UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUER
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
ATOMIC GIANT.COM, INC.
(Name of Small Business Issuer in its charter)
Utah 87-0626333
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
4643 North Mile High Drive, Provo, Utah 84604
(Address of Principal Executive Offices and Zip Code)
Issuer's Telephone Number: (801) 373-3990
Securities to be registered under Section 12(b) of the Act: None
Securities to be registered under Section 12(g) of the Act:
Common Stock, No Par Value
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TABLE OF CONTENTS
ITEM NUMBER AND CAPTION Page
Part I
1. Description of Business 3
2. Management's Discussion and Analysis or Plan of 4
Operations
3. Description of Property 5
4. Security Ownership of Certain Beneficial Owners and 5
Management
5. Directors, Executive Officers, Promoters and Control 7
Persons
6. Executive Compensation 8
7. Certain Relationships and Related Transactions 8
8. Legal Proceedings 8
9. Market for Common Equity and Related Stockholder 9
Matters
10. Recent Sales of Unregistered Securities 9
11. Description of Securities 10
12. Indemnification of Directors and Officers 10
13. Financial Statements 12
14. Changes in and Disagreements with Accountants on 12
Accounting and Financial Disclosure
15. Financial statements and Exhibits 12
2
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ITEM 1. DESCRIPTION OF BUSINESS
General
The Company was formed as a Utah corporation in February 1999 for
the purpose of engaging in the development and marketing of
various Internet and Internet related products and services,
including the development and marketing of e-mail databases. The
Company is currently conducting market research to determine the
market niches it will focus on in developing its business,
constructing its website, and developing programming for the e-
mail databases.
The Company's primary focus is on providing "opt-in" e-mail
services to retailers and distributors of consumer goods and
services who want to reconnect with their customers to offer new
products and services. Opt-in e-mail is a system in which the
customer agrees to have e-mail sent to him from the retailer or
distributor, usually on a regular basis, informing the customer
of new products and services, specials, product mark-downs, and
any other information related to the products and services
offered. In order to open this direct and periodic channel of
communication to the customer, the retailer or distributor will
often limit certain specials and savings opportunities only to
customers who participate in the opt-in e-mail program.
The Company intends to be an outside service provider to the
retailers and distributors. It will establish and maintain the
database of opt-in customers for each retailer or distributor,
coordinate periodic sales and e-mail communications, and effect
dissemination of the e-mail to the opt-in customers. The Company
will also explore the possibility of providing e-mail order
services, so that customers can respond by e-mail to special
offers.
In February 1999 the Company registered the domain name
"AtomicGiant.com". It is now constructing its website, which
will initially be used to market its services to retailers and
distributors. Ultimately, the Company's objective is to make the
website a clearing house where customers can access retailers and
distributors and their special product offers through links in
the Company's website. It is expected the website will be
complete in June 1999.
The Company is also developing the database programs it needs to
manage the opt-in e-mail service it will offer to retailers and
distributors. The goal is to develop programs that will enable
the Company to add-on the e-mail and marketing services described
above, so that the Company can continually expanded its service
offerings.
The Company has only made preliminary marketing overtures to
retailers and distributors to determine their interest in the
services the Company intends to provide. Although there have
been indications of interest, the Company has no service
agreements at this time and can not predict how well its services
will be received. Accordingly, the Company is a new venture with
no history of operations on which to evaluate its future
prospects.
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Competition
The internet is the new frontier of commerce, so it characterized
by substantial growth and competition by many businesses seeking
to take advantage of this growing industry. A substantial number
of businesses are offering a variety of internet marketing
services and programs to retailers and distributors. Many
retailers and distributors are creating their own internet
marketing programs, which may include e-mail solicitation. Most
of these businesses have substantially greater financial and
managerial resources than the Company. The Company's plan is to
market its services to smaller retailers and distributors who
prefer to outsource their service needs rather than commit their
capital to developing the resources in-house. The Company is now
investigating through an internal market study the potential for
acceptance of the Company's services by this target market.
Employees
The Company is a development stage company and currently has no
employees, except its executive officers. Management of the
Company expects to use consultants, attorneys, and accountants as
necessary. The need for full-time employees and their
availability will be determined on an as needed basis.
Government Regulation
There is no government regulation that is significant to the
Company's proposed operations.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATIONS
Plan of Operations
At March 31, 1999, the Company had cash of $992,331, and
liabilities of $5,813. The Company is in the development stage,
in that has just begun to try and develop its internet service
business. Accordingly, the Company had no revenues from February
through March 1999, and has not commenced its proposed business.
The only significant expense realized by the Company during the
period was $20,500 for issuance of a below market warrant to an
affiliate, which did no affect the Company's working capital.
See "Certain Relationships and Related Transactions."
The Company intends to use its working capital of $988,885 over
the next year for the following purposes, listed in order of
priority.
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Proposed Use Amount ($)
Promotion and advertising 80,000
Computer and related equipment 90,000
Software and programming 50,000
Administrative expenses 100,000
Unallocated Working Capital 668,885
The proposed uses of the Company's working capital are based
solely on management's preliminary pricing for the resources
required to implement the Company's business. Actual
expenditures may vary substantially from the foregoing estimates
as the Company's business develops. The amount allocated to
administrative expenses may vary significantly depending on the
timing under which the Company is required to hire employees and
establish facilities to support its operations. The amount of
unallocated working capital is so large because of management's
determination to have capital available to allocate to those
items it discovers as the Company develops have the greatest need
in relation to commencing operations. The Company can not
predict when it will be able to commence planned operations for
its internet business, but believes that at the very least it
will not generate any revenue from operations before the last
calendar quarter of 1999.
If the proposed internet business of the Company proves
unsuccessful, the Company may recognize substantial losses. In
these circumstances, the Company would attempt to use whatever
resources remain to develop other Internet business
opportunities. There is no assurance the Company will ultimately
be successful in implementing any profitable business.
ITEM 3. DESCRIPTION OF PROPERTIES
The Company rents its office space at 4346 North Mile High Drive,
Provo, Utah 84604, from A&J Investments, a company owned by
Joseph Olivier, a founder of the Company. The Company's lease is
a month to month lease beginning March 1, 1999. The Company pays
$300.00 per month to utilize this space.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth as of April 30, 1999, the number
and percentage of the outstanding shares of common stock which,
according to the information supplied to the Company, were
beneficially owned by (i) each person who is currently a director
of the Company, (ii) each executive officer, (iii) all current
directors and executive officers of the Company as a group and
(iv) each person who, to the knowledge of the Company, is the
beneficial owner of more than 5% of the outstanding common stock.
Except as otherwise indicated, the persons named in the table
have sole voting and dispositive power with respect to all shares
beneficially owned, subject to community property laws where
applicable.
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Common Warrants Percent of
Shares Class (1)
Name and Address
Joseph Ollivier (2) 45,000 50,000 14.1
3191 North Canyon Road
Provo, Utah 84604
Scott Frazier (3) 50,000 -0- 8.0
913 Sunburst Lane
Alpine, Utah 84004
Joshua Miller (3) 2,500 -0- 0.4
4643 North Mile High Drive
Provo, Utah 84604
Miles Pitcher (3) 2,500 -0- 0.4
4643 North Mile High Drive
Provo, Utah 84604
Seastone Companies, L.C. (4) 50,000 -0- 8.0
4290 North Vintage Circle
Provo, Utah 84604
All Executive Officers and 55,000 -0- 8.8
Directors as a Group (3 persons)
(1) These figures represent the percentage of ownership of the
named individuals assuming each of them alone has exercised his
or her warrants.
(2) Joseph Ollivier rendered consulting services in connection
with the formation and structuring of the Company, and is
expected to continue consulting with the Company on the
development of its Internet business. For such services, Mr.
Ollivier received a warrant to purchase 50,000 shares of the
Company's common stock at an exercise price of $1.00 per share,
which expires on January 1, 2001. Based on this relationship,
Mr. Olivier is deemed to be a founder of the Company. See
"Certain Relationships and Related Transactions."
(3) Messrs. Frazier, Miller, and Pitcher are all of the officers
and directors of the Company.
(4) Seastone Companies, L.C., is owned by Sunbrook Holdings Ltd.
("Sunbrook"). The general partners of Sunbrook are Warren R.
Osbourne and Tricia R. Osbourne. Therefore, Sunbrook, Warren R.
Osbourne, and Tricia R. Osbourne may be deemed to have shared
voting and investment control with respect to 50,000 shares held
of record by Seastone Companies, L.C.
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ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL
PERSONS
The following table sets forth the names, ages, and positions
with the Company for each of the directors and officers of the
Company.
Name Age Positions (1) Since
Scott Frazier 45 Chairman and Director 1999
Miles Pitcher 24 President and Director 1999
Joshua Miller 24 Vice President, Treasurer and 1999
Director
All executive officers are elected by the Board and hold office
until the next Annual Meeting of stockholders and until their
successors are elected and qualify.
The following is information on the business experience of each
director and officer.
Scott Frazier has been an independent business advisor and
investor from June 1995 to the present. From July 1988 to June
1995, he served as the Chief Executive Officer of Achievement
Rehab. Mr. Frazier was the Vice President of Operations for
Morristown Memorial Hospital from August 1986 to July 1988. Mr.
Frazier graduated from Brigham Young University with a degree in
Economics in 1975, and from Harvard University in 1978 with a
Masters in Business Administration.
Miles C. Pitcher entered Brigham Young University ("BYU") in
January 1997, and graduated in April 1998 with a bachelor's
degree in Business Management. From June 1998 to the present,
Mr. Pitcher has been a managing member of Monitor Finance, L.C.,
a privately-held company based in Orem, Utah, which provides loan
financing to individuals and businesses. From January 1999 to
the present, he has been a partner of First Capital Advisors,
L.C., of Orem, Utah, a privately held business consulting
company. From September 1995 to October 1997, Mr. Pitcher was
employed as an administrative assistant at First Western
Advisors, a stock brokerage firm in Salt Lake City, Utah. He is
currently serving as the secretary/treasurer of the Utah
Association of Alternative Lenders.
Joshua Miller entered Brigham Young University ("BYU") in
September 1992, and graduated in April 1999 with a degree in
Linguistics. He has been accepted in the MBA program at BYU and
will enter in the fall 2000. While at BYU, Mr. Miller served as
Senior Co-President of the Association of Collegiate
Entrepreneurs. He received the Mary Fielding University
Scholarship for academics and the Mary Pickford Scholarship from
the business school. From December 1998, to February 1999, Mr.
Miller was employed at First Capital Advisors, L.C., of Orem,
Utah, a privately held business consulting company.
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ITEM 6. EXECUTIVE COMPENSATION
Prior to March 31, 1999, no executive compensation was paid to
any officer of the Company. On March 31, 1999, the Board of
Directors adopted a resolution authorizing payment of a monthly
salary to each of Miles Pitcher and Joshua Miller in the amount
of $500 in consideration for their services as executive
officers. It is expected that Messrs. Pitcher and Miller will
commit approximately 25% of their time to the business of the
Company over the next six months or until the development of the
Company's business requires a greater time commitment, whichever
occurs first. At such time as a greater time commitment is
required, the compensation arrangements for Messrs. Pitcher and
Miller will likely be adjusted.
The Company has no further agreement or understanding, express or
implied, with any officer, director, or principal stockholder, or
their affiliates or associates, regarding employment with the
Company or compensation for services. There are no other plans,
understandings, or arrangements whereby any of the Company's
officers, directors, or principal stockholders, or any of their
affiliates or associates, would receive funds, stock, or other
assets in connection with implementing the Company's internet
business.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Scott Frazier, Miles Pitcher, Joshua Miller, and Joseph Ollivier
are the persons who were instrumental in the formation of the
Company in February 1999, and will continue to be involved in the
development of the Company's Internet business. Accordingly,
these persons are the founders of the Company. In connection
with the formation of the Company each of the founders purchased
common stock of the Company at a price of $1.00 per share, which
was arbitrarily determined by the founders. See "Security
Ownership of Certain Beneficial Owners and Management." In
addition, Mr. Ollivier was issued a warrant to purchase 50,000
shares of the Company's common stock at an exercise price of
$1.00 per share, which expires on January 1, 2001, for his
consulting services in connection with the formation of the
Company and future services to be rendered in connection with
implementing its internet business. There is no written
agreement between the Company and Mr. Ollivier regarding these
services, and the Company is relying solely on his equity
interest in the Company to induce him to commit his time and
efforts to the Company. As a result of issuing the warrant, the
Company recognized an expense of $20,500, for issuance of the
below market warrant to an affiliate.
The Company rents office space from Joseph Ollivier, a founder
and principal stockholder of the Company, for $300 per month.
ITEM 8. LEGAL PROCEEDINGS
The Company is not a party to any material pending legal
proceedings, and to the best of its knowledge, no such
proceedings by or against the Company have been threatened.
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ITEM 9. MARKET FOR COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
From the date of inception to the date of this registration
statement there has been no public trading market for the
Company's common stock. Following the filing of this
registration statement, the Company will seek out one or more
stock brokerage firms to make a market in the Company's common
stock and submit an application for quotation of the Company's
common stock on the OTC Bulletin Board operated by the National
Association of Securities Dealers, Inc. There is no assurance
that a trading market in the common stock will be established in
the future.
Since its inception, no dividends have been paid on the Company's
common stock. The Company intends to retain any earnings for use
in its business activities, so it is not expected that any
dividends on the common stock will be declared and paid in the
foreseeable future.
On March 31, 1999, there were approximately 210 holders of record
of the Company's Common Stock.
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES
Immediately following organization of the Company in February
1999, it sold 250,000 shares of its common stock to its officers,
directors and other shareholders for an aggregate of $250,000 in
cash, or a price per share of $1.00. No underwriter or broker
was involved in the offering, and no commissions were paid on the
sale of the shares. The shares were offered and sold in reliance
on the exemption set forth in Section 4(2) of the Securities Act
of 1933. All purchasers had pre-existing business and personal
relationships with the founders of the Company. The names of the
purchasers and amount of shares purchased are as follows:
Name Number of
Shares
Joseph Ollivier 45,000
Scott Frazier 50,000
Joshua Miller 2,500
Miles Pitcher 2,500
Seastone Companies, L.C. 50,000
Byron B. Barkely Pension Trust 8,000
Marie Davis 8,500
Paul Davis 8,500
Steve Gibson 25,000
KCLNACT Unitrust 25,000
Roger McOmber 25,000
Additionally, the Company issued 50,000 warrants to purchase
common stock at a price of $1.00 per share expiring January 1,
2001, to Joseph Ollivier, a founder of the Company.
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In order to provide the Company with additional working capital
to implement its business plan, the Company commenced on February
24, 1999, a placement of 375,000 shares common stock at a price
of $2.00 per share in reliance on Rule 504 of Regulation D
promulgated under the Securities Act of 1933. The offering was
completed on or about March 3, 1999, with all offered shares sold
at a gross purchase price of $750,000. No underwriter or broker
was involved in the offering, and no commissions were paid on the
sale of the shares. The founders of the Company sold the shares
to 199 persons, all of whom were business and personal
acquaintances. The shares were sold in reliance on exemptions
from state registration and qualification requirements, so all
certificates issued contain a legend restricting future transfer
without compliance with applicable state securities laws.
ITEM 11. DESCRIPTION OF SECURITIES
The Company is authorized to issue 50,000,000 shares of common
stock, no par value, of which 625,000 shares are issued and
outstanding. Holders of common stock are entitled to one vote
per share on each matter submitted to a vote at any meeting of
stockholders. Shares of common stock do not carry cumulative
voting rights and, therefore, holders of a majority of the
outstanding shares of common stock will be able to elect the
entire board of directors, and, if they do so, minority
stockholders would not be able to elect any members to the board
of directors. The Company's board of directors has authority,
without action by the Company's stockholders, to issue all or any
portion of the authorized but unissued shares of common stock,
which would reduce the percentage ownership in the Company of its
stockholders and which may dilute the book value of the common
stock. Stockholders of the Company have no pre-emptive rights to
acquire additional shares of common stock. The common stock is
not subject to redemption and carries no subscription or
conversion rights. In the event of liquidation of the Company,
the shares of common stock are entitled to share equally in
corporate assets after satisfaction of all liabilities. Holders
of common stock are entitled to receive such dividends, as the
board of directors may from time to time declare out of funds
legally available for the payment of dividends. The Company has
not paid dividends on its common stock and does not anticipate
that it will pay dividends in the foreseeable future.
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The by-laws of the Company provide that the Company may indemnify
a director to the maximum extent permitted by the Utah Revised
Business Corporation Act, so long as the conduct of the director
that is the subject of any proceeding was in good faith, or
reasonably believed to be, or not opposed to, the Company's best
interests. In criminal proceedings, the Company may indemnify a
director who had no reasonable cause to believe his conduct was
unlawful. The Company may not indemnify a director who is found
liable to the Company or found to have derived an improper
benefit from the Company. The Company must indemnify a director
against reasonable expenses incurred in a proceeding where the
director prevails.
Section 16-10-902 of the Utah Revised Business Corporation Act
provides in relevant part as follows:
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(1) A corporation may indemnify an individual made a party
to a proceeding because he is or was a director, against
liability incurred in the proceeding if his conduct was in
good faith, he reasonably believed that his conduct was in,
or not opposed to, the corporation's best interests, and in
the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
(3) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
its equivalent is not, of itself, determinative that the
director did not meet the standard of conduct described in
this section.
(4) A corporation may not indemnify a director under this
section in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation, or in connection with any other proceeding charging
that the director derived an improper personal benefit, whether
or not involving action in his official capacity, in which
proceeding he was adjudged liable on the basis that he derived an
improper personal benefit.
(5) Indemnification under this section in connection with a
proceeding by or in the right of the corporation is limited
to reasonable expenses incurred in connection with the
proceeding.
Section 16-10a-903 of the Utah Revised Business Corporation Act
provides in relevant part as follows:
Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was successful,
on the merits or otherwise, in the defense of any
proceeding, or in the defense of any claim, issue, or matter
in the proceeding, to which he was a party because he is or
was a director of the corporation, against reasonable
expenses incurred by him in connection with the proceeding
or claim with respect to which he has been successful.
Section 16-10a-905 of the Utah Revised Business Corporation Act
provides in relevant part as follows:
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is or was a
party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the
court, after giving any notice the court considers
necessary, may order indemnification in the following
manner:
(1) if the court determines that the director is entitled
to mandatory indemnification under Section 16-10a-903, the
court shall order indemnification, in which case the court
shall also order the corporation to pay the director's
reasonable expenses incurred to obtain court-ordered
indemnification; and
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(2) if the court determines that the director is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the director met the
applicable standard of conduct set forth in Section 16-10a-
902 or was adjudged liable as described in Subsection 16-10a-
902(4), the court may order indemnification as the court
determines to be proper, except that the indemnification
with respect to any proceeding in which liability has been
adjudged in the circumstances described in Subsection 16-10a-
902(4) is limited to reasonable expenses incurred.
Section 16-10a-907 of the Utah Revised Business Corporation Act
provides in relevant part as follows:
Unless a corporation's articles of incorporation provide
otherwise:
(1) an officer of the corporation is entitled to mandatory
indemnification under Section 16-10a-903, and is entitled to
apply for court-ordered indemnification under Section 16-10a-
905, in each case to the same extent as a director;
(2) the corporation may indemnify and advance expenses to
an officer, employee, fiduciary, or agent of the corporation
to the same extent as to a director; and
(3) a corporation may also indemnify and advance expenses
to an officer, employee, fiduciary, or agent who is not a
director to a greater extent, if not inconsistent with
public policy, and if provided for by its articles of
incorporation, bylaws, general or specific action of its
board of directors, or contract.
ITEM 13. FINANCIAL STATEMENTS
The financial statements of the Company appear at the end of this
registration statement beginning with the Index to Financial
Statements on page F-1.
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
There have been no changes in or disagreements with accountants
since the Company's organization.
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS
Financial Statements
The following financial statements of the Company appear at the
end of this registration statement beginning with the Index to
Financial Statements on page F-1.
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Independent Auditors' Report
Balance Sheet as of March 31, 1999
Statement of Operations from February 10, 1999 (Inception) to
March 31, 1999
Statement of Stockholders" Deficit from February 10, 1999
(Inception) to March 31, 1999
Statement of Cash Flows from February 10, 1999 (Inception) to
March 31, 1999
Notes to Financial Statements
Exhibits
Copies of the following documents are included as exhibits to
this report pursuant to Item 601 of Regulation S-B.
Exhibit SEC Title of Document Page
No. Ref.
No.
1 (3)(i) Articles of Incorporation E-1
2 (3)(ii) By Laws E-5
3 (10) Warrant dated February 11, 1999 E-23
4 (10) Office Lease Agreement dated March E-28
1, 1999
5 (27) Financial Data Schedules *
* The Financial Data Schedule is presented only in the
electronic filing with the Securities and Exchange Commission.
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SIGNATURES
In accordance with Section 12 of the Securities Exchange Act
of 1934, the registrant caused this registration statement to be
signed on its behalf by the undersigned thereunto duly
authorized.
ATOMIC GIANT.COM, INC.
Date: May 10, 1999 By: /s/ Miles Pitcher, President
In accordance with the Exchange Act, this registration statement
has been signed by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Dated: May 10, 1999 /s/ Joshua Miller, Director
Dated: May 10, 1999 /s/ Miles Pitcher, Director
Dated: May 10, 1999 /s/ Scott Frazier, Director
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ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Index to Consolidated Financial Statements
Page
Independent Auditors' Report F-2
Balance Sheet F-3
Statement of Operations F-4
Statement of Stockholders' Deficit F-5
Statement of Cash Flows F-6
Notes to Financial Statements F-7
F-1
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INDEPENDENT AUDITORS' REPORT
To the Board of Directors
and Stockholders of
Atomic Giant.com, Inc.
We have audited the accompanying balance sheet of
Atomic Giant.com, Inc.(a development stage company), as
of March 31, 1999 and the related statements of
operations, stockholders' equity and cash flows for
the period February 10, 1999 (date of inception) to
March 31, 1999. These financial statements are the
responsibility of the Company's management. Our
responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally
accepted auditing standards. Those standards require
that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are
free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements.
An audit also includes assessing the accounting
principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to
above present fairly, in all material respects, the
financial position of Atomic Giant.com, Inc., as of
March 31, 1999 and the results of their operations and
their cash flows for the period February 10, 1998 (date
of inception) to March 31, 1999, in conformity with
generally accepted accounting principles.
Tanner & Co.
Salt Lake City, Utah
April 28, 1999
F-2
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ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Balance Sheet
March 31, 1999
Assets
Current assets:
Cash $ 992,331
Prepaid expenses 2,367
Total current assets 994,698
Equipment, net of accumulated 3,617
depreciation of $29
Total assets $ 998,315
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 5,560
Accrued liabilities 253
Total current liabilities 5,813
Commitments
Stockholders' deficit:
Capital stock, 50,000,000 no-
par shares authorized, 625,000
shares issued and outstanding 1,015,100
Accumulated deficit (22,598)
Total stockholders' equity 992,502
Total liabilities and
stockholders' equity $ 998,315
See accompanying notes to financial statements
F-3
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ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Statement of Operations
February 10, 1999 (Date of Inception) to March 31, 1999
Revenue $ -
General and administrative expenses (25,500)
Other income - interest 2,902
Loss before income taxes (22,598)
Income tax benefit -
Net loss $(22,598)
Loss per share - basic and diluted $ (.04)
Weighted average shares -
basic and diluted 625,000
See accompanying notes to financial statements
F-4
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ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Statement of Stockholders' Deficit
February 10, 1999 (Date of Inception) to March 31, 1999
Common Stock Accumulated
Shares Amount Deficit
Balance at February 10, 1999 - $ - $ -
Issuance of common stock for cash
net of $5,400 offering costs 625,000 994,600 -
Issuance of below market warrants - 20,500 -
Net loss
- - (22,598)
Balance at March 31, 1999 625,000 $ 1,015,100 $ (22,598)
See accompanying notes to financial statements
F-5
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ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Statement of Cash Flows
February 10, 1999 (Date of Inception) to March 31, 1999
Cash flows from operating
activities:
Net loss $(22,598)
Adjustments to reconcile net loss to
net cash used in operating activities:
Depreciation 29
Issuance of below market warrants 20,500
Increase in prepaid expenses (2,367)
Increase in:
Accounts payable 5,560
Accrued liabilities 253
Net cash provided by
operating activities 1,377
Cash flows from investing activities-
purchase of equipment (3,646)
Cash flows from financing activities -
issuance of common stock 994,600
Net increase in cash 992,331
Cash, beginning of period -
Cash, end of period $992,331
See accompanying notes to financial statements
F-6
<PAGE>
ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Notes to Financial Statements
March 31, 1999
1. Summary of Organization
Significant Atomic Giant.com, Inc. (the Company) was
Accounting incorporated in the State of Utah on
Policies February 10, 1999 for the purpose of, but
not limited to, developing and marketing
various Internet and Internet-related
products and services.
In accordance with SFAS No. 7, the Company
is considered to be in the developmental
stage. The Company is devoting
substantially all of its efforts to
establishing a new business. No principal
operations have commenced and no
significant revenues have been derived from
operations.
Concentration of Credit Risk
The Company maintains its cash in bank
deposit accounts which, at times, may
exceed federally insured limits. The
Company has not experienced any losses in
such accounts and believes it is not
exposed to any significant credit risk on
cash and cash equivalents.
Cash and Cash Equivalents
For purposes of the statement of cash
flows, cash includes all cash and
investments with original maturities to the
Company of three months or less.
Equipment
Equipment is recorded at cost less
accumulated depreciation. Depreciation is
provided using the straight-line method
over the estimated useful lives.
Income Taxes
Deferred income taxes are provided in
amounts sufficient to give effect to
temporary differences between financial and
tax reporting.
Earnings Per Share
The computation of basic earnings per
common share is based on the weighted
average number of shares outstanding during
each year.
F-7
<PAGE>
ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Notes to Financial Statements
Continued
1. Summary of Earnings Per Share - Continued
Significant The computation of diluted earning per
Accounting common share is based on the
Policies weighted average number of shares
Continued outstanding during the year plus the common
stock equivalents which would arise form
the exercise of stock options and warrants
outstanding using the treasury stock method
and the average market price per share
during the year. Common stock equivalents
are not included in the diluted earnings
per share calculation when their effect is
antidilutive.
Use of Estimates in Financial Statements
The preparation of financial statements in
conformity with generally accepted
accounting principles requires management
to make estimates and assumptions that
affect the reported amounts of assets and
liabilities and disclosure of contingent
assets and liabilities at the date of the
financial statements. Actual results could
differ from those estimates.
2. Income The benefit for income taxes is different
Taxes from amounts which would be provided by
applying the statutory federal income tax
rate to loss before benefit for income
taxes for the following reasons:
Federal income tax benefit at statutory rate $ 700
Changes in valuation allowance (700)
$ -
Deferred Tax assets (liabilities) consist of the following:
Net operating loss carryforwards $ 700
Valuation allowance (700)
$ -
F-8
<PAGE>
ATOMIC GIANT.COM, INC.
(A Development Stage Company)
Notes to Financial Statements
Continued
2. Income At March 31, 1999, the Company has a net
Taxes operating loss carryforward available to
Continued offset future taxable income of
approximately $2,100, which will begin to
expire in 2019. The utilization of the net
operating loss carryforward is dependent
upon the tax laws in effect at the time the
net operating loss carryforwards can be
utilized. The Tax Reform Act of 1986
significantly limits the annual amount that
can be utilized for certain of these
carryforward as a result of the change in
ownership.
3. Supplemental There were no amounts paid for interest or
Cash Flow income taxes for the period February 10,
Disclosure 1999 (date of capital contribution) to
March 31, 1999.
4. Stock During February 1999, the Company granted
Warrants warrants to purchase 50,000 shares of
common stock. The warrants are exercisable
at a $1 par share and expire on January
2001. As of March 31, 1999 no warrants had
been exercised. The Company recognized
costs associated with the issuance of these
warrants in accordance with SFAS 123 of
$20,500.
F-9
Exhibit 1
Atomic Giant.com, Inc.
Form 10-SB
ARTICLES OF INCORPORATION
OF
Atomic Giant.com, Inc.
We, the undersigned natural persons of the age of twenty-one
years or more, acting as incorporators of the corporation under
the provisions of the Utah Revised Business Corporation Act
(hereinafter called the "Act"), do hereby adopt the following
Articles of Incorporation for such Corporation.
ARTICLE I
Name. The name of the corporation (hereinafter called the
"Corporation") is
Atomic Giant.com. Inc.
ARTICLE 11
Period of Duration. This corporation shall exist in
perpetuity unless it is otherwise terminated by law, or by the
voluntary action of the stockholders.
ARTICLE III
Purpose and Powers. The purposes for which this Corporation
is organized are as follows: To engage in the development and
marketing of various Internet and Internet-related products and
services, including the development and marketing of e-mail
databases, and to engage in any lawful acts, activities and
pursuits for which a corporation may be organized under the Utah
Act. To acquire, and pay for in cash, stocks or bonds of this
corporation or otherwise, the good will, rights, assets and
property, and to undertake or assume the whole or any part of the
obligations or liabilities of any person, firm, association or
corporation.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation,
municipality, county, state or government.
To borrow or raise moneys for any of the purposes of the
corporation, and from time to time without limit as to amount, to
draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of
indebtedness and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of
the corporation, whether at the time owned or thereafter
acquired, and to sell, pledge, or otherwise dispose of such
bonds, or other obligations of the corporation for its corporate
purposes.
In general, to carry on any other lawful business, and to
have and exercise all the power conferred by the laws of the
State of Utah upon corporations formed under the Utah Revised
Business Corporation Act, and to do any or all of the things
hereinabove set forth to the same extent as natural persons might
or could do.
ARTICLE IV
Capitalization. The Corporation shall have the authority to
issue 50,000,000 shares of common stock each having no par value.
All stock of the Corporation shall be of the same class and shall
have unlimited voting rights provided in the Utah Revised
Business Corporation Act. Fully paid stock of this Corporation
shall not be liable for further call or assessment.
ARTICLE V
Incorporators. The name and post office address of each
incorporator is:
Miles Pitcher Josh Miller
4643 North Mile High Drive 4643 North Mile High Drive
Provo, Utah 84604 Provo, Utah 84604
ARTICLE VI
Directors. The Corporation shall be governed by a Board of
Directors consisting of no more than nine (9) directors.
Directors need not be stockholders of the Corporation. The number
of Directors constituting the initial Board of Directors 2 and
the names and post office addresses of the persons who shall
serve as Directors until their successors are elected and
qualified are:
Miles Pitcher, president Josh Miller, secretary
4643 North Mile High Drive 4643 North Mile High Drive
Provo, Utah 84604 Provo, Utah 84604
The Board of Directors is, and shall be, authorized to transact
the business and exercise the corporate powers of the
corporation.
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to
make, alter, amend and/or repeal the By-Laws of the corporation.
To authorize and cause to be executed mortgages and liens
upon the real and personal property of the corporation.
To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
ARTICLE VII
Meetings of the stockholders may be held outside the State
of Utah. At the elections of Directors of the corporation, each
stockholder of record shall be entitled to one vote for every
share of stock standing in his/her name on the books of the
corporation.
ARTICLE VIII
Commencement of Business. The Corporation shall not
commence business until at least $1000.00 has been received by
the Corporation as consideration for the issuance of its shares.
ARTICLE IX
Preemptive Rights. There shall be no preemptive rights to
acquire unissued an/or treasury shares of the stock of the
Corporation.
ARTICLE X
The private property of the stockholders shall not be
subject to the payment of the corporate debts to any extent
whatsoever.
ARTICLE XI
The corporation may enter into any kind of contract or
agreement, cooperative or profit sharing plan, with its officers
or employees that the Directors may deem advantageous or
expedient, or otherwise to reward or pay persons for their
services, as the Directors may deem fit.
ARTICLE XII
The Board of Directors of the corporation may from time to
time declare, and the corporation may pay dividends on its
outstanding shares in cash, property or its own shares.
ARTICLE XIII
Voting of Shares. Each outstanding share of common stock of
the Corporation shall be entitled to one vote on each matter
submitted to a vote at the meeting of the stockholders. Each
stockholder shall be entitled to vote his or its shares in person
or by proxy, executed in writing by such stockholders, or by his
duly authorized attorney-in-fact. At each election of Directors,
every stockholder entitled to vote in such election shall have
the right to vote, in person or by proxy, the number of shares
owned by him or it for as many person as there are Directors to
be elected and for whose election he or it has the right to vote,
but the Shareholder shall have no right to accumulate his or its
votes with regard to such election.
ARTICLE XIV
Initial Registered Office and Initial Registered Age. The
address of the initial registered office of the Corporation is
4643 North Mile High Drive Provo, Utah 84604, and the initial
Registered Agent at such office Miles Pitcher.
I hereby acknowledge and accept appointment as corporation
registered agent:
/s/ Miles Pitcher
IN WITNESS WHEREOF, we Miles Pitcher and Josh Miller have
executed, under penalties of perjury, these Articles of
Incorporation in duplicate this 10th day of February, 1999 and
say:
That they are all incorporators herein; that they have read the
above and foregoing Articles of Incorporation; know the contents
thereof and that the same is true to the best of their/I
knowledge and belief, excepting as to matters herein alleged upon
information and belief and as to those matters they believe to be
true.
/s/Miles Pitcher
/s/ Josh Miller
Exhibit 2
Atomic Giant.com, Inc.
Form 10-SB
BYLAWS OF
ATOMIC GIANT.COM, INC.
As adopted February 11, 1999.
TABLE OF CONTENTS
ARTICLE 1 CORPORATE OFFICES I
1.1 Business Office 1
1.2 Registered Office 1
ARTICLE 2 SHAREHOLDERS 1
2.1 Annual Meeting 1
2.2 Special Meetings 1
2.3 Place of Meetings 1
2.4 Notice of Meetings 1
2.5 Fixing of Record Date 2
2.6 Voting List 2
2.7 Meetings by Telecommunication 2
2.8 Shareholder Quorum and Voting Requirements 2
2.9 Proxies 2
2.10 Voting Shares 3
2.11 Shareholder Action without a Meeting 3
2.12 Waiver 3
ARTICLE 3 BOARD OF DIRECTORS 3
3.1 General Powers 3
3.2 Number of Directors and Qualification 3
3.3 Election and Term of Office 3
3.4 Chairman of the Board of Directors 4
3.5 Regular Meetings 4
3.6 Special Meetings 4
3.7 Notice 4
3.8 Quorum 4
3.9 Manner of Acting 5
3.10 Vacancies and Newly-Created Directorships 5
3.11 Fees and Compensation. 5
3.12 Presumption of Assent 5
3.13 Resignations 5
3.14 Action by Written Consent 5
3.15 Meetings by Telephone Conference Call 5
3.16 Removal of Directors 6
ARTICLE 4 COMMITTEES 6
4.1 Committees 6
4.2 Procedures, Meetings and Quorum 6
ARTICLE 5 OFFICERS 6
5.1 Officers 6
5.2 Appointment, Term of Office and Qualification 7
5.3 Resignations 7
TABLE OF CONTENTS continued
5.4 Removal 7
5.5 Vacancies and Newly-Created Offices 7
5.6 Chief Executive Officer 7
5.7 President 7
5.8 Vice Presidents 7
5.9 Secretary 8
5.10 Treasurer 8
5.11 Assistant Secretaries and Treasurers 8
5.12 Salaries 9
5.13 Surety Bonds 9
ARTICLE 6 EXECUTION OF INSTRUMENTS, BORROWING OF MONEY AND
DEPOSIT OF CORPORATE FUNDS 9
6.1 Instruments 9
6.2 Loans 9
6.3 Deposits 9
6.4 Checks, Drafts, etc. 9
6.5 Bonds and Debentures 9
6.6 Sale, Transfer, etc. of Securities 10
6.7 Proxies 10
ARTICLE 7 CAPITAL STOCK 10
7.1 Stock Certificates 10
7.2 Shares Without Certificates 11
7.3 Transfer of Stock 11
7.4 Restrictions on Transfer or Registration of Shares 11
7.5 Regulations 11
7.6 Transfer Agent(s) and Registrar(s) 11
7.7 Lost or Destroyed Certificates 11
7.8 Consideration for Shares 12
ARTICLE 8 INDEMNIFICATION 12
8.1 Indemnification 12
8.2 Certain Restrictions on Indemnification 12
8.3 Mandatory Indemnification 12
8.4 Determination 12
8.5 General Indemnification 13
8.6 Advances 13
8.7 Scope of Indemnification 13
8.8 Insurance 13
ARTICLE 9 FISCAL YEAR 14
ARTICLE 10 DIVIDENDS 14
ARTICLE 11 AMENDMENTS 14
BYLAWS
OF
ATOMIC GIANT.COM, INC.
ARTICLE 1
CORPORATE OFFICES
1.1 Business Office. The principal office of the corporation
shall be located at such place either within or outside the State
of Utah, as may be determined by the Board of Directors. The
corporation may have such other offices, either within or without
the State of Utah as the Board of Directors may designate or as
the business of the corporation may require from time to time.
1.2 Registered Office. The registered office of the
corporation shall be located within the State of Utah and may be,
but need not be, identical with the principal office (if located
within the State of Utah). The address of the registered office
may be changed from time to time by the Board of Directors.
ARTICLE 2
SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of shareholders shall
be held each year on a date and at a time designated by the Board
of Directors. At the meeting, directors shall be elected and any
other proper business may be transacted. If the election of
directors shall not be held on the day designated for the 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 may be
convenient.
2.2 Special Meetings. Special meetings of the shareholders
may be called at any time by the Chairman of the Board, by the
Chief Executive Officer or the President, or by the Board of
Directors. Special meetings of the shareholders may also be
called by the holders of not less than one-tenth (1/10) of all
the shares entitled to vote on any issue proposed to be
considered at the proposed special meeting by delivery of one or
more signed and dated written demands for the meeting stating the
purpose for which it is to be held to the corporation's Secretary
or other designated officer.
2.3 Place of Meetings. Meetings of shareholders may be held
at any place within or outside the State of Utah as designated by
the Board of Directors. In the absence of any such designation,
meetings shall be held at the principal office of the
corporation.
2.4 Notice of Meetings. Written or printed notice stating
the place, date, and hour of the meeting, and in case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be given not less than ten (10), nor more than
sixty (60) days before the date of the meeting, either
personally, by facsimile, mail, or express courier by or at the
direction of the Chairman of the Board of Directors, the Chief
Executive Officer or the President, the Secretary, or the officer
or person(s) calling the meeting, to each shareholder of record
entitled to vote at such meeting or to any other shareholder
entitled by the Utah Revised Business Corporation Act, as amended
(the "Revised Act"), or the corporation's Articles of
Incorporation to receive notice of the meeting.
2.5 Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote
at any meeting of shareholders, or shareholders entitled to take
action without a meeting, or shareholders entitled to receive
payment of any distribution or dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors may fix in advance a date as the record date.
Such record date shall not be more than seventy (70) days prior
to the date on which the particular action requiring such
determination of the shareholders is to be taken. If no record
date is so fixed by the Board of Directors, the record date for
determination of such shareholders shall be determined in
accordance with the Revised Act.
2.6 Voting List. Unless otherwise directed by the Board of
Directors, the Secretary of the corporation shall prepare a list
of the names of all of the shareholders who are entitled to be
given notice of the meeting. The list shall be arranged by voting
group, and within each voting group by class or series of shares.
The list shall be alphabetical within each class or series and
must show both the address of and the number of shares held by
each shareholder. The shareholder list must be made available for
inspection by any shareholder in accordance with the Revised Act.
2.7 Meeting by Telecommunication. Any or all of the
shareholders may participate in an annual or special meeting of
the shareholders by, or the meeting may be conducted through the
use of, any means of communication by which all persons
participating in the meeting can hear each other during the
meeting.
2.8 Shareholder Quorum and Voting Requirements. If the
corporation's Articles of Incorporation or the Revised Act
provides for voting by a single voting group on a matter, action
on that matter is taken when voted upon by that voting group.
If the Articles of Incorporation or the Revised Act
provide for voting by two or more voting groups on a matter,
action on that matter is taken only when voted upon by each of
those voting groups counted separately. Action may be taken by
one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those
shares exists with respect to that matter. Unless the Articles of
Incorporation, these Bylaws or the Revised Act provide otherwise,
a majority of the votes entitled to be cast on the matter by the
voting group constitutes a quorum of that voting group for action
on that matter.
Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting,
unless a new record date is or must be set for the adjourned
meeting.
If a quorum exists, action on a matter (other than the
election of directors) by a voting group is approved if the votes
cast within the voting group favoring the action exceed the votes
cast opposing the action, unless the Articles of Incorporation,
these Bylaws, or the Revised Act require a greater number of
affirmative votes.
2.9 Proxies. At all meetings of shareholders, a shareholder
may vote in person, or vote by a proxy that is executed by the
shareholder or that is executed by the shareholder's duly
authorized attorney-in-fact, or by a written statement of the
appointment transmitted by telegram, teletype, telecopy, or other
electronic transmission along with written evidence from which it
can be determined that the shareholder transmitted or authorized
the transmission of the appointment. Such proxy shall be filed
with the Secretary of the corporation or any other person
authorized to tabulate votes before or at the time of the
meeting. No proxy shall be valid after eleven (11) months from
the date of its execution, unless otherwise provided in the
proxy.
2.10 Voting Shares. Each outstanding share, regardless of
class, and except as otherwise required by the Revised Act, shall
be entitled to one (1) vote, and each fractional share is
entitled to a corresponding fractional vote, on each matter
submitted to a vote at a meeting of the shareholders, except to
the extent that the voting rights of the shares of any class or
classes are limited or denied by the Articles of Incorporation of
this corporation as permitted by the Revised Act.
Redeemable shares are not entitled to vote after notice
of redemption is mailed to the holders and a sum sufficient to
redeem the shares has been deposited with a bank, trust company,
or other financial institution under an irrevocable obligation to
pay the holders the redemption price upon surrender of the
shares.
Unless the Articles of Incorporation of this corporation
provide otherwise, at each election for directors, every
shareholder entitled to vote at such election shall have the
right to vote, in person or by proxy, all of the votes to which
the shareholder's shares are entitled for, as many persons as
there are directors to be elected, and for whose election such
shareholder has a right to vote.
2.11 Shareholder Action Without a Meeting. Any action
required to be taken at a meeting of the shareholders, or any
other action that may be taken at a meeting of the shareholders,
may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by all of the shareholders
entitled to vote, with respect to the subject matter thereof.
2.12 Waiver. A shareholder may waive any required notice in
accordance with the Revised Act.
ARTICLE 3
BOARD OF DIRECTORS
3.1 General Powers. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of the Board of
Directors, subject to any limitation set forth in the Articles of
Incorporation or in a shareholder's agreement authorized under
the Revised Act.
3.2 Number of Directors and Qualification. The initial
authorized number of directors shall be two (2) unless otherwise
specified from time to time by resolution of the Board of
Directors, but shall not be less than three (3) unless the number
of shareholders of the corporation is less than three (3), in
which event the corporation may have a number of directors equal
to or greater than the number of shareholders. Directors need not
be residents of the State of Utah or shareholders of the
corporation.
3.3 Election and Term of Office. Directors shall be elected
at each annual meeting of the shareholders to hold office until
the next succeeding annual meeting. Each director, including a
director elected to fill a vacancy, shall hold office until the
expiration of the term for which elected and until a successor
has been elected and qualified. No decrease in the authorized
number of directors shall have the effect of shortening the term
of any incumbent director.
3.4 Chairman of the Board of Directors. The Board of
Directors may elect a Chairman of the Board of Directors, which
person shall at all times be a director. The Chairman of the
Board of Directors, if such a person is elected, shall, if
present, preside at meetings of the Board of Directors and
exercise and perform such other powers and duties as may from
time to time be assigned to him or her by the Board of Directors
or as may be prescribed by these Bylaws. Unless otherwise
restricted by law, the Chairman of the Board of Directors may
also be given the duties of an officer of the corporation, as
well as serve as an officer, as determined by the Board of
Directors. The period(s) of service by the Chairman of the Board
of Directors shall be determined by the Board of Directors. In
the absence of the Chairman of the Board of Directors, if
elected, the Board of Directors may appoint another member of the
Board of Directors to conduct the meeting(s) of the Board of
Directors.
3.5 Regular Meetings. The Board of Directors may provide by
resolution the time and place, either within or without the State
of Utah, for the holding of regular meetings without notice other
than such resolution.
3.6 Special Meeting. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time
by or at the request of the Chairman of the Board of Directors,
the Chief Executive Officer, the President, or any two (2)
directors. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either
within or without the State of Utah, as the place for holding any
special meeting of the Board of Directors.
3.7 Notice. Notice of the date, time, and place of any
special meeting of the Board of Directors shall be delivered
personally or by telephone to each director or sent by mail,
express courier, or facsimile, charges prepaid, addressed to each
director at that director's address as it is shown on the records
of the corporation. If the notice is mailed, it shall be
deposited in the United States mail at least five (5) days before
the time of the holding of the meeting. If the notice is
delivered personally, by express courier, or by telephone,
facsimile, or telegraph, it shall be delivered at least forty-
eight (48) hours before the meeting begins. Any oral notice given
personally or by telephone may be communicated either to the
director or to a person at the office of the director who the
person giving notice has reason to believe will promptly
communicate it to the director. Any director may waive notice of
any meeting by delivering a written waiver to the corporation to
file in its corporate records, and attendance of a director at a
meeting shall constitute a waiver of notice of such meeting,
except where the director attends a meeting for the express
purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened and does not
thereafter vote for or consent to action taken at the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors needs to be
specified in the notice or waiver of notice of such meeting.
3.8 Quorum. A majority of the authorized number of
directors as fixed in accordance with these Bylaws shall
constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than a majority is
present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice
until a quorum shall be present.
3.9 Manner of Acting. The act of a majority of the directors
present at a meeting at which a quorum is present shall, unless
the act of a greater number of directors is required by the
Articles of Incorporation of the corporation or these Bylaws, be
the act of the Board of Directors.
3.10 Vacancies and Newly-Created Directorships. Any vacancy
occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining directors, though
less than a quorum or by the affirmative vote of the majority of
shares entitled to vote for directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his or her
predecessor in office. The term "vacancy" includes any
directorship authorized under Section 3.2 but not filled by
shareholders at the annual meeting, whether or not such
directorship had previously been filled.
3.11 Fees and Compensation. Directors may receive such
compensation, if any, for their services and such reimbursement
of expenses as may be fixed or determined by resolution of the
Board of Directors. This section shall not be construed to
preclude any director from serving the corporation in any other
capacity as an officer, agent, employee, or otherwise and
receiving compensation for those services.
3.12 Presumption of Assent. A director who is present at a
meeting of the Board of Directors when corporate action is taken
is considered to have consented to the action taken at the
meeting unless the director objects at the beginning of the
meeting, or promptly upon arrival, to holding the meeting or
transacting business at the meeting and does not thereafter vote
for or consent to any action taken at the meeting, or the
director contemporaneously requests his or her dissent or
abstention as to any specific action to be entered into the
minutes of the meeting, or the director causes written notice of
a dissent or abstention as to a specific action to be received by
the presiding officer of the meeting before adjournment of the
meeting or by the corporation promptly after adjournment of the
meeting.
3.13 Resignations. A director may resign at any time by
giving a written notice of resignation to either the Chairman of
the Board of Directors, the Chief Executive Officer, the
President, a Vice-President, or the Secretary or Assistant
Secretary, if any. Unless otherwise provided in the resignation,
the resignation shall become effective when the notice is
received by an officer or director of the corporation. If the
resignation is effective at a future time, the Board of Directors
may elect a successor to take office when the resignation becomes
effective.
3.14 Action by Written Consent. Any action required to be
taken at a meeting of the Board of Directors of the corporation
or any other action that may be taken at a meeting of the Board
of Directors or of a committee, may be taken without a meeting if
a consent in writing, setting forth the action so taken, is
signed by all of the directors, or all of the members of the
committee, as the case may be. Such consent shall have the same
legal effect as a unanimous vote of all the directors or members
of the committee and may be described as such in any document or
instrument. Action taken pursuant to this Section is effective
when the last director signs a writing describing the action
taken, unless the Board of Directors establishes a different
effective date.
3.15 Meetings by Telephone Conference Call. Members of the
Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors
or committee, as the case may be, by means of a conference
telephone call or similar communications equipment by which all
persons participating in the meeting can hear each other
throughout the meeting. Participation in such a meeting shall
constitute presence in person at such meeting.
3.16 Removal of Directors. The shareholders may remove one
(1) or more directors at a meeting called for that purpose if
notice has been given that a purpose of the meeting is such
removal. The removal may be with or without cause unless the
Articles of Incorporation provide that directors may only be
removed with cause. If a director is elected by a voting group of
shareholders, only the shareholders of that voting group may
participate in the vote to remove such director. A director may
be removed only if the number of votes cast to remove such
director exceeds the number of votes cast not to remove such
director.
ARTICLE 4
COMMITTEES
4.1 Committees. The Board of Directors may from time to
time by resolution adopted by a majority of the Board of
Directors designate from among its members one (1) or more
committees, including, but not limited to, a Compensation
Committee and an audit Committee, each of which shall have such
authority of the Board of Directors as may be specified in the
resolution of the Board of Directors designating such committee;
provided, however, that any such committee so designated shall
not have any powers not allowed under the Revised Act. The
chairman of any such committee shall be designated by the Board
of Directors. Each committee must have at least two (2) directors
as members. The Board of Directors shall have power at any time
to change the members of any such committee, designate alternate
members of any such committee, and fill all vacancies therein.
Any such committee shall serve at the pleasure of the Board of
Directors.
4.2 Procedures: Meeting and Quorum. Meetings of any
committee designated by the Board of Directors may be held at
such times and places as the chairman of such committee shall
from time to time determine. Notice of such meetings shall be
given within the same times and by the same means as set forth in
these Bylaws for meetings of the Board of Directors. At every
meeting of any such committee, the presence of a majority of all
of the members of such committee shall be necessary for the
transaction of business, and the action of any such committee
must be authorized by the affirmative vote of a majority of the
members present at such meeting at which a quorum is present. Any
such committee shall keep minutes of its proceedings, and all
action by such committee shall be reported to the Board of
Directors at its meeting next succeeding such action. Any action
by a committee shall be subject to review by the Board of
Directors, provided, no rights of third parties shall be affected
by such review.
ARTICLE 5
OFFICERS
5.1 Officers. Except as provided otherwise by a resolution
of the Board of Directors, the officers of the corporation shall
be a Chief Executive Officer, a President, one or more Vice-
Presidents as may be determined by resolution of the Board of
Directors, a Secretary, and a Treasurer. Any two (2) or more
offices may be held by the same person. The corporation may also
have, at the discretion of the Board of Directors, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be appointed by the Board of Directors.
Officers need not be shareholders of the corporation.
5.2 Appointment: Term of Office and Qualification. The
officers of the corporation shall be appointed by, and serve at
the pleasure of, the Board of Directors, subject to any rights of
an officer under any contract of employment. Appointment of
officers shall take place annually or at such other intervals as
the Board of Directors may determine, and may be made at regular
or special meetings of the Board of Directors or by the written
consent of the directors. Each officer shall hold office until
his or her successor shall have been duly appointed and qualified
or until such officer's death, resignation, or removal in the
manner provided in these Bylaws. No officer provided for in this
Article 5 need be a director of the corporation nor shall any
such officer be a director unless elected a director in
accordance with these Bylaws.
5.3 Resignations. Any officer may resign at any time by
delivering a written resignation to the Board of Directors, the
Chief Executive Officer, the President, or the Secretary. Unless
otherwise specified therein, such resignation shall take effect
upon such delivery of the resignation; and, unless otherwise
specified in the resignation, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the corporation under
any contract to which the officer is a party.
5.4 Removal. Any officer may be removed by the Board of
Directors or by a committee, if any, if so authorized by the
Board of Directors, whenever in its judgment the best interests
of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the
person so removed.
5.5 Vacancies and Newly-Created Offices. A vacancy in any
office may be filled by the Board of Directors at any regular or
special meeting or by the unanimous written consent of the
directors.
5.6 Chief Executive Officer. The corporation shall have a
chief executive officer, who shall be designated by resolution of
the Board of Directors and who shall have the title Chief
Executive Officer. Subject to the control of the Board of
Directors, the Chief Executive Officer shall have general
supervision, direction, and control of the business, officers,
employees, and agents of the corporation. Either the Chief
Executive Officer or the President shall preside at meetings of
the shareholders as they mutually agree. The Chief Executive
Officer shall have the general powers and duties of management
usually vested in the office of Chief Executive Officer of a
corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or these Bylaws.
5.7 President. Subject to the control of the Board of
Directors, the President shall have general supervision,
direction, and control of the business, officers, employees, and
agents of the corporation. Either the President or the Chief
Executive Officer shall preside at meetings of the shareholders
as they mutually agree. The President shall have the general
powers and duties of management usually vested in the office of
President of a corporation, and shall have such other powers and
duties as may be prescribed by the Board of Directors or these
Bylaws.
5.8 Vice Presidents. In the absence and/or disability of
both the Chief Executive Officer and the President, the Vice
Presidents, in order of their rank as fixed by the Board of
Directors or, if not ranked, a Vice President designated by the
Board of Directors, shall perform all the duties of the Chief
Executive Officer and the President and, when so acting, shall
have all the powers of, and be subject to all the restrictions
upon, the Chief Executive Officer and the President. The Vice
Presidents shall have such other powers and perform such other
duties as may from time to time be prescribed for them by the
Board of Directors, these Bylaws, the Chief Executive Officer,
the President, or the Chairman of the Board of Directors and,
unless otherwise so prescribed, the powers and duties customarily
vested in the office of Vice President of a corporation.
5.9 Secretary. The Secretary shall keep or cause to be kept,
at the principal executive office of the corporation or such
other place as the Board of Directors may direct, a book of
minutes of the proceedings of all meetings of, and a record of
all actions taken by the Board of Directors or any committees of
the Board of Directors. The Secretary shall cause all notices of
meetings to be duly given in accordance with the provisions of
these Bylaws and as required by the Revised Act.
The Secretary shall be the custodian of the corporate
records and of the seal, if any, of the corporation. Unless
otherwise required by law or by the Board of Directors, the
adoption or use of a corporate seal is not required. The
Secretary shall see that the books, reports, statements,
certificates, and other documents and records required by the
Revised Act are properly kept and filed.
The Secretary shall have charge of the stock books of
the corporation and cause the stock and transfer books to be kept
in such manner as to show at any time the amount of the stock of
the corporation of each class issued and outstanding, the manner
in which and the time when such stock was paid for, the
alphabetically arranged names and addresses of the holders of
record thereof, the number of shares held by each holder, and the
time when each became a bolder of record. The Secretary shall
exhibit at all reasonable times to any director, upon
application, the original or duplicate stock register. The
Secretary shall cause the stock ledger to be kept and exhibited
at the principal office of the corporation in the manner and for
the purposes provided by these Bylaws and the Revised Act.
The Secretary shall perform all duties incident to the
office of Secretary and such other duties as are given to him or
her by law or these Bylaws or as from time to time may be
assigned by the Board of Directors.
5.10 Treasurer. The Treasurer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions
of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The Treasurer shall deposit all monies and other
valuables in the name and to the credit of the corporation with
such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may
be ordered by the Board of Directors, shall render to the Chief
Executive Officer, the President and the Board of Directors,
whenever they request it, an account of all of transactions taken
as Treasurer and of the financial condition of the corporation,
and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or these Bylaws.
5.11 Assistant Secretaries and Treasurers. Any Assistant
Secretaries or Assistant Treasurers elected by the Board of
Directors shall perform such of the duties of the Secretary or
the Treasurer, respectively, as may be assigned to them by the
officers they are elected to assist, or as may otherwise be
prescribed for them by the Board of Directors.
5.12 Salaries. The salaries or other compensation of the
officers of the corporation shall be fixed from time to time by
the Board of Directors, except that the Board of Directors may
delegate to any person or group of persons the power to fix the
salaries or other compensation of any officers. No officer shall
be prevented from receiving any such salary or compensation by
reason of the fact that he or she is also a director of the
corporation.
5.13 Surety Bonds. In the event the Board of Directors shall
so require, any officer or agent of the corporation shall provide
the corporation with a bond, in such sum and with such surety or
sureties as the Board of Directors may direct, conditioned upon
the faithful performance of his or her duties to the corporation,
including responsibility for negligence and for the accounting of
all property, monies, or securities of the corporation that may
come under his or her responsibility.
ARTICLE 6
EXECUTION OF INSTRUMENTS. BORROWING OF MONEY
AND DEPOSIT OF CORPORATE FUNDS
6.1 Instruments. The Board of Directors may authorize any
officer, agent, or agents, to enter into any contract or execute
and deliver any instrument in the name of, and on behalf of, the
corporation, and such authority may be general or confined to
specific instances.
6.2 Loans. No loan to the corporation shall be contracted,
no negotiable paper or other evidence of its obligation under any
loan to the corporation shall be issued in its name, and no
property of the corporation shall be mortgaged, pledged,
hypothecated, transferred, or conveyed as security for the
payment of any loan, advance, indebtedness, or liability of the
corporation, unless and except as authorized by the Board of
Directors. Any such authorization may be general or confined to
specific instances.
6.3 Deposits. All monies of the corporation not otherwise
employed shall be deposited from time to time to its credit in
such banks or trust companies or with such bankers or other
depositories as the Board of Directors may select, or as from
time to time may be selected by any officer or agent authorized
so to do by the Board of Directors.
6.4 Checks, Drafts. Etc. All checks, drafts, acceptances,
notes, endorsements, and, subject to the provisions of these
Bylaws, evidences of indebtedness of the corporation shall be
signed by such officer or officers or such agent or agents of the
corporation and in such manner as the Board of Directors from
time to time may determine. Endorsements for deposit to the
credit of the corporation in any of its duly authorized
depositories shall be in such manner as the Board of Directors
from time to time may determine.
6.5 Bonds and Debentures. Every bond or debenture issued by
the corporation shall be evidenced by an appropriate instrument
signed by the President or a Vice-President and by the Secretary.
Where such bond or debenture is authenticated with the manual
signature of an authorized officer of the corporation or other
trustee designated by the indenture of trust or other agreement
under which such security is issued, the signature of any of the
corporation's officers named thereon may be a facsimile. In case
any officer who signed, or whose facsimile signature has been
used on any such bond or debenture, shall cease to be an officer
of the corporation for any reason before the same has been
delivered by the corporation, such bond or debenture may
nevertheless be adopted by the corporation and issued and
delivered as though the person who signed it or whose facsimile
signature has been used thereon had not ceased to be such
officer.
6.6 Sale. Transfer. Etc. of Securities. Sales, transfers,
endorsements, and assignments of shares of stock, bonds, and
other securities owned by or standing in the name of the
corporation and the execution and delivery on behalf of the
corporation of any and all instruments in writing incident to any
such sale, transfer, endorsement, or assignment, shall be
effected by the Chief Executive Officer, the President, or by any
Vice-President, together with the Secretary, or by any officer or
agent thereunto authorized by the Board of Directors.
6.7 Proxies. Proxies to vote with respect to shares of stock
of other corporations owned by or standing in the name of the
corporation shall be executed and delivered on behalf of the
corporation by the Chief Executive Officer, the President or any
Vice-President and the Secretary of the corporation or by any
officer or agent thereunto authorized by the Board of Directors.
ARTICLE 7
CAPITAL STOCK
7.1 Stock Certificates. The shares of the corporation may,
but need not be, represented by certificates. If the shares are
represented by certificates, the certificates shall be signed by
two (2) officers as designated by the Board of Directors, or in
the absence of such designation, any two (2) of the following
officers: the Chief Executive Officer, the President, any Vice-
President, the Secretary, or any Assistant Secretary of the
corporation. The signatures of the designated officers upon a
certificate may be facsimiles if the certificate is countersigned
by a transfer agent, or registered by a registrar, other than the
corporation itself or an employee of the corporation. In case any
officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the
corporation with the same effect as if he or she were such
officer at the date of its issue.
If the corporation is authorized to issue different
classes of shares or a different series within a class, the
designations, preferences, limitations, and relative rights
applicable to each class, the variations in preferences,
limitations, and relative rights determined for each series, and
the authority of the Board of Directors to determine variations
for any existing or future class or series, must be summarized on
the front or back of each share certificate. Alternatively, each
certificate may state conspicuously on its front or back that the
corporation will furnish the shareholder this information on
request in writing, without charge.
Each certificate representing shares shall also state
upon the face thereof:
7.1.1 The name of the issuing corporation and that it is
organized under the laws of the State of Utah.
7.1.2 The name of the person to whom the certificate is
issued.
7.1.3 The number and class of shares, and the
designation of the series, if any, which such
certificate represents.
There shall be entered upon the stock transfer books of
the corporation at the time of issuance of each share, the number
of the certificate issued, the name and address of the person
owning the shares represented thereby, the number and kind,
class, or series of such shares, and the date of issuance
thereof. Every certificate exchanged or returned to the
corporation shall be marked "Cancelled" with the date of
cancellation. Unless otherwise required by the Revised Act or by
the Board of Directors in accordance with applicable law, the
foregoing with respect to shares does not affect shares already
represented by certificates.
7.2 Shares Without Certificates. The Board of Directors may
authorize the issuance of some or all of the shares of any or all
of the classes or series of the corporation's stock without
certificates. The authorization does not affect shares already
represented by certificates until they are surrendered to the
corporation. Within a reasonable time after the issuance or
transfer of shares without certificates, the corporation shall
send the shareholder a written statement of the information
required on certificates as stated in Section 7.1 of these
Bylaws.
7.3 Transfer of Stock. Transfers of stock shall be made only
upon the stock transfer books of the corporation kept at the
principal office of the corporation or by the transfer agent(s)
designated to transfer shares of the stock of the corporation.
Except where a certificate is issued in replacement of a lost or
destroyed certificate as provided in these Bylaws, an outstanding
certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued
therefor. Except as otherwise provided by law, the corporation
and the transfer agent(s) and registrar(s), if any, shall be
entitled to treat the holder of record of any share or shares of
stock as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal,
equitable, or other claim to or interest in such share or shares
on the part of any other person whether or not it or they shall
have express or other notice thereof.
7.4 Restrictions on Transfer or Registration of Shares. The
Board of Directors may, as they may deem expedient, impose
restrictions on the transfer or registration of transfer of
shares of the corporation. The restriction does not affect shares
issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in
favor of the restriction or otherwise consented to the
restriction.
The restriction on the transfer or registration of
transfer of shares is valid and enforceable against the holder or
a transferee of the holder, if the restriction is authorized by
the Revised Act and its existence is noted conspicuously on the
front or back of the certificate, or if the restriction is
contained in the information statement that is sent to
shareholders whose shares are not represented by certificates
pursuant to Section 7.2 of these Bylaws.
7.5 Regulations. Subject to the provisions of these Bylaws
and of the Articles of Incorporation, the Board of Directors may
make such rules and regulations as it may deem expedient
concerning the issuance, transfer, redemption, and registration
of certificates for shares of the stock of the corporation.
7.6 Transfer Agent(s) and Registrar(s). The Board of
Directors may appoint one (1) or more transfer agent(s) and one
(1) or more registrar(s) with respect to the certificates
representing shares of stock of the corporation, and may require
all such certificates to bear the signature of either or both.
The Board of Directors may from time to time define the
respective duties of such transfer agent(s) and registrar(s).
7.7 Lost or Destroyed Certificates. In the event of the loss
or destruction of any certificate of stock, another may be issued
in its place pursuant to such regulations as the Board of
Directors may establish concerning proof of such loss, theft, or
destruction and concerning the giving of a satisfactory bond or
bonds of indemnity.
7.8 Consideration for Shares. The Board of Directors may
authorize the issuance of shares for consideration consisting of
any tangible or intangible property or benefits to the
corporation, including cash, promissory notes; services performed
contracts or arrangements for services to be performed, or other
securities of the corporation. The terms and conditions of any
tangible or intangible property or benefit to be provided in the
future to the corporation, including contracts or arrangements
for services to be performed, shall be set forth in writing. The
corporation may place in escrow shares issued in consideration
for contracts, arrangements for future services or benefits, or
in consideration of a promissory note, or make other arrangements
to restrict transfer of the shares issued for any such
consideration, and may credit distributions in respect of the
shares against the purchase price until the services are
performed, the note is paid, or the payments are received. If the
specified future services are not performed, the note is not
paid, or the benefits are not received, the shares escrowed or
restricted or the distributions credited may be cancelled in
whole or in part.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification. Except as provided in Section 8.2 of
these Bylaws, the corporation may, to the maximum extent and in
the manner permitted by the Revised Act, indemnify an individual
made a party to a proceeding because he or she is or was a
director, against liability incurred in the proceeding if his or
her conduct was in good faith, he or she reasonably believed that
his or her conduct was in, or not opposed to, the corporation's
best interests, and in the case of any criminal proceeding, he or
she had no reasonable cause to believe his or her conduct was
unlawful. Termination of the proceeding by judgment, order,
settlement, conviction, upon a plea of nolo contendere or its
equivalent, is not, of itself, determinative that the director
did not meet the standard of conduct described in this section.
8.2 Certain Restrictions on Indemnification. The corporation
may not indemnify a director under Section 8.1 of these Bylaws,
in connection with a proceeding by or in the right of a
corporation in which the director was adjudged liable to the
corporation, or in connection with any other proceeding charging
that the director derived an improper personal benefit, whether
or not involving action in his or her official capacity, in which
proceeding he or she was adjudged liable on the basis that he or
she derived an improper personal benefit.
8.3 Mandatory Indemnification. The corporation shall
indemnify a director who was successful, on the merits or
otherwise, in the defense of any proceeding, or in the defense of
any claim, issue, or matter in the proceeding, to which he or she
was a party because he or she is or was a director of the
corporation, against reasonable expenses incurred by him or her
in connection with the proceeding or claim with respect to which
he or she has been successful.
8.4 Determination. The corporation may not indemnify a
director under Section 8.1 of these Bylaws unless authorized and
a determination has been made in a specific case that
indemnification of the director is permissible in the
circumstances because the director has met the applicable
standard of conduct set forth in Section 8.1 of these Bylaws.
Such determination shall be made either (a) by the Board of
Directors by majority vote of those present at a meeting at which
a quorum is present, and only those directors not parties to the
proceedings shall be counted in satisfying the quorum
requirement, (b) if a quorum cannot be obtained, by majority vote
of a committee of the Board of Directors designated by the Board
of Directors, which committee shall consist of two (2) or more
directors not parties to the proceeding, except that the
directors who are not parties to the proceeding may participate
in the designation of directors for the committee, (c) by special
legal counsel selected by the Board of Directors or a committee
of the Board of Directors in the manner prescribed by the Revised
Act, or (d) by the shareholders, by a majority of the votes
entitled to be cast by holders of qualified shares present in
person or by proxy at a meeting. The majority of the votes
entitled to be cast by the holders of all qualified shares
constitutes a quorum for purposes of action that complies with
this Section. Shareholders' action that otherwise complies with
this Section is not affected by the presence of holders, or the
voting, of shares that are not qualified shares as determined
under the Revised Act.
8.5 General Indemnification. The indemnification and
advancement of expenses provided by this Article 8 shall not be
construed to be exclusive of any other rights to which a person
seeking indemnification or advancement of expenses may be
entitled under the Articles of Incorporation, these Bylaws, any
agreement, any vote of shareholders or disinterested directors,
or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office.
8.6 Advances. The corporation in accordance with the Revised
Act may pay for or reimburse the reasonable expenses incurred by
any director who is a party to a proceeding in advance of final
disposition of the proceeding if (a) the director furnishes the
corporation a written affirmation of his or her good faith belief
that he or she has met the applicable standard of conduct
described in Section 8.1 of these Bylaws, (b) the director
furnishes to the corporation a written undertaking in the form
required by the Revised Act, executed personally or on his or her
behalf, to repay the advance if it is ultimately determined that
he did not meet the standard of conduct, and (c) a determination
is made that the facts then known to those making a determination
would not preclude indemnification under this Article 8.
8.7 Scope of Indemnification. The indemnification and
advancement of expenses authorized by this Article 8 is intended
to permit the corporation to indemnify to the fullest extent
permitted by the laws of the State of Utah, any and all persons
whom it shall have power to indemnify under such laws from and
against any and all of the expenses, liabilities, or other
matters referred to in or covered by such laws. Any
indemnification or advancement of expenses hereunder shall,
unless otherwise provided when the indemnification or advancement
of expenses is authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee, or agent of
the corporation and shall inure to the benefit of such person's
heirs, executors and administrators. This Article 8 is a summary
of the indemnification provisions of the Revised Act. In the
event of a conflict between the provisions of this Article 8 and
the Revised Act, the Revised Act shall control.
8.8 Insurance. The corporation may purchase and maintain
liability insurance on behalf of a person who is or was a
director, officer, employee, fiduciary, or agent of the
corporation, or who, while serving as a director, officer,
employee, fiduciary, or agent of the corporation, is or was
serving at the request of the corporation as a director, officer,
partner, trustee, employee, fiduciary, or agent of another
foreign or domestic corporation, or other person, or of an
employee benefit plan, against liability asserted against or
incurred by him or her in any such capacity or arising out of his
or her status in any such capacity, whether or not the
corporation would have the power to indemnify him or her against
the liability under the provisions of this Article 8 or the laws
of the State of Utah, as the same may hereafter be amended or
modified.
ARTICLE 9
FISCAL YEAR
The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE 10
DIVIDENDS
The Board of Directors may from time to time declare, and
the corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law.
ARTICLE 11
AMENDMENTS
These Bylaws may be amended by the Board of Directors or by
the shareholders.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
CERTIFICATE OF ADOPTION OF BYLAWS
OF
ATOMIC GIANT.COM, INC.
The undersigned hereby certifies that she is the duly
elected, qualified, and acting Secretary of Atomic Giant.com,
Inc. and that the foregoing Bylaws were submitted to and approved
and adopted by the Board of Directors of the corporation by
Action by Unanimous Written Consent of the Board of Directors
dated February 11, 1999.
DATED this 11th day of February 1999.
/s/ Joshua J. Miller, Secretary
Exhibit 3
Atomic Giant.com, Inc.
Form 10-SB
THE SECURITIES REPRESENTED BY THIS COMMON STOCK PURCHASE
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED THE "1933 ACT", AND HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE RESALE OR
DISTRIBUTION THEREOF. SUCH SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, OR OTHERWISE BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE 1933 ACT OR PURSUANT TO THE
AVAILABILITY OF A REGISTRATION EXEMPTION, THE EXISTENCE OF
WHICH EXEMPTION HAS BEEN CONFIRMED BY AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY OR BY A NO ACTION LETTER
OR INTERPRETIVE OPINION OF THE STAFF OF THE SECURITIES AND
EXCHANGE COMMISSION.
Void after 5:00 pm., Provo, Utah Time
On January 1, 2001
AtomicGiant.com, Inc.
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, Joseph F.
Ollivier, an individual (the "Holder"), is entitled to
purchase at a price of One Dollar and no/100 ($1.00) per share
(the "Exercise Price"), subject to the provisions of this
Common Stock Purchase Warrant (the "Warrant"), from Atomic
Giant.com, Inc., a Utah corporation (the "Company"), fifty
thousand (50,000) shares of the no par value Common Stock of
the Company (the "Common Stock"). The number and character of
shares of Common Stock to be received upon the exercise of
this Warrant (the "Warrant Shares") and the Exercise Price may
be adjusted from time to time as hereinafter set forth.
1. Exercise of Warrant.
(a) Subject to the terms and conditions set forth
herein, this Warrant may be exercised, in whole or in part, at
any time from and after the date hereof, but not later than
5:00 pm., Provo, Utah time, on January 1, 2001, provided that
if such termination or expiration date is a day on which
federal or state chartered banking institutions are authorized
by law to close, then on the next succeeding day that shall
not be such a day, by presentation and surrender thereof to
the Company at its principal office or at the office of its
stock transfer agent, with the Purchase Form attached hereto
duly executed and accompanied by payment of the Exercise Price
for the number of Warrant Shares specified in such Purchase
Form (which payment may be made either (i) in cash or by
certified or bank cashier's check, made payable to the order
of the Company, (ii) by cancellation of any indebtedness owed
by the Company to the Holder in a sum equal to the Exercise
Price, or (iii) by any combination thereof, together with all
taxes, if any, applicable upon such exercise.
(b) If this Warrant is exercised in part only, the
Company shall, upon the surrender of this Warrant for
cancellation, execute and deliver a new Warrant of the same
tenor and date evidencing the right of the Holder to purchase
the balance of the Warrant Shares purchasable hereunder on the
same terms and conditions as herein set forth.
(c)Upon the receipt by the Company of this Warrant at
the Company's principal office or at the office of the
Company's stock transfer agent, in proper form for exercise,
and accompanied by payment as herein provided, the Holder
shall be deemed to be the holder of record of the Warrant
Shares issuable upon such exercise, notwithstanding the fact
that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to the
Holder.
(d) This Warrant may not be exercised unless such
exercise is in full compliance with the Securities Act of 1933,
as amended (the "1933 Act"), and the rules and regulations
promulgated thereunder and all applicable state securities laws,
rules and regulations as they are in effect on the date of
exercise. As a condition to the exercise of this Warrant, the
Company may require the Holder to make representations and
warranties to the Company (as to investment intent, access to
information, and otherwise) as may be reasonable to assure
compliance with all applicable securities laws, rules, and
regulations.
2. Reservation of Shares. The Company hereby covenants and
agrees that, at all times during the period this Warrant is
exercisable, the Company shall reserve from its authorized and
unissued Common Stock for issuance and delivery upon the exercise
of this Warrant such number of shares of its Common Stock as
shall be required for issuance and delivery upon the exercise of
this Warrant. The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute
and issue the necessary certificates for shares of Common Stock
upon the exercise of this Warrant.
3. Minimum Purchases: Fractional Shares. This Warrant may
not be exercised to fewer than five thousand (5,000) Warrant
Shares unless it is exercised as to all Warrant Shares as to
which the Warrant is then exercisable. No fractional shares or
stock representing fractional shares shall be issued upon the
exercise of this Warrant. In lieu of any fractional shares that
would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the then current fair
market value of a share of the Common Stock on the date of
exercise, as determined in good faith by the Company's Board of
Directors.
4 Transfer. Exchange. Assignment. Or Loss of Warrant.
(a) This Warrant may not be assigned or transferred
without the prior written consent of the Company and except in
accordance with and subject to the provisions of the 1933 Act and
the Rules and Regulations promulgated thereunder. Any purported
assignment or transfer made other than in accordance with this
Section 4 and Section 9 hereof shall be null and void and of no
force or effect.
(b) Any assignment permitted hereunder shall be made
by surrender of this Warrant to the Company at its principal
office with the Assignment Form attached hereto being duly
executed and accompanied by funds sufficient to pay any transfer
tax. In such event the Company shall, without charge, execute and
deliver a new Warrant in the name of the assignee named in the
Assignment Form and this Warrant shall promptly be cancelled.
This Warrant may be divided or combined with other warrants that
carry the same rights upon presentation thereof at the principal
office of the Company, together with a written notice signed by
the holder thereof, specifying the names and denominations in
which new Warrants are to be issued. The terms "Warrant" and
"Warrants" as used herein includes any Warrants in substitution
for or replacement of this Warrant, or into which this Warrant
may be divided or exchanged.
(c) Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction, or mutilation
of this Warrant, and (in the case of loss, theft, or destruction)
of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant (in the case of mutilation), the
Company will execute and deliver a new Warrant of like tenor and
date and any such lost, stolen, destroyed, or mutilated Warrant
shall thereupon become void and of no force or effect.
(d) The Holder of this Warrant, the Warrant Shares, or
any other security issued or issuable upon the exercise of this
Warrant shall indemnify and hold harmless the Company, its
directors and officers, and each person, if any, who controls the
Company, against any losses, claims, damages, or liabilities,
joint or several, to which the Company or any such director,
officer, or person may become subject under the 1933 Act or any
statute or at common law, insofar as such losses, claims,
damages, liabilities, or actions in respect thereof, arise out of
or are based upon the disposition by such Holder of this Warrant,
the Warrant Shares, or other such securities in violation of this
Warrant.
5. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights as a shareholder in the
Company, either at law or in equity, and the rights of the Holder
are limited to those rights expressed in this Warrant and are not
enforceable against the Company except to the extent set forth
herein.
6. Adjustment Provisions. The number and kind of
securities issuable upon the exercise of this Warrant, and the
Exercise Price per Warrant Share or other security to be issued
upon the exercise hereof, shall be subject to adjustment from
time to time upon the happening of certain events, as follows:
(a) Adjustment for Stock Dividends. In case at any
time or from time to time on or after the date hereof the holders
of Common Stock (or any shares of stock or other securities at
the time receivable upon the exercise of this Warrant) shall have
received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become
entitled to receive, without payment therefor, other or
additional shares of stock of the Company by way of dividend,
then and in each case, the Holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the
number of shares of Common Stock receivable thereupon, and
without payment of any additional consideration therefor, the
amount of such other or additional stock of the Company that such
Holder would hold on the date of such exercise had the Holder
been the holder of record of such Common Stock on the date hereof
and bad thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or
all other additional stock receivable by the Holder as aforesaid
during such period, giving effect to all adjustments called for
during such period by paragraphs (b) and (c) of this Section 6.
(b) Adjustment for Reclassification. Reorganization or
Merger. In case of any reclassification or change of the
outstanding securities of the Company or of any reorganization of
the Company (or any other corporation, the stock or securities of
which are, at the time, receivable upon the exercise of this
Warrant) on or after the date hereof, or in case, after such
date, the Company (or any such other corporation) shall merge
with or into another corporation or entity or convey all or
substantially all of its property and assets to another
corporation or entity, then, and in each such case, the Holder of
this Warrant shall, upon the exercise hereof at any time after
the consummation of such reclassification, change,
reorganization, merger, or conveyance, be entitled to receive (in
lieu of the stock or other securities and property receivable
upon the exercise hereof prior to such consummation) the stock or
other securities or property to which the Holder would have been
entitled upon such consummation if the Holder had exercised this
Warrant immediately prior thereto, all subject to further
adjustment as provided in paragraphs (a) and (c) of this Section
6. In each such case, the terms of this Section 6 shall be
applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such
consummation.
(c) Stock Splits and Reverse Stock Splits. If at any
time on or after the date hereof the Company subdivides its
outstanding shares of Common Stock into a greater number of
shares, the Warrant Price in effect immediately prior to such
subdivision shall thereby be proportionately reduced and the
number of Warrant Shares receivable upon the exercise of this
Warrant shall thereby be proportionately increased. Conversely,
if at any time on or after the date hereof the outstanding number
of shares of Common Stock is combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such
combination shall thereby be proportionately increased and the
number of Warrant Shares receivable upon the exercise of this
Warrant shall thereby be proportionately decreased.
(d) Adjustments to Exercise Price. In the event of one
or more adjustments, pursuant to this Section 6, in the number or
character of Warrant Shares issuable upon the exercise of this
Warrant, the Exercise Price per share shall be adjusted so that
the total Exercise Price for the purchase of all Warrant Shares
covered hereby remains the same. In the event the Holder becomes
entitled to receive shares of two or more classes of the
Company's capital stock, the Company's Board of Directors (whose
determination shall be conclusive) shall determine the allocation
of the total Exercise Price between or among the shares of each
such class.
7. Officer's Certificate. Whenever the Exercise Price or
the Warrant Shares issuable upon the exercise of this Warrant
shall be adjusted as required by the provisions of Section 6
hereof, the Company shall forthwith file with its Secretary or an
Assistant Secretary at its principal office and with its stock
transfer agent, an Officer's Certificate showing the adjusted
Exercise Price and the adjusted number of Warrant Shares,
determined as herein provided, and setting forth in reasonable
detail the facts requiring such adjustment. Each such Officer's
Certificate shall be made available at all reasonable times for
inspection by the Holder, and the Company shall, forthwith after
each such adjustment, deliver a copy of such Officer's
Certificate to the Holder.
8. Notices to Warrant Holders. So long as this Warrant is
outstanding and unexercised: (i) if the Company pays any dividend
or makes any distribution upon the Common Stock, (ii) if the
Company offers to die holders of Common Stock for subscription or
purchase by them any shares of stock of any class or any other
rights, or (iii) in the event of a capital reorganization of the
Company, a reclassification of the capital stock of the Company,
a consolidation or merger of the Company with or into another
corporation or entity, a sale, lease, or transfer of all or
substantially all of the property and assets of the Company to
another corporation or entity, or a voluntary or involuntary
dissolution, the Company shall cause to be delivered to the
Holder, at least ten (10) days prior to the date specified in (x)
or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which:
(x) a record is to be taken for the purpose of such dividend,
distribution, or rights or (y) such reclassification,
reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation, or winding up is to take place and the
date, if a date is to be fixed, as of which the holders of Common
Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property or assets
deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation, or
winding up.
9. Transfer to Comply with the 1933 Act.
(a) This Warrant and the Warrant Shares or any other
security issued or issuable upon the exercise of this Warrant may
not be sold, transferred, or otherwise disposed of except to a
person who, in the opinion of counsel reasonably satisfactory to
the Company, is a person to whom this Warrant or such Warrant
Shares may legally be transferred pursuant to Section 4 hereof
without registration and without the delivery of a current
prospectus under the 1933 Act with respect thereto, and then only
upon receipt of an agreement of such person to comply with the
provision of this Section 9 with respect to any resale or other
disposition of such securities unless, in the opinion of such
counsel, such agreement is not required.
(b) The Company may cause the following legend to be
set forth on each certificate representing Warrant Shares or any
other security issued or issuable upon the exercise of this
Warrant not theretofore distributed to the public or sold to an
underwriter for distribution to the public pursuant to a
registration statement filed with the Securities and Exchange
Commission, unless counsel satisfactory to the Company is of the
opinion as to any such certificate that such legend is
unnecessary:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAWS IN RELIANCE
UPON EXEMPTIONS FROM REGISTRATION FOR NON-PUBLIC OFFERINGS.
THE SHARES MAY NOT BE SOLD OR TRANSFERRED UNLESS THEY ARE
REGISTERED UNDER THE 1933 ACT AND UNDER ANY APPLICABLE
STATE SECURITIES LAWS OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
10. Term of Warrant. Subject to the terms and conditions
set forth herein, this Warrant shall be exercisable in full or in
part at any time or from time to time during the period
commencing on the date hereof and ending at 5:00 p.m., Provo,
Utah time on January 1, 2001.
11. No Limitation on Corporate No provision of this
Warrant and no right or option granted or conferred hereunder
shall in any way limit, affect, or abridge the exercise by the
Company of any of its rights or powers to recapitalize, amend its
Articles of Incorporation, reorganize, consolidate, or merge with
or into another corporation or entity, or to transfer all or any
portion of its property or assets, or the exercise of any other
of its rights and powers.
12. Governing Law. This Warrant shall be governed by,
and shall be construed in accordance with, the laws of the State
of Utah applicable to contracts entered into and to be performed
wholly within such State.
13. Notice. Notices and other communications to be given
to the Holder of this Warrant shall be delivered by hand or
mailed, postage prepaid, to the Holder at P.O. Box 10 Provo, Utah
84603, or such other address as the Holder shall have designated
by written notice to the Company as provided herein. Notices or
other communications to the Company shall be deemed to have been
sufficiently given if delivered by hand or mailed, postage
prepaid, to the Company at 4643 North Mile High Drive, Provo,
Utah 84604, or at such other address as the Company shall have
designated by written notice to such registered owner as herein
provided. Notice by mail shall be deemed given when deposited in
the United States mail, postage prepaid, as herein provided.
IN WITNESS WHEREOF, the Company has executed this Warrant
as of the 11th day of February, 1999
Atomic Giant.com, Inc.
a Utah corporation
By: /s/ Miles Pitcher
Its: President
Exhibit 4
Atomic Giant.com, Inc.
Form 10-SB
A & J INVESTMENTS
LEASE AGREEMENT, Made between A&J Investments (Landlord),
and Atomic Giant.com, Inc. (Tenant).
For good consideration it is agreed between the parties as
follows:
1. Landlord hereby leases and rents to Tenant the premises
described as follows:
4346 North Mile High Drive, Provo Utah 84604
2. The Lease shall be in effect beginning on March 1, 1999, and
will continue month to month.
3. Landlord shall provide all utilities
4. Tenant agrees that
A) Upon the expiration of the lease it will return possession
of the leased premises in its present condition, reasonable wear
and rear, and fire casualty excepted. Tenant shall commit no
waste to the premises.
B) It shall not assign or sub-let or allow and other person to
occupy the leased premises without the Landlord's prior written
consent.
C) It shall not make any material or structural changes to the
leased premises without the Landlord's prior written consent.
D) It shall comply with all building, zoning and health codes
and other applicable laws for leased premises.
E) It shall not conduct a business deemed extra hazardous, a
nuisance or requiring an increase in fire insurance premiums.
Tenant warrants the leased premises shall be used only for
Internet and related businesses.
F) In the event of any breach of the payment of rent or any
other allowed charge, or other breach of this lease, Landlord
shall have full rights to terminate this lease in accordance with
state law and re-enter and claim possession of the leased
premises, in addition to such other remedies available to
Landlord arising from said breach.
March 1, 1999 A&J Investments
/s/ Allyson Ollivier
Lessor
Atomic Giant.com, Inc.
/s/ Miles Pitcher
Lessee
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<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 992,331
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<CURRENT-ASSETS> 994,698
<PP&E> 3,617
<DEPRECIATION> 0
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0
0
<COMMON> 1,015,100
<OTHER-SE> (22,598)
<TOTAL-LIABILITY-AND-EQUITY> 998,315
<SALES> 0
<TOTAL-REVENUES> 2,902
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 25,500
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