SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDED FORM 10-SB
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GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant To Section 12(b) or (g) of the Securities Exchange Act of 1934
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MarketCentral.net Corp
formerly, All American Consultant Aircraft, Inc.
formerly, Great American Leasing, Inc.
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Texas 76-0270330
(Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
300 Mercer Street, Suite 26J New York NY 10003 10003
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (877) 257-3607
The following Securities are to be registered pursuant to Section 12(g)/12(b) of
the Act:
Class-A Common Voting Equity Stock
3,991,900
The EXHIBIT INDEX is located at pages 26 of this Registration Statement
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PART I
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Item 1. Description of Business.
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(a) Business Development.
(1) Corporate Name. This Corporation MarketCentral.net Corp. (sometimes
hereinafter referred to as the "Company" or the "Issuer"), formerly All American
Consultant Aircraft, Inc. was first incorporated in the State of Texas on
December 28, 1988 as Great American Leasing, Inc. The first name change occurred
on or about March 21, 1997. The most recent and current name change occurred on
or about March 1, 1999. MarketCentral.Net Corp. is also the name of this
Issuer's wholly-owned Delaware subsidiary. Please note the subtle difference in
the spelling of the two corporate names.
(2) Security Organization. On December 28, 1988 the Issuer made its initial
issuance of 180,000 Common Shares for organizational services of $1,000. On or
about April 8, 1997, the Issuer made a Limited Offering, pursuant to Regulation
D, Rule 504, as promulgated by the Securities and Exchange Commission, pursuant
to the Securities Act of 1933 ("the Act"). The Offering closed on May 8, 1997,
100,000 shares having been placed at $1.00 per share. On or about May 22, 1998,
the Issuer made a Limited Offering, pursuant to Rule 504. The Offering closed on
May 22, 1998, 2,900 shares having been placed at $1.00 per share. On or about
July 1, 1998, the Issuer made a Limited Offering, pursuant to Regulation D, Rule
504. The Offering closed on July 1, 1998, 84,000 shares having been placed at
$0.10 per share. As a result of the foregoing the Issuer had 366,900 shares
issued and outstanding. On or about January 5, 1999, the Issuer placed an
additional 1,600,000 shares at $0.025 per share, also pursuant to Regulation D,
Rule 504, with the resulting total 1,966,900 issued and outstanding. On or about
February 21, 1999 the Issuer agreed to issue and reserved for issuance 2,025,000
shares pursuant to ss.4(2) of the Act, in reliance on Rule 145, to the
shareholders of the acquired corporation in exchange for shares of that target
corporation, for the reorganization and acquisition of MarketCentral.Net Corp. a
Delaware corporation. Rule 145 provides that securities issued in exchange for
securities of an acquired corporation are new securities, subject to ss.5 of the
1933 Act, and eliminates the former "no-sale" doctrine. It then provides a safe
harbor for such issuance to the effect that such securities be deemed issued
pursuant to ss.4(2) of the Act, and are, accordingly, restricted securities, as
defined by Rule 144(a), issued for investment and not for resale. On March 1,
1999 the Issuer changed its name to its present name which is that of its
acquired business.
As more fully described later in this registration statement, this Issuer,
then All American Consultant Aircraft acquired the target company
MarketCentral.Net Corp. in a reverse acquisition. A reverse acquisition is the
acquisition of a private company by a public company, by which the private
company's shareholders acquired control of the public company. At the time of
the reverse acquisition the Issuer was a development stage issuer with no
significant assets, liabilities or business or financial resources. Such an
issuer is sometimes called a "shell company". The target company, also in the
development stage, was a private corporation with an active business and some
initial operations.
This Issuer is presently committed to the development of the business of
its acquired business. While this Issuer is continuously interested in
opportunities for direct acquisition of other assets which may have synergy with
its existing developmental projects, this Issuer may no longer be used as a
vehicle for a further reverse acquisition, and is no longer a "shell company" by
reason of it acquisition of MarketCentral.net Corp.
The purpose of the acquisition of MarketCentral.Net Corp. by All American
Consultant Aircraft (this Issuer) was to effect a business combination for the
benefit of shareholders, by the acquisition for stock of an attractive business
in development stage.
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MarketCentral.net Corp., a private New York Corporation merged with and
into MarketCentral.Net Corp., a newly formed private Delaware Corporation;
following which merger of the target company, this Issuer, having changed its
name to MarketCentral.net Corp. (the public Texas Corporation), acquired the
Delaware company as a wholly-owned subsidiary.
J. Dan Sifford having resigned as Director and President, and Mr.
Yakimishyn having assumed the Presidency of the Corporation as Sole Interim
Officer and Director, and a Majority Shareholder Action having been taken, and
GERALD YAKIMISHYN, ROY SPECTORMAN, and JERRY KAPLAN having been elected
Directors. The acquisition and reorganization was accomplished in the following
manner:
(i) That certain MERGER AGREEMENT AND PLAN OF ACQUISITION AND
REORGANIZATION, dated February 5, 1999, was ratified, approved and
adopted.
(ii) The Officers were empowered and Directed to change the name of this
Texas Corporation (All American Consultant Aircraft, Inc.) to
MarketCentral.net Corp.
(iii) The agreement, by which Meridian Mercantile, Inc. would employ its
best efforts to raise a minimum of $3,000,000 of capital for the
reorganized corporation following the subsidiary merger, was ratified,
approved and adopted.
(iv) The "Meridian Mercantile, Inc. Subscription Agreement" for the
purchase of an aggregate of up to 56,014 shares of All American Common
Stock over a 24 month period at a purchase price of $5.57 per share
pursuant to the terms thereof, as set forth on Schedule 1.3(vi) of MERGER
AGREEMENT was ratified, approved and adopted.
(v) The granting of an aggregate of 400,000 five-year options to purchase
All American Common Stock at an exercise price equal to Five Dollars U.S.
($5.00) per share, in favor of certain persons as set forth on Schedule
1.3(vi) of MERGER AGREEMENT, was ratified, approved and adopted.
The issuances by series referred to previously are displayed in the
following table. The reference to Series of Common Stock is for descriptive
purposes only. Please see ITEM C. DESCRIPTION OF SECURITIES.
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SERIES #/EXEMPTION Issuances
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1. ss.4(2)
for services valued at $1,000 180,000
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2. ss.504
April 18, 1997-May 8, 1997 100,000
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*3. ss.504 2,900
May 22, 1998
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4. ss.504 84,000
July 1, 1998
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5. ss.504 1,600,000
January 5, 1999
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6. ss.4(2) 2,025,000
for acquisition
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Issued and Outstanding 3,991,900
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(3) Bankruptcy, Receivership or Similar Proceeding. None from inception to
date.
(b) Business of the Issuer. The web site acquired by the Issuer has been on-line
since March of 1997, before the private incorporation of MarketCentral.net
Corp., the original private New York Corporation, and before the acquisition by
this Issuer. The operation began as a partnership until its incorporation in New
York.
(1) Principal Products or Services and their Markets. MarketCentral.net
Corp. provides financial products and services on the World Wide Web on a
web site located at (http://www.marketcentral.net). The site provides
comprehensive investment tools for the individual investor including
investment newsletters, timely financial news and information, mutual fund
information, World Markets, a proprietary investment guide,
MarketCentral.net Corp.'s own newsletter, online investment bookstore, chat
rooms, contests and a full service shopping mall. The mall includes such
brand names as Avon, Brookstone, Music Boulevard, Reel.com,
Fashionmall.com, FAO Schwartz, E-Toys and Swiss Army Depot.
MarketCentral.net Corp. is currently earning nominal revenues, primarily
from the sale of advertising on its web site. Revenues of $1,149 were
earned for the three months ended March 31, 1999. The Company expects to
earn additional revenues through a variety of means, including sales of
advertising to other financial sites and financial services firms, through
affiliate agreements providing overrides on products and services sold
through MarketCentral.net Corp. and from sales from our bookstore
affiliation with Traders Press. In addition, the Market Mall consists of
numerous stores that MarketCentral.net Corp. has entered into affiliate
agreements with. Each of those stores will pay MarketCentral.net Corp. a
commission on the sales generated through the MarketCentral.net Corp. site.
MarketCentral.net Corp. will also be developing a Financial Newsletter in
the next year that will be a paid subscription newsletter. The newsletter
will be marketed to current MarketCentral.net Corp. members and throughout
various online outlets on the internet.
Current revenues are nominal but are expected to increase as site traffic
increases. This will most likely occur as a result of additional promotion
and advertising efforts to build traffic levels on the MarketCentral.net
Corp. site. The Company expects to seek additional capital through a
secondary financial offering expected to occur within the next 12 months,
to fund the site expansion and promotion, and to sustain the company during
the period, until profitability is achieved.
(2) Distribution Methods of the products or services. MarketCentral.net
Corp. began promoting the web site through a variety of online and
traditional media sources at the end of the first quarter of 1999.
Currently, the Issuer is in the development stage and is adding to content
and receiving numerous offers to join affiliate commission programs. The
Issuer expects revenues to increase as a result of additional traffic to
the MarketCentral.net Corp. site. This will occur mainly as a result of an
aggressive promotional campaign funded through a secondary financing. The
Issuer expects such funding to be accomplished within the next 12 months.
MarketCentral.net has received numerous industry awards for valuable
content, superior website design and excellent navigational features
including Snap.com Editors Designation. The site is designed to appeal to
an upscale audience of investors and consumers looking for financial
information, investment products and related services. MarketCentral.net
Corp. expects to use the funds from secondary financing to create a World
Class internet site featuring the finest investment information and tools
available to the individual investor. The site will feature state-of-
the-art E-commerce throughout the site and in the Market Mall.
MarketCentral.net Corp. appeals
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to well established advertisers looking to reach the upscale audience of
investors and consumers who are attracted to MarketCentral.net's content
and exciting format.
The Company will reach its potential audience of investors and income
consumers by promoting its site via publications with demographics similar
to its own market target, as well as engaging in reciprocal beneficial
business venues. The Company's public relations will be geared towards
contacting editors of publications interested in the Company's unique site.
Advertising efforts will be focused on those publications which will reach
the highest concentration of investors and upscale consumers. The Company
has also launched an affiliate program for other commercial sites to
display the MarketCentral.net Corp. banner.
(3) Status of any publicly announced new product or service.
MarketCentral.net Corp. also owns and is developing SportCentral.net and
WeatherCentral.net. The Issuer expects to develop SportsCentral.net and
WeatherCentral.net over the next 12 months. Revenues are expected to begin
shortly thereafter as the Company completes a secondary financing. The
Issuer anticipates the cost to develop these sites at $10,000.00 per site,
to be funded by Meridian Mercantile Corp.'s Level One funding, as disclosed
in Exhibit 6.1. Revenues will be derived from advertising sales and
merchandise sales from affiliate sports and related programs. It is also
expected that traffic generated from SportsCentral.net and
WeatherCentral.net will benefit MarketCentral.net Corp. Mall and Financial
Products and Services for sale through our referral of visitors from these
related sites to the MarketCentral.net Corp. financial site.
(4) Competitive business conditions and the small business issuer's
competitive position in the industry. Competition amongst companies
providing business and related information on the internet is intense and
may be expected to intensify. Management, in relying to some extent on
others, cannot control the ultimate result of the venture or assure itself
or its investors that the project will be successful. There are many
financial services sites on the internet. Some provide primarily financial
data or promote a specific company while there are other sites that promote
products or services such as a newsletters, investment software or
brokerage services. The MarketCentral.net web site's primary focus is as a
gateway site to these other financial services sites. While the Issuer's
financial information is comprehensive, its audience will be able to reach
many of the other quality sites through the MarketCentral.net web site.
Many of the other financial sites will want to reach MarketCentral.net
Corp.'s audience and will advertise on the MarketCentral.net web site and
want this web site to be a reseller of their products and services. The
MarketCentral.net web site has also broadened the scope of a financial
services site by adding a comprehensive Information Services Area to
include entertainment, travel, reference, etc. and a full service shopping
mall called the Market Mall. The MarketCentral.net web site also features
"live" chat rooms and an extensive contest area adding to the entertainment
value of MarketCentral.net web site. Therefore, the MarketCentral.net web
site is designed to inform, educate and entertain its visitors. In the
event the markets fall for an extended period, the Issuer believes that its
web site will continue to attract visitors. Other highly specialized sites
that are limited to only highly specialized financial information will not
continue to attract the same number of visitors as weak markets lessen the
number of individuals interested in investment information. The
MarketCentral.net web site presents financial information that is both
useful and easy to understand for all levels of investor sophistication.
Many of the competing financial services sites are beginning to charge a
fee for information and services. Because the Issuer is focusing on
advertising revenues rather than subscriptions, the Issuer expects to be
able to keep the MarketCentral.net web site a free site and thus remain
extremely competitive on a price basis. The Issuer is in development of a
proprietary financial newsletter and investment guide that will be
promotable throughout the internet and which will be a pay-for-subscription
newsletter. The newsletter will be an interactive, easy to understand,
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comprehensive guide to investing. The investment guide will be an adjunct
to the newsletter explaining all the key concepts and market strategies
used in the newsletter. This product, in addition to the free site will
broaden MarketCentral.net Corp.'s revenue base without limiting the number
of visitors coming to the MarketCentral.net web site. Because the
MarketCentral.net web site is a gateway site, many other sites are willing
to have the MarketCentral.net web site link to their content for free as
the Issuer's site brings the other sites additional traffic. The Issuer has
attracted other newsletter writers to provide content to the
MarketCentral.net web site including noted financial analyst Rick Eakle,
Investors Diary, Go2Net's Daily Stock Report and Bob Bose's Weekly Market
Updates, among others. MarketCentral.net Corp. also made arrangements with
impressive financial information sources including Zacks for free research,
BigCharts for free quotes and charts, Vector Vest for free stock analysis
and Reuters for market news. Some of these sources have also contracted the
Issuer to either sell their products or advertise on the MarketCentral.net
site. As the Issuer grows in popularity it will be able to expand the
information provided from third party sources and increase its revenue
potential by selling additional products, services and advertising to these
companies.
MarketCentral.net Corp. has spent considerable time and effort designing
the site for ease of use and navigation. Because the MarketCentral.net web
site is comprehensive, the format and design of the site is a significant
accomplishment allowing investors to easily go from one MarketCentral.net
web site area to any other MarketCentral.net web site area easily and
conveniently. All MarketCentral.net web site key areas contain full
toolbars and other navigational tools that are attractive and helpful to
all internet users. Overall, MarketCentral.net web site will become the
first place to visit for many investors looking for financial information
on the internet. The Information Services area features links to the best
quotes and news, investment information, personal financial and small
business sites on the internet, all of which gives investors a convenient
array of information in one location within the MarketCentral.net web site.
The site's easy to understand format, free and comprehensive information,
educational content, investment bookstore and easy access to other
financial sites makes MarketCentral.net web site a valuable resource on the
internet.
MarketCentral.net Corp. has registered the use of the URL designations
SportsCentral.net and WeatherCentral.net. There is a natural synergy
between financial, sports and weather news. The Issuer plans to develop the
three sites and incorporate them into a main site at some future time. This
will increase the depth and marketability of the MarketCentral.net web site
(5) Sources of and availability of raw Materials and the names of principal
suppliers. Creative Web of Little Falls, New Jersey is the "web master"
provider for the sites of this Issuer. There are many competitive providers
of such services should the relationship with Creative Web become
unavailable or non-competitive with the industry generally.
(6) Dependance on one or a few major customers. Presently, in the
development stage, the Company has a few advertising contracts and
affiliate site arrangements. As business grows, the number of such
relationships is expected to increase.
(7) Patents, Trademarks, licenses, franchises, concessions, royalty
agreements or labor contracts. The site names MarketCentral.net Corp.,
SportCentral.net, WeatherCentral.net, MarketCentral.com, Mkt-Ctl.com are
proprietary.
(8) Government approval of principal products or services and status:
Government Regulation and Legal Uncertainty Relating to the Web. There are
currently few laws or regulations that specifically regulate communications
or commerce on the Web. However, laws and regulations may be adopted in the
future that address issues such as user privacy, pricing, and the
characteristics and quality of products and services. It may take years to
determine the extent to which existing laws relating to issues such as
property ownership, libel and personal privacy are applicable to the Web.
Any new laws or regulations relating to the Web could adversely affect the
Company's business.
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(9) Effect of existing or probable governmental regulations on the
business. None at this time.
(10) Estimate of amount spent on research and development in each of last
two years. Management reports that approximately $175,000 has been spent on
Research and Development in the past two years, however, the major portion
of this investment by founders was made before the first incorporation of
the business, and was made at a time when the business was conducted as a
partnership, and as such may not be reflected directly as financial items
of the corporate financial statements, but as items personal to the
founders.
(11) Costs and effects of compliance with environmental laws. None at this
time.
(12) Number of total employees and full-time employees. None.
(13) Year 2000 compliance issues. The Issuer does not own or operate the
actual computers that provide its web sites to users. That service is
provided by its "Web Master" Creative Web of Little Falls, New Jersey. The
Web Master is investigating its year 2000 compliance and its report is
expected. Should the Web Master fail to report satisfactorily, the Company
will switch to another service that is year 2000 compliant.
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Item 2. Managements Discussion and Analysis or Plan of Operation.
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(a) Plan of Operation.
(1) Plan of Operation for the next twelve months
(i) Cash Requirements and of Need for additional funds, twelve months.
There can be no assurance that the Issuer will not exhaust its present
cash before the end of calendar year 1999. The Issuer has divided its
cash requirement into two levels. Level One, the basic operational
level is provided by an agreement and subscription receivable which
funds the Issuer a total of $312,000 at $13,000.00 monthly (note that
the $13,000 monthly payment is scheduled to be paid for a total of
twenty-four months). This level of funding is sufficient to keep the
Issuer in operation for the next twelve months This is the only firm
commitment the Issuer has for funding. Meridian Mercantile, an
affiliate of the Issuer, has agreed to this funding, as disclosed in
Exhibit 6.1.
Level Two is the level of funding necessary for aggressive site
promotion and expansion and growth of the business. This level of
funding must be provided by secondary capital formation efforts. The
Merger Agreement mentions that the company will retain Meridian
Mercantile to raise an additional investment of a minimum of
$3,000,000 on a best efforts basis, no agreement has been reached as
to the consideration to paid to Meridian for such performance.
Accordingly, no present reliance is placed upon that specific program.
The MarketCentral.net web site has received numerous industry awards
for valuable content, superior website design and excellent
navigational features including the Snap.com Editors Designation. The
site is designed to appeal to an upscale audience of investors and
consumers looking for financial information, investment products and
related services.
Level Two funding may be achieved by an offering of securities
pursuant to a 1933 Act Registered offering; or Level Two funding may
be achieved by limited offerings pursuant to Regulation D, Rules 505
and/or 506. The Issuer believes that the Company's program is
sufficiently promising to attract the modest amounts of Level Two
funding required. If successful, this Level Two funding will provide
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ample cash to meet the requirements of the business for expansion,
growth and aggressive site promotion. However, there is no assurance
to be given that this additional financing will be completed.
MarketCentral.net Corp. expects to use the funds from secondary
financing to create a World Class internet site featuring the finest
investment information and tools available to the individual investor.
The site will feature state-of-the-art E-commerce throughout the site
and in the Market Mall. The Issuer believes that its MarketCentral.net
web site appeals to well established advertisers looking to reach the
upscale audience of investors and consumers who are attracted to the
MarketCentral.net web site's content and exciting format.
MarketCentral.net Corp. plans to aggressively promote the site
throughout a variety of online and traditional media sources.
(ii) Summary of Product Research and Development. MarketCentral.net
Corp.'s online shopping mall, called the Market Mall, can be promoted
as a separate site and is unique in the content and entertainment
provided.
(iii) Expected purchase or sale of plant and significant equipment.
MarketCentral.net Corp. intends to build an internet based store to
sell its own proprietary products and services. Beyond the proprietary
newsletter and other investment products, the Issuer will sell novelty
items, gift items and other specialty items as they become available.
The store will be available for co-branding through other sites
throughout the internet. There is no assurance that the Issuer will be
successful in any of these endeavors. The Issuer has no other plans
for the purchase or sale of significant business plant or equipment.
(iv) Expected significant change in the number of employees. None at
this time. It is forseeable over time that employees will be needed.
The number of employees that may be needed in the next twelve months
is speculative only at this time.
(2) Discussion and Analysis of Financial Condition and Results of Operations
(i) Financial Condition. This small business Issuer's financial
condition is adequate for its present purposes, as discussed above, by
agreements to provide incremental funding over time. There is no
apparent need for additional funds or cash foreseeable at this time,
to continue for the next twelve months, provided that the Issuer's
arrangements for funding proceed as agreed and expected. The funding
arrangements referred to are documented in that CERTAIN STOCK
SUBSCRIPTION AGREEMENT attached as EXHIBIT 5 hereto. That agreement
provides, in relevant part, that Meridian Mercantile, Inc., an
affiliate of the Issuer, subscribed for the purchase of 56,014 shares
of common stock in consideration of the sum of $312,000.00, payable on
or before two years from February 5, 1999, with a minimum payment of
$13,000.00 per month payable over 24 consecutive months.
(ii) Results of Operation. This small business Issuer has had limited
significant operations to date. It has some small revenues from
advertising contracts and affiliate site arrangements. It is not
presently operating at or near a profitable level. Profitability will
require aggressive site promotion and growth of site-services offered
to users. There is no assurance that the Issuer will ever operate at
or near a profitable level.
(iii) Possible Acquisition Target. While no definitive agreement has
been reached, this Issuer is engaged in talks to acquire an on-line
trading site, by joint-venture with, or possible acquisition of, an
existing provider. This plan, should a target be identified with
probability, would involve the complexity of Broker-Dealer compliance
and related issues which make this program somewhat speculative as of
the date of this report.
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Unnumbered Additional Item. Risk Factors.
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Prospective investors and other interested persons should carefully
consider, among other factors set forth in this report, the following:
Limited Operating History. Since the Issuer has had limited operations to date
with respect to its current business operation, its operations are subject to
all the risks and difficulties encountered by early stage companies, especially
in new and rapidly evolving markets such as Internet markets. The likelihood of
success of the Issuer, therefore, must be considered in light of the problems,
expenses, difficulties, complications and delays frequently encountered with the
start of a new business, including the ability to attract a larger audience to
the Issuer's website, establishing the Issuer's reputation as a major and
trusted source of financial and other general information on the Web,
establishing strategic relationships, responding effectively to competitive
pressures and attract, retain and motivate qualified personnel. The Issuer
cannot assure that its business strategy will be successful or that it will
successfully address these risks.
Limited Capitalization; Need for Additional Financing. The Issuer has limited
capital resources to conduct operations for more than a limited period of time,
or to achieve profitability. As such, the Issuer may need to raise funds for
rapid expansion, to develop new or enhance existing services or products or to
respond to competitive pressures. If additional funds are raised through the
issuance of equity or convertible debt securities, the percentage ownership of
the Issuer's stockholders will be reduced and such securities may have rights,
preferences or privileges senior to those of the Issuer's stockholders. The
Issuer cannot be assured that additional capital will be available when needed,
on the terms favorable to the Issuer or how the cost of financing will impact
profitability. However, if adequate funds are not available or are not available
on acceptable terms, the Issuer's ability to fund expansion, take advantage of
unanticipated opportunities, develop or enhance services or products or
otherwise respond to competitive pressures would be significantly limited. The
Issuer's business, results of operation and financial condition could be
materially adversely affected by such limitation.
Speculative Nature of the Issuer's Operations. The Issuer's operations have been
partly planned and commenced, but remain somewhat speculative in nature and are
not sufficiently established to provide any guarantee that operations will
ultimately result as planned or projected.
Competition. Many Web sites compete for consumers' and advertisers' attention
and spending, particularly in the corporate, business and financial information
and news area. The Issuer expects this competition to continue and increase,
which could have a materially negative effect on the Issuer's revenue. In
addition, the Issuer's web site specifically, must compete with traditional
advertising media, such as print, radio and television, for a share of
advertisers' total advertising budgets. As such, revenue will be lost if the web
site is not perceived as an effective advertising medium. Thus, there can be no
assurance that the Issuer will be able to successfully compete against current
and future competition, or that competition will not have a material adverse
effect on the Issuer's business, results of operation and financial condition.
History of Losses and Anticipation of Continued Losses. The Issuer has incurred
net losses since inception and expects to continue to incur operating losses for
the foreseeable future. The Issuer expects to continue to incur significant
operating and capital expenditures and, as a result, will need to generate
significant revenues to achieve and maintain profitability. If revenues grow
slower than anticipated, or if operating expenses exceed expectations or cannot
be adjusted accordingly, the Issuer's business, results of operations and
financial condition will be materially and adversely affected.
The Issuer May Not Be Successful in Establishing Brand Awareness. The Issuer's
future success will depend, in part, on the ability to increase the brand
awareness of the MarketCentral.net web site. In order to build the brand
awareness, the Issuer must succeed in marketing efforts and increase traffic to
the MarketCentral.net web site. The Issuer intends to substantially expand sales
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and marketing efforts as part of the brand-building efforts. The ability to
increase advertising revenues will depend in part on the Issuer's ability to
increase the number of users who visit the MarketCentral.net web site. If the
marketing efforts are unsuccessful, or if these efforts cannot increase the
brand awareness, then the business, financial condition and results of
operations would be materially adversely affected.
The Issuer May Not Be Successful in Developing New and Enhanced Services and
features for the web site. MarketCentral.net Corp.'s market is characterized by
rapidly changing technologies, evolving industry standards, frequent new product
and service introductions and changing customer demands. To be successful, the
Issuer must adapt to our rapidly changing market by continually enhancing our
existing services and adding new services to address customers' changing
demands.
The Issuer is Dependent on the Continued Growth of the Emerging Market for
Online Business and Financial Information. The success of the Issuer's business
will depend on the growing use of the Internet for the dissemination of business
and financial information. The number of individuals and institutions that use
the Internet as a primary source of business and financial information may not
continue to grow. The market for the distribution of business and financial
information over the Internet has only recently begun to develop, is rapidly
evolving and is characterized by an increasing number of market entrants. As is
typical of a rapidly evolving industry, demand and market acceptance for new
services are subject to a high level of uncertainty. Because the market for the
Issuer's products and services is new and rapidly evolving, it is difficult to
predict with any certainty what the growth rate, if any, and the ultimate size
of this market will be. The Issuer cannot be certain that the market for its
services will continue to develop or that the services will ever achieve a
significant level of market acceptance. If the market fails to continue to
develop, or develops more slowly than expected or becomes saturated with
competitors, or if the services do not achieve significant market acceptance,
the business, results of operations and financial condition would be materially
and adversely affected.
Government Regulation and Legal Uncertainty Relating to the Web. There are
currently few laws or regulations that specifically regulate communications or
commerce on the Web. However, laws and regulations may be adopted in the future
that address issues such as user privacy, pricing, and the characteristics and
quality of products and services. It may take years to determine the extent to
which existing laws relating to issues such as property ownership, libel and
personal privacy are applicable to the Web. Any new laws or regulations relating
to the Web could adversely affect the Issuer's business.
Liability for Information Displayed on the Issuer's Website. The Issuer may be
subjected to claims for defamation, negligence, copyright or trademark
infringement or based on other theories relating to the information the Issuer
publishes on its Web site. These types of claims have been brought, sometimes
successfully, against online services as well as other print publications in the
past. The Issuer could also be subjected to claims based upon the content that
is accessible from its Web site through links to other Web sites. The Issuer's
insurance may not adequately protect it against these types of claims.
Dependence on Key Personnel. The future success of the Issuer depends to a
significant extent on the continued services of Roy Spectorman, its President.
The loss of the services of Mr. Spectorman or any other key officer or director
would likely have a material adverse effect on the business, results of
operations and financial condition. In addition, the Issuer's future success
depends on its ability to attract, retain and motivate highly skilled employees.
Competition for personnel throughout the industry is intense. The Issuer may be
unable to retain its key officers or directors or attract, assimilate or retain
highly qualified employees in the future. If the Issuer does not succeed in
attracting new personnel or retaining and motivating its current personnel, its
business will be adversely affected.
Industry and Economic Factors. The Internet industry in which the Issuer
operates is subject to constant changes based upon changes in public taste,
10
<PAGE>
conditions of the general market and other factors outside the Issuer's control.
For instance, Web usage may be inhibited due to inadequate network
infrastructure, security concerns, inconsistent quality of service or
availability of cost-effective, high-speed service. If such occurs, the Issuer's
Web site could grow more slowly or completely decline. Additionally, otherwise
successfully marketed projects may fail or falter if availability of the product
is insufficient to meet public demand, due to labor unrest, natural disaster or
unforeseen failure of suppliers. All such factors beyond the control of the
Issuer or those on whom it intends to rely on could cause the Issuer's marketing
program to fail.
Control of the Issuer. The Officers, Directors and Principal Shareholders of the
Issuer own and will continue to own a significant voting majority of the Common
Shares of the Issuer. This "Control Group", therefore, does and will either
control or significantly influence voting control of the Issuer. Consequently,
Texas law allows a majority of shareholders entitled to vote at any regularly
called shareholders meeting to act, as a majority, without notice or meeting,
giving notice to other shareholders only after such action may have been taken.
As such, investors and other interested persons must understand that the Control
Group thus commands a voting majority in control of the Issuer, subject to
certain limits imposed by Texas law.
Dividends. The Issuer has never declared or paid any dividends on its capital
stock and does not anticipate paying any dividend on its capital stock in the
foreseeable future. The Issuer may also incur indebtedness in the future which
may prohibit or effectively restrict the payment of dividends, although the
Issuer has no current plans to do so.
- --------------------------------------------------------------------------------
Item 3. Description of Property.
- --------------------------------------------------------------------------------
The Issuer has no property and enjoys the non-exclusive use of offices and
telephone of its officers and attorneys. This Issuer's principal offices are
located at 300 Mercer Street, Suite 26J, New York NY 10003. Its telephone number
is (877) 257-3607. The Issuer has no employees at this time.
- --------------------------------------------------------------------------------
Item 4.
Security Ownership of Certain Beneficial Owners and Management.
- --------------------------------------------------------------------------------
(a) Security Ownership of Certain Beneficial Owners. To the best of Registrant's
knowledge and belief the following disclosure presents the total security
ownership of all persons, entities and groups, known to or discoverable by
Registrant, to be the beneficial owner or owners of more than five percent of
any voting class of Registrant's stock. More than one person, entity or group
could be beneficially interested in the same securities, so that the total of
all percentages may accordingly exceed one hundred percent of some or any
classes. Please refer to explanatory notes if any, for clarification or
additional information. The Issuer has only one class of stock; namely Common
Stock.
(b) Security Ownership of Management. To the best of Registrant's knowledge and
belief the following disclosure presents the total beneficial security ownership
of all Directors and Nominees, naming them, and by all Officers and Directors as
a group, without naming them, of Registrant, known to or discoverable by
Registrant. More than one person, entity or group could be beneficially
interested in the same securities, so that the total of all percentages may
accordingly exceed one hundred percent of some or any classes. Please note that
the column "Attributed Shares" shows that certain shareholders are related and
that the shares of each are attributed to the others. This means that each
member of each group is treated as the owner of all of the shares of that group,
for purposes of determining the 5% threshold for disclosure, and the 10%
threshold for affiliation. Please refer to explanatory notes for clarification
of the attribution of share ownership.
11
<PAGE>
Table A following discloses the share ownership actually issued and the
attribution of shares among and between related shareholder family groups, (1)
the Yakimishyn group, and (2) the Evanshen group.
Table B following Table A and its notes, discloses the existence and
the effect of certain management options, as if exercised, on the share
ownership of management and affiliates.
<TABLE>
TABLE A
OFFICERS AND DIRECTORS AND OWNERS OF 5% OR MORE
<CAPTION>
================================================================================================================================
Name and Address of Beneficial Owner Actual % Attributed %
Shares Shares
- - --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Roy Spectorman, President/Director 794,813 19.91 794,813
300 Mercer Street, Suite 26J
New York NY 1003
- - --------------------------------------------------------------------------------------------------------------------------------
Gerald Yakimishyn (1) Secretary-Treasurer/Director 57,500 1.44 270,500 6.78
11270 Chalet Road
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------------------------------------------
Jerry Kaplan Director 198,703 19.91 794,812
300 Mercer Street, Suite 26J
New York NY 1003
- - --------------------------------------------------------------------------------------------------------------------------------
Peter Waters Marketing And Site Promotion 389,813 9.77 389,813
300 Mercer Street, Suite 26J
New York NY 1003
================================================================================================================================
Officers and Directors as a Group 2,036,938 51.03 2,249,938 56.36
================================================================================================================================
G.S.M.Y. Developments Ltd. (1) 100,000 2.51
11270 Chalet Road
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------
Sharon Yakimishyn (1) 62,000 1.55
11270 Chalet Road
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------
Troy Yakimishyn (1) 17,000 0.43
11270 Chalet Road 270,500 6.78
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------
Travis Yakimishyn (1) 17,000 0.43
11270 Chalet Road
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------
Alysha Yakimishyn (1) 17,000 0.43
11270 Chalet Road
Sidney, B.C. Canada V8L 5M1
- - --------------------------------------------------------------------------------------------------------------------------------
Frank Evanshen (2) 150,000 3.76
3710 Southridge Place
West Vancouver, B.C. Canada V7Y 3H8
- - --------------------------------------------------------------------------------------------
Molly Evanshen (2) 150,000 3.76
3710 Southridge Place
West Vancouver, B.C. Canada V7Y 3H8
- - --------------------------------------------------------------------------------------------
Meridian Mercantile Inc. (2) 100,000 2.51
#1407 - 650 W. Georgia Street 505,000 12.65
Vancouver, B.C. Canada V6B 4N7
- - --------------------------------------------------------------------------------------------
Adina Trowhill (2) 5,000 0.13
#106 - 2288 Marstrand Avenue
Vancouver, B.C. Canada V6K 4S9
- - --------------------------------------------------------------------------------------------
Sandra-Marie Hendrickson (2) 100,000 2.51
106 - 1230 Haro Street
Vancouver, B.C. Canada V6E 4J9
- - --------------------------------------------------------------------------------------------------------------------------------
Total "Other 5% Owners" of the Issuer 718,000 17.99
================================================================================================================================
Total Shares Issued and Outstanding 3,991,900 100.00 3,991,900 100.00
================================================================================================================================
</TABLE>
12
<PAGE>
(1) These shareholders are a single family group. Accordingly the shares of each
are attributed to the other, and each is treated as if he, she or it were the
owner of all of the group's combined ownership, for purposes of determining the
percentage of ownership. Gerald Yakimishyn is an affiliate of the Issuer. No
single member of his family owns 5%, but the combined ownership of the family is
more than 6.7%. Accordingly, each member of the family is disclosed as a 5%
owner, and an effective affiliate of the Issuer, by reason of such attribution
of ownership. Accordingly, also, each member of the family is disclosed as an
affiliate of the Issuer, because Gerald Yakimishyn is an Officer-Affiliate of
the Issuer.
(2) These shareholders are a single family group. Accordingly the shares of each
are attributed to the other, and each is treated as if he, she or it were the
owner of all of the group's combined ownership, for purposes of deterring the
percentage of ownership. No single member of his family owns 5%, but the
combined ownership of the family is more than 12.65%. Accordingly, each member
of the family is disclosed as a 10% owner, and an effective affiliate of the
Issuer, by reason of such attribution of ownership.
TABLE B
EFFECT OF OPTION EXERCISE ON SHARE OWNERSHIP
<TABLE>
<CAPTION>
================================================================================================================
Shares TOTAL IF
Actual OPTIONS
Option Owner and as % OPTIONS EXERCISED %
Attributed
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Roy Spectorman 794,813 19.91 170,000 964,813 21.97
- ----------------------------------------------------------------------------------------------------------------
Gerald Yakimishyn 237,500 5.95 75,000 312,500 7.12
(See Note 1 above)
- ----------------------------------------------------------------------------------------------------------------
Jerry Kaplan 198,703 4.98 25,000 223,703 5.09
- ----------------------------------------------------------------------------------------------------------------
Peter Waters 389,813 9.77 50,000 439,813 10.01
- ----------------------------------------------------------------------------------------------------------------
Frank Evanshen 501,875 12.57 75,000 576,875 13.14
(See Note 2 above)
- ----------------------------------------------------------------------------------------------------------------
Alan Kessler 45,562 1.14 5,000 50,562 1.15
================================================================================================================
Total Shares/Options 3,991,900 100.00 400,000 4,391,900 100.00
Outstanding
================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
Item 5. Directors, Executive Officers, Promoters and Control Persons.
- --------------------------------------------------------------------------------
The following three persons first listed below are the Directors of
Registrant, having taken office from the inception of the target company, and
having been appointed to become Directors upon the reorganization of the Issuer
by which the target company was acquired. The present three Directors are to
serve until their successors might be elected or appointed, or until the next
meeting of shareholders, general or special, whichever occurs first. A fourth
Officer is identified in the following disclosure. Each of the Officers and
Directors listed below are significant shareholders of the Issuer, and presently
serve without compensation arrangements. (See Executive Compensation, and
Relationships and Transactions, in the succeeding items 6 and 7, of this Part.)
None of the current officers or directors receive any compensation but may
receive compensation in the future.
Roy Spectorman, age 48, MarketCentral's President and founder, will be
coordinating the efforts of the MarketCentral management team and will guide the
Issuer's implementation of its strategic plan. Mr. Spectorman has developed the
content of the MarketCentral Website, investment guide and newsletter. He will
be responsible for the newsletter and investment guide updates and will be
attempting to establish relationships and alliances within the financial
services industry. From 1989 until his founding of the Issuer, Mr. Spectorman
has served as President of New Horizons Asset Management Corporation from 1989,
a financial management consulting firm. Mr. Spectorman has over 20 years
experience in the financial markets. Mr. Spectorman was President of
Environmental Life Products from 1986-1989. He was responsible for developing
the product line, creating marketing materials and building a sales
organization. Mr. Spectorman was Vice-President of Palace Industries from
1973-1986. He developed product lines for this textile manufacturer, managed a
sales organization and developed marketing strategies. Mr. Spectorman attended
Adelphi University from 1974-1976 where he received a Masters Degree in Business
Administration in Management and graduated Summa Cum Laude. He attended The
State University of New York at Stony Brook from 1968-1972 where he received a
B.A. in Liberal Arts.
Jerry Kaplan, age 52, MarketCentral's Vice-President-Operations and one of
its Directors, will be heading the operations department. He will be responsible
for credit card transactions, computer technical support, product warehousing
and shipping operations. Mr. Kaplan has used, programmed and overseen several
computer system installations over the last thirty years, and brings a thorough
understanding of their workings, capabilities and limitations. Mr. Kaplan has
been President of Universal Chemicals, a privately held chemical distributor
primarily selling water treatment chemicals since 1992. He has been in the
13
<PAGE>
chemical industry since 1970 when he joined Alden Leeds, Inc., a swimming pool
chemical manufacturer. His experience includes all phases of operating within
the chemical industry, including chemical manufacture, sales, distribution,
labor relations, data processing, accounting, and government regulations. Mr.
Kaplan worked for IBM from 1969 to 1970 as a computer operator, at the first
Management Information Systems (MIS) center in the U.S. He received in-house
training from IBM in computer operations, job control language and various
computer programming languages. Mr. Kaplan attended the University of Tampa
between 1964 and 1966 where he majored in biology. He attended Hofstra
University between 1966-1968 where he majored in business, with a minor in
chemistry. Mr Kaplan devotes only such time to the business of the Issuer as is
necessary to perform his duties as an officer and director.
Gerald Yakimishyn, age 46, Secretary-Treasurer and Director, has a diverse
background ranging from hands-on, in-the-field mineral exploration experience,
to leadership in secondary-level industrial education for 14 years. He was a
Surrey School District administrator prior to his move into the private
industry. Mr. Yakimishyn was instrumental in the management and capitalization
of PIERCE MOUNTAIN RESOURCES, CARMELITA RESOURCES LIMITED and MERIDIAN
MERCANTILE, INC., a merchant banking organization; before joining SINO PACIFIC
DEVELOPMENT in 1996. He became CEO and President of Sino Pacific Development in
1997. Mr. Yakimishyn devotes only such time to the business of the Issuer as is
necessary to perform his duties as an officer and director.
Peter J. Waters, is MarketCentral's Marketing Director [not a Director on
the Board of Directors] in charge of advertising sales and site promotion. From
1983 until present, Mr. Waters has been President of his own Marketing
Consulting firm specializing in implementing marketing/advertising programs for
the New York City real estate industry. He has successfully hired and managed a
sales organization and has been affiliated with Kenart Realty as Vice-President.
From 1981 to 1989 Mr. Waters served as President of Classic Trading Inc., an
Import/Export firm specializing in the marketing and distribution of industrial
products in the United States and Canada. Mr. Waters devotes only such time to
the business of the Issuer as is necessary to perform his duties as its
Marketing Director.
- --------------------------------------------------------------------------------
Item 6. Executive Compensation.
- --------------------------------------------------------------------------------
The Issuer's Officers and Directors serve without compensation at this
time, except that Roy Spectorman, the Issuer's president, receives indirect
compensation as explained hereinafter. No plan of compensation has been adopted
or is under consideration at this time. None of the Directors currently
receives, or has ever received, any salary from the Issuer in their capacities
as such, and none are expected to be compensated in their capacities as such. No
officers are expected to receive any compensation for their services. No
officers or directors are under an employment contract with the Issuer. The
Issuer has no retirement, pension, profit sharing, or insurance or medical
reimbursement plans.
Certain Management Options to acquire additional shares of common stock, at
an exercise price of $5.00 per share for five years from February 5, 1999, have
been contemplated for future grant to management as follows:
====================================================
Roy Spectorman 170,000
----------------------------------------------------
Jerry Kaplan 25,000
----------------------------------------------------
Peter Waters 50,000
----------------------------------------------------
Alan Kessler 5,000
----------------------------------------------------
Frank Evanshen 75,000
----------------------------------------------------
Gerald Yakimishyn 75,000
====================================================
14
<PAGE>
The options were issued pursuant to the exemption provided by ss.4(2) of
the Securities Act of 1933.
Please see ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, for
indirect compensation of Roy Spectorman, in the amount of $9,000.00 per month,
by virtue of a Management Services Agreement with a consultant to the Issuer, of
which Mr. Spectorman is the President and beneficial owner.
- --------------------------------------------------------------------------------
Item 7. Certain Relationships and Related Transactions.
- --------------------------------------------------------------------------------
That CERTAIN STOCK SUBSCRIPTION AGREEMENT attached as EXHIBIT 6.1 hereto,
provides, in relevant part, that Meridian Mercantile, Inc. ("Meridian"), an
affiliate of the Issuer, subscribed for the purchase of 56,014 shares of common
stock in consideration of the sum of $312,000.00, payable on or before two years
from February 5, 1999, with minimum payment of $13,000.00 per month payable over
24 consecutive months. Meridian has also agreed to use its best efforts to raise
a minimum of an additional $3,000,000.00. In connection with Meridian's
financing efforts, the Issuer has agreed that Meridian's nominee shall be
entitled to one of three positions on the Board of Directors.
In connection with its business activities, MarketCentral.net Corp.
utilizes a portion of the business, facilities, computers, telephone and office
supplies of New Horizons Asset Management Corp. ("New Horizons"), 300 Mercer
Street, Suite 26-J, New York NY 10003, and retains New Horizons as a management
consultant. Mr. Roy Spectorman is the President and beneficial owner of New
Horizons. For these considerations, MarketCentral.net Corp. has agreed to pay
New Horizons Inc. $9,000.00 per month. The Issuer as part of this Management
Services Agreement has also agreed in part to remit to same an additional
payment of $25,000 upon its receipt of funds in an equity or debt financing
transaction. Please see EXHIBIT 6.2.
The Issuer has entered into a material contract with Media Communications,
Inc, to provide the Issuer with coordination and consultation of media relations
activities, for the monthly fee of $3,000.00. Please see EXHIBIT 6.3.
The Issuer has entered into a material contract with Creative Web for
Web-Master services. Please see EXHIBIT 6.4.
15
<PAGE>
- --------------------------------------------------------------------------------
PART II
- --------------------------------------------------------------------------------
Item 1.
Market Price of and Dividends on Registrant's Common Equity
and Shareholder Matters Equity and Shareholder Matters.
- --------------------------------------------------------------------------------
(a) Market Information. The Common Stock of this Issuer is quoted Over the
Counter on the Bulletin Board ("OTCBB"). There was no substantial market
activity before December 1998. Based upon standard reporting sources, the
following information is provided:
<TABLE>
<CAPTION>
==========================================================================================================
PERIOD high bid low bid period high bid low bid
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
2nd 1998 None None 4th 1998 5.00 3.50
- ----------------------------------------------------------------------------------------------------------
3rd 1998 5.00 0.50 1st 1999 6.00 2.75
==========================================================================================================
</TABLE>
The foregoing price information is based upon inter-dealer prices without retail
mark-up, mark-down or commissions and may not reflect actual transactions.
(b) Holders. There are 80 holders of the Issuer's common stock, as of March 31,
1998.
(c) Dividends. No cash dividends have been paid by the Company on its Common
Stock or other Stock and no such payment is anticipated in the foreseeable
future.
- --------------------------------------------------------------------------------
Item 2. Legal Proceedings.
- --------------------------------------------------------------------------------
There are no proceedings, legal, enforcement or administrative, pending,
threatened or anticipated involving or affecting this Issuer or to which it or
any of its property are subject, nor to its knowledge are any such proceedings
contemplated.
- --------------------------------------------------------------------------------
Item 3. Changes in and Disagreements with Accountants.
- --------------------------------------------------------------------------------
There have been no disagreements of any sort or kind with Auditors or
Accountants respecting any matter or item reflected in the financial statements
of this Issuer.
- --------------------------------------------------------------------------------
Item 4. Recent Sales of Unregistered Securities.
- --------------------------------------------------------------------------------
(a) All securities sold were common stock.
(b) No underwriting or commissions were involved in the foregoing private
transactions. Except as indicated, all sales were to private sophisticated
investors.
(c)(d)(e):
On December 29, 1988 the Company made its initial issuance of 18,000 Common
Shares for organizational services of $1,000, pursuant to ss.4(2) of the
Securities Act of 1933, to founders J. Dan Sifford (10,000) and Robert Waddell
(8,000). Organizational services consisted of incorporating the Issuer by
preparation and filing of corporate documents. On March 21, 1997 these 18,000
shares were exchanged for 180,000 shares, effecting informally, a ten for one
forward split. At that time there were no other shares issued or outstanding.
16
<PAGE>
On or about March 21, 1997, shareholders authorized its first limited
offering of a maximum of 120,000 shares and a minimum of 100,000 shares, and the
Company made a Limited Offering, pursuant to Regulation D, Rule 504, as
promulgated by the Securities and Exchange Commission, pursuant to the
Securities Act of 1933. The Offering closed on May 8, 1997, 100,000 shares
having been placed at $1.00 per share. All subscribers were determined to be
sophisticated investors, known to management, and with pre-existing
relationships with management.
On or about May 22, 1998, the Company made an unsolicited private
placement, pursuant to Regulation D, Rule 504, as promulgated by the Securities
and Exchange Commission, pursuant to the Securities Act of 1933, of 2,900 shares
placed at $1.00 per share, to a single sophisticated corporate investor, with a
pre-existing business relationship with management.
On or about July 1, 1998, the Company made a Private Placement, pursuant to
Regulation D, Rule 504, as promulgated by the Securities and Exchange
Commission, pursuant to the Securities Act of 1933, of 84,000 shares having been
placed at $0.10 per share, to three sophisticated investors with pre-existing
relationships with management. The Issuer's plans to acquire certain airline
operations have failed, and the company having unpaid bills and invoices due, it
was deemed necessary to sell these shares at a more attractive price than shares
previously placed.
On December 10, 1998, the Shareholders approved the concept and preliminary
understanding between this Issuer and its acquisition target, MarketCentral.net
Corp. On or about January 5, 1999, the Issuer offered an additional 1,600,000,
also pursuant to Regulation D, Rule 504, at $0.025, for a total of $40,000.00,
to sophisticated new investors with pre-existing relationships with the new
management and management of the target company, in anticipation of the
acquisition of MarketCentral.net Corp.
On or about February 21, 1999, to complete the acquisition of the target
company, the Issuer issued 2,025,000, to four target shareholder, pursuant to
ss.4(2) of the 1933 Act, with reliance upon Rule 145, for the acquisition of
MarketCentral.Net Corp. a Delaware corporation. Rule 145 provides that
securities issued in exchange for securities of an acquired corporation are new
securities, subject to ss.5 of the 1933 Act, and eliminates the former "no-sale"
doctrine. It then provides a safe harbor for such issuance to the effect that
such securities be deemed issued pursuant to ss.4(2) of the Act, and are,
accordingly, restricted securities, as defined by Rule 144(a), issued for
investment and not for resale.
- --------------------------------------------------------------------------------
Item 5. Indemnification of Officers and Directors.
- --------------------------------------------------------------------------------
The Articles of Incorporation, in Article IX, provides:
"Each Director and officer or former Director or officer or any person
who may have served at the request of this corporation as a Director or
officer of another corporation in which this corporation owns shares of
capital stock or of which this corporation is a creditor (and their heirs,
executors, and administrators) may be indemnified by the corporation
against reasonable costs and expenses incurred by him in connection with
any action, suit, or proceeding to which he may be made a party by reason
of his being or having been such Director or officer, except in relation to
any actions, suits, or proceedings in which he has been adjudged liable
because of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of his office, or in the
event of a settlement, each Director and officer (and his heirs, executors,
and administrators) may be indemnified by the corporation against payments
made, including reasonable costs and expenses, provided that such indemnity
shall be conditioned upon the prior determination by a resolution of
two-thirds (2/3) of those members of the Board of Directors of the
corporation who are not involved in the action, suit, or proceeding that
the Director or officer has no liability by reason of willful misfeasance,
17
<PAGE>
bad faith, gross negligence, or reckless disregard of the duties involved
in the conduct of his office, and provided further that if a majority of
the members of the Board of Directors of the corporation are involved in
the action, suit, or proceedings, such determination shall have been made
by a written opinion of independent counsel. Amounts paid in settlement
shall not exceed costs, fees, and expenses which would have been reasonably
if the action, suit, or proceeding had been litigated to a conclusion. Such
a determination by the Board of Directors, or by independent counsel, and
the payments of amounts by the corporation on the basis thereof shall not
prevent a shareholder from challenging such indemnification by appropriate
legal proceedings on the grounds that the person indemnified was liable to
the corporation or its security holders by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved
in the conduct of his Office. The foregoing rights and indemnification
shall not be exclusive of any other rights to which the officers and
Directors may be entitled according to law."
Recent Developments
- - -------------------
The Company is exploring a new acquisition. It has entered into a
confidential and non-binding Letter of Intent on May 12, 1999, for which
confidential treatment will be requested (as to the document itself). If
pursued, and no obligation exists to pursue it, on either side as yet, this
Issuer would acquire 100% of the issued and outstanding stock of a
privately owned development stage internet stock brokerage company ("Target
Company") in exchange for the greater of (a) 125,000 restricted shares of
common stock of the Company or (b) restricted shares of common stock with a
market value of $775,000 based on the average closing trade for the ten
days preceding the closing. Other key terms of the Letter of Intent
include:
a. A plan to grant options for up to 125,000 share of common stock of the
Company to key employees of the "Target Company."
b. Employment agreements with incentive provisions for key employees of
the Target Company.
c. Funding commitments of up to $1,120,000 for certain reimbursements,
fees and expenses of Target subject to pre-approved budget. The
Company's ability to fund these commitments is subject entirely to the
Company successfully raising funds in a public offering of its common
stock, and there is no assurance that the Company can raise these
funds; and
d. Target is required to complete the registration process for all states
in which it is not registered to conduct on-line brokerage
transactions.
No action has been taken to effect any of the foregoing actions, nor to
determine whether the Letter of Intent will ripen into an actual
acquisition. The proposals are in the negotiating and exploratory stage.
This acquisition is subject to the Company's and Target's reaching
agreement and entering into a binding Agreement and Plan of Reorganization.
Due to the confidentiality provisions of the Letter of Intent it is not
attached hereto as an exhibit now, and confidential treatment will be
requested.
18
<PAGE>
- --------------------------------------------------------------------------------
PART F/S
- --------------------------------------------------------------------------------
Selected Financial Information
- --------------------------------------------------------------------------------
1998 1997
================================================================================
Total Assets $ 40,130 $ 12,114
- --------------------------------------------------------------------------------
Revenues 0 0
- --------------------------------------------------------------------------------
Operating Expenses 38,258 87,886
- --------------------------------------------------------------------------------
Net Earnings or (Loss) (38,258) (87,886)
- --------------------------------------------------------------------------------
Per Share Earnings
or (Loss) (0.12) (0.42)
- --------------------------------------------------------------------------------
Average Common
Shares Outstanding 323,9620 210,333
================================================================================
Financial Statements
<TABLE>
<CAPTION>
- - ---------------------------------------------------------------------------------------------------
FINANCIAL STATEMENTS PAGE
- - ---------------------------------------------------------------------------------------------------
<S> <C> <C>
F-1 AUDITED FINANCIAL STATEMENTS for the periods ending December 31,
1998 and 1997, of All American Consultant Aircraft, Inc., F-1
preceding the acquisition of MarketCentral.Net Corp.
- - ---------------------------------------------------------------------------------------------------
F-2 UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS for the period ending
March 31, 1999 of MarketCentral.net Corp. F-11
- - ---------------------------------------------------------------------------------------------------
F-3 AUDITED PROFORMA CONSOLIDATED BALANCE SHEET for the period ending
December 31, 1998 of All American Consultant Aircraft, Inc.
(preceding the acquisition of MarketCentral.net Corp. F-18
- - ---------------------------------------------------------------------------------------------------
F-4 AUDITED FINANCIAL STATEMENTS for the period ending December 31,
1998 of MarketCentral.Net Corp. F-20
- - ---------------------------------------------------------------------------------------------------
</TABLE>
19
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Financial Statements
December 31, 1998 and 1997
F-1
<PAGE>
C O N T E N T S
Independent Auditors' Report ............................................... 3
Balance Sheets ............................................................. 4
Statements of Operations ................................................... 5
Statements of Stockholders' Equity ......................................... 6
Statements of Cash Flows ................................................... 7
Notes to the Financial Statements .......................................... 8
F-2
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors and Stockholders of
All American Consultant Aircraft, Inc.
We have audited the accompanying balance sheets of All American Consultant
Aircraft, Inc. (a Development Stage Company) as of December 31, 1998 and 1997
and the related statements of operations, stockholders' equity and cash flows
for years ended December 31, 1998, 1997 and 1996, and from inception on December
28, 1988 thru December 31, 1998. 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 audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits 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 audits provide 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 All American Consultant
Aircraft, Inc. (a Development Stage Company) as of December 31, 1998 and 1997
and the results of its operations and cash flows for years ended December 31,
1998, 1997 and 1996, and from inception on December 28, 1988 thru December 31,
1998 in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 2 to the
financial statements, the Company has minimal assets and no operations and is
dependent upon financing to continue operations. These factors raise substantial
doubt about its ability to continue as a going concern. Management's plans in
regard to these matters are also described in the Note 2. The financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
Salt Lake City, Utah
January 16, 1999
F-3
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Balance Sheets
Assets
December 31,
----------------------
1998 1997
--------- ---------
Current assets
Cash $ 20,130 $ 12,114
Accounts Receivable 20,000 --
--------- ---------
Total Current Assets 40,130 12,114
--------- ---------
Total Assets $ 40,130 $ 12,114
========= =========
Liabilities and Stockholders' Equity
Current Liabilities
Accounts payable 17,845 --
Accrued interest -- --
--------- ---------
Total Current Liabilities 17,845 --
--------- ---------
Stockholders' Equity
Common Stock, authorized
100,000,000 shares of $.0001 par value,
issued and outstanding 1,966,900 and 280,000
shares respectively 197 28
Additional Paid in Capital 152,103 100,972
Deficit Accumulated During the
Development Stage (127,144) (88,886)
Less: Subscription receivable (2,871) --
--------- ---------
Total Stockholders' Equity 22,285 12,114
--------- ---------
Total Liabilities and Stockholders' Equity $ 40,130 $ 12,114
========= =========
The accompanying notes are an integral part of these financial statements
F-4
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Statements of Operations
<TABLE>
<CAPTION>
Deficit
Accumulated
For the years ended December 31, during the
----------------------------------- development
1998 1997 1996 Stage
--------- --------- ----- ---------
<S> <C> <C> <C> <C>
Revenues: $ -- $ -- $ -- $ --
Expenses:
General & Administrative 38,258 87,886 -- 127,144
--------- --------- ----- ---------
Total Expenses 38,258 87,886 -- 127,144
--------- --------- ----- ---------
Net (Loss) $ (38,258) $ (87,886) $ -- $(127,144)
========= ========= ===== =========
Net Loss Per Share $ (0.12) $ (0.42) $ (--) $ (1.88)
========= ========= ===== =========
Weighted average shares outstanding 323,692 210,333 -- 67,803
========= ========= ===== =========
</TABLE>
The accompanying notes are an integral part of these financial statements
F-5
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Statement of Stockholders' Equity
<TABLE>
<CAPTION>
Additional Deficit
Paid-in Accumulated
Capital During the
Common Stock (Discount on Development
Shares Amount Stock) Stage
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Balance at beginning of development
stage - December 28, 1988 -- $ -- $ -- $ --
Shares issued for organizational costs 180,000 18 982 --
Net loss December 31, 1988-1995 -- -- -- (1,000)
Net loss December 31, 1996 -- -- -- --
--------- --------- --------- ---------
Balance, December 31, 1996 180,000 18 982 (1,000)
April 8, 1997 - issued at $1.00 per share 100,000 10 99,990 --
Net loss December 31, 1997 -- -- -- (87,886)
--------- --------- --------- ---------
Balance, December 31, 1997 280,000 28 100,972 (88,886)
May 22, 1998-issued at $1.00 per share 2,900 1 2,899 --
July 1, 1998-issued at $.10 per share 84,000 8 8,392 --
Shares issued for cash at $.025 per share 1,600,000 160 39,840 --
Net loss December 31, 1998 -- -- -- (38,258)
--------- --------- --------- ---------
Balance, December 31, 1998 1,966,900 $ 197 $ 152,103 $(127,144)
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements
F-6
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Statement of Cash Flows
<TABLE>
<CAPTION>
December 28,
1988 (inception
of the
development
For the years ended December 31, stage) to
----------------------------------------- December 31,
1998 1997 1996 1998
--------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Cash Flows form Operating
Activities
Net loss $ (38,258) $ (87,886) $ -- $(127,144)
Adjustments to reconcile
net loss to net cash
provided by operations
Shares issued for services -- -- -- 1,000
Accounts payable 17,845 -- -- 17,845
--------- --------- ----------- ---------
Net Cash Flows used in
Operating Activities (20,413) (87,886) -- (108,299)
--------- --------- ----------- ---------
Cash Flows from Investment
Activities:
Cash advanced on merger & receivable (20,000) -- -- (20,000)
--------- --------- ----------- ---------
Cash Flows from Financing
Activities:
Issuance of stock 48,429 100,000 -- 148,429
--------- --------- ----------- ---------
Net increase (decrease) in cash 8,016 12,114 -- 20,130
Cash, beginning of year 12,114 -- -- --
--------- --------- ----------- ---------
Cash, end of year $ 20,130 $ 12,114 $ -- $ 20,130
========= ========= =========== =========
Supplemental Cash Flow Information
Cash Paid for:
Interest $ -- $ -- $ -- $ --
Taxes $ -- $ -- $ -- $ --
</TABLE>
The accompanying notes are an integral part of these financial statements
F-7
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Notes to The Financial Statements
December 31, 1998 and 1997
NOTE 1 - Summary of Significant Accounting Policies
a. Organization
All American Consultant Aircraft, Inc., ("the Company") is a Texas
corporation organized on December 28, 1988 under the name of Great American
Leasing, Inc. On June 24, 1997, the name was changed to All American
Consultant Aircraft, Inc. The Company intended to specialize in two areas;
the appraisal of aircraft and the wholesaling of aircraft to retail
aircraft dealers and/or aircraft brokers.
The Company has been inactive since inception and is currently
searching for viable business operations or a merger candidate.
b. Accounting Method
The Company recognizes income and expenses on the accrual basis of
accounting.
c. Earnings (Loss) Per Share
The computation of earnings per share of common stock is based on the
weighted average number of shares outstanding at the date of the financial
statements.
d. Cash and Cash Equivalents
The Company considers all highly liquid investments with maturities of
three months or less to be cash equivalents.
e. Provision for Income Taxes
No provision for income taxes has been recorded due to net operating
loss carryforwards totaling approximately $127,144 that will be offset
against future taxable income. Since the Company is in the development
stage, no provision for income taxes has been made.
Deferred tax assets and the valuation account is as follows at
December 31, 1998 and 1997.
December 31,
1998 1997
-------- --------
Deferred tax asset:
NOL carrryforward $ 40,636 $ 30,000
Valuation allowance (40,636) (30,000)
-------- --------
Total $ -- $ --
======== ========
F-8
<PAGE>
All American Consultant Aircraft, Inc.
(a Development Stage Company)
Notes to the Financial Statements
December 31, 1998 and 1997
NOTE 2 - Going Concern
The accompanying financial statements have been prepared assuming that
the Company will continue as a going concern. The Company is dependent upon
raising capital to continue operations. The financial statements do not
include any adjustments that might result from the outcome of this
uncertainty. It is management's plan to raise additional funds to begin its
intended operations, or find an operating company to merge with.
NOTE 3 - Development Stage Company
The Company is a development stage company as defined in Financial
Accounting Standards Board Statement No. 7. It is concentrating
substantially all of its efforts in raising capital and developing its
business operations in order to generate significant revenues.
NOTE 4 - Subscriptions Payable
On May 22, 1998, subscriptions for common stock were issued for
$2,900. As of December 31, 1998 $2,871 remains outstanding.
NOTE 5 - Related Party Transactions
During 1998 and 1997, $3,500 and $71,231, respectively, was paid in
consulting fees to shareholders and officers of the Company.
NOTE 6 - Plan of Reorganization and Acquisition - Subsequent Events
On December 10, 1998, the Company authorized the acquisition of Market
Central Corporation to be effective when a definitive agreement could be
reached in 1999. The acquisition includes all proprietary technology and
the Market Central trademark. The Company also authorized a name change to
Market Central upon the effective date of the merger. Market Central has
software and other technology developed on a website.
F-9
<PAGE>
We hereby consent to the use of our audit report of All American Consultant
Aircraft, Inc. dated January 16, 1999 for the year ended December 31, 1998 in
their Form 10-SB dated April 13, 1999.
/s/
Crouch, Bierwolf & Chisholm
Salt Lake City, UT
April 20, 1999
F-10
<PAGE>
Market Central.net Corporation
(a Development Stage Company)
Consolidated Financial Statements
March 31, 1999 (unaudited)
F-11
<PAGE>
C O N T E N T S
---------------
Consolidated Balance Sheets ..................................................13
Consolidated Statements of Operations ........................................14
Consolidated Statements of Stockholders' Equity ..............................15
Consolidated Statements of Cash Flows ........................................15
Notes to the Consolidated Financial Statements ...............................17
F-12
<PAGE>
Market Central.net Corporation
(a Development Stage Company)
Consolidated Balance Sheets
Assets
------
March 31,
1999
---------
(unaudited)
Current assets
Cash $ 18
---------
Total Current Assets 18
Other assets
Software development costs 82,426
Total Assets $ 82,444
=========
Liabilities and Stockholders' Equity
------------------------------------
Current Liabilities
Accounts payable 36,156
Notes payable 61,638
Due to related party 5,870
---------
Total Current Liabilities 103,664
Stockholders' Equity
Common Stock, authorized
100,000,000 shares of $.0001 par value,
issued and outstanding 3,991,900 399
Additional Paid in Capital 53,017
Deficit Accumulated During the
Development Stage (74,636)
Total Stockholders' Equity (21,220)
Total Liabilities and Stockholders' Equity $ 82,444
=========
The accompanying notes are an integral part of these financial statements
F-13
<PAGE>
Market Central.net Corporation
(a Development Stage Company)
Consolidated Statements of Operations
1999 1998
---------- ----------
Revenues: 1,149 --
---------- ----------
Expenses:
General & Administrative 75,785 --
---------- ----------
Total Expenses 75,785 --
---------- ----------
Net (Loss) (74,636) --
========== ==========
Net Loss Per Share (0.027) --
========== ==========
Weighted average shares outstanding 2,698,479 --
========== ==========
The accompanying notes are an integral part of these financial statements
F-14
<PAGE>
<TABLE>
Market Central.net Corporation
(a Development Stage Company)
Consolidated Statement of Stockholders' Equity
(Unaudited)
<CAPTION>
Additional Deficit
Paid-in Accumulated
Capital During the
Development (Discount on Development
Shares Amount Stock) Stage
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Balance, December 31, 1998 2,000,000 $ 200 $ 33,086 $ --
Reverse acquisition and
reorganization adjustment 1,991,900 199 19,931 --
Net loss March 31, 1999 -- -- -- (74,636)
--------- --------- --------- ---------
Balance, March 31, 1999 3,991,900 $ 399 $ 53,017 $ (74,636)
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements
F-15
<PAGE>
Market Central.net Corporation
(a Development Stage Company)
Consolidated Statement of Cash Flows
For the three months ended March 31, 1999 and 1998
(Unaudited)
1999 1998
-------- --------
Cash Flows form Operating
Activities
Net loss $(74,636) $ --
Adjustments to reconcile net loss to net cash
used by operating activities (net of
acquisition of Market Central.net Corp)
Amortization of Website 4,338 --
Increase in accounts payable 22,156 --
-------- --------
Net Cash Flows used in
Operating Activities (48,142) --
-------- --------
Cash Flows from Investment
Activities: -- --
-------- --------
Cash Flows from Financing
Activities:
Proceeds from related party advances
Proceeds from issuance of common stock 40,000 --
Increase in notes payable 8,160 --
-------- --------
Net Cash provided (used) by
Financing Activities 48,160 --
-------- --------
Net increase (decrease) in cash 18 --
Cash, beginning of year -- --
-------- --------
Cash, end of year $ 18 $ --
======== ========
The accompanying notes are an integral part of these financial statements
F-16
<PAGE>
Market Central.net Corporation
(a Development Stage Company)
Notes to The Consolidated Financial Statements
March 31, 1999
(unaudited)
NOTE 1 - UNAUDITED INFORMATION
---------------------
The information furnished herein was taken from the books and records of the
Company without audit. However, such information reflects all adjustment which
are, in the opinion of management, necessary to properly reflect the results of
the interim period presented. The information presented is not necessarily
indicative of the results from operations expected for the full fiscal year. The
Company has elected to omit substantially all footnotes to the financial
statements for the three months ended March 31, 1999, since there have been no
material changes (other than indicated in other footnotes) to the information
previously reported by the Company in their Form 10 SB for the fiscal year ended
December 31,1998.
NOTE 2 - PLAN OF REORGANIZATION AND ACQUISITION
--------------------------------------
On February 5, 1999, All American Consultant Aircraft, Inc. (the Company)
acquired Market Central.net Corporation through the issuance of 2,025,000 shares
of common stock. The acquisition includes all proprietary technology and the
Market Central trademark. The Company also authorized a name change to Market
Central.net Corporation upon the effective date of the merger. Market Central
has software and other technology developed on a website. This merger is treated
as a reverse acquisition and therefore all historical (December 31, 1998)
information is that of the accounting survivor (Market Central).
NOTE 3 - CONSOLIDATION POLICY
--------------------
These consolidated financial statements include the books of All American
Consultant Aircraft, Inc. (Market Central.net Corporation after name change) and
its wholly owned subsidiary Market Central.net Corporation. All intercompany
transactions and accounts have been eliminated.
F-17
<PAGE>
All American Consultant Aircraft, Inc.
Pro Forma Unaudited Consolidated
Financial Statements
F-18
<PAGE>
All American Consultant Aircraft, Inc.
NOTES TO PRO FORMA UNAUDITED CONSOLIDATED
FINANCIAL STATEMENTS
December 31, 1998
NOTE 1: SUMMARY OF TRANSACTION
Effective February 5, 1999 All American Consultant Aircraft, Inc. ("All
American") issued 2,025,000 shares of its restricted common stock to acquire
Market Central.net Corporation ("Market") a New York Corporation, through a
merger between Market and a wholly owned Delaware subsidiary of All American
name Market Central.Net Corp ("Sub"). The transaction has been treated as a
reverse acquisition for accounting purposes, therefore Market becomes the
accounting survivor.
NOTE 2: MANAGEMENT ASSUMPTIONS
The pro forma consolidated balance sheet assumes that the entities were combined
as of December 31, 1998. The balance sheets of the individual entities have been
consolidated and adjusted for the following: (a) acquisition of the stock of
Market by All American, (b) the consolidation entry of the two entities and (c)
the clearing of the retained earnings of the parent (All American) at December
31, 1998, due to the reorganization and reverse acquisition. The pro forma
statement of operations assumes that the entities were together as of the
beginning of 1998 no adjustments are necessary. Prior to the above transaction,
All American had 1,966,900 shares issued and outstanding.
F-19
<PAGE>
MarketCentral.Net Corp.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
DECEMBER 31, 1998
F-20
<PAGE>
MarketCentral.Net Corp.
(A DEVELOPMENT STAGE COMPANY)
DECEMBER 31, 1998
TABLE OF CONTENTS
PAGE
----
Independent Auditors' Report 1
Balance Sheet 2
Statement of Changes in Stockholders' Equity 3
Statement of Cash Flows 4
Notes to Financial Statements 5 - 6
F-21
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of
MarketCentral.Net Corp.
(A Development Stage Company)
We have audited the accompanying balance sheet of MarketCentral.Net Corp., (A
Development Stage Company) as of December 31, 1998 and the related statements of
changes in stockholders' equity and of cash flows for the period December 7,
1998 to December 31, 1998. These financial statements are the responsibility of
the management of Market Central.Net Corp. 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 presents fairly, in
all material respects, the financial position of MarketCentral.Net Corp., (A
Development Stage Company) at December 31, 1998 and its cash flows for the
period December 7, 1998 to December 31, 1998, in conformity with generally
accepted accounting principles.
The Company had no operations during the period December 7, 1998 to December 31,
1998.
/s/
Dated: March 17, 1999
F-22
<PAGE>
MarketCentral.Net Corp.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
DECEMBER 31, 1998
ASSETS
Software development cost - net
Of accumulated depreciation of $0 $86,764
-------
TOTAL ASSETS $86,764
=======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Note payable $53,478
-------
STOCKHOLDERS' EQUITY:
Capital stock - authorized, issued
and outstanding 2,000 shares, no par value,
stated value .10 per share 200
Paid in capital 33,086
-------
TOTAL STOCKHOLDERS' EQUITY 33,286
-------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $86,764
=======
See Notes to Financial Statement
F-23
<PAGE>
MarketCentral.Net Corp.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
This summary of significant accounting policies of Market Central Net Corp.
(the Company) is presented to assist in understanding the Company's
financial statements. The financial statements and notes are
representations of the Company's management, who is responsible for their
integrity and objectivity. These accounting policies conform to generally
accepted accounting principles for a Development Stage Company and have
been consistently applied in the preparation of the financial statements.
Nature of Operations
The Company has developed a website containing information concerning
investments and information on the major U.S. stock markets. Revenue is to
be developed from advertisers desiring to promote their products on the
Company's website as of December 31, 1998. No significant operations have
commenced.
The Company was incorporated on December 7, 1998. Its' shareholders
contributed at their cost, the website known as Market Central Net. Corp.
Depreciation
The Company will depreciate the costs associated with the development of
its website on the straight-line method for financial reporting purposes
using an estimated useful life of five years.
Note Payable
As part of the Company's capitalization, the Company has assumed a demand
loan to one of its stockholders in the amount of $53,478. The note bears
interest at the rate of 7% per annum. Interest begins to accrue in 1999.
Capital Stock
In connection with its formation the Company issued 2000 shares of no par
value common stock. Each share entitles the holder to one vote.
F-24
<PAGE>
MarketCentral.Net Corp.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
Operations Prior to Incorporation
Prior to incorporating, the Company had been operating as a joint venture.
The joint venturers did not have any significant operations. However, since
beginning their activities the joint venturers have accumulated net
operating losses of approximately $70,000.
F-25
<PAGE>
<TABLE>
- - ------------------------------------------------------------------------------------------------
PART III
- - ------------------------------------------------------------------------------------------------
Item 1. Index to Exhibits.
- - ------------------------------------------------------------------------------------------------
Exhibit Index
<CAPTION>
================================================================================================
Exhibit Table Category / Description of Exhibit Page
Table Number
#
- - ------------------------------------------------------------------------------------------------
[2] Articles/Certificates of Incorporation, and By-Laws
- - ------------------------------------------------------------------------------------------------
<S> <C> <C>
2.0 ARTICLES OF AMENDMENT AFTER ISSUANCE OF STOCK of the Issuer,
MarketCentral.net Corp. (a Texas corporation)
- - ------------------------------------------------------------------------------------------------
2.1 ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION: All American
Consultant Aircraft, Inc.
- - ------------------------------------------------------------------------------------------------
2.2 ARTICLES OF INCORPORATION: Great American Leasing, Inc.
- - ------------------------------------------------------------------------------------------------
2.3 BY-LAWS
- - ------------------------------------------------------------------------------------------------
2.4 ARTICLES OF INCORPORATION of MarketCentral.Net Corp. (a Delaware
corporation), this Issuer's wholly-owned subsidiary
- - ------------------------------------------------------------------------------------------------
[3] INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS
- - ------------------------------------------------------------------------------------------------
3 SPECIMEN CERTIFICATE: Common Voting Equity Stock
================================================================================================
[6] Material Contracts
- - ------------------------------------------------------------------------------------------------
6.0 MERGER AGREEMENT AND PLAN OF ACQUISITION AND REORGANIZATION
- - ------------------------------------------------------------------------------------------------
6.1 STOCK SUBSCRIPTION AGREEMENT
- - ------------------------------------------------------------------------------------------------
6.2 MANAGEMENT SERVICES AGREEMENT
- - ------------------------------------------------------------------------------------------------
6.3 MEDIA RELATIONS COOPERATION AGREEMENT
- - ------------------------------------------------------------------------------------------------
6.4 CREATIVE WEB SITE DESIGN AND HOSTING AGREEMENT
================================================================================================
</TABLE>
<PAGE>
Signatures
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: June 30, 1999
MarketCentral.net Corp.
formerly, All American Consultant Aircraft, Inc.
formerly, Great American Leasing, Inc.
by
/s/ Roy Spectorman /s/ Gerald Yakimishyn
- - ------------------------------- -------------------------------
Roy Spectorman Gerald Yakimishyn
PRESIDENT/DIRECTOR SECRETARY/DIRECTOR
- --------------------------------------------------------------------------------
Exhibit 2.0
Articles of Amendment After Issuance of Stock:
MarketCentral.net Corp.
- --------------------------------------------------------------------------------
<PAGE>
ARTICLES OF AMENDMENT
AFTER ISSUANCE OF STOCK
(Pursuant to TEXAS BUSINESS CORPORATION ACT art. 4.01-05)
All American Consultant Aircraft,
(OF TEXAS)
(1) The name of the Corporation, as amended on June 24, 1997, is All American
Consultant Aircraft, Inc.
(2) The Original Articles of Incorporation as originally filed on December 28,
1989, and amended on June 24, 1997, it-.all-be changed &,id amended as follows,
ARTICLE I. is hereby superseded and amended to read as set forth immediately
following:
The name of the corporation is MarketCentral.net Corp
(3) The effect, and the sole effect of the Amendment is to change the Corporate
Name.
(4) Adoption of the Amendment occurred by unanimous consent of the Board of
Directors on February 5, 1999'inunediattly following the consent and affirmative
of 1,600,400 shares of a total of 1,966,900 shares issued and outstanding, being
81.37% of the total eligible to vote and 100% of the shares present and voting.
Dated February 5, 1999., by the following persons who together constitute the
Officers, Directors and persons duly Authorized to sign on behalf of the lssuer
and of the holders of 100% of all shares issued and outstanding.
/S/ J. Dan Sifford /S/ Gerald Yakimishyn
PRESIDENT SECRETARY, TREASURER
- --------------------------------------------------------------------------------
Exhibit 2.1
Articles of Amendment: All American Consultant Aircraft, Inc.
- --------------------------------------------------------------------------------
<PAGE>
ARTICLES OF INCORPORATION
OF
GREAT AUMRICAN LEASING, INC.
PREAMBLE
--------
We, the undersigned natural persons, of the age of eighteen (18) years or
more,. acting as incorporators of a corporation under the Texas Business
Corporation Act, do hereby adopt the following Articles of Incorporation for
such corporation:
I.
NAME
----
The name of the corporation is GREAT AMERICAN LEASING, INC.
II.
DURATION
--------
The period of duration of the corporation is perpetual.
III.
PURPOSE
-------
The purposes for which the corporation is organized are to engage in any
and all lawful business for which corporations may be incorporated under the
Business Corporation Act of the State of Texas.
IV.
SHARES
------
Preferred Shares Series "A" with Par Value.
Preferred Shares Series "B" without Par Value.
Preferred Shares Series "C" with Par Value.
And Common Shares with Par Value.
The corporation is authorized to issue four classes of shares to be
designated respectively "Preferred Shares Series "A", "Preferred Shares Series
"B", "Preferred Shares Series "C", and "Common Shares". The total number of
Preferred Shares Series "A" the corporation is authorized to issue is 15,000,000
and the par value of each such shares is $10.00. The total number of
Preferred-Shares Series "B" the corporation is authorized to issue is 100,000
and all such shares are without par value. The total number of Preferred Shares
Series "C" the corporation is authorized to issue is 15,000,000 and the par
value of each such shares is $10.00. The total number of Common Shares the
corporation is authorized to issue is 100,000 and par value of each such shares
is $1.00.
<PAGE>
Dividends on Preferred Shares
-----------------------------
Series "A" and "C"
------------------
The holders of the preferred shares Series "A" and "C' shall be entitled to
receive dividends out of any funds legally available therefor, at the rate of
nine and one-half percent (9 1/2%) per annum of the par value thereof, and no
more, payable in preference and priority to any payment of any dividend on
common shares and payable in cash quarterly in the months of March, June,
September and December, or otherwise, as the Board of Directors may from time to
time determine. The right to such dividends on preferred shares shall not be
cumulative, and no right shall accrue to the holders of such shares by reason of
the Board's failure to pay or declare and set apart dividends thereon for any
given period as herein provided.
Noncumulative-and NonParticipatinig Liquidation Preferences
-----------------------------------------------------------
On any voluntary or involuntary liquidation of the corporation, the holders
of the preferred shares shall receive an amount equal to the par value of such
shares plus any dividends declared and unpaid thereon, and no more, before any
amount shall be paid to the holders of the common shares. If the assets of the
corporation should be insufficient to permit payment to the preferred
shareholders of their full preferential amounts as herein provided, then such
assets shall be distributed ratably among the outstanding preferred shares.
Subject to such preferential rights, the holders of the common shares shall
receive, ratably, all remaining assets of the corporation. A consolidation or
merger of the corporation with or into any other corporation, or a sale of all
or substantially all of the assets of the corporation shall not be deemed a
liquidation, dissolution, or winding up of the corporation within the meaning of
this paragraph.
Redemption Clause
-----------------
(1) The corporation, at the option of the Board of Directors, may at any
time redeem the whole, or from time to time redeem any part, of the Series "A"
and/or Series "C" preferred shares but not Series "B" preferred shares
outstanding by paying in cash or equivalent property value therefor the sum of
$10.00 per share, [plus all dividends declared but unpaid] thereon as provided
in this Article to and including the date of redemption, hereinafter referred to
as the "redemptive price," and by giving to each Series "A" and/or Series "C"
preferred shareholder of record at his last known address, as shown on the
records of the corporation, at least twenty, but not more than fifty day's prior
notice personally or in writing, by mail, postage prepaid, stating the class or
series or part of any class or series of shares to be redeemed and the date and
plan of redemption, the redemptive price, and the place where the shareholders
may obtain payment of the redemptive price on surrender of their respective
share certificates, hereinafter called the "redemption notice." Should only a
part of the outstanding preferred shares be redeemed, such redemption shall be
affected by lot, or pro rata, as prescribed by the Board of Directors; provided,
however, that no preferred shares shall be redeemed unless all accrued dividends
on all outstanding preferred shares shall have been paid for all past dividend
periods and full dividends for the current period on all outstanding preferred
shares, except those to be redeemed, shall have been paid or declared and set
apart for payment. On or after the ditto fixed for redemption, each holder of
<PAGE>
shares called for redemption shall, unless he shall have previously exercised
his option to convert his preferred shares as provided in this Article,
surrender his certificate for such shares to the corporation at the place
designated in the redemption notice and shall thereupon be entitled to receive
payment of the redemptive price. Should less than all the shares represented by
any surrendered certificate be redeemed, a new certificate for the unredeemed
shares shall be issued. If the redemption notice is duly given and if sufficient
funds arc available therefor on the date fixed for redemption, then, whether or
not the certificates evidencing the shares to be redeemed are surrendered, all
rights with respect to such shares shall terminate on the date fixed for
redemption, except for the right of the holders to receive the redemption price,
without interest, on surrender of their certificate therefor.
(2) If. on or prior to any date fixed for redemption of preferred shares as
herein provided, the corporation deposits with any bank or trust company in
Texas, or any bank or trust company in the United States duly appointed and
acting as transfer agent for the corporation, as a trust fund, a sum sufficient
to redeem, on the date fixed for redemption thereof, the shares called for
redemption, with irrevocable instructions and authority to the bank or trust
company to publish the notice of redemption thereof, or to complete such
publication if theretofore commenced, and to pay, on and after the date fixed
for redemption or prior thereto, the redemptive price of the shares to their
respective holders on surrender of their share certificates, then from and after
the date of the deposit, even though such date may be prior to the date fixed
for redemption, the shares so called shall be deemed to be redeemed and
dividends on those shares shall cease to accrue after the date fixed for
redemption. The deposit shall be deemed to constitute full payment of the shares
to their holders and from and after the date of, the deposit the shares shall be
deemed to be no longer outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares and shall have no rights with respect
thereto, except the right to receive from the bank or trust company payment of
the redemptive price of the shares, without interest, on surrender of their
certificates therefor, or the right to convert said shares to common stock as
provided in this Article. Any money so deposited on account of the redemptive
price of preferred shares converted after the making of the deposit shall be
repaid to the corporation forthwith on the conversion of such preferred shares.
(3) Shares redeemed by the corporation shall be restored to of authorized
but unissued shares of the corporation.
(4) Series "B" preferred shares shall not be redeemable.
Conversion Rights of Series "B" Preferred Shares
------------------------------------------------
(1) The holder of any Series "B" preferred shares, shall at his option on
delivery to the corporation of his written notice electing to convert said
shares to common shares and on surrender at the office of the corporation or
office of the transfer agent for such shares, duly endorsed to the corporation,
be entitled to receive ninety-nine one hundredths (.99) share of common stock
for each share of Series "B" preferred stock so converted.
(2) Provided, however, that the number of common shares to be issued as
provided in Subparagraph 1 of this Paragraph shall be adjusted by appropriate
<PAGE>
amendment of said Subparagraph 1 to take into account any and all increases or
reduction in the number of outstanding common shares which may have accrued
since the date of the first issuance of the Series "B" preferred shares by
reason of a stock split, share dividend, merger, consolidation. or other capital
change or reorganization affecting the number of outstanding common shares so as
fairly and equitably to preserve so far as reasonably possible the original
conversion rights of the preferred shares, and provided further that when 'such
adjustment is required no notice of redemption shall be given until such
amendment and adjustment shall have been accomplished.
(3) Neither fractional shares nor scrip or other certificates evidencing
such shares shall be issued by the corporation on conversion of the Series "B"
preferred shares as herein provided, but the corporation shall pay in lieu
thereof the full value in cash to the holders who would but for this provision
be entitled to receive such fractional shares.
(4) Series "B" preferred shares so converted shall not be reissued.
(5) The corporation shall at all times reserve and keep available out of its
authorized but unissued common shares solely for the purpose of erecting
conversion of its Series "B" preferred shares the full number of common shares
deliverable on conversion of all Series "B" preferred shares from time to time
outstanding and shall obtain and keep in force such permits with the Texas
Securities Commissioner or other appropriate authorities as may be required in
order to enable it lawfully to issue and deliver such number of common shares.
Voting.-Rights of Common Stock and Preferred Shares Series "B"
--------------------------------------------------------------
Holders of common stock and Preferred Shares Series "B" stock in this
corporation shall be entitled to one vote for each and every share standing in
his, her or its name at any and all meetings of the stockholders of the
corporation. The common stock shall be entitled as a class to elect one (1) of
the directors of this corporation, and the Preferred Shares Series "B" stock
shall be entitled as a class to elect two (2) of the directors of this
corporation, so long as the By-Laws provide for three (3) directors. If the
By-Laws provide for a different number of directors (but never less than one),
the common stock shall be entitled to elect one less the Preferred Shares Series
"B" stock, and the Preferred Shares Series "B" stock shall be entitled to elect
one or more directors than the common stock.
Restrictions on Preemptive Rights
---------------------------------
No holder of any shares of any class of stock of the corporation shall, as
such holder, have any preemptive or preferential right to receive, purchase, or
subscribe to (1) any unissued or treasury shares of any class of stock (whether
now or hereafter authorized) of the corporation, (2) any obligations. evidences
of indebtedness, or other securities of the corporation convertible into or
exchangeable for, or carrying or accompanied by any rights to receive, purchase,
or subscribe to, any such unissued or treasury shares, (3) any right of
subscription to or to receive, or any warrant or option for the purchase of, any
of the foregoing securities, (4) any other securities that may be issued or sold
<PAGE>
by the corporation, other than such (if any) as the Board of Directors of the
corporation, in its sole and absolute discretion, may determine from time to
time.
No shareholder shall have the right to cumulate his votes at any election
for directors of this corporation.
Transfer Restrictions
---------------------
Before there can be a valid sale or transfer of any of the shares of the
corporation by any holder thereof, such holder shall first offer said shares to
the corporation and then to the other holders of common shares in the following
manner.
(1) Such offering shareholder shall deliver a notice in writing by mail or
otherwise, ' to the Secretary of the corporation stating the price, terms, and
conditions of such proposed sale or transfer, the number of shares to be sold or
transferred, and his intention to sell or transfer such shares. Within thirty
(30) days thereafter, the corporation shall have the prior right to purchase
such shares so offered at the price and on the terms and conditions stated in
the notice, provided, however, that the corporation shall not at any time be
permitted to purchase all of outstanding voting shares. Should the corporation
fail to purchase the shares at the expiration of the thirty (30) day period, or
prior thereto decline to purchase the shares, the Secretary of the corporation
shall, within five (5) days thereafter, mail or deliver to each of the other
(common) shareholders of record a copy of the notice given by the shareholder to
the Secretary. Such notice may be delivered to the shareholders personally, or
may be mailed to them at their last known address as such address may appear on
the books of the corporation. Within thirty (30) days after the mailing or
delivering of the copies of the orders to the shareholders any such shareholder
or shareholders desiring to acquire any part or all of the shares referred to in
the notice shall deliver by mail, or otherwise, to the Secretary of the
corporation a written offer or offers, expressed to be acceptable immediately,
to purchase a specified number of such shares at the price and on the terms
stated in the notice. Each such offer shall be accompanied by the purchase price
therefor with authorization to pay such price against delivery of the shares.
(2) If the total number of shares specified in the offers to purchase
exceeds the number of shares to be sold or transferred, each offering
shareholder shall be entitled to purchase such proportion of such, shares as the
number of shares of the corporation which he holds bears to the total number of
shares held by all shareholders desiring to purchase the shares.
(3) If all the shares to be sold or transferred arc not disposed of under
such appointment, each shareholder desiring to purchase shares in a number in
excess of his proportionate share, as provided above, shall be entitled to
purchase such proportion of those shares which remain thus undisposed of, as the
total number of shares which he holds bears to the total number of shares held
by all of the shareholders desiring to purchase shares in excess of those to
which they are entitled under such appointment.
<PAGE>
(4) If within said thirty (30) day period, the offer or offers to purchase
aggregate less than the number of shares to be sold or transferred, the
shareholder desiring to sell or transfer such shares shall not be obligated to
accept any such offer or offers and may dispose of all of the shares referred to
in his notice to any person or persons whomsoever; provided, however that he
shall not sell or transfer such shares at a lower price or on terms more
favorable to the purchaser or transferee than those specified in his notice to
the Secretary of the corporation.
Voting Rights of
Preferred Shares Series "A" and "C"
-----------------------------------
Preferred Shares Series "A" and Series "C" shall have no voting rights
except those granted by law. The holders of Common Stock and Preferred Shares
Series "B" shall have the exclusive voting rights and powers, including the
exclusive right to notice of shareholders meetings.
V.
REQUIRED CAPITAL
----------------
The corporation will not commence business until it has received for the
issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received,
which sum is not less than One Thousand Dollars ($1,000.00).
VI.
REGISTERED OFFICE AND AGENT
---------------------------
The address of its registered Office is 2001 Kirby Drive, Suite 1008,
Houston, Texas 77019, and the name of its registered agent at such address is
JAMES T. MAHAN.
VII.
VOTING REQUIREMENTS FOR CORPORATE ACTIONS
-----------------------------------------
Subject to the Business Corporation Act of the State of Texas and as
permitted by Article 9.08 of such Act, the decision to amend its Articles of
Incorporation, to sell any and all of its assets, to enter into a corporate
merger or acquisition, to issue securities, to dissolve the corporation or to
take any action required by shareholders in accordance with such Act, may be
made by the affirmative vote of shareholders owning at least fifty-one percent
(51%) of the issued and outstanding shares of the common stock of the
corporation at the time of voting.
VIII.
INTERESTED TRANSACTIONS
-----------------------
Except as may be otherwise provided in the Texas Business Corporation Acts
no contract, act, or transaction of the corporation with any person or persons,
firm, trust, or association, or any other corporation shall affected or
<PAGE>
invalidated by the fact that any Director, officer, or shareholder of this
corporation is a party to, or is interested in such contract, act or
transaction, or in any way connected with any such person or persons, firm,
trust, or association, or is a Director, officer, or shareholder of, or
otherwise interested in, any such other corporation, nor shall any duty to pay
damages on account of this corporation be imposed upon such Director, officer,
or shareholder of this corporation solely by reason of such fact, regardless of
whether the vote, action, or presence of any such Director, officer, or
shareholder may be, or may have been, necessary to obligate this corporation on,
or in connection with, such contract, act, or transaction, provided that, if
such vote, action, or presence is, or shall have been, necessary, such interest
or connection (other than an interest as a non-controlling shareholder of any
such other corporation) be known or disclosed to the Board of Directors of this
corporation.
IX.
INDEMNIFICATION
---------------
Each Director and officer or former Director or officer or any person who
may have served at the request. of this corporation as a Director Or officer of
another corporation in which this corporation owns shares of capital stock or of
which this corporation is a creditor (and their heirs, executors, and
administrators) may be indemnified by the corporation against reasonable costs
and expenses incurred by him in connection with any action, suit, or proceeding
to which he may be made a party by reason of his being or having been such
Director or officer, except in relation to any action, suits, or proceedings in
which he has been adjudged liable because of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct of
his office, or in the event of a settlement, each Director and officer (and his
heirs, executors, and administrators) may be indemnified by the corporation
against payments made, including reasonable costs and expenses, provided that
such indemnity shall be conditioned upon the prior determination by a resolution
of two-thirds (2/3) of those members of the Board of Directors of the
corporation who are not involved in the action, suit, or proceeding that the
Director or officer has no liability by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of his office, and provided further that if a majority of the members of
the Board of Directors of the corporation are involved in the action, suit, or
proceedings, such determination shall have been made by a written opinion of
independent counsel. Amounts paid in settlement shall not exceed costs, fees,
and expenses which would have been reasonably incurred if the action, suit, or
proceeding had been litigated to a conclusion. Such a determination by the Board
of Directors, or by independent counsel, and the payments of amounts by the
corporation on the basis thereof shall not prevent a shareholder from
challenging such indemnification by appropriate legal proceedings on the grounds
that the person indemnified was liable to the corporation or its security
holders by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of his office. The
foregoing rights and indemnification shall not be exclusive of any other rights
to which the officers and Directors may be entitled according to law.
<PAGE>
X.
DIRIECTORS
----------
The number of Directors constituting the initial Board of Directors is one
(1), and the name and address of the person who is to serve as Director until
the first annual meeting of the shareholders or until his successor is elected
and qualified is:
James S. Clifton
P.0. Box 56565
Houston, Texas 77027
XI.
INCORPORATORS
-------------
The names and addresses of the incorporators which includes all of the
initial subscribers to the corporations shares and securities evidencing the
right to acquire its shares are:
James S. Clifton
P. 0. Box 56565
Houston, Texas 77027
IN WITNESS WHEREOF, we have executed these Articles of Incorporation on
this 27th day of December 1988.
THE STATE OF TEXAS
COUNTY OF HARRIS
- --------------------------------------------------------------------------------
Exhibit 2.2
Articles of Incorporation: Great American Leasing, Inc.
- --------------------------------------------------------------------------------
<PAGE>
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
Pursuant to the provisions of Article 4.04 of the Texas Business
undersigned corporation adopts the following Articles of Amendment to its
Articles of incorporation:
ARTICLE ONE
The name of the corporation is GREAT AMERICAN LEASING, INC.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the corporation March 21, 1997.
This amendment:
I. deletes Article 1. of the original Articles of Incorporation in its
entirety and provides for a new Article I as set forth below; and
II. deletes Article IV. SHARES of the original Articles of
Incorporation in its entirety and provides for a new Article IV. SHARES as set
forth as follows:
The amendment deletes the language in Article I of the original
Articles of Incorporation and the full text of Article I shall be as follows:
I.
NAME
The name of the corporation is ALL AMERICAN CONSULTANT AIRCRAFT, INC.
The amendment deletes the language in Article IV. SHARES of the original
Articles of Incorporation and the full text of Article IV. SHARES shall be as
follows:
IV.
SHARES
The aggregate number of shares in which the corporation shall have
authority to issue is 100,000,000 shares of the par value of $0.0001 each Common
Voting Equity Stock, such shares to carry the short title "Common"; and no other
class of stock.
The Board of Directors may further create separate series within any
class of stock.
<PAGE>
ARTICLE THREE
The number of shares of the corporation outstanding at the time of such
adoption was 180; and the number of shares entitled to vote thereon was 180.
ARTICLE FOUR
The number of shares voted for such amendment was 180; and the number
of shares voted against such amendment was 0.
ARTICLE FIVE
The manner In which any exchange, reclassification or cancellation of
issued shares provided for in the amendment shall be effected, is as follows:
The Officers are empowered and directed to effectuate a 1000 to 1
forward split of the Company's Common Stock; such that the existing 180 shares
shall become 180,000 of par value $0.0001.
ARTICLE SIX
The manner in which such amendment effects a change in the amount of
stated capital, and the amount of stated capital as changed by such amendment,
are as follows:
This amendment empowers and directs the Officers to effectuate a 1000
to 1 forward split of the Company's Common Stock; such that the existing issued
and outstanding 180 Common Shares of $1.00 par value shall become 180,000 Common
Shares of $0.0001 par value.
Dated 21 MAR, 1997
/S/ Great American Leasing, Inc.
GREAT AMERICAN LEASING. INC.
- --------------------------------------------------------------------------------
Exhibit 2.3
By-Laws
- --------------------------------------------------------------------------------
<PAGE>
BY-LAWS
OF
MarketCentral.net Corp
ARTICLE I - OFFICES
1. REGISTERED OFFICE AND AGENT
The registered office of the corporation shall be maintained at
300 Mercer Street
Suite 26J
New York, NY 10003
The registered office or the registered agent, or both, may be
changed by resolution of the board of directors, upon filing the statement
required by law.
2. PRINCIPAL OFFICE
The principal office of the corporation shall be at
300 Mercer Street
Suite 26J
New York, NY 10003
provided that the board of directors shall have power to change the location of
the principal office in its discretion.
3. OTHER OFFICES
The corporation may also maintain other offices at such places
within or without the State of Texas as the board of directors may from time to
time appoint or as the business of the corporation may require.
ARTICLE II - SHAREHOLDERS
-------------------------
1. PLACE OF MEETING
All meetings of shareholders, both regular and special, shall be
held either at the principal office of the corporation in Texas or at such other
places, either within or without the state, as shall be designated in the notice
of the meeting.
2. ANNUAL MEETING
The annual meeting of shareholders for the election of directors
and for the transaction of all other business which may come before the meeting
shall be held on the 15th day of April in each year (if not a legal holiday and,
if a legal holiday, then on the next business day following) at the hour
specified in the notice of meeting.
If the election of directors shall not be held on the day above
designated for the annual meeting, the board of directors shall cause the
election to be held as soon thereafter as conveniently may be at a special
meeting of the shareholders called for the purpose of holding such election.
The annual meeting of shareholders may beheld for any other
purpose in addition to the election of directors which may be specified in a
notice of such meeting. The meeting may be called by resolution of the board of
directors or by a writing filed with the secretary signed either by a majority
of the directors or by shareholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote at
any such meeting.
3. NOTICE OF SHAREHOLDERS' MEETING
A written or printed notice stating the place, day and hour of
the meeting, and in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) more than fifty
(50) days before the date of the meeting, either personally or by mail, by or at
the direction of the president, secretary or the officer or person calling the
meeting, to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
share transfer books of the corporation, with postage thereon prepaid.
<PAGE>
4. VOTING OF SHARES
Each outstanding share with voting privileges, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the Articles of
Incorporation or by law.
Treasury shares, shares of its own stock owned by another
corporation the majority of the voting stock of which is owned or controlled by
this corporation, and shares of its own stock held by this corporation in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable, and in no event shall it remain irrevocable
for a period of more than eleven (11) months.
At each election for directors every shareholder entitled to
vote at such election shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there are directors to be
elected and for whose election he has a right to vote, or unless prohibited by
the articles of incorporation, to cumulate his votes by giving one candidate as
many votes as the number of such directors multiplied by the number of his
shares shall equal, or by distributing such votes on the same principal among
any number of such candidates. Any shareholder who intends to cumulate his votes
as herein authorized shall give written notice of such intention to the
secretary of the corporation on or before the day preceding the election at
which such shareholder intends to cumulate his votes.
5. CLOSING TRANSFER BOOKS AND FIXING 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
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other proper purpose, the board of directors may provide
that the share transfer books shall be closed for a stated period not exceeding
fifty (50) days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the stock transfer books, the by-laws
or in the absence of an applicable by-law the board of directors, may fix in
advance a date as the record date for any such determination of shareholders,
not later than fifty (50) days and, in case of a meeting of shareholders, not
earlier than ten (10) days prior to the date on which the particular action,
requiring such determination of shareholders is to be taken. If the share
transfer books are not closed and 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 a dividend, 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 for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof, except where the determination has been made through the closing of
share transfer books and the stated period of closing has expired.
6. QUORUM OF SHAREHOLDERS
Unless otherwise provided in the articles of incorporation, the
holders of a majority of the shares entitled to vote, represented in person or
by proxy, shall constitute a quorum at a meeting of shareholders, but in no
event shall a quorum consist of the holders of less than one-third (1/3) of the
shares entitled to vote and thus represented at such meeting. The vote of the
holders of a majority of the shares entitled to vote and thus represented at a
meeting at which a quorum is present shall be the act of the shareholders'
meeting, unless the vote of a greater number is required by law, the articles of
incorporation of the by-laws.
7. VOTING LISTS
The officer or agent having charge of the share transfer books
for the shares of the corporation shall make, at least ten (10) days before each
meeting of shareholders, a complete list of the shareholders entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each, which list, for a period
of ten (10) days prior to such meeting, shall be kept on file at the registered
office of the corporation and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The original
share transfer books shall be prima-facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote any
meeting of shareholders.
8. INFORMAL ACTION BY STOCKHOLDERS
Any action required or permitted to be taken at a meeting of the
stockholders may be taken without meeting if a written consent thereto is signed
by the stockholders holding at least a majority of the voting power, except that
2
<PAGE>
if a different proportion of voting power is required for such an action at a
meeting, then that proportion of written consent is required; provided however,
that written notice of any action so taken must be promptly given to all
stockholders
ARTICLE III - DIRECTORS
1. BOARD OF DIRECTORS
The business and affairs of the corporation shall be managed by
a board of directors. Directors need not be residents of the State of Texas nor
be shareholders in the corporation.
2. NUMBER AND ELECTION OF DIRECTORS
The number of directors shall be 3 provided that the number may
be increased or decreased from time to time by an amendment to these by-laws,
but no decrease shall have the effect of shortening the term of any incumbent
director. At each annual election the shareholders shall elect directors to hold
office until the next succeeding annual meeting.
3
<PAGE>
3. VACANCIES
Any vacancy occurring in the board of directors may be filled by
the affirmative vote of the remaining directors, though less than a quorum of
the board. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. Any directorship to be filled by
reason of an increase in the number of directors shall be filled by election at
an annual meeting or at a special meeting of shareholders called for that
purpose.
4. QUORUM OF DIRECTORS
A majority of the board of directors shall constitute a quorum
for the transaction of business. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
5. ANNUAL MEETING OF DIRECTORS
Within thirty days after each annual meeting of shareholders the
board of directors elected at such meeting shall hold an annual meeting at which
they shall elect officers and transact such other business as shall come before
the meeting.
6. REGULAR MEETING OF DIRECTORS
A regular meeting of the board of directors may be held at such
time as shall be determined from time to time by resolution of the board of
directors.
7. SPECIAL MEETINGS OF DIRECTORS
The secretary shall call a special meeting of the board of
directors whenever requested to do so by the president or by two directors. Such
special meeting shall be held at the time specified in the notice of meeting.
8. PLACE OF DIRECTORS' MEETINGS
All meetings of the board of directors (annual, regular or
special) shall be held either at the principal office of the corporation or at
such other place, either within or without the State of Texas, as shall be
specified in the notice of meeting.
9. NOTICE OF DIRECTORS' MEETINGS
All meetings of the board of directors (annual, regular or
special) shall be held upon five (5) days' written notice stating the date,
place and hour of meeting delivered to each director either personally or by
mail or at the direction of the president or the secretary or the officer or
person calling the meeting.
In any case where all of the directors execute a waiver of
notice of the time and place of meeting, no notice thereof shall be required,
and any such meeting (whether annual, regular or special) shall be held at the
time and at the place (either within or without the State of Texas) specified in
the waiver of notice. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
4
<PAGE>
10. COMPENSATION
Directors, as such, shall not receive any stated salary for
their services, but by resolution of the board of directors a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each annual,
regular or special meeting of the board, provided, that nothing herein contained
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
11. ACTION BY CONSENT OF DIRECTORS
In lieu of a formal meeting, action may be taken by unanimous
written consent of the directors.
ARTICLE IV - OFFICERS
---------------------
1. OFFICERS ELECTION
The officers of the corporation shall consist of a president,
one or more vice-presidents, a secretary, and a treasurer. All such officers
shall be elected at the annual meeting of the board of directors provided for in
Article III, Section 5. If any office is not filled at such annual meeting, it
may be filled at any subsequent regular or special meeting of the board. The
board of directors at such annual meeting, or at any subsequent regular or
special meeting may also elect or appoint such other officers and assistant
officers and agents as may be deemed necessary. Any two or more offices may be
held by the same person, except the offices of president and secretary.
All officers and assistant officers shall be elected to serve
until the next meeting of directors (following the next annual meeting of
shareholders) or until their successors are elected; provided, that any officer
or assistant officer elected or appointed by the board of directors may be
removed with or without cause at any regular or special meeting of the board
whenever in the judgment of the board of directors the best interests of the
corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Any agent appointed
shall serve for such term, not longer than the next annual meeting of the board
of directors, as shall be specified, subject to like right of removal by the
board of directors.
2. VACANCIES
If any office becomes vacant for any reason, the vacancy may be
filled by the board of directors.
3. POWER OF OFFICERS
Each officer shall have, subject to these by-laws, in addition
to the duties and powers specifically set forth herein, such powers and duties
as are commonly incident to this office and such duties and powers as the board
of directors shall from time to time designate. All officers shall perform their
duties subject to the directions and under the supervision of the board of
directors. The president may secure the fidelity of any and all officers by bond
or otherwise.
4. PRESIDENT
The president shall be the chief executive officer of the
corporation. He shall preside at all meetings of the directors and shareholders.
He shall see that all orders and resolutions of the board are carried out,
subject however, to the right of the directors to delegate specific powers,
except such as may be by statute exclusively conferred on the president, to any
other officers of the corporation.
He or any vice-president shall execute bonds, mortgages and
other instruments requiring a seal, in the name of the corporation, and, when
authorized by the board, he or any vice-president may affix the seal to any
instrument requiring the same, and the seal when so affixed shall be attested by
the signature of either the secretary or an assistant secretary. He or any
vice-president shall sign certificates of stock.
The President shall be ex-officio a member of all standing
committees.
He shall submit a report of the operations of the corporation
for the year to the directors at their meeting next preceding the annual meeting
of the shareholders and to the shareholders at their annual meeting.
5. VICE-PRESIDENTS
The vice-president shall, in the absence or disability of the
president, perform the duties and exercise the powers of the president, and they
shall perform such other duties as the board of directors shall prescribe.
5
<PAGE>
6. THE SECRETARY AND ASSISTANT SECRETARIES
The secretary shall attend all meetings of the board and all
meetings of the shareholders and shall record all votes and the minutes of all
proceedings and shall perform like duties for the standing committees when
required. He shall give or cause to be given notice of all meetings of the
shareholders and all meetings of the board of directors and shall perform such
other duties as may be prescribed by the board. He shall keep in safe custody
the seal of the corporation, and when authorized by the board, affix the same to
any instrument requiring it, and when so affixed, it shall be attested by his
signature or by the signature of an assistant secretary.
The assistant secretary shall, in the absence or disability of
the secretary, perform the duties and exercise the powers of the secretary, and
they shall perform such other duties as the board of directors shall prescribe.
In the absence of the secretary or an assistant secretary, the
minutes of all meetings of the board and shareholders shall be recorded by such
person as shall be designated by the president or by the board of directors.
7. THE TREASURER AND ASSISTANT TREASURERS
The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
The treasurer shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements. He shall keep and maintain the corporation's books of account and
shall render to the president and directors an account of all of his
transactions as treasurer and of the financial condition of the corporation and
exhibit his books, records and accounts to the president or directors at any
time. He shall disburse funds for capital expenditures as authorized by the
board of directors and in accordance with the orders of the president, and
present to the president for his attention any requests for disbursing funds if
in the judgment of the treasurer any such request is not property authorized. He
shall perform such other duties as may be directed by the board of directors or
by the president.
If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
The assistant treasurers in the order of their seniority shall,
in the absence or disability of the treasurer, perform the duties and exercise
the powers of the treasurer, and they shall perform such other duties as the
board of directors shall prescribe.
ARTICLE V - CERTIFICATES OF STOCK: TRANSFER. ETC.
- - -------------------------------------------------
1. CERTIFICATES OF STOCK
The certificates for shares of stock of the corporation shall be
numbered and shall be entered in the corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by the
president or a vice-president and the secretary or an assistant secretary and
shall be sealed with the seal of the corporation or a facsimile thereof. If the
corporation has a transfer agent or a registrar, other than the corporation
itself or an employee of the corporation, the signatures of any such officer may
be facsimile. In case any officer or officers who shall have signed or whose
facsimile signature or signatures shall have been used on any such certificate
or certificates shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before said certificate may
nevertheless be issued by the corporation with the same effect as though the
person or persons who signed such certificates or whose facsimile signature or
signatures shall have been used thereon had been such officer or officers at the
date of its issuance. Certificates shall be in such form as shall in conformity
to law be prescribed from time to time by the board of directors.
The corporation may appoint from time to time transfer agents
and registrars, who shall perform their duties under the supervision of the
secretary.
2. TRANSFERS OF SHARES
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
3. REGISTERED SHAREHOLDERS
The corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder in fact thereof and, accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not is shall have express
or other notice thereof, except as otherwise provided by law.
6
<PAGE>
4. ISSUANCE OF ADDITIONAL SHARES
The corporation shall be enabled to issue additional common
shares or to create additional classes of stock, however any such issuance shall
require approval by three quarters (75%) of the then outstanding shares.
5. LOST CERTIFICATE
The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost. when authorizing such issue of a new certificate or
certificates, the board of directors in its discretion and as a condition
precedent to the issuance thereof, may require the owner of such lost or
destroyed certificate or certificates or his legal representatives to advertise
the same in such manner as it shall require or to give the corporation a bond
with surety and in form satisfactory to the corporation (which bond shall also
name the corporation's transfer agents and registrars, if any, as obligees) in
such sum as it may direct as indemnity against any claim that may be made
against the corporation or other obligees with respect to the certificate
alleged to have been lost or destroyed, or to advertise and also give such bond.
ARTICLE VI - DIVIDEND
---------------------
1. DECLARATION
The board of directors may declare at any annual, regular or
special meeting of the board and the corporation may pay, dividends on the
outstanding shares in cash, property or in the shares of the corporation to the
extent permitted by, and subject to the provisions of, the laws of the State of
Texas.
2. RESERVES
Before payment of any dividend there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time in their absolute discretion think proper as a
reserve fund to meet contingencies or for equalizing dividends or for repairing
or maintaining any property of the corporation or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may abolish any such reserve in the manner in which it was created.
ARTICLE VII - MISCELLANEOUS
- - ---------------------------
1. INFORMAL ACTION
Any action required to be taken or which may be taken at a
meeting of the shareholders, directors or members of the executive committee,
may be taken without a meeting if a consent in writing setting forth the action
so taken shall be signed by all of the shareholders, directors, or members of
the executive committee, as the case may be, entitled to vote with respect to
the subject matter thereof, and such consent shall have the same force and
effect as a unanimous vote of the shareholders, directors, or members of the
executive committee, as the case may be, at a meeting of said body.
2. SEAL
The corporate seal shall be circular in form and shall contain
the name of the corporation, the year of its incorporation and the name "TEXAS".
The seal may be used by causing it or a facsimile to be impressed or affixed or
in any other manner reproduced. The corporate seal may be altered by order of
the board of directors at any time.
3. CHECKS
All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
4. FISCAL YEAR
The fiscal year of the corporation shall be determined by
resolution of the Board of Directors.
5. DIRECTORS' ANNUAL STATEMENT
The board of directors shall present at each annual meeting of
shareholders a full and clear statement of the business and condition of the
corporation.
7
<PAGE>
6. CLOSE CORPORATIONS: MANAGEMENT BY SHAREHOLDERS
If the articles of incorporation of the corporation and each
certificate representing its issued and outstanding shares states that the
business and affairs of the corporation shall be managed by the shareholders of
the corporation rather than by a board of directors, then, whenever the context
so requires by the shareholders of the corporation shall be deemed the directors
of the corporation for purposes of applying any provision of these bylaws.
7. AMENDMENTS
(a) By Directors
The board of directors may amend or repeal the by-laws, or adopt
new by-laws, unless:
1. The Articles of Incorporation or the State reserves the power
exclusively to the shareholders in whole or in part;
or
2. The shareholders in amending, repealing or adopting a
particular by-law expressly provide that the board of directors may not amend
that by-law.
(b) By Shareholders
Unless the Articles of Incorporation or by-law adopted by the
shareholders provides otherwise as to all or some portion of the by-laws, the
shareholders may amend, repeal or adopt the by-laws even though the by-laws may
also be amended, repealed or adopted by the board of directors.
The above by-laws originally approved and adopted by the Board of Directors on
March 21, 1997.
/S/ J. Dan Sifford
------------------------------
J. Dan Sifford, Jr., President
- --------------------------------------------------------------------------------
Exhibit 2.4
Articles of Incorporation: MarketCentral.net Corp.
a Delaware corporation
- --------------------------------------------------------------------------------
<PAGE>
CERTIFICATE OF INCORPORATION
OF
MARKETCENTRAL.NET CORP.
1. The name of the corporation is MarketCentral.net Corp.
2. The address of its registered office in the State of Delaware is
Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is one hundred (100) and the par value of each share is
one-tenth of one cent ($.001) amounting in the aggregate to ten cents ($.l0).
5. The board of directors is authorized to make, alter or repeal the
by-laws of the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the incorporator is:
T. L. Ford
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the directors duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived any improper personal
benefit.
8. The corporation shall indemnify its officers, directors, employees
and agents to the extent permitted by the General Corporation Law of Delaware.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 3rd day of February, 1999.
- --------------------------------------------------------------------------------
Exhibit 3
Specimen Certificate: Common Voting Equity Stock
- --------------------------------------------------------------------------------
<PAGE>
Number MarketCentral.net Corp. Shares
INCORPORATED UNDER THE LAWS OF THE STATE OF TEXAS
COMMON VOTING STOCK CUSIP NO 57059T 10 6 COMMON VOTING STOCK
AUTHORIZED: 100,000,000 SHARES FULLY PAID AND NON-ASSESSABLE
PAR VALUE: $0.0001
THIS CERTIFIES THAT
IS THE REGISTERED HOLDER OF
SHARES OF THE COMMON STOCK of MarketCentral.net Corp., a Texas Corporation,
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed. Witness the
facsimile Seal of the Corporation and the facsimile Signatures of its duly
authorized officers.
Not Valid Unless
Initialed by Transfer Agent
By Authorized Initial
MADISON STOCK TRANSFER, INC.
P.O. BOX 145
BROOKLYN NY 11229
/S/ ===================================== /S/
Roy Spectorman MarketCentral.net Corp. Gerald M. Yakimishyn
President Corporate Seal Secretary
Texas
=====================================
- --------------------------------------------------------------------------------
Exhibit 6.0
Merger Agreement and Plan of Acquisition and Reorganization
- --------------------------------------------------------------------------------
<PAGE>
MERGER AGREEMENT
AND
PLAN OF ACQUISITION AND REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF ACQUISITION AND REORGANIZATION,
(hereinafter referred to as the "Agreement") is made and entered into this 5th
day of February 1999 by and between All American Consultant Aircraft, Inc., a
Texas corporation (hereinafter referred to as "All American"), Marketcentral.Net
Corp., a Delaware corporation (hereinafter referred to as "Acquisition") and
Marketcentral.net Corp., a New York corporation (hereinafter referred to as
"MarketCentral").
RECITALS
WHEREAS, All American and MarketCentral desire to merge MarketCentral
with and into All American s wholly-owned subsidiary, Acquisition, whereby
Acquisition shall be the surviving entity pursuant to the terms and conditions
set forth herein and whereby the transaction shall qualify as a tax free
exchange pursuant to Section 351 of the Internal Revenue Code ("IRC");
WHEREAS, the shareholders of MarketCentral desire to exchange all of
their shares of MarketCentral capital stock for shares of All American common
stock in the respective amounts set forth in Schedule 1.2 hereto as a tax free
exchange pursuant to Section 351 of the IRC;
WHEREAS, the parties hereto desire to reorganize, pursuant to Section
368(a)(1)(A) of the IRC, the management, operations and principal place of
business of All American and Acquisition;
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
SECTION 1.1 Merger and Plan of Reorganization. The parties agree that
upon the Effective Date, as defined below, MarketCentral shall merge into
Acquisition (the "Merger"). Following the Merger, Acquisition shall continue as
the surviving corporation and the separate corporate existence of MarketCentral
shall cease. All American shall change its name to "MarketCentral.net Corp." and
Acquisition shall remain a wholly-owned subsidiary of the renamed All American.
As consideration for their agreement to surrender their shares of MarketCentral
common stock and to approve the Merger, the shareholders of MarketCentral shall
receive an aggregate of Two Million Twenty Five Thousand (2,025,000) shares of
authorized but previously unissued All American common stock, par value $0.0001
per share, on a pro rata basis. The parties hereto hereby further agree that as
promptly as practicable after the Closing, the necessary steps shall be taken in
order to reflect the relocation of Acquisition s principal place of business to
<PAGE>
MarketCentral facility in New York, New York; and the management and operations
of Acquisition will be reorganized to become engaged in the current business
endeavors of MarketCentral.
SECTION 1.2 Issuance of Shares.
-------------------
(a) Upon the Closing of this Agreement, All American shall cause to be
issued and delivered to the shareholders of MarketCentral or their designees,
stock certificates evidencing ownership for an aggregate of 2,025,000 authorized
but previously unissued shares of All American common stock, par value $0.000l
per share (the "All American Shares"). The All American Shares shall be issued
to the individual MarketCentral shareholders on a 1012.50 for 1 basis, in the
amounts set forth in Schedule 1.2 hereto.
(b) The All American Shares to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), and the recipients shall represent that they are
acquiring the All American Shares for investment purposes only and without the
intent to make a further distribution of the All American Shares. All All
American Shares to be issued under the terms of this Agreement shall be issued
pursuant to exemptions from the registration requirements of the Securities Act
and the rules and regulations promulgated thereunder. Certificates representing
the restricted All American Shares shall bear the following, or similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
SECTION 1.3 Consent of Shareholders and Directors. In anticipation of
this Agreement and as a condition precedent to the consummation of the Merger,
All American shall have obtained a written consent of its shareholders owning at
least 51% of the issued and outstanding shares of the common stock of All
American at the time of voting in accordance with Article VII of the Articles of
Incorporation and Article 9.10 of the Texas Business Corporation Act and have
taken all necessary and requisite action to obtain the consent of its
Shareholders and Directors in order to transact the following business:
(i) To ratify this Agreement, the Merger, and all transactions
contemplated hereby;
<PAGE>
(ii) To consider and vote upon a proposal to amend the Articles of
Incorporation of All American to change its name to "MarketCentral.Net Corp." or
to a similar name to be approved by the shareholders, in order to more
accurately describe the new business of the Company;
(iii) To accept the resignations of the current Board of Directors of
All American and to elect three (3) directors, two (2) of whom are currently
directors of MarketCentral, to serve until the next Annual Meeting of
Shareholders or until their successors are elected and qualified;
(iv) To engage Meridian Mercantile, Inc. ("MM") to raise a minimum of
US $3 million of capital following the Merger through either a private placement
or public offering, with a maximum dilution of 15% to the post-Merger
shareholders of All American. Specific terms of the private placement or public
offering will be set forth in a more definitive Placement Agency Agreement or
Underwriting Agreement to be furnished to and accepted by the Board of Directors
of All American following the Merger;
(v) To consider and vote upon the proposal to ratify the subscriptions
of MM to purchase an aggregate of up to 56,014 shares of All American Common
Stock over a 24 month period at a purchase price of $5.57 per share pursuant to
the terms of a Subscription Agreement (the "MM Subscription Agreement") in the
form annexed hereto as Exhibit 1.3(v);
(vi) To consider and vote upon the proposal relating to the granting of
an aggregate of 400,000 five-year options to purchase All American Common Stock
at an exercise price equal to $5.00 (which represents the closing bid price per
share of the All American Common Stock immediately prior to the date hereof)
Closing Date (as hereinafter defined) in favor of certain persons as set forth
on Schedule 1.3 (vi) hereto; and
(vii) To consider and vote upon any and all other business that may
properly come before the Shareholder Meeting.
SECTION 1.4 Closing. Subject to all of the conditions precedent
contained herein, the Closing shall occur on or before March 5, 1999 (the date
of such Closing being referred to herein as the "Closing Date"), unless such
date shall be extended by the mutual consent of All American and MarketCentral.
At the Closing:
(i) All American and Acquisition shall deliver an Officer s Certificate
as described in Sections 9.1 and 9.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by All
American and Acquisition are true and correct as of, or have been fully
performed and complied with by the Closing Date; and
(ii) MarketCentral shall deliver an Officer s Certificate as described
in Section 8.1 and 8.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by MarketCentral are true
and correct as of, or have been, fully performed and complied with by the
Closing Date;
<PAGE>
(iii) MarketCentral shall deliver to All American all corporate books
and records needed to effectuate the Merger;
(iv) All American shall issue or cause to be issued the All American
Shares, all of which shall bear the appropriate restrictive legend in the form
customarily used with restricted securities and as set forth in Section 1.2(c)
above;
(v) All American shall have entered into the MM Subscription Agreement
with MM and shall have funded the initial monthly installment of $13,000
pursuant to such subscription agreement;
(vi) All American's legal counsel shall have delivered its legal
opinion as to the eligibility of the existing shareholders of All American to
sell shares of Common Stock pursuant to rules and regulations of the Securities
and Exchange Commission;
(vii) Frank Evanshen and Molly C. Evanshen shall have delivered a
personal guarantee with respect to the obligations of MM to make the monthly
subscription payments required pursuant to the terms of the MM Subscription
Agreement which guarantee shall be in form and substance reasonably acceptable
to MarketCentral and its legal counsel.
SECTION 1.5 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate this
Agreement, or a condition then exists and the party entitled to terminate
because of that condition elects not to do so, then the transactions herein
contemplated shall be consummated upon such date, and as soon as is practicable
thereafter, the parties shall file any additional necessary documents that may
be required by the State of New Delaware and New York to effectuate the Merger.
The Merger shall become effective on the date all necessary merger documents are
filed with the Department of State of the State of New York and the Secretary of
State of Delaware (the "Effective Date").
SECTION 1.6 Recapitalizations. Following a period of 12 months from the
Closing Date, the unanimous consent of the Board of Directors of All American
(renamed Market Central) shall be required to approve any stock splits or other
action which would have the effect of diluting the post-Merger ownership of
Common Stock, except to the extent occurring as a result of a financing
transaction pursuant to Section 1.3(iv) hereto which shall require only the
consent of the majority of directors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF
ALL AMERICAN AND ACQUISITION
All American and Acquisition hereby represent, warrant and agree that:
SECTION 2.1 Organization of All American. All American is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas, is duly qualified and in good standing as a foreign corporation
in every jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to transact
the business in which it is engaged. With the exception of Acquisition, there
are no corporations or other entities with respect to which (i) All American
owns any of the outstanding stock or other interests, or (ii) All American may
be deemed to be in control because of factors or relationships other than the
quantity of stock or other interests owned. All American and Acquisition have
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
is the legal, valid and binding obligation of All American and Acquisition,
enforceable against All American and Acquisition in accordance with its
respective terms except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors
rights generally.
Acquisition is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, is duly qualified and in
good standing as a foreign corporation in every jurisdiction in which such
qualification is necessary, and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged. There
are no corporations or other entities with respect to which (i) Acquisition owns
any of the outstanding stock or other interests, or (ii) Acquisition may be
deemed to be in control because of factors or relationships other than the
quantity of stock or other interests owned.
SECTION 2.2 Capitalization of All American and Acquisition. The
authorized capital stock of All American consists of One Hundred Million
(100,000,000) shares of common stock, par value $0.000l per share (the "Common
Stock"), of which One Million, Nine Hundred Sixty Six Thousand and Nine Hundred
(1,966,900) shares of Common Stock are issued and outstanding. All shares of All
American common stock currently issued and outstanding have been duly authorized
and validly issued and are fully paid and non-assessable, and have been issued
in compliance with any and all applicable federal and state laws or pursuant to
appropriate exemptions therefrom. There are no options, warrants, rights, calls,
commitments or agreements of any character obligating All American to issue any
shares of its capital stock or any security representing the right to purchase
or otherwise receive any such stock, except as set forth in Schedule 2.2. The
All American Shares to be issued pursuant to this Agreement, when so issued,
will be duly authorized, validly issued, fully paid and non-assessable.
The authorized capital stock of Acquisition consists of 100 shares of
common stock, .001 par value, of which 100 shares, constituting all the issued
and outstanding shares of common stock of Acquisition, have been issued to All
American.
SECTION 2.3 Charter Documents. Certified copies of the All American and
Acquisition Certificate and Articles of Incorporation and By-Laws, as amended to
date, have been delivered to MarketCentral prior to the Closing.
SECTION 2.4 Corporate Documents. The All American shareholders list and
corporate minute books are complete and accurate as of the date hereof and the
<PAGE>
corporate minute books contain the recorded minutes of all corporate meetings or
the written consents of shareholders and directors.
SECTION 2.5 Financial Statements. All American s audited financial
statements for the years ended December 31, 1997 and 1998, copies of which have
been delivered to MarketCentral, are true and complete in all material respects,
having been prepared in accordance with generally accepted accounting principles
applied on a consistent basis for the period covered by such statements, and
fairly present, in accordance with generally accepted accounting principles, the
financial condition of All American, and results of its operations for the
periods covered thereby. Except as otherwise disclosed to MarketCentral in
writing and as set forth herein, there has been no material adverse change in
the business operations, assets, properties, prospects or condition (financial
or otherwise) of All American taken as a whole from that reflected in the
financial statements referred to in this Section 2.5.
SECTION 2.6 Absence of Certain Changes or Events. Since the date of the
latest All American financial statement and except as disclosed in Schedule 2.6
hereto, All American has not (i) issued or sold any promissory note, stock,
bond, option or other corporate security of which it was an issuer or other
obligor, (ii) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
cause or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to stockholders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, or (vii) entered into any agreement or transaction
except in connection with the execution and performance of this Agreement.
SECTION 2.7 Assets and Liabilities. All American has good and
marketable title to all of its assets and property, free and clear of any and
all liens, claims and encumbrances. As of the date hereof, All American does not
have any debts, liabilities or obligations of any nature, whether accrued,
absolute, contingent, or otherwise, whether due or to become due, that are not
fully reflected in the All American financial statements.
Acquisition has no assets and no liabilities.
SECTION 2.8 Tax Returns and Payments. All of All American s tax returns
(Federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed or extended with
the appropriate governmental authority. All American has paid all taxes due on
said returns, any assessments made against All American and all other taxes,
fees and similar charges imposed on All American by any governmental authority
(other than those, the amount or validity of which is being contested in good
faith by appropriate proceedings). No tax liens have been filed and no claims
are being assessed with respect to any such taxes, fees or other similar
charges.
Acquisition was formed on February 3, 1999, has not filed, and has not
yet been required to file any tax return.
<PAGE>
SECTION 2.9 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by All American
or the consummation by it of the transactions contemplated hereby. Prior to the
Closing, the shareholders of All American and Acquisition shall have approved
this Agreement and the transactions contemplated hereunder and appropriate
corporate filings shall have been made with the States of Texas, Delaware and
New York, as required.
SECTION 2.10 Compliance with Law and Government Regulations. All
American and Acquisition are in compliance with and are not in violation of,
applicable federal, state, local or foreign statutes, laws and regulations
(including without limitation, any applicable building, zoning or other law,
ordinance or regulation) affecting its properties or the operation of its
business. All American and Acquisition are not subject to any order, decree,
judgment or other sanction of any court, administrative agency or other
tribunal.
SECTION 2.11 Litigation. Except as set forth on Schedule 2.11, there is
no litigation, arbitration, proceeding or investigation pending or threatened to
which All American or Acquisition is a party or which may result in any material
change in the business or condition, financial or otherwise, of All American or
Acquisition or in any of its properties or assets, or which might result in any
liability on the part of All American or Acquisition, or which questions the
validity of this Agreement or of any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement, and to the best knowledge
of All American and Acquisition, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 2.12 Trade Names and Rights. All American does not use any
trade mark, service mark, trade name, or copyright in its business, nor does it
own any trade marks, trade mark registrations or applications, trade names,
service marks, copyrights, copyright registrations or applications. To the
knowledge of All American and Acquisition, no person owns any trade mark, trade
mark registration or application, service mark, trade name, copyright or
copyright registration or application, the use of which is necessary or
contemplated in connection with the operation of All American s business.
SECTION 2.13 Governmental Consent. No consent, approval, authorization
or order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of All American is required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated hereby with the exception of the necessary
corporate filings with the State of Texas relating to the proposed exchange of
shares.
SECTION 2.14 Authority. All American has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. The execution
and delivery of this Agreement, the consummation of the transactions
<PAGE>
contemplated hereby and compliance by All American with the provisions hereof
will not (a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
All American under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of All American, or any note, bond, mortgage,
indenture, license, lease, agreement or any instrument or obligation to which
All American is a party or by which it is bound; or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to All American or
any of its properties or assets.
SECTION 2.15 No Disqualifying Orders. Neither All American, Acquisition
nor any of its affiliates, directors, officers or principals is subject to any
disqualifying order under the "Bad Boy" provisions of the federal or any state s
securities law.
SECTION 2.16 Full Disclosure. None of the representations and
warranties made by All American or Acquisition herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by All American or
Acquisition on its behalf pursuant hereto, contains or will contain any untrue
statement of material fact, or omits any material fact, the omission of which
would be misleading.
ARTICLE III
COVENANTS OF ALL AMERICAN AND ACQUISITION
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and
the Closing, other than actions or transactions specifically disclosed to
MarketCentral and referred to herein:
(a) All American and Acquisition will not enter into any material
agreement, contract or commitment, whether written or oral, or engage in any
transaction, without the prior written consent of MarketCentral;
(b) All American and Acquisition will not declare any dividends or
distributions with respect to its capital stock or amend its Articles of
Incorporation or By-Laws, without the prior written consent of MarketCentral;
(c) All American and Acquisition will not authorize, issue, sell,
purchase or redeem any shares of its capital stock or any options or other
rights to acquire its capital stock, without the prior written consent of
MarketCentral;
(d) All American and Acquisition will comply with all requirements
which federal or state law may impose on it with respect to this Agreement and
the transactions contemplated hereby, and will promptly cooperate with and
furnish written information to MarketCentral in connection with any such
requirements imposed upon the parties hereto in connection therewith;
<PAGE>
(e) All American and Acquisition will not incur any indebtedness for
money borrowed, or issue or sell any debt securities, incur or suffer to be
incurred any liability or obligation of any nature whatsoever, or cause or
permit any lien, encumbrance or security interest to be created or arise on or
in any of its properties or assets, acquire or dispose of fixed assets change
employment terms, enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any balance sheet receivable
for less than its stated amount or enter into any other transaction other than
in the regular course of business, except to comply with the terms of this
Agreement, without the prior written consent of MarketCentral.
(f) All American and Acquisition shall grant to MarketCentral and its
counsel, accountants and other representatives, full access during normal
business hours during the period to the Closing to all of its respective
properties, books, contracts, commitments and records and, during such period,
furnish promptly to MarketCentral and such representatives all information
relating to All American as MarketCentral may reasonably request, and shall
extend to MarketCentral the opportunity to meet with All American s accountants
and attorneys to discuss the financial condition of All American; and
(g) Except for the transactions contemplated by this Agreement, All
American and Acquisition will conduct its business in the normal course, and
shall not sell, pledge or assign any of its assets without the prior written
consent of MarketCentral.
SECTION 3.2 Affirmative Covenants. Prior to Closing, All American
will do the following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all conditions contained in
this Agreement;
(b) Promptly notify MarketCentral in writing of any material adverse
change in the financial condition, business, operations or key personnel of All
American or Acquisition, any threatened material litigation or investigation,
any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement or in an
exhibit annexed hereto and made a part hereof;
(c) Obtain approval of this Agreement from its shareholders;
(d) Obtain the written resignations of its existing officers and
Directors and nominate by the consent of its shareholders a new Board of
Directors, whose nominees shall be Roy Spectorman, Jerry Kaplan and Gerald
Yakimishyn, which shall be effective upon the Closing; and
(e) Reserve, and promptly after the Closing, issue and deliver to
MarketCentral or its designees the All American Shares.
<PAGE>
REPRESENTATIONS AND WARRANTIES OF
MARKETCENTRAL
MarketCentral hereby represents, warrants and agrees that:
SECTION 4.1 Organization of MarketCentral. MarketCentral is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, is duly qualified or will become duly qualified and in
good standing in every jurisdiction in which such qualification is necessary.
There are no corporations or other entities with respect to which (i)
MarketCentral owns any of the outstanding stock or other interests, or (ii)
MarketCentral may be deemed to be in control because of factors or relationships
other than the quantity of stock or other interests owned in such entity.
SECTION 4.2 Capitalization. The authorized capital stock of
MarketCentral is 10,000,000 shares of common stock, par value $0.01 per share of
which 2,000 shares are issued and outstanding. All shares of MarketCentral
common stock currently issued and outstanding have been duly authorized and
validly issued and are fully paid and non-assessable, and have been issued in
compliance with any and all applicable federal and state laws or pursuant to
appropriate exemptions therefrom. There are no options, warrants, rights, calls,
commitments or agreements of any character obligating MarketCentral to issue any
shares of its capital stock or any security representing the right to purchase
or otherwise receive any such stock.
SECTION 4.3 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of MarketCentral and all amendments
thereto, have been or will be delivered to All American prior to the Closing.
SECTION 4.4 Assets and Liabilities. MarketCentral has good and
marketable title to all of its assets and property to be delivered to All
American hereunder free and clear of any and all liens, claims and encumbrances,
except as may be otherwise set forth herein and in its financial statements.
SECTION 4.5 Absence of Certain Changes or Events. Except as disclosed
otherwise herein, MarketCentral has not (i) issued or sold any promissory note,
stock, bond, option or other corporate security of which it was an issuer or
other obligor, (ii) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct or indirect, except in
the ordinary course of its business, (iii) incurred or suffered to be incurred
any liability or obligation whatsoever, except in the ordinary course of its
business, (iv) cause or permitted any lien, encumbrance or security interest to
be created or arise on or in any of its properties or assets, (v) declared or
made any dividend, payment or distribution to stockholders or purchased or
redeemed or agreed to purchase or redeem any shares of its capital stock, (vi)
reclassified its shares of capital stock, or (vii) entered into any agreement or
transaction except in connection with the execution and performance of this
Agreement.
SECTION 4.6 Tax Returns and Payments. All of MarketCentral s tax
returns (Federal, state, city, county or foreign) which are required by law to
be filed on or before the date of this Agreement, have been duly filed or
<PAGE>
extended with the appropriate governmental authority. MarketCentral has paid all
taxes to be due on said returns, any assessments made against MarketCentral and
all other taxes, fees and similar charges imposed on MarketCentral by any
governmental authority (other than those, the amount or validity of which is
being contested in good faith by appropriate proceedings). No tax liens have
been filed and no claims are being assessed with respect to any such taxes, fees
or other similar charges.
SECTION 4.7 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by MarketCentral
or the consummation by it of the transactions contemplated hereby and
appropriate corporate filings shall have been made in the State of New York, as
required.
SECTION 4.8 Compliance with Law and Government Regulations.
MarketCentral is, to the best of its knowledge, in compliance with all
applicable statutes, regulations, decrees, orders, restrictions, guidelines and
standard affecting its properties and operations, imposed by the United States
of America or any state to which MarketCentral is subject, the failure to comply
with which would, either individually or in the aggregate, have a material
adverse effect on the business, finances or prospects of MarketCentral.
SECTION 4.9 Litigation. There is no litigation, arbitration, proceeding
or investigation pending or threatened to which MarketCentral is a party or
which may result in any material change in the business of condition, financial
or otherwise, of MarketCentral or in any of its properties or assets, or which
might result in any liability on the part of MarketCentral, or which questions
the validity of this Agreement or of any action taken or to be taken pursuant to
or in connection with the provisions of this Agreement, and to the best
knowledge of MarketCentral, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 4.10 Patents. Trade Names and Rights. Schedule 4.10 annexed
hereto and by this reference is made a part hereof, contains a complete list of
all patents, trademarks, service marks, trade marks, service mark, trademark and
service mark registrations, applications and licenses
<PAGE>
with respect to the forgoing owned or held by MarketCentral. MarketCentral has
no knowledge of any facts and nothing has come to its attention that would lead
it to believe that it has infringed or misappropriated or is infringing upon any
trademark, copyright, patent or other similar right of any person. No claim
relating thereto is pending or to the knowledge of MarketCentral is threatened.
SECTION 4.11 Governmental Consent. No consent, approval, authorization
or order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of MarketCentral is required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated other than filing the Agreement together with
Articles of Merger with the State of New York.
SECTION 4.12 Authority. MarketCentral and shareholders holding of
record a majority of its issued and outstanding shares of capital stock, have
approved this Agreement and duly authorized the execution hereof. MarketCentral
has full power, authority and legal right to enter into this Agreement on behalf
of MarketCentral and its shareholders and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. The execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance by MarketCentral with the provisions hereof
will not (a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
MarketCentral under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of MarketCentral, or any note, bond, mortgage,
indenture, license, agreement or any instrument or obligation to which
MarketCentral is a party or by which it is bound; or (b) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
MarketCentral or any of its properties or assets.
SECTION 4.13 Investment Purpose. MarketCentral has received or shall
receive representations from its shareholders that the recipients of the
restricted All American Shares hereunder are acquiring the shares for investment
purposes only and acknowledges that the All American Shares issued hereunder are
"restricted securities" and may not be sold, traded or otherwise transferred
without registration under the Securities Act or exemption therefrom.
SECTION 4.14 Nonexistence of Disqualifying Orders. Neither
MarketCentral nor any of its affiliates, directors, officers or principals is
subject to any disqualifying order under the "Bad Boy" provisions of the federal
or any state s securities law.
SECTION 4.15 Intentionally Omitted.
SECTION 4.16 Full Disclosure. None of the representations and
warranties made by MarketCentral herein, or in any exhibit, certificate or
memorandum furnished or to be furnished by, on its behalf pursuant hereto,
contains or will contain any untrue statement of material fact, or omits any
material fact, the omission of which would be misleading.
<PAGE>
ARTICLE V
COVENANTS OF MARKETCENTRAL
SECTION 5.1 Conduct Prior to the Closing. Between the date hereof
and the Closing:
(a) Except within the regular course of business or in connection with
its financing activities previously disclosed to All American and its
shareholders, MarketCentral will not enter into any material agreement, contract
or commitment, whether written or oral, without the prior written consent of All
American;
(b) MarketCentral will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of Incorporation or By-Laws,
without the prior written consent of All American;
(c) MarketCentral will not authorize, issue, sell, purchase, or redeem
any shares of its capital stock or any options or other rights to acquire its
capital stock without the prior written consent of All American.
(d) Except within the regular course of business and in its financing
activities previously disclosed to All American and its shareholders,
MarketCentral will not incur any indebtedness for money borrowed or issue any
debt securities, or incur or suffer to be incurred any liability or obligation
of any nature whatsoever, or cause or permit any lien, encumbrance or security
interest to be created or arise on or in any of its properties or assets,
without the prior written consent of All American;
(e) MarketCentral will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish written
information to All American in connection with any such requirements imposed
upon the parties hereto in connection therewith;
(f) MarketCentral shall grant to All American and its counsel,
accountants and other representatives, full access during normal business hours
during the period prior to the Closing to all its respective properties, books,
contracts, commitments and records and, during such period, furnish promptly to
All American and such representatives all information relating to MarketCentral
as All American may reasonably request, and shall extend to All American the
opportunity to meet with MarketCentral s accountants and attorneys to discuss
the financial condition of MarketCentral.
SECTION 5.2 Affirmative Covenants. Prior to Closing, MarketCentral
will do the following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all conditions contained in
this Agreement; and
(b) Promptly notify All American in writing of any material adverse
change in the financial condition, business, operations or key personnel of
<PAGE>
MarketCentral, any threatened material litigation or investigation, any breach
of its representations or warranties contained herein, and any material
contract, agreement, license or other agreement which, if in effect on the date
of this Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense unless specifically agreed otherwise herein.
SECTION 6.2. Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker or firm or
person is or will be entitled to any broker s or finder s fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions
herein provided, each of the parties hereto agree to use all reasonable efforts
to take, or cause to be taken, all action, and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purpose of this Agreement, the proper officers and/or
directors of All American or MarketCentral, as the case may be, shall take all
such necessary action.
(a) MarketCentral agrees to defend and hold All American harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees, that All American shall incur
or suffer, which arise out of, result from or relate to any material breach of,
or failure by MarketCentral to perform any of its representations, warranties,
covenants and agreements in this Agreement or in any exhibit or other instrument
furnished or to be furnished by MarketCentral under this Agreement.
(b) All American agrees to defend and hold MarketCentral harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees, that MarketCentral shall incur
or suffer, which arise out of, result from or relate to any material breach of,
or failure by All American or Acquisition to perform any of its representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by All American under this
Agreement.
<PAGE>
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or
other order by any federal or state court which prevents the consummation of
this Agreement or any of the transactions contemplated by this Agreement shall
have been issued and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. All American and MarketCentral shall
have received all such approvals, consents, authorizations or modifications as
may be required to permit the performance by All American and MarketCentral of
the respective obligations under this Agreement, and the consummation of the
transactions herein contemplated, whether from governmental authorities or other
persons, and All American and MarketCentral shall each have received any and all
permits and approvals from any regulatory authority having jurisdiction required
for the lawful consummation of this Agreement.
SECTION 7.4 "Blue Sky" Compliance. There shall have been obtained any
and all permits, approvals and consents of the appropriate state securities
commissions of any jurisdictions, and of any other governmental body or agency,
which counsel for All American may reasonably deem necessary or appropriate so
that consummation of the transactions contemplated by this Agreement may be in
compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL AMERICAN
All obligations of All American under this Agreement are subject to the
fulfillment and satisfaction by MarketCentral prior to or at the time for
Closing, of each of the following conditions, any one or more of which may be
waived by All American.
SECTION 8.1 Representations and Warranties True at Closing. All
representations and warranties of MarketCentral contained in this Agreement will
be true and correct at and as of the time of the Closing, and MarketCentral
shall have delivered to All American an Officer s Certificate, dated the Closing
Date, to such effect and in the form and substance satisfactory to All American,
and signed, in the case of MarketCentral, by its President and Secretary.
SECTION 8.2 Performance. The obligations of MarketCentral to be
performed on or before the Closing pursuant to the terms of this Agreement shall
be duly performed at such time, and MarketCentral shall have delivered to All
American an Officer s Certificate, dated the Closing Date, to such effect and in
form and substance satisfactory to All American.
SECTION 8.3 Authority. All action required to be taken by, or on the
part of MarketCentral and its shareholders to authorize the execution, delivery
<PAGE>
and performance of this Agreement by MarketCentral and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of MarketCentral or any event or
condition of any character adversely affecting MarketCentral, and it shall have
delivered to All American, certificates, dated the Closing Date, to such effect
and in form and substance satisfactory to All American and signed, in the case
of MarketCentral, by its President and Secretary.
SECTION 8.5 Acceptance by MarketCentral Shareholders. Prior to the
Closing the holders of a majority of the issued and outstanding shares of the
capital stock of MarketCentral shall have approved this Agreement and agreed to
the Merger.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF MARKETCENTRAL
All obligations of MarketCentral under this Agreement are subject to
the fulfillment and satisfaction by All American and Acquisition prior to or at
the time of Closing, of each of the following conditions, any one or more of
which may be waived by MarketCentral.
SECTION 9.1 Representations and Warranties True at Closing. All
representations and warranties of All American and Acquisition contained in this
Agreement will be true and correct at and as of the time of the Closing, and All
American shall have delivered to MarketCentral an Officer s Certificate, dated
the Closing Date, to such effect and in the form and substance satisfactory to
MarketCentral, and signed, in the case of All American, by its President and
Secretary.
SECTION 9.2 Performance. The obligations of All American, Frank
Evanshen and Molly C. Evanshen to be performed on or before the Closing pursuant
to the terms of this Agreement shall have been duly performed at such time, and
All American shall have delivered to MarketCentral an Officer s Certificate,
dated the Closing Date, to such effect and in form and substance satisfactory to
MarketCentral, and signed in the case of All American, by its President and
Secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the
part of All American and its shareholders to authorize the execution, delivery
and performance of this Agreement by All American and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of All American or Acquisition
or any event or condition of any character adversely affecting All American or
Acquisition, and it shall have delivered to MarketCentral, certificates, dated
<PAGE>
the Closing Date, to such effect and in form and substance satisfactory to
MarketCentral and signed, in the case of All American, by its President and
Secretary.
SECTION 9.5 Action by All American Shareholders. Prior to the Closing
of this Agreement, the shareholders of All American shall have approved this
Agreement and the transactions contemplated hereunder and all of the proposals
set forth in Section 1.3 above. The current directors and officers of All
American and Acquisition shall have submitted their resignations as directors
and officers of All American effective as of the Closing of this Agreement.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere
to the contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to the
Closing;
(b) By the Board of Directors of All American at any time prior to the
Closing, if:
(i) a condition to performance by All American under
this Agreement or a covenant of MarketCentral contained herein
shall not be fulfilled on or before the date of the Closing or
at such other time and date specified in this Agreement for
the fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement
shall be made by MarketCentral.
(c) By the Board of Directors of MarketCentral at any time prior to the
Closing, if:
(i) a condition to MarketCentral s performance under
this Agreement or a covenant of All American, Acquisition,
Frank Evanshen or Molly C. Evanshen contained herein shall not
be fulfilled on or before the date of the Closing or at such
other time and date specified in this Agreement for the
fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement
shall be made by All American or Acquisition;
SECTION 10.2 Effect of Termination. If this Agreement is terminated,
this Agreement, except as to Section 11.1 and Section 11.2, shall no longer be
of any force or effect and there shall be no liability on the part of any party
or its respective directors, officers or stockholders; provided however, that in
the case of a termination pursuant to Section 10.1 (b)(ii) or l0.l(c)(ii) hereof
<PAGE>
because of a prior material default under or a material breach of this Agreement
by another party, the damages which the aggrieved party or parties may recover
from the defaulting party or parties shall in no event exceed the amount of
out-of-pocket costs and expenses incurred by such aggravated party or parties in
connection with this Agreement, and no party to this Agreement shall be entitled
to any injunctive relief.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in
connection with this Agreement, including legal fees will be paid by All
American. In the event of any termination of this Agreement pursuant to Section
10.1, subject to the provisions of Section 10.2, All American and MarketCentral
will each bear their own respective expenses.
SECTION 11.2 Extension of time: Waivers. At any time prior to the
Closing:
(a) All American may (i) extend the time for the performance of any of
the obligations or other acts of MarketCentral, (ii) waive any inaccuracies in
the representations and warranties of MarketCentral contained herein or in any
documents delivered pursuant hereto by MarketCentral and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed by
MarketCentral. Any agreement on the part of All American to any such extension
or waiver shall be valid only if set forth in an instrument, in writing, signed
on behalf of All American and shall only be effective in the specific instance.
No waiver or any condition or provision shall be deemed to be a subsequent
waiver of such condition or provision or a waiver of any condition or provision
other than the one specifically waived.
(b) MarketCentral may (i) extend the time for the performance of any of
the obligations or other acts of All American, (ii) waive any inaccuracies in
the representations and warranties of All American contained herein or in any
documents delivered pursuant hereto by All American and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed by All
American. Any agreement on the part of MarketCentral to any such extension or
waiver shall be valid only if set forth in an instrument, in writing, signed on
behalf of MarketCentral and shall only be effective in the specific instance. No
waiver or any condition or provision shall be deemed to be a subsequent
<PAGE>
waiver of such condition or provision or a waiver of any condition or provision
other than the one specifically waived.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
Agreement shall be in writing and given by Certified or Registered Mail, Fedex
or by facsimile, addressed as follows:
MarketCentral.net Corp.
300 Mercer Street; Suite 26J
New York, New York 10003
Attn: Roy Spectorman
All American Consultant Aircraft, Inc. and
All American Acquisition Corp.
650 West Georgia Street #1407
Vancouver, B.C. Canada V6B 4N7
Attn: Gerald Yakimishyn
Additional notices are to be given as to each party, at such other
address as should be designated in writing complying as to delivery with the
terms of this Section 11.3. All such notices shall be effective when sent,
addressed as aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and the respective successors
and assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that
none of the provisions herein is dependent upon the validity of any other
provision, and if any part of this Agreement is deemed to be unenforceable, the
remainder of the Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The "Article" and "Section" headings are
provided herein for convenience of reference only and do not constitute a part
of this Agreement.
SECTION 11.8 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing and the delivery of the All American Shares issued hereunder
at the Closing, for a period of one year from the Closing regardless of any
investigation made by or on behalf of any of the parties hereto.
<PAGE>
SECTION 11.9 Assignability. This Agreement shall not be assigned by any
of the parties hereto without the prior written consent of the other parties.
SECTION 11 .10 Amendment. This Agreement may be amended with the
approval of the Boards of Directors of All American and MarketCentral at any
time before or after approval thereof by stockholders of All American, if
required, and MarketCentral; but after such approval by the All American
shareholders, no amendment shall be made which substantially and adversely
changes the terms hereof. This Agreement may not be amended except by an
instrument, in writing, signed on behalf of each of the parties hereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
All American:
All American Consultant Aircraft, Inc.
By: /S/
Gerald Yakimishyn, President
Acquisition:
MarketCentral.Net Corp.
By: /S/
Gerald Yakimishyn, President
MarketCentral:
MarketCentral.net Corp.
By: /S/
Roy Spectorman, President
As to Section 1.4 (vii) only:
/S/
Frank Evanshen
/S/
Molly C. Evanshen
<PAGE>
SCHEDULE 1.2
MarketCentral Shareholder List and All American Shares to be Issued
Shareholder Shares of Market Central
Shares of All American to be issued
Roy Spectorman 785 794,813
Jerry Kaplan 196.25 198,703
Keri Kaplan 196.25 198,703
Jason Kaplan 196.25 198,703
Elaine Kaplan 196.25 198,703
Peter Waters 385 389,813
Allan Kessler 45 45,562
<PAGE>
SCHEDULE 1.3(vi)
Stock Options to be Issued
Roy Spectorman 170,000
Jerry Kaplan 25,000
Peter Waters 50,000
Alan Kessler 5,000
Frank Evanshen 75,000
Gerald Yakimishyn 75,000
<PAGE>
SCHEDULE 2.2
Capitalization
Other than options contemplated to be issued pursuant to Section 1.3 (vi)
hereto, none.
<PAGE>
SCHEDULE 2.11
Litigation
NONE
<PAGE>
EXHIBIT 1.3(v)
Subscription Agreement
- --------------------------------------------------------------------------------
Exhibit 6.1
Stock Subscription Agreement
- --------------------------------------------------------------------------------
STOCK SUBSCRIPTION AGREEMENT
All American Consultant Aircraft, Inc.
1. SUBSCRIPTION: The undersigned, ., (the "Subscriber") hereby subscribes
for the purchase of shares of Common Stock of All American Consultant
Aircraft, Inc., a Texas corporation (the "Company"), in consideration
of the sum of $ , payable on or before two years from date hereof, with
minimum payment of $ per month payable over 24 consecutive months, and
subscriber submits the amount of $ with this subscription agreement and
will submit subsequent payments on or before the 1st day of the next
succeeding twenty three (23) months commencing March 1, 1999. Such
subscription is subject to the following terms and conditions:
a. Certificate(s) for shares shall be issued to the undersigned
as payments are received by the Company, and the number of
shares issued shall be based on dividing the amount of the
payment by $5.57 and,
b. The certificate(s) representing the share delivered pursuant
to this Subscription Agreement shall bear a restrictive legend
as follows.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
2. REPRESENTATIONS AND WARRANTIES: The undersigned Subscriber hereby
represents and warrants to the Company:
a. The undersigned Subscriber understands that the Company's
stock has not been approved or disapproved by the United
States Securities and Exchange Commission; any state
securities agency; or any foreign securities agency. The
Subscriber understands that the offering and sale of the
shares of the company to Subscriber is intended to be exempt
from registration under the Securities Act, by virtue of
Section 4(2) thereof, based in part, upon the representations,
warranties and agreements of the Subscriber contained in this
Subscription Agreement.
b. The undersigned Subscriber is not an underwriter and would be
acquiring the Company's stock solely for investment for his or
her own account and not with a view to, or for, resale in
<PAGE>
Subscription Agreement
All American Consultants Aircraft, Inc./Meridian Mercantile, Inc.
Page 2
connection with any distribution within the meaning of any
federal securities act, state securities act or any other
applicable federal or state laws;
c. The undersigned Subscriber understands the speculative nature
and risks of investments associated with the Company, and
confirms that the stock would be suitable and consistent with
his or her investment program; that his or her financial
position enable him or her to bear the risks of this
investment; and, that there is no public market for the stock
subscribed for herein;
d. The stock subscribed for herein may not be transferred,
encumbered, sold, hypothecated, or otherwise disposed of, if
such disposition will violate any federal and/or state
securities acts. Disposition shall include, but is not limited
to acts of selling, assigning, transferring, pledging,
encumbering, hypothecating, giving, and any form of conveying,
whether voluntary or not;
e. To the extent that any federal, and/or state securities laws
shall require, the Subscriber hereby agrees that any stock
acquired pursuant to this Agreement shall be without
preference as to assets;
f. The Company is under no obligation to register or seek an
exemption under any federal securities act, state securities
act, or any foreign securities act for any stock of the
Company or to cause or permit such stock to be transferred in
the absence of any such registration or exemption;
g. The Subscriber has had the opportunity to ask questions of the
Company and has received additional information from the
Company to the extent that the Company possessed such
information, necessary to evaluate the merits and risks of any
investment in the Company. Further, the Subscriber has been
given access to: (1) All material books, records and financial
statements of the Company; (2) all material contracts and
documents relating to the proposed transaction; and, (3) an
opportunity to question the appropriate executive officers of
the Company;
h. The Subscriber has satisfied the suitability standards imposed
by his or her applicable state laws and has a preexisting
personal and business relationship with the Company.
i. The Subscriber has adequate means of providing for his current
needs and personal contingencies and has no need to sell the
shares in the foreseeable future (that is at the time of the
investment, Subscriber can afford to hold the investment for
an indefinite period of time);
j. The Subscriber has sufficient knowledge and experience in
<PAGE>
Subscription Agreement
All American Consultants Aircraft, Inc./Meridian Mercantile, Inc.
Page 3
financial matters to evaluate the merits and risks of this
investment and further, the Subscriber is capable of reading
and interpreting financial statements;
3. LIMITED POWER OF ATTORNEY: The undersigned Subscriber hereby
constitutes and appoints and grants to Gerald Yakimishyn, his limited
attorney-in-fact and agent to sign for him and act in his name, place
and stead, in any and all capacities to execute any or all documents to
be filed with the United States Securities and Exchange Commission and
any governmental agency, federal, state or otherwise in connection with
any securities filings, including, but not limited to: amendments,
exhibits, agreements, concerning shareholders granting said limited
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 that
each said limited attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
4. STATUS OF PURCHASER:
[ ] I am not a member of, or an associate or affiliate of a member of
the National Association of Securities Dealers.
[ ] I am a member of, or an associate or affiliate of a member of the
National Association of Securities Dealers. Attached is a copy of
an agreement signed by the principal of the firm with which I am
affiliated agreeing to my participation in this investment.
5. GUARANTY: The obligations of Subscriber pursuant to this Subscription
Agreement are guaranteed by Frank Evanshen and Molly C. Evanshen
pursuant to the terms of a Guaranty Agreement being delivered
concurrently herewith.
6. MISCELLANEOUS: This Subscription Agreement shall be binding upon the
parties hereto, their heirs, executors, successors, and legal
representatives. The law of the State of Texas shall govern the rights
of the parties to this Agreement. This Agreement is not assignable
without the prior written consent of the Company, any attempt to assign
any rights, duties or obligations which arise under this Agreement
without the Company's prior express written consent shall be void.
The undersigned Subscriber hereby declares and affirms that he or she
has read the within and foregoing Subscription Agreement, is familiar with the
contents thereof and agrees to abide by there terms and conditions therein set
forth, and knows the statements therein to be true and correct.
<PAGE>
Subscription Agreement
All American Consultants Aircraft, Inc./Meridian Mercantile, Inc.
Page 4
I hereby consent to the use of my name in any prospectus or
registration statement which may be filed in connection with any public offering
of the Company's securities.
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement this day of , 19 , at , .
----- ----------------- --- ----------- ----------
SUBSCRIBER
By:
----------------------------------
Signature
----------------------------------
Spouse's Signature (if applicable)
ACCEPTED BY:
All American Aircraft Consultant, Inc.
BY: /S/
--------------------------------
Gerald Yakimishyn, President
- --------------------------------------------------------------------------------
Exhibit 6.2
Management Services Agreement
- --------------------------------------------------------------------------------
MarketCentral.net Corp.
300 Mercer Street, Suite 26-J
New York, NY 10003
As of February 1, 1999
Mr. Roy Spectorman, President
New Horizons Asset Management Group Corp.
300 Mercer Street, Suite 26-J
New York, NY 10003
Re: Management Services
Dear Mr. Spectorman:
In connection with its business activities, MarketCentral.net Corp.
("Market") desires (I) to utilize a portion of the business facilities,
computers, telephones and office supplies (collectively, the "amenities") of New
Horizons, Inc. ("NH") in its facilities located at 300 Mercer Street, Suite
26-J, New York, NY 10003 and (ii) to retain NH as a management consultant in
connection with its business activities. In consideration of such utilization of
the Amenities and for the management consulting activities to be rendered by NH
hereunder. Market agrees to pay NH a monthly fee of $9,000, which shall be paid
to NH on or before the fifth day of each month during the term of this
agreement.
NH's consulting activities hereunder shall include advice regarding the
formation of corporate goals and their implementation, creation of strategic
alliances including co-branding arrangements, site promotion, advice regarding
corporate organization, personnel and selection of needed specialty skills.
In addition, in consideration of the consulting services provided to
Market in connection with its merger transaction with MarketCentral.net Corp, a
New York corporation, Market agrees to remit payment in the amount of $25,000
upon its receipt of funds in a equity of debt financing transaction which is
consummated after the date hereof.
The term of this Agreement shall commence as of the date hereof and
shall continue on a month-to-month basis ("Term"). This agreement shall be
terminated by either party upon thirty (30) day advance written notice at any
time during the Term. Termination of this Agreement shall not affect the
parties' duties to perform their respective obligations as to matters arising
prior to the termination date, including, without limitation, providing NH with
the Merger Consulting Fee provided above.
Market shall not be responsible for an of NH's expenses and NH agrees
not to make any disbursements or purchase or incur any liabilities for or on
behalf of Market. IN addition, NH represents that it is engaged in an
independent business and will be solely responsible for all of its and its
employees' acts and omissions and is subject to all laws, rules and regulations
imposed on independent contractors by any government agency. NH further agrees
to pay its own taxes.
If you find the foregoing is in accordance with our understanding,
kindly sign and return to us a counterpart hereof.
- --------------------------------------------------------------------------------
Exhibit 6.3
Media Relations Cooperation Agreement
- --------------------------------------------------------------------------------
<PAGE>
MERGER
COMMUNICATIONS
Media Relations Cooperation Agreement
1. Parties involved and the Purpose of Cooperation
This Media Release Corporation Agreement (the "Agreement") is by, and between
Merger Communications, Inc. - ("Merger") and MarketCentral.net Corp. (the
"Company").
The object of the Agreement is to increase the visibility and awareness of the
Company, its technology and its products and services by obtaining publicity for
the Company, only as approved by the Company.
2. Duties
Merger's sole duty is to take care of the Company's media relations activities
according to this agreement.
2.1 Press Release
Merger will produce as many press releases as necessary and appropriate. The
preparation of these press releases will take place using material and
information provided by the Company and may include additional information that
Merger finds through its research. Press releases must be approved by the
Company in accordance with Section 3 hereof before being delivered to the media
by Merger.
Merger may print the press releases or other printed materials on the Company's
letterhead and use the Company's envelopes for these operations, Merger may also
imprint the press releases or other written materials with the Company's logo
for electronic distribution. When appropriate, Merger will mail the press
releases via First Class mail to the media.
Merger shall be responsible for distributing to two (2) press releases and/or
article ideas per calendar month via a national newswire service. Expenses for
distributing additional (more than two) press releases/article ideas via
newswire service shall be billed to the Company as described in Section 8
hereof. Expenses for distributing press releases via fax and mail shall be
included in this Agreement, except where designed otherwise in this Agreement.
Merger is responsible for all expenses related to the printing of press
releases.
2.2 Article ideas
Merger will attempt to arrange for as many journalists in the appropriate media
to cover the Company and all related issues and stories in a matter that
enhances the Company's image, awareness and perceived value. Merger will contact
<PAGE>
freelance journalists and journalists at key media through phone conversations
and via fax and email to introduce article ideas representing the Company and
its products, services and technologies. Other article ideas that will promote
the Company or its products, services and technology in the context of a related
story will also be offered to the journalists in the same manner. Article ideas
and other material must always be approved by the Company in accordance with
Section 3 before being delivered to the media. All expenses related to the
marketing and distribution of article ideas shall be included in this agreement
as described in Section 8 hereof, except where designated otherwise in this
Agreement.
2.3 Video Production
Merger will attempt to arrange for as many journalists in the electronic media
(television, radio and Internet) to cover the Company and all related issues,
events and stories in a manner that enhances the Company's image, awareness and
perceived value. In order to achieve the best possible results, Merger may need
to produce raw video footage and edit that footage for distribution to the
media. If necessary, and pre-approved by the Company, Merger shall produce or
arrange for the production of this video, and then market and distribute the
video. The expenses related to these services shall be included in this
Agreement as described in Section 8 hereof, except where designated otherwise in
this Agreement.
2.4 Clipping Service and Reporting
Merger will arrange for press clipping service for the Company of all
correspondence articles involving the Company, as desired for by the Company.
Merger will furnish the Company wih copies of all Company related articles
published during the Agreement. The expenses related to these services shall be
included in this agreement as described in Section 8 hereof, except where
designated otherwise in this Agreement.
3. Approval by the Company
Each final draft of any document to be delivered to the media must be signed by
a designee of the Company, confirming that the release or article idea has been
carefully read and reviewed and that the statements set forth in the attached
document are complete and accurate in all material respects. This signed
approval must be received by Merger prior to the release of the document. Merger
will assume responsibility for getting appropriate approval from other companies
mentioned in the Companies press release and article ideas.
4. Liability
Mergers activities are strictly Media / Public Relations-related. Because
Merger's activities are directed by and pre-approved by the Company, and are
based on the information it receives from the Company, Merger assumes no
liability or responsibility related to said activities, or any consequences
related to said activities, or their use or misuse.
<PAGE>
5. Anti-Recruiting
Neither the Company nor Merger shall recruit any of the other party's employees
or other affiliated personnel during or for six (6) months after the termination
of this Agreement.
6. Handling the Agreement Contract to a Third Party
This Agreement cannot be released to a third party without written approval of
the non-releasing party. This Agreement will be written in two identical copies,
one for both parties involved.
7. The Validity of the Agreement
This effective date of this Agreement id 3/30/99 and it will continue in full
force and effect until terminated by Merger or the Company through the means
outlined in this Agreement. This Agreement can be terminated by either party
after 6/30/99 by the means set forth in Section 8 of this Agreement.
8. Financial Information
For the above media relations services, Merger will be compensated by the
Company in the amount of three thousand dollars ($3,000) for each months this
Agreement is valid. The above prices do not include taxes.
If this Agreement is canceled and a partial month's payment is due to Merger,
that period's cash payment shall be prorated according to the number of days in
that pay period and the Company shall make payment of that adjusted amount to
Merger immediately.
Payment for the first month's invoice ($3,000) is due to Merger upon the signing
of this Agreement. All subsequent invoices shall be paid to Merger within
fourteen (14) days of their receipt by the Company.
Payment for all pro-approved out of pocket expenses, such as but not limited to,
expenses related to video production, duplication or monitoring services
(section 2-3), necessary travel or additional press release/article idea
distribution via newswire services (section 2.1), shall be invoiced to the
Company immediately upon occurrence. All out of pocket expenses over to hundred
dollars ($200,00) shall he pre-approved by the Company prior to being undertaken
by Merger.
This Agreement shall be reviewed by Merger and the Company on a quarterly basis
(on or about the first (1st day of July, October, January and April) for as long
as this Agreement is valid. If either party decides during the quarterly reviews
changes are necessary, both parties shall either agree to make changes or cancel
this Agreement immediately.
<PAGE>
9. Miscellaneous
9.1 Notes
All reports, communications, requests, demands or notices required by or
permitted under this Agreement shall be in writing and shall be deemed to be
duly given on the date same is sent and acknowledged via hand delivery,
facsimile reputable overnight delivery service (with a copy simultaneously sent
by registered mail), or, if maps five (5) days after mailing by certified or
registered mail, return receipt requested , to the party concerned at the
following address:
Merger Communications, Inc.
1770 St. James Place, Suite 515
Houston, TX 77056
Tel.- (713) 267-2329
Fax: (713) 572-2566
Attn: David Drake
Marketcentral.net Corp
300 Mercer Street, Suite 26J
New York. NY 10003
Tel- (977) 257-3607
Fax: (604) 257-3512
Attn; Frank Evanshen
Any party may change the address to which such notices and communications shall
be sent by written notice to the other Parties, provided that any notice of
change of address shall be effective only upon receipt,
9.2 Integration
This Agreement sets forth the entire Agreement and understanding between the
parties, or to the subject matter hereof and superseded and merges all prior
discussion, arrangements and agreements between them.
9-3 Amendments
This Agreement may not be amended or modified except by written instrument
signed by each of the parties hereto.
9.4 Interpretation
This Agreement shall be construed by and interpreted in accordance with the laws
of the State of Texas, without regard to principles of conflict of law. The
headings given to the paragraphs of this Agreement are for the convenience of
the parties only and are not to be used in any interpretation of this Agreement.
<PAGE>
9.5 Jurisdiction,
The parties hereby (I) agree that the State and federal courts sitting in the
State of Texas, County of Harris shall have exclusive jurisdiction in any action
arising ou of or connected in any way with this Agreement; (ii) each consent to
personal jurisdiction of and vune in any such matter; and (iii) further agree
that the service of process or of any other papers with respect to such
proceedings upon them by mail in accordance with the provisions set out in
Article 9.1 hereof shall be deemed to have been duly given to and received by
them five (5) days after the date of certified mailing and shall constitute
good, paper and effective service.
9.6 Severability
In the event that any one or more provisions of this Agreement shall be held
invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
9.7 Waiver
No failure or delay on the part of either party in exercising any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof of the exercise of any other power or right. No waiver by
either party of any provision of this Agreement, or of any breach of default,
shall be effective unless in writing and signed by the party whom such waiver is
to be enforced. All rights and remedies provided for herein shall be cumulative
and in addition to any other rights or remedies such parties may have at law or
in equity.
9.8 Counterparts.
This Agreement may be executed in one or more counterparts, all of which taken
together shall be deemed an original.
- --------------------------------------------------------------------------------
Exhibit 6.4
Creative Web Site Design and Hosting Agreement
- --------------------------------------------------------------------------------
<PAGE>
Creative Web, Inc.
(lower case script)
March 26,1998
MarketCentral.net
300 Mercer Street
Suite 26-J
New York, NY
Attn: Roy Spectorman
Re: Creative Web Site Design and Hosting Services Agreement
Dear Mr. Spectoman:
This letter agreement (hereinafter, this "Agreement") sets forth the terms under
which Creative Web, Inc. ("Creative Web") will provide MarketCentral ("Client")
with certain services ("Service") described below.
1. Creative Web will provide Client with the following services;
1.1 Creative Web will distribute on-line content (the "Content')
provided by Client. Client hereby represents and warrants to
Creative Web that Client has the rights, or required written consent
of all necessary parties (including, without limitation, all
artists, performers, producers, composers, writers, and labels), for
the distribution of the Content over the Internet, and will provide
such consents to Creative Web upon request.
1.2 Client will receive the following hosting services:
30 MB of disk space and 2.5 GB of data transfer per mouth
Web usage statistics accessed via WWW
Corporate E-mail Forwarding (1 box)
Chat Server Hosting (3 Rooms)
2. Client agrees to pay (Creative Web design fees according to the following
rates, Client, will pay Creative Web $75 per hour for HTML pages designed
or redesigned by Creative Web. Client will pay Creative Web $85 per hour
for the design or redesign of custom graphics. Payment will be made
according to the following schedule. A retainer of $2000 will be paid each
month. At end of Agreement period, the balance, if any, will be, paid in
full to Creative Web within 30 days. Conversely, at the end of this
Agreement, any credit due Client will be applied to future work performed
by Creative Web.
3. In addition, Client agrees to pay Creative Web $375.50 per month, payable
in advance each month during the term hereof, for the hosting and
maintenance services provided by Creative Web. Said monthly fee shall be
<PAGE>
prorated accordingly in the event that this Agreement commences or expires
on a date other than the first day or last day, respectively, of a month,
4. Client agrees to pay Creative Web $2 per 1MB of disk space over 30 MB used
per month, and $0.12 per MB of data transfer over 2.5 GB per month.
5. Creative Web shall negotiate with InterNIC to have the Client's registered
domain name assigned the Internet Protocol (hereafter "IP") address
corresponding with the Creative Web server hosting the Client content. The
domain name and IP address are as follows:
mktcentral.com 206.243.242.75
6. This agreement shall be effective for the period beginning March 1, 1998
and ending February 28, 1999.
7. Client agrees that the, Content will comply in all respects with the
Content Editorial Standards as established by Creative Web from time to
time (including without limitation the current Content Editorial Standards
as; set forth on Exhibit 1, attached hereto).
8. Without limitation of the foregoing, Creative Web will have the right to
remove, without prior notice to Client, any Content that in Creative Web's
sole opinion does not comply with the content Editorial Standards or that
could subject Creative Web to potential liability to a third party.
Creative Web will use reasonable efforts to notify Client following any
removal of any Content from the Service's network.
9. In the event that any virus or destructive element is found in or
furnished with any Content, Client will use its best effort upon learning
that such situation exists, to immediately eliminate the virus or
destructive element. Client will notify Creative Web as to the have of any
such virus or destructive element immediately upon discovery thereof, and
Creative Web will have, the right (at Client's expense) to take any steps
it deems necessary to eliminate the virus or destructive element
10. Client warrants and represents to Creative Web that: (a) the content will,
at all times, adhere, to and comply with the Content Editorial Standards;
(b) Client has the fight, power and authority to enter into this Agreement
and neither the Content or other materials appearing on the Web site, nor
Client's exploitation thereof by means of the Web site, will violate or
infringe upon the copyright patent, literary, privacy, publicity,
trademark, source mark or any other personal, moral or property right of
any Person, or constitute a libel or defamation of any Person whatsoever;
(c) Client is and will continue to be the sole owner of all right, title
and interest, including without limitation all rights under copyright, in
and to the Content and each element thereof, except for elements of the
content which are (i) validly licensed to Client for use as contemplated
herein, or (ii) in the public domain; (d) Client will comply in all
Material respects with all applicable federal, state and local laws,
statues, ordinances, rules and regulations within the United States and
any foreign country having jurisdiction, and all applicable rules,
regulations and requirements of any union or guild having jurisdiction;
(e) the Content and all other materials furnished by Client hereunder
shall at all times be free from viruses and destructive features; and (f)
the, Content will be factually accurate and will not cause any loss,
injury, damage or death.
<PAGE>
II. Warranties and Exclusions
11.1 Creative Web warrants that the service will perform as described.
Creative Web does not warrant that the operation of the service will be
uninterrupted or error free. In the event of improper performance or
nonperformance of the Service, Creative Web will provide a refund, credit
or other reimbursement of the charges paid to Creative Web for any portion
of the service.
11-2 EXCEPT AS SPECIFCALLY SET FORTH HEREIN, CREATIVE WEB MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE WEB SITE OR THE SERVICE PROVIDED OR THE FUNCTIONALITY,
PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMMITING THE FOREGOING,
CREATIVE WEB DOES NOT WARRANT THAT THE WEB SITE OR THE SERVICES PROVIDED
OR THE OPERATION THEREOF ARE OR WILL BE ACCURAT, ERROR-FREE OR
UNINTERRUPTED OR MEETS OR WILL MEET CLIENT'S REQUIREMENTS.
12. Limitation of Liability
12.1 CREATIVE WEB'S ENTIRE LIABILTY AND CLIENT'S REMEDY FOR LOSS OR DAMAGE
CAUSED BY ANY SOFTWARE DEFECT OR FAILURE, OR ARISING FROM CREATIVE WEB'S
PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY
OR OTHERWISE WILL BE NO MORE THAN AS FOLLOWS:
A. FOR IMPROPER PERFORMANCE OR NONPERFORMANCE OF THE
SERVICE. THE AMONNT OF THE CHARGES PAID TO CREATIVE
WEB FOR THE PORTION OF THE SERVICE THAT PERFORMED
IMPROPERLY OR FAILED TO PERFORM.
B. FOR BODILY INJURY OR DEATH TO ANY PERSON NEGLIGENTLY
CAUSED BY CREATIVE WEB, YOUR RIGHT TO PROVEN DAMAGES.
C. FOR CLAIMS OTHER THAN THOSE SET FORTHI ABOVE,
CREATIVE WEB'S LIABILTY MUST BE LIMITED TO DIRECT
DAMAGES WHICH ARE PROVEN IN AN AMOUNT NOT TO EXCEED
THE LESSER OF (1) THE FEES AND CHARGES ACTUALLY PAID
TO CREATIVE WEB HEREUNDER FOR NO MORE THAN SIX MONTHS
PRIOR TO THE DATE ON WHICH THE CLAIM AROSE OR (2)
U.S. $1,000.
12.2 CLIENT HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF
THE CONTENT AND/OR CLIENTS DATA USED OR GENERATED IN CONNECTION WITH THE
SERVICES OR THE WEB SITE. CLIENT WILL HAVE NO CLAIM AGAINST CREATIVE WEB
FOR INTERRUPTED COMMUNICATIONS, LOST DATA, RE-RUN TIME, INACCURATE INPUT,
WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF CREATIVE WEB
SERVICES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, IN NO EVENT WILL
CREATIVE WEB HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL,
INDIRECT, INCIDENTAI, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR
INTERUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN
CONECCTION WITH THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, THE
SERVICES BY THE CLIENT EVEN IF CLIENT OR CREATIVE WEB HAVE BEEN ADVISED OF
<PAGE>
OR KNOW OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. CREATIVE WEB
WILL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES CAUSED BY ACTS OR EVENTS
BEYOND ITS REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF GOD,
FIRES, FLOODS, WARS, CIVIL DISTUBANCES, SABOTAGE, ACCIDENTS, LABOR
DISPUTES, GOVERNMENTAL ACTIONS, AND FAILURES OR DELAYS OF TANSPORTATION
AND/OR TRANSMISSION.
13, Indemnification
Client will at all times indemnify and hold harmless Creative Web its Parent
subsidiaries, and/or affiliates and the employees, officers, director,
shareholders, licencors, agents, and suppliers and the successors and assigns of
each of them from and against any and all third party claims, damages,
Liabilities, personal injuries, death, costs and expenses, including reasonable
legal fees and expense arising out of or relating to (i) any alleged inaccuracy,
omission, or deficiency with any of the Content, including, without limitation,
any alleged infringement on the part of the Content of any copyright, patent,
literary, privacy, publicity, trademark, service mark or any other personal,
mural contract or property right of any third party, (ii) the products or
service offered by means of Client Web site (including without limitation claims
of negligence, strict liability misrepresentation or defects/deficiencies with
such products or services) or (iii) Client's failure or alleged failure to
comply with the terms of this Agreement (including without limitation the
Content Editorial Standards). Creative Web will give Client written notice of
any claim, action or demand for which indemnity is claimed. Creative Web will
have the right, but not the obligation, to control the defense and/or settlement
of any claim in which it is named as a party. Client will have the right to
participate in any defense of a claim by Creative Web with counsel of Clients
choice at Client's own expense.
14 This Agreement and Client's right to use the Service may be terminated (i) by
Client providing no less than thirty days' notice to Creative Web or (ii) by
Creative Web providing no less than thirty days notice to Client. The provisions
by which by their nature would survive the termination of the Agreement,
including without limitation the sections captioned "Warranties and Exclusions,"
"Limitation of Liability" and "Indemnification," will survive any termination of
this Agreement. Client acknowledges and agrees that the IP address assigned to
Client for Client's use in connection with the Service hereunder will at all
times remain the property of Creative Web and that, upon termination of this
Agreement, client will have no further right to use such IP address.
15. This Agreement, and any dispute which may arise hereunder, shall be governed
by and subject to the laws of the State of New Jersey without regard to choice
of law provisions. The parties agree, however, that any dispute hereunder shall
be reviewed by arbitration in accordance with the rules and procedures of the
American Arbitration Association, which arbitration shall take place in Passaic
County, New Jersey.
16. Should any part of this Agreement be found to be illegal or otherwise
unenforceable, both parties shall continue to be bound under the remaining
provisions hereof, and any such unenforceable or illegal provision shall be
automatically replaced with a provision as similar as possible to the illegal or
unenforceable provision so as to be enforceable, legal, and valid.
17. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Creative Web has the right
to assign this Agreement.
18. The parties are independent parties and no partner ship, agency
relationship, joint venture or enterprise shall be created or inferred by the
existence or performance of this Agreement.
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19. The individual executing the Agreement on Behalf of Client hereby represents
and warrants that, (i) he or she has the, authority to legally bind Client; (ii)
he or she has been duly authorized to execute this and (iii) all necessary
Client corporate actions and requirements for execution, if any, have been taken
or have been satisfied.
20. This Agreement may be, executed in one or more counterparts which when taken
together, shall constitute one and the same document. The parties hereby agree
that facsimile signatures are valid and binding on the parties,
21. Notwithstanding Item 12, Creative Web shall identify and hold Client
harmless for any cause of action arising out of Creative Web's willful or
negligent actions.
Exhibit I
Content and Editorial Standards
1. Client may not upload any information which is libelous, defamatory or
which violates or infringes any right of privacy of any Person.
2. Client may not upload any messages, data, images, or programs which are
indecent, obscene, or pornographic.
3. Client may not upload any information, messages, data, images or programs
that would violate any applicable federal, state or local law of the
United States or any foreign country having jurisdiction.
4. Client may not upload any messages, data images or programs that would
violate the property rights of others, including unauthorized Copyrighted
text, images or programs, trade secrets or other confidential proprietary
information, or trademarks or service marks used in an infringing fashion.
5. Client may not use the facilities and capabilities of Creative Web to
conduct or solicit the performance of any illegal activity or to conduct
any other activity which infringes the rights of Creative Web or any third
party.
6. Client may not upload any information, messages, data images or programs
that are discriminatory or otherwise offensive, as determined by Creative
Web, in its reasonable discretion.
7. For purposes of the Agreement of which these Content Editorial Standards
are part, any information that is available on the Web site, whether
uploaded by Client or made available by other means (including, without
limitation, an HTML "hot link", a third party posting or similar means)
will be deemed to have been uploaded by Client and therefore to be subject
to those Content Editorial Standards.
