U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS UNDER
SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
MERCURY SOFTWARE
(Name of Small Business Issuer in its charter)
Nevada 52-1146119
- ------------------------------------------ ---------------------------
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.
827 State Street, Suite 26
Santa Barbara, CA 93101
- ------------------------------------------ ---------------------------
(Address of principal executive offices) (Zip Code)
Issuer's telephone number, including area code 805-899-1299
Securities to be registered under Section 12(g) of the Act:
Title of each class Name of each exchange on which
to be so registered such class is to be registered
None N/A
----------------------------------------- ---------------------------
Common Stock, $.001 par value
-----------------------------
(Title of class)
Item 1. DESCRIPTION OF BUSINESS
BUSINESS DEVELOPMENT
Mercury Software (the "Company"), a Nevada Corporation, was incorporated on
January 29, 1997. The Company is a development stage company, engaged in the
business of software sales and computer services. The Company's plan is to
develop its Internet web site and offer discount sales of software to the
public, with after market support by local support teams of computer and
software technicians and personnel.
Government approval is not necessary for the Company's business, and
government regulations have no or only a negligible effect on their respective
businesses.
The Company has not booked any significant research and development
costs and therefor do not expect to pass any of those costs to customers. And
has no product development or research and development costs.
The Company's mailing address is 827 State Street, Suite 26, Santa
Barbara, CA 93101. The telephone number of its principal executive office is
(805) 560-1308.
IN GENERAL - THE COMPANY
The Company was organized for the purpose of engaging in the business of
software sales and computer services. The Company's plan is to develop its
Internet web site and offer discount sales of software to the public, with
after market support by local support teams of computer and software
technicians and personnel.
THE INDUSTRY
The Internet industry is a young industry, but one of the fastest growing
industries in the country. The Company has seen a market niche in providing
computer software and hardware sales, coupled with local aftermarket support,
as opposed to an Internet sale that never involves the prospect of human
contact, if the customer has a problem or a question.
MARKETING
To supplement the programs and generate interest in Company products, the
Company will establish a web site on the Internet, which will offer the
company's products for sale to the Internet consumer. In addition, the Company
will promote its web site and its products by conventional advertising and
marketing. With the proceeds of this offering, the Company plans to hire a
sales force and offer "multi-level marketing" incentives for sales.
THE PRODUCTS
The Company offers a full line of computer software and games manufactured by
others.
PATENTS
The Company holds no patents for its products.
RAW MATERIALS AND PRINCIPAL SUPPLIERS AND VENDORS
The Company does not manufacture its products and, therefore, does not utilize
raw materials. The Company obtains products from suppliers such as Merisel,
Ingram Micro, and ASCII.
COMPETITION
The business of providing retail computer software sales is one of intense
competition. Other companies making Internet software sales and other
companies with one or more affiliate or retail locations have financial
resources superior to the Company, so there can be no assurance that the
Company's projected income will not be affected by its competition. There are
also many other companies with greater financial resources that the Company who
offer computer sales on the Internet. However, the Company feels it is able to
compete adequately with these other companies, by maintaining and updating its
website to insure that it receives recognition from the Internet search engines
on an ongoing basis. However, there can be no assurance that companies with
greater buying power will be able to undercut the Company's pricing structure.
GOVERNMENT REGULATION
Government approval is not necessary for the Company's business, and government
regulations have no effect or a negligible effect on its business.
EMPLOYEES
The Company presently employs one employee, the President, Jeffrey Volpe, who
devotes his part time efforts to the Company.
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF PLAN OF OPERATIONS
PLAN OF OPERATIONS
The Company is engaged in the business of software sales and computer services.
The Company's plan is to develop an Internet web site and offer discount sales
of software to the public, with after market support by local support teams of
computer and software technicians and personnel. The Company has financed its
operations to date through the sale of its securities. See Item 10 - "Recent
Sales of Unregistered Securities."
During the next twelve months, the Company plans to satisfy its cash
requirements by additional equity financing. The Company has no current
material commitments. The Company intends to undertake a subsequent private
placement of its common stock in order to raise future development and
operating capital. The Company depends upon capital to be derived from future
financing activities such as subsequent offerings of its stock. There can be no
assurance that the Company will be successful in raising the capital it
requires through the sale of its common stock.
The Company has no current material commitments. The Company will seek to raise
capital as a cash reserve, but there can be no assurance that the Company will
be successful in raising the capital it needs through sales of its common
stock.
There is no contemplated product research and development costs the Company
will perform for the next twelve months. There is no expected purchase or sale
of any plant or significant equipment, and there is no expected significant
changes in the number of employees contemplated.
The Company's plan of operations over the next 12 months includes the
implementing its marketing plan by developing its web site, and vigorously
promoting free memberships therein, which will enable members to purchase
software at significant retail discounts. The Company will seek to foster long
term relationships and word of mouth referrals through customer service and
will seek to acquire affiliates through this process to establish affiliated
retail locations. Operators of retail locations will split 50% of gross profits
from all sales and services.
PATENTS
The Company holds no patents for its products. The Company owns the domain
name for its Web site, http://www.internetsoftwaresales.com.
FORWARD LOOKING STATEMENTS
This registration statement contains forward-looking statements. The Company's
expectation of results and other forward-looking statements contained in this
registration statement involve a number of risks and uncertainties. Among the
factors that could cause actual results to differ materially from those
expected are the following: business conditions and general economic
conditions; competitive factors, such as pricing and marketing efforts; and the
pace and success of product research and development. These and other factors
may cause expectations to differ.
YEAR 2000 COMPLIANCE
With respect to Year 2000 compliance, the Company has performed an audit of all
of its computer hardware, internal accounting and software applications; in
short, all of its information technology and non information technology
systems, and found all to be Year 2000 compliant. As of this date, the Company
has been given assurances from its banking institution and transfer agent that
they are working toward compliance or are in compliance. The Company has
completed an audit of its vendors and suppliers to identify relevant Year 2000
issues, and has found them all to be Year 2000 compliant. The status of the
company's progress is that it has completed all that it must do in order to be
considered Year 2000 compliant. The worst case scenario would be the risk that
the company's transfer agent may have not complied adequately. However, the
transfer agent has assured the Company that it is Year 2000 compliant. The
Company had nominal costs in becoming compliant, consisting of employee labor
and no actual costs to any third parties. The Company does not anticipate any
additional remediation costs, as it is already Year 2000 compliant.
DESCRIPTION OF PROPERTY
The Company rents professional offices from its attorney, Kenneth G. Eade, on a
month to month basis, pursuant to an oral agreement. The Company owns the
domain name for its Web site, http://www.internetsoftwaresales.com. The
Company has no other property, other than office equipment.
Item 4. SECURITIES OWNERSHIP OF MANAGEMENT AND CONTROLLING PERSONS
The following table sets forth certain information regarding the beneficial
ownership of the shares of Common Stock of the Company as of the date of this
disclosure(1), by (I) each person who is known by the Company to be the
beneficial owner of more than five percent (5%) of the issued and outstanding
shares of common stock, (ii) each of the Company's directors and executive
officers, and (iii) all directors and executive officers as a group.
Name and Address Number of Shares Percentage Owned
- ---------------- ---------------- ----------------
Agata Gotova(2) 900,000 76.46%
827 State Street
Santa Barbara, CA 93101
Jeffrey Volpe 100,000 8.49%
P.O. 2132
Ventura, CA 93002
Richard Tearle 75,000 6.37%
1216 State Street #305
Santa Barbara, CA 93101
Holly Palm 100,000 8.49%
Officers and Directors 1,000,000 84.95%
as a Group
- ------------
(1) Table is based on current outstanding shares of 1,177,100.
(2) Agata Gotova is the wife of the Company's attorney, Kenneth G. Eade.
.
Item 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
Directors are elected by the shareholders to terms of one year. Officers serve
at the pleasure of the Board of Directors, and serve one year terms unless
removed by the Board prior to their terms.
The Executive Officers of the Company and its subsidiaries, and their ages, are
as follows:
Name Age Position
------------- --- -------------------
Jeffrey Volpe 43 President, Director
Agata Gotova 33 Secretary, Treasurer,
Director
Jeffrey Volpe. Mr. Volpe is the President, Chief Executive Officer, and
Director of the Company and has over twelve years' experience in computer
programming plus extensive experience with network administration using
WindowsNT and UNIX. His experience continues to website development and related
HTML mark-up language and PERL and CGI scripting. Prior to that he developed
scripts and macros for office automation and efficiency.
Agata Gotova. Ms. Gotova is the current Secretary, Chief Financial Officer and
Director of the Company. For the past five years, she has been engaged in the
import and export business, specializing in trade with Russia and the former
Soviet Republics. For a period of four years prior to 1997, Ms. Gotova resided
and did business in Paris, France. She speaks French, English and Russian
fluently. Ms. Gotova was educated at the University, Minister of International
Affairs, Moscow, and Sorbonne University, Paris.
Item 6. EXECUTIVE COMPENSATION
The following table sets forth the cash and non-cash compensation paid by the
Company to its Chief Executive Officer and all other executive officers for
services rendered up to the period ended September 30, 1999. No salaries are
being paid at the present time, and will not be paid unless and until there is
available cash flow from operations to pay salaries. There were no grants of
options or SAR grants given to any executive officers during the last fiscal
year.
Annual Compensation
-------------------
Name and Position Salary Bonus Annual Deferred Salary
Jeffrey Volpe, President $2000.00 0 0
Item 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company has no promoters. The Company rents its offices from its attorney,
Kenneth G. Eade on a month to month basis on an arms length basis for an
insignificant amount of monthly rental.
On March 1, 1999, the Company issued 100,000 shares to Jeffrey Volpe in
exchange for services, 75,000 shares to Richard Tearle in exchange for
services, and 900,000 shares to Agata Gotova in exchange for organizational
costs. These shares were issued without registration pursuant to an exemption
from registration contained within Section 4(2) of the Securities Act of 1933,
to sophisticated investors who had full access to company financial and other
information.
On April 6, 1999, the Company issued 102,100 shares of common stock in a
Regulation D Rule 504 offering to 22 individuals, in exchange for $2200.00 in
gross offering proceeds.
There have been no other transactions since the beginning of fiscal year 1998,
or any currently proposed transactions, or series of similar transactions, to
which the Company was or is to be a party, in which the amount involved exceeds
$60,000, and in which any of the officers, or directors, or holders of over 5%
of the Company's stock have or will have any direct or indirect material
interest. The Company does not currently have any policy toward entering into
any future transactions with related parties.
Item 8. LEGAL PROCEEDINGS
There are no pending legal proceedings to which the Company is a party or to
which the property interests of the Company is subject.
Item 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
The Company's common stock is not listed or quoted at the present time, and
there is no present public market for the Company's common stock. The Company
has obtained a market maker and who intends to file a form 211 with the
National Association of Securities Dealers to quote the Company's securities on
the NASD OTC Bulletin Board, but there can be no assurance that the Company's
stock will be quoted on the NASD OTC Bulletin Board. The filing of the Form
211 is contingent upon this form 10 becoming effective with no pending comments
by the S.E.C.
The Company has not paid any cash dividends since its inception and does not
contemplate paying any in the foreseeable future. It is anticipated that
earnings, if any, will be retained for the operation of the Company's business.
Item 10. RECENT SALES OF UNREGISTERED SECURITIES
On March 1, 1999, the Company issued 100,000 shares of restricted common stock
to Jeffrey Volpe in exchange for services, 75,000 to Richard Tearle in exchange
for services, and 900,000 shares of restricted common stock to Agata Gotova in
exchange for organizational costs. These shares were issued without
registration pursuant to an exemption from registration contained within
Section 4(2) of the Securities Act of 1933, to sophisticated investors who had
full access to company financial and other information.
From March 1, 1999 through April 6, 1999, the Company offered 1,000,000 of its
common shares at the price of $1.00 per share, in a private offering exempted
from registration pursuant to Regulation D, Rule 504 of the Securities and
Exchange Commission. On April 6, 1999, the offering was closed, and the
Company issued 102,100 shares of common stock in a Regulation D Rule 504
offering to 22 individuals, in exchange for $2200.00 in gross offering
proceeds.
Item 11. DESCRIPTION OF SECURITIES
COMMON STOCK
The Company is authorized to issue 20,000,000 Shares, all of which are Common
Stock at a par value of $.001. The presently outstanding shares of Common Stock
are fully paid and non- assessable. There are currently outstanding 2,018,886
1,177,100 Shares of Common Stock. Holders of shares of Common Stock are
entitled to one vote per share on all matters submitted to a vote of the
shareholders. Shares of Common Stock do not have cumulative voting rights,
which means that the holders of the majority of the shareholder votes eligible
to vote and voting for the election of the Board of Directors can elect all
members of the Board of Directors. Holders of shares of Common Stock are
entitled to one vote per share on all matters to be voted upon by the
stockholders generally. The approval of proposals submitted to stockholders at
a meeting other than for the election of directors requires the favorable vote
of a majority of the shares voting, except in the case of certain fundamental
matters (such as certain amendments to the Certificate of Incorporation, and
certain mergers and reorganizations), in which cases Delaware law and the
Company's Bylaws require the favorable vote of at least a majority of all
outstanding shares.
Stockholders are entitled to receive such dividends as may be declared from
time to time by the Board of Directors out of funds legally available therefor,
and in the event of liquidation, dissolution or winding up of the Company to
share ratably in all assets remaining after payment of liabilities. The holders
of shares of Common Stock have no preemptive, conversion, subscription or
cumulative voting rights.
Under current Nevada law, a shareholder is afforded dissenters' rights which,
if properly exercised, may require the Company to purchase his or her shares.
Dissenters' rights commonly arise in extraordinary transactions such as
mergers, consolidations, reorganizations, substantial asset sales, liquidating
distributions, and certain amendments to the Company's certificate of
incorporation.
Item 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS
NEVADA STATUTES
NRS 78.751 provides that the Company may provide in its articles of
incorporation, by laws or by agreement, to indemnify the Company's officers and
directors and affects their liability in that capacity, for any and all costs
incurred in defending a civil or criminal action, suit or proceeding must
be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director or officer to repay the amount
if it is ultimately determined by a court of competent jurisdiction that he
is not entitled to be indemnified by the corporation. The provisions of
this subsection do not affect any rights to advancement of expenses to
which corporate personnel other than directors or officers may be entitled
under any contract or otherwise by law.
The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to the statute:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except
that indemnification, unless ordered by a court pursuant to NRS 78.7502 or
for the advancement of expenses made pursuant to subsection 2, may not be
made to or on behalf of any director or officer if a final adjudication
establishes that his acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to the cause of
action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
ARTICLES OF INCORPORATION AND BY-LAWS
The Company's Articles of Incorporation, Article VIII, provides that the
Company shall, to the fullest extent legally permissible under the provisions
of the General Corporation Law of the State of Nevada, indemnify and hold
harmless officers and directors from any and all liabilities and expenses
imposed upon them in connection with any action, suit or other proceeding.
Item 13. FINANCIAL STATEMENTS
Report of Independent Certified Public Accountant dated September 30, 1999
Financial Statements
Balance Sheets
Statement of Loss and Accumulated Deficit
Statements of Stockholder's Equity
Statements of Cash Flows
Notes to Financial Statements
ROGELIO G. CASTRO
Certified Public Accountant
REPORT OF INDEPENDENT AUDITOR
To the Shareholders and Board of Directors
Mercury Software
I have audited the accompanying balance sheets of Mercury Software (A
Development Stage Company) as of September 30, 1999 and December 31, 1998 and
the related statements of income, stockholders' equity, and cash flows for the
six months ended September 30, 1999 and the year then ended. These financial
statements are the responsibility of the Company's management. My
responsibility is to express an opinion on these financial statements based on
my audit.
I conducted my audit in accordance with generally accepted auditing standards.
Those standards require that I 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. I believe that my audit provides a reasonable basis for our
opinion.
In my opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Mercury Software A Development
Stage Company) at September 30, 1999 and December 31, 1998, and the results of
operations and cash flows for the year period January 29, 1997 (inception)
through September 1999, in conformity with generally accepted accounting
principles.
Oxnard, California
/s/ Rogelio G. Castro
November 4, 1999
[CAPTION]
Mercury Software
(A Development Stage Company)
BALANCE SHEET
AS OF SEPTEMBER 30, 1999 AND DECEMBER 31, 1998
September 30 December 31
1999 1998
ASSETS
Current Assets:
Cash $ - $ -
Total Current Assets ------ ------
- -
------ ------
TOTAL ASSETS $ - $ -
______ ______
------ ------
LIABILITIES & STOCKHOLDERS' EQUITY
Current Liabilities
Total Current Liabilities $ 185 $ 185
------ ------
Stockholders' Equity:
Common stocks, $.001 par value
Authorized shares - 25,000,000
Issued and outstanding shares
1,077,000 issued and outstanding 1,077 975
Paid in capital - -
Deficit accumulated during
development stage ( 1,262) (1,160)
------ ------
Total Stockholders' Equity (185) ( 185)
------ ------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ - $ -
------ ------
$ - $ -
______ ______
------ ------
[CAPTION]
Mercury Software
(A Development Stage Company)
STATEMENT OF INCOME FOR THE SIX MONTHS ENDED
SEPTEMBER 30, 1999 AND FOR THE YEAR
ENDED DECEMBER 31, 1998 AND FROM MAY 27, 1998
(INCEPTION) THROUGH SEPTEMBER 30, 1999
Cumulative
During
Development September 30 December 31
Stage 1999 1998
Income
Sales $ -0- -0- -0-
----- ----- -----
Total Income - - -
----- ----- -----
Expenses:
General & Administrative Expenses 1,262 102 -
----- ----- -----
Total Expenses 1,262 102 -
----- ----- -----
Loss per common share ( 0.00) - -
===== ===== =====
[CAPTION]
Mercury Software
(A Development Stage Company)
STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED SEPTEMBER 30, 1998
AND FOR THE YEAR ENDED DECEMBER 31, 1998
AND FROM JANUARY 29, 1997 (INCEPTION) THROUGH
SEPTEMBER 30, 1999
Cumulative
During
Development September 30 December 31
Stage 1999 1998
CASH FLOWS FROM OPERATING ACTIVITIES
Net Loss $( 1,262) $ ( 102) $ -
Adjustments to reconcile
net loss to net cash provided by
operating activities:
Stocks issued for services 1,262 102 -
----- ----- -----
NET CASH PROVIDED (USED)
BY OPERATING ACTIVITIES - - -
----- ----- -----
INCREASE IN CASH - - -
----- ----- -----
INCREASE IN CASH - - -
BEGINNING CASH -0- 1,000 -
----- ----- -----
ENDING CASH $ - - -
===== ===== ======
[CAPTION]
Mercury Software
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF STOCKHOLDERS' EQUITY
FROM JANUARY 29, 1998 (INCEPTION)
THROUGH SEPTEMBER 30, 1999
Common Accumulated
Shares Stock @ Retained
Outstanding Par Value Deficit
----------- ---------- ----------
Balance at January 29, 1997
(Inception)
Stocks issued for services 975,000 $ 975
Net loss - January 29, 1997
(inception) through
December 31, 1997 $ (1,160)
--------- ------ -------
Balance at December 31, 1997 975,000 975 (1,160)
--------- ------ -------
Balance at December 31, 1998 975,000 975 (1,160)
Stocks Issued for Cash 102,100 102
Net Loss September 30, 1999 (102)
-------- ------ -------
--------- ----- -------
Balance at September 30, 1999 1,077,100 $1,077 $( 1,262)
========= ===== =======
[CAPTION]
Mercury Software
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
NOTE 1. DESCRIPTION OF THE BUSINESS
Mercury Software (the Company) was incorporated under the laws of the state of
Nevada on January 29, 1997. The purpose for which the Corporation is organized
is to engage in any lawful act or activity for which a corporation may be
organized under the General Corporation Law of the State of Nevada including,
without limitation, to provide sales of computer related software and related
services. The Company has been in the development stage since its formation on
January 29, 1997. Planned principal operations have not commenced since then.
There were no significant activities from its inception date through September
30, 1999.
NOTE 2. SIGNIFICANT ACCOUNTING POLICIES
A. The Company uses the accrual method of accounting.
B. Revenues and directly related expenses are recognized in the period when
the goods are shipped to the customers.
C. The Company considers all short term, highly liquid investments that are
readily convertible, within three months, to known amounts as cash equivalents.
The Company currently has no cash equivalents.
D. Primary Earnings Per Share amounts are based on the weighted average number
of shares outstanding at the dates of the financial statements. Fully Diluted
Earnings Per Shares shall be shown on stock options and other convertible
issues that may be exercised within ten years of the financial statement dates.
E. Estimates: The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements
and accompanying notes. Actual results could differ from those estimates.
Item 14. EXHIBITS, FINANCIAL STATEMENTS
14(a) Report of Independent Certified Public Accountant April 28, 1999
Financial Statements
Balance Sheets
Statement of Loss And Accumulated Deficit
Statements of Stockholder's Equity
Statements of Cash Flows
Notes to Consolidated Financial Statements
(b) Reports on Form 8-K: Not Applicable
(c) Exhibits
Exhibit No. D E S C R I P T I O N
----------- ---------------------
3 (a) Articles of Incorporation Mercury Software
3 (b) By-laws of Mercury Software
4 (a) Specimen certificate of common stock
10 Other Documents - Not applicable
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Mercury Software
/s/ Jeffrey Volpe
_____________________________________
JEFFREY VOLPE, President and Director
Date: November 4, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
/s/ Jeffrey Volpe
_____________________________________
JEFFREY VOLPE, President and Director
Date: November 4, 1999
/s/ Agata Gotova
__________________________________________
AGATA GOTOVA, Secretary/Treasurer/Director
Date: November 4, 1999
EXHIBIT 3(a)
FILED IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
ARTICLES OF INCORPORATION
JANUARY 29, 1997
C1799-97
DEAN HELLER
SECRETARY OF STATE
ARTICLES OF INCORPORATION OF MERCURY SOFTWARE
The undersigned, being a natural person of full age and acting as the
incorporator, for the purpose of forming a corporation under the laws of the
State of Nevada, hereby adopts the following Articles of Incorporation and
declares:
FIRST: The name of the corporation (hereinafter referred to as "the
corporation") is: MERCURY SOFTWARE
SECOND: The place of the principal office of the corporation is 820 South
Sixth Street, Suite C, Las Vegas, Nevada 89101.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Nevada, other than the banking business, the trust company business, or
the practice of a profession permitted to be incorporated by law.
FOURTH: The amount of total authorized capital stock is Twenty-Five
Million (25,000,000) shares of capital stock, par value $0.001, all of which
are one class, to be designated "Common Stock."
FIFTH: Members of the governing board or this corporation shall be
designated directors, and there shall be at least one (1) director of this
corporation. The number of directors may be changed from time to time by
amendment to the corporation's by-laws. There is one director of this
corporation. The name and address of the first director is: RICHARD TEARLE,
143 South B Street, Oxnard, CA 93030.
SIXTH: No paid up capital stock issued as fully paid up, after the
amount of the subscription price has been paid in is subject to assessment to
pay the debts of the corporation.
SEVENTH: The name and address of the incorporator of this corporation is:
KENNETH G. EADE, ESQ.
143 South "B" Street, Suite 4
Oxnard, California 93030
EIGHTH: This corporation is to have perpetual existence.
NINTH: There shall be no liability on the part of a director or officer
of this corporation or its shareholders for damages for breach of fiduciary
duty, except for acts or omissions which involve intentional misconduct, fraud
or a knowing violation of law, or the payment of dividends in violation of NRS
78.300.
TENTH: The name and address in this state of the corporation's resident
agent is:
KENNETH G. EADE
820 South Sixth Street, Suite C
Las Vegas, Nevada 89101
IN WITNESS WHEREOF, the undersigned incorporator has executed these
articles of incorporation this 25th day of September, 1996.
STATE OF CALIFORNIA
COUNTY OF VENTURA
I, KENNETH G. EADE, being first duly sworn, depose and say that I am the
person who executed the foregoing Articles of Incorporation, and that the said
Articles of Incorporation are my own act and deed.
Executed at Oxnard, California, this 25th day of September, 1997.
/s/ KENNETH G. EADE
________________________
KENNETH G. EADE
Subscribed and sworn before me, Notary Public of the State of California
this 27th day of January, 1997.
/s/ KIMBERLY COE
________________________
Notary Public
[SEAL OF NOTARY PUBLIC]
EXHIBIT 3(b)
[DESCRIPTION]BY-LAWS OF Mercury Software, Inc.
BY-LAWS OF MERCURY SOFTWARE
ARTICLE I - OFFICES
The office of the Corporation shall be located in the City and State designated
in the Articles of Incorporation. The Corporation may also maintain offices at
such other places within or without the United States as the Board of Directors
may, from time to time determine.
ARTICLE II - MEETING OF SHAREHOLDERS
Section 1 - Annual Meetings:
The annual meeting of the shareholders of the Corporation shall be held within
five months after the close of the fiscal year of the Corporation, for the
purpose of electing directors, and transacting such other business as may
properly come before the meeting.
Section 2 - Special Meetings:
Special meetings of the shareholders may be called at any time by the Board of
Directors or by the President, and shall be called by the President or the
Secretary at the written request of the holders of ten per cent (10%) of the
shares then outstanding and entitled to vote thereat, or as otherwise required
under the provisions of the Business Corporation Law.
Section 3 - Place of Meetings:
All meetings of shareholders shall be held at the principal office of the
Corporation, or at such other places as shall be designated in the notices or
waives of notice of such meetings.
ARTICLE IV - OFFICERS
Section 1 - Number, Qualifications, Election and Term of Office:
(a) The officers of the Corporation shall consist of a President, a Secretary,
a Treasurer, and such other officers, including a Chairman of the Board of
Directors, and one or more Vice Presidents, as the Board of Directors may from
time to time deem advisable. Any officer other than the Chairman of the Board
of Directors may be, but is not required to be, a director of the Corporation.
Any two or more offices may be held by the same person.
(b) The officers of the Corporation shall be elected by the Board of Directors
at the regular annual meeting of the Board following the annual meeting of
shareholders.
(c) Each officer shall hold office until the annual meeting of the Board of
Directors next succeeding his election, and until his successor shall have been
elected and qualified, or until his death, resignation or removal.
Section 2 - Resignation:
Any officer may resign at any time by giving written notice of such resignation
to the Board of Directors, or to the President or the Secretary of the
Corporation. Unless otherwise specified in such written notice, such
resignation shall take effect upon receipt thereof by the Board of Directors or
by such officer, and the acceptance of such resignation shall not be necessary
to make it effective.
Section 3 - Removal:
Any officer may be removed, either with or without cause, and a successor
elected by a majority vote of the Board of Directors at any time.
Section 4 - Vacancies:
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the term by a majority vote of the Board of Directors.
Section 5 - Duties of Officers:
Officers of the Corporation shall, unless otherwise provided by the Board of
Directors, each have such powers and duties as generally pertain to their
respective offices as well as such powers and duties as may be set forth in
these by-laws, or may from time to time be specifically conferred or imposed by
the Board of Directors. The president shall be the chief executive officer of
the Corporation.
ARTICLE V - SHARES OF STOCK
Section 1 - Certificate of Stock:
(a) The certificates representing the shares of the Corporation shall be in
such form as shall be adopted by the Board of Directors, and shall be numbered
and registered in the order issued. They shall bear the holder's name and the
number of shares, and shall be signed by (I) the Chairman of the Board of the
Present or a Vice President, and (ii) the Secretary or Treasurer, or any
Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.
(b) No certificate representing shares shall be issued until the full amount
of consideration therefor has been paid, except as otherwise permitted by law.
(c) To the extent permitted by law, the Board of Directors may authorize the
issuance of certificates for fractions of a share which shall entitle the
holder to exercise voting rights, receive dividends and participate in
liquidating distributions, in corporation to the fractional holdings; or it may
authorize the payment in cash of the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined; or it
may authorize the issuance, subject to such conditions as may be permitted by
law, of scrip in registered or bearer form over the signature of an officer or
agent of the Corporation, exchangeable as therein provided for full shares, but
such scrip shall not entitle the holder to any rights of a shareholder, except
as therein provided.
Section 2 - Lost or Destroyed Certificates:
The holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it, alleged to have been
lost or destroyed. On production of such evidence of loss or destruction as
the Board of Directors in its discretion may require, the Board of Directors
may, in its discretion, require the owner of the lost or destroyed certificate,
or his legal representatives, to give the Corporation a bond in such sum as the
Board may direct, and with such surety or sureties as may be satisfactory to
the Board, to indemnify the Corporation against any claims, loss, liability or
damage it may suffer on account of the issuance of the new certificate. A new
certificate may be issued without requiring any such evidence or bond when, in
the judgement of the Board of Directors, it is proper so to do.
Section 6 - Sureties and Bonds:
In case the Board of Directors shall so require, any officer, employee or agent
of the Corporation shall execute to the Corporation a bond in such sum, and
with such surety or sureties as the Board of Directors may direct, conditioned
upon the faithful performance of his duties to the Corporation, including
responsibility for negligence and for the accounting for all property, funds or
securities of the Corporation which may come into his hands.
Section 7 - Shares of Other Corporations:
Whenever the Corporation is the holder of shares of any other corporation, any
right or power of the Corporation as such shareholder (including the
attendance, acting and voting at shareholders' meetings and execution of
waivers, consents, proxies or other instruments) may be exercised on behalf of
the Corporation by the President, any Vice President, or such other person as
the Board of Directors may authorize.
ARTICLE VI - DIVIDENDS
Subject to applicable law, dividends may be declared and paid of any funds
available therefor, as often, in such amounts, and at such time or times as the
Board of Directors may determine.
ARTICLE VII-FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of Directors
from time to time, subject to applicable law.
ARTICLE VIII-CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved from
time to time by the Board of Directors.
ARTICLE IX - AMENDMENTS
Section 1 - By Shareholders:
All by-laws of the Corporation shall be subject to alteration or repeal, and
new by-laws may be made, by the affirmative vote of shareholders holding of
record in the aggregate at least a majority of the outstanding shares entitled
to vote in the election of directors at any annual or special meeting of
shareholders, provided that the notice or waiver of notice of such meeting
shall have summarized or set forth in full therein, the proposed amendment.
Section 2 -By Directors:
The Board of Directors shall have power to make, adopt, alter, amend and
repeal, from time to time, by-laws of the Corporation; provided, however, that
the shareholders entitled to vote with respect thereto as in this Article IX
above-provided may alter, amend or repeal by-laws made by the Board of
Directors, except that the Board of Directors shall have no power to change the
quorum for meetings of shareholders or the Board of Directors, or to change any
provisions of the by-laws with respect to the removal of directors or the
filling of vacancies in the Board resulting from the removal by the
shareholders. If any by-law regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set
forth in the notice of the next meeting of shareholders for the election of
directors, the by-law so adopted, amended or repealed, together with a concise
statement of the changes made.
Section 3 - Transfers of Shares:
(a) Transfers of shares of the Corporation shall be made on the share records
of the Corporation only by the holder of record thereof, in person or by his
duly authorized attorney, upon surrender for cancellation of the certificate or
certificates representing such shares, with an assignment or power of transfer
endorsed thereon or delivered therewith, duly executed, with such proof of the
authenticity of the signature and of authority to transfer and of payment of
transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record of any
share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
Section 4 - Record Date:
In lieu of closing the share records of the Corporation, the Board of Directors
may fix, in advance, a date not exceeding fifty days, or less than ten days, as
the record date for the determination of shareholders entitled to receive
notice of, or to vote at, any meeting of shareholders, or to consent to any
proposal without a meeting, or for the purpose of determining shareholders
entitled to receive payment of any dividends, or allotment of any rights, or
for the purpose of any other action. If no record date is fixed, the record
date for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if no notice is given, the day
on which the meeting is held; the record date for determining shareholders for
any other purpose shall be at the close of business on the day on which the
resolution of the directors relating thereto is adopted. When a determination
of shareholders of record entitled to notice of or to vote at any meeting of
shareholders has been made as provided for herein, such determination shall
apply to any adjournment thereof, unless the directors fix a new record date
for the adjourned meeting.
Section 13 - Committees:
The Board of Directors, by resolution adopted by a majority of the entire
Board, may from time to time designate from among its members an executive
committee and such other committees, and alternate members thereof, as they
deem desirable, each consisting of three or more members, with such powers and
authority (to the extent permitted by law) as may be provided in such
resolution. Each such committee shall serve at the pleasure of the Board.
ARTICLE X - INDEMNITY
(a) Any person made a party to any action, suit or proceeding, by reason of
the fact that he, his testator or intestate representative is or was a
director, officer of employee of the Corporation, or of any Corporation in
which he served as such at the request of the Corporation, shall be indemnified
by the Corporation against the reasonable expenses, including attorney's fees,
actually and necessarily incurred by him in connection with the defense of such
action, suit or proceedings, or in connection with any appeal therein, except
in relation to matters as to which it shall be adjudged in such action, suit or
proceeding, or in connection with any appeal therein that such officer,
director or employee is liable for negligence or misconduct in the performance
of his duties.
(b) The foregoing right of indemnification shall not be deemed exclusive of
any other rights to which any officer or director or employee may be entitled
apart from the provisions of this section.
(c) The amount of indemnity to which any officer or any director may be
entitled shall be fixed by the Board of Directors, except that in any case
where there is no disinterested majority of the Board available, the amount
shall be fixed by arbitration pursuant to the then existing rules of the
American Arbitration Association.
The undersigned incorporator certifies that he has adopted the foregoing
by-laws as the first by-laws of the Corporation.
Dated: January 31, 1997
/s/ KENNETH G. EADE
- ----------------------------
Kenneth G. Eade, Incorporator
EXHIBIT 4.1
[DESCRIPTION]SPECIMEN OF COMMON STOCK CERTIFICATE
Mercury Software
[________]NUMBER SHARES[________]
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
25,000,000 SHARES COMMON STOCK AUTHORIZED, $.001 PAR VALUE
COMMON STOCK CUSIP 589410
SEE REVERSE FOR CERTAIN
DEFINITIONS
THIS CERTIFIES THAT
Is the RECORD HOLDER OF SHARES OF FULLY PAID AND NON-ASSESSABLE
SHARES OF COMMON STOCK OF MERCURY SOFTWARE TRANSFERABLE ON THE BOOKS OF THE
CORPORATION IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE AND THE SHARES REPRESENTED
HEREBY ARE SUBJECT TO THE LAWS OF THE STATE OF NEVADA, AND TO THE CERTIFICATE
OF INCORPORATION AND BYLAWS OF THE CORPORATION, AS NOW OR HEREAFTER AMENDED.
THIS CERTIFICATE IS NOT VALID UNTIL COUNTERSIGNED BY THE TRANSFER AGENT.
WITNESS the facsimile seal of the Corporation and the signature of its duly
authorized officers.
Dated:
[SEAL OF Mercury Software}
/s/ JEFFREY VOLPE /s/ AGATA GOTOVA
- ------------------------- -------------------
President Secretary
COUNTERSIGNED
AMERICAN REGISTRAR & TRANSFER CO.
342 E. 900 South
P.O. Box 1798
Salt Lake City, Utah 84110
By: ^^Illegible Signature^^
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -____Custodian____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act ________________________
tenants in common (State)
Additional abbreviation may also be used though not in above list.
FOR VALUE RECEIVED, _________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
__________________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Shares of the capital stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
__________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, _________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
