zip)
(770) 552-4766 (770) 552-8471
----------------------------------------
(Telephone) (Facsimile)
/s/ Terresa R. Tarpley By: /s/ Daniel McDonough (SEAL)
- ----------------------------------- ------------------------------
(Authorized Signature)
Terresa R. Tarpley Daniel McDonough, CFO
- ----------------------------------- ----------------------------------------
(Print Name) (Print Name and Title)
<PAGE> 1
EXHIBIT 21.1
Subsidiaries of the Company
Maxxis 2000, Inc.
Maxxis Telecom, Inc.
Maxxis Nutritional, Inc.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
(and all references to our firm) included in or made part of this registration
statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
March 4, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE ISSUER'S
UNAUDITED INTERIM FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED DECEMBER 31,
1997, SET FORTH IN THE ACCOMPANYING REGISTRATION STATEMENT AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-START> JUL-01-1997
<PERIOD-END> DEC-31-1997
<EXCHANGE-RATE> 1.0
<CASH> 129,000
<SECURITIES> 10,000
<RECEIVABLES> 204,000
<ALLOWANCES> 0
<INVENTORY> 184,000
<CURRENT-ASSETS> 563,000
<PP&E> 192,000
<DEPRECIATION> 26,000
<TOTAL-ASSETS> 908,000
<CURRENT-LIABILITIES> 696,000
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 212,000
<TOTAL-LIABILITY-AND-EQUITY> 908,000
<SALES> 3,444,000
<TOTAL-REVENUES> 3,444,000
<CGS> 1,173,000
<TOTAL-COSTS> 3,610,000
<OTHER-EXPENSES> 2,437,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,000
<INCOME-PRETAX> (168,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (168,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (168,000)
<EPS-PRIMARY> (0.11)
<EPS-DILUTED> (0.11)
</TABLE>
