UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
BOOMERS.COM, INC.
(Name of Small Business Issuer in its charter)
FLORIDA 65-0828889
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
#178 14136 WOODINVILLE DUVALL RD 98072
WOODINVILLE, WA (Zip Code)
(Address of principal executive offices)
Issuer's telephone number: (425) 486-4882
--------------------------------
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which each
to be so registered class is to be registered
------------------- ------------------------------------
COMMON SHARES NASD
Securities to be registered under Section 12(g) of the Act:
-NONE-
<PAGE>
Item 10. Recent Sales of Unregistered Securities
Furnish the information required by Item 701 of Regulation S-B.
Item 11. Description of Securities
Furnish the information required by Item 202 of Regulation S-B.
Item 12. Indemnification of Directors and Officers
Furnish the information required by Item 702 of Regulation S-B.
Item 13. Financial Statements
Furnish the information required by Item 310 of Regulation S-B.
Item 14. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
Furnish the information required by Item 304 of Regulation S-B.
Item 15. Financial Statements and Exhibits
(a) List separately all financial statements filed as part of
the registration statement.
(b) Furnish the e xhibits required by Item 601 of Regulation S-B.
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant causes this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
BOOMERS.COM, INC.
(Registrant)
Date March 26, 1999 By /s/ SIGNATURE ILLEGIBLE
(Signature)
<PAGE>
FORM 10-SB
BOOMERS.COM, INC.
Item 1(a) Business Development:
The Company was incorporated in the State of Florida on April 3rd, 1998 under
the name E Z Street Technologies, Corp. On September 8th, 1998, the Company
changed its name to Haig, Inc. and increased its authorized capital to
100,000,000 common shares with a par value of $.0005 each. The Company had no
operating history prior to this name change. On June 5, 1998, the Company
entered into an agreement with Basic Organization of Middle Economic Resurgence
Society Inc. ("Boomers"), pursuant to which the Company would acquire the
current operations of Boomers. On March 5, 1999, the Company changed its name to
Boomers.com, Inc.
ITEM 1(b) BUSINESS OF ISSUER:
Through the use of the Internet, the Company intends to establish itself as a
leading affinity marketing organization and representative spokesman for the
baby boomer generation. The business, which the Company acquired from Boomers,
was designed to emulate and improve upon the best features of the highly
influential American Association of Retired Persons (AARP), one of the largest
and most successful affinity marketing organizations in the world. The Company
is focused on the largest distinct generation in America, the baby boomers,
which includes over 76 million persons of every race, creed and socioeconomic
background. The Company will market using traditional marketing approaches
through newspaper ads and radio and television spots as well as through the
Internet. The Internet now has 56 million adults logged on, which is estimated
to increase to 72 million within a year.
The Company's mission is to be a focal point for:
political, social and economic activism for the baby boomer generation;
technologically empowered grass roots self-advocacy (i.e. accountable
representation through an" Electronic Town Hall"); and discounted products
and services to the boomers generation.
Since the official opening of the Boomers web site in September 1998, the
Company has contracted with insurance and financial services vendors, travel
service providers and Internet service providers. The Company does not at this
time intend to market a product or service of its own beyond those provided by
external vendors. The Company will contract with vendors of above average
products and services who will bill and deliver their products and services to
the members of the Company. The products and services that will be immediately
available can be grouped in the following six categories:
<PAGE>
a) financial products and services including credit cards, investments,
insurance and mortgages;
b) travel services including discounted air fares, car rentals and cruise
lines;
c) Internet products and services including discounted web hosting,
dialup, web design;
d) communication products including prepaid calling cards, TV satellite
dishes, Internet access;
e) computer software and hardware; and
f) representational advocacy.
The Company intends to continually update and increase the array of products
that will be available to members such as:
o shop-by-computer at home services;
o shop-by-computer prescription purchasing services;
o computer and software purchasing, installation and maintenance
services including Internet hook-up;
o national and international travel packages offered by hotels and
cruise lines;
o a unique "write your own ticket pay per mile flown".
o an automobile travel club and automobile buying service will offer the
best prices for lease and purchase;
o rental cars;
o telephone services; and
o recreational packages including but not limited to golf, tennis and
skiing.
The Company's. website can be found on the web at WWW.BOOMERS.COM.
The Company has a wide range of suppliers of goods and services willing to
market via the Company's website. E-commerce is still in its infancy and most
companies are looking for Internet access for their products. The Company is
able to provide that access via its Internet site. While providing its members
with numerous goods and services at discount prices commensurate with the size
of the buying group, the Company is also able to provide suppliers with a
consumer audience in a specific target demographic - baby boomers.
The Company has registered the URL's BOOMERS.COM, Boomers.org, and
Boomersvoice.com. No other entity may use these names.
The Company has spent in excess of $700,000 in the past year on the development
and implementation of its website and marketing plan. Further, in the two
previous years, Boomers had spent in excess of $350,000 on market research and
development of the first business plan.
The Company currently has 7 full time employees.
<PAGE>
Item 2. Management's Discussion and Analysis or Plan of Operation
a) Plan of Operation:
PHASE I
During its startup phase from September to December 1997 Boomers conducted an
initial study using only the Internet. The cost of creating the initial first
BOOMERS web presence with a functioning database and registration on three
search engines was approximately $10,000.
Following the initial study, the founders raised Phase I funding of $350,000.
This funding covered the initial phase of development and a marketing campaign
that used a three-pronged strategy:
1. Obtain an initial set of vendors, which would be both useful and
attractive to prospective members.
2. Construct an effective Internet marketing tool relay the concept to
the targeted demographic.
3. Recruit the staff necessary to carry out commercialization project of
Phase II.
At the close of Marketing Plan Phase I, the following steps have been finalized
or are in end-stage negotiation:
o A promotional contest created to attract members
o Alamo Rent-A-Car signed as a vendor with discounts for all members
o An Internet Service Provider (ISP) signed as a vendor to offer
discounted services to registered members
o A web design company contracted as a vendor to offer discounted
services to members
o IngramMicro was signed as a fulfillment house for computer software
and hardware sales, including Hewlett-Packard, IBM, and Microsoft
products.
o Extended health services plan secured
o Group Legal Services contracted to provide a legal services plan to
members
o Free coffee secured at Denny's restaurants, a long standing feature of
AARP
o Travel packages made available through Travel Hound Travel Services
o Internet home mortgage discounts negotiated through Home 123 with Bob
Villa
o Free vacation packages awarded through Air-Land-Sea
o Telephone prepaid long distance card and 1+ long distance services now
available for purchase
<PAGE>
o Internet shopping mall discounts secured
o Restaurant discount packages secured
o Hotel discount packages secured.
PHASE II
The Company has raised an additional $500,000 to continue the development of the
web site and initial marketing. The Company has commissioned a strategic
marketing and communication firm to develop Phase II of the marketing plan. The
plan will encompass both traditional communication vehicles and new electronic
ones.
The significance of the shift in technology to the Internet cannot be
underestimated as the Company seeks to reach and empower its millions of
prospective constituents.
The second phase of the Marketing Plan will emphasize more research on the
target audience and a coordinated schedule of marketing, advertising, public
relations and community outreach strategies. Some of the tactics that may be
used are listed below.
INTERNET
The Internet makes possible electronic workshops, educational forums and
discussion groups. Low cost, high quality video/audio can be accessed by
millions of users in the targeted demographic group. Prospective members will be
able to sample products and join online.
WEB SITE
"boomers.com", the Company's website, will be a "home port" from where the user
can travel to many other web sites on the Internet. Information useful to Baby
Boomers, such as the Company's advertisers, the Congressional web site, the
White House web site, and university libraries and others will be made available
and capture visitors through links.
ADVERTISING
The Company's goal is to associate baby boomers with BOOMERS.COM, INC. To
accomplish this branding goal, the Company will use a combined approach of high
and low tech advertising.
SPEAKER BUREAUS/RADIO AND TV TALK SHOWS
In addition to standard advertising practices, the Company will seek to gain
considerable recognition through regional conferences and conventions. The
Speakers Bureau will "book" representatives as guests on radio and TV talk shows
and speakers for service club luncheons throughout the U.S.
<PAGE>
PROMOTIONAL GIVEAWAYS
The Company will offer a line of collateral material that will include ties,
caps, bumper stickers and other articles of interest to the membership. This
material will promote brand identity.
BROADCAST TELEVISION AND TARGETED CABLE
Probably the most exciting, cost-effective marketing tool for national exposure
is the ability to target the Company into subject specific programming.
MEDIA RELATIONS
The Company will develop a sustained public relations effort, with ongoing
contact between key editors and top-level personnel at media outlets of
interest.
ISSUES MANAGEMENT AND LOBBYING
The Company will develop a regular and consistent ISSUE update program for the
major target media, keeping key editors abreast of current issues that members
are engaged in, as well as new products/services being introduced.
IMPLEMENTATION
The primary interface between the Company and its constituents is the web site.
Because the web site is such an integral part of the Company's identity, the
Company's focus will be the web site's structure and design.
From the home page, the web site will link to several satellite sites. These
sites will initially include the Hub (or home page), Business, Health, Living
Well, Personal Finance, Recreation and Social Issues. Each satellite site may
have several related sub-topics within it and are called "sub-sites."
Each satellite site will contain the following components:
o Filtered news summaries and product evaluations that matter to
members. This service takes the burden of information overload away
from the member.
o A columnist who may be the site editor or a content expert who
responds to member questions and contributes a monthly column.
o Guest columnists who are experts and authors on the topic solicited by
the editor.
o Topic-related products and services offered at discount to members.
o Live chat room in each topic area.
o User Group bulletin board.
o Links to related sites.
o Advertising from topic-related vendors, as a revenue stream.
o An editor focused on the development of the scope of that topic at the
site.
<PAGE>
As the structure expands, the Company anticipates staffing requirements of up to
30 employees during the first 12 months of operations. These additional staff
members will be needed to operate and manage the individual satellite sites.
Head office administrative and marketing staffing requirements will also
increase accordingly.
While the Company has sufficient funds for its current operations, in order to
implement the expanded plan of operations as described above, the Company
expects to have to raise an additional $5,000,000. These funds will be used
primarily for marketing, as no significant purchase of assets is contemplated.
Item 3. Description of Property
The Company maintains its operational offices at:
12605 N.E. 187th Street, Suite 2201
Bothell, Washington 98011
These premises are rented on a month to month basis. The Company's web server is
located at the offices of a web-hosting and design company, Synchronicity
Incorporated, in Bellevue, Washington. Synchronicity Incorporated offers a fee
based hosting service to Internet companies as well as providing the T1 through
T3 communication lines.
<PAGE>
Item 4. Security Ownership Of Certain Beneficial Owners and Management
a) Security Ownership of Certain Beneficial Owners
<TABLE>
- ----------------------------------------------------------------------------------------------
Amount and Nature Percentage
Title of Class Name and Address of Beneficial Owner of Beneficial Owner of Class
- -------------- ------------------------------------ ------------------- ----------
<S> <C> <C> <C>
Common Harvey Underdahl 2,664,443 24.67%
1555 N.E. 39th Street
Fort Lauderdale, Florida 33334
Common Daniel Williams 1,220,000 11.3%
12810 N.E. 185th Street
Bothell, Washington 98011
Common Servicios de Enlace Mercantil Int. S.A. 800,000 7.4%
Suite 121, Centro Comercial El Pueblo,
San Jose, Costa Rica
- ----------------------------------------------------------------------------------------------
<PAGE>
Item 4 (cont.)
b) Security Ownership Of Management
- ----------------------------------------------------------------------------------------------
Amount and Nature Percentage
Title of Class Name and Address of Beneficial Owner of Beneficial Owner of Class
- -------------- ------------------------------------ ------------------- ----------
<S> <C> <C> <C>
Common J. Graham Douglas 100,000 direct 1.85%
PO Box 267, BCM Cape Building, 100,000 indirect
Providenciales, Turks and Caicos, BW
Common Harvey Underdahl 2,664,443 direct 24.67%
1555 N.E. 39th Street
Fort Lauderdale, Florida 33334
Common Daniel Williams 1,220,000 direct 11.3%
12810 N.E. 185th Street
Bothell, Washington 98011
Common Trudi Omanskyon 32,000 direct .3%
1555 N.E. 39th Street
Fort Lauderdale, Florida 90210
Common Andrew Beersmon 200,000 direct 1.85%
Apdo 2220, 1000
San Jose, Costa Rica
All Directorsoand Officers 4,316,443 39.97%
(6 persons)
- ----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Item 4 (cont.)
(c) Changes in Control:
There are currently no agreements whereby a change of control of the
Company could occur.
Item 5. Directors, Executive Officers, Promoters and Control Persons.
a) Identify directors and executive officers:
NAME AGE POSITION
---- --- --------
J. Graham Douglas - 51 - director, CEO
Andrew Beers - 41 - director, Secretary
Harvey Underdahl -54 - Vice President Issues & Advocacy
Daniel Williams - 49- Vice President Information Technology
Trudi Omansky - 52 - Vice President Web Site Management & Editorial
Harrison Margolin - 46 - Vice President Internet Commerce
Mr. Beers has served as a director of the Company since August 18,1998. Mr.
Douglas became a director on September 10,1998.
Brief Description of the Business Experience of the Directors and Executive
Officers:
MR. DOUGLAS has served as both director and CEO of the Company since September
10, 1998. He is an experienced business executive with 25 years of financial and
operational management. After graduating in 1970 with a Bachelor of Commerce
Honors degree from the University of Manitoba, Canada, Mr. Douglas was employed
by two large Canadian banks in the area of corporate finance. From 1978 through
1985 Mr. Douglas was involved in the real estate development and construction
industry in a financial capacity . From 1986 through 1992 , Mr. Douglas was the
chief operating officer of a large Canadian transportation, warehousing, freight
forwarding and sea terminal operator. In this capacity he oversaw the
restructuring of the companies' operations and the eventual sale of the various
operating entities. Since 1992 Mr. Douglas has been active as a business
consultant in the area of corporate restructuring, mergers and acquisitions,
corporate finance and public offerings. Mr. Douglas has invested in and become a
director and officer of several public companies through these activities. These
companies were in the beverage industry, the food industry, the clothing
industry, the tourism industry, the real estate industry and the mining and
exploration industry.
MR. BEERS has served as a director of the company since August 8, 1998, and as
Secretary/Treasurer since September 10,1998. For the past 10 years, Mr. Beers
has been employed as a management consultant. Through his employment with
Canberra Financial Inc., Mr. Beers works with emerging growth corporations,
assisting them with their initial corporate structure, raising of seed and
expansion capital, and assisting them with their regulatory reporting
requirements in preparation for seeking a public listing of their shares.
<PAGE>
MR. UNDERDAHL, who co - founded and developed the initial concepts of
Boomers.com, in its predecessor company, Basic Organization Of Middle Economic
Resurgence Society, Inc. (BOOMERS). From BOOMERS inception in 1995, Mr.
Underdahl developed an initial beta-site test of the business concept, developed
vendor contracts, and established an initial marketing plan. Prior to his work
with BOOMERS, Mr. Underdahl was employed as Regional Sales Director of Tri-O
Chemical Corporation, in Fort Lauderdale, Florida from 1994 through to June 1998
when BOOMERS became a full time commitment.
MR. WILLIAMS, who co-founded BOOMERS, was responsible for the design of the
logistical and technical infrastructure. He continues with the Company as head
of the Web site development team and all technological interface. For the 10
years prior to joining Boomers.com on a full time basis, Mr. Williams was a self
employed computer systems analyst and architect. His client list included
Plexus, MTC, FDSI, Lockheed MSD, Trident Systems and Microsoft.
MS. OMANSKY joined the Company in July 1998. From October 1997 Ms Omansky served
as Regional Manager for Professional Services with BancTec/Plexus. While there
she built a Continuous Improvement Process from no set of standard operating
procedures to ISO-certifiable quality processes. From 1994 to 1997, Ms. Omansky
served as a Business Consultant/Advisory Systems Engineer for GTE Telephone
operations in Tampa Florida. Ms. Omansky holds a Doctor of Education, Business
Systems from Nova University in Fort Lauderdale.
MR. HARRISON MARGOLIN joined the Company in August of 1998. Prior to that time
he was employed as a bond trader and Series 7 broker with J W Charles
Securities. Mr. Margolin brings to the Company many years of experience and
contacts in the area of corporate commerce.
5) None of the Company's officers or directors holds any other
directorships in reporting companies.
b) There are no significant employees other than those described above.
c) There are no family relationships among any directors or executive officers
d) During the past 5 years none of the directors or executive officers has
been the subject of any criminal legal proceedings, securities related
proceedings of any kind, or served as a general partner or executive
officer of a corporation which has filed or had filed against it a
bankruptcy petition.
<PAGE>
Item 6 Executive Compensation
SUMMARY COMPENSATION TABLE
Name and Principal Position Year Salary Other Compensation
- --------------------------- ---- ------ ------------------
J. Graham Douglas*
CEO and Director 1998 -0- $42,000
Daniel Williams
Vice President 1998 $42,000 -0-
Information Technology
Harvey Underdahl
Vice President 1998 $42,000 -0-
Issues and Advocacy
Trudi Omansky
Vice President 1998 $42,000 -0-
Website Management and
Editorial
Harrison Margolin
Vice President
Commerce 1998 -0- $33,000
*Mr. Douglas is paid indirectly through a contract with Antaries Investments
Ltd., a company controlled by Mr. Douglas. Antaries Investments Ltd. provides
financial, research, and other administrative services to the Company, as well
as the management services of Mr. Douglas.
<PAGE>
Item 6 (cont.)
The Company has no other bonus, long term incentive plans, or stock appreciation
rights accruing or payable to any employee, officer or director.
The Company has not granted any stock options.
Item 7 Certain Relationships and Related Transactions
The Company has a services contract with Antaries Investments Ltd., a company
controlled by Mr. Douglas. Antaries Investments Ltd. provides financial
consulting, research, and administrative services as well as the services of Mr.
Douglas. The contract is month to month, and calls for a total charge of $12,000
per month.
The Company has a services contract with Canberra Financial Corp. to provide
consulting and management services with regard to the regulatory reporting
requirements to become a fully reporting issuer and seek a listing on an
American stock exchange. Canberra Financial is owned and controlled by Servicios
de Enlace Mercantil Int. S.A., a shareholder of the Company. The contract is
month to month, and calls for a total charge of $5,000 per month.
The Company has not, in the past two years, been a party to any other
transactions with any persons having a direct or indirect material interest in
the Company. The Company is not considering any proposed or other transaction
with any related party.
Item 8. Legal Proceedings
The Company is not currently party to any pending legal proceedings.
Item 9. Market for Common Equity
a) There is currently no market for the Company's shares.
b) The Company has approximately 67 holders of common shares. The Company
currently has no other class of security.
c)
1. The Company has declared no dividends on any class of common stock.
2. There are currently no restrictions limiting the ability of the
Company to pay dividends, however management views it as unlikely that
any dividends will be paid in the near future.
<PAGE>
Item 10. Recent Sales Of Unregistered Securities
a) July 26, 1998 4,500,000 common shares were sold at a price of $.005 per
share. These shares were sold for cash, and there were no commissions paid or
discounts applied. The Company relied on Regulation D, Rule 504 to issue these
securities.
b) March 29, 1999 1,306,269 common shares were sold at a price of $.70 per
share. These shares were sold for cash , and no discounts were applied.
Commissions of $45,000 were paid to one individual in the employ of the Company.
The Company relied on Regulation D, Rule 504 to issue these securities.
Item 11 Description of Securities
a) Common Stock
1) the Company has only common shares outstanding. These shares all carry
the normal voting privilege of one vote per share. The Company
currently pays no dividends, and its shares carry no preemptive
rights.
2) the Company has no current plans to issue any preferred stock
3) the common shareholders have no other material rights
4) there is no provision in the charter or by-laws of the Company that
would delay, defer or prevent a change in control of the company
b) the Company is not issuing any debt securities at this time. c) the Company
is not registering any other form of securities. .
Item 12 Indemnification of Directors and Officers
The Company has no charter by-laws or contract provisions or other arrangements
that would limit the liability of any officer or director of the Company while
he or she was acting in that capacity.
<PAGE>
Item 13 Financial Statements.
(see attachment)
<PAGE>
BOOMERS.COM INC.
FINANCIAL REPORT
DECEMBER 31, 1998
<PAGE>
C O N T E N T S
Page
INDEPENDENT AUDITORS' REPORT 1
FINANCIAL STATEMENTS
Balance sheet 2
Statement of operations 3
Statement of changes in stockholders' equity 4
Statement of cash flows 5
Notes to financial statements 6 - 8
<PAGE>
To the Board of Directors
Boomers.com Inc.
Woodinville, Washington
We have audited the accompanying balance sheet of Boomers.com Inc. as of
December 31, 1998, and the related statements of operations, changes in
stockholders' equity, and cash flows for the period April 3, 1998 (date of
incorporation) through December 31, 1998. These financial statements are the
responsibility of the management of Boomers.com Inc. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Boomers.com Inc. as of December
31, 1998, and the results of its operations and its cash flows for the period
April 3, 1998 (date of incorporation) through December 31, 1998, in conformity
with generally accepted accounting principles.
March 2, 1999
1
<PAGE>
BOOMERS.COM INC.
BALANCE SHEET
December 31, 1998
ASSETS
Current Assets
Cash ......................................................... $ 159,229
Receivable from shareholders ................................. 4,826
Prepaid expenses ............................................. 5,000
---------
Total current assets .................................. 169,055
Other Assets
Uniform resource locator ..................................... 25,000
Advances to affiliate ........................................ 255,900
---------
280,900
---------
$ 449,955
=========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable and accrued liabilities ..................... $ 43,311
Stockholders' Equity
Common stock, $.0005 par value, 100,000,000 shares
authorized; 5,376,000 shares issued and outstanding ........ 2,688
Additional paid-in capital ................................... 596,920
Deficit ...................................................... (192,964)
---------
406,644
---------
$ 449,955
=========
See Notes to Financial Statements
2
<PAGE>
BOOMERS.COM INC.
STATEMENT OF OPERATIONS
For the Period April 3, 1998 (Date of Incorporation) Through December 31, 1998
General and administrative expenses ....................... $ 192,964
---------
Net loss ........................................ $(192,964)
=========
Basic loss per common share ............................... $ (.09)
=========
See Notes to Financial Statements
3
<PAGE>
BOOMERS.COM INC.
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY For the
Period April 3, 1998 (Date of Incorporation) Through December 31, 1998
Retained
Common Paid-in Earnings
Stock Capital (Deficit) Total
------ -------- --------- ---------
Balance at April 3, 1998 -
date of incorporation ......... $ -- $ -- $ -- $ --
Issuance of shares ............... 2,688 596,920 -- 599,608
Net loss ......................... -- -- (192,964) (192,964)
------ -------- --------- ---------
Balance at December 31, 1998 ..... $2,688 $596,920 $(192,964) $ 406,644
====== ======== ========= =========
See Notes to Financial Statements
4
<PAGE>
BOOMERS.COM INC.
STATEMENT OF CASH FLOWS
For the Period April 3, 1998 (Date of Incorporation) Through December 31, 1998
Cash Flows from Operating Activities
Net Loss ...................................................... $(192,964)
Adjustments to reconcile net loss to net cash
used in operating activities
Changes in assets/liabilities that provided (used) cash:
Accounts receivable ...................................... (4,826)
Prepaid expenses ......................................... (5,000)
Accounts payable and accrued liabilities ................. 43,311
---------
Net cash used in operating activities .................. (159,479)
Cash Flows from Investing Activities
Acquisition of uniform resource locator ....................... (25,000)
Advances to affiliate ......................................... (255,900)
---------
Net cash used in investing activities .................. (280,900)
Cash Flows from Financing Activities
Issuance of common stock ...................................... 599,608
---------
Net Increase in Cash ............................................. 159,229
Cash, beginning of period ........................................ --
---------
Cash, end of period .............................................. $ 159,229
=========
See Notes to Financial Statements
5
<PAGE>
NOTES TO FINANCIAL STATEMENTS
Note 1. Organization and Description of Business
Boomers.com Inc. ("the Company") was incorporated on April 3, 1998, in Florida.
The Company was created to serve the interests of people who were born between
1946 and 1964. The interests to be served include advocacy issues appropriate to
this age group as well as the negotiation of service and product discounts and
pricing. Membership opportunities will be offered to enable people to use the
Company's services. The Company will use the internet to communicate with its
members. The Company has an administrative office located near Seattle,
Washington, and an advocacy office in Ft. Lauderdale, Florida.
The Company's operations have included raising working capital, acquiring an
internet uniform resource locator, and obtaining pricing and/or discounting
agreements with various vendors and service providers. Since revenue generating
activities have not begun, no segment reporting is included in these financial
statements.
Subsequent to December 31, 1998, the Company acquired the assets of another
corporation including software, an internet web site, and other assets which are
necessary for the Company's future business activities. During 1998, the Company
advanced $255,900 to this corporation.
The purchase price for the assets included the receivable above, payment of
approximately $34,000 of the corporation's liabilities and the issuance from
treasury of 5,004,000 shares of the Company's common stock. The corporation has
further agreed not to compete with the Company for a three-year period from the
date of acquisition. This transaction will be accounted for under the purchase
method in 1999.
Note 2. Summary of Significant Accounting Policies
CASH: Cash consists of amounts held in demand deposit accounts which may be in
excess of federally insured limits in the normal course.
UNIFORM RESOURCE LOCATOR: The uniform resource locator, www.boomers.com, is
stated at cost which will be amortized over three years, beginning in 1999.
6
<PAGE>
Note 2. (Continued)
MEMBERSHIP DUES: Revenues from membership dues will be deferred upon receipt and
revenue recognized pro rata over the life of membership.
PROMOTIONAL EXPENSE: The Company may offer inducements to acquire members. The
inducements may be awarded upon the attainment of certain membership milestones.
The Company will accrue an estimate of this expense ratably with each new
membership.
INCOME TAXES: Income taxes are accounted for under an asset and liability
approach which requires recognition of deferred tax liabilities and assets for
the expected future tax consequences of events that have been included in the
financial statements or tax returns. Deferred income taxes are provided for the
temporary differences between the financial reporting basis and the tax basis of
the Company's assets and liabilities. A valuation allowance is recognized for
deferred tax assets not likely to be realized. Deferred taxes are measured by
the provisions of currently enacted tax laws.
EARNINGS PER SHARE: Basic earnings (loss) per share is computed by dividing
income (loss) available to common shareholders by the weighted average number of
common shares outstanding in the period. Diluted earnings per share takes into
consideration common shares outstanding (computed under basic earnings per
share) and potentially dilutive common shares. At December 31, 1998, the Company
did not have any potentially dilutive common shares. The weighted number of
shares outstanding used to calculate basic earnings (loss) per share at December
31, 1998, was 2,105,473 shares. See Note 1.
USE OF ACCOUNTING ESTIMATES IN THE PREPARATION OF THE FINANCIAL STATEMENTS: The
preparation of financial statements in accordance with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported revenues and expenses during the reporting period. Actual results
could differ from those estimates.
FAIR VALUE OF RECORDED INSTRUMENTS: The fair value of the receivable from
shareholders and advances to an affiliate were estimated to approximate their
recorded values based on the terms of the instruments.
NEW ACCOUNTING STANDARDS: Statement of Financial Standards No. 130, "Reporting
Comprehensive Income" is effective for years beginning after December 15, 1997.
The primary objective of this statement is to report and disclose a measure of
all changes in equity of an entity that result from transactions and other
economic events of the period other than transactions with owners. There are no
elements of other comprehensive income; therefore, no disclosures are necessary
beyond the statement of operations.
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Note 2. (Continued)
Statement of Financial Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" established accounting and reporting standards for
derivative instruments and for hedging activities. This statement requires that
an entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value.
Because the Company will not engage in any derivatives or hedging activities,
there should be no impact on its financial statements.
Note 3. Income Taxes
The Company has a deferred tax asset of approximately $65,600 resulting from net
operating loss carryforwards. At December 31, 1998, management believes there is
uncertainty with respect to the realization of the asset and has fully reserved
it.
At December 31, 1998, the Company has federal net operating loss carryforwards
of approximately $193,000 which, if not used, will begin to expire in 2013.
Note 4. Transactions With Affiliates
Prepaid expenses represents $5,000 of future consulting expenses that were paid
to an entity owned by one of the shareholders.
Included in accounts payable is $36,000 of payables to a company owned by two of
the shareholders. In addition, included in general and administrative expenses
is $118,000 of amounts paid to companies owned by shareholders for consulting
and management fees and office expenses.
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INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Boomers.com Inc. on Form
10 of our report dated March 2, 1999, appearing in the Prospectus, which is part
of this Registration Statement.
We also consent to the reference to us under the headings "Selected Financial
Data and "Experts" in such Prospectus.
March 2, 1999
Seattle, Washington
<PAGE>
Item 14 Changes and Disagreements With Accountants
The Company's principal independent accountants have never resigned or been
dismissed.
Item 15 Financial Statements and Exhibits
a) Annual Financial Statements for the year ending December 31, 1998
b) 2.1) Asset Purchase Agreement
2.2) Articles of incorporation
2.3) By-laws
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT made this _____ day of March, 1999 (but effective as of
February 2, 1999) by and between BASIC ORGANIZA TION OF MIDDLE ECONOMIC
RESURGENCE SOCIETY, INC., a Florida corporation ("Seller"), and BOOMERS.COM,
INC., a Florida corpora tion ("Buyer").
RECITALS:
A. Seller operates and is the sole owner of all assets of a line of business
commonly known as and referred to herein as the Boomers line of business.
B. Buyer wishes to purchase the assets of the Boomers line of business
(excluding all liabilities of whatever nature related thereto except as
otherwise expressly provided in this Agreement) currently conducted by Seller
(the "Transferred Business") so that, after the consummation of the purchase and
the transactions contemplated hereunder, Buyer will be actively conducting the
Transferred Business.
C. The transfer of the Transferred Business will be effected by the transfer
(the "Asset Transfer") to Buyer of those assets and properties, tangible and
intangible, of and pertaining to or used in the Transferred Business, wherever
located, and whether or not on the books and records of Seller listed on the
SCHEDULE OF ASSETS attached hereto (such assets and property being collec tively
referred to herein as the "Purchased Assets").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 SALE OF PURCHASED ASSETS. On the terms and subject to the conditions
contained herein, Seller agrees to sell to Buyer and Buyer agrees to buy from
Seller, at the Closing described in Section 2.1 hereof, all of the Purchased
Assets.
1.2 COMPLETION OF ASSET TRANSFER. At the Closing, Seller shall transfer and
assign to Buyer good and valid title to the Purchased Assets free and clear of
any liens. The transfer and delivery of the Purchased Assets by Seller to Buyer
shall be effected by the execution and delivery of all necessary instru ments of
transfer. Seller shall take all other steps as may be reasonably necessary to
put Buyer in actual possession and operating control of the Purchased Assets. To
the extent that
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any sale, transfer, use or other similar taxes may be imposed by reason of such
sale, transfer, assignment and delivery of the Purchased Assets, Buyer shall pay
such taxes.
1.3 NON-COMPETE. Seller covenants that for a period of three (3) years after
the Closing Date (as defined in Section 2.1 below), Seller (distinct from its
officers and directors) will not, directly or indirectly, either on its own or
in conjunction with or on behalf of any person, firm or company, carry on, or be
engaged, or hold an interest in carrying on within the United States any
business that could be deemed similar to the Boomers line of business.
Notwithstanding the foregoing, the parties acknowledge and agree that ownership
by Seller of the securities of Buyer to be issued to Seller at Closing shall not
constitute a breach of this Section 1.3. In the event that the covenant of
Seller contained in this Section 1.3 is more restrictive than permitted by the
law of the jurisdiction in which Buyer seeks enforcement thereof, the covenant
of Seller contained in this Section 1.3 shall be limited to the extent permitted
by law.
1.4 PURCHASE PRICE. The total consideration for all of the transactions
contemplated by this Agreement (the "Purchase Price") shall be (a) forty five
thousand dollars ($45,000) allocated to tangible assets, (b) cancellation of
debt in the amount of two hundred fifty five thousand nine hundred dollars
($255,900) owed by Seller to Buyer (after applying the cash payment described in
clause (a) to such debt) and (c) five million four thousand (5,004,000) shares
of common stock of Buyer ("Common Stock"). The Purchase Price shall be due at
the Clos ing. The Common Stock shall be issued to the parties and in the
denominations set forth on the SCHEDULE OF RECIPIENTS, provided that the
requirements for issuance stipulated by Buyer's securi ties counsel are met.
1.5 SUBSEQUENT DOCUMENTATION. At any time and from time to time after the
Closing, upon the request of Buyer and without further consideration to Seller,
but with Buyer and Seller bearing their own respective expenses coincident
thereto, Buyer and Seller shall do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
assignments, transfers, conveyances, assumptions, powers of attorney and
assurances as may be reasonably required for the better assigning, transferring,
granting and conveying to Buyer or for aiding and assisting in collecting and
reducing to possession and control of Buyer any or all of the Purchased Assets.
Notwithstanding the foregoing, the parties acknowledge and agree that (i) Buyer
shall bear all expenses in connection with the delivery and transportation of
all tangible personal property purchased hereunder and (ii) Seller shall take
all reasonable steps necessary for securing consents to contracts assigned
hereunder.
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ARTICLE II
THE CLOSING
2.1 CLOSING. The Closing of the purchase and sale of the Purchased Assets
provided for in this Agreement (the "Closing") shall take place at 10:00 a.m.,
Florida time, at the offices of Rutherford Mulhall & Wargo, P.A., 2600 N.
Military Trail, Boca Raton, Florida 33403, on March ___, 1999 BUT SHALL BE
RETROAC TIVELY EFFECTIVE AS OF FEBRUARY 2, 1999 (the "Closing Date"). At the
Closing:
(a) Seller shall execute and deliver to Buyer:
(i) all title deeds and documents in respect of the Purchased Assets;
(ii) a bill of sale in the form of EXHIBIT "A" for the Purchased
Assets executed by Seller in favor of Buyer (the "Purchase Bill
of Sale");
(iii) a Certificate of Officer executed by the president of Seller,
certifying as follows:
(A) No injunction or temporary restrain ing order has been
issued which restrains, prohibits or invali dates the Asset
Transfer or the other transactions contemplated by this
Agreement; and
(B) No legal action or proceeding has been instituted or
threatened seeking to restrain, prohibit or invalidate the
purchase or sale of the Purchased Assets or the other
transactions contemplated by this Agreement; and
(iv) an Investment Representation Letter in the form attached hereto
as EXHIBIT "B".
(b) Buyer shall deliver to Seller:
(i) the shares as specified in Section 1.4(a) above;
(ii) a Satisfaction of Debt in the form attached hereto as EXHIBIT
"C"; and
(iii) evidence of the assumption of the liabili ties set forth on the
SCHEDULE OF ASSUMED LIABILITIES (the "Assumed Liabilities").
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Buyer as of the date hereof as fol lows:
(a) EXECUTION AND VALIDITY OF AGREEMENT. Seller has all requisite
corporate power and authority to execute and deliver this Agreement,
and to perform its obligations hereunder. This Agreement and the
Purchase Bill of Sale will be duly executed and delivered by Seller
and, assuming due authoriza tion, execution and delivery by the other
parties thereto, constitute the legal, valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorga
nization, moratorium or other laws relating to or limiting creditors'
rights generally or by equita ble principles relating to
enforceability.
(b) CORPORATE ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Florida, and
has the corporate power and authority to own, use and operate
properties and to carry on the business as the same is now being
conducted by Seller.
(c) NO CONFLICT. Neither the execution and delivery of this Agreement, nor
the performance by Seller of the transactions contemplated hereby and
thereby, will (i) violate or conflict with any of the provisions of
the Articles of Incorporated or Bylaws of Seller; (ii) with or without
the giving of notice or the lapse of time or both, violate or
constitute a default under, or result in the ac celeration of or
entitle any party to accelerate (whether after the giving of notice or
lapse of time or both) any obligation under any lien, in denture, deed
of trust, lease, contract, agree ment, license or other instrument or
violate any provision of any law, order, judgment, decree, restriction
or ruling of any governmental author ity to which Seller is a party or
by which any of its property is bound; or (iii) result in the creation
of any lien, mortgage, pledge, charge, claim, security interest,
encumbrance or any other contractual restriction of any nature
whatsoever ("Lien") upon any of the Purchased Assets, the loss of any
license or other contractual right
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with respect thereto or, affect the ability of Buyer to conduct
successfully the Transferred Business subsequent to the Closing.
(d) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since De cember 31, 1998, there
has not been, with respect to the Boomers line of business:
(i) any change in the business or financial condition or any other
event directly re lated to Seller which could reasonably be
expected, either in any case or in the ag gregate, to have a
material adverse effect on the business, operations or properties
of the Boomers line of business taken as a whole ("Material
Adverse Effect");
(ii) the incurrence of any indebtedness for money borrowed in respect
of the Boomers line of business or the creation of any Lien on
any of the Purchased Assets (whether tangible or intangible);
(iii) any transfer or grant of any rights under any licenses,
agreements, trademarks, tradenames, inventions, processes, techni
cal know-how or other proprietary rights related to the Boomers
line of business either within or outside the United States;
(iv) any material damage, destruction or loss to any of the Purchased
Assets (whether or not covered by insurance); or
(v) any agreement to do any of the foregoing in respect of the
Purchased Assets.
Notwithstanding the foregoing, Seller makes no representations or
warranties concerning its financial condition.
(e) ABSENCE OF LIENS. Seller has and, at Closing, Buyer will have, good
and valid title to the Pur chased Assets, free of all Liens except
liens for Taxes (as defined in subsection (p) below) not yet due and
payable and other minor imperfections which do not interfere with the
use or ownership of the Purchased Assets.
(f) CONDITION AND ADEQUACY OF PURCHASED ASSETS. The tangible Purchased
Assets are in a good state of repair and operating condition, ordinary
wear and
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tear excepted.
(g) TRADEMARKS. The SCHEDULE OF INTELLECTUAL PROPERTY attached hereto sets
forth all domestic trade marks, brand names, copyrights, copyright
regis trations, technical know-how and other proprietary rights
relating to the Transferred Business used and/or owned in whole or in
part by Seller. No licenses, sublicenses, covenants or agreements have
been granted or entered into by Seller pursu ant to which Seller
licenses any person to use any of the foregoing or any other technical
knowhow or other proprietary rights of Seller applicable to the
Boomers line of business. Seller owns all domestic trademarks, brand
names, or copyrights, processes, technical know-how and other propri
etary rights used in the Transferred Business, free of any Liens. No
proceedings have been in stituted or are pending or threatened which
chal lenge the validity of the ownership or use by Seller either
within or outside the United States of any trade name, brand name or
copyright. There is no infringing use of any of such trademarks or
infringement of any of such copyrights by any other person, either
within or outside the United States, known to Seller.
(h) CONTRACTS. The SCHEDULE OF CONTRACTS attached hereto accurately lists
all contracts, agreements and arrangements, whether written or oral,
express or implied, or having any other legally binding basis which
are material to the Transferred Busi ness to which the Transferred
Business is a party directly or indirectly or by which it or any of
its property is bound on the date hereof. True, correct and complete
copies of the written con tracts, leases, agreements, plans and
arrangements listed on the SCHEDULE OF CONTRACTS have been made
available to Buyer. Summaries of all oral contracts listed on the
SCHEDULE OF CONTRACTS are correct and do not omit to state any fact
neces sary to make the statements therein complete or not misleading.
(i) COMPLIANCE WITH CONTRACTS, AGREEMENTS, ETC. Seller is in substantial
compliance with all terms and provisions of all contracts listed on
the SCHEDULE OF CONTRACTS and all such contracts are valid and binding
in accordance with their terms and in full force and effect in all
material re spects, and no material breach or material default by
Seller or event which, with notice or lapse of
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time or both, could constitute a material breach or material default
by Seller, exists with respect thereto, and no party thereto has given
notice or asserted to Seller that Seller is in default thereunder and
no other party thereto is in breach or default thereunder.
(j) LITIGATION. There are no lawsuits, actions, arbi trations or legal or
administrative or regulatory proceedings, charges, complaints or
investigations pending or threatened against Seller in respect of the
Transferred Business. None of the Purchased Assets is subject to or
bound by, any order, judg ment, injunction, stipulation, award or
decree (whether rendered by a court or administrative agency or by
arbitration). There are no cita tions, fines or penalties heretofore
asserted against Seller under any foreign, federal, state or local law
that remain unpaid that bind the Purchased Assets and Seller has not
received any unresolved notice from any foreign, federal, state or
local agency or other governmental authority with respect to any
violation of any foreign, federal, state or local law, regulation,
order or decree applicable to the Transferred Business.
(k) GOVERNMENTAL REGULATIONS. There have been no notices received and
there are no proceedings pending or threatened, with respect to a
violation by Seller of any law, rule, regulation, decree or order
applicable to the Transferred Business.
(l) BROKER'S OR FINDER'S FEES. Seller has not autho rized any person to
act as a broker, finder or in any similar capacity in connection with
the trans actions contemplated by this Agreement other than those
whose fees and expenses with respect to such transactions will be paid
in full by Seller.
(m) CORPORATE RECORDS. The books and records of Seller are complete and
correct in all material respects, have been maintained in accordance
with good business practices, have been made available to Buyer and
are in Buyer's possession.
(n) LABOR MATTERS. None of the directors or officers of Seller has been
informed that any of the key employees of the Boomers line of business
plans to terminate his, her or their employment during the one hundred
eighty (180) day period subsequent to the Closing Date.
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(o) TAX MATTERS. All Tax Returns (as hereinafter defined) required by law
to be filed on or prior to the date hereof by, or with respect to the
operations, activities and assets of the Trans ferred Business have
been properly and timely filed with the appropriate governmental
agencies having jurisdiction, and all such Tax Returns are correct,
accurate and complete in all material respects. All Taxes (as
hereinafter defined) shown to be due on such Tax Returns have been
paid. For purposes of this Agreement, "Tax" or "Taxes" shall mean all
federal, state, local and foreign taxes, charges, fees, levies or
other assessments, whether in the nature of income, profits,
franchise, sales, value added, use, transfer, occupation, property,
severance, produc tion, excise, withholding, employers', customs or
gross receipts, and other taxes or duties of any kind whatsoever in
respect of the Transferred Business (including interest, additions to
tax, penalties and fines (with respect to any tax)). "Tax Return" and
"Tax Returns" shall mean any report, return or other information, or
any amend ment thereof, required to be filed or supplied in connection
with any Tax.
(p) OMISSIONS. No representation or warranty by Seller contained in this
Agreement, and no written statement, certificate, schedule, list or
other written information furnished by or on behalf of Seller to Buyer
pursuant to this Agreement or in connection with the transactions
contemplated hereby when taken together with the other state ments
herein or therein contains any untrue state ment of a material fact or
omits to state a mate rial fact necessary in order to make the state
ments herein or therein, in light of the circum stances under which
they were made, not mislead ing. There is no fact known to Seller
which mate rially adversely affects or in the future would (so far as
can now be foreseen) materially ad versely affect the Transferred
Business which has not been set forth in this Agreement.
(q) INVESTMENT STATUS. Seller is acquiring the shares of Common Stock
issuable to Seller hereunder and each of the parties named on the
SCHEDULE OF RECIPIENTS is acquiring the shares of Common Stock
issuable to him hereunder for their own accounts and not with a view
to, or for sale in connection with, any distribution of the Common
Stock of Buyer.
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(r) INVESTMENT EXPERIENCE; SOPHISTICATION. Seller has had the opportunity
to meet with management of Buyer and explore with the management of
Buyer the current and potential future value of the Common Stock.
Seller further represents and warrants that Buyer at no time has given
any projection or guaranty to Seller as to the future worth of the
Common Stock.
(s) NO APPLICATION OF BULK SALES LAWS. Seller repre sents that neither the
Asset Transfer nor the other transactions contemplated pursuant to
this Agreement are subject to any bulk transfer laws.
3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer repre sents and warrants to
Seller and as of the Closing Date as follows:
(a) ORGANIZATION. Buyer is a corporation duly orga nized, validly existing and
in good standing under the laws of Florida and has all requisite corpo rate
power and authority to own, use and operate its property and to carry on
its business.
(b) AUTHORITY. The execution and delivery of this Agreement by Buyer, the
purchase of the Purchased Assets and the performance of the other transac
tions herein have been duly authorized by the Board of Directors of Buyer
and the authorizing resolutions have been certified to Seller by the
officers of Buyer. This Agreement has been duly executed and delivered by
Buyer and, assuming due authorization, execution and delivery by Seller,
constitutes the legal, valid and binding agreement of Buyer enforceable
against Buyer in accordance with its terms, except as enforcement may be
lim ited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or limiting creditors' rights generally or by equitable
prin ciples relating to enforceability.
(c) NO CONFLICT. Neither the execution and delivery of this Agreement, nor the
performance by Buyer of the transactions contemplated hereby will (i)
violate or conflict with any of the provisions of the Articles of
Incorporation or Bylaws of Buyer; (ii) with or without the giving of notice
or the lapse of time or both, violate or constitute a default under, or
result in the acceleration of or entitle any party to accelerate (whether
after the giving of notice or the lapse of time or both) any obligation
under any mortgage, charge, indenture,
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deed of trust, lease, contract, agreement, license or other instrument or
any provision of any law, order, judgment, decree, restriction or ruling of
any governmental authority to which Buyer is a party, or by which any of
its property is bound.
(d) BROKER'S OR FINDER'S FEES. Buyer has not autho rized any person to act as a
broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
(e) OMISSIONS. No representation or warranty by Buyer contained in this
Agreement and no written state ment, certificate, schedule, list or other
written information furnished by or on behalf of Buyer to Seller pursuant
to this Agreement or in connection with the transactions contemplated
hereby when taken together with the other statements herein or therein
contains any untrue statement of a mate rial fact or omits to state a
material fact neces sary in order to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
There is no fact known to Buyer which materially adversely affects or in
the future would (so far as can now be fore seen) materially adversely
affect the Transferred Business or issuance of the Common Stock which has
not been set forth in this Agreement.
3.3 LIMITATIONS ON SURVIVAL. Each of the representations and warranties made by
the parties in Article III of this Agree ment shall survive the Closing to and
until the date which is one (1) year after the Closing Date PROVIDED that a
fraudulent representation or warranty contained herein shall survive the Closing
to and until the date which is one hundred twenty (120) days following
expiration of the applicable statutes of limita tions with respect to claims for
fraud (at which time they shall terminate). Each of the representations and
warranties contained in Section 3.1(p) shall survive the Closing to and until
the date which is one hundred twenty (120) days following expiration of the
applicable statutes of limitations with respect to the Taxes to which such
representation or warranty relates, and each of the representations and
warranties contained in Sections 3.1(a) and (b) and Sections 3.2(a) and (b) will
survive the Closing and shall not terminate.
ARTICLE IV
ACTIONS SUBSEQUENT TO THE CLOSING DATE
4.1 BOOKS AND RECORDS. Seller shall deliver to Buyer all books, papers, files
and records that relate to the Transferred
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Business and the Purchased Assets relating to the Transferred Business. Buyer
agrees to permit Seller to have access to, and to make copies of, all books,
papers, files and records of Buyer during normal business hours and upon
reasonable notice, to the extent necessary to enable Seller to discharge any
legal obliga tions relating to its ownership of the Purchased Assets.
4.2 CONFIDENTIALITY. Seller agrees to keep confidential and not disclose to any
person or use for its own benefit any trade secret or other confidential
information concerning the Boomers line of business or Buyer, except that which
is in the public domain through no fault of Seller and except as Seller may be
legally required to disclose pursuant to applicable laws, regulations, court or
administrative orders. Buyer agrees to keep confidential and not disclose to any
person or use for its own benefit any information concerning Seller except
information which is in the public domain and except as Buyer may be legally
required to disclose pursuant to applicable laws, regulations, court or
administrative orders.
4.3 COOPERATION IN LITIGATION. Each party shall provide the other with such
cooperation as may reasonably be requested, at the expense of the requesting
party (unless the requesting party is to be indemnified with respect thereto, in
which case such cooperation shall be given at the expense of the indemnify ing
party), in connection with the defense of any litigation whether existing at the
Closing Date or arising thereafter out of, or relating to, the business or
affairs of the Transferred Business, including without limitation, by making
available all books and records reasonably available relating thereto, and all
employees having knowledge of the matters in controversy.
4.4 NON-SOLICITATION OF EMPLOYEES. For a period of one (1) year after the
Closing Date, no party hereto shall, either on its own account or in conjunction
with or on behalf of any other person, firm or company, solicit or entice away
from any other party hereto, any officer, employee or customer.
4.5 USE OF NAME. Upon Closing, Buyer shall have the right to use the name
"Boomers" in its corporate name and in connection with the operation of the
Transferred Business.
4.6 PUBLICITY. Neither Seller nor Buyer shall make or cause to be made any
public announcement concerning the transac tions contemplated by this Agreement
without giving prior written notice to the other party.
4.7 TAX BASIS INFORMATION. As soon as practicable after the Closing Date,
Seller shall deliver to Buyer: all information necessary to prepare a tax basis
balance sheet which will state with respect to each asset (including all
tangible and intangible personal property) comprising the Transferred Business
at the
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Closing Date the adjusted tax basis, the method of amortization or depreciation
used, the accumulated depreciation or amortiza tion claimed, the date placed in
service, and the useful life used to compute depreciation, amortization and/or
investment tax credit and remaining useful life; and true, correct and complete
copies of all Tax Returns, deficiencies, assessments, audit reports, closing
agreements with and notices from any taxing authority, accounting work papers
and pertinent financial records for the Transferred Business for all years with
respect to which the statute of limitations has not expired.
4.8 PERFORMANCE OF OBLIGATIONS BY BUYER. With respect to all contracts assigned
to Buyer pursuant to this Agreement, Buyer covenants and agrees to perform the
contractual obligations required to be performed by the terms thereof on or
after the Closing Date (except to the extent such obligations arise as a result
of any failure by Seller to perform any agreement or covenant contained therein
on or before the Closing Date).
4.9 BULLETIN BOARD APPLICATION. Within ninety (90) days of the Closing Date,
Buyer shall (a) use its best efforts to have a member firm of the National
Association of Securities Dealers, Inc. file an application on Form 211 to have
shares of the Buyer's Common Stock trade on the Over-the-Counter Electronic
Bulletin Board, and (b) file a registration statement on Form 10- SB at the
Securities and Exchange Commission to become a report ing company as that term
is described in the Securities Exchange Act of 1934.
4.10 REINSTATEMENT; PAYROLL TAXES. In the event that Seller is not validly
existing and in good standing under the laws of Florida on the Closing Date,
Buyer shall rectify such situation with Seller's cooperation. In the event that
Seller has not paid all withholding and employers' Taxes, Buyer shall pay same
at its own expense.
4.11 LEGEND REMOVAL. Upon expiration of the holding period applicable to the
Common Stock imposed thereon by Rule 144 as promulgated the Securities and
Exchange Commission, Buyer agrees to cooperate to the best of its ability to
have the restrictive legends removed from the certificates representing the
Common Stock.
ARTICLE V
INDEMNIFICATION
5.1 INDEMNIFICATION BY SELLER. Subject to the limitations set forth in Section
5.7, Seller hereby covenants to indemnify Buyer, its officers, directors,
employees and representatives (each a "Buyer Indemnified Party" and
collectively, the "Buyer Indemnified Parties"), against, and agrees to protect,
save and
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keep harmless the Buyer Indemnified Parties from payment, and hereby assumes
liability for the payment of all liabilities (including liabilities for taxes),
obligations, losses, damages, penalties, claims, actions, suits, judgments or
settlements of any nature or kind, whether known or unknown, absolute or contin
gent, accrued or unaccrued, liquidated or unliquidated and including all costs,
expenses and disbursements (including reasonable cost of investigation by, and
actual attorneys', accountants' and expert witnesses' fees and expenses payable
to, third parties) (collectively, "Loss" or "Losses"), arising out of or
resulting from (a) any breach by Seller of a representation or warranty
contained herein, (b) any failure by Seller to perform any agreement or covenant
contained herein or (c) any claim or cause of action of any third party arising
out of any action, inaction, event, condition or obligation (other than
contractual obligations of Buyer required to be performed by the terms thereof
on or after the Closing Date) of Seller occurring or existing prior to the
Closing Date.
5.2 INDEMNIFICATION BY BUYER. Subject to the limitations set forth in Section
5.7, Buyer hereby agrees to indemnify Seller, its officers, directors, employees
and representatives (each a "Seller Indemnified Party" and collectively, the
"Seller Indemnified Parties") against, and agrees to protect, save and keep
harmless the Seller Indemnified Parties from payment, and hereby assumes
liability for the payment, of any or all Losses or Loss arising out of or
resulting from (a) any breach by Buyer of a representation or warranty contained
herein, (b) any failure by Buyer to perform any agreement or covenant contained
herein, (c) that certain agreement dated March 4, 1998 between Andrew G. Beers &
Associates and Seller, or (d) any claim or cause of action of any third party
arising out of any action, inaction, event, condition or obligation (other than
contractual obliga tions of Seller not transferred to Buyer hereunder and
required to be performed by the terms thereof on or after the Closing Date) of
Buyer occurring or existing on or following the Closing Date.
5.3 PROCEDURE FOR GENERAL CLAIMS.
(a) GENERAL CLAIMS BY BUYER. Buyer shall give written notice to Seller
with respect to any claim or event with respect to which Buyer
believes it is or may be entitled to indemnification pursuant to
Section 5.1 setting forth the general nature and basis of said claim
or event and the amount thereof to the extent known. Each notice of
claim shall be delivered in accordance with Section 6.3 hereto.
(b) GENERAL CLAIMS BY SELLER. Seller shall give writ ten notice to Buyer
with respect to any claim or
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event with respect to which Seller believes a Seller Indemnified Party
is or may be entitled to indemnification pursuant to Section 5.2
setting forth the general nature and basis of said claim or event and
the amount thereof to the extent known. Each notice shall be delivered
in accor dance with Section 6.3 hereto.
5.4 PROCEDURE FOR THIRD PARTY CLAIMS.
(a) CLAIMS BY BUYER AND SELLER. Buyer, on behalf of itself or any Buyer
Indemnified Party, on the one hand, or Seller, on behalf of itself or
any Seller Indemnified Party on the other hand (the "Indemni fied
Party") shall give prompt written notice to the party from whom
indemnification is sought (the "Indemnifying Party") pursuant to
Section 6.3 hereof (a "Notice of Third Party Claim") of any claim,
action, suit or proceeding brought by any third party relating to
litigation, administrative proceedings or similar actions
(collectively, "Third Party Claims") with respect to which such
Indemnified Party believes it is entitled to in demnification
hereunder, together with an estimate of the amount in dispute
thereunder and a copy of any claim, process, legal pleadings or
correspon dence with respect thereto received by the Indem nified
Party. In connection with any such Third Party Claim, the Indemnifying
Party may, at its election and expense, participate in the defense of
such Third Party Claim and no such Third Party Claim shall be settled
without the consent of the Indemnifying Party, which shall not be
unreason ably withheld, provided that the Indemnifying Party shall
have acknowledged in writing the In demnifying Party's obligation to
indemnify in respect of such Third Party Claim and the Indemni fying
Party shall have provided reasonable assur ance (and related documents
thereof) that the Indemnifying Party has and will have the financial
ability to fulfil such obligations. With respect to any Third Party
Claim relating solely to the payment of money damages and which will
not result in the Indemnified Party becoming subject to in junctive or
other equitable relief, within ten (10) days of receipt of notice of
such Third Party Claim, the Indemnifying Party may, by written notice
to the Indemnified Party, assume the de fense of such Third Party
Claim through counsel of its own choosing which is reasonably
acceptable to the Indemnified Party and with all expenses thereof to
be paid by the Indemnifying Party, in
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which event the Indemnified Party may participate in the defense
thereof with all expenses thereof to be paid by such Indemnified
Party, PROVIDED that such Indemnified Party shall have the right to
employ separate counsel to represent such In demnified Party if, in
such Indemnified Party's reasonable judgment, a conflict of interest
be tween the Indemnifying Party and such Indemnified Party exists with
respect to such Third Party Claim with all expenses thereof to be paid
by the Indemnified Party. In the event that the Indemni fying Party
is, directly or indirectly, conducting the defense against any Third
Party Claim, the fees and expenses of counsel to the Indemnified Party
shall be paid by the Indemnifying Party. If the Indemnifying Party
fails to assume the defense of such Third Party Claim by delivering a
written notice of the Indemnifying Party's intention to assume such
defense within ten (10) days of re ceipt of the initial notice
thereof, or thereafter abandons or fails diligently to pursue such de
fense, the Indemnified Party may assume such de fense. In the event
the Indemnifying Party exer cises its right to undertake the defense
against any such Third Party Claim as provided above, the Indemnified
Party shall cooperate with the Indem nifying Party in such defense and
make available to the Indemnifying Party all pertinent records,
materials and information in its possession or under its control
relating thereto as is reason ably required by the Indemnifying Party,
with all expenses thereof incurred in connection therewith to be paid
by the Indemnifying Party. Similarly, in the event the Indemnified
Party is, directly or indirectly, conducting the defense against any
such Third Party Claim, the Indemnifying Party shall cooperate with
the Indemnified Party in such defense and make available to the
Indemnified Party all such records, materials and information in the
Indemnifying Party's possession or under the Indemnifying Party's
control relating thereto as is reasonably required by the Indemnified
Party, with all expenses incurred in connection therewith to be paid
by the Indemnifying Party. Notwithstanding anything in this Section
5.4 to the contrary, however, in the event of a claim with respect to
which the Indemnifying Party has agreed to assume the defense thereof,
the Indemni fying Party shall not thereafter be entitled to dispute,
and hereby agree not to dispute, the Indemnified Party's right to
indemnification therefor pursuant to Section 5.1 or Section 5.2
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hereof or any subsequent claims of the Indemnified Party with respect
to such Third Party Claim.
(b) SETTLEMENT OR DECISION OF THIRD PARTY CLAIMS. The Indemnifying Party
shall not, without the written consent of the Indemnified Party, (i)
settle or compromise any Third Party Claim or consent to the entry of
any judgment which does not include as an unconditional term thereof
the delivery by the claimant or plaintiff to the Indemnified Party of
a written release from all liability in respect of such Third Party
Claim, (ii) settle or compromise any Third Party Claim in any manner
that may, in the reasonable judgment of the Indemnified Party,
adversely affect the Indemnified Party (including without limitation,
any settlement or compromise that includes any admission of negligence
or other malfeasance on the part of the Indemnified Party), or (iii)
upon the issuance of an order of a court of competent jurisdiction or
an arbitrator with respect to such Third Party Claim, appeal or oth
erwise challenge such order without the consent of the Indemnified
Party. Similarly, no Third Party Claim which is being defended in good
faith by the Indemnifying Party in accordance with the terms of this
Agreement shall be settled by the Indemnified Party without the
written consent of the Indemni fying Party, which consent shall not be
unreason ably withheld. Upon the settlement or compromise of any Third
Party Claim, the order of a court of competent jurisdiction or
arbitrator (if the In demnified Party has failed to consent to the ap
peal or challenge thereof) with respect thereto or the final,
non-appealable order of any appellate court (if the Indemnified Party
has consented to the appeal or challenge thereof) with respect
thereto, as the case may be, any resulting settle ment, award, damages
or judgment shall be paid by the Indemnifying Party.
5.5 INDEMNIFICATION MATTERS. In cases where any Indemni fied Party has made a
prior payment with respect to any liability that is the subject of
indemnification under Sections 5.1 or 5.2 hereof, the Indemnifying Party shall
also pay interest on such funds at a rate per annum equal to the prime rate
published by First Union National Bank of Florida, N.A. in effect from time to
time during the relevant period, said interest to be due from the date of such
prior payment to the date of payment of any such funds by the Indemnifying
Party. The parties agree that payments by an Indemnifying Party made under
Sections 5.1 or 5.2 hereof shall be treated as an adjustment to the Purchase
Price for tax purposes. The provisions of this Article V shall not be deemed
16
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to be a limitation or waiver of any other remedy afforded by law to Buyer for
indemnification under Section 5.1 hereof.
5.6 TAX INDEMNIFICATION. Seller hereby agrees to indemnify the Buyer
Indemnified Parties against, and agrees to protect, save and keep harmless the
Buyer Indemnified Parties from pay ment, and subject to Section 4.10 hereinabove
hereby assumes liability for the payment, of all Taxes with regard to the
operations, activities and assets of the Transferred Business for (a) all years
or periods (or portions thereof) ending (or deemed to end) on or prior to the
Closing Date and (b) any taxable year or period of Seller which ends after the
Closing Date to the extent that the Taxes are allocable to the operations of the
Transferred Business up to the Closing Date, as determined on the basis of the
permanent records of Seller (including workpapers).
5.7 TERMINATION OF INDEMNIFICATION. The obligations to indemnify and hold
harmless an Indemnified Party (a) pursuant to Section 5.6 shall terminate one
hundred twenty (120) days follow ing the expiration of the applicable statutes
of limitations with respect to the Tax liabilities in question (giving effect to
any waiver, mitigation or extension thereof), (b) pursuant to Sec tions 5.1(a)
and 5.2(a) shall terminate with respect to any theretofore unasserted claim when
the applicable representation or warranty terminates, pursuant to Section 3.3,
and (c) pursuant to the other clauses of Sections 5.1 and 5.2 shall not
terminate; PROVIDED, HOWEVER, that such obligations to indemnify and hold
harmless shall not terminate with respect to any item as to which the person to
be indemnified shall have, before the expiration of the applicable period,
previously made a claim by delivering a notice pursuant to Section 5.3 or
Section 5.4 hereof to the Indemnifying Party.
ARTICLE VI
GENERAL PROVISIONS
6.1 EXPENSES. All fees, commissions and other expenses incurred by any party
hereto in connection with the negotiation of this Agreement and in preparing to
consummate the Asset Transfer and the other transactions contemplated hereby,
includ ing any fees and expenses of their respective counsel and finan cial
advisors, shall be borne by the party incurring such fee or expense.
6.2 EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts,
both of which shall be considered one and the same agreement, and shall become a
binding agreement when both counterparts have been signed by each party and
delivered to the other party.
6.3 NOTICES. All notices, request, demands or other
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communications provided herein shall be made in writing and shall be deemed to
have been duly given if delivered personally or sent by registered or certified
first class mail, postage prepaid, as follows:
(a) If to Seller: Basic Organization of Middle
Economic Resurgence Society, Inc.
1555 N.E. 39th Street
Ft. Lauderdale, FL
Attn: Harvey O. Underdahl
with a copy to: Jan M. Morris, Esq.
P. O. Box 276153
Boca Raton, FL 33427
(b) if to Buyer: Boomers.Com, Inc.
161 "C" Street #194
Blaine, WA 98231-3939
Attn: J. Graham Douglas
with a copy to: Mirkin & Woolf, P.A.
1700 Palm Beach Lakes Blvd. #580
West Palm Beach, FL 33401
Attn: Mark H. Mirkin, Esq.
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, re quests, demands and
communications shall be deemed to have been received on the date of delivery or
on the third business day after the mailing thereof.
6.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida as applied to contracts entered
into and to be performed in Florida and without regard to the application of
principles of conflict of laws.
6.5 TITLES AND HEADINGS. Titles and headings to Articles and Sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall not be assignable by Seller
without the prior written consent of Buyer or by Buyer without the prior written
consent of Seller. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their successors in interest and assigns
(provided that such successors in interest and assigns are permitted under this
Agreement).
6.7 ENTIRE AGREEMENT; NO ORAL WAIVER. This Agreement, the Schedules and the
certificates and other documents contemplated
18
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hereby constitute the entire agreement between the parties pertaining to the
subject matter hereof and supersede all prior and contemporaneous agreements,
understandings and representa tions, whether oral or written, of the parties in
connection therewith except to the extent incorporated or specifically referred
to herein. No covenant or condition or representation not expressed in this
Agreement shall affect or be effective to interpret, change or restrict this
Agreement. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action, suit or other
proceeding involving this Agreement or the transactions contem plated hereby.
This Agreement may not be changed or terminated orally, nor shall any change,
termination or attempted waiver of any of the provisions of this Agreement be
binding on any party unless in writing signed by Seller and Buyer. No
modification, waiver, termination, rescission, discharge or cancellation of this
Agreement and no waiver of any provision of or default under this Agreement
shall affect the right of Seller or Buyer thereaf ter to enforce any other
provision or to exercise any right or remedy in the event of any other default,
whether or not similar.
6.8 SEVERABILITY. If any provision of this Agreement shall be declared by any
court of competent jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement shall not be affected and shall remain in full
force and effect.
6.9 NO THIRD-PARTY RIGHTS. Nothing in this Agreement, express or implied, shall
or is intended to confer upon any person other than the parties hereto or their
respective succes sors or permitted assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement, includ ing
without limitation any rights of employment.
6.10 SUBMISSION TO JURISDICTION. Each of the parties hereto
hereby irrevocably unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement, (i) except as otherwise provided in clause
(ii) below, to the exclusive general jurisdiction of the courts of the
State of Florida and the United States sitting in Broward County,
Florida PROVIDED -------- that such submission shall not limit the
ability of Buyer or Seller to proceed against such person in any court
of competent jurisdiction in the event that jurisdiction in such
courts of exclu sive jurisdiction is denied, and (ii) to the non-
exclusive general jurisdiction of the courts of the State of Florida
and the United States sitting in Broward County, Florida in respect of
any legal action or proceeding for the recognition and en forcement of
any judgment;
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(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such event or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage pre paid, to its
address set forth in Section 6.3; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction.
6.11 REMEDIES. In the event of any failure or refusal by any party to comply
with any covenant or agreement contained in this Agreement, the other party
shall have the right to pursue the remedy of specific performance.
6.12 ATTORNEYS' FEES. In the event of any controversy, claim or dispute between
the parties arising out of or relating to this Agreement, or the breach thereof,
the prevailing party shall be entitled to recover from the losing party
attorneys' fees, expenses and costs actually incurred.
IN WITNESS WHEREOF, the parties have executed, delivered and entered into this
Agreement as of the day and year first above written.
BASIC ORGANIZATION OF MIDDLE
ECONOMIC RESURGENCE SOCIETY, INC.
By:_______________________________
Name:__________________________
Title:_________________________
BOOMERS.COM, INC.
By:_______________________________
J. Graham Douglas, President
20
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF
HAIG, INC.
Pursuant to the provisions of the Florida Statutes, on December 8, 1998, both of
the directors and holders of a majority of the shares of common stock of Haig,
Inc., a Florida corporation (the "Corporation"), adopted the following
resolutions by written consent:
RESOLVED: That the name of the Corporation should be
changed to Boomers.com, Inc.
RESOLVED: That the Articles of Incorporation as filed
with the Florida State Department should be
amended to reflect the foregoing resolution.
The number of votes cast for the foregoing resolutions by the shareholders was
sufficient for approval.
NOW THEREFORE, in accordance with the foregoing resolutions, Article I of the
Corporation's Articles of Incorporation is de leted and the following inserted
in its place:
The name of the corporation shall be Boomers.com, Inc.
IN WITNESS WHEREOF, the president of the Corporation has executed and submitted
this instrument this 3rd day of March, 1999.
/S/ J. GRAHAM DOUGLAS
J. Graham Douglas
----------------------------------
Prepared by: Mark H. Mirkin, Esq.
FL Bar No.: 464694
Mirkin & Woolf, P.A.
1700 Palm Beach Lakes Blvd. #580
West Palm Beach, FL 33401
(561) 687-4460
H99000005155 9
-1-
BYLAWS
OF
HAIG, INC.
ADOPTED
SEPTEMBER 10, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I. OFFICES
1.01 Principal and Business Offices . . . . . . . . . . . 1
1.02 Registered Office . . . . . . . . . . . . . . . . . . 1
ARTICLE II. SHAREHOLDERS
2.01 Annual Meeting . . . . . . . . . . . . . . . . . . . 1
2.02 Special Meeting . . . . . . . . . . . . . . . . . . . 1
2.03 Place of Meeting . . . . . . . . . . . . . . . . . . 1
2.04 Notice of Meeting . . . . . . . . . . . . . . . . . . 2
2.05 Closing of Transfer Books or Fixing
of Record Date . . . . . . . . . . . . . . . . . . 2
2.06 Voting Records . . . . . . . . . . . . . . . . . . . 2
2.07 Quorum . . . . . . . . . . . . . . . . . . . . . . . 3
2.08 Conduct of Meeting . . . . . . . . . . . . . . . . . 3
2.09 Proxies . . . . . . . . . . . . . . . . . . . . . . . 3
2.10 Voting of Shares . . . . . . . . . . . . . . . . . . 4
2.11 Voting of Shares by Certain Holders . . . . . . . . . 4
(a) Other Corporations . . . . . . . . . . . . . . . 4
(b) Legal Representatives and Fiduciaries . . . . . 4
(c) Receiver . . . . . . . . . . . . . . . . . . . . 4
(d) Pledgees . . . . . . . . . . . . . . . . . . . . 4
(e) Subsidiaries . . . . . . . . . . . . . . . . . . 4
ARTICLE III. BOARD OF DIRECTORS
3.01 General Powers and Numbers . . . . . . . . . . . . . 5
3.02 Tenure and Qualifications . . . . . . . . . . . . . . 5
3.03 Regular Meetings . . . . . . . . . . . . . . . . . . 5
3.04 Special Meetings . . . . . . . . . . . . . . . . . . 5
3.05 Notice of Meetings . . . . . . . . . . . . . . . . . 5
3.06 Quorum . . . . . . . . . . . . . . . . . . . . . . . 6
3.07 Manner of Acting . . . . . . . . . . . . . . . . . . 6
3.08 Conduct of Meetings . . . . . . . . . . . . . . . . . 6
3.09 Vacancies . . . . . . . . . . . . . . . . . . . . . . 6
3.10 Compensation . . . . . . . . . . . . . . . . . . . . 6
3.11 Presumption of Assent . . . . . . . . . . . . . . . . 7
3.12 Committees . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV. OFFICERS
4.01 Number . . . . . . . . . . . . . . . . . . . . . . . 7
4.02 Election and Term of Office . . . . . . . . . . . . . 8
4.03 Removal . . . . . . . . . . . . . . . . . . . . . . . 8
4.04 Vacancies . . . . . . . . . . . . . . . . . . . . . . 8
4.05 President . . . . . . . . . . . . . . . . . . . . . . 8
4.06 Vice Presidents . . . . . . . . . . . . . . . . . . . 9
4.07 Secretary . . . . . . . . . . . . . . . . . . . . . . 9
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TABLE OF CONTENTS (Cont.)
ARTICLES IV. OFFICERS
4.08 Treasurer . . . . . . . . . . . . . . . . . . . . . . 9
4.09 Assistant Secretaries and Assistant Treasurers . . .10
4.10 Other Assistants and Acting Officers . . . . . . . .10
4.11 Salaries . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.01 Contracts . . . . . . . . . . . . . . . . . . . . . .10
5.02 Loans . . . . . . . . . . . . . . . . . . . . . . . .11
5.03 Checks, Drafts, etc. . . . . . . . . . . . . . . . .11
5.04 Deposits . . . . . . . . . . . . . . . . . . . . . .11
5.05 Voting of Securities Owned by this Corporation . . .11
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 Certificate for Shares . . . . . . . . . . . . . . .12
6.02 Facsimile Signatures and Seal . . . . . . . . . . . .12
6.03 Transfer of Shares . . . . . . . . . . . . . . . . .12
6.04 Restrictions on Transfer . . . . . . . . . . . . . .12
6.05 Lost, Destroyed or Stolen Certificates . . . . . . .12
6.06 Consideration for Shares . . . . . . . . . . . . . .13
6.07 Stock Regulations . . . . . . . . . . . . . . . . . .13
ARTICLE VII. WAIVER OF NOTICE
ARTICLE VIII. CONSENT WITHOUT A MEETING
ARTICLE IX. INDEMNIFICATION
ARTICLE X. SEAL
ARTICLE XI. FISCAL YEAR
ARTICLE XII. AMENDMENTS
12.01 By Shareholders . . . . . . . . . . . . . . . . . . .14
12.02 By Directors . . . . . . . . . . . . . . . . . . . .14
12.03 Implied Amendments . . . . . . . . . . . . . . . . .14
ii
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ARTICLE I. OFFICES
1.01. PRINCIPAL AND BUSINESS OFFICES. The corporation may have such
principal and other business offices, either within or outside the State of
Florida, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
1.02. REGISTERED OFFICE. The registered office of the corporation
required by the Florida Business Corporation Act to be maintained in the State
of Florida may be, but need not be, identical with the principal office in the
State of Florida. The address of the registered office may be changed from time
to time by the Board of Directors or, if within the county, by the registered
agent. The business office of the registered agent of the corporation shall be
identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.01. ANNUAL MEETING. The annual meeting of the shareholders shall
be held the last Wednesday of __________, in each year at 9:00 o'clock a.m., or
at such other time and date as may be fixed by or under the authority of the
Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday in the State of Florida,
such meeting shall be held on the next succeed ing business day. If the election
of directors shall not be held on the day designated herein, or fixed as herein
provided, for any annual meeting of the shareholders, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as conven-ient.
2.02. SPECIAL MEETING. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the President or the Board of Directors or by the person designated in the
written request of the holders of not less than one-tenth of all shares of the
corpora tion entitled to vote at the meeting.
2.03. PLACE OF MEETING. The Board of Directors may designate any
place either within or outside the State of Florida as the place of meeting for
any annual meeting or for any special meeting called by the Board of Directors.
A waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place, whether within or outside the State of Florida, as the
place for the holding of such meeting. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal
business office of the corpora tion in the State of Florida or such other
suitable place in the county of such principal office as may be designated by
the person calling such meeting, but any meeting may be adjourned to reconvene
at any place designated by vote of a majority of the shares represented thereat.
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<PAGE>
2.04. NOTICE OF MEETING. Written 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) days
(unless a longer period is required by law) nor more than thirty (30) days
before the date of the meeting, either personally or by mail, by or at the
direction of the President, the Secretary, or the person(s) 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 or her address as it appears on the stock
record books of the corporation, with postage thereon pre-paid.
2.05. CLOSING OF TRANSFER BOOK OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or any ad journment thereof, or shareholders 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 stock transfer books shall be closed for a stated period but not to
exceed, in any case, thirty (30) 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 Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than thirty (30) days and, in case of a meeting of shareholders, not less
than ten (10) days prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If the stock 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 close of business on the date on
which notice of the meeting is mailed or on 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 be applied
to any adjournment thereof except where the determination has been made through
the closing of the stock transfer books and the stated period of closing has
expired.
2.06. VOTING RECORDS. In the event the corporation issues its stock
to more than six (6) shareholders Section 607.0901 of the Florida Business
Corporation Act dealing with affiliated transactions and control-share
acquisitions shall apply.
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2.07. QUORUM. Except as otherwise provided in the articles of
incorporation, 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 less than one-third of the shares entitled to
vote at the meeting. When a specified item of business is required to be voted
on by a class or series of stock, a majority of the shares of such class or
series shall constitute a quorum for the trans action of such item of business
by that class or series. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by the Florida Business Corporation Act
or the articles of incorpora tion. If less than a quorum is represented at a
meeting, a majority of the shares so represented may adjourn the meeting from
time to time without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. The shareholders present
at a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
2.08. CONDUCT OF MEETINGS. The President, or in the President's
absence, a Vice President in the order provided under Section 4.06, and in their
absence, any person chosen by the shareholders present shall call the meeting of
the shareholders to order and shall act as chairman of the meeting, and the
Secretary shall act as secretary of all meetings of the shareholders, but, in
the absence of the Secretary, the presiding officer may appoint any other person
to act as secretary of the meeting.
2.09. PROXIES. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy ap pointed in writing by the
shareholder or by his duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary before or at the time of the meeting. Unless otherwise
provided in the proxy or Section 607.101 of the Florida Business Corpora tion
Act, a proxy may be revoked at any time before it is voted, either by written
notice filed with the Secretary or the acting secretary of the meeting or by
oral notice given by the shareholder to the presiding officer during the
meeting. The presence of a shareholder who has filed a proxy shall not of itself
constitute a revocation. No proxy shall be valid after eleven (11) months from
the date of its execution, unless otherwise provided in the proxy. The Board of
Directors shall have the power and authority to make rules as to the validity
and sufficiency of proxies.
2.10. VOTING OF SHARES. Each outstanding share shall
be entitled to one vote on each matter submitted to a vote at a
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meeting of shareholders, except to the extent that the voting rights of the
shares of any class or classes are enlarged, limited or denied by the articles
of incorporation.
2.11. VOTING OF SHARES BY CERTAIN HOLDERS.
(a) OTHER CORPORATIONS. Shares standing in the name of another
corporation, domestic or foreign, may be voted either in person or by proxy by
the president of such corporation or any other officer appointed by such
president. A proxy executed by any principal officer of such other corporation
or assistant thereto shall be conclusive evidence of the signer's authority to
act, in the absence of express notice to this corporation, given in writing to
the Secretary of this corporation, of the designa tion of some other person by
the Board of Directors or the bylaws of such other corporation.
(b) LEGAL REPRESENTATIVES AND FIDUCIARIES. Shares held by an
administrator, executor, guardian, conservator or assignee for creditors may be
voted by such person, either in person or by proxy. Shares standing in the name
of a trustee may be voted by him or her, either in person or by proxy, but no
trustee shall be entitled to vote shares held by him or her without a transfer
of such shares into his or her name. Shares standing in the name of a fiduciary
may be voted by him or her, either in person or by proxy. A proxy executed by a
fiduciary shall be conclusive evidence of the signer's authority to act in the
absence of express notice given in writing to the Secretary that such manner of
voting is prohibited or otherwise directed by the document creating the
fiduciary relationship.
(c) RECEIVER. Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his or her name if
authority to do so is contained in an appropriate court order pursuant to which
such receiver was appointed.
(d) PLEDGEES. A shareholder whose shares are pledged shall be entitled to
vote such shares in person or by proxy, until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee or his or her nominee
shall be entitled to vote the shares so transferred.
(e) SUBSIDIARIES. Neither shares of the corporation's stock owned by
another corporation, the majority of the voting stock of which is owned or
controlled by it, nor shares of its own stock held by another corporation in a
fiduciary capacity shall be voted, directly or indirectly, at any meeting; and
such shares shall not be counted in determining the total number of outstanding
shares at any given time.
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ARTICLE III. BOARD OF DIRECTORS
3.01. GENERAL POWERS AND NUMBER. The business and affairs of the
corporation shall be managed by its Board of Directors. The number of directors
of the corporation initially shall be a minimum of one (1) but may be increased
to not more than nine (9) without amendment. The number of directors may be
increased or decreased from time to time by amendment to this Section adopted by
the shareholders or the Board of Directors but no decrease shall have the effect
of shortening the term of an incumbent director.
3.02. TENURE AND QUALIFICATIONS. Each director shall hold office
until the next annual meeting of shareholders and until the director's successor
shall have been elected, or until his or her prior death, resignation or
removal. Any director or the entire Board of Directors may be removed from
office, with or without cause, by affirmative vote of a majority of the outstand
ing shares entitled to vote for the election of such director, or the Board of
Directors. A director may resign at any time by filing a written resignation
with the Secretary of the corpora tion. Directors need not be residents of the
State of Florida or shareholders of the corporation.
3.03. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held, without other notice than this bylaw, immediately after the
annual meeting of shareholders, and each adjourned session thereof. The place of
such regular meet ing shall be the same as the place of the meeting of
shareholders which precedes it, or such other suitable place as may be an
nounced at such meeting of shareholders. The Board of Directors may provide, by
resolution, the time and place, either within or outside the State of Florida,
for the holding of additional regular meetings without other notice than such
resolution.
3.04. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the President or any two directors. The
persons calling any special meeting of the Board of Directors may fix any place,
either within or out side the State of Florida, as the place for holding any
special meeting of the Board of Directors called by them, and if no other place
is fixed the place of meeting shall be the principal busi ness office of the
corporation in the State of Florida. Special meetings may be held by means of a
telephone conference circuit and connecting to such circuit shall constitute
presence at such meeting.
3.05. NOTICE OF MEETINGS. Notice of each meeting of the Board of
Directors (unless otherwise provided in or pursuant to Section 3.03) shall be
given by written notice delivered personally or mailed or given by telephone or
telegram to each director at his or her business or home address or at such
other address as such director shall have designated in writing filed with the
Secretary, in each case not less than 48 hours prior thereto. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company; if by telephone, at the time the call is completed. The
attendance of a director at a meeting shall con stitute a waiver of notice of
such meeting, except where a director attends a meeting and objects thereat to
the transaction of any business because the meeting is not lawfully called or
con vened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.06. QUORUM. A majority of the number of directors as provided in
Section 3.01 shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but a majority of the directors present
(though less than such quorum) may adjourn the meeting from time to time without
further notice.
3.07. MANNER OF ACTING. 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, unless the act of a greater number is required by the Florida
Business Corporation Act, the corporation's articles of incorporation or these
bylaws.
3.08. CONDUCT OF MEETINGS. The President, and in the President's
absence, a Vice President in the order provided under Section 4.06, and in their
absence, any director chosen by the directors present, shall call meetings of
the Board of Directors to order and shall chair the meeting. The Secretary of
the cor poration shall act as secretary of all meetings of the Board of
Directors, but in the absence of the Secretary, the presiding officer may
appoint any assistant secretary or any director or other person present to act
as secretary of the meeting.
3.09. VACANCIES. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled until the next succeeding annual election by the affirmative vote of a
majority of the directors then in office, though less than a quorum of the Board
of Directors, provided that in case of a vacancy created by removal of a
director(s), the shareholders shall have the right to fill such vacancy at the
same meeting or any adjournment thereof.
3.10. COMPENSATION. The Board of Directors, by affir mative vote of
a majority of the directors then in office, and irrespective of any personal
interest of any of its members, may establish reasonable compensation of all
directors for services to the corporation as directors, officers or otherwise,
and the
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manner and time of payment thereof, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority to
provide for or to delegate authority to an appropriate committee to provide for
reasonable pensions, disability or death benefits, and other benefits or
payments, to directors, officers and employees and to their estates, families,
dependents or beneficiaries on account of prior services rendered by such
directors, officers and employees to the corporation.
3.11. PRESUMPTION OF ASSENT. A director who is present at a meeting
of the Board of Directors or a committee there of of which he is a member at
which action on any corporate mat ter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the minutes
of the meeting or unless he shall file his written dissent to such ac tion with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
3.12. COMMITTEES. The Board of Directors, by resolu tion adopted by
the affirmative vote of a majority of the number of directors as provided in
Section 3.01, may designate one or more committees, each committee to consist of
three or more directors elected by the Board of Directors, which to the extent
provided in said resolution as initially adopted, and as there after
supplemented or amended by further resolution adopted by a like vote, shall have
and may exercise, when the Board of Directors is not in session, the powers of
the Board of Directors in the management of the business and affairs of the
corporation, except action in respect to dividends to shareholders, election of
the principal officers or the filling of vacancies on the Board of Directors or
committees created pursuant to this Sec tion. The Board of Directors may elect
one or more of its members as alternate members of any such committee who may
take the place of any absent member or members at any meeting of such committee,
upon request by the President or upon request by the chairman of such meeting.
Each such committee shall fix its own rules governing the conduct of its
activities and shall make such reports to the Board of Directors of its
activities as the Board of Directors may request.
ARTICLE IV. OFFICERS
4.01. NUMBER. The principal officers shall be a President, one or
more Vice Presidents (the number and designations to be determined by the Board
of Directors), a Secretary and a Treasurer, each of whom shall be elected by the
Board of Directors; the Board of Directors may elect a chairman who if so
elected shall be a principal officer. Any two or more offices may be held by the
same person. The Board of Directors may designate
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one of the Vice Presidents as the Executive Vice President. Such other officers
and assistant officers as may be deemed necessary may be elected or appointed by
the Board of Directors or the President.
4.02. ELECTION AND TERM OF OFFICE. The officers to be elected by the
Board of Directors shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of the
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as conveniently may be. Each
officer shall hold office until his successor shall have been duly elected or
until his prior death, resignation or removal.
4.03. REMOVAL. Any officer or agent may be removed by the Board of
Directors whenever in its judgment the best inter ests 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. Election or appointment shall not of
itself create contract rights.
4.04. VACANCIES. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unex pired portion of the term.
4.05. PRESIDENT. The President shall be the principal executive
officer and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation. He or
she shall preside at all meetings of the shareholders and of the Board of
Directors. The President shall have authority, subject to such rules as may be
prescribed by the Board of Directors, to appoint such agents and employees of
the corporation as he or she shall deem necessary, to prescribe their powers,
duties and compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the President. The President
shall have authority to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases,
reports and all other documents or instruments necessary or proper to be
executed in the course of the corpora tion's regular business, or which shall be
authorized by resolu tion of the Board of Directors; and, except as otherwise
provided by law or the Board of Directors, the President may authorize any Vice
President or other officer or agent of the corporation to sign, execute and
acknowledge such documents or instruments in his or her place and stead. In
general he shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
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4.06. VICE PRESIDENTS. In the absence of the Presi dent, or in the
event of the President's death, inability or refusal to act, or in the event for
any reason it shall be imprac ticable for the President to act personally, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or in the absence
of any designation, then in the order of their election) shall perform the
duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Any Vice President may sign,
with the Secretary or Assistant Secretary, certificates for shares of the
corporation, and shall perform such other duties and have such authority as from
time to time may be delegated or assigned to him or her by the President or the
Board of Directors. The execution of any instrument of the corporation by any
Vice President shall be conclusive evidence, as to third parties, of the Vice
President's authority to act in the stead of the President.
4.07. SECRETARY. The Secretary shall: (a) keep the minutes of the
meetings of the shareholders and of the Board of Directors in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these bylaws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation, if any, and see that
the seal of the corporation, if any, is affixed to all documents which are
authorized to be executed on behalf of the corporation under its seal; (d) keep
or arrange for the keeping of a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder; (e)
sign with the President, or a Vice President, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of the stock transfer books of
the corporation; and (g) in general perform all duties incident to the office of
Secretary and have such other duties and exercise such authority as from time to
time may be delegated or assigned to him or her by the President or by the Board
of Directors.
4.08. TREASURER. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the corporation; (b) receive
and give receipts for mon eys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with the provisions of Section 5.04; and (c) in general perform all of the
duties incident to the office of Treasurer and have such other duties and
exercise such other authority as from time to time may be delegated or assigned
to him or her by the President or by the Board of Directors.
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4.09. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. There shall be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors or President from time to time authorizes. The Assistant Secretaries
may sign with the President or a Vice President certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties and have such authority as from time to time
shall be delegated or assigned to them by the Secretary or the Treasurer, respec
tively, or by the President or the Board of Directors.
4.10. OTHER ASSISTANTS AND ACTING OFFICERS. The Board of Directors
and the President shall have the power to appoint any person to act as assistant
to any officer, or as agent for the corporation in the officer's stead, or to
perform the duties of such officer whenever for any reason it is impracticable
for such officer to act personally, and such assistant or acting officer or
other agent so appointed by the Board of Directors or President shall have the
power to perform all the duties of the office to which that person is so
appointed to be assistant, or as to which he or she is so appointed to act,
except as such power may be otherwise defined or restricted by the Board of
Directors or President.
4.11. SALARIES. Salaries may be paid to the principal officers of
the corporation at the discretion of the Board of Directors, and if so paid,
shall be fixed from time to time by the Board of Directors or by a duly
authorized committee thereof, and no officer shall be prevented from receiving
such salary by reason of the fact that such officer is also a director of the
corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.01. CONTRACTS. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any con tract or execute or deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. No contract or
other transac tion between the corporation and one or more of its directors or
any other corporation, firm, association or entity in which one or more of its
directors are directors or officers or are finan cially interested, shall be
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract or
transaction or because the votes of the interested director(s) are counted for
such purpose, if (1) the fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes, approves or
ratifies the contract or transaction by a vote or consent sufficient for the
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purpose without counting the votes or consents of such interested directors; or
(2) the fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or (3) the contract or
transaction is fair and reasonable to the corporation. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction.
5.02. LOANS. No indebtedness for borrowed money shall be contracted
on behalf of the corporation and no evidences of such indebtedness shall be
issued in its name unless authorized by or under the authority of a resolution
of the Board of Directors. Such authorization may be general or confined to
specific instances.
5.03. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer(s), employee(s) or
agents of the corpora tion and in such manner as shall from time to time be
determined by or under the authority of a resolution of the Board of Directors.
5.04. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as may be selected by or under the
authority of a resolution of the Board of Directors.
5.05. VOTING OF SECURITIES OWNED BY THIS CORPORATION. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other cor poration and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he or she is present, or in
the President's absence, by any Vice President of this corporation who may be
present, and (b) whenever, in the judgment of the President, or in the
President's absence, of any Vice President, it is desirable for this corporation
to execute a proxy or written consent with respect to any shares or other
securities issued by any other corporation and owned by this corporation, such
proxy or consent shall be executed in the name of this corporation by the
President or one of the Vice Presidents of this corporation, without necessity
of any authorization by the Board of Directors, affixation of corporate seal or
countersignature or attestation by another officer. Any person or persons
designated in the manner above stated as the proxy or proxies of this
corporation shall have full right, power and authority to vote the shares or
other securities issued by such other corporation and owned by this corporation
the same as such shares or other securities might be voted by this corporation.
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ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFERS
6.01. CERTIFICATE FOR SHARES. Certificates represent ing shares of
the corporation shall be in such form, consistent with law, as shall be
determined by the Board of Directors. Such certificates shall be signed by the
President. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and the date of issue,
shall be entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except as provided
in Section 6.05.
6.02. FACSIMILE SIGNATURES AND SEAL. The seal of the corporation, if
the corporation has elected to have a seal, on any certificates for shares may
be a facsimile. The signature of the President upon a certificate may be a
facsimile if the certificate is manually signed on behalf of a transfer agent or
a registrar, other than the corporation itself or an employee of the
corporation.
6.03. TRANSFER OF SHARES. Prior to due presentment of a certificate
for shares for registration of transfer, the cor poration may treat the
registered owner of such shares as the person exclusively entitled to vote, to
receive notifications and otherwise to have and exercise all the rights and
powers of an owner. Where a certificate for shares is presented to the cor
poration with a request to register for transfer, the corporation shall not be
liable to the owner, or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the corporation had no duty to inquire into
adverse claims or has discharged any such duty. The corporation may require
reasonable assurance that said endorsements are genuine and effec tive and in
compliance with such other regulations as may be prescribed by or under the
authority of the Board of Directors.
6.04. RESTRICTIONS ON TRANSFER. The face or reverse side of each
certificate representing shares shall bear a con spicuous notation of any
restriction imposed by the corporation upon the transfer of such shares.
6.05. LOST, DESTROYED OR STOLEN CERTIFICATES. Where the owner claims
that his or her certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the corporation has notice that such shares have been acquired
by a bona fide purchaser, and (b) if required by the corporation, files with the
corporation a sufficient indemnity bond, and (c)
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satisfies such other reasonable requirements as may be prescribed by or under
the authority of the Board of Directors.
6.06. CONSIDERATION FOR SHARES. The shares of the corporation may be
issued for such consideration as shall be fixed from time to time by the Board
of Directors, provided that any shares having a par value shall not be issued
for a consideration less than the par value thereof. The consideration to be
paid for shares may be paid in whole or in part, in money, in other property,
tangible or intangible, or in labor or services actually performed for the
corporation. When payment of the consideration for which shares are to be issued
shall have been received by the corporation, such shares shall be deemed to be
fully paid and nonassessable by the corporation. No certificate shall be issued
for any share until such share is fully paid.
6.07. STOCK REGULATIONS. The Board of Directors shall have the power
and authority to make all such rules and regula tions not inconsistent with the
statutes of the State of Florida as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
corporation.
ARTICLE VII. WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of
the Florida Business Corporation Act or under cor responding provisions of the
corporation's articles of incorpora tion or bylaws, a waiver thereof in writing,
signed at any time, whether before or after the time of the meeting, by the
person or persons entitled to such notice, shall be deemed equivalent to the
giving of such notice. Such waiver by a shareholder in respect of any matter of
which notice is required under any provision of the Florida Business Corporation
Act shall contain the same information as would have been required to be
included in such notice under any applicable provisions of said Law, except that
the time and place of meeting need not be stated.
ARTICLE VIII. CONSENT WITHOUT A MEETING
Any action required by the articles of incorporation or these bylaws
or any provisions of the Florida Business Corpora tion Act to be taken at a
meeting or any other action which may be taken at a meeting may be taken without
a meeting if a consent in writing setting forth the action so taken shall be
signed by the requisite number of shareholders or directors under law or all of
the members of a committee thereof entitled to vote with respect to the subject
matter thereof and such consent shall have the same force and effect as a vote.
ARTICLE IX. INDEMNIFICATION
The corporation shall indemnify all directors and of
ficers to the fullest extent now or hereafter permitted by the
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Florida Statues. This bylaw shall not limit the rights of such persons or other
persons to indemnification as provided or permitted as a matter of law, under
the Florida Statutes or otherwise.
ARTICLE X. SEAL
The Board of Directors may provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "Corporate Seal."
ARTICLE XI. FISCAL YEAR
Except as the Board of Directors may otherwise determine, the fiscal
year of the corporation shall be the year ending on the last day of September of
each year.
ARTICLE XII. AMENDMENTS
12.01. BY SHAREHOLDERS. These bylaws may be altered, amended or
repealed and new bylaws may be adopted by the shareholders by affirmative vote
of not less than a majority of the shares present or represented at an annual or
special meeting of the shareholders at which a quorum is in attendance.
12.02. BY DIRECTORS. These bylaws may also be altered, amended or
repealed and new bylaws may be adopted by the Board of Directors by affirmative
vote of a majority of the number of directors present at any meeting at which a
quorum is in attendance; but no bylaw adopted by the shareholders shall be
amended or repealed by the Board of Directors if the bylaw so adopted so
provides.
12.03. IMPLIED AMENDMENTS. Any action taken or authorized by the
shareholders or by the Board of Directors which would be inconsistent with the
bylaws then in effect but is taken or authorized by affirmative vote of not less
than the number of shares or the number of directors required to amend the
bylaws so that the bylaws would be consistent with such action, shall be given
the same effect as though the bylaws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
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