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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
THE BIGHUB.COM, INC.
(Name of small business issuer in its charter)
FLORIDA 65-0580634
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2939 Moss Rock, Suite 100
San Antonio, Texas 78230
210-979-9228
(Address and telephone number of principal executive offices)
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None N/A
Securities to be registered under Section 12(g) of the Act:
Common Stock
(Title of class)
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DESCRIPTION OF BUSINESS
General
The BigHub.com, Inc. (the "Company" or "The BigHub.com") was organized
as a Florida corporation in February 1995, under its original name, Coordinated
Healthcare, Inc. In October 1995, pursuant to the terms of an Agreement and Plan
of Merger, Optima Medical Group of Hialeah, Inc. and Optima Medical Group of No.
Miami, Inc. were merged into the Company. Following the merger to August 1998,
the Company was a physician management company that operated primary care
medical clinics in South Florida. During this time the Company affiliated with
physicians in order to provide a full-range of high-quality, cost effective
physician services. In July 1998, the last of the Company's medical clinics was
sold in consideration for the purchaser's assumption of substantially all of the
Company's liabilities. The other medical clinic had been sold in November 1997.
On July 29, 1998, the Company amended its Articles of Incorporation to
change its name to iSleuth.com, Inc. Following its name change, on August 7,
1998, the Company acquired one hundred percent (100%) of the issued and
outstanding common stock of Maverick Communications Corp., a Florida corporation
(the "Subsidiary" or "Maverick"), from I-Commerce Group, Inc. (formerly known as
SJI Group, Inc.) in exchange for one million five hundred thousand (1,500,000)
shares of the Company's common stock and one million (1,000,000) shares of the
Company's preferred stock. Maverick's primary asset at the time of the Company's
acquisition of Maverick was an option to purchase the "Internet Sleuth" meta-
search engine and related technology owned by Happy Landings, Inc. Following the
acquisition of Maverick, Maverick transferred the option to the Company, and
pursuant to the terms of an Agreement and Plan of Reorganization, the Company
exercised the option and acquired the Internet Sleuth and related technology
from Happy Landings, Inc. in exchange for two hundred thousand (200,000) shares
of the Company's common stock, One Hundred Twenty Thousand Dollars ($120,000) in
cash and the assumption of certain liabilities not to exceed Forty Thousand
Dollars ($40,000). Following the assignment of the option to the Company,
Maverick has been an inactive subsidiary.
On April 29, 1999, the Company changed its name to The BigHub.com, Inc.
The BigHub.com, Inc. is primarily in the business of developing and operating
the meta-search engine known as the Internet Sleuth on the Internet at
http://www.thebighub.com. The Company is now in the process of upgrading its
search engine intellectual property and related Internet site to become a
compelling destination Portal alternative on the Internet. The Company intends
to host a array of affiliated shopping alternatives covering many categories of
general and special merchandise as well as consumer credit and consumer
insurance. The goal of the Company is to use Internet marketing and its
proprietary search engine to engage Internet users and demonstrate to them the
advantages of using the The BigHub.com, Inc. either as their search engine of
choice or their "home page" of choice.
The Meta-Search Engine
There are generally two types of Internet search engines. The standard
search engine and the meta-search engine. The standard search engine features a
large proprietary database which contains a large index of key words and the
corresponding Web site locations where those keywords can be found throughout
the millions of Web sites accessible via the Internet. An Internet user can
access a standard search engine software Web site via the Internet and can issue
a keyword search to the search engine's software. The search engine software
then searches its database for the keyword and returns to the Internet user a
list of Web site locations where the keyword can be found. These search engines
are a great tool to easily locate and research information from among the
millions of Web sites currently linked to the Internet. The standard search
engine features a proprietary database or index of keywords and corresponding
Internet Web site locations. These databases are constantly being enhanced and
enlarged by so-called web-crawler software. This is software which is
continuously accessing and reviewing Web sites for the location of keywords.
These additional keywords and locations are then added to the database, thus
increasing the search capabilities of that particular standard search engine.
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A meta-search engine is different from a standard search engine because
it does not contain its own database of keywords and corresponding locations.
Rather, the meta-search engine taps into the power of the standard search
engines. A meta-search engine is a software program which accepts keyword search
inquiries from Internet users via the Internet and re-issues those search
inquiries, again via the Internet, to several of the popular standard Internet
search engines. The search responses received from the standard search engines
are compiled by the meta-search engine software and reported back to the
original Internet user-inquirer. The Company believes that the ability to
quickly and easily search several standard search engines at once is a
compelling and attractive alternative to the Internet user.
Business Expansion; Capital Growth
The Company is aggressively pursuing the spiral branding advantage of
the "Big" company affiliates, upgrading its search engine, and improving the
overall community value of its Web site. Among the "Big" Web sites, the Company
will develop a search syndication network whereby a network of Web sites will
have integrated The BigHub search engine service into their sites as well as
links on other sites that will direct consumer traffic to the Company's site.
Ultimately, the Company desires to create a single closed and gated community
that meets virtually all of the merchandise, service, and content needs of its
customers and members.
The Company anticipates generating revenue from several sources,
including, community features and services and affiliated retail and consumer
companies operating under the group brand of the "Big", i.e., The BigStore, The
BigRx, and The BigToys. These "Big" affiliate companies will pay a minimum of
Two Hundred Fifty Thousand Dollars ($250,000) per year to become an affiliate
company branded under the "Big" label. Each "Big" affiliate will be promoted
throughout The BigHub.com Web site. The Company believes that the key benefits
to belonging to the "Big" network will be the ability to leverage branding,
marketing and user/customer information. In addition, the Company is developing
new technology which will enable it to provide customers with a universal
shopping cart which will allow customers to shop across all affiliate Web sites
in one purchase transaction. Further, affiliates will have access to databases
containing customer information that is gathered from all affiliate Web sites
which will allow affiliates to sell precision-targeted advertising.
The Company estimates that prior to April 30, 1999, it had spent to date
approximately $200,000 to $250,000 for the development of the meta-search
engine. Following the Company's name change and the shift in business strategy
to use the meta-search engine to launch a single closed and gated community the
Company anticipates that it will incur significant expenditures (approximately
$6,000,000) to enhance its meta-search engine technology and develop additional
technologies.
The Company intends to finance its business expansion through sales of
equity capital in the United States, Asia and Europe. The Company is currently
conducting a private placement of its common stock in an offering exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), under Section 4(2) of the Act and Rule 506 of Regulation D. The Company
is selling its common stock only to accredited investors. To date, the Company
has raised $1,500,000 in connection with this offering from the sale of common
stock to three (3) accredited investors at a price of $5.28 per share, which
represents the closing price of the Company's common stock as reported on the
OTC Bulletin Board on June 3, 1999, the date such purchasers subscribed to
purchase the shares of common stock.
As of June 30, 1999, the Company had 8 full-time employees, consisting
of the President/Chief Executive Officer, the Chief Operating Office, the Chief
Financial Officer, the Chief Technical Officer, and 4 other employees who are
sales, marketing, technology, and administrative personnel. All employees are
located in the United States.
Lack of Profitability, Potential Losses
From its inception in February 1995, through June 30, 1999, the Company
has experienced aggregate losses of $2,916,423. Further, a key element of the
Company's strategy consists of an aggressive marketing plan for its meta-search
engine and destination Portal on the Internet. This strategy may result in
continued net losses for the Company
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during this transition and expansion phase due to costs associated with
technology development and the anticipated high marketing costs for the
promotion of the Company's proprietary search engine and destination Portal in
its market area. Results of operations in the future will be influenced by
numerous factors including, among others, expansion, the Company's ability to
drive traffic to its Web site, to attract "Big" affiliates, provide superior
customer service and retain qualified personnel. The Company may incur problems,
delays, expenses and difficulties during this stage, many of which may be beyond
the Company's control. These include, but are not limited to, unanticipated
regulatory compliance, marketing problems and intense competition that may
exceed current estimates. There is no assurance that the Company will ever
operate profitably.
Management of Growth
In order to maximize potential growth in the Company's market
opportunities, the Company believes that it must expand rapidly and
significantly upon its entrance into the market place. This impetus for
expansion will place a significant strain on the Company's management,
operational and financial resources. In order to manage growth, the Company must
implement and continually improve its operational and financial systems, expand
operations, attract and retain superior management and train, manage and expand
its employee base. The Company cannot guarantee that it will effectively manage
the rapid expansion of its operations, that its systems, procedures or controls
will adequately support is operations or that the Company's management will
successfully implement its business plan. If the Company cannot effectively
manage its growth, its business, financial condition and results of operations
could suffer a material adverse effect.
The Company expects that it will require additional equity and/or credit
financing prior to becoming cash self-sufficient. The Company cannot assure you
that it will successfully negotiate or obtain additional financing, or that it
will obtain financing on terms favorable or acceptable to it. The Company does
not have any commitments for additional financing. The Company's ability to
obtain additional capital depends on market conditions, the global economy and
other factors outside its control. If the Company does not obtain adequate
financing or such financing is not available on acceptable terms, the Company's
ability to finance its expansion, develop or enhance products or services or
respond to competitive pressures would be significantly limited. The Company's
failure to secure necessary financing could have a material adverse effect on
its business, prospects, financial condition and results of operations.
Competition
The online commerce market for search engines, portals and Internet
Service Providers ("ISP's") is rapidly evolving and intensely competitive. The
Company's current or potential competitors include:
. AOL, Yahoo, Excite, MSN, AltaVista and others.
. Meta-search engines such as Byte Search, Cyber 411, Debriefing, DogPile and
Meta Crawler
. Online portals that have specialized consumer retail and consumer service
offerings, C/net's Computer Shopper, Imall, NetMarket and others.
The Company believes that the principal competitive factors in the online
commerce market are:
. Accessibility;
. Brand recognition;
. Brand selection;
. Personalized services;
. Consumer service;
. Convenience;
. Quality of editorial and other site content; and
. Reliability
Many of the Company's competitors have operating histories, large
customer bases, greater brand recognition
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and significantly greater financial, marketing and other resources. Certain of
the Company's competitors have the financial resources to devote greater
resources to marketing and promotional campaigns and devote substantially more
resources to Web site and systems development. Increased competition may result
in reduced operating margins and a diminished brand franchise. The Company
cannot assure potential investors that the Company will compete successfully
against future competitors.
Intellectual Property and Proprietary Rights
The Company's success depends substantially upon its proprietary
technology, including its meta-search engine, related site software and database
technology. The Company will rely on a combination of trademark, copyright and
trade secret laws, as well as confidentiality agreements and technical measures
to protect its proprietary rights. Much of the Company's proprietary information
may not be patentable, and the Company does not currently possess any patents.
The Company currently has registered copyrights covering the Internet Sleuth
meta-search engine. The Company has applied to register it "BigHub" trademark
and logo and will apply to register certain other trademarks in the United
States and/or foreign jurisdictions.
Management's Discussion and Analysis of The BigHub.com, Inc's Financial
Condition and Results of Operations
The following discussion is based upon and should be read in conjunction
with The BigHub.com's financial statements for the years ending October 31, 1997
and October 31, 1998, together with the notes related thereto, and the nine
months ended July 31, 1999.
Results of Operations
Revenues for the years ended October 31, 1997 and October 31, 1998 were
$517,028 and $6,292 respectively. The reason for the decrease in 1998 was the
disposal of Coordinated Healthcare, Inc. and the restructuring of the core
business to Internet e-commerce. Likewise, the corresponding decrease in costs
of sales from $178,314 for the year ended October 31, 1997 versus $6,114 for the
year ended October 31, 1998 can be attributed to the same change in business
strategy.
Operating costs decreased from $647,068 for the twelve months ended
October 31, 1997 to $320,702 for the twelve months ended October 31, 1998 for
the very same reason.
Included in the net loss of $438,787 for the year ended October 31, 1998
was a deferred benefit on income taxes of $355,000 and a loss from discontinued
operations of $146,658. The net loss for the twelve months ended October 31,
1997 was $161,388.
Liquidity and Capital Expenditures
The Company ended the year at October 31, 1998 with liquid resources
(cash and receivables) of $644. The amount for the year ended October 31, 1997
was $54,852. The decrease is attributable to the restructuring of the business
and the absence of receivables as an e-commerce business.
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The Company acquired an Internet search engine and web site for a total
purchase price of $5,971,584. The purchase price was comprised of 1,700,000
shares of common stock valued at $5,789,850, preferred stock (1,000,000 shares)
valued $50,000, $114,000 in cash and the assumption of net liabilities of
$17,734.
DESCRIPTION OF PROPERTY
The Company currently has two (2) business offices. The Company's
principal executive office resides in San Antonio, Texas, where the Company is
being provided office space free of charge by a corporation controlled by the
Company's Chairman of the Board. The Company also has a regional office in
Newport Beach, California, where it is subleasing space from The BigStore.com,
Inc., an affiliated entity, which has a common director and common officers and
shareholders. The Lease is month to month at a rental of $6,568 per month. The
premises are in good condition and adequately insured. The Company plans to open
a regional office in the New York City area, which is the center of Internet and
advertising activity. Sales and marketing functions will be the primary purpose
of the regional offices.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of the date hereof with
respect to the beneficial ownership of the Company's voting securities by (i)
each person known by the Company to own beneficial 5% or more of its voting
securities (ii) each director and officer of the Company and (iii) all directors
and officers as a group.
<TABLE>
<CAPTION>
Type of Security Shares Beneficially Percentage Beneficially
Owned (See Note) Owned Owned (1)
---------------- ------------------- -----------------------
<S> <C> <C> <C>
Name and Address of Beneficial Owner (2)
----------------------------------------
Stilden Company O, D............................. Common Stock 6,741,250 (2) (3) 41.86%
2939 Mossrock, Suite 100
San Antonio, TX 78230
Yucatan Holding Company.......................... Common Stock 1,937,500 (4) 12.03%
3003 Killer Bond Road
Knoxville, TN 37922
I-Commerce Group, Inc............................ Common Stock 1,400,000 8.69%
6312 Baum Drive
Knoxville, TN 37919
Patrick J. DeMicco O, D.......................... Common Stock 1,325,000 (5) 8.23%
4167 Warner Avenue, #306
Huntington Harbor, CA 92649
Frampton Investments, LLC........................ Common Stock 1,100,000 6.83%
P.O. Box 8
Huntington Beach, CA 92648
Hare Investments, LLC............................ Common Stock 1,100,000 6.83%
PMB 327
3504 Earle E. Morris Jr. Hwy
Greenville, SC 29611
Techlabs, Inc.................................... Common Stock 1,000,000 6.21%
3415 Galt Ocean Drive
Fort Lauderdale, FL 33308
Douglas Martinez O............................... Common Stock, 400,000 (6) 2.48%
3388 Via Lido
Newport Beach, CA 92663
Chet Howard O, D. ............................... Common Stock 200,000 (7) 1.24%
1005 Skyline Drive
Laguna Beach, CA 92651
</TABLE>
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<TABLE>
<S> <C> <C> <C>
Mark Doumani O. .................. Common Stock 75,000 (8) *
10050 Hishcliff Drive
Santa Ana, CA 92705
Roger Riddell D. ................. Common Stock 75,000 *
9940 Santa Monica Blvd. # 710
Beverly Hills, CA 90210
Rod Perth D. ..................... Common Stock 75,000 *
5358 Melrose Ave
Suite 300W
Hollywood, CA 90038
David Burrows O................... Common Stock 0 *
113 Aspen Lane
Costa Mesa, CA 92627-1360
All Directors and Officers as
a Group (8 Persons).............. Common Stock 8,891,250 55.2%
</TABLE>
___________________
* Indicates less than one percent (1%).
(1) Beneficial ownership is determined in accordance with the applicable rules
under the 1934 Act, including any shares of Common Stock as to which a
person has sole or shared voting or investment power. Additionally, in
computing the number of shares beneficially owned by a person and the
percentage ownership of that person, shares of Common Stock subject to
options held by that person that are currently exercisable, or become
exercisable within 60 days from the date hereof, are deemed outstanding.
However, such shares are not deemed outstanding for purposes of computing
the percentage ownership of any other person. Percentage ownership is based
on 16,105,975 shares of Common Stock outstanding.
(2) Stilden Company is controlled by Frank W. Denny, the Company's Chairman of
the Board.
(3) Includes 4,677,500 shares of Common Stock over which Stilden Company has
voting power pursuant to several irrevocable proxies granted by certain
members of management and other shareholders. The proxies generally are
effective for periods of one (1) to three (3) years from the date of grant.
(4) Yucatan Holding Company has granted an irrevocable proxy to vote the
1,937,500 shares to Stilden Company, which proxy will expire no later than
April 30, 2002.
(5) Mr. DeMicco has granted an irrevocable proxy to vote the 1,325,000 shares to
Stilden Company, which proxy will expire no later than June 8, 2000.
(6) Mr. Martinez has granted an irrevocable proxy to vote the 400,000 shares to
Stilden Company, which proxy will expire no later than June 8, 2001.
(7) Mr. Howard has granted an irrevocable proxy to vote the 200,000 shares to
Stilden Company, which proxy will expire no later than June 8, 2001.
(8) Mr. Doumani has granted an irrevocable proxy to vote the 75,000 shares to
Stilden Company, which proxy will expire no later than June 8, 2001.
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DIRECTORS, EXECUTIVE OFFICERS AND SIGNIFICANT EMPLOYEES
Management
The Company is assembling a team of managers and entrepreneurs with
experience in the areas of e-commerce, and e-tailing and a shared commitment to
its future growth and success.
The following table sets forth the names, ages, and positions of the
executive management team of The BigHub.com.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Name Position Age
<S> <C> <C>
Frank W. Denny Chairman of the Board/Director 64
Patrick J. DeMicco President/Chief Executive Officer/Director 34
Douglas Martinez Executive Vice President/Chief Operating Officer 36
Chet Howard Senior V. P., Finance/Chief Financial Officer/Secretary 56
Mark Doumani Vice President, Sales & Marketing 33
David Burrows Chief Technology Officer 41
Rod Perth Director 49
Roger Riddell Director 53
</TABLE>
Executive Management
Frank W. Denny, Chairman of the Board/Director. Mr. Denny joined The BigHub.com
in April 1999 as its Chairman of the Board and a member of the Board of
Directors. Mr. Denny had served as the President, Chief Executive Officer and
Chairman of the Board of Shopping.com, a leading U.S. Internet retail site that
was purchased by Compaq Corporation in 1999. He is also the President and CEO of
Cibolo Group, a marketing and consulting group headquartered in San Antonio,
Texas, and has served in those offices since 1991. Cibolo Group is engaged in
the sale, marketing and manufacture of general hard line retail merchandise and
provides consulting services, specializing in retail concept development and
implementation as well as mergers and acquisitions. Prior to this time, Mr.
Denny was a Founder, Chairman of the Board, President and CEO of Builders
Square, one of the largest retail home improvement warehouse operations in the
United States. Prior to Builders Square, Mr. Denny was President of W.R. Grace
Home Centers, a chain of home centers operating over 300 stores nationally. Mr.
Denny was an officer of the Home Center Institute and a charter member of the
National Home Center Congress and Exposition. He was also a founder of the Do It
Yourself Research Institute based in Indianapolis, Indiana.
Patrick J. DeMicco, President/Chief Executive Officer/Director. Mr. DeMicco
joined The BigHub.com in April 1999 as its Secretary. In July 1999 Mr. DeMicco
was elected the Company's President and Chief Executive Officer and resigned as
its Secretary. Prior to this, Mr. DeMicco served as Executive Vice President of
Merchandising for Shopping.com. Mr. DeMicco brings to The BigHub.com over 16
years of retail merchandising experience. Prior to Shopping.com, Mr. DeMicco
held positions of Senior Merchandiser and Merchandise Manager at The Home Depot
where he was responsible for a multi-billion dollar worth of inventory and where
he gained extensive knowledge of vendor programs, vendor line assortment mix,
retail price points, and return on investment goals. Mr. DeMicco's merchandising
experience covered the West and East Coasts respectively and he reported
directly to the Executive Senior Vice President. Mr. DeMicco brings an excellent
track record of consistently exceeding annual sales forecasts and return on
investment goals, the ability to analyze and solve problems in a constantly
changing work environment and a talent for balancing long-range vision with an
attention to detail.
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Douglas Martinez, Executive Vice President/Chief Operating Officer. Mr.
Martinez joined The BigHub.com in June 1999. Mr. Martinez brings to The
BigHub.com over 15 years of senior management experience in a broad range of
businesses and industries. Before joining the Company, he served as Chief
Operating Officer and a director for Integrity Online Holdings, considered the
largest filtered Internet Service Provider in the United States. Among his
various duties, Mr. Martinez was also responsible for negotiating many of the
company's technology and operating agreements, including various significant
financial transactions. Mr. Martinez also served as Senior Vice President for
RSI Home Products, a leading manufacturer of home improvement products, where he
helped to establish RSI as an industry leader in several product categories from
1986 to 1995, and he held several senior executive positions with Price Pfister,
a Black and Decker Company, including the post of Vice President, Marketing and
Sales. As an integral part of Price Pfister's senior management team, he was
also instrumental in driving the strategies and initiatives which vaulted the
Company to the number one position in the decorative faucet market, with
revenues in excess of $300 million.
Chet Howard, Senior Vice President, Finance/Chief Financial
Officer/Secretary/Director. Mr. Howard joined The BigHub.com in June 1999 as
its Chief Financial Officer. In July 1999, Mr. Howard was also elected Secretary
and appointed to the Board of Directors. Mr. Howard brings to The BigHub.com a
wide range of experience in accounting, corporate finance and management. Over
the years he has held a variety of senior financial and executive positions with
companies engaged in retail, Internet services and product distribution and
merchandising. He is one of the original co-founders of Sports Authority, one of
the nation's leading sporting goods retail chains. He has also served in senior
financial positions with Home Depot and the Wickes Companies. In addition, Mr.
Howard was a co-founder of Chilean-based Inter-Americas Communications Corp.,
considered the first competitive Internet access provider, and a co-founder of
USA Service Systems, Inc., a merchandising services company.
Mark Doumani, Vice President of Sales & Marketing. Mr. Doumani joined The
BigHub.com in June 1999. Mr. Doumani has over 10 years experience in the start-
up and management of small to large-sized business ventures. He was co-founder
and Vice-President of Operation at Doumani Development Corporation, a family-
owned real estate development company specializing in hotels, shopping centers
and custom estates. He was responsible for property acquisition, drafting
agreements, and sales and marketing. Mr. Doumani then co-founded True Light
Films, an animation production company once selected by Animation Magazine's
Who's Who in animation production. In 1995, Mr. Doumani developed an Internet
education and Web site know as NetMax 2000. This product continues to have
success in the marketplace, with first-year sales exceeding $1 million. Mr.
Doumani then went on to serve as President and Executive Vice President of
Travelmax International, Inc., as part of the strategic reorganization team.
Travelmax specializes in the sale of travel and Internet-related products with
sales of $40 million to $50 million. He completed his undergraduate studies at
the University of California, Los Angeles, and received his Juris Doctor from
Western State University. Mr. Doumani is the managing partner of Doumani &
Grandon, a California-based law firm and a member of the California and American
Bar Association.
David Burrows, Chief Technology Officer. Mr. Burrows joined The BigHub.com in
April 1999. From 1995 to the date he joined The BigHub.com, Mr. Burrows served
as Director of IS Infrastructure Services for The Orange County Register. He
managed a staff of 60, responsible for the overall systems management of 70
computing platforms with 10 disparate operating systems, as well as desktop and
network engineering, computer operations and support desk. From 1989 to 1995,
Mr. Burrows served as Director, IS Infrastructure Services for FHP, Inc,
managing a staff responsible for the overall support and systems management of
10 computing platforms. Mr. Burrows holds extensive experience with over 24
years in multi-vendor, multi-platform environments.
Rod Perth, Director. Mr. Perth joined The BigHub.com in May 1999. Mr. Perth
also serves as President of Entertainment of Jim Henson Television Group
Worldwide, a division of Jim Henson Co. Until July 1998, Mr. Perth was
President, Entertainment, USA Networks. He successfully led all programming
efforts for both the USA Network, and the Sci-Fi Channel. His efforts to move
USA from a cable network largely dependent on re-run programming, to a network
that developed many original dramatic series as well as movies and mini-series,
allowed USA to regain its position as the number one basic cable network. He
joined USA after a productive career at CBS Television, where he rose through
the ranks by starting in the mail-room, and eventually becoming Senior Vice-
President, Late Night and Non-Network Programs. Mr. Perth is on several
corporate and civic boards, and he was named "Man of the Year" by
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The Alliance for Children, in 1996.
Roger Riddell, Director. Mr. Riddell joined The BigHub.com in May 1999. For the
past 25 years, Mr. Riddell has been the President of RNF Holding Co., and has an
extensive background in marketing, advertising, and broadcasting. RNF's client
list includes many top U.S. Companies such as Burger King, Arby's Restaurants,
Virgin Megastores, Corbett Canyon Wine, Hollywood Park and Los Alamitos
Racetracks, Lamps Plus, California Jeep Dealers Association and Mandalay Bay
Hotel. Mr. Riddell formed International Film Marketing in 1981, a Beverly Hills-
based film production and distribution company. Since its inception,
International Film Marketing has distributed over 40 films both in the U.S. and
internationally. His films include Academy Award Nominee "On Any Sunday" and
"The Endless Summer."
Dependence on Key Management
The Company's performance depends substantially on the continued services
and performance of its senior management and other key personnel. The Company's
performance also depends on its ability to retain and motivate its other
qualified officers and key employees.
REMUNERATION OF DIRECTORS AND OFFICERS
Executive Compensation
The following table sets forth information concerning the compensation of
the named executive officers for each of the Company's last three (3) fiscal
years ended October 31.
Summary Compensation Table
<TABLE>
<CAPTION>
Name and Principal Position Fiscal
- ---------------------------
Year Salary
---- ------
<S> <C> <C>
John Bennett, Director, President and Chief Executive Officer (1) 1998 $ 0
Thomas Taule, Director, Chief Financial Officer and Secretary (1) 1998 *
1997 $37,000
1996 $58,000
Alfred Taule, Director, Secretary (3) 1998 *
1997 *
1996 *
</TABLE>
___________________________
(1) Messrs. Bennett and T. Taule resigned as Directors and Officers of the
Company in May 1999.
(2) Mr. T. Taule served as the Company's President and Chief Executive Officer
during fiscal years 1997 and 1996.
(3) Mr. A. Taule resigned as a Director and Officer of the Company in August
1998.
* Denotes that annual compensation for such fiscal year was less than
$100,000.
See "Employment Agreements" below for a description of the compensation and
other benefits to be paid during fiscal year ended October 31, 1999 to the
Company's current executive officers.
Directors of the Company who are also employees do not receive cash
compensation for their services as directors or members of committees of the
Board of Directors, but are reimbursed for their reasonable expenses incurred in
connections with attending meetings of the Board of Directors or management
committees. Non-employee directors are expected to be paid a fee of $5,000 per
Board meeting attended and may be granted options to purchase shares of the
Company's Common Stock, and reimbursement for expenses.
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<PAGE>
Stock Option Grants
During the fiscal year ended October 31, 1998, the Company did not grant
any stock options to directors, executive officers or employees. As of October
31, 1998, the only outstanding stock option was to the Company's then current
Chief Executive Officer. This outstanding stock option was not exercised and was
cancelled in April 1999 pursuant to the mutual agreement of the Company and the
Chief Executive Officer. In June 1999, the Company's Board of Directors and
shareholders adopted and approved the Company's 1999 Stock Incentive Plan (the
"Plan"). The Company has initially reserved 1,500,000 shares of common stock
under the Plan for grants to employees, directors and consultants. The shares
reserved under the Plan shall automatically be increased on January 1 of each
year, commencing on January 1, 2000, by the lesser of 300,000 shares or 1.5% of
the Company's outstanding common stock on such date. As of July 31, 1999, the
Company has granted options to purchase 535,500 shares of the Company's common
stock under the Plan. Of the options granted to date, the Company has granted to
each of Mark Doumani, Vice President, Sales & Marketing, and David Burrows,
Chief Technical Officer, an incentive stock option to purchase 56,817 shares of
the Company's common stock at an exercise price of $5.28 per share, the fair
market value of the Company's common stock on the date of grant. On the same
date, the Company also granted to each of Messrs. Doumani and Burrows a non-
statutory stock option to purchase 93,183 and 43,183 shares, respectively, of
the Company's common stock at an exercise price of $4.00 per share. On the same
date, the Company granted to each of its two (2) non-employee directors, Messrs.
Perth and Riddell, a non-statutory stock option to purchase 75,000 shares of the
Company's common stock at an exercise price of $4.00 per share. Each of the
foregoing options vests over a period of three (3) years with one-third vesting
on the first anniversary of the date of grant and the remaining two-thirds
vesting pro rata each month over a period of twenty-four months. The options
have a term of ten (10) years and expire in June 2009.
Employment Agreements
Patrick J. DeMicco ("Mr. DeMicco") has a three (3) year employment
agreement ("Term") with the Company to perform the duties of President and Chief
Executive Officer at an annual salary of $275,000 ("Base Salary") per year. In
addition to the Base Salary, the Company will pay Mr. DeMicco a one-time sign-on
bonus of $150,000, payable immediately following the Company's having closed a
private offering of a minimum of $4,000,000. In addition to the Base Salary and
the sign-on bonus, Mr. DeMicco is eligible for an annual incentive bonus
("Incentive Bonus") in an amount not to exceed one hundred percent (100%) of the
Base Salary. Seventy-five percent (75%) of the Incentive Bonus shall be based
upon goals mutually agreed upon by the Board of Directors, or a Committee of the
Board and DeMicco, and the remaining twenty-five percent (25%) will be
determined in the sole discretion of the Board or Committee. The Company will
pay to DeMicco an automobile allowance of $1,500 per month and provide all other
benefits of employment provided to the other employees of the Company holding
comparable positions within the Company, including but not limited to, paid
vacation, paid health insurance for Mr. DeMicco and his spouse, paid life
insurance to a maximum of Base Salary, keyman life insurance in the amount of
$2,000,000, paid mobile telephone expense for business use, and participation in
retirement and investment programs as instituted by the Company. If DeMicco is
terminated without cause he will receive a lump sum severance payment equal to
(i) three (3) years base salary, plus a pro rata portion of any Incentive
compensation, if any, earned for the year in which termination occurs prorated
to the date of termination, and (ii) any unreimbursed expenses accruing to the
date of termination. The Company will also continue Mr. DeMicco's benefits
through the remainder of the Term. Upon the expiration of the three (3) year
term, Mr. DeMicco's employment with the Company may be extended for successive
three (3) year periods at his option.
The Company has also entered into employment agreements with Messrs.
Martinez, Doumani and Howard. Mr. Martinez's employment agreement provides for a
two (2) year term commencing June 1999, pursuant to which Mr. Martinez has
agreed to perform the duties of Executive Vice President and Chief Operating
Officer at an initial Base Salary of $240,000 per year. In addition to the Base
Salary, the Company will pay Mr. Martinez a one-time sign-on bonus of $100,000,
payable immediately following the Company's having closed a private offering of
a minimum of $4,000,000. In addition to the Base Salary and the sign-on bonus,
Mr. Martinez is eligible for an annual incentive bonus ("Incentive Bonus") in an
amount not to exceed one hundred percent (100%) of the Base Salary. The
Incentive Bonus is based upon goals mutually agreed upon by Mr. Martinez and the
Company's President/Chief Executive Officer, with Mr. Martinez's Incentive Bonus
for each of the first two (2) years a guaranteed minimum of 25% of Mr.
Martinez's Base
11
<PAGE>
Salary. The Company will also pay to Mr. Martinez an automobile allowance of
$1,000 per month and provide all other benefits of employment provided to the
other employees of the Company holding comparable positions within the Company,
including but not limited to, paid vacation, paid health insurance for Mr.
Martinez and his spouse, paid life insurance to a maximum of Base Salary, keyman
life insurance in the amount of $2,000,000, paid mobile telephone expense for
business use, and participation in retirement and investment programs as
instituted by the Company. If Mr. Martinez is terminated without cause he would
receive a severance payment equal to (i) two (2) years Base Salary, plus a pro
rata portion of any Incentive Compensation, earned for the year in which
termination occurs prorated to the date of termination, and (ii) any
unreimbursed expenses accruing to the date of termination. The Company will also
continue Mr. Martinez's benefits through the remainder of the Term. Upon the
expiration of the two (2) year term, Mr. Martinez's employment with the Company
may be extended for successive two (2) year periods at his option.
Mr. Doumani has a two (2) year employment agreement with the Company,
commencing June 1999, to perform the duties of Vice President of Sales and
Marketing at an initial Base Salary of $175,000 per year. In addition to the
Base Salary, Mr. Doumani is eligible for an annual incentive bonus ("Incentive
Bonus") in an amount not to exceed fifty percent (50%) of the Base Salary. The
Incentive Bonus is based upon goals mutually agreed upon by Mr. Doumani and the
Company's Chief Operating Officer. In addition to the Base Salary and Incentive
Bonus, the Company has granted to Mr. Doumani an incentive stock option to
purchase 56,817 shares of the Company's common stock at an exercise price of
$5.28 per share and a non-qualified stock option to purchase 93,183 shares of
the Company's common stock at an exercise price of $4.00 per share. Each option
shall vest over a period of three (3) years, with one-third of such option
vesting on the first anniversary of the date of grant and the other two-thirds
vesting as to one-twenty fourth (1/24th) of such option each month thereafter.
The options were granted under and are subject to the terms and conditions of
the Company's 1999 Stock Incentive Plan. Mr. Doumani is also entitled to all
other benefits of employment provided to the other employees of the Company
holding comparable positions within the Company, including but not limited to,
paid vacation, paid health insurance for Mr. Doumain, his spouse and dependents,
paid life insurance to a maximum of Base Salary, paid mobile telephone expense
for business use, and participation in retirement and investment programs as
instituted by the Company. If Mr. Doumani is terminated without cause he would
receive a severance payment equal to (i) the greater of (a) the remaining Base
Salary payable through the remaining Term, or (b) twenty-four (24) months Base
Salary, plus (ii) a pro rata portion of any Incentive Compensation earned for
the year in which termination occurs prorated to the date of termination plus
(iii) any unreimbursed expenses accruing to the date of termination. The Company
will also continue Mr. Doumani's benefits through the remainder of the Term.
Mr. Howard's employment agreement provides for a two (2) year term,
commencing in June, 1999, pursuant to which Mr. Howard has agreed to perform the
duties of Senior Vice President and Chief Financial Officer at an initial base
salary of $175,000 (the "Base Salary"). In addition to the Base Salary, Mr.
Howard is eligible for an annual incentive bonus ("Incentive Bonus") in an
amount not to exceed $25,000. The Incentive Bonus is based upon goals mutually
agreed upon by Mr. Howard and the Company's Board of Directors, or a committee
of the Board of Directors. Mr. Howard is also entitled to all other benefits of
employment provided to the other employees of the Company holding comparable
positions within the Company, including but not limited to, paid vacation, paid
health insurance for Mr. Howard, his spouse and dependents, paid life insurance
to a maximum of Base Salary, paid mobile telephone expense for business use, and
participation in retirement and investment programs as instituted by the
Company. If Mr. Howard is terminated without cause he would receive a severance
payment equal to (i) the greater of (a) the remaining Base Salary payable
through the remaining term or (b) eighteen (18) months Base Salary, plus (ii) a
pro rata portion of any Incentive Compensation earned for the year in which
termination occurs prorated to the date of termination plus (iii) any
unreimbursed expenses accruing to the date of termination. The Company will also
continue Mr. Howard's benefits through the remainder of the Term.
12
<PAGE>
INTEREST OF MANAGEMENT AND OTHERS IN CERTAIN TRANSACTIONS
The Company has entered into a sublease agreement with The BigStore.com,
Inc., an affiliated entity, which has a common director and common officers and
shareholders. The Lease is month to month at a rental of $6,568 per month.
DESCRIPTION OF SECURITIES
Common Stock
The Company's authorized capital consists of 25,000,000 shares of Common
Stock, par value $.001 per share. Holders of shares of Common Stock are entitled
to one vote per share at all meetings of stockholders. In the event of
liquidation, dissolution or winding up of the Company, holders of the Common
Stock will be entitled to receive on a pro rata basis 99% of assets of the
Company remaining after satisfaction of all liabilities and payment of any
preferred liquidation rights with liquidation preference. As of July 31, 1999,
there were 16,105,975 shares of Common Stock issued and outstanding.
Restricted Stock
Of the 16,105,975 shares of Common Stock outstanding, 13,284,590 shares are
deemed to be restricted securities under Rule 144 under the Securities Act. In
general, under Rule 144, a person (or persons whose shares are aggregated),
including an affiliate of the Company, who has beneficially owned restricted
shares for at least one year is entitled to sell within any three-month period,
a number of shares that does not exceed, in the case of the Company, one percent
of the then outstanding shares of Common Stock, which will equal approximately
161,060 shares as of the date hereof.
Sales under Rule 144 are also subject to requirements concerning
availability of public information, manner of sale and notice requirements. Of
the 13,284,590 restricted shares referred to above, approximately 3,813,000 are
currently tradable under Rule 144 (subject to the volume limitation and other
requirements) and approximately 1,000,000 shares and 8,471,590 shares will be
tradable under Rule 144 in May 2000 and June 2000, respectively.
Preferred Stock
The Articles of Incorporation, as amended, authorize the issuance of the
following Preferred Stock:
10,000,000 shares of Preferred Stock $.001 par value per share
25,000,000 shares of Special Preferred Stock $.001 par value per share
The Board of Directors has designated 12,500,000 shares of the Special
Preferred Stock as Class A Special Preferred Stock. The shares of Special
Preferred Stock which are not Class A Special Preferred Stock may be issued,
with a majority of shareholder approval, with designations, powers, preferences
and relative rights determined by the Board of Directors. As of July 31, 1999,
there were no shares of Preferred Stock or Special Preferred Stock, including
Class A Special Preferred Stock, issued and outstanding.
Voting Rights
Preferred Stock - Each share of Preferred Stock is entitled to one vote per
share.
Special Preferred Stock - The voting rights of the Special Preferred Stock
is to be determined at the time of issuance.
13
<PAGE>
Class A Special Preferred Stock - Each share of Class A Special
Preferred Stock is entitled to two votes per share. The Class A Special
Preferred Stock votes as a single class with the Common Stock and Preferred
Stock.
Liquidation Rights
Preferred Stock - Upon a liquidation of the Company, holders of
Preferred Stock are entitled to receive 1% of the assets of the corporation
available to the shareholders upon liquidation with the holders of the Common
Stock receiving the other 99%.
Special Preferred Stock - Liquidation rights for holders of Special
Preferred Stock shall be determined upon issuance, and may include a priority
over liquidation payments to Common Stock and other series of Preferred Stock.
Class A Special Preferred Stock - Holders of Class A Special Preferred
Stock do not share in proceeds upon liquidation of the Company.
Redemption
Preferred Stock - Preferred Stock is redeemable at the Company for one
share of common stock.
Special Preferred Stock - Redemption rights for the Special Preferred
Stock shall be determined at time of issuance.
Class A Special Preferred Stock - The Class A Special Preferred Stock
is redeemable upon terms and conditions to be determined by the Board of
Directors.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Other Shareholder Matters.
The Company's Common Stock is traded on the over-the-counter. The
following sets forth the range of high and low bid quotations for the periods
indicated as reported by Nasdaq Trading and Market Services. Such quotations
reflect prices between dealers without retail mark-up, markdown or commission
and may not represent actual transactions and is quoted on the OTC Bulletin
Board under the symbol BHUB.
<TABLE>
<CAPTION>
Quarter Ended High Bid Low Bid
------------------ -------- -------
<S> <C> <C>
July 31, 1999 $16.88 $4.81
April 30, 1999 $10.13 $5.25
January 31, 1999 $21.25 $0.88
October 31, 1998 $ 9.25 $0.05
July 31, 1998 $ 0.75 $0.03
April 30, 1998 $ 1.56 $0.19
January 31, 1998 $ 2.56 $0.50
</TABLE>
There was no trading activity report for the Company's Common Stock
prior to the fiscal quarter ended January 31, 1998.
As of July 31, 1999, there were approximately 55 holders of record of
the Company's Common Stock.
14
<PAGE>
The Company has never paid a cash dividend on its Common Stock nor
does the Company anticipate paying cash dividends on its Common Stock in the
near future. It is the present policy of the Company not to pay cash dividends
on the Common Stock but to retain earnings, if any, to fund growth and
expansion. Any payment of cash dividends on the Common Stock in the future will
be dependent upon the Company's financial condition, results of operations,
current and anticipated cash requirements, plan for expansion, as well as other
factors the Board of Directors deems relevant.
Item 2. Legal Proceedings.
As of the date hereof, the Company is not a party to any material
pending legal proceeding and is not aware of any threatened legal proceeding.
Item 3. Changes in and Disagreements with Accountants.
None.
Item 4. Recent Sales of Unregistered Securities.
The following provides information concerning all sales of securities
within the last three (3) years which were not registered under the Securities
and Exchange Act of 1933:
1. In October 1997 the Company issued 226,666 shares of Common Stock
to the Company's then President and Chief Executive Officer pursuant to an
exemption from registration under Section 4(2) of the Securities and Exchange
Act of 1933 (the "Securities Act").
2. From July 1998 to October 1998, the Company conducted a private
placement of its Common Stock pursuant to Rule 504 of Regulation D as
promulgated by the Securities and Exchange Commission under the Securities Act.
The Company issued a total of 876,000 shares of Common Stock at $0.15 per share.
3. During the year ended October 31, 1998, the Company issued 6,855
shares of Common Stock (adjusted for the Company's 1 for 20 reverse stock split
in August 1998) for $103,200 cash in exercise of outstanding warrants from a the
Company's prior offering under Rule 504 in April 1996. The shares were issued
pursuant an exemption from registration under Section 4(2) of the Securities
Act.
4. During the year ended October 31, 1998, the Company issued 24,833
shares of Common Stock (adjusted for the Company's 1 for 20 reverse stock split
in August 1998) with a value of $352,666 in exchange for services rendered. The
shares were issued pursuant an exemption from registration under Section 4(2) of
the Securities Act.
5. In August 1998, in connection with the Company's acquisition of
Maverick Communications Corp., which held the option to acquire the meta-search
engine, the Company issued 1,500,000 shares of Common Stock valued at $4,031,250
and 1,000,000 shares of Preferred Stock valued at $50,000. The shares of Common
Stock and Preferred Stock were issued pursuant to an exemption from registration
under Section 4(2) of the Securities Act.
6. In September 1998, the Company issued 200,000 shares of the
Company's Common Stock valued at $1,644,600 in connection with the acquisition
of the Internet Sleuth meta-search engine. The shares were issued pursuant an
exemption from registration under Section 4(2) of the Securities Act.
7. In December 1998, concurrent with the creation of Class A Special
Preferred Stock, the Company converted 5,000,000 shares of Preferred Stock into
8,250,000 shares of the Class A Special Preferred Stock in exchange for the
creation of a $1,000,000 line of credit with the Company's then principal
shareholder.
15
<PAGE>
8. In December 1998, the Company completed a private placement of its
Common Stock pursuant to Rule 504 of Regulation D as promulgated by the
Securities and Exchange Commission under the Securities Act. The Company issued
a total of 1,600,000 shares of Common Stock at $0.50 per share in exchange for
the cancellation of outstanding indebtedness to the investors. The investors had
purchased the obligations from the original lender.
9. In January 1999, the Company issued 124,000 shares of Common Stock
at a price of $0.15 per share in exchange for services. The shares of Common
Stock sold in this transaction represent the balance of shares from the
Company's July 1998 private placement. The issuance was exempt from registration
under either Rule 504 or Rule 701.
10. In April 1999, the Company offered to redeem both its outstanding
shares of Preferred Stock and outstanding shares of Class A Special Preferred
Stock, with each share being redeemed for one share of Common Stock. All
1,000,000 outstanding shares of Preferred Stock and 2,062,500 outstanding shares
of Class A Special Preferred Stock were redeemed. In connection with the
redemption, the Company issued 3,062,500 shares of Common Stock. The shares of
Common Stock were issued pursuant to an exemption from registration under
Section 4(2) of the Securities Act.
11. In June 1999, in order to reduce the voting control attendant to
the Class A Special Preferred Stock, the Company negotiated the redemption of
the remaining 6,187,500 outstanding shares of Class A Special Preferred Stock.
In connection with the redemption, each outstanding share of Class A Special
Preferred Stock was redeemed for 1.3232 shares of Common Stock, with a total of
8,187,500 shares of Common Stock being issued in connection with the redemption.
The shares of Common Stock were issued pursuant to an exemption from
registration under Section 4(2) of the Securities Act.
12. In June 1999, the Company issued 284,090 shares of its Common
Stock at $5.28 per share to three (3) accredited investors pursuant to Rule 506
of Regulation D, as promulgated by the Securities and Exchange Commission under
the Securities Act.
Item 5. Indemnification of Directors and Officers.
The Company's Articles of Incorporation, as amended, provide that the
Company must, to the fullest extent permitted by the General Corporation Law of
the State of Florida, indemnify all persons whom it has the power to indemnify
from and against all expenses, liabilities or other matters. The Company's By-
Laws further provide that the Company shall indemnify its directors, officers
employees and agents to the fullest extent permitted by Florida law. The
indemnification provided in the By-laws is expressly deemed to not be exclusive
of any other rights to which a person seeking indemnification may otherwise be
entitled. The Company's indemnification obligation applies where the party to be
indemnified acted in good faith and in a manner such party reasonably believed
to be in, or not opposed to, the best interests of the corporation.
16
<PAGE>
PART F/S
FINANCIAL STATEMENTS
See "Index to Consolidated Financial Statements" for a listing of the
consolidated financial statements filed with this Form 10-SB.
<PAGE>
PART III
Item 2. DESCRIPTION OF EXHIBITS
See "Exhibit Index"
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
----
THE BIGHUB.COM, INC.
Report of Independent Auditors..................................... F-1
Consolidated Balance Sheets as of October 31, 1998 and 1997........ F-2
Consolidated Statements of Operations For the Years Ended
October 31, 1998 and 1997.......................................... F-3
Consolidated Statements of Changes in Stockholders' Equity For
the Years Ended October 31, 1998 and 1997.......................... F-4
Consolidated Statements of Cash Flows For the Years Ended
October31, 1998 and 1997........................................... F-5
Notes to Consolidated Financial Statements......................... F-6 to F-9
Unaudited Consolidated Balance Sheet
as of July 3l, 1999................................................ F-16
Unaudited Consolidated Statement of Operations
for the Nine Months Ended July 31, 1999............................ F-17
<PAGE>
[LETTERHEAD OF REEL & SWAFFORD, PLLC APPEARS HERE]
Report of Independent Auditors
To the Board of Directors and Stockholders
TheBigHub.com, Inc.
We have audited the accompanying consolidated balance sheets of
TheBigHub.com, Inc. (formerly iSleuth.com, Inc.) and Subsidiary as of
October 31, 1998 and 1997, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for the years
then ended. These consolidated financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform our audits to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial
position of TheBigHub.com, Inc. and Subsidiary as of October 31, 1998 and
1997 and the results of their operations and their cash flows for the years
then ended in conformity with generally accepted accounting principles.
/s/ REEL & SWAFFORD, PLLC
Certified Public Accountants
Knoxville, Tennessee
July 29, 1999
F-1
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================================================
TheBigHub.com, Inc. and Subsidiary
Consolidated Balance Sheets
October 31, 1998 and 1997
==========================================================================================================================
<S> <C> <C>
ASSETS 1998 1997
---- ----
Current Assets
Cash $ 644 $ 1,452
Accounts receivable -0- 53,400
------------------ ------------------
Total Current Assets 644 54,852
================== ==================
Property and Equipment
Internet search engine and web site (Note 6) 5,971,584 -0-
Machinery and equipment 12,364 144,688
Less: accumulated depreciation (66,618) (16,303)
------------------ ------------------
5,917,330 128,385
Deferred Tax Assets 445,000 -0-
Other Assets 1,800 90,403
------------------ ------------------
Total Assets $ 6,364,774 $ 273,640
================== ==================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 14,094 $ 54,377
Accrued expenses 37,284 16,397
Bank note payable -0- 129,000
Due to related parties (Note 9) 511,027 259,825
------------------ ------------------
Total Liabilities 562,405 459,599
Stockholders' Equity
Preferred stock, $.001 par value, 10,000,000 shares
authorized; 6,000,000 shares issued and outstanding 6,000 -0-
Common stock, $.001 par value, 25,000,000 shares
authorized; 2,718,885 and 302,500 shares issued and outstanding 2,719 302
Additional paid-in capital 6,535,609 101,910
Retained earnings (Accumulated deficit) (726,959) (288,172)
------------------ ------------------
5,817,369 (185,960)
Less: Stockholder note receivable (15,000) -0-
------------------ ------------------
Total Stockholders' Equity 5,802,369 (185,960)
------------------ ------------------
$ 6,364,774 $ 273,639
================== ==================
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-2
<PAGE>
<TABLE>
<CAPTION>
============================================================================================================================
TheBigHub.com, Inc. and Subsidiary
Consolidated Statements of Operations
Years Ended October 31, 1998 and 1997
===========================================================================================================================
<S> <C> <C>
1998 1997
---- ----
Sales $ 6,292 $ 517,028
Cost of Sales 178 338,714
------------------ ------------------
Gross Profit 6,114 178,314
Operating Expenses
Selling, general and administrative 647,068 320,702
------------------ ------------------
Operating Income (Loss) (640,954) (142,388)
Other Income (Expense):
Interest expense (6,175) (19,000)
------------------ ------------------
(6,175) (19,000)
------------------ ------------------
Income (Loss) Before Provision for Income Taxes (647,129) (161,388)
Provision for Income Taxes on Continuing Operations
Current Expense -0- -0-
Deferred Benefit 355,000 -0-
------------------ ------------------
355,000 -0-
------------------ ------------------
Income (Loss) from Continuing Operations (292,129) (161,388)
Discontinued Operations
Loss from discontinued operations, net of income
tax benefit of $90,000 (146,658) -0-
------------------ ------------------
Net Income (Loss) $ (438,787) $ (161,388)
================== ==================
Basic and Diluted Earnings (Loss) per Share $ (0.22) $ (0.53)
================== ==================
Basic and Diluted Earnings (Loss) per Share from
Continuing Operations $ (0.15) $ (0.53)
================== ==================
Shares used in calculation of Earnings per Share 1,971,703 302,500
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
<TABLE>
<CAPTION>
==============================================================================================================================
TheBigHub.com, Inc. and Subsidiary
Consolidated Statements of Changes in Stockholders' Equity
Years Ended October 31, 1998 and 1997
==============================================================================================================================
Additional
Preferred Stock Common Stock Paid-In
---------------------------- -----------------------------
Shares Amount Shares Amount Capital
-------------- ----------- -------------- ------------ ----------------
<S> <C> <C> <C> <C> <C>
Balance, November 1, 1996 $ 302,500 $ 302 $ 101,910
Net income (loss)
-------------- ----------- -------------- ------------ ----------------
Balance, October 31, 1997 302,500 302 101,910
Directors shares cancelled in
exchange for indemnification (191,333) (191) 191
Shares issued for cash in exercise
of warrants 6,885 7 103,193
Shares issued in connection with
private placement 976,000 976 145,424
Common shares exchanged for
preferred stock 5,000,000 5,000 (100,000) (100) (4,900)
Shares issued in connection with
acquisition of subsidiary and
purchase of search engine 1,000,000 1,000 1,700,000 1,700 5,837,150
Shares issued for services 24,833 25 352,641
Net income (loss)
-------------- ----------- -------------- ------------ ----------------
Balance, October 31, 1998 6,000,000 $ 6,000 2,718,885 $ 2,719 $ 6,535,609
============== =========== ============== ============ ================
<CAPTION>
=======================================================
Accumulated Stockholder
Deficit Note Total
---------------- ---------------- ----------------
Balance, November 1, 1996 $ (126,784) $ $ (24,572)
Net income (loss) (161,388) (161,388)
---------------- ---------------- ----------------
Balance, October 31, 1997 (288,172) (185,960)
Directors shares cancelled in
exchange for indemnification -0-
Shares issued for cash in exercise
of warrants 103,200
Shares issued in connection with
private placement (15,000) 131,400
Common shares exchanged for
preferred stock -0-
Shares issued in connection with
acquisition of subsidiary and
purchase of search engine 5,839,850
Shares issued for services 352,666
Net income (loss) (438,787) (438,787)
---------------- ---------------- ----------------
Balance, October 31, 1998 $ (726,959) $ (15,000)$ 5,802,369
================ ================ ================
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
<TABLE>
<CAPTION>
===================================================================================================================
TheBigHub.com, Inc. and Subsidiary
Consolidated Statements of Cash Flows
For the years ended October 31, 1998 and 1997
===================================================================================================================
1998 1997
---- ----
<S> <C> <C>
Operating Activities
Net income (loss) $ (438,787) $ (161,388)
Adjustments to reconcile net income (loss) to net
cash provided by (used in) operating activities:
Depreciation and amortization 66,636 7,197
Deferred tax benefit (445,000) -0-
Loss from discontinued operations 136,255 -0-
Issuance of stock for services - continuing operations 96,000 -0-
Changes in operating assets and liabilities net of effects From
purchase of subsidiary:
Decrease (increase) in accounts receivable 5,741 (3,536)
Increase in accounts payable and accrued expenses 24,120 45,754
----------------- -----------------
Net Cash Used in Operating Activities (555,035) (111,973)
----------------- -----------------
Investing Activities
Purchase of fixed assets (10,000) -0-
Cash paid in fulfillment of option (114,000) -0-
Deposits (400) -0-
----------------- -----------------
Net Cash Provided by (Used in) Investing Activities (124,400) -0-
----------------- -----------------
Financing Activities
Proceeds from exercise of warrants and private placement 234,600 -0-
Borrowings from stockholder 447,127 104,425
Net draw on line of credit -0- 9,000
Repayments to stockholder (3,100) -0-
----------------- -----------------
Net Cash Provided by Financing Activities 678,627 113,425
----------------- -----------------
Increase (Decrease) in Cash and Cash Equivalents (808) 1,452
Cash and Cash Equivalents, beginning of period 1,452 -0-
----------------- -----------------
Cash and Cash Equivalents, end of period $ 644 $ 1,452
================= =================
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 1 - Summary of Significant Accounting Policies
Basis of Presentation The consolidated financial statements include the
accounts of the Company and its wholly owned subsidiary. All material
intercompany transactions have been eliminated.
Organization and Purpose TheBigHub.com, Inc. (The Company, a Florida
corporation) was incorporated in February 1995, under its original name,
Coordinated Healthcare, Inc. ("CHI"). In August 1998, the Company acquired a
100% interest in Maverick Communications Corporation ("MCC"), headquartered in
Knoxville, Tennessee, which owned an option to acquire a popular Internet search
engine. The operations of the Company prior to the August 1998 acquisition
reflect principally the day-to-day operations of medical clinics in the South
Florida area through July 1998, when the last of the two clinics was sold.
Pursuant to the transaction with MCC, CHI changed its name to iSleuth.com, Inc.
and adopted a plan of restructure effecting its transition from a provider of
managed health care to a provider of Internet services. In May 1999, the Company
changed its name to TheBigHub.com, Inc. and elected to change the state of its
incorporation from Florida to Delaware. See Notes 6 and 10.
Property and Equipment Property and equipment are stated at cost. Major
renewals and improvements are capitalized, while maintenance and repairs are
expensed when incurred. The cost and accumulated depreciation for property and
equipment sold, retired, or otherwise disposed of are relieved from the
accounts, and resulting gains or losses are recognized. Depreciation is computed
using the straight-line method over the estimated useful lives of depreciable
assets, generally five to seven years for machinery and equipment and 7 years
for the Internet search engine. Depreciation expense for the years ended October
31, 1998 and 1997 was $66,636 and $7,197, respectively.
The Costs of Start-Up Activities The Company has elected early implementation
of Statement of Position 98-5, Reporting on the Costs of Start-Up Activities
("SOP 98-5"), issued by the Accounting Standards Executive Committee of the
American Institute of Certified Public Accountants. Under provisions of SOP 98-
5, the Company treats costs associated with start-up activities as current year
expenses. During the year ended October 1998, the majority of the Company's
operating activities were associated with start-up activities.
Revenue Recognition Sales of goods and services and the related cost of sales
are recognized when orders are received and goods are shipped or services are
delivered. Sales for Internet advertising are recorded when earned. Accounts
receivable are periodically reviewed by management to assess collectibility.
Advertising Costs Advertising costs are expensed as incurred. Advertising costs
for the years ended October 31, 1998 and 1997 were nominal.
F-6
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Cash and Cash Equivalents The Company considers cash on hand, deposits in
banks, certificates of deposit and investments with original maturities of three
months or less to be cash and cash equivalents.
Note 1 - Summary of Significant Accounting Policies - Continued
Income Taxes Deferred income taxes are provided for temporary differences in
reporting income for financial statement and tax purposes arising primarily from
net operating loss carryforwards.
Use of Estimates The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosures of contingent assets and liabilities at the date of the financial
statements. Actual results could differ from those estimates.
Fair Value of Financial Instruments Cash and cash equivalents, accounts and
other receivable, accounts payable and accrued liabilities are stated at cost,
which approximates fair value because of the short term maturity of those items.
The estimated fair value of the Company's short-term borrowings approximate the
carrying value because of its recent origination and the interest rates and
terms approximate market conditions.
Earnings per Share In October 1997, the Company adopted Statement of Financial
Accounting Standards No. 128, "Earnings per Share." Under SFAS 128, basic
earnings per share is based on the weighted average number of common shares
outstanding during the year, whereas diluted earnings per share also gives
effect to all dilutive potential common shares that were outstanding during the
period. Dilutive potential common shares include convertible debentures,
preferred stock and stock option plan shares.
Comprehensive Income (Loss) On November 1, 1998, the Company adopted SFAS No.
130, "Reporting Comprehensive Income." SFAS No. 130 establishes standards for
reporting and presentation of comprehensive income (loss) and its components in
a full set of financial statements. SFAS 130 requires only additional
disclosures in consolidated financial statements, it does not affect the
Company's financial position or results of operations. The Company does not have
any components affecting comprehensive income (loss).
Reclassifications Certain reclassifications have been made to previously issued
financial statements in order for them to conform to classifications used in
these comparative financial statements.
Note 2 Statement of Cash Flows Supplemental Disclosure
The Company was not required to pay any income taxes during the years ended
October 31, 1998 and 1997. Interest paid for the years ended October 31, 1998
and 1997 was approximately $19,300 and $19,000, respectively.
F-7
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 2 Statement of Cash Flows Supplemental Disclosure - Continued
Non cash transactions during the year ended October 31, 1998 consisted of the
following:
Shares issued for services $ 352,666
Shares issued in exchange for note $ 15,000
Shares issued in connection with acquisition of
subsidiary and purchase of search engine $ 5,839,850
Net liabilities transferred on disposal of segment $ 120,411
There were no noncash transactions affecting cash flows during the year ended
October 31, 1997.
Note 3 - 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. The Company believes it is not exposed to any significant credit
risk on cash and cash equivalents.
Note 4 - Commitments and Contingencies
The Company has been and continues to be in the process of evaluating its
information technology infrastructure for the Year 2000 compliance. The Company
has modified certain systems to be Year 2000 compliant. The Company does not
expect that the cost to modify its information technology infrastructure to Year
2000 compliance will be material to its financial condition or results of
operations. The Company does not anticipate any material disruption in its
operations as a result of any failure by the Company to be compliant. The
Company does not currently have information concerning Year 2000 compliance
status of internet service providers or of its suppliers and customers. In the
event that any of the Company's major suppliers or customers does not
successfully and timely achieve Year 2000 compliance, the Company's business or
operations could be adversely affected.
Note 5 - Bank Note Payable
Bank note payable consisted of an obligation bearing interest at prime plus 1/4%
to a financial institution in the amount of $129,000 that matured June, 1998.
Note 6 - Acquisitions
F-8
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
As discussed in Note 1 to the financial statements, on August 10, 1998,
(Effective August 1, 1998 for accounting purposes) the Company acquired all the
common stock of MCC. The total purchase price was $5,850,813 and was comprised
of 1,500,000 shares of the Company's voting common stock, valued at $4,031,250,
and 1,000,000 shares of the Company's preferred stock, valued at $50,000, and
the assumption of an obligation to pay an additional $1,872,600 to be comprised
of
F-9
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 6 - Acquisitions - Continued
$114,000 in cash and 200,000 shares of the Company's common shares valued at
$1,758,600. Additionally, an MCC liability of $103,037 was assumed by the
seller. The acquisition was accounted for as a purchase and accordingly, the
operating results pertaining to MCC subsequent to the date of the acquisition
have been included in the Company's consolidated operating results. The total
purchase price was allocated $5,973,966 to the fair market value of the assets
acquired, including $5,971,584 for an Internet search engine and web site and
$20,116 to net deficiency in working capital.
A pro forma summary has not been presented since pro forma results do not differ
significantly from those reflected in the consolidated statements of operations.
Note 7 - Stockholders' Equity
In July 1998, the Company amended its charter to authorize up to 10,000,000
shares of $.001 par value preferred stock. The preferred stock's participation
rights as a class in any dividends or liquidation proceeds are limited to one
percent. Each share of preferred stock receives one vote in stockholder voting
matters. At the option of the Company, the preferred stock may be redeemed into
the Company's common shares at an exchange rate of one share of common stock for
each share of preferred stock.
The Company's charter was also amended to provide for a one for twenty (1 for
20) reverse split effective August 10, 1998 of the Company's outstanding common
stock. All per share amounts presented give effect for the reverse split. The
Company's amended charter authorizes up to 25,000,000 shares of common stock
with a new par value of $.001 per share.
Equity transactions during the Company's fiscal 1998 included:
In November 1997, the Company entered into an indemnification agreement
with its previous officers and directors in exchange for the cancellation
of 191,333 shares of the officers' and directors' common stock.
The Company issued 6,855 shares of common stock for $103,200 cash in
exercise of outstanding warrants from a prior offering. Additionally,
outstanding warrants from the prior offering for up to 40,615 shares of the
Company's common stock expired in June 1998.
In July 1998, the Company commenced a private placement limited offering
(PPLO) to sell up to 1,000,000 shares of its common stock at a share price
of $.15. Provisions of the PPLO included an anti-dilution clause which pre-
empted the effects of the subsequent stock split discussed above. At
October 31, 1998, 876,000 shares had been issued, and the balance of
124,000 shares remained available for sale. See Note 11.
F-10
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 7 - Stockholders' Equity - Continued
In connection with the acquisition discussed in Note 6, the Company issued
1,000,000 shares of its preferred stock and 1,500,000 of its common shares.
The Company also issued 5,000,000 shares of its preferred stock in exchange
for 100,000 shares of its common stock. In September 1998, the Company issued
200,000 shares of the Company's common stock valued at $1,758,600 in payment
of the final obligation in acquisition of an Internet search engine.
Common shares issued for services during the year ended October 31, 1998
totaled 24,833 at a value of $352,666, including 12,833 shares at $256,666 in
connection with discontinued operations.
Basic and diluted earnings per share are calculated on the weighted average
number of common shares outstanding of 1,971,703 and 302,500 in 1998 and 1997,
respectively. Dilutive potential common shares include convertible preferred
stock and shares available under the private placement discussed above.
Potential common shares are antidilutive for the years ended October 31, 1998
and 1997.
Note 8 - Income Taxes
A summary of income tax expense (benefit) for the years ended October 31, 1998
and 1997 is as follows:
1998 1997
---- ----
Federal deferred tax benefit $ (286,000) $ (54,000)
State deferred tax benefit (50,000) (9,700)
Amount included in discontinued
operations 90,000 -0-
------------ -----------
(246,000) (63,700)
Change in valuation reserve (109,000) 63,700
------------ -----------
Total Deferred Tax Benefit $ (355,000) $ -0-
Income tax benefit differed from the amounts computed by applying the U.S.
federal income tax rate of 34% to income (loss) before income taxes as a result
of state income taxes, net of federal income tax benefit.
F-11
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 8 - Income Taxes
Temporary differences that give rise to significant portion of the net deferred
tax asset (liability) at October 31, 1998 and 1997 are as follows:
1998 1997
---- ----
Deferred Tax Assets
Net Operating Loss Carryforwards
State $ 70,000 $ 17,000
Federal 375,000 92,000
---------- ---------
445,000 109,000
Valuation reserve -0- (109,000)
---------- ---------
Total Deferred Tax Asset $ 445,000 $ -0-
---------- ---------
In assessing the realizability of deferred tax assets, the Company considers
whether it is more likely than not that some portion of all of the deferred tax
assets will not be realized. The ultimate realization of deferred tax assets is
dependent upon the generation of future taxable income during the periods in
which those temporary differences become deductible. Based upon this assessment,
the Company has not established a valuation allowance against the deferred tax
assets at October 31, 1998.
The Company has accumulated net operating losses totaling approximately
$1,160,000. These losses begin expiring in 2010. The deferred benefit of net
operating loss (NOL) carryforwards arising from prior years' activities of
approximately $109,000 was fully reserved as of October 31, 1997. For 1998, no
valuation reserve has been applied due to the change in line of business and the
market value of its search engine. Accordingly, the provision for income taxes
reflects a change in the valuation allowance of $109,000 in recognition of the
effects of the NOL carryforward existing at the beginning of the year.
Note 9 - Related Party Transactions
Transactions with related parties are as follows:
F-12
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Due to related parties: 1998 1997
---- ----
Beginning balance $ 259,825 $ 155,400
Borrowings 447,127 104,425
Obligations satisifed in connection with (192,725) -0-
discontinued operations
Repayments (3,100) -0-
---------- ---------
$ 511,127 $ 259,825
Note 9 - Related Party Transactions - Continued
From time to time during the year ended October 31, 1998, the Company has
borrowed funds for working capital purposes from its principal stockholder. As
of October 31, 1998, the Company owed the stockholder $442,727 related to these
borrowings. Such notes are assignable without the Company's consent, accrue
interest at 10% per annum with principal and interest due on demand. Interest
expense during 1998 related to these borrowings totaled $4,500.
Also, included in due to related parties at October 31, 1998 is a $67,000 note
payable to a minority stockholder of the Company. The unsecured note, bearing
interest at ten percent, is convertible into shares of the Company's restricted
common stock at $2.69 per share (50% of the post-split opening price). Related
interest expense during 1998 totaled $1,675.
At October 31, 1997 the Company was obligated to a former principal shareholder
for $177,825 plus accrued interest at 8.5%. Also at October 31, 1997, the
Company was obligated to a private trust managed by a former principal
shareholder for $82,000 and accrued interest at 8.5%. Accrued interest relating
to these obligations of approximately $16,000 is included on the balance sheet
at October 31, 1997 under the caption "Accrued expenses."
Note 10 - Discontinued Operations
In November 1997, management elected to discontinue its managed health care
operations consisting of two medical clinics. The first clinic was sold in
November 1997, and the second clinic was sold in July 1998. The clinics were
disposed of by permitting a former officer and stockholder to assume
substantially all of the Company's then existing indebtedness. The obligations
assumed are nonrecourse to the Company.
Loss on discontinued operations, net of tax, is as follows:
Gain on disposal of segment - net liabilities assumed $ (120,411)
Stock issued for services 256,666
Cash loss from operations 100,403
Income tax effect (90,000)
----------
$ 146,658
----------
Net of tax the loss was ($0.07) per basic and diluted share.
F-13
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 11 - Subsequent Events
In December 1998, the Company amended its Articles of Incorporation to provide
authorization for 25,000,000 shares of $.001 par value special preferred stock.
Of these 25,000,000 authorized shares, 12,500,000 were designated as Class A
special preferred stock.
The special preferred stock is to receive no preference in dividend
distributions or in the event of liquidation. Each share of special preferred
stock shall receive two votes in stockholder voting
F-14
<PAGE>
================================================================================
TheBigHub.com, Inc. and Subsidiary
Notes to Consolidated Financial Statements
Years Ended October 31, 1998 and 1997
================================================================================
Note 11 - Subsequent Events - Continued
matters. Dividend and redemption features are determinable at the discretion of
the board of directors.
All shares of Class A special preferred stock shall be anti-dilutive. In the
event the Company shall issue, re-issue or redeem any shares of Class A
preferred stock, special preferred stock, preferred stock and/or common stock,
all of the holders of Class A special preferred stock shall have "preemptive
rights" pursuant to Florida statutes.
Concurrent with the creation of the Class A special preferred stock, the Company
converted 5,000,000 shares of preferred stock into 8,250,000 shares of the Class
A special preferred stock in exchange for the creation of a $1 million line of
credit with the Company's principal shareholder.
Subsequent to October 31, 1998, the related parties extended additional credit
to the Company of approximately $239,000 and assigned their rights to the
Company obligations. See Note 9. In December 1998, the Company converted the
assigned obligations for 1,600,000 shares of common stock at a price of $.50 per
share.
In connection with the July 1998 PPLO, the Company issued 124,000 shares of its
common stock at $.15 per share in January 1999. See Note 7.
Also in April 1999, the Company redeemed all of its 1,000,000 shares of
outstanding preferred stock and 2,062,500 shares of Class A special preferred
stock in exchange for an equal number of shares of common stock.
In June 1999, the Company (a) established a stock incentive plan whereby
1,500,000 shares of its common stock, subject to annual increase, has been
reserved for issuance of grants to employees and (b) commenced a private
placement offering (PPO) to sell up to 1,313,629 shares of its common stock at a
share price of $5.28. Proceeds to the Company from the sale of 284,090 shares of
common stock under the PPO have totaled $1,500,000, and costs associated with
the offering are expected to approximate $100,000, resulting in approximate net
proceeds of $1,400,000. With these proceeds, the Company began an initiative to
redesign its web-sites. In furtherance of the initiative, the Company has
engaged a recognized web design and development firm specializing in portal
design. Additionally, the Company has employed ten additional internal staff
members and has assembled a team of nine officers and directors experienced in
retail and internet commerce.
F-15
<PAGE>
TheBigHub.com, Inc.
Unaudited Consolidated Balance Sheet
As of July 31, 1999
<TABLE>
<S> <C>
ASSETS
Current Assets
Cash in Bank $ 171,305
-------------
Total Current Assets 171,305
Property and Equipment
Internet Search Engine and Web Site 5,971,584
Software 514,381
Machinery and Equipment 12,364
Less: Accumulated Depreciation -745,829
-------------
Net Property and Equipment 5,238,119
Other Assets
Deposits 15,800
-------------
Total Assets $ 5,939,605
=============
LIABILITIES & SHAREHOLDERS EQUITY
Current Liabilities
Accrued Expenses $ 203,956
Payables 98,287
-------------
Total Liabilities 302,243
Shareholders' Equity
Common Stock, $.001 Par Value, 25,000,000
Shares Authorized; 16,105,975 Shares Issued
and Outstanding 16,106
Additional Paid-in-Capital 8,588,122
Accumulated Deficit -2,967,866
-------------
Total Shareholder's Equity 5,636,362
-------------
Total Liabilities and Shareholders' Equity $ 5,938,605
=============
</TABLE>
F-16
<PAGE>
THE BIGHUB.COM, INC.
UNAUDITED CONSOLIDATED STATEMENT OF
OPERATIONS FOR THE NINE MONTHS
ENDED JULY, 31 1999
SALES 15,261
Costs of Sales 13,519
Gross Profit 1,742
OPERATING EXPENSES
Depreciation 679,211
Legal & Professional 130,722
Salaries 197,405
Travel 111,685
Web Design 179,055
Insurance 110,732
Other General & Administrative 373,839
------------
Total Expenses 1,782,649
Operating Loss (1,780,907)
Income Tax Expense (445,000)
Net (Loss) (2,225,907)
F-17
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED
- ------ ----------- --------
<S> <C> <C>
2.1 Agreement and Plan of Merger between Optima
Medical Group of Hileah, Inc. and Optima Medical
Group of No. Miami, Inc. and Coordinated
HealthCare, Inc., dated October 16, 1995.*
2.2 Articles of Merger of Optima Medical Group of
Hileah, Inc., Optima Medical Group of No. Miami,
Inc. and Coordinated HealthCare, Inc. dated
October 16, 1995.*
2.3 Agreement for Purchase and Sale of Assets by
and between Coordinated Healthcare, Inc. and
ALF Realty I, Inc. dated July 15, 1998.*
2.4 Agreement and Plan of Reorganization by and
between Happy Landings, Inc. and Isleuth.com, Inc.
dated September 3, 1998.*
3.1 Articles of Incorporation of
Coordinated HealthCare, Inc., filed
February 16, 1995.*
3.2 Articles of Amendment to Articles of
Incorporation of Coordinated HealthCare,
Inc. authorizing 5,000,000 shares of
Common Stock at a par value of $0.001
per share, filed January 17,1996.*
3.3 Articles of Amendment to Articles of
Incorporation of Coordinated HealthCare,
Inc., authorizing 20,000,000 shares of
Common Stock at a par value of $0.001
per share, filed June 24, 1996.*
3.4 Articles of Amendment to Articles of
Incorporation of Coordinated HealthCare,
Inc. authorizing 25,000,000 shares of
Common Stock at a par value of $0.001 per
share and 10,000 shares of Preferred Stock
at a par value of $0.001 per share, filed
July 29, 1998.*
3.5 Articles of Amendment to Articles of
Incorporation of Coordinated HealthCare,
Inc., changing the name of Coordinated
Healthcare, Inc. to Isleuth.com, Inc., filed
</TABLE>
<PAGE>
<TABLE>
<S> <C>
July 29, 1998.*
3.6 Articles of Amendment to Articles of
Incorporation of Isleuth.com, Inc. authorizing
25,000,000 shares of Special Preferred Stock at
a par value of $0.001 per share, filed October 15,
1998.*
3.7 Articles of Amendment to Articles of
Incorporation of Isleuth.com, Inc. designating
12,500,000 shares of the Special Preferred Stock
as Class A Special Preferred Stock at a par value
of $0.001 per share, filed December 28, 1998.*
3.8 Articles of Amendment to Articles of
Incorporation Isleuth.com, Inc., changing
the name of Isleuth.com, Inc. to The
BigHub.com, Inc., filed April 29, 1999. *
3.9 Bylaws of the registrant.*
10.1 Option Agreement by and between
Happy Landings, Inc. and Maverick Communication
Corp. dated August 3, 1998.*
10.2 Stock Purchase Agreement by and between
SJI Group, Inc. and Isleuth.com, Inc. dated
August 7, 1998.*
10.3 Employment Agreement by and between The
BigHub.com, Inc. and Patrick J. DeMicco
Dated July 9, 1999.*
10.4 Employment Agreement by and between The
BigHub.com, Inc. and Douglas Martinez
dated June 28, 1999.*
10.5 Employment Agreement by and between The
BigHub.com, Inc. and Chet Howard dated
June 14, 1999.*
10.6 Employment Agreement by and between The
BigHub.com, Inc. and Mark Doumani dated
June 30, 1999.*
10.7 Sublease Agreement dated ____________ between
The BigStore.com, Inc., a Delaware corporation
and The BigHub.com, Inc. a Florida corporation.**
10.8 Comarketing Agreement dated ___________ between
Deal-Time and the BigHub.com, Inc.**
</TABLE>
__________________________
* Being filed herewith
** To be filed by amendment
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant has caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
THE BIGHUB.COM, INC.
(Registrant)
Date: August 20, 1999
By: /s/ Chet Howard
------------------------------------
Chet Howard, Chief Financial Officer
<PAGE>
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
OPTIMA MEDICAL GROUP OF HIALEAH, INC.
(a Florida corporation)
AND
OPTIMA MEDICAL GROUP OF NO. MIAMI, INC.
(a Florida corporation)
AND
COORDINATED HEALTHCARE, INC.
(a Florida corporation)
Agreement and Plan of Merger dated October 16, 1995 between Optima Medical
Group of Hialeah, Inc., a Florida corporation ("Optima Hialeah"), a Florida
corporation ("Optima Hialeah"), Optima Medical Group of No. Miami, Inc., a
Florida corporation ("Optima No. Miami"), and Coordinated HealthCare, Inc., a
Florida corporation ("Coordinated").
AGREEMENT
In consideration of the mutual covenants set forth in this Agreement, the
parties agree as follows:
1. In accordance with the provisions of this Agreement and the Florida
Business Corporation Act, at the Effective Time (as defined below), Optima
Hialeah and Optima No. Miami shall be merged with and into Coordinated (the
"Merger"), the separate and corporate existence of each of Optima Hialeah and
Optima No. Miami shall cease, and Coordinated (the "Surviving Corporation")
shall continue its corporate existence pursuant to the laws of Florida under its
present name. (Optima Hialeah, Optima No. Miami and Coordinated are collectively
referred to as the "Constituent Corporation.")
2. The Merger shall become effective as of the date on which the articles
of merger are filed with the Secretary of State of Florida (the "Effective
Time").
3. The Surviving Corporation shall possess and retain every interest in
all assets and property of every description. The rights, privileges,
immunities, powers, franchises and authority, of a public as well as private
nature of each of the Constituent Corporations shall be vested in the Surviving
Corporation without further act or deed. The title to and any interest in all
real estate vested in any of the Constituent Corporations shall not revert or in
any way be impaired by reason of the Merger.
<PAGE>
4. All obligations belonging to or due to each of the Constituent
Corporations shall be vested in the Surviving Corporation without further act or
deed, and the Surviving Corporation shall be liable for all of the obligations
of each of the Constituent Corporations existing as of the Effective Time.
5. At the Effective Time, by virtue of the Merger and without any action
on the part of the parties or otherwise:
(a) each issued and outstanding share of the capital stock of Optima
Hialeah and Optima No. Miami shall be canceled, and each of the shareholders of
Optima Hialeah and Optima No. Miami shall receive an aggregate of 19 shares of
Coordinated capital stock; and
(b) each issued and outstanding share of the capital stock of
Coordinated shall remain issued and outstanding.
6. The articles of incorporation of Coordinated in effect immediately
prior to the Effective Time shall continue without change and be the articles of
incorporation of the Surviving Corporation.
7. This document may be executed in one or more counterparts, a complete
set of which shall constitute one original.
OPTIMA MEDICAL GROUP OF HIALEAH, INC.
Attested By: /s/ Alfredo Taule By: /s/ Alfredo Taule
--------------------------- -------------------------------
Alfredo E. Taule Alfredo E. Taule
Secretary President
OPTIMA MEDICAL GROUP OF NO. MIAMI, INC.
Attested By: /s/ Alfredo Taule By: /s/ Alfredo Taule
--------------------------- -------------------------------
Alfredo E. Taule Alfredo E. Taule
Secretary President
COORDINATED HEALTHCARE, INC.
Attested By: /s/ Thomas J. Taule By: /s/ Thomas J. Taule
--------------------------- -------------------------------
Thomas J. Taule Thomas J. Taule
Secretary President
-2-
<PAGE>
EXhibit 2.2
ARTICLES OF MERGER
OF
OPTIMA MEDICAL GROUP OF HIALEAH, INC.
(a Florida corporation)
OPTIMA MEDICAL GROUP OF NO. MIAMI, INC.
(a Florida corporation)
AND
COORDINATED HEALTHCARE, INC.
(a Florida corporation)
Pursuant to the provisions of Section 607.1105, Florida Statutes, these
Article of Merger provide that:
1. Optima Medical Group of Hialeah, Inc., a Florida corporation ("Optima
Hialeah"), and Optima Medical Group of No. Miami, Inc., a Florida corporation
("Optima No. Miami"), shall each be merged with and into Coordinated Health
Care, Inc., a Florida corporation ("Coordinated") which shall be the surviving
corporation.
2. The merger shall become effective as of the day on which these
Articles of Merger are filed by the Secretary of State of Florida (the
"Effective Time").
3. The Agreement and Plan of Merger dated October 16, 1995, pursuant to
which Optima Hialeah and Optima No. Miami shall be merged with and into
Coordinated (the "Merger"), was unanimously adopted by the shareholders of
Optima Hialeah and was unanimously adopted by the shareholders of Optima No.
Miami by resolutions adopted on October 16, 1995, and by the shareholders of
Coordinated by resolutions adopted October 16, 1995.
IN WITNESS WHEREOF, these Articles of Merger have been executed on behalf
of each of (Optima Health, Optima No. Miami and Coordinated by their authorized
officers as of October 16, 1995.
OPTIMA MEDICAL GROUP OF HIALEAH, INC.
By: /s/ Alfredo Taule
---------------------------------
Alfredo E. Taule, President
By: /s/ Alfredo Taule
---------------------------------
Alfredo E. Taule, Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
OPTIMA MEDICAL GROUP OF NO. MIAMI, INC.
By: /s/ Alfredo Taule
-----------------------------------
Alfredo E. Taule, President
By: /s/ Alfredo Taule
-----------------------------------
Alfredo E. Taule, Secretary
COORDINATED HEALTHCARE, INC.
By: /s/ Thomas J. Taule
-----------------------------------
Thomas J. Taule, President
By: /s/ Thomas J.Taule
-----------------------------------
Thomas J. Taule, Secretary
-2-
<PAGE>
EXHIBIT 2.3
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
-----------------------------------------
THIS AGREEMENT made this 15/th/ day of July, 1998 at Miami, Florida, by and
between COORDINATED HEALTHCARE, INC., a Florida corporation (hereinafter
referred to as the "Seller") and ALF REALTY I, INCORPORATED, a Florida
corporation (hereinafter referred to as the "Purchaser").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, hereto
agree as follows:
1. PURCHASE AND SALE
-----------------
Upon the terms and subject to all of the conditions in this Agreement and
the performance by each of the parties of their respective obligations, the
Purchaser agrees to purchase from the Seller and the Seller agrees to sell and
deliver to the Purchaser on the Closing Date (as hereinafter defined), the
Seller's Medical Center located at 23111 N.W. 2nd Avenue, North Miami, Florida
33169.
2. PURCHASE PRICE
--------------
Subject to the terms and conditions of this Agreement, and in full
consideration for the conveyance, transfer and delivery of the Medical Center,
the Purchaser hereby assumes all of the liabilities of the Seller, pursuant to
Paragraph 3 below (the "Purchase Price").
3. ASSUMPTION OF OBLIGATIONS BY PURCHASER
--------------------------------------
The Purchaser will assume and will discharge and be liable for any debts,
liabilities, or obligations of the Seller occurring on and after July 15, 1998,
including, without limitation, any (a) liabilities or obligations of the Seller
to its creditors or stockholders as such or as creditors; (b) liabilities or
obligations of the Seller with respect to any transactions occurring before the
Closing Date; (c) sales or income tax or other liabilities or obligations of the
Seller incurred in connection with the sale of its properties, assets or
business pursuant to this Agreement, or in connection with its liquidation or
dissolution; (d) federal, state and local taxes arising out of Seller's
operation of its business; or (e) any contingent liabilities or obligations of
the Seller. Notwithstanding the above, the Seller shall remain obligated to
Alfred E. Taule TTE the approximate amount of $67,000.00.
4. CLOSING AND CERTAIN RELATED MATTERS
-----------------------------------
(a) Date and Place: The Closing shall take place at Purchaser's attorney's
--------------
office on or before July 16, 1998 (the "Closing" or "Closing Date") unless
extended by mutual agreement of
1
<PAGE>
the parties. The Closing shall take place at 1570 Madruga, Suite 211, Coral
Gables, FL 33146.
(b) Failure to Timely Close: In the event that this transaction shall not
-----------------------
close by the Closing Date, unless an extension is agreed to and by the parties,
then all parties shall be relieved of all obligations, commitments, liabilities
and responsibilities hereunder and this Agreement shall be deemed null, void and
of no force and effect.
(c) Instruments of Conveyance and Transfer:
--------------------------------------
At the Closing the Seller will deliver to the Purchaser such bills of
sale, and containing full warranties of title, as shall be effective to vest in
the Purchaser good, absolute, and marketable title to Seller's Medical Center
being transferred to the Purchaser by the Seller, free and clear of all liens,
charges and encumbrances, and restrictions whatsoever to the extent that Seller
can do so without third party consent, except as provided herein, and where the
consent of a third party is required to effect such assignment, the parties
shall use their good faith reasonable efforts to secure same; and
(d) Further Assurances to Purchaser: From time to time, after the Closing,
-------------------------------
at the request of the Purchaser, the Seller will execute and deliver to the
Purchaser such other instruments of conveyance and transfer and take such other
action as the Purchaser may reasonably require more effectively to convey,
transfer to, and vest in the Purchaser, and to put the Purchaser in possession
of, any and all of the Seller's Medical Center to be conveyed, transferred, and
delivered to the Purchaser hereunder.
5. REPRESENTATIONS AND WARRANTIES BY SELLER
----------------------------------------
As material inducement to the Purchaser to execute and perform its
obligations under this Agreement, the Seller hereby represents and warrants to
the Purchaser, as follows:
(a) Changes: Between the date of the execution of this Contract and the
-------
Closing date, the Seller will not:
(i) Incur any obligations or liabilities, absolute, accrued,
contingent, or otherwise, except current liabilities incurred in the ordinary
course of business;
(ii) Mortgage, pledge, subject to lien, charge, or encumbrance, or
grant a security interest in, any of the assets, tangible or intangible to be
sold to Purchaser hereunder;
(iii) Cancel any debt or claim or sell or transfer any of the assets
or properties, that are to be sold to Purchaser hereunder, except in the
ordinary course of business;
2
<PAGE>
(iv) Suffer any damage, destruction, or loss (whether or not covered
by insurance) affecting its properties, business, or prospects, or waive any
rights of substantial value; and/or
(v) Enter into any transaction other than in the ordinary course of
business.
(b) Title to Seller's Medical Center: At the Closing, the Seller to the
--------------------------------
best of its knowledge will have good, absolute, and marketable title to the
Seller's Medical Center being sold to the Purchaser pursuant to this Agreement
subject to no lease, mortgage, pledge, lien, charge, security interest,
encumbrance, or restriction whatsoever, except as disclosed pursuant to this
Agreement.
(c) No Default: The Seller is not in default in any respect under any of
----------
the contracts, agreements, leases, documents, or other commitments to which it
is a party or otherwise bound.
(d) No Brokerage: The Seller and Purchaser have not employed any broker or
------------
finder nor have incurred or will incur any broker's, finder's or similar fees,
commissions or expenses, in connection with the transactions contemplated by
this Agreement.
(e) Litigation: There are no actions, suits or proceedings pending or
----------
threatened against the Seller or affecting any of its properties or rights, at
law or in equity, or before any federal, state, municipal or other governmental
agency or instrumentality, domestic or foreign, nor is the Seller aware of any
facts which to its knowledge might result in any such action, suit or
proceeding. Moreover, the Seller is not in default with respect to any order or
decree of any court or of any such governmental agency or instrumentality.
(f) Compliance with Law and Other Instruments: The Seller is not in
-----------------------------------------
violation of any term or provision of any charter, bylaw, mortgage, indenture,
contract, agreement, instrument, judgment, decree, order, statute, rule or
regulations, and the execution and delivery of and performance and compliance
with this Agreement will not result in the violation of or be in conflict with
or constitute a default under any such term or provision or result in the
creation of any mortgage, lien, encumbrance, or charge upon any of the
properties or assets of the Seller pursuant to any such term or provision.
(g) Disclosure: No representation or warranty by the Seller in this
----------
Agreement or in any writing attached hereto, contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact (of
which the Seller has knowledge or notice) required to make the statements herein
or therein contained not misleading.
(h) Taxes: Seller has filed or will file all required Federal and State
-----
Income Tax Returns and has paid or will pay all taxes as shown on such Returns.
The Federal Income Tax Returns of
3
<PAGE>
Seller have never been examined or audited by the Internal Revenue Service.
Adequate provision has been made for the payment of all accrued and unpaid
Federal, State or other taxes of whatever kind, whether or not yet due and
payable or whether or not disputed.
(i) Seller in Good Standing: Seller is duly organized, existing and in
-----------------------
good standing under the laws of the State of Florida.
6. ORGANIZATION OF PURCHASER
-------------------------
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and has all requisite corporate
power and authority to enter into this Agreement, and to carry out and perform
the terms and provisions of this Agreement.
7. CONDITIONS PRECEDENT TO THE CLOSING BY PURCHASER
------------------------------------------------
The obligation of the Purchaser to consummate this Agreement is subject to
and conditioned upon the satisfaction, at or prior to the Closing, of each and
every of the following conditions:
(a) Compliance with Agreement: All the terms and conditions of this
-------------------------
Agreement to be complied with and performed by the Seller on or before the
Closing Date, including the delivery to the Purchaser of all schedules,
documents and instruments required to be delivered to Purchaser by this
Agreement, shall have been complied with and performed.
(b) Representations and Warranties: The representations and warranties of
------------------------------
the Seller in Paragraph (5) hereof shall be deemed to have been made again on
the Closing Date and be then true and correct, subject to any changes
contemplated by this Agreement. There shall have been no materially adverse
change in the financial condition of the Seller.
(c) Transfer/Approval of all Governmental License(s): The Seller shall
------------------------------------------------
use its best efforts to effectuate the transfer and/or help the Purchaser obtain
all required governmental license(s) required pursuant to this Agreement. In
the event the Purchaser shall not receive all required license(s) before the
Closing, then all parties shall use their best efforts to have all governmental
license(s) be considered effective, as of the date of the Closing.
8. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
-----------------------------------------------------
The representations and warranties contained in and made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and shall
be deemed to have been made again at Closing. All representations and
warranties contained in this Agreement shall survive the Closing for a period of
three (3) years thereafter.
4
<PAGE>
9. EXPENSES
--------
Each of the parties shall bear all of their own expenses incurred in
connection with this Agreement and in the consummation of the transactions
contemplated hereby and in preparation hereof.
10. AMENDMENT AND WAIVER
--------------------
This Agreement may be amended or modified at any time and in all respects,
or any provisions may be waived by an instrument in writing executed by the
Purchaser and the Seller, or either of them in the case of a waiver.
11. SEVERABILITY
------------
The invalidity of any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall not affect
the enforceability of the remaining portions of this Agreement or any part
hereof, all of which are inserted conditionally on their being valid in law,
and, in the event that any one or more of the words, phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
12. CHOICE OF LAW
-------------
It is the intention of the parties that the laws of the State of Florida
shall govern the validity of this Agreement, the construction of its terms, and
the interpretation of the rights and duties of the parties.
13. SECTIONS AND OTHER HEADINGS
---------------------------
Sections, paragraphs, and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. COUNTERPART EXECUTION
---------------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute but one
and the same instrument.
15. GENDER
------
All personal pronouns used in this Agreement shall include the other
genders whether used in the masculine, feminine or neuter gender, and the
singular shall include the plural whenever and as often as may be appropriate.
16. PARTIES IN INTEREST
-------------------
5
<PAGE>
All the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of, and be enforceable by, the Seller and the Purchaser and
their successors and assigns.
17. INTEGRATED AGREEMENT
--------------------
This Agreement and the agreements attached as Exhibits hereto, constitute
the entire agreement between the parties hereto, and there are no agreements,
understandings, restrictions, warranties, or representations between the parties
other than those set forth herein or for which provisions have been made herein.
The rights, duties, responsibilities, representations and warranties of the
parties hereto and the covenants and agreements herein contained shall survive
the Closing and shall continue to bond the parties hereto, and shall continue in
full force and effect until each and every obligation of the parties hereto,
pursuant to this Agreement any documents or agreements incorporated herein by
reference, shall be fully performed.
18. ASSIGNABILITY OF INTEREST
-------------------------
Purchaser shall not have the right to assign its rights under this
Agreement, without the written permission from the Seller. Seller shall not
have the right to assign its rights under this Agreement, without the written
permission from the Purchaser.
19. ATTORNEY'S FEES AND COSTS
-------------------------
In the event of any litigation arising out of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees and
costs from the non-prevailing party.
20. LITIGATION
----------
In the event of any litigation arising out of or related to this Agreement
and the consummation of the transactions contemplated hereby, venue shall be
proper only in Dade County, Florida.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day
and month above-written.
AS TO SELLER: COORDINATED HEALTHCARE, INC.,
a Florida corporation
By: /s/ Thomas J. Taule
----------------------------
THOMAS J. TAULE, President
AS TO PURCHASER: ALF Realty I, Incorporated,
a Florida corporation
By: /s/ Alfred E. Taule
----------------------------
ALFRED E. TAULE, President
6
<PAGE>
EXHIBIT 2.4
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
THIS AGREEMENT made this 3/rd/ day of September, 1998 at Miami, Florida, by
and between HAPPY LANDINGS, INC., a Delaware corporation (hereinafter referred
to as "HLI") and ISLEUTH. COM, INC., a Florida corporation (hereinafter
referred to as "ICI").
NOW, THEREFORE, in order to consummate the foregoing Plan of reorganization
and in consideration of the mutual covenants and conditions contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, hereto agree as
follows:
1. THE EXCHANGE
------------
Upon the terms and subject to all of the conditions in this Agreement and
the performance by each of the parties of their respective obligations, HLI
agrees to transfer to ICI on the Closing Date (as hereinafter defined), that
certain Internet search engines and related technology including "Internet
Sleuth" and certain software and intellectual property rights related to such
Search engines and related technologies (the "Property"), pursuant to the Option
Agreement dated the 3rd day of August, 1998, by and between HAPPY LANDINGS, INC.
and MAVERICK COMMUNICATIONS CORP., which Agreement shall be incorporated herein.
Subject to the terms and conditions of this Agreement, and in full
consideration for the conveyance, transfer and delivery of the Property, ICI
hereby shall pay the Option Fee, pursuant to the Option Agreement and shall
assume the following liabilities: $10,000.00 payment shall be made to Howard
Birkett for the "Sleuth Maintenance" program currently being utilized by HLI;
Payment for HLI's unpaid legal fees, in an amount to be determined, not to
exceed $30,000.00 and Payment to Howard Birkett for services rendered in the
development of the NT Platform search technology if ICI, in its sole discretion
and option, decides to implement this technology. In addition to the above, ICI
shall issue to HLI or its assignee 200,000 shares of Common Stock, with said
Common Stock being restricted pursuant to Rule 144.
ICI will assume and will discharge and be liable for any debts,
liabilities, or obligations of HLI occurring on and after September 4, 1998,
including, without limitation, any (a) liabilities or obligations of HLI to its
creditors or stockholders as such or as creditors; (b) liabilities or
obligations of HLI with respect to any transactions occurring before the Closing
Date; (c) sales or income tax or other liabilities or obligations of HLI
incurred in connection with the sale of its properties, assets or business
pursuant to this Agreement, or in connection with its liquidation or
dissolution; (d) federal, state and local taxes arising out of HLI's operation
of its business; or (e) any contingent liabilities or obligations of HLI.
Notwithstanding the above, Sally Elliot shall be indemnified and held harmless
by ICI for the litigation with MRI.
1
<PAGE>
2. DISTRIBUTION AND LIQUIDATION
----------------------------
In accordance with the applicable statues of the States of Florida and
Delaware, and after the dissolution of HLI shall have been authorized by the
required vote of the shareholders of HLI at a meeting thereof called for that
purpose by the Board of Directors of HLI:
(a) HLI shall distribute the Isleuth Shares and $120,000.00 (less any
anticipatory distribution of cash) to its shareholders according to their
respective interests;
(b) The other assets of HLI, or the proceeds of the sale thereof, shall be
distributed to the shareholders of HLI according to their respective interests,
in one or more distributions in liquidation of HLI, the amounts, times, and
manner of each such distribution, and the respective record dates for
determining the shareholders entitled to such distributions, to be as the Board
of Directors of HLI may provide; and
(c) Upon completing the liquidation of HLI, HLI shall be dissolved.
3. CLOSING AND CERTAIN RELATED MATTERS
-----------------------------------
(a) Date and Place: The Closing shall take place at ICI's attorney's
--------------
office on or before September 4, 1998 (the "Closing" or "Closing Date") unless
extended by mutual agreement of the parties. Notwithstanding the above, the
Closing may be made by mail and/or telefax.
(b) Failure to Timely Close: In the event that this transaction shall not
-----------------------
close by the Closing Date, unless an extension is agreed to and by the parties,
then all parties shall be relieved of all obligations, commitments, liabilities
and responsibilities hereunder and this Agreement shall be deemed null, void and
of no force and effect.
(c) Instruments of Conveyance and Transfer: At the Closing HLI will
--------------------------------------
deliver to ICI such documentation, and containing full warranties of title, as
shall be effective to vest in ICI good, absolute, and marketable title to HLI's
Property being transferred to ICI by HLI, free and clear of all liens, charges
and encumbrances, and restrictions whatsoever to the extent that HLI can do so
without third party consent, except as provided herein, and where the consent of
a third party is required to effect such assignment, the parties shall use their
good faith reasonable efforts to secure same; and
(d) Further Assurances to ICI: From time to time, after the Closing, at
-------------------------
the request of ICI, HLI will execute and deliver to ICI such other instruments
of conveyance and transfer and take such other action as ICI may reasonably
require more effectively to
2
<PAGE>
convey, transfer to, and vest in ICI, and to put ICI in possession of, any and
all of HLI's Property to be conveyed, transferred, and delivered to ICI
hereunder.
4. REPRESENTATIONS AND WARRANTIES BY HLI
-------------------------------------
As material inducement to ICI to execute and perform its obligations under
this Agreement, HLI hereby represents and warrants to ICI, as follows:
(a) Changes: Between the date of the execution of this Contract and the
-------
Closing date, HLI will not:
(i) Incur any obligations or liabilities, absolute, accrued,
contingent, or otherwise, except current liabilities incurred in the ordinary
course of business;
(ii) Mortgage, pledge, subject to lien, charge, or encumbrance, or
grant a security interest in, any of the assets, tangible or intangible to be
sold to ICI hereunder;
(iii) Cancel any debt or claim or sell or transfer any of the assets
or properties, that are to be sold to ICI hereunder, except in the ordinary
course of business;
(iv) Suffer any damage, destruction, or loss (whether or not covered
by insurance) affecting its properties, business, or prospects, or waive any
rights of substantial value; and/or
(v) Enter into any transaction other than in the ordinary course of
business.
(b) Title to HLI's Property: At the Closing, HLI to the best of its
-----------------------
knowledge will have good, absolute, and marketable title to HLI's Property being
sold to ICI pursuant to this Agreement subject to no lease, mortgage, pledge,
lien, charge, security interest, encumbrance, or restriction whatsoever, except
as disclosed pursuant to this Agreement.
(c) No Default: HLI is not in default in any respect under any of the
----------
contracts, agreements, leases, documents, or other commitments to which it is a
party or otherwise bound.
(d) No Brokerage: HLI and ICI have not employed any broker or finder nor
------------
have incurred or will incur any broker's, finder's or similar fees, commissions
or expenses, in connection with the transactions contemplated by this Agreement.
(e) Litigation: Except as disclosed in this Agreement, there are no
----------
actions, suits or proceedings pending or threatened against HLI or affecting any
of its properties or rights, at law or in equity, or before any federal, state,
municipal or other governmental agency or instrumentality, domestic or foreign,
nor is HLI aware of any facts which to its knowledge might result in any such
action, suit or proceeding. Moreover, HLI is not in default
3
<PAGE>
with respect to any order or decree of any court or of any such governmental
agency or instrumentality.
(f) Compliance with Law and Other Instruments: HLI is not in violation of
-----------------------------------------
any term or provision of any charter, bylaw, mortgage, indenture, contract,
agreement, instrument, judgment, decree, order, statute, rule or regulations,
and the execution and delivery of and performance and compliance with this
Agreement will not result in the violation of or be in conflict with or
constitute a default under any such term or provision or result in the creation
of any mortgage, lien, encumbrance, or charge upon any of the properties or
assets of HLI pursuant to any such term or provision.
(g) Disclosure: No representation or warranty by HLI in this Agreement or
----------
in any writing attached hereto, contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact (of which HLI has
knowledge or notice) required to make the statements herein or therein contained
not misleading.
(h) Taxes: HLI has filed or will file all required Federal and State
-----
Income Tax Returns and has paid or will pay all taxes as shown on such Returns.
The Federal Income Tax Returns of HLI have never been examined or audited by the
Internal Revenue Service. Adequate provision has been made for the payment of
all accrued and unpaid Federal, State or other taxes of whatever kind, whether
or not yet due and payable or whether or not disputed.
(i) HLI in Good Standing: HLI is duly organized, existing and in good
--------------------
standing under the laws of the State of Delaware.
5. ORGANIZATION OF ICI
-------------------
ICI is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida and has all requisite corporate power and
authority to enter into this Agreement, and to carry out and perform the terms
and provisions of this Agreement.
6. CONDITIONS PRECEDENT TO THE CLOSING BY ICI
------------------------------------------
The obligation of ICI to consummate this Agreement is subject to and
conditioned upon the satisfaction, at or prior to the Closing, of each and every
of the following conditions:
(a) Compliance with Agreement: All the terms and conditions of this
-------------------------
Agreement to be complied with and performed by HLI on or before the Closing
Date, including the delivery to ICI of all schedules, documents and instruments
required to be delivered to ICI by this Agreement, shall have been complied with
and performed.
(b) Representations and Warranties: The representations and warranties of
------------------------------
HLI in Paragraph (5) hereof shall be deemed to have been made again on the
Closing Date and be then true and correct, subject to any changes contemplated
by this Agreement. There shall
4
<PAGE>
have been no materially adverse change in the financial condition of HLI.
(c) Transfer/Approval of all Governmental License(s): HLI shall use its
------------------------------------------------
best efforts to effectuate the transfer and/or help ICI obtain all required
governmental license(s) required pursuant to this Agreement. In the event ICI
shall not receive all required license(s) before the Closing, then all parties
shall use their best efforts to have all governmental license(s) be considered
effective, as of the date of the Closing.
7. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
-----------------------------------------------------
The representations and warranties contained in and made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and shall
be deemed to have been made again at Closing. All representations and
warranties contained in this Agreement shall survive the Closing for a period of
three (3) years thereafter.
8. EXPENSES
--------
Each of the parties shall bear all of their own expenses incurred in
connection with this Agreement and in the consummation of the transactions
contemplated hereby and in preparation hereof.
9. AMENDMENT AND WAIVER
--------------------
This Agreement may be amended or modified at any time and in all respects,
or any provisions may be waived by an instrument in writing executed by ICI and
HLI, or either of them in the case of a waiver.
10. SEVERABILITY
------------
The invalidity of any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall not affect
the enforceability of the remaining portions of this Agreement or any part
hereof, all of which are inserted conditionally on their being valid in law,
and, in the event that any one or more of the words, phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
11. CHOICE OF LAW
-------------
It is the intention of the parties that the laws of the State of Florida
shall govern the validity of this Agreement, the construction of its terms, and
the interpretation of the rights and duties of the parties.
12. SECTIONS AND OTHER HEADINGS
---------------------------
5
<PAGE>
Sections, paragraphs, and other headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. COUNTERPART EXECUTION
---------------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute but one
and the same instrument.
14. GENDER
------
All personal pronouns used in this Agreement shall include the other
genders whether used in the masculine, feminine or neuter gender, and the
singular shall include the plural whenever and as often as may be appropriate.
15. PARTIES IN INTEREST
-------------------
All the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of, and be enforceable by, HLI and ICI and their successors
and assigns.
16. INTEGRATED AGREEMENT
--------------------
This Agreement and the agreements attached as Exhibits hereto, constitute
the entire agreement between the parties hereto, and there are no agreements,
understandings, restrictions, warranties, or representations between the parties
other than those set forth herein or for which provisions have been made herein.
The rights, duties, responsibilities, representations and warranties of the
parties hereto and the covenants and agreements herein contained shall survive
the Closing and shall continue to bond the parties hereto, and shall continue in
full force and effect until each and every obligation of the parties hereto,
pursuant to this Agreement any documents or agreements incorporated herein by
reference, shall be fully performed.
17. ASSIGNABILITY OF INTEREST
-------------------------
ICI shall not have the right to assign its rights under this Agreement,
without the written permission from HLI. HLI shall not have the right to assign
its rights under this Agreement, without the written permission from ICI.
18. ATTORNEY'S FEES AND COSTS
-------------------------
In the event of any litigation arising out of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees and
costs from the non-prevailing party.
19. LITIGATION
----------
6
<PAGE>
In the event of any litigation arising out of or related to this Agreement
and the consummation of the transactions contemplated hereby, venue shall be
proper only in Dade County, Florida.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day
and month above-written.
AS TO HLI: HAPPY LANDINGS, INC.,
a Delaware corporation
By:/s/ SALLY ELLIOT
--------------------------
SALLY ELLIOT, President
AS TO ICI: ISLEUTH. COM, INC.,
a Florida corporation
By:/s/ JOHN J. BENNETT
--------------------------
JOHN J. BENNETT, President
7
<PAGE>
EXHIBIT 3.1
ARTICLES OF INCORPORATION
of
Coordinated Healthcare, Inc.
The undersigned hereby adopts the following Articles of Incorporation
for the purpose of forming a corporation under the provisions of Chapter 607
Florida Statutes:
ARTICLE I. NAME
---------------
The name of this corporation is Coordinated Healthcare, Inc. (the
"Corporation").
ARTICLE II. - MAILING ADDRESS
-----------------------------
The mailing address of the Corporation is:
2050 West 56 Street
Suite 123
Hialeah, Florida 33016
ARTICLE III. - CAPITAL STOCK
----------------------------
The maximum number of shares which this Corporation is authorized to
have outstanding at any time is 10,000 shares of Common Stock having a par value
of $0.01 per share.
ARTICLE IV. - INITIAL REGISTERED
OFFICE AND AGENT
--------------------------------
The initial registered office of this Corporation shall be at 2601 S.
Bayshore Drive, Suite 1600, Miami, Florida 33133, and the initial registered
agent of this Corporation shall be A Z REGISTERED AGENT CORPORATION, 2601 S.
Bayshore Drive, Suite 1600, Miami, Florida 33133.
ARTICLE V. - INCORPORATOR
-------------------------
The name and street address of the person signing these Articles of
Incorporation is Arnold M. Jaffee, 2601 S. Bayshore Drive, Miami, Florida 33133.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation on February 15, 1995.
THIS INSTRUMENT PREPARED BY: /s/ Arnold M. Jaffee
----------------------------------------
ARNOLD M. JAFFEE, ESQ. Arnold M. Jaffee, Incorporator
Adorno & Zeder, 2601 S. Bayshore Drive, Suite 1600
Miami, Florida 33133 (305-858-5555)
Florida Bar No:358487
<PAGE>
EXHIBIT 3.2
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
COORDINATED HEALTHCARE, INC.
The undersigned, President of COORDINATED HEALTHCARE, INC., a corporation
orgainzed and existing under and by virtue of the Florida Business Corporation
Act (the "Corporation"), does hereby certify:
1. The name of the Corporation is COORDINATED HEALTHCARE, INC.
2. The following provisions of the Articles of Incorporation of the
Corporation be and they hereby are amended in the following particulars:
Article III be and it hereby is amended in its entirety to read as
follows:
"The maximum number of shares which this Corporation is authorized to have
outstanding at any time is 5,000,000 shares of Common Stock having a par
value of $0.01 per share."
3. The foregoing amendment was adopted all of the shareholders and the
sole director of the Corporation by joint written consent dated January 12,
1996.
IN WITNESS WHEREOF, the undersigned President of the Corporation has
executed these Articles of Amendment this 12 day of January, 1996.
This document prepared by:
Arnold M. Jaffee
Florida Bar # 358487 /s/ Thomas J. Taule
---------------------------
2601 S. Bayshore Dr. Thomas J. Taule, President
Suite 1600
Miami, FL 33133
(305) 858-5555
<PAGE>
EXHIBIT 3.3
ARTICLES OF AMENDMENT
FOR
COORDINATED HEALTHCARE, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this corporation is:
COORDINATED HEATHCARE, INC. (the "Corporation").
2. The Articles of Incorporation are amended by striking therefrom Article
III, in its entirety, and inserting in place thereof the following:
ARTICLE III - CAPITAL STOCK
---------------------------
This Corporation is authorized to issue Common Stock. The number of shares
of Common Stock authorized to be issued is twenty million (20,000,000) and shall
have a par value of $.001 per share.
1. Liquidation and Dividend Rights.
-------------------------------
1.1 Liquidation Rights. In the event of any liquidation, dissolution
------------------
or winding up of this Corporation, whether voluntary or involuntary, the holders
of the Common Stock shall be entitled to 100% of the assets of this Corporation
available for distribution to its shareholders, whether such assets are capital,
surplus or earnings, such percentage to be divided pro rata among each of the
holders of the shares of Common Stock according to the number of shares of
Common Stock held by each such holder.
1.2 Reorganization. A reorganization, consolidation or merger of
--------------
this Corporation with or into any other corporation or corporations or other
entity or entities, or a sale, conveyance, lease, transfer or other disposition
of all or substantially all the properties and assets of this Corporation, or a
sale or other transfer, in a single transaction or in a series of related
transactions, of 50% or more of the outstanding shares of Common Stock of this
Corporation, shall not be deemed a liquidation, dissolution or winding up of
this Corporation for the purpose of this Article III.
1.3 Valuation. Whenever the distribution provided for herein shall
---------
be paid in property other than cash; the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of this Corporation.
1.4 Dividend Rights. The holders of the then outstanding Common
---------------
Stock shall be entitled to receive 100% of any dividends, when and as declared
by the Board of Directors of this Corporation, and out of any funds and assets
legally available therefore, such percentage to be divided pro rata among each
of the holders of the Common Stock according to the number of shares of Common
Stock held by each such holder. Such dividends may be
1
<PAGE>
payable quarterly or otherwise as the Board of Directors of this Corporation may
from time to time determine.
2. Voting Rights. Except as otherwise required by law, the rights of the
-------------
holders of Common Stock to vote on any matters submitted to shareholders of this
Corporation shall be as follows: each holder of shares of Common Stock shall be
entitled to vote on all matters submitted to a vote of the shareholders of this
Corporation and shall be entitled to one (1) vote for each share of Common Stock
held at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
3. Creation of Class "A" Warrants and Reserving shares of Common Stock for
-----------------------------------------------------------------------
Issuance upon Exercise of the Warrants.
- --------------------------------------
The Corporation hereby creates an issue of Class "A" Warrants, granting the
right to purchase shares of Common Stock of the Corporation, as set forth herein
and in the form of Class "A" Warrant adopted by the Board of Directors of the
Corporation.
The Corporation hereby authorizes the issuance of Class "A" Warrants,
granting the right to a holder of Class "A" Warrants to purchase one (1) share
of Common Stock of the Corporation for each Warrant held. The right of the
holders of the Class "A" Warrants to purchase shares of Common Stock shall
commence on the issuance of the Common Stock and shall expire on the 31st day of
March, 1997.
The Corporation shall have sufficient shares of Common Stock of the
Corporation authorized. Said authorized Shares of Common Stock shall be reserved
for the sale to holders of said Class "A" Warrants, or their assigns. Said
reserved shares of Common Stock shall only be issued upon the exercise of said
Warrants.
The holders of the Warrants may exercise their Class "A" Warrants by
remitting 1.00 per share of Common Stock desired. Shares of Common Stock of the
Corporation are hereby appropriated, reserved, and irrevocably set aside until
March 31, 1997, for the purpose of satisfying the rights of the bearers of said
Warrants by the sale to them of said shares of Common Stock, in accordance with
the terms and provisions thereof; and that as an when said Warrants are
exercised by the bearers thereof, and the price for said shares of Common Stock
are paid, as provided in said Warrants, the Corporation shall issue, out of said
shares of Common Stock, certificates for shares of Common Stock, in satisfaction
of said Warrants.
The Articles of Incorporation are amended by adding Article VI, as follows:
2
<PAGE>
ARTICLE VI - INDEMNIFICATION
----------------------------
Except as may otherwise be provided in the Bylaws of this Corporation, this
Corporation shall indemnify its Incorporators, Officers and Directors to the
fullest extent permitted by law either now or hereafter in effect.
The foregoing amendment was adopted by the members of the Board of
Directors and the Stockholders present at the Special Joint Meeting of the
Shareholders and Board of Directors, pursuant to Florida Statutes, on the 4th
day of January, 1996.
There are no other Stockholders or Directors entitled to vote on this
Amendment.
IN WITNESS WHEREOF, Thomas J. Taule, President and Director of the
Corporation, Alfred Taule, Secretary and Director of the Corporation, Frederic
D. Giffords, Director of the Corporation and Mario S. Gonzalez, Director of the
Corporation, have executed these Articles of Amemdment this 4th day of January,
1996.
/s/ Thomas J. Taule
----------------------------------------
Thomas J. Taule, President and Director
/s/ Alfred Taule
----------------------------------------
Alfred Taule, Secretary and Director
/s/ Frederic D. Giffords
----------------------------------------
Frederic D. Giffords, Director
/s/ Mario S. Gonzalez
----------------------------------------
Mario S. Gonzalez, Director
STATE OF FLORIDA )
) ss:
COUNTY OF DADE )
The foregoing Articles of Amendment was acknowledged before me the day and
year last above written by Thomas J. Taule, President and Director of the
Corporation, Alfred Taule, Secretary and Director of the Corporation, Frederic
D. Giffords, Director of the Corporation and Mario S. Gonzalez, Director of the
Corporation, on behalf of the Corporation.
/s/ [SIGNATURE ILLEGIBLE]^^
----------------------------------------
Notary Public, State of Florida
My Commission expires:
3
<PAGE>
EXHIBIT 3.4
ARTICLES OF AMENDMENT
FOR
COORDINATED HEALTHCARE, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this corporation is:
COORDINATED HEALTHCARE, INC.
2. The Articles of Incorporation are amended by striking therefrom
Article III, in its entirety, and inserting in place thereof the following:
ARTICLE III - CAPITAL STOCK
---------------------------
This Corporation is authorized to issue two classes of capital stock
designated "Common Stock" and "Preferred Stock", respectively. The number of
shares of Common Stock authorized to be issued is twenty-five million
(25,000,000) and shall have a par value of $.001 per share. The number of shares
of Preferred Stock authorized to be issued is ten million (10,000,000) and shall
have a par value of $.001 per share.
1. Liquidation and Dividend Rights.
--------------------------------
1.1 Liquidation Rights. In the event of any liquidation, dissolution
------------------
or winding up of this corporation, whether voluntary or involuntary, (1) the
holders of the Common Stock shall be entitled to ninety nine (99%) percent of
the assets of this corporation available for distribution to its shareholders,
whether such assets are capital, surplus or earnings, such percentage to be
divided pro rata among each of the holders of the Common Stock according to the
number of shares of Common Stock held by each such holder; and (ii) the holders
of the Preferred Stock shall be entitled to one (1%) percent of the assets of
this corporation available for distribution to its shareholders, whether such
assets are capital, surplus or earnings, such percentage to be divided pro rata
among each of the holders of the Preferred Stock according to the number of
shares of Preferred Stock held by each such holder. The holders of Preferred
Stock shall not receive a preference of liquidation.
1.2 Reorganization. A reorganization, consolidation or merger of
---------------
this corporation with or into any other corporation or corporations or other
entity or entities, or a sale, conveyance,
1
<PAGE>
lease, transfer or other disposition of all or substantially all the properties
and assets of this corporation, or a sale or other transfer, in a single
transaction or in a series of related transactions, of 50% or more of the
outstanding capital stock of this corporation, shall not be deemed a
liquidation, dissolution or winding up of this corporation for the purpose of
this Article.
1.3 Valuation. Whenever the distribution provided for herein shall
----------
be paid in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of this corporation.
1.4 Dividend Rights. The holders of the then outstanding Common
----------------
Stock shall be entitled to receive ninety nine (99%) percent of any dividends,
when and as declared by the Board of Directors of this corporation, and out of
any funds and assets legally available therefore, such percentage to be divided
pro rata among each of the holders of the Common Stock according to the number
of shares of Common Stock held by each such holder. The holders of the then
outstanding Preferred Stock shall be entitled to receive one (1%) percent of any
dividends, when and as declared by the Board of Directors of this corporation,
and out of any funds and assets legally available therefor, such percentage to
be divided pro rata among each of the holders of the Preferred Stock according
to the number of shares of Preferred Stock held by each such holder. Such
dividends may be payable quarterly or otherwise as the Board of Directors of
this corporation may from time to time determine. The holders of Preferred Stock
shall not receive a preference in the event a dividend is declared.
2. Voting Rights. Except as otherwise required by law, the rights of the
--------------
holders of Common Stock and Preferred Stock to vote on any matters submitted to
shareholders of this corporation shall be as follows:
2.1 Common Stock. Each holder of shares of Common Stock shall be
-------------
entitled to vote on all matters submitted to a vote of the shareholders of this
corporation and shall be entitled to one (1) vote for each share of Common Stock
held at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
2.2 Preferred Stock. Each holder of shares of Preferred Stock shall
----------------
be entitled to vote on all matters submitted to a vote of the shareholders of
this corporation and shall be entitled to one (1) vote for each share of
Preferred Stock held at the record date for the determination of the
shareholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited.
2
<PAGE>
2.3 Class Voting. The holders of the Common Stock and the holders of
------------
the Preferred Stock shall vote together as a single class.
3. Redemption of Preferred Stock. At the option of the Corporation, the
------------------------------
Corporation may redeem all of the Preferred Stock. In the event of said
Redemption, each share of Preferred Stock shall be exchanged for one (1) share
of the Corporation's Common Stock.
4. Other Rights. Except as otherwise provided in this Article, the rights of
-------------
the holders of the Common Stock and the rights of the holders of the Preferred
Stock shall be identical.
The foregoing amendment was adopted by all of the Directors of the
Corporation at a Special Meeting of Directors, pursuant to Florida Statutes, on
the 27th day of July, 1998. The foregoing amendment was adopted by a majority
vote of the Stockholders present at the Board of Directors meeting, pursuant to
Florida Statutes, on the 27th day of July, 1998. A majority vote of the
Stockholders is sufficient for approval of these Articles of Amendment.
IN WITNESS WHEREOF, the undersigned President and Secretary of this
corporation has executed these Articles of Amendment this 27th day of July,
1998.
___________________________
Thomas J. Taule, President
___________________________
Alfred E. Taule, Secretary
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me the day and year last
above written by Thomas J. Taule, President and Alfred E. Taule, Secretary of
the above-named Florida corporation, on behalf of the corporation.
________________________________
Notary Public, State of Florida
My Commission expires:
3
<PAGE>
EXHIBIT 3.5
ARTICLES OF AMENDMENT
OF
COORDINATED HEALTHCARE, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this organization is:
COORDINATED HEALTHCARE, INC.
2. The Articles of Incorporation are amended by striking the name
COORDINATED HEALTHCARE, INC. from Article I and inserting in place thereof the
following:
ARTICLE I - NAME
The name of this organization shall be:
ISLEUTH. COM, INC.
3. The foregoing amendment was adopted by a unanimous vote of the members
of the Board of Directors present at the Board of Directors meeting, pursuant to
Florida Statutes, on the 27th day of July, 1998.
4. The foregoing amendment was adopted by a majority vote of the
Stockholders present at the Board of Directors meeting, pursuant to Florida
Statutes, on the 27th day of July, 1998. A majority vote of the Stockholders is
sufficient for approval of these Article of Amendment.
5. There are no other Directors entitled to vote on this amendment.
IN WITNESS WHEREOF, the undersigned President and Secretary of this
Corporation have executed these Articles of Amendment this 27th day of July,
1998.
/s/ Thomas J. Taule
--------------------------------------------
THOMAS J. TAULE, President
/s/ Alfred E. Taule
--------------------------------------------
ALFRED E. TAULE, Secretary
<PAGE>
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me the day and year last
above written by THOMAS J. TAULE and ALFRED E. TAULE (both personally known),
President and Secretary of the above-named Florida corporation, on behalf of the
Corporation.
/s/ David M. Glassberg
--------------------------------------------
Notary Public, State of Florida
My Commission expires:
<PAGE>
EXHIBIT 3.6
ARTICLES OF AMENDMENT
FOR
ISLEUTH. COM, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this corporation is:
ISLEUTH. COM, INC.
2. The Articles of Incorporation and Articles of Amendment are amended by
striking therefrom Article III, in its entirety, and inserting in place thereof
the following:
ARTICLE III - CAPITAL STOCK
---------------------------
This Corporation is authorized to issue three classes of capital stock
designated "Common Stock", "Preferred Stock" and "Special Preferred Stock"
respectively. The number of shares of Common Stock authorized to be issued is
twenty-five million (25,000,000) and shall have a par value of $.001 per share.
The number of shares of Preferred Stock authorized to be issued is ten million
(10,000,000) and shall have a par value of $.001 per share. The number of
shares of Special Preferred Stock authorized to be issued is twenty-five million
(25,000,000) and shall have a par value of $.001 per share.
1. Liquidation and Dividend Rights.
--------------------------------
1.1 Liquidation Rights. Except as provided herein, in the event of
-------------------
any liquidation, dissolution or winding up of this corporation, whether
voluntary or involuntary, (1) the holders of the Common Stock shall be entitled
to ninety nine (99%) percent of the assets of this corporation available for
distribution to its shareholders, whether such assets are capital, surplus or
earnings, such percentage to be divided pro rata among each of the holders of
the Common Stock according to the number of shares of Common Stock held by each
such holder; and (ii) the holders of the Preferred Stock shall be entitled to
one (1%) percent of the assets of this corporation available for distribution to
its shareholders, whether such assets are capital, surplus or earnings, such
percentage to be divided pro rata among each of the holders of the Preferred
Stock according to the number of shares of Preferred Stock held by each such
holder. The holders of Preferred Stock shall not receive a preference on
liquidation.
1.2 Reorganization. A reorganization, consolidation or merger of
---------------
this corporation with or into any other corporation or
1
<PAGE>
corporations or other entity or entities, or a sale, conveyance, lease, transfer
or other disposition of all or substantially all the properties and assets of
this corporation, or a sale or other transfer, in a single transaction or in a
series of related transactions, of 50% or more of the outstanding capital stock
of this corporation, shall not be deemed a liquidation, dissolution or winding
up of this corporation for the purposes of this Article.
1.3 Valuation. Whenever the distribution provided for herein shall
----------
be paid in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of this corporation.
1.4 Dividend Rights. Except as provided herein, the holders of the
----------------
then outstanding Common Stock shall be entitled to receive ninety nine (99%)
percent of any dividends, when and as declared by the Board of Directors of this
corporation, and out of any funds and assets legally available therefore, such
percentage to be divided pro rata among each of the holders of the Common Stock
according to the number of shares of Common Stock held by each such holder. The
holders of the then outstanding Preferred Stock shall be entitled to receive one
(1%) percent of any dividends, when and as declared by the Board of Directors of
this corporation, and out of any funds and assets legally available therefor,
such percentage to be divided pro rata among each of the holders of the
Preferred Stock according to the number of shares of Preferred Stock held by
each such holder. Such dividends may be payable quarterly or otherwise as the
Board of Directors of this corporation may from time to time determine. The
holders of Preferred Stock shall not receive a preference in the event a
dividend is declared.
2. Voting Rights. Except as otherwise required by law, the rights of the
--------------
holders of Common Stock, Preferred Stock and Special Preferred Stock to vote on
any matters submitted to shareholders of this corporation shall be as follows:
2.1 Common Stock. Each holder of shares of Common Stock shall be
-------------
entitled to vote on all matters submitted to a vote of the shareholders of this
corporation and shall be entitled to one (1) vote for each share of Common Stock
held at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
2.2 Preferred Stock. Each holder of shares of Preferred Stock shall
----------------
be entitled to vote on all matters submitted to a vote of the shareholders of
this corporation and shall be entitled to one (1) vote for each share of
Preferred Stock held at the record date for the determination of the
shareholders entitled to vote on such matters or, if no such record date is
established, at the date
2
<PAGE>
such vote is taken or any written consent of shareholders is solicited.
2.3 Special Preferred Stock. Each holder of shares of Special
------------------------
Preferred Stock shall be entitled to vote on all matters submitted to a vote of
the shareholders of this corporation and shall be entitled to vote as discussed
below at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
Authority is hereby vested in the Board of Directors of the Corporation to
provide, from time to time, for the issuance of the Special Preferred Stock in
connection therewith to determine, with a majority of shareholder approval, the
number of shares to be included and such of the designations, powers,
preferences and relative rights and the qualifications, limitations and
restrictions of the Special Preferred Stock, including, without limiting the
generality of the foregoing, any of the following provisions with respect to
which the Board of Directors shall determine:
1. The annual dividend rate or rates payable on shares of the Special
Preferred Stock, the date or dates from which such dividends shall commence to
accrue and the dividend payment dates for such dividends;
2. Whether dividends on such series are to be cumulative or non-
cumulative and the participating or other special rights, if any, with respect
to the payment of dividends;
3. Whether the Special Preferred Stock shall be subject to redemption
and, if so, the manner of redemption, the redemption price or prices and the
terms and conditions on which shares of the Special Preferred Stock may be
redeemed;
4. Whether the Special Preferred Stock shall have a sinking fund or other
retirement provisions for the redemption or purchase of shares of the Special
Preferred Stock and if so, the terms and amount of such sinking fund or other
retirement provisions and the extent to which the charges therefor are to have
priority over the payment of dividends on or the making of sinking fund or other
like retirement provisions for share of any other series or over the payment of
dividends on the Common Stock and/or the Preferred Stock;
5. The amounts payable on shares of such series voluntary or involuntary
dissolution, liquidation, or winding up of the affairs of the corporation and
the extent to which such payment shall have priority over the payment of any
amount on voluntary or involuntary dissolution, liquidation, or winding up of
the affairs of the corporation on shares of any other series of Preferred Stock
3
<PAGE>
and/or on the Common Stock;
6. The terms and conditions if any, on which the Special Preferred Stock
may be converted into or exchanged for shares of any other series the Preferred
Stock and/or of Common Stock;
7. The stated value, if any, for the shares of the Special Preferred
Stock, the consideration for which shares of the Special Preferred Stock may be
issued and the amount of such consideration that shall be credited to the
capital account;
8. The voting rights and powers for each share of Special Preferred
Stock; and
9. Any other preferences and relative, participating, optional, or other
special rights and qualifications, limitations or restrictions thereof, or any
other term or provision of shares of the Special Preferred Stock as the Board of
Directors may deem appropriate or desirable.
2.4 Class Voting. The holders of the Common Stock, the holders of
-------------
the Preferred Stock and the holders of Special Preferred Stock shall vote
together as a single class.
3. Redemption of Preferred Stock. At the sole option of the Corporation, the
------------------------------
Corporation may redeem all of the Preferred Stock. In the event of said
Redemption, each share of Preferred Stock shall be exchanged for one (1) share
of the Corporation's Common Stock.
4. Redemption of Special Preferred Stock. At the option of the Corporation,
--------------------------------------
the Corporation may redeem all of the Special Preferred Stock. In the event of
said Redemption, each share of Special Preferred Stock shall be exchanged as
provided above. The Special Preferred Stock shall have Preemptive Rights
pursuant to Florida Law and as to the Common Stock.
5. Other Rights. Except as otherwise provided in this Article,
-------------
the rights of the holders of the Common Stock, the rights of the holders of the
Preferred Stock and the rights of the holders of the Special Preferred Stock
shall be identical.
The foregoing amendment was adopted by all of the Directors of the
Corporation at a Special Meeting of Directors, pursuant to Florida Statutes, on
the 6th day of October, 1998. The foregoing amendment was adopted by a majority
vote of the Stockholders present at the Board of Directors meeting, pursuant to
Florida Statutes, on the 6th day of October, 1998. A majority vote of the
Stockholders is sufficient for approval of these Articles of Amendment.
The amendment was adopted by the shareholders and directors on
4
<PAGE>
the 6th day of October, 1998.
IN WITNESS WHEREOF, the undersigned President and Secretary of this
corporation has executed these Articles of Amendment this 6th day of October,
1998.
/s/ John J. Bennett
--------------------------
John J. Bennett, President
/s/ Thomas J. Taule
--------------------------
Thomas J. Taule, Secretary
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me the day and year last
above written by John Bennett, President and Thomas J. Taule, Secretary of the
above-named Florida corporation, on behalf of the corporation.
/s/ David M. Glassberg
-------------------------------
Notary Public, State of Florida
My Commission expires:
5
<PAGE>
EXHIBIT 3.7
ARTICLES OF AMENDMENT
FOR
ISLEUTH. COM, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this corporation is:
ISLEUTH. COM, INC.
2. The Articles of Incorporation and Articles of Amendment are amended by
striking therefrom Article III, in its entirety, and inserting in place thereof
the following:
ARTICLE III - CAPITAL STOCK
---------------------------
This Corporation is authorized to issue three classes of capital stock
designated "Common Stock", "Preferred Stock" and "Special Preferred Stock"
respectively. The number of shares of Common Stock authorized to be issued is
twenty-five million (25,000,000) and shall have a par value of $.001 per share.
The number of shares of Preferred Stock authorized to be issued is ten million
(10,000,000) and shall have a par value of $.001 per share. The number of
shares of Special Preferred Stock authorized to be issued is twenty-five million
(25,000,000) and shall have a par value of $.001 per share. Of the twenty-five
million (25,000,000) shares of Special Preferred Stock, twelve million five
hundred thousand (12,500,000) shares shall be designated Class A Special
Preferred Stock and shall have a par value of $.001 per share.
1. Liquidation and Dividend Rights.
--------------------------------
1.1 Liquidation Rights. Except as provided herein, in the event of
------------------
any liquidation, dissolution or winding up of this corporation, whether
voluntary or involuntary, (1) the holders of the Common Stock shall be entitled
to ninety nine (99%) percent of the assets of this corporation available for
distribution to its shareholders, whether such assets are capital, surplus or
earnings, such percentage to be divided pro rata among each of the holders of
the Common Stock according to the number of shares of Common Stock held by each
such holder; and (ii) the holders of the Preferred Stock shall be entitled to
one (1%) percent of the assets of this corporation available for distribution to
its shareholders, whether such assets are capital, surplus or earnings, such
percentage to be divided pro rata among each of the holders of the Preferred
Stock according to the number of shares of Preferred Stock held by each such
holder. The holders of Special Preferred Stock shall not receive a preference
on liquidation.
1
<PAGE>
1.2 Reorganization. A reorganization, consolidation or merger of
---------------
this corporation with or into any other corporation or corporations or other
entity or entities, or a sale, conveyance, lease, transfer or other disposition
of all or substantially all the properties and assets of this corporation, or a
sale or other transfer, in a single transaction or in a series of related
transactions, of 50% or more of the outstanding capital stock of this
corporation, shall not be deemed a liquidation, dissolution or winding up of
this corporation for the purposes of this Article.
1.3 Valuation. Whenever the distribution provided for herein shall
----------
be paid in property other than cash, the value of such distribution shall be the
fair market value of such property as determined in good faith by the Board of
Directors of this corporation.
1.4 Dividend Rights. Except as provided herein, the holders of the
----------------
then outstanding Common Stock shall be entitled to receive ninety nine (99%)
percent of any dividends, when and as declared by the Board of Directors of this
corporation, and out of any funds and assets legally available therefore, such
percentage to be divided pro rata among each of the holders of the Common Stock
according to the number of shares of Common Stock held by each such holder. The
holders of the then outstanding Preferred Stock shall be entitled to receive one
(1%) percent of any dividends, when and as declared by the Board of Directors of
this corporation, and out of any funds and assets legally available therefor,
such percentage to be divided pro rata among each of the holders of the
Preferred Stock according to the number of shares of Preferred Stock held by
each such holder. Such dividends may be payable quarterly or otherwise as the
Board of Directors of this corporation may from time to time determine. The
holders of Special Preferred Stock shall not receive a preference in the event a
dividend is declared.
2. Voting Rights. Except as otherwise required by law, the rights of the
--------------
holders of Common Stock, Preferred Stock and Special Preferred Stock to vote on
any matters submitted to shareholders of this corporation shall be as follows:
2.1 Common Stock. Each holder of shares of Common Stock shall be
-------------
entitled to vote on all matters submitted to a vote of the shareholders of this
corporation and shall be entitled to one (1) vote for each share of Common Stock
held at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
2.2 Preferred Stock. Except as discussed in Section 2.4 below, each
----------------
holder of shares of Preferred Stock shall be entitled to vote on all matters
submitted to a vote of the shareholders of this corporation and shall be
entitled to one (1) vote for each
2
<PAGE>
share of Preferred Stock held at the record date for the determination of the
shareholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited.
2.3 Special Preferred Stock. Except for the Class A Special
------------------------
Preferred Stock discussed in Section 2.4 below, each holder of shares of Special
Preferred Stock shall be entitled to vote on all matters submitted to a vote of
the shareholders of this corporation and shall be entitled to vote as discussed
below at the record date for the determination of the shareholders entitled to
vote on such matters or, if no such record date is established, at the date such
vote is taken or any written consent of shareholders is solicited.
Authority is hereby vested in the Board of Directors of the Corporation to
provide, from time to time, for the issuance of the Special Preferred Stock in
connection therewith to determine, with a majority of shareholder approval, the
number of shares to be included and such of the designations, powers,
preferences and relative rights and the qualifications, limitations and
restrictions of the Special Preferred Stock, including, without limiting the
generality of the foregoing, any of the following provisions with respect to
which the Board of Directors shall determine:
1. The annual dividend rate or rates payable on shares of the Special
Preferred Stock, the date or dates from which such dividends shall commence to
accrue and the dividend payment dates for such dividends;
2. Whether dividends on such series are to be cumulative or non-cumulative
and the participating or other special rights, if any, with respect to the
payment of dividends;
3. Whether the Special Preferred Stock shall be subject to redemption and,
if so, the manner of redemption, the redemption price or prices and the terms
and conditions on which shares of the Special Preferred Stock may be redeemed;
4. Whether the Special Preferred Stock shall have a sinking fund or other
retirement provisions for the redemption or purchase of shares of the Special
Preferred Stock and if so, the terms and amount of such sinking fund or other
retirement provisions and the extent to which the charges therefor are to have
priority over the payment of dividends on or the making of sinking fund or other
like retirement provisions for share of any other series or over the payment of
dividends on the Common Stock and/or the Preferred Stock;
5. The amounts payable on shares of such series o voluntary or involuntary
dissolution, liquidation, or winding up of the
3
<PAGE>
affairs of the corporation and the extent to which such payment shall have
priority over the payment of any amount on voluntary or involuntary dissolution,
liquidation, or winding up of the affairs of the corporation on shares of any
other series of Preferred Stock and/or on the Common Stock;
6. The terms and conditions if any, on which the Special Preferred Stock
may be converted into or exchanged for shares of any other series the Preferred
Stock and/or of Common Stock;
7. The stated value, if any, for the shares of the Special Preferred
Stock, the consideration for which shares of the Special Preferred Stock may be
issued and the amount of such consideration that shall be credited to the
capital account;
8. The voting rights and powers for each share of Special Preferred Stock;
and
9. Any other preferences and relative, participating, optional, or other
special rights and qualifications, limitations or restrictions thereof, or any
other term or provision of shares of the Special Preferred Stock as the Board of
Directors may deem appropriate or desirable.
2.4 Class A Special Preferred Stock. The rights of the holders of
-------------------------------
Class A Special Preferred Stock shall be entitled to two (2) votes for each
share of Class A Special Preferred Stock held at the record date for the
determination of the shareholders entitled to vote on such matters or, if no
such record date is established, at the date such vote is taken or any written
consent of shareholders is solicited.
2.5 Class Voting. The holders of the Common Stock, the holders of
------------
the Preferred Stock and the holders of Special Preferred Stock shall vote
together as a single class.
3. Redemption of Preferred Stock. At the sole option of the Corporation, the
-----------------------------
Corporation may redeem all of the Preferred Stock. In the event of said
Redemption, each share of Preferred Stock shall be exchanged for one (1) share
of the Corporation's Common Stock.
4. Redemption of Class A Special Preferred Stock. At the sole option of the
---------------------------------------------
Corporation, the Corporation may redeem all of the Class A Special Preferred
Stock. If the Corporation shall redeem the Class A Special Preferred Stock, the
Board of Directors shall determine the manner of redemption, the redemption
price or prices and the terms and conditions on which shares of the Class A
Special Preferred Stock may be redeemed;
5. Other Rights. Except as otherwise provided in this Article, the rights of
------------
the holders of the Common Stock, the rights of the
4
<PAGE>
holders of the Preferred Stock and the rights of the holders of the Special
Preferred Stock, including the Class A Special Preferred Stock, shall be
identical.
The foregoing amendment was adopted by all of the Directors of the
Corporation at a Special Meeting of Directors, pursuant to Florida Statutes, on
the 21st day of December, 1998. The foregoing amendment was adopted by a
majority vote of the Stockholders present at the Board of Directors meeting,
pursuant to Florida Statutes, on the 21st day of December, 1998. A majority
vote of the Stockholders is sufficient for approval of these Articles of
Amendment.
IN WITNESS WHEREOF, the undersigned President and Secretary of this
corporation has executed these Articles of Amendment this 21st day of December,
1998.
/s/ Thomas J. Taule, as Vice President
--------------------------------------
Thomas J. Taule, Vice President and
Secretary
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me the day and year last
above written by Thomas J. Taule, Vice President and Secretary of the above-
named Florida corporation, on behalf of the corporation.
/s/ David M. Glossberg
--------------------------------------
Notary Public, State of Florida
My Commission expires:
5
<PAGE>
EXHIBIT 3.8
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ISLEUTH.COM, INC.
Pursuant to Florida Statutes, the following is submitted:
1. The name of this corporation is:
ISLEUTH.COM, INC.
2. The Articles of Incorporation and Articles of Amendment are amended by
striking the name ISLEUTH.COM, INC. from Article 1 and inserting in place
thereof the following:
ARTICLE I - NAME
The name of this corporation shall be:
THE BIGHUB.COM, INC.
3. The Board of Directors of said corporation unanimously adopted,
approved, and consented to the foregoing Articles of Amendment of the Articles
of Incorporation on April 27, 1999, in accordance with Florida Statutes Section
607.0821.
4. The foregoing Articles of Amendment of the Articles of Incorporation
has been duly approved by written consent of a majority of the shareholders
entitled to vote in accordance with Florida Statutes Section 607.0704. The
number of shares consenting to the amendment equaled or exceeded the vote
required. The percentage vote required was more than fifty percent (50%) of the
issued and outstanding shares with all outstanding classes of stock voting
together as a single class.
IN WITNESS WHEREOF, the undersigned, being the President and the Secretary
of iSleuth.com, Inc. has executed these Articles of Amendment of the Articles of
Incorporation this 27/th/ day of April, 1999.
/s/ John Bennett
---------------------------------
John Bennett, President
/s/ Thomas J. Taule
---------------------------------
Thomas J. Taule, Secretary
1
<PAGE>
STATE OF FLORIDA )
) ss.
COUNTY OF DADE )
On this 27/th/ day of April, 1999, before me, a Notary Public, personally
appeared John Bennett, personally known to me, and who acknowledged to me that
he is the President of iSleuth.com, Inc. and that he executed the above
instrument.
/s/ David M. Glossberg
--------------------------
Notary Public
[SEAL APPEARS HERE]
2
<PAGE>
STATE OF FLORIDA )
) ss.
COUNTY OF DADE )
On this 27/th/ day of April, 1999, before me, a Notary Public,
personally appeared Thomas J. Taule, personally known to me, and who
acknowledged to me that he is the Secretary of iSleuth.com, Inc. and that he
executed the above instrument.
/s/ David M. Glossberg
--------------------------
Notary Public
[SEAL APPEARS HERE]
3
<PAGE>
EXHIBIT 3.9
BYLAWS OF COORDINATED HEALTHCARE, INC.
ARTICLE ONE
SHARE CERTIFICATES
1.1 SHARE CERTIFICATES. Share certificates shall be issued in consecutive
------------------
order and shall be numbered in the order in which they are issued. They shall be
signed by the President and the Secretary, and the seal of the corporation or a
facsimile thereof shall be affixed thereto. On the stub of each share
certificate, which stubs shall be kept in the books of the corporation, shall be
entered the name and address of the person owning the shares, the number of
shares, and the date of issue. Each share certificate exchanged or returned
shall be canceled by the Secretary and placed with its stub in the books of the
corporation.
1.2 SHAREHOLDER RECORDS; TRANSFER OF SHARES. Transfers of shares of the
---------------------------------------
corporation shall be made on the books of the corporation only by the direction
of the person named in the certificate or by his or her attorney lawfully
constituted in writing, and upon surrender of the certificates or certificates
for such shares properly endorsed. The corporation shall maintain at its
principal place of business or registered office, a record of the names and
addresses of its shareholders and the number of shares held by each shareholder.
1.3 LOST, STOLEN, OR DESTROYED CERTIFICATES. If a shareholder shall claim
---------------------------------------
to have lost or destroyed a stock certificate representing shares issued and
recorded by the corporation, a new certificate will be issued upon said
shareholder presenting an affidavit claiming the certificate of stock was lost,
stolen or destroyed. At the discretion of the Board of Directors, said
shareholder will deposit a bond or other indemnity in such amount and with such
sureties, if any, as the Board of Directors may require.
ARTICLE TWO
SHAREHOLDERS' MEETING
2.1 ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of shareholders of
------------------------------
the corporation may be held at any time during the calendar year and at such
time and place, within or without the State of Florida, as may from time to time
be fixed by the Board of Directors; provided that failure to hold the annual
meeting shall not work as a forfeiture or affect otherwise valid corporate acts.
2.2 SPECIAL MEETING OF SHAREHOLDERS. Special meetings of the shareholders
-------------------------------
may be called at any time by the Board of Directors, the Chairman of the Board,
if any, the President, or any holder or holders of at least 10 percent of all
shares of the corporation entitled to vote at the meeting. Special meetings of
the
1
<PAGE>
shareholders shall be held at such time and place, within or without the State
of Florida, as may be determined by the person or persons calling the meeting.
2.3 NOTICE. The Secretary or Assistant Secretary or the officer or
------
persons calling the meeting shall deliver a written notice of the place, day and
time of all meetings of shareholders, not less than 10 nor more than 60 days
before the date of the meeting, either personally or by first class mail, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
with first class postage thereon prepaid, addressed to the shareholder at his
address as it appears on the share transfer records of the corporation. The
notice of any special meeting of shareholders shall state the purpose or
purposes for which the meeting is called. Notice of any meeting of shareholders
need not be given to any shareholder who signs a waiver of notice, either before
or after the meeting. Attendance of a shareholder at a meeting, either in person
or by proxy, shall of itself constitute waiver of notice of such meeting and
waiver of any and all objections to the place of the meeting, the time of the
meeting, or the manner in which it has been called or convened, except when a
shareholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
2.4 VOTING; PRESIDING OFFICER. At all meetings of the shareholders each
-------------------------
holder of shares of the corporation shall be entitled to cast one vote, either
in person or by written proxy, for each share outstanding in his or her name on
the books of the corporation. The Chairman of the Board, or if there is no such
officer, the President, shall preside at all meetings of the shareholders,
unless he or she delegates such authority.
2.5 QUORUM; ADJOURNMENT. At all meetings of shareholders a majority of the
-------------------
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum for the transaction of business, and, except as
otherwise required by law, all resolutions adopted and business transacted shall
require the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote. The holders of a majority of the shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
2.6 SHAREHOLDER ACTION WITHOUT A MEETING. Any action required to be taken
------------------------------------
at a meeting of the shareholders of the corporation, or any action that may be
taken at a meeting of the shareholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing setting forth the
action so taken shall be signed by holders of outstanding stock having not less
than the minimum number of votes that would be
2
<PAGE>
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Within 30 days after obtaining
such authorization by written consent, notice shall be given to those
shareholders who have not consented in writing, fairly summarizing the material
features of the authorized action and in compliance with applicable law.
ARTICLE THREE
DIRECTORS
3.1 POWER OF THE BOARD. Subject to these bylaws, or any lawful agreement
------------------
between the shareholders, the full and entire management of the affairs and
business of the corporation shall be vested in the Board of Directors, which
shall have and may exercise all of the powers that may be exercised or performed
by the corporation.
3.2 NUMBER OF DIRECTORS; CONDUCT OF MEETING. The Board of Directors shall
---------------------------------------
consist of at least one (1) member. Each member of the Board of Directors shall
be elected at an annual meeting of the shareholders and serve for a term of one
year and until his or her successor is elected and qualified, or until his or
her earlier death, resignation or removal. A majority of said directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors. Except as otherwise provided in these bylaws, all resolutions
adopted and all business transacted by the Board of Directors shall require the
affirmative vote of a majority of the directors present at the meeting. The
Chairman of the Board, or if there is not a Chairman of the Board, then the
President, if he or she is a director, shall preside at all meetings of the
Board of Directors, unless he or she delegates such authority. If there is no
Chairman of the Board and the President is not a director, the directors shall
select a chairman for each meeting from their members.
3.3 VACANCIES. Any vacancy occurring in the Board of Directors by reason of
---------
death, resignation or incapacity to serve may be filled by the affirmative vote
of a majority of the remaining directors though less than a quorum of the Board
of Directors, or by the sole remaining director, as the case may be, or, if the
vacancy is not so filled, or if no director remains, by the shareholders. The
directors may fill a vacancy created by an increase in the number of directors
resulting from an amendment of section 3.2 of these bylaws, pursuant to these
bylaws, but only for a term of office continuing until the next annual election
of directors by the shareholders and the election and qualification of his or
her successor(s)
3.4 MEETING OF THE BOARD OF DIRECTORS; NOTICE. The directors shall meet
-----------------------------------------
annually immediately following the annual meeting of the shareholders; provided
that the failure to hold the annual meeting
3
<PAGE>
shall not work as a forfeiture or affect otherwise valid corporate acts. Special
meetings of the directors may be called at any time by the President, the
Chairman of the Board, if any, or by any two directors, on five days' notice,
which may be given personally or by first class mail, telegram or cablegram and
shall be deemed given when mailed or when the telegram or cablegram is sent,
addressed to the director at his or her address as it appears on the share
records of the corporation or, if he or she is not a shareholder, to his or her
business address. Notice of any such meeting may be waived by an instrument in
writing. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting and waiver of any and all objections to the place of the
meeting, the time of the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the meeting, any
such objection or objections to the transaction of business. Any meeting of the
Board of Directors may be held within or without the State of Florida at such
place as may be determined by the person or persons calling the meeting.
3.5 DIRECTOR ACTION WITHOUT A MEETING. Any action required to be taken at a
---------------------------------
meeting of the Board of Directors; or any action that may be taken at a meeting
of the Board of Directors, may be taken without a meeting if a consent in
writing, setting forth the action so to be taken, signed by all the Directors is
filed with the minutes of the proceedings of the Board of Directors.
3.6 REMOVAL OF DIRECTORS. Any one or more directors may be removed at any
--------------------
meeting of shareholders by the affirmative vote of the holders of a majority of
the shares of the corporation entitled to vote at an election of the Board of
Directors.
ARTICLE FOUR
OFFICERS
4.1 OFFICER; ELECTION. The Board of Directors shall elect a President, a
-----------------
Secretary and a Treasurer and may elect a Chairman of the Board, one or more
Vice Presidents and may elect assistant officers. Any two or more offices may be
held by the same person.
4.2 CHAIRMAN OF THE BOARD. The Board of Directors may elect from its
---------------------
members a Chairman of the Board, who shall preside at all meetings of the Board
of Directors and shareholders as provided herein. The Chairman of the Board
shall be the Chief Executive Officer of the corporation and shall have the
authority to execute bonds, mortgages or other contracts under the seal of the
corporation. The Chairman of the Board shall perform such other duties as may be
prescribed by the Board of Directors.
4.3 PRESIDENT. The President shall be responsible for administration of the
---------
affairs of the corporation, including general supervision of the policies of the
corporation and general and
4
<PAGE>
active management of the financial affairs of the corporation. He or she shall
have the authority to execute bonds, mortgages or other contracts or agreements
under the seal of the corporation. If the Board of Directors shall not have
elected a Chairman of the Board, or if the Chairman of the Board is not
available to serve, the President shall preside at all meetings of the
shareholders and, if he or she is a director, at all meetings of the Board of
Directors of the corporation. The President shall have the authority to
institute or defend legal proceedings when the Board of Directors are
deadlocked.
4.4 SECRETARY. The Secretary shall keep minutes of all meetings of the
---------
shareholders and Board of directors and have charge of the minute books, share
books and seal of the corporation and shall perform such other duties and have
such other powers as may from time to time be delegated to him or her by the
President or the Board of Directors.
4.5 TREASURER. The Treasurer shall be charged with the management of the
---------
financial affairs of the corporation. He or she shall in general perform all of
the duties incident to the office of treasurer and such other duties as may from
time to time be assigned to him or her by the President or the Board of
Directors.
4.6 VICE PRESIDENTS. The Vice Presidents, if any, shall perform such duties
---------------
as are generally performed by vice presidents with equivalent restrictions on
title, if any, and shall perform such other duties and exercise such other
powers as the President or majority of the Board of Directors shall request or
delegate. In the absence of the President or in the event of his or her death or
inability to act, the Vice President shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President; provided, however, that if there is more than
one Vice President, any Vice President shall have the authority to execute
bonds, mortgages or other contracts or agreements under the seal of the
corporation, subject to all the restrictions upon the president relating to such
functions, but all other duties of the President shall be performed by the Vice
President designated at the time of his or her election, or in the absence of
any designation, then in order of election (or if more than one Vice President
is elected at the same meeting, in the order in which they are listed in the
resolution electing them), and when so acting shall have all the powers of and
be subject to all the restrictions upon the President.
4.7 OTHER OFFICERS. The Board of Directors, or the President, may appoint
--------------
such other officers, assistant officers and agents as the Board of Directors or
the President may determine. Any Vice President so appointed shall perform such
duties as are generally performed by elected Vice Presidents with equivalent
restrictions on title, if any. Any other officers or assistant officers so
5
<PAGE>
appointed shall perform such as are generally performed by the elected officers
or assistant officers having the same title.
4.8 REMOVAL OF OFFICERS. Any officer, assistant officer or agent elected or
-------------------
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the corporation will be served
thereby. Any officer or assistant officer appointed by the President may be
removed by the President or the Board of Directors whenever in his, her or its
judgment, the best interests of the corporation will be served thereby.
4.9 VACANCIES. Any vacancy, however occurring, in any office, may be filled
---------
by the Board of Directors.
ARTICLE FIVE
SEAL
5.1 SEAL. The seal of the corporation shall be in such form as the Board
----
of Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the words "Corporate Seal" or the word "Seal" in
parentheses or scroll accompanying the signature of an officer signing for and
on behalf of the corporation shall be the seal of the corporation. The seal
shall be in the custody of the Secretary and affixed by him or her on the share
certificates and such other papers as may be directed by law, by these bylaws or
by the Board of Directors.
ARTICLE SIX
BOOKS AND RECORDS
6.1 BOOKS AND RECORDS. The corporation shall keep accurate and complete
-----------------
books, records of account, and minutes of the proceedings of all meetings of
shareholders, Board of Directors, and committees of directors. Any books,
records and minutes may be in written form or in any other form capable of being
converted into written form.
6.2 SHAREHOLDER'S INSPECTION RIGHTS. Any person who has been or presently
-------------------------------
is a holder of record of shares or of voting trust certificates at least six
months immediately preceding his or her demand or owns at least five percent of
the outstanding shares of the corporation, upon written demand stating the
purpose thereof, will have the right to examine and to make extracts in person
or by agent or attorney, at any reasonable time(s), for any proper purpose, the
corporation's relevant books, records of accounts, minutes and records of
shareholders.
6.3 FINANCIAL INFORMATION. If required by the Board of Directors, not
---------------------
later than six months after the close of each fiscal
6
<PAGE>
year, this corporation will prepare a balance sheet showing the financial
condition of the corporation at the close of the fiscal year, and a profit and
loss statement showing the results of the operations of the corporation during
the fiscal year. Upon the written request of any shareholder or holder of voting
trust certificates for shares of the corporation, the corporation will mail to
each shareholder or holder of voting trust certificates a copy of the most
recent such balance sheet and profit and loss statement. The balance sheet and
profit and loss statement will be filed in the registered office of the
corporation in this state, will be kept for at least five years, and will be
subject to inspection during business hours by any shareholder or holder of
voting trust certificates, in person or by agent.
ARTICLE SEVEN
DIVIDENDS
7.1 DIVIDENDS. The Board of Directors of this corporation may, from time to
---------
time, declare dividends on its shares in cash, property and/or its own shares,
except when the corporation is insolvent or when the payment thereof would
render the corporation insolvent, subject to the provisions of Florida Statutes.
ARTICLE EIGHT
INDEMNIFICATION AND INSURANCE
8.1 IDENTIFICATION AND INSURANCE. Each person who is or was a director,
----------------------------
officer, or employee of the corporation (including the heirs, executors,
administrators or estate of such person), or is or was serving at the request of
the corporation as director, officer, or employee of another corporation,
partnership, joint venture, trust or other enterprise, shall be indemnified by
the corporation as of right to the full extent permitted or authorized by the
present and future laws of the State of Florida against any liability, cost,
payment or expense asserted against, or paid or incurred by him or her, in his
or her capacity as such a director, officer and/or employee. The corporation may
purchase and maintain insurance at its expense, to protect itself and any such
person against any such liability, cost, payment or expense whether or not the
corporation would have the power to indemnify such person against such
liability. The foregoing right of indemnification shall not be deemed exclusive
of any other right to which those indemnified or seeking indemnification may be
entitled both as to action in their official capacities and as to action in
another capacity while holding such offices, and the corporation may provide
additional rights to its directors, officers and/or employees.
7
<PAGE>
ARTICLE NINE
AMENDMENT
9.1 AMENDMENT. These bylaws may be amended at any meeting of the
---------
shareholders by the affirmative vote of a majority of the issued and outstanding
shares of the corporation, or at any meeting of the Board of Directors of the
corporation by an affirmative vote of a majority of the Board of Directors then
holding office.
8
<PAGE>
EXHIBIT 10.1
OPTION AGREEMENT
----------------
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into on
this 3rd day of August, 1998, by and between Happy Landings, Inc. ( the
"Optionor") and Maverick Communications Corp., a Florida corporation
("Optionee").
RECITALS
Optionor is the owner of certain internet search engines and related
technology including "Internet Sleuth" and certain software and intellectual
property rights related to such search engines and related technologies (the
"Property");
Optionor desires to grant to Optionee an exclusive and irrevocable option
to purchase from the Optionor the Property;
Optionee desire to obtain from the Optionor a grant of an exclusive and
irrevocable option to purchase the Property, and as a material inducement to the
Optionor to grant to Optionee an exclusive and irrevocable option to purchase
the Property, Optionee has agreed to enter into a Management Agreement of equal
date hereof with the Optionor which agreement is being executed simultaneously
with this Agreement (the "Option Consideration");
NOW, THEREFORE, in consideration of the foregoing provision, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. Grant of Option
---------------
Optionor hereby grants, bargains, sells, convey and delivers unto Optionee
an exclusive and irrevocable right, option and privilege to purchase the entire,
title and interest of the Optionor in and to the Property exercisable at the
time and in the manner set forth below in consideration of One Hundred and
Twenty Thousand Dollars ($120,000), Six Thousand Dollars ($6,000) of which has
already been paid to, or on behalf of Optionor, receipt of said amount is hereby
acknowledged by Optionor and hereby binding this entire option agreement.
2. Purchase Price Underlying the Option
------------------------------------
The price that Optionee shall pay for the Property in the exercise of the
Option shall be a number of shares of common stock of Isleuth.com, Inc.
("ISLEUTH") the fair market value of which shares equal $880,000 on the date the
Option is exercised. The term fair market value is defined as the average daily
closing sale price of the common stock of ISLEUTH on the NASD OTC Bulletin Board
for the five days proceeding the date such Option is exercised (the "Option
Price"). At the option of the Optionor, such $880,000 of Isleuth.com, Inc.'s
common stock may be exchanged into a like value number of shares of SJJ Group,
Inc.'s common stock.
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3. Option Period.
-------------
The Option may be exercised at any time during the period ending 60 days
from the date hereof (the "Option Period").
4. Exercise of Option.
------------------
The Option to acquire the Property may be exercised by Optionee at any time
during the Option Period by delivery to the Optionor of the Option Price in
certified or good funds, along with a written notice indicating that Optionee is
electing to exercise the Option to acquire the Property, which notice shall be
simultaneously provided to the Optionor.
5. Ownership of Property.
---------------------
The parties hereto do hereby acknowledge and agree that upon the execution of
this Agreement, the Optionor shall continue to be the owner of record of the
Property until such time as the Option is exercised, and shall be entitled to
any and all attributes of ownership of the Property with the exception of the
rights and compensation to which the Optionee is entitled pursuant to the terms
of the Management Agreement between Optionee and the Optionor of which this
Agreement is attached as an exhibit. Upon the exercise by Optionee of the
Option, the parties hereto acknowledge and agree that Optionee shall be the sole
owner of the Property and shall be entitled to all attributes of the ownership
thereto.
6. Representations and Warranties of Optionor.
------------------------------------------
(a) Optionor is the lawful owner of the Property, and the same are
free from any liens, security interest or other encumbrances
whatsoever, with the exception of a program entitled SleuthMaint.
(b) Optionor has full power and authority to own and dispose of the
Property, and to perform his obligations under this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
of Optionor and is enforceable against him in accordance with its
terms, except as enforcement thereof may be limited by (i)
bankruptcy insolvency, or other similar laws affecting the
enforcement of creditors' rights, and (ii) general principles of
equity, regardless of whether such enforceability is considered
in a proceeding at equity or at law.
(d) Upon the transfer of the Property by Optionor to Optionee
pursuant to the exercise of the option, Optionee shall have full
legal and beneficial title to the Property, free and clear of all
assessments, charges, liens, claims, pledges, mortgages, security
interest and other encumbrances, whatsoever; except as noted in
(a) above.
(e)
2
<PAGE>
7. Notices.
-------
All notices, waivers, demands and instruction given in connection with
this Agreement shall be made in writing, with a copy to each party, and shall be
deemed to have been duly given and delivered (a) five (5) days after posting if
mailed by U.S. Mail, certified or registered, return receipt requested, postage
prepaid, or (b) upon receipt if sent by overnight courier maintaining records of
receipt by addresses, by hand or by telecopy, with the original notice being
sent the same day by one of the foregoing methods, addressed as follows (or to
such other address as a party may from time to time designate by notice to all
other parties as aforesaid).
If to Optionor: Happy Landings, Inc.
8 Seawatch Terrace
Ormond Beach, FL 32176
If to Optionee: Maverick Communications, Corp.
6312 Baum Drive
Knoxville, TN 37919
8. Further Assurances.
------------------
Each of the parties hereto shall execute such other instruments, documents
and papers and shall take such further actions, as may be reasonably required or
appropriate to carry out the provisions hereof.
9. Entire Agreement.
----------------
This Agreement constitutes the full and complete understanding of the
parties with respect to its subject matter, is an exclusive statement of the
terms and conditions of their agreement in relation hereto, and supersedes all
prior negotiations, understandings and agreement, whether written or oral,
between the parties with respect hereto.
10. Amendments.
----------
No alteration, modification, amendment or other changes in this agreement
shall be effective or binding on any party unless the same is in writing and is
executed by all parties.
11. Waivers.
-------
No waiver by any party of any rights or remedies provided hereunder and no
course of dealing shall be deemed a continuing waiver of the same or any other
right or remedy unless such waiver is in writing and signed by the party sought
to be bound. The failure of a party to exercise any right or remedy shall not be
deemed a waiver of such right or remedy in the future.
3
<PAGE>
12. Modification and Severability
-----------------------------
If a court of competent jurisdiction declares that any provision of this
agreement is illegal, invalid or enforceable, then such provision shall be
modified automatically to the extent necessary to make such provision fully
legal, valid or enforceable.
13. Enforceability/Default
----------------------
This Agreement shall be enforceable by and against each of the parties'
hereto and their respective successors and assigns. In the event of a default by
the other parties hereto, or their assignees hereunder, or a breach by a party
hereto of any of the representation, warranties or covenants made herein by such
party, the non-defaulting party shall have the rights and remedies available at
law or in equity and shall be entitled to any and all costs and expenses
(including reasonable attorney's fees) incurred in connection with forcing the
terms of this Agreement or recovering any damages resulting from such default or
breach. The rights or remedies available to the parties hereunder shall include,
without limitations, the rights to sue for specific performance without the
necessity if first pursuing other remedies possibly available.
14. Captions
--------
The captions contained in this Agreement are for convenience of reference
only and shall not affect in any way the meaning, construction or scope of this
Agreement.
15. Governing Law
------------
This Agreement shall be governed by, construed under, and enforced in
accordance with the law of the State of Florida without regard to any
conflict-in-law provision to the contrary.
16. Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which, when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Optionor: Optionee:
Happy Landings, Inc. Maverick Communications Corp.
By: Sally Elliot, President: By: J.D. Jenkins, President
Name: /s/ Sally Elliot Name: /s/ J.D. Jenkins President
---------------------- ------------------------------
4
<PAGE>
Exhibit 10.2
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of August 7, 1998
(the "Execution Date"), by and among SJI GROUP, INC., a Florida corporation
("SJI") and ISLEUTH. COM, INC., a Florida corporation (the "Company" or
"Isleuth").
PRELIMINARY STATEMENTS
----------------------
1. SJI owns one hundred percent (100%) of MAVERICK COMMUNICATIONS CORP., a
Florida corporation ("MAVERICK") and accordingly, the contemplated transaction
will inure to their direct benefit.
2. MAVERICK owns the rights to acquire the Internet Sleuth, which is a
search engine on the Internet.
3. SJI is desirous of selling its stock of MAVERICK in exchange for the
Company's payment to SJI of the Purchase Price (as defined below).
AGREEMENT
---------
In consideration of the respective representations, warranties, agreements and
covenants in this Agreement and subject to the conditions contained in this
Agreement, the parties, intending to be legally bound, agree as follows:
ARTICLE I
Transfer and Assignment of MAVERICK's Stock
-------------------------------------------
Section 1.1 Sale and Purchase of Stock. On the terms and subject to the
--------------------------
conditions set forth in this Agreement, SJI hereby agrees to sell, assign and
transfer to the Company and the Company agrees to purchase from SJI, on the
Closing Date (as hereinafter defined), all of the issued and outstanding shares
of common stock of MAVERICK, all of which are owned by SJI ("Shares"). At
Closing, SJI shall deliver the Shares to Isleuth, which certificates shall be
duly endorsed in blank by SJI, or, in lieu thereof, shall have affixed thereto a
stock power executed in blank and in proper form for transfer. The Shares shall
be free and clear of any encumbrances.
1
<PAGE>
ARTICLE II
Purchase Price for the Shares.
------------------------------
Upon the terms and subject to the conditions of this Agreement, the parties
agree that the purchase price for SJI's Shares, which shall be payable as
follows: The Company shall issue 1,500,000 shares of its Common Stock to SJI.
Said Common Stock shall be Rule 144 Stock. All provisions of Rule 144 shall be
applicable. Said 1,000,000 shares of Common Stock shall not be affected by the
Company's Reverse Stock Split. The Company shall also issue 1,000,000 shares of
Preferred Stock to SJI. The transaction shall be considered a tax free exchange
of shares and the parties hereto agree to use their best efforts to accomplish a
tax free exchange.
ARTICLE III
Closing
-------
Section 3.1 Time and Place of the Closing. The closing of the
-----------------------------
transactions contemplated by this Agreement (the "Closing") shall take place at
the offices of Glassberg & Glassberg, P.A., 1570 Madruga Avenue, Suite 211,
Coral Gables, Florida 33146, commencing at 5:00 p.m. on August 7, 1998 herein or
such other date as the parties may mutually determine (the "Closing Date"). The
parties mutually agree that the Closing may occur by telefax.
Section 3.2 Procedures at the Closing. At the Closing, the parties are
-------------------------
taking the following steps in the order listed below (provided, however, that
upon their completion all of these steps shall be deemed to have occurred
simultaneously) which item shall be required as a condition to Closing:
(a) SJI shall duly execute and deliver the Shares and endorsed to
the Company;
(b) SJI shall execute and deliver resolutions adopted by the Board
of Directors and the Shareholders of SJI approving the transactions contemplated
by this Agreement, certified by the corporate secretary of SJI;
(c) The Company shall deliver resolutions adopted by the Board of
Directors of the Company approving the transactions contemplated by this
Agreement, certified by the corporate secretary of the Company;
ARTICLE IV
Representations and Warranties of SJI
-------------------------------------
In order to induce the Company to enter into this Agreement and to consummate
the transactions contemplated under this Agreement, SJI makes the following
representations and warranties to the Company:
Section 4.1 Organization, Power and Authority of the Company. SJI is a
------------------------------------------------
corporation dulyorganized, validly existing and in good standing under the laws
of the State of Florida.
2
<PAGE>
Section 4.2 Due Authorization: Binding Obligation. SJI has the requisite
-------------------------------------
corporate power and authority to enter into this Agreement and all documents
described within this Agreement to be executed in connection with this Agreement
(collectively, the "Related Documents") to which it is or is to be a party, and
to consummate the contemplated transactions.
Section 4.3 Ownership of MAVERICK. SJI is the sole record and beneficial
---------------------
owner of all outstanding shares of MAVERICK's stock, and SJI has good and
marketable title to all of the Shares, free and clear of all Liens, claims of
others, charges, security interests, proxies, voting trusts or other agreements
or other encumbrances whatsoever.
Section 4.4 No Undisclosed Liabilities. SJI and MAVERICK have no material
--------------------------
liabilities nor obligations (whether secured, unsecured, absolute, accrued,
asserted or unasserted, contingent or otherwise) of any nature, whether as
principal, agent, partner, co-venturer, guarantor or in any other capacity as
they relate to SJI's shares in Maverick.
Section 4.5 Licenses: Compliance. MAVERICK possesses all licenses and
--------------------
other required governmental or official approvals, permits, consents and
authorizations with respect to its business, the failure of which to possess
would, individually or in the aggregate, have an adverse effect on the business,
financial condition, operations, prospects or results of operations of MAVERICK.
Section 4.6 Litigation, Investigations, Orders and Decrees. There are no
----------------------------------------------
actions, suits, claims, governmental investigations or arbitration proceedings
pending or, to the best of MAVERICK's knowledge, threatened against or affecting
MAVERICK's business, assets, prospects or financial condition that may have an
adverse effect on the Shares, and to the best of SJI's knowledge, there are no
facts or circumstances which are reasonably likely to create a basis for any of
the foregoing. There are no outstanding orders, decrees or stipulations issued
by any local, state or federal judicial authority in any proceeding to which
MAVERICK is or was a party which may have an adverse effect on MAVERICK.
Section 4.7 Proprietary Rights. Excluding the option to purchase the
------------------
Internet Sleuth, all trademark, trademark application, trade name, assumed name,
service mark, logo, patent, patent application, copyright, copyright
registration, know-how, trade secret or other intellectual property rights
("Proprietary Rights") used in or necessary for the conduct of MAVERICK's
business and operations do not conflict with or infringe any similar rights or
services of any other person. No claims have been asserted by any person or
entity with respect to the ownership, validity, license or use of the
Proprietary Rights or the provision of any services by MAVERICK and there is no
basis for any such claim. All Proprietary Rights, to the extent applicable, of
MAVERICK are subsisting and have not been abandoned. None of the Proprietary
Rights is the subject of any outstanding assignments, grants, Liens, licenses,
obligations or agreements, whether written, oral or implied. All required
annuities, renewal fees, maintenance fees, royalty payments, amendments and/or
other filings or payments which are necessary to preserve and maintain the
Proprietary Rights have been filed and/or made.
Section 4.8 Tax Matters. MAVERICK has filed all federal, state, local
-----------
and foreign tax
3
<PAGE>
returns required to be filed as of the Closing Date and has paid or caused to be
paid all federal, state, local, foreign and other taxes, including without
limitation income taxes, estimated taxes, excise taxes, sales taxes, use taxes,
gross receipts taxes, franchise taxes, employment and payroll-related taxes,
withholding taxes, transfer taxes and property taxes, whether or not measured in
whole or in part by net income (collectively, "Taxes"), required to be paid by
it as of the Closing Date whether disputed or not, except Taxes which have not
yet accrued or otherwise become due, for which adequate provision has been made.
All taxes and other assessments and levies which MAVERICK is required to
withhold or collect have been withheld and collected and have been paid over to
the proper governmental authorities. Neither the Internal Revenue Service
("IRS") nor any other governmental authority is now asserting or, to the best
knowledge of MAVERICK, threatening to assert against SJI any deficiency or claim
for additional Taxes.
ARTICLE V
Representations and Warranties of the Company
---------------------------------------------
In order to induce SJI to enter into this Agreement and to consummate the
transactions contemplated under this Agreement, the Company make the following
representations and warranties to SJI:
Section 5.1 Organization, Power and Authority. The Company is a
---------------------------------
corporation duly organized and validly existing under the laws of the State of
Florida, with full corporate power and authority to enter into this Agreement
and perform its obligations under this Agreement.
Section 5.2 Due Authorization; Binding Obligation. The execution,
-------------------------------------
delivery and performance of this Agreement, the Related Documents and all other
agreements contemplated by this Agreement and the consummation of the
contemplated transactions have been duly authorized by all necessary corporate
action of the Company. This Agreement has been duly executed and delivered by
the Company and is a valid and binding obligation of The Company, enforceable in
accordance with its terms.
Section 5.3 No Undisclosed Liabilities. The Company has no material
--------------------------
liabilities nor obligations (whether secured, unsecured, absolute, accrued,
asserted or unasserted, contingent or otherwise) of any nature, whether as
principal, agent, partner, co-venturer, guarantor or in any other capacity
except as disclosed to SJI.
Section 5.4 Licenses: Compliance. The Company possesses all licenses and
--------------------
other required governmental or official approvals, permits, consents and
authorizations with respect to its business, the failure of which to possess
would, individually or in the aggregate, have an adverse effect on the business,
financial condition, operations, prospects or results of operations of the
Company.
Section 5.5 Litigation, Investigations, Orders and Decrees. There are no
----------------------------------------------
actions, suits, claims, governmental investigations or arbitration proceedings
pending or, to the best of the Company's knowledge, threatened against or
affecting the Company's business, assets, prospects or
4
<PAGE>
financial condition that may have an adverse effect on the Shares, and to the
best of the Company's knowledge, there are no facts or circumstances which are
reasonably likely to create a basis for any of the foregoing. There are no
outstanding orders, decrees or stipulations issued by any local, state or
federal judicial authority in any proceeding to which the Company is or was a
party which may have an adverse effect on the Company.
Section 5.6 Proprietary Rights. The Company does not have any Proprietary
------------------
Rights.
Section 5.7 Tax Matters. The Company has filed all federal, state, local
-----------
and foreign tax returns required to be filed as of the Closing Date and has paid
or caused to be paid all federal, state, local, foreign and other taxes,
including without limitation income taxes, estimated taxes, excise taxes, sales
taxes, use taxes, gross receipts taxes, franchise taxes, employment and payroll-
related taxes, withholding taxes, transfer taxes and property taxes, whether or
not measured in whole or in part by net income (collectively, "Taxes"), required
to be paid by it as of the Closing Date whether disputed or not, except Taxes
which have not yet accrued or otherwise become due, for which adequate provision
has been made. All taxes and other assessments and levies which the Company is
required to withhold or collect have been withheld and collected and have been
paid over to the proper governmental authorities. Neither the Internal Revenue
Service ("IRS") nor any other governmental authority is now asserting or, to the
best knowledge of the Company, threatening to assert against SJI any deficiency
or claim for additional Taxes.
ARTICLE VI
Indemnification
---------------
Section 6.1 Indemnification by SJI and MAVERICK. SJI and MAVERICK jointly
-----------------------------------
and severally agree to indemnify and hold harmless the Company, any successor or
Affiliate of the Company and the directors, officers, agents and employees of
the Company or any of its Affiliates or successors from and against any and all
claims, actual and contingent, liabilities, losses, damages, costs and expenses,
including reasonable counsel fees and disbursements, proceedings,
investigations, causes of action, whether suit is instituted or not and, if
instituted, at any trial or appellate level, and whether raised by the parties
to this Agreement or any third party (singularly, a "Loss," and collectively,
the "Losses"), arising out of or relating to: (a) any material failure or breach
by SJI of any representation or warranty made by SJI in this Agreement, the
Related Documents, including any certificate, schedule or other agreement
delivered by SJI pursuant to this Agreement or (b) any material failure to
perform or breach by SJI of any covenant, agreement, obligation or undertaking
made by SJI in this Agreement, the Related Documents, including any certificate,
schedule or other agreement delivered by SJI pursuant to this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, (i) SJI
shall not be liable to the Company with respect to the Company Losses unless and
until the aggregate amount of all SJI Losses shall exceed the sum of Ten
Thousand Dollars ($10,000.00) ("SJI Basket') and (ii) SJI shall thereafter be
liable for all the Company Losses in excess of SJI Basket, provided that SJI's
maximum aggregate liability in respect of all the Company Losses shall not, in
the absence of proven fraud by the Company in respect of any particular Company
Losses, in any event exceed the limitations set forth herein.
5
<PAGE>
Section 6.2 Indemnification by the Company. The Company will indemnify
------------------------------
and hold harmless and SJI or any Affiliates thereof from and against any and all
Losses, arising out of or related to: (a) any material failure or breach by the
Company of any representation or warranty made by the Company in this Agreement,
including any certificate, schedule or other agreement delivered by the Company
pursuant to this Agreement; (b) any material failure to perform or breach by the
Company of any covenant, agreement, obligation or undertaking made by the
Company in this Agreement, including any certificate, schedule or other
agreement delivered pursuant to this Agreement or (c) any material failure to
perform or breach by SJI of any covenant, agreement, obligation or undertaking
made by SJI in this Agreement, the Related Documents, including any certificate,
schedule or other agreement delivered by the Company pursuant to this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, (i)
the Company shall not be liable to SJI with respect to SJI Losses unless and
until the aggregate amount of all SJI Losses shall exceed the sum of Ten
Thousand Dollars ($10,000.00) ("the Company Basket") and (ii) The Company shall
thereafter be liable for all SJI Losses in excess of the Company Basket,
provided that the Company's maximum aggregate liability in respect of all SJI
Losses shall not, in the absence of proven fraud by the Company in respect of
any particular SJI Losses, in any event exceed the limitations set forth herein.
Section 6.3 Procedure for Claims. The following procedures shall be
--------------------
applicable with respect to indemnification for claims arising in connection with
any provision of this Agreement:
(a) Each indemnified party (the "Indemnified Party") agrees that
upon its obtaining knowledge of facts indicating that there may be a basis for a
claim for indemnity under the provisions of this Agreement, including receipt by
it of notice of any demand, assertion, claim, action or proceeding, judicial or
otherwise (these actions are collectively, the "Claim"), with respect to any
matter as to which it may be entitled to indemnity under the provisions of this
Agreement, it will give prompt notice thereof in writing to the other party (the
"Indemnifying Party") together with a statement of all information respecting
any of the foregoing as it shall then have. The Indemnifying Party shall not be
obligated to indemnify the Indemnified Party for the increased amount of any
Claim which would otherwise have been payable to the extent that the increase in
the amount of the Claim resulted from the lack of notice required by this
provision.
6
<PAGE>
(b) The Indemnifying Party shall in good faith at its sole cost and
expense contest and defend by all appropriate legal proceedings, with counsel
satisfactory to the Indemnified Party, any Claim with respect to which it is
called upon to indemnify the Indemnified Party under the provisions of this
Agreement; provided, however, that notice of the intention so to contest shall
------------------
be delivered by the Indemnifying Party to the Indemnified Party within a
reasonable time in light of the circumstances then and there existing. Any
contest may be conducted in the name and on behalf of the Indemnifying Party or
the Indemnified Party as may be appropriate. The contest shall be conducted by
attorneys engaged by the Indemnifying Party, but the Indemnified Party shall
have the right to participate in those proceedings and to be represented by
attorneys of its own choosing at its cost and expense; provided, however, that,
if the named parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party or if the
Indemnifying Party proposes that the same counsel represent both the Indemnified
Party and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them, then the Indemnified Party shall have the fight to retain its own
counsel at the cost and expense of the Indemnifying Party. If the Indemnified
Party joins in any contest, the Indemnifying Party shall have full authority to
determine all action to be taken; provided, however, that the Indemnified Party
------------------
shall have the right to approve any settlement, which approval shall not be
unreasonably withheld (it being understood that it shall not be unreasonable to
withhold consent to any settlement involving injunctive or other equitable
relief).
(c) The Indemnified Party agrees to afford the Indemnifying Party and
its counsel the opportunity to be present at, and to participate in, conferences
with all persons, including governmental authorities asserting any Claim against
the Indemnified Party or conferences with representatives of or counsel for
those persons. So long as the Indemnifying Party is defending in good faith that
Claim, the Indemnified Party shall cooperate with and assist the Indemnifying
Party to the extent reasonably possible, but the Indemnifying Party shall bear
and pay any and all expenses incurred by the Indemnified Party in providing such
cooperation and assistance, either directly or upon request of the Indemnified
Party. The Indemnified Party shall be kept fully informed of the defense of any
Claim at all stages thereof. In the event that the Indemnifying Party fails to
timely and in good faith defend against that Claim, the Indemnified Party shall
have the right, but not the obligation, to defend the same and may make any
compromise or settlement thereof and recover and be indemnified for the entire
cost thereof from the Indemnifying Party, including, but not limited to, legal
expenses, disbursements and all amounts paid as a result of that Claim or any
compromise or settlement thereof. If, in good faith, the Indemnified Party
concludes that there are specific defenses available to the Indemnified Party
which are different from or in addition to those available to the Indemnifying
Party, or that those Claims may have a material adverse effect on the
Indemnified Party with respect to the scope of the foregoing indemnities, then
the Indemnified Party shall have the right to direct the defense of that Claim
and the Indemnifying Party shall bear the expenses thereof. In the event that
the Indemnified Party is, directly or indirectly, conducting a defense against
any such Claim, the Indemnifying Party shall cooperate with the Indemnified
Party in that defense and make available to it all those witnesses, records,
materials and information in its possession or under its control relating
thereto.
(d) The Indemnifying Party shall pay to the Indemnified Party the
amount to which the Indemnified Party may become entitled by reason of the
provisions of Article VI of this
7
<PAGE>
Agreement within fifteen (15) business days after any the amount owed is finally
determined either by mutual agreement of the parties to this Agreement or
pursuant to the final unappealable judgment of a court of competent jurisdiction
and the Indemnifying Party agrees to pay all costs and expenses in connection
with obtaining any bond required to appeal any judgment.
ARTICLE VII
Miscellaneous
-------------
Section 7.1 Survival of Representations and Warranties. All of the
------------------------------------------
respective representations and warranties of the parties to this Agreement or in
any certificate delivered by any party incident to the contemplated transactions
are material and may be relied upon by the party receiving the same and shall
survive the consummation of the contemplated transactions for the time period
equal to the applicable statutes of limitations. All covenants of the parties
to this Agreement shall survive the consummation of the transactions
contemplated by this Agreement. All statements in this Agreement, the Related
Documents shall be deemed representations and warranties. The due diligence
investigations conducted by the parties to this Agreement and the results
thereof shall not diminish or otherwise affect any of the representations and
warranties set forth in this Agreement.
Section 7.2 Brokers' Commission. The Company will indemnify and hold
-------------------
harmless SJI from any commission, fee or claim of any person, firm or
corporation employed or retained or claiming to be employed or retained by the
Company to bring about, or to represent it in, the transactions contemplated by
this Agreement. SJI will jointly or severally indemnify and hold harmless The
Company from any commission, fee or claim of any person, firm or corporation
employed or retained or claiming to be employed or retained by SJI to bring
about, or to represent them in, the transactions contemplated by this Agreement.
Section 7.3 Amendment and Modification. This Agreement and the Related
--------------------------
Documents may not be modified or terminated orally, and no modification or
termination shall be binding unless in writing and signed by the parties to this
Agreement.
Section 7.4 Binding Effect. This Agreement shall be binding upon and
--------------
inure to the benefit of the parties and their respective successors, assigns,
heirs, estates, beneficiaries, executors and legal and personal representatives.
Section 7.5 No Waiver; Remedies Cumulative. This Agreement and the
------------------------------
Exhibits and Schedules attached to this Agreement and the Related Documents
contain the entire agreement of the parties with respect to the acquisition and
the other transactions contemplated in this Agreement, and merges and supersedes
all prior understandings and agreements among the parties with respect to the
subject matter of this Agreement. Failure of any party to enforce one or more of
the provisions of this Agreement or to require at any time performance of any of
the obligations under this Agreement shall not be construed to be a waiver of
any provisions by any party nor to in any way affect the validity of this
Agreement or any party's right to enforce any provision of this Agreement nor to
preclude any party from taking all other action at any time which it would
legally be entitled to take. All waivers to be effective shall be in writing
signed by the waiving party.
8
<PAGE>
Section 7.6 Headings. The descriptive headings in this Agreement are
--------
inserted for. convenience of reference only and shall in no way restrict or
otherwise affect the construction of the terms or provisions of this Agreement.
Any references in this Agreement to Sections, Exhibits and Schedules are the
Sections, Exhibits and Schedules of this Agreement or the Related Documents.
Section 7.7 Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of multiple counterparts, each of which shall be deemed an original
and all of which together shall be deemed to be one and the same instrument.
Each party agrees to be bound by any telecopied signature to this agreement or
any agreement executed in connection herewith as if a manually executed
signature page had been executed and delivered.
Section 7.8 Notices. Whenever any notice, request, information or other
-------
document is required or permitted to be given under this Agreement, that notice,
demand or request shall be in writing and shall be either hand delivered, sent
by United States certified mail, postage prepaid, delivered via overnight
courier to the addresses below or to any other address that any party may
specify by notice to the other parties. No party shall be obligated to send more
than one notice to each of the other parties and no notice of a change of
address shall be effective until received by the other parties. A notice shall
be deemed received upon hand delivery, two days after posting in the United
States mail or one day after dispatch by overnight courier.
If to the Company: ISLEUTH. COM, Inc.
c/o Thomas Taule
21311 N.E. 2nd Avenue
North Miami, Florida
With a copy to: David M. Glassberg, Esq.
1570 Madruga Avenue
Suite 211
Coral Gables, Florida 33146
If to SJI
or MAVERICK: J.D. Jenkens, President
321 Troy Circle
Knoxville, TN 37919
Section 7.9 Severability. The invalidity or unenforceability of any one
------------
or more of the words, phrases, sentences, clauses, or sections contained in this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement or any part of any provision, all of which are
inserted conditionally on their being valid in law, and in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid or unenforceable, this Agreement shall
be construed as if such invalid or unenforceable word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted or shall be enforced as nearly as possible according to their
original terms and intent to eliminate any invalidity or unenforceability. If
any invalidity or unenforceability
9
<PAGE>
is caused by the length of any period of time or the size of any area set forth
in any part of this Agreement, the period of time or area, or both, shall be
considered to be reduced to a period or area which would cure the invalidity or
unenforceability.
Section 7.10 Litigation: Prevailing Party. Except as otherwise required
----------------------------
by applicable law or as expressly provided in this Agreement, in the event of
any litigation, including appeals, with regard to this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party all reasonable
fees, costs, and expenses of counsel (at pre-trial, trial and appellate levels).
Section 7.11 Construction. This Agreement shall be construed without
------------
regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted, including any presumption of superior
knowledge or responsibility based upon a party's business or profession or any
professional training, experience, education or degrees of any member, agent,
officer of employee of any party. If any words in this Agreement have been
stricken out or otherwise eliminated (whether or not any other words or phrases
have been added) and the stricken words initialed by the party against whom the
words are construed, then this Agreement shall be construed as if the words so
stricken out or otherwise eliminated were never included in this Agreement and
no implication or inference shall be drawn from the fact that those words were
stricken out or otherwise eliminated.
Section 7.12 Preliminary Statements. Each of the preliminary statements
----------------------
is true and correct and incorporated into this Agreement by reference.
Section 7.13 Jurisdiction; Venue: Inconvenient Forum: Jury Trial. ANY
----------------------------------------------------
SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY JUDGMENT
ENTERED BY ANY COURT IN RESPECT TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY
IN THE COURTS OF THE STATE OF FLORIDA OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA IN DADE COUNTY, AND THE PARTIES ACCEPT THE
EXCLUSIVE PERSONAL JURISDICTION OF THOSE COURTS FOR THE PURPOSE OF ANY SUIT,
ACTION OR PROCEEDING. IN ADDITION, THE PARTIES KNOWINGLY, INTENTIONALLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY NOW OR LATER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED
BY ANY COURT BROUGHT IN THE STATE OF FLORIDA, AND FURTHER, KNOWINGLY,
INTENTIONALLY AND IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUIT, ACTION OR
PROCEEDING BROUGHT IN THE STATE OF FLORIDA HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH PARTY WAIVES ALL RIGHTS TO ANY TRIAL BY JURY IN ALL LITIGATION
RELATING TO OR ARISING OUT OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the date first written above.
SJI:
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SJI GROUP, INC., a Florida corporation
By: /s/ J.D. Jenkens
-----------------------------------
J.D. Jenkens, President
COMPANY:
ISLEUTH. COM, INC, a Florida corporation
By: /s/ Thomas J. Taule
-----------------------------------
Thomas J. Taule, President
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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is entered into as of July 9,
1999 ("the "Effective Date") by and between The BigHub.com, Inc., a Florida
corporation (the "Company"), and Patrick J. DeMicco (the "Executive") under the
following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company, the
Company desires to restrict Executive's rights to compete with the business of
the Company;
WHEREAS, the parties acknowledge that the Executive's abilities and
services are unique and essential to the prospects of the Company; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as President and Chief Executive Officer and the Executive desires to
accept such employment.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
The term of this Agreement (the "Term") shall be for a period commencing on
the Effective Date of this Agreement and shall continue for a period of thirty-
six (36) months from the date thereof, unless sooner terminated as provided in
Paragraph 6. Upon expiration of this three (3) year period, the Agreement shall
be renewed for successive three (3) year periods at the option of the Executive.
This three (3) year period, as the same may be extended or terminated pursuant
hereto, is hereinafter referred to as the "Term".
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3. COMPENSATION.
3.1 For all services rendered by Executive under this Agreement, the
Company shall pay Executive a base salary of Two Hundred Seventy-Five Thousand
Dollars ($275,000) per annum in equal monthly or semi-monthly installments (the
"Base Salary"). The amount of the Base Salary may be increased at any time and
from time to time by the approval of the Compensation Committee of the Company.
No such change shall in any way abrogate, alter, terminate or otherwise effect
the other terms of this Agreement.
3.2 In addition to the Base Salary, the Company shall pay Executive a one-
time sign-on bonus of One Hundred Fifty Thousand Dollars ($150,000), payable
immediately following the Company's initial closing of its funding with minimum
proceeds to the Company of $4,000,000.
3.3 In addition to the Base Salary, Executive shall be eligible for an
annual incentive bonus ("Incentive Bonus") in an amount not to exceed 100% of
the Base Salary. Seventy five percent (75%) of the Incentive Bonus shall be
based upon the goals mutually agreed upon by the Board or a Committee of the
Board and the Executive, within 30 days of the Effective Date, and the remaining
twenty five percent (25%) shall be discretionary. The Incentive Bonus shall be
paid, if earned, within 30 days after the Company's year-end operating results
have been determined by the Company=s accountants.
3.4 In addition to the Base Salary, the Company shall pay to Executive an
automobile allowance of one thousand five hundred dollars ($1,500) per month,
during the term of this agreement. Executive shall pay all expenses relating to
the use of an automobile in furtherance of business of the Company, including
liability insurance, maintenance, repairs, gasoline, and oil.
3.5 In addition to the Base Salary, Executive shall be entitled to all
other benefits of employment provided to the other employees of the Company
holding comparable positions within the Company, including but not limited to
paid vacation, paid health insurance for the Executive and spouse, paid life
insurance to a maximum of base salary, keyman life insurance in the amount of
$2,000,000, paid mobile telephone expense for business use, and participation in
retirement and investment programs as instituted by the Company.
3.6 Executive shall be reimbursed for all reasonable "out-of-pocket"
business expenses for business travel and business entertainment incurred in
connection with the performance of his or her duties under this Agreement (i) so
long as such expenses constitute business deductions from taxable income for the
Company and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code and (ii) to the
extent such expenses do not exceed the amounts allocable for such expenses in
budgets that are approved from time to time by the Company. The reimbursement of
Executive's business expenses shall be upon monthly presentation to and approval
by the Company of valid receipts and other appropriate documentation for such
expenses.
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3.7 All compensation shall be subject to customary withholding tax and
other employment taxes as are required with respect to compensation paid by a
corporation to an employee.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement, devote his
reasonable best efforts, energies, and skills to the business of the Company and
any corporation controlled by the Company. For purposes of this Agreement, the
term the "Company" shall mean the Company and all Subsidiaries. From time to
time Executive may be required to work with affiliated companies.
4.2 During the Term of this Agreement, Executive shall serve as the
President and Chief Executive Officer of the Company and in such other capacity
as determined by the Board of Directors. Executive shall have such duties as the
Board of Directors shall from time to time prescribe hereunder. In the
performance of all of his responsibilities Executive shall be subject to all of
the Company=s policies, rules, and regulations applicable to its employees of
comparable status and shall report directly to, and shall be subject to, the
direction and control of the Board of Directors and shall perform such duties as
shall be assigned to him by the Board of Directors. In performing such duties,
Executive will be subject to and abide by, and will use his best efforts to
cause other employees of the Company to be subject to and abide by, all policies
and procedures developed by the Board of Directors or its Executive Committee.
4.3 To induce the Company to enter into this Agreement, the Executive
represents and warrants to the Company that except as set forth on Schedule 4.3
and excluding affiliates of the Company, (a) the Executive is not a party or
subject to any employment agreement or arrangement with any other person, firm,
company, corporation or other business entity, (b) the Executive is subject to
no restraint, limitation or restriction by virtue of any agreement or
arrangement, or by virtue of any law or rule of law or otherwise which would
impair the Executive's right or ability (i) to enter the employ of the Company,
or (ii) to perform fully his duties and obligations pursuant to this Agreement,
and (c) to the best of Executive's knowledge no material litigation is pending
or threatened against any business or business entity owned or controlled or
formerly owned or controlled by Executive.
4.4 During each year, Executive in the performance of his duties under
this Agreement shall comply or cause compliance with the applicable Annual Plan
and shall not (except for emergency expenditures or special circumstances
requiring an unanticipated expenditure) deviate materially from any budget
category set forth in the Annual Plan, incur any material additional expense or
change materially the manner of operation of the Company without the approval of
the Board of Directors.
5. RESTRICTIVE COVENANTS.
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5.1 Executive acknowledges that (i) he has a major responsibility for the
operation, administration, development and growth of the Company's business,
(ii) his work for the Company has brought him and will continue to bring him
into close contact with confidential information of the Company and its
customers, and (iii) the agreements and covenants contained in this Paragraph 5
are essential to protect the business interest of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees as follows:
5.1(a) During the Term of this Agreement and thereafter, the
Executive shall not other than in the performance of his duties disclose to
anyone any information about the affairs of the Company, including, without
limitation, trade secrets, trade "know-how", inventions, customer lists,
business plans, operational methods, pricing policies, marketing plans, sales
plans, identity of suppliers or customers, sales, profits or other financial
information, which is confidential to the Company or is not generally known in
the relevant trade, nor shall the Executive make use of any such information for
his own benefit. Any technique, method, process or technology used by the
Company shall be considered a "trade secret" for the purposes of this Agreement.
5.1(b) Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client files and
materials made by him or by the Company are the property of the Company and
shall not be used by him in any way adverse to the Company's interests.
Executive shall not deliver, reproduce or in any way allow such documents or
things to be delivered or used by any third party without specific direction or
consent of the Board of Directors of the Company. Executive hereby assigns to
the Company any rights which he may have in any such trade secret or proprietary
information.
5.2 If the Executive breaches, or threatens to commit a breach of
Paragraph 5.1 (the "Restrictive Covenants"), the Company shall have the
following rights and remedies, each of which shall be enforceable, and each of
which is in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity.
5.2(a) The Executive acknowledges and agrees that in the event of a
violation or threatened violation of any of the provisions of Paragraph 5, the
Company shall have no adequate remedy at law and shall therefore be entitled to
enforce each such provision by temporary or permanent injunctive or mandatory
relief obtained in any court of competent jurisdiction without the necessity of
proving damages, posting any bond or other security, and without prejudice to
any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof, is held to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties
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hereto agree that the court making such termination shall have the power to
reduce the duration and/or area of such provision and, in its reduced form, such
provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
6. TERMINATION.
6.1 The Company may terminate the Executive's employment under this
Agreement at any time for Cause. "Cause" shall exist for such termination if
Executive (i) is adjudicated guilty of a felony by a court of competent
jurisdiction, (ii) commits any act of fraud or intentional misrepresentation in
connection with his employment by the Company, (iii) has, in the reasonable
judgment of, and after a good faith investigation by, the Company's Board of
Directors, (a) engaged in serious and willful misconduct, which conduct has, or
would if generally known, materially adversely affect the goodwill or reputation
of the Company and which conduct the Executive has not cured or altered to the
satisfaction of the Board of Directors within ten (10) days following written
notice by the Board of Directors to the Executive regarding such conduct, or (b)
willfully and intentionally failed to perform his duties as specified to him by
the Board of Directors, which has not cured or rectified to the satisfaction of
the Board of Directors within ten (10) days following written notice by the
Board of Directors, or (iii) has made any material misrepresentation to the
Company under Paragraphs 4 and 5 hereof.
6.2 If the Company terminates the Executive's employment under this
Agreement pursuant to the provisions of Paragraph 6.1 hereof, the Executive
shall not be entitled to receive any compensation following the date of such
termination.
6.3 This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his or her duties hereunder and which
appears reasonably certain to continue for at least six (6) consecutive months
without substantial improvement. Executive shall be deemed to have "become
permanently incapacitated" on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so notifies
Executive.
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6.4 If Executive's employment is terminated for any reason (whether by
Executive or the Company) within one (1) day following a "Change in Control of
the Company" (as defined below), Executive shall be entitled to the benefits
provided in Section 6.5 below. For purposes of this Agreement, a "Change in
Control of the Company" shall mean, at such time as the Company's Board of
Directors becomes fully constituted (e.g., the number of directors reaches five
(5)), a cumulative change in the identity of a majority (e.g., 51%) of the
members of the Company's first fully constituted Board of Directors.
6.5 Executive's employment may be terminated by the Company "without
cause" (for any reason or no reason at all) at any time by giving Executive
sixty (60) days prior written notice of termination, which termination shall be
effective on the 60th day following such notice. If Executive's employment under
this Agreement is so terminated, the Company shall make a lump sum cash payment
to Executive on the date of termination of an amount equal to (i) three (3)
years' Base Salary, plus a pro rata portion of any Incentive Compensation, if
any, earned for the year in which termination occurs prorated to the date of
termination, and (ii) any unreimbursed expenses accruing to the date of
termination. The Company shall also continue Executive's benefits through the
remainder of the Term.
6.6 Executive may terminate his or her employment hereunder by giving the
Company sixty (60) days prior written notice, which termination shall be
effective on the 60th day following such notice. Voluntary termination shall not
entitle the Executive to receive any compensation following the date of
termination.
6.7 At the Company's option, Executive shall immediately leave the
Company's premises on the date notice of termination is given by either
Executive or the Company. If the Company requests Executive to leave the Company
following notice under Paragraph 6.6, it shall fully compensate Executive
(salary and benefits) through the 60th day following the date of Executive's
notice.
7. MISCELLANEOUS.
7.1 The Company may, from time to time, apply for and take out, in its own
name and at its own expense, life, health, accident, disability or other
insurance upon the Executive in any sum or sums that it may deem necessary to
protect its interests, and the Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter this
Agreement, the Executive represents and warrants to the Company that to the best
of his knowledge the Executive is insurable at standard (non-rated) premiums.
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7.2 This Agreement is a personal contract, and the rights and interests of
the Executive hereunder may not be sold, transferred, assigned, pledged or
hypothecated except as otherwise expressly permitted by the provisions of this
Agreement. The Executive shall not under any circumstances have any option or
right to require payment hereunder otherwise than in accordance with the terms
hereof. Except as otherwise expressly provided herein, the Executive shall not
have any power of anticipation, alienation or assignment of payments
contemplated hereunder, and all rights and benefits of the Executive shall be
for the sole personal benefit of the Executive, and no other person shall
acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against the
Executive; provided, however, that in the event of the Executive's death, the
Executive's estate, legal representative or beneficiaries (as the case may be)
shall have the right to receive all of the benefit that accrued to the Executive
pursuant to, and in accordance with, the terms of this Agreement.
8. NOTICES.
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and (unless otherwise specifically provided
herein) shall be deemed to have been given at the time when mailed in any
general or branch United States Post Office, enclosed in a registered or
certified postpaid envelope, addressed to the parties stated below or to such
changed address as such party may have fixed by notice:
To the COMPANY: The BigHub.com, Inc.
2939 Mossrock, Suite 100
San Antonio, TX 78230
Attn: Chairman of the Board
Executive: Patrick J. DeMicco
4167 Warner Avenue #306
Huntington Harbor, CA 92649
9. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral or written,
between the parties hereto, with respect to the employment of Executive by the
Company and contains all of the covenants and Agreements between the parties
with respect to the rendering of such services in any manner whatsoever. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise with respect to such employment not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by the parties
hereto.
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10. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect without being impaired or
invalidated in any way.
11. ATTORNEYS' FEES.
Should any litigation or arbitration be commenced between the parties
hereto or their personal representatives concerning any provision of this
Agreement or the rights and duties of any person in relation thereto, the party
prevailing in such litigation or arbitration shall be entitled, in addition to
such other relief as may be granted, to a reasonable sum as and for its or their
attorneys' fees in such litigation or arbitration which shall be determined by
the court or arbitration board.
12. ARBITRATION.
The parties agree that any disputes arising under this Agreement may be
resolved at the Executive's option in as expeditious a manner as possible
through binding arbitration administered by the American Arbitration Association
in the County of Orange, California, or such other place which is mutually
agreed upon by the parties. Further, the parties hereby waive any objection
based on personal jurisdiction, venue or forum non conveniens in any arbitration
or action brought under this paragraph. The decision and award rendered by the
arbitrators shall be final and binding. Judgment upon the award may be entered
in any court having jurisdiction thereof.
Notwithstanding the first paragraph of this paragraph, any dispute
involving an amount that is less than or equal to the maximum jurisdictional
amount for small claims court, as may be amended, shall be brought in the small
claims court for the County of Orange, State of California, or such other place
which is mutually agreed upon by the parties.
13. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
laws of the State of California.
14. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representatives, heirs, successors and
assigns.
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15. WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed, or
shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
16. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this Agreement by
its corporate officer named below has been duly authorized by the Board of
Directors of the Company, is not in conflict with any Bylaw or other agreement
and will be a binding obligation of the Company, enforceable in accordance with
its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above written.
THE COMPANY: THE BIGHUB.COM, INC.
By:/s/ Frank W. Denny
------------------
Frank W. Denny
Chairman of the Board
Executive:
/s/ Patrick J. DeMicco
----------------------
Patrick J. DeMicco
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SCHEDULE 4.3(a)
Employee: Patrick J. DeMicco
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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of June 28,
1999 (the "Effective Date") by and between The BigHub.com, Inc., a Florida
corporation (the "Company"), and Douglas Martinez (the "Executive") under the
following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company, the
Company desires to restrict Executive's rights to compete with the business of
the Company;
WHEREAS, the parties acknowledge that the Executive's abilities and
services are unique and essential to the prospects of the Company; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as Executive Vice President and Chief Operating Officer and the
Executive desires to accept such employment.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
The term of this Agreement (the "Term") shall be for a period commencing on
the Effective Date of this Agreement and shall continue for a period of twenty-
four (24) months from the date thereof, unless sooner terminated as provided in
Paragraph 6. Upon termination of this two (2) year period, the Agreement shall
be renewed for successive two (2) year periods at the option of the Executive.
This two (2) year period, as the same may be extended or terminated pursuant
hereto, is hereinafter referred to as the "Term".
3. COMPENSATION.
3.1 For all services rendered by Executive under this Agreement, the
Company shall pay Executive a base salary of Two Hundred Forty Thousand Dollars
($240,000) per annum in equal
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semi-monthly installments on the 15th and last day of each month (the "Base
Salary"). The amount of the Base Salary shall be reviewed on an annual basis by
the Compensation Committee of the Company. No such change shall in any way
abrogate, alter, terminate or otherwise effect the other terms of this
Agreement.
3.2 In addition to the Base Salary, the Company shall pay Executive a one-
time sign-on bonus of One Hundred Thousand Dollars ($100,000) payable upon the
Company's having raised a minimum of $4,000,000 under its private placement,
which bonus shall be to cover relocation and transition costs..
3.3 In addition to the Base Salary, Executive shall be eligible for an
annual incentive bonus ("Incentive Bonus") in an amount not to exceed 100% of
the Base Salary. The Incentive Bonus shall be based upon goals mutually agreed
upon by the President/Chief Executive Officer and the Executive, within 30 days
of the Effective Date. The Incentive Bonus shall be paid, if earned, within 30
days after the Company's year-end operating results have been determined by the
Company's accountants. Executive's Incentive Bonus for each of the first two
years shall be a guaranteed minimum of 25% of Base Salary.
3.4 In addition to the compensation payable to the Executive by the
Company pursuant to the terms hereof, at such time as Executive shall begin
providing consulting services to The BigStore.com, Inc., Executive shall be
granted an option to purchase 50,000 shares of The BigStore.com, Inc.'s common
stock at an exercise price of $0.01 per share. The option shall vest over a
period of four (4) years, with 25% vesting on the first anniversary of the date
of grant and the remaining 75% vesting as to one-thirty sixth (1/36th) per month
each month thereafter for the next three (3) years. The option shall have a term
of ten (10) years. The option shall be subject to the terms and conditions of
the BigStore.com, Inc's 1999 Stock Incentive Plan established by its Board of
Directors and the Stock Option Agreement. The option shall immediately vest in
full upon a merger or sale of the BigStore.com, Inc., or a change in control (as
defined in the Plan).
3.5 In addition to the Base Salary, the Company shall pay to Executive an
automobile allowance of One Thousand Dollars ($1,000) per month during the term
of this agreement. Executive shall pay all expenses relating to the use of an
automobile in furtherance of business of the Company, including liability
insurance, maintenance, repairs, gasoline, and oil.
3.6 In addition to the Base Salary, Executive shall be entitled to all
other benefits of employment provided to the other employees of the Company
holding comparable positions within the Company, including but not limited to
paid vacation, paid health insurance for the Executive and his spouse, paid life
insurance to a maximum of base salary, keyman life insurance in the amount of
$2,000,000, paid mobile telephone expense for business use, and participation in
retirement and investment programs as instituted by the Company. Health
insurance coverage for other dependents shall be paid by the Executive.
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3.7 Executive shall be reimbursed for all reasonable "out-of-pocket"
business expenses for business travel and business entertainment incurred in
connection with the performance of his or her duties under this Agreement (i) so
long as such expenses constitute business deductions from taxable income for the
Company and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code and (ii) to the
extent such expenses do not exceed the amounts allocable for such expenses in
budgets that are approved from time to time by the Company. The reimbursement of
Executive's business expenses shall be upon monthly presentation to and approval
by the Company of valid receipts and other appropriate documentation for such
expenses. Executive shall also be reimbursed for pre-approved family house
hunting trips, legal fee's associated with employment agreement documents, and
business travel during Executive's transition to Newport Beach, California.
3.8 All compensation shall be subject to customary withholding tax and
other employment taxes as are required with respect to compensation paid by a
corporation to an employee.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement, devote his
full attention and expend his best efforts, energies, and skills, on a full-time
basis, to the business of the Company and any corporation controlled by the
Company. For purposes of this Agreement, the term the "Company" shall mean the
Company and all Subsidiaries. Executive shall not, during the term of this
Agreement, be engaged in any other business activity without the prior consent
of the Board of Directors of the Company; provided, however, that this
restriction shall not be construed as preventing Executive from investing his
personal assets in passive investments in business entities which are not in
competition with the Company or its affiliates. From time to time Executive may
be required to work with affiliated companies.
4.2 During the Term of this Agreement, Executive shall serve as the
Executive Vice President and Chief Operating Officer of the Company and in such
other capacity as may be determined by the President and Chief Executive
Officer. In the performance of all of his responsibilities hereunder, Executive
shall be subject to all of the Company's policies, rules, and regulations
applicable to its employees of comparable status and shall report directly to,
and shall be subject to the direction and control of, the President and Chief
Executive Officer and shall perform such duties as shall be assigned to him by
the President and Chief Executive Officer. In performing such duties, Executive
will be subject to and abide by, and will use his best efforts to cause other
employees of the Company to be subject to and abide by, all policies and
procedures developed by the President and Chief Executive Officer and/or the
Board of Directors.
4.3 Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the
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Board of Directors of the Company not exercise its right to pursue this business
opportunity within a reasonable period of time, not to exceed sixty (60) days,
then Executive with the consent of the Board of Directors may develop the
business opportunity for himself; provided, however, that such development may
in no way conflict or interfere with the duties owed by Executive to the Company
under this Agreement. Further, Executive may develop such business opportunities
only on his own time, and may not use any service, personnel, equipment,
supplies, facility, or trade secrets of the Company in their development. As
used herein, the term "business opportunity" shall not include business
opportunities involving investment in publicly traded stocks, bonds or other
securities, or other investments of a personal nature.
4.4 Without first obtaining the written permission of the Board of
Directors of the Company, Executive will not authorize or permit the Company to
engage the services of, or engage in any business activity with, or provide any
financial or other benefit to, any affiliate of Executive. The phrase "affiliate
of Executive" as used in this Paragraph shall mean and include Executive's
family by blood or marriage (including, without limitation, parents, spouse,
siblings, children and in-laws), and any business or business entity which is
directly or indirectly owned or controlled by Executive or any member of the
Executive's family or in which Executive or any member of the Executive's family
has any direct or indirect financial interest whatsoever.
4.5 To induce the Company to enter into this Agreement, the Executive
represents and warrants to the Company that except as set forth on Schedule 4.5,
(a) the Executive is not a party or subject to any employment agreement or
arrangement with any other person, firm, company, corporation or other business
entity, (b) the Executive is subject to no restraint, limitation or restriction
by virtue of any agreement or arrangement, or by virtue of any law or rule of
law or otherwise which would impair the Executive's right or ability (i) to
enter the employ of the Company, or (ii) to perform fully his duties and
obligations pursuant to this Agreement, and (c) to the best of Executive's
knowledge no material litigation is pending or threatened against any business
or business entity owned or controlled or formerly owned or controlled by
Executive. Should any legal action be taken against Executive, the Company will
provide legal support at the cost of the Company. The Company shall also
indemnify Executive for all acts and omissions within the scope of Executive's
employment.
4.6 During each year, Executive in the performance of his duties
under this Agreement shall comply or cause compliance with the applicable Annual
Plan and shall not (except for emergency expenditures or special circumstances
requiring an unanticipated expenditure) deviate materially from any budget
category set forth in the Annual Plan, incur any material additional expense or
change materially the manner of operation of the Company without the approval of
the Board of Directors.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major responsibility for
the operation, administration, development and growth of the Company's business,
(ii) his work for the
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Company has brought him and will continue to bring him into close contact with
confidential information of the Company and its customers, and (iii) the
agreements and covenants contained in this Paragraph 5 are essential to protect
the business interest of the Company and that the Company will not enter into
this Agreement but for such agreements and covenants. Accordingly, the Executive
covenants and agrees as follows:
5.1(a) Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated for any reason
during the Term, for eighteen (18) months following such date of termination
(the "Termination Period"), the Executive shall not, directly or indirectly,
compete with respect to any services or products of the Company which are either
offered or are being developed by the Company; or, without limiting the
generality of the foregoing, be or become, or agree to be or become, interested
in or associated with, in any capacity (whether as a partner, shareholder,
owner, officer, director, Executive, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise) with any individual, corporation, firm,
association, partnership, joint venture or other business entity, which competes
with respect to any services or products of the Company which are either offered
or are being developed by the Company; provided, however, that the Executive may
own, solely as an investment, not more than one percent (1%) of any class of
securities of any publicly held corporation in competition with the Company
whose securities are traded on any national securities exchange in the United
States of America, and may retain his ownership interest in those entities
referred to in Subparagraph 4.1.
5.1(b) During the term of this Agreement and, if applicable, during
the Termination Period, the Executive shall not, directly or indirectly, (i)
induce or attempt to influence any employee of the Company to leave its employ,
(ii) aid or agree to aid any competitor, customer or supplier of the Company in
any attempt to hire any person who shall have been employed by the Company
within the one (1) year period preceding such requested aid, or (iii) induce or
attempt to influence any person or business entity who was a customer or
supplier of the Company during any portion of said period to transact business
with a competitor of the Company in Company's business.
5.1(c) During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, the Executive shall not other than in the
performance of his duties disclose to anyone any information about the affairs
of the Company, including, without limitation, trade secrets, trade "know-how",
inventions, customer lists, business plans, operational methods, pricing
policies, marketing plans, sales plans, identity of suppliers or customers,
sales, profits or other financial information, which is confidential to the
Company or is not generally known in the relevant trade, nor shall the Executive
make use of any such information for his own benefit. Any technique, method,
process or technology used by the Company shall be considered a "trade secret"
for the purposes of this Agreement.
5.1(d) Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client files and
materials made by him or by the Company are the property of the Company and
shall not be used by him in any way adverse to the Company's interests.
Executive shall not deliver, reproduce or in any way allow such documents
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or things to be delivered or used by any third party without specific direction
or consent of the Board of Directors of the Company. Executive hereby assigns to
the Company any rights which he may have in any such trade secret or proprietary
information.
5.2 If any of the Restrictive Covenants, or any part thereof, is held
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
5.3 The parties hereto intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
6. TERMINATION.
6.1 The Company, through a vote of a majority of the Board of
Directors, may terminate the Executive's employment under this Agreement at any
time for Cause. "Cause" shall exist for such termination if Executive (i) is
adjudicated guilty of a felony by a court of competent jurisdiction, (ii)
commits any material act of fraud or intentional misrepresentation in connection
with his employment by the Company, (iii) has, in the reasonable judgment of,
and after a good faith investigation by, the Company's Board of Directors, (a)
engaged in serious and willful misconduct, which conduct has, or would if
generally known, materially adversely affect the goodwill or reputation of the
Company and which conduct the Executive has not cured or altered to the
satisfaction of the Board of Directors within ten (10) days following written
notice by the Board of Directors to the Executive regarding such conduct, or (b)
willfully and intentionally failed to perform his duties as specified to him by
the Board of Directors, which has not cured or rectified to the satisfaction of
the Board of Directors within ten (10) days following written notice by the
Board of Directors, or (iii) has made any material misrepresentation to the
Company under Paragraphs 4 and 5 hereof.
6.2 If the Company terminates the Executive's employment under this
Agreement pursuant to the provisions of Paragraph 6.1 hereof, the Executive
shall not be entitled to receive any compensation following the date of such
termination.
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6.3 This Agreement shall automatically terminate on the last day of
the month in which Executive dies or becomes permanently incapacitated.
"Permanent incapacity" as used herein shall mean mental or physical incapacity,
or both, reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his or her duties hereunder and which
appears reasonably certain to continue for at least six (6) consecutive months
without substantial improvement. Executive shall be deemed to have "become
permanently incapacitated" on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so notifies
Executive.
6.4 If Executive's employment is terminated for any reason (whether
by Executive or the Company) within thirty (30) days following a "Change in
Control of the Company" (as defined below), Executive shall be entitled to the
benefits provided in Section 6.5 below. For purposes of this Agreement, a
"Change in Control of the Company" shall mean, at such time as the Company's
Board of Directors becomes fully constituted (e.g., the number of directors
reaches five (5)), a cumulative change in the identity of a majority of the
members of the Company's first fully constituted Board of Directors (provided,
however, that the appointment of a new director upon the death or resignation of
a director by the remaining directors then in office shall not constitute a
change in identity with respect to such departed director).
6.5 Executive's employment may be terminated by the Company, through
a vote of a majority of the Board of Directors, "without cause" (for any reason
or no reason at all) at any time by giving Executive sixty (60) days prior
written notice of termination, which termination shall be effective on the 60th
day following such notice. If Executive's employment under this Agreement is so
terminated, the Company shall make a lump sum cash payment to Executive on the
date of termination of an amount equal to (i) two (2) years' Base Salary, plus a
pro rata portion of any Incentive Compensation, if any, earned for the year in
which termination occurs prorated to the date of termination, plus (ii) any
unreimbursed expenses accruing to the date of termination. The Company shall
also continue Executive's benefits through the remainder of the Term.
6.6 Executive may terminate his or her employment hereunder by giving
the Company sixty (60) days prior written notice, which termination shall be
effective on the 60th day following such notice. Voluntary termination shall not
entitle the Executive to receive any compensation following the date of
termination.
6.7 At the Company's option, Executive shall immediately leave the
Company's premises on the date notice of termination is given by either
Executive or the Company. If the Company requests Executive to leave the Company
following notice under Paragraph 6.6, it shall fully compensate Executive
(salary and benefits) through the 60th day following the date of Executive's
notice.
7. MISCELLANEOUS.
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7.1 The Company may, from time to time, apply for and take out, in
its own name and at its own expense, life, health, accident, disability or other
insurance upon the Executive in any sum or sums that it may deem necessary to
protect its interests, and the Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter this
Agreement, the Executive represents and warrants to the Company that to the best
of his knowledge the Executive is insurable at standard (non-rated) premiums.
7.2 This Agreement is a personal contract, and the rights and
interests of the Executive hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Executive shall not under any circumstances
have any option or right to require payment hereunder otherwise than in
accordance with the terms hereof. Except as otherwise expressly provided herein,
the Executive shall not have any power of anticipation, alienation or assignment
of payments contemplated hereunder, and all rights and benefits of the Executive
shall be for the sole personal benefit of the Executive, and no other person
shall acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against the
Executive; provided, however, that in the event of the Executive's death, the
Executive's estate, legal representative or beneficiaries (as the case may be)
shall have the right to receive all of the benefit that accrued to the Executive
pursuant to, and in accordance with, the terms of this Agreement.
7.3 The Company shall have the right to assign this Agreement to any
successor of substantially all of its business or assets, and any such successor
shall be bound by all of the provisions hereof.
8. NOTICES.
All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and (unless otherwise specifically
provided herein) shall be deemed to have been given at the time when mailed in
any general or branch United States Post Office, enclosed in a registered or
certified postpaid envelope, addressed to the parties stated below or to such
changed address as such party may have fixed by notice:
To the COMPANY: The BigHub.com, Inc.
2939 Mossrock, Suite 100
San Antonio, Texas 78230
Attn: Chief Executive Officer
Executive: Douglas Martinez
________________
________________
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9. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral or
written, between the parties hereto, with respect to the employment of Executive
by the Company and contains all of the covenants and Agreements between the
parties with respect to the rendering of such services in any manner whatsoever.
Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise with respect to such employment not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by the parties
hereto.
10. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect without being impaired or
invalidated in any way.
11. ATTORNEYS' FEES.
Should any litigation or arbitration be commenced between the parties
hereto or their personal representatives concerning any provision of this
Agreement or the rights and duties of any person in relation thereto, the party
prevailing in such litigation or arbitration shall be entitled, in addition to
such other relief as may be granted, to a reasonable sum as and for its or their
attorneys' fees in such litigation or arbitration which shall be determined by
the court or arbitration board.
12. ARBITRATION.
The parties agree that any disputes arising under this Agreement shall
be resolved in as expeditious a manner as possible through binding arbitration
administered by the American Arbitration Association in the County of Orange,
California, or such other place which is mutually agreed upon by the parties.
Further, the parties hereby waive any objection based on personal jurisdiction,
venue or forum non conveniens in any arbitration or action brought under this
paragraph. The decision and award rendered by the arbitrators shall be final and
binding. Judgment upon the award may be entered in any court having jurisdiction
thereof.
Notwithstanding the first paragraph of this paragraph, any dispute
involving an amount that is less than or equal to the maximum jurisdictional
amount for small claims court, as may be amended, shall be brought in the small
claims court for the County of Orange, State of California, or such other place
which is mutually agreed upon by the parties.
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13. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with
the laws of the State of California.
14. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representatives, heirs, successors and
assigns.
15. WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
16. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board of Directors of the Company, is not in conflict with any Bylaw or other
agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above written.
THE COMPANY: THE BIGHUB.COM, INC.
By: /s/ Frank W. Denny
-------------------
Name:Frank W. Denny
--------------
Its:Chairman of the Board
---------------------
Executive:
/s/ Douglas Martinez
--------------------
Douglas Martinez
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SCHEDULE 4.5(a)
Executive: Douglas Martinez
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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of June 14,
1999 (the "Effective Date") by and between The BigHub.com, Inc., a Florida
corporation (the "Company"), and Chet Howard (the "Executive") under the
following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company, the
Company desires to restrict Executive's rights to compete with the business of
the Company;
WHEREAS, the parties acknowledge that the Executive's abilities and
services are unique and essential to the prospects of the Company; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as Chief Financial Officer and the Executive desires to accept such
employment.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
2.1 The term of this Agreement (the "Term") shall be for a period
commencing on the Effective Date of this Agreement and shall continue for a
period of twenty-four (24) months from the date thereof, unless sooner
terminated as provided in Paragraph 6. This two (2) year period, as the same
may be extended or terminated pursuant hereto, is hereinafter referred to as the
"Term".
2.2 For purposes of extending the Term of the relationship between the
Company and Executive, the parties agree to enter into good faith negotiations
within sixty (60) days prior to the end of the Term. In the event that the
parties are unable to reach an agreement by the end of the Term, this Agreement
shall be automatically terminated twenty-four (24) months from the Effective
Date.
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3. COMPENSATION.
3.1 For all services rendered by Executive under this Agreement, the
Company shall pay Executive a base salary of One Hundred Seventy-Five Thousand
Dollars ( US $175,000) per annum in equal semi-monthly installments on the 15th
and last day of each month (the "Base Salary"). The amount of the Base Salary
shall be reviewed on an annual basis by the Compensation Committee of the
Company. No such change shall in any way abrogate, alter, terminate or
otherwise effect the other terms of this Agreement.
3.2 In addition to the Base Salary, Executive shall be eligible for an
annual incentive bonus ("Incentive Bonus") in an amount not to exceed Twenty-
Five Thousand Dollars (US $25,000). The Incentive Bonus shall be based upon
goals mutually agreed upon by the Board or a Committee of the Board and the
Executive, within 30 days of the Effective Date. The Incentive Bonus shall be
paid, if earned, within 30 days after the Company's year-end operating results
have been determined by the Company's accountants.
3.3 In addition to the Base Salary, Executive shall be entitled to all
other benefits of employment provided to the other employees of the Company
holding comparable positions within the Company, including but not limited to
paid vacation, paid health and dental insurance for the Executive, spouse and
dependents, paid life insurance to a maximum of base salary, paid mobile
telephone expense for business use, and participation in retirement and
investment programs as instituted by the Company.
3.4 Executive shall be reimbursed for all reasonable "out-of-pocket"
business expenses for business travel and business entertainment incurred in
connection with the performance of his or her duties under this Agreement (i) so
long as such expenses constitute business deductions from taxable income for the
Company and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code and (ii) to the
extent such expenses do not exceed the amounts allocable for such expenses in
budgets that are approved from time to time by the Company. The reimbursement
of Executive's business expenses shall be upon monthly presentation to and
approval by the Company of valid receipts and other appropriate documentation
for such expenses.
3.5 The Company will pay Executive a moving and relocation allowance of
$25,000 to cover the costs of the Executive's relocating to the Company's
executive office.
3.6 All compensation shall be subject to customary withholding tax and
other employment taxes as are required with respect to compensation paid by a
corporation to an employee.
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4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement, devote
substantially all his or her attention and expend his or her best efforts,
energies, and skills, on a full-time basis, to the business of the Company and
any corporation controlled by or affiliated with the Company. For purposes of
this Agreement, the term the "Company" shall mean the Company and all
Subsidiaries. Executive shall not, during the term of this Agreement, be
engaged in any other substantial business activity without the prior consent of
the Board of Directors of the Company; provided, however, that this restriction
shall not be construed as preventing Executive from investing his or her
personal assets in passive investments in business entities which are not in
competition with the Company or its affiliates. From time to time Executive may
be required to work with affiliated companies.
4.2 During the Term of this Agreement, Executive shall serve as the Chief
Financial Officer of the Company and in such other capacity as determined by the
President and Chief Executive Officer. In the performance of all of his or her
responsibilities hereunder, Executive shall be subject to all of the Company's
policies, rules, and regulations applicable to its employees of comparable
status and shall report directly to, and shall be subject to, the direction and
control of the President and Chief Executive Officer and shall perform such
duties as shall be assigned to him by the President and Chief Executive Officer.
In performing such duties, Executive will be subject to and abide by, and will
use his or her best efforts to cause other employees of the Company to be
subject to and abide by, all policies and procedures developed by the President
and Chief Executive Officer.
4.3 Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his or her duties under this Agreement. Should
Executive discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he or she shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed sixty (60) days, then Executive with the consent
of the Board of Directors may develop the business opportunity for himself or
herself; provided, however, that such development may in no way conflict or
interfere with the duties owed by Executive to the Company under this Agreement.
Further, Executive may develop such business opportunities only on his or her
own time, and may not use any service, personnel, equipment, supplies, facility,
or trade secrets of the Company in their development. As used herein, the term
"business opportunity" shall not include business opportunities involving
investment in publicly traded stocks, bonds or other securities, or other
investments of a personal nature.
4.4 Without first obtaining the written permission of the Board of
Directors of the Company, Executive will not authorize or permit the Company to
engage the services of, or engage in any business activity with, or provide any
financial or other benefit to, any affiliate of Executive. The phrase
"affiliate of Executive" as used in this Paragraph shall mean and include
Executive's family by blood or marriage (including, without limitation, parents,
spouse, siblings, children and
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in-laws), and any business or business entity which is directly or indirectly
owned or controlled by Executive or any member of the Executive's family or in
which Executive or any member of the Executive's family has any direct or
indirect financial interest whatsoever.
4.5 To induce the Company to enter into this Agreement, the Executive
represents and warrants to the Company that except as set forth on Schedule 4.5
(a) the Executive is not a party or subject to any employment agreement or
arrangement with any other person, firm, company, corporation or other business
entity, (b) the Executive is subject to no restraint, limitation or restriction
by virtue of any agreement or arrangement, or by virtue of any law or rule of
law or otherwise which would impair the Executive's right or ability (i) to
enter the employ of the Company, or (ii) to perform fully his or her duties and
obligations pursuant to this Agreement, and (c) to the best of Executive's
knowledge no material litigation is pending or threatened against any business
or business entity owned or controlled or formerly owned or controlled by
Executive. Should any legal action be taken against Executive, the Company will
provide legal support at the cost of the Company.
4.6 During each year, Executive in the performance of his duties under
this Agreement shall comply or cause compliance with the applicable Annual Plan
and shall not (except for emergency expenditures or special circumstances
requiring an unanticipated expenditure) deviate materially from any budget
category set forth in the Annual Plan, incur any material additional expense or
change materially the manner of operation of the Company without the approval of
the Board of Directors.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he or she has a major responsibility
for the operation, administration, development and growth of the Company's
business, (ii) his or her work for the Company has brought him or her and will
continue to bring him or her into close contact with confidential information of
the Company and its customers, and (iii) the agreements and covenants contained
in this Paragraph 5 are essential to protect the business interest of the
Company and that the Company will not enter into this Agreement but for such
agreements and covenants. Accordingly, the Executive covenants and agrees as
follows:
5.1(a) Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated for any reason
during the Term, for eighteen (18) months following such date of termination
(the "Termination Period"), the Executive shall not, directly or indirectly,
compete with respect to any services or products of the Company which are either
offered or are being developed by the Company; or, without limiting the
generality of the foregoing, be or become, or agree to be or become, interested
in or associated with, in any capacity (whether as a partner, shareholder,
owner, officer, director, Executive, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise) with any individual, corporation, firm,
association, partnership, joint venture or other business entity, which competes
with respect to any services or products of the Company which are either offered
or are being developed by the Company; provided,
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however, that the Executive may own, solely as an investment, not more than five
percent (5%) of any class of securities of any publicly held corporation in
competition with the Company whose securities are traded on any national
securities exchange in the United States of America, and may retain his or her
ownership interest in those entities referred to in Subparagraph 4.1.
5.1(b) During the term of this Agreement and, if applicable, during
the Termination Period, the Executive shall not, directly or indirectly, (i)
induce or attempt to influence any employee of the Company to leave its employ,
(ii) aid or agree to aid any competitor, customer or supplier of the Company in
any attempt to hire any person who shall have been employed by the Company
within the one (1) year period preceding such requested aid, or (iii) induce or
attempt to influence any person or business entity who was a customer or
supplier of the Company during any portion of said period to transact business
with a competitor of the Company in Company's business.
5.1(c) During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, the Executive shall not other than in the
performance of his or her duties disclose to anyone any information about the
affairs of the Company, including, without limitation, trade secrets, trade
"know-how", inventions, customer lists, business plans, operational methods,
pricing policies, marketing plans, sales plans, identity of suppliers or
customers, sales, profits or other financial information, which is confidential
to the Company or is not generally known in the relevant trade, nor shall the
Executive make use of any such information for his own benefit. Any technique,
method, process or technology used by the Company shall be considered a "trade
secret" for the purposes of this Agreement.
5.1(d) Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client files and
materials made by him or her or by the Company are the property of the Company
and shall not be used by him in any way adverse to the Company's interests.
Executive shall not deliver, reproduce or in any way allow such documents or
things to be delivered or used by any third party without specific direction or
consent of the Board of Directors of the Company. Executive hereby assigns to
the Company any rights which he or she may have in any such trade secret or
proprietary information.
5.2 If any of the Restrictive Covenants, or any part thereof, is held to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
5.3 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the
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Company's right to the relief provided above in the courts of any other
jurisdictions within the geographical scope of such Restrictive Covenants, as to
breaches of such covenants in such other respective jurisdictions, the above
covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
6. TERMINATION.
6.1 The Company, through a vote of a majority of the Board of Directors,
may terminate the Executive's employment under this Agreement at any time for
Cause. "Cause" shall exist for such termination if Executive (i) is adjudicated
guilty of a felony by a court of competent jurisdiction, (ii) commits any act of
fraud or intentional misrepresentation in connection with his employment by the
Company, (iii) has, in the reasonable judgment of, and after a good faith
investigation by, the Company's Board of Directors, (a) engaged in serious and
willful misconduct, which conduct has, or would if generally known, materially
adversely affect the goodwill or reputation of the Company and which conduct the
Executive has not cured or altered to the satisfaction of the Board of Directors
within ten (10) days following written notice by the Board of Directors to the
Executive regarding such conduct, or (b) willfully and intentionally failed to
perform his or her duties as specified to him by the Board of Directors, which
has not cured or rectified to the satisfaction of the Board of Directors within
ten (10) days following written notice by the Board of Directors, or (iii) has
made any material misrepresentation to the Company under Paragraphs 4 and 5
hereof.
6.2 If the Company terminates the Executive's employment under this
Agreement pursuant to the provisions of Paragraph 6.1 hereof, the Executive
shall not be entitled to receive any compensation following the date of such
termination.
6.3 This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his or her duties hereunder and which
appears reasonably certain to continue for at least six (6) consecutive months
without substantial improvement. Executive shall be deemed to have "become
permanently incapacitated" on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so notifies
Executive.
6.4 If Executive's employment is terminated for any reason (whether by
Executive or the Company) within thirty (30) days following a "Change in Control
of the Company" (as defined below), Executive shall be entitled to the benefits
provided in Section 6.5 below. For purposes of this Agreement, a "Change in
Control of the Company" shall mean, at such time as the Company's Board of
Directors becomes fully constituted (e.g., the number of directors reaches five
(5)), a cumulative change in the identity of a majority of the members of the
Company's first fully
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constituted Board of Directors (provided, however, that the appointment of a new
director upon the death or resignation of a director by the remaining directors
then in office shall not constitute a change in identity with respect to such
departed director).
6.5 Executive's employment may be terminated by the Company, through a
vote of a majority of the Board of Directors, "without cause" (for any reason or
no reason at all) at any time by giving Executive sixty (60) days prior written
notice of termination, which termination shall be effective on the 60th day
following such notice. If Executive's employment under this Agreement is so
terminated, the Company shall make a lump sum cash payment to Executive on the
date of termination of an amount equal to (i) the greater of (a) the remaining
Base Salary payable through the remaining term, or (b) eighteen (18) months
Base Salary, plus (ii) a pro rata portion of any Incentive Compensation, if any,
earned for the year in which termination occurs prorated to the date of
termination, plus (iii) any unreimbursed expenses accruing to the date of
termination. The Company shall also continue Executive's benefits through the
remainder of the Term.
6.6 Executive may terminate his or her employment hereunder by giving the
Company sixty (60) days prior written notice, which termination shall be
effective on the 60th day following such notice. Voluntary termination shall
not entitle the Executive to receive any compensation following the date of
termination.
6.7 At the Company's option, Executive shall immediately leave the
Company's premises on the date notice of termination is given by either
Executive or the Company. If the Company requests Executive to leave the
Company following notice under Paragraph 6.6, it shall fully compensate
Executive (salary and benefits) through the 60th day following the date of
Executive's notice.
7. MISCELLANEOUS.
7.1 The Company may, from time to time, apply for and take out, in its own
name and at its own expense, life, health, accident, disability or other
insurance upon the Executive in any sum or sums that it may deem necessary to
protect its interests, and the Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter this
Agreement, the Executive represents and warrants to the Company that to the best
of his or her knowledge the Executive is insurable at standard (non-rated)
premiums.
7.2 This Agreement is a personal contract, and the rights and interests of
the Executive hereunder may not be sold, transferred, assigned, pledged or
hypothecated except as otherwise expressly permitted by the provisions of this
Agreement. The Executive shall not under any
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circumstances have any option or right to require payment hereunder otherwise
than in accordance with the terms hereof. Except as otherwise expressly provided
herein, the Executive shall not have any power of anticipation, alienation or
assignment of payments contemplated hereunder, and all rights and benefits of
the Executive shall be for the sole personal benefit of the Executive, and no
other person shall acquire any right, title or interest hereunder by reason of
any sale, assignment, transfer, claim or judgment or bankruptcy proceedings
against the Executive; provided, however, that in the event of the Executive's
death, the Executive's estate, legal representative or beneficiaries (as the
case may be) shall have the right to receive all of the benefit that accrued to
the Executive pursuant to, and in accordance with, the terms of this Agreement.
7.3 The Company shall have the right to assign this Agreement to any
successor of substantially all of its business or assets, and any such successor
shall be bound by all of the provisions hereof.
8. NOTICES.
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and (unless otherwise specifically provided
herein) shall be deemed to have been given at the time when mailed in any
general or branch United States Post Office, enclosed in a registered or
certified postpaid envelope, addressed to the parties stated below or to such
changed address as such party may have fixed by notice:
To the COMPANY: The BigHub.com, Inc.
2939 Mossrock, Suite 100
San Antonio, Texas 78230
Attn: Chief Executive Officer
Executive: Chet Howard
_____________________________
_____________________________
9. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral or written,
between the parties hereto, with respect to the employment of Executive by the
Company and contains all of the covenants and Agreements between the parties
with respect to the rendering of such services in any manner whatsoever. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise with respect to such employment not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by the parties
hereto.
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10. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect without being impaired or
invalidated in any way.
11. ATTORNEYS' FEES.
Should any litigation or arbitration be commenced between the parties
hereto or their personal representatives concerning any provision of this
Agreement or the rights and duties of any person in relation thereto, the party
prevailing in such litigation or arbitration shall be entitled, in addition to
such other relief as may be granted, to a reasonable sum as and for its or their
attorneys' fees in such litigation or arbitration which shall be determined by
the court or arbitration board.
12. ARBITRATION.
The parties agree that any disputes arising under this Agreement shall be
resolved in as expeditious a manner as possible through binding arbitration
administered by the American Arbitration Association in the County of Orange,
California, or such other place which is mutually agreed upon by the parties.
Further, the parties hereby waive any objection based on personal jurisdiction,
venue or forum non conveniens in any arbitration or action brought under this
paragraph. The decision and award rendered by the arbitrators shall be final
and binding. Judgment upon the award may be entered in any court having
jurisdiction thereof.
Notwithstanding the first paragraph of this paragraph, any dispute
involving an amount that is less than or equal to the maximum jurisdictional
amount for small claims court, as may be amended, shall be brought in the small
claims court for the County of Orange, State of California, or such other place
which is mutually agreed upon by the parties.
13. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
laws of the State of California.
14. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representatives, heirs, successors and
assigns.
15. WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed, or
shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
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16. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this Agreement by
its corporate officer named below has been duly authorized by the Board of
Directors of the Company, is not in conflict with any Bylaw or other agreement
and will be a binding obligation of the Company, enforceable in accordance with
its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above written.
THE COMPANY: THE BIGHUB.COM, INC.
By: /s/ Frank W. Denny
-------------------
Name: Frank W. Denny
Its: Chairman of the Board
Executive:
/s/ Chet Howard
---------------
Chet Howard
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SCHEDULE 4.5(a)
Employee:Chet Howard
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Exhibit 10.6
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of June 30,
1999 (the "Effective Date") by and between The BigHub.com, Inc., a Florida
corporation (the "Company"), and Mark S. Doumani (the "Executive") under the
following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall employ Executive, (ii) Executive shall
render services to the Company, and (iii) the Company shall compensate Executive
for such services; and
WHEREAS, in connection with the employment of Executive by the Company, the
Company desires to restrict Executive's rights to compete with the business of
the Company;
WHEREAS, the parties acknowledge that the Executive's abilities and
services are unique and essential to the prospects of the Company; and
WHEREAS, in light of the foregoing, the Company desires to employ the
Executive as Vice President of Sales and Marketing and the Executive desires to
accept such employment.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby accepts
employment with the Company upon the terms and conditions hereinafter set forth.
2. TERM.
2.1 The term of this Agreement (the "Term") shall be for a period
commencing on the Effective Date of this Agreement and shall continue for a
period of twenty-four (24) months from the date thereof, unless sooner
terminated as provided in Paragraph 6. This two (2) year period, as the same may
be extended or terminated pursuant hereto, is hereinafter referred to as the
"Term".
2.2 For purposes of extending the Term of the relationship between the
Company and Executive, the parties agree to enter into good faith negotiations
within sixty (60) days prior to the end of the Term. In the event that the
parties are unable to reach an agreement by the end of the Term, this Agreement
shall be automatically terminated twenty-four (24) months from the Effective
Date.
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3. COMPENSATION.
3.1 For all services rendered by Executive under this Agreement, the
Company shall pay Executive a base salary of One Hundred Seventy-Five Thousand
Dollars ($175,000) per annum in equal semi-monthly installments on the 15th and
last day of each month (the "Base Salary"). The amount of the Base Salary shall
be reviewed on an annual basis by the Compensation Committee of the Company. No
such change shall in any way abrogate, alter, terminate or otherwise effect the
other terms of this Agreement.
3.2 In addition to the Base Salary, Executive shall be eligible for an
annual incentive bonus ("Incentive Bonus") in an amount not to exceed fifty
percent (50%) of the Base Salary. The Incentive Bonus shall be based upon goals
mutually agreed upon by the Chief Operating Officer and the Executive, within
thirty (30) days of the Effective Date. The Incentive Bonus shall be paid, if
earned, within thirty (30) days after the Company's year-end operating results
have been determined by the Company's accountants. Executive will also be
eligible for discretionary bonuses as dictated and approved by the Board of
Directors.
3.3 In addition to the Base Salary, the Company shall grant to Executive
an option to purchase 150,000 shares of the Company's common stock at an
exercise price to be determined by the Board of Directors or Compensation
Committee of the Board. The option shall vest over a period of thirty-six
months (36) months, with one-third vesting on the first anniversary of the date
of grant and the remaining two-thirds vesting as to one-twenty-fourth (1/24th)
per month each month thereafter for the next two years. The option shall vest
in full immediately upon a merger, sale or change of control (as defined in the
option plan). The option shall have a term of ten (10) years. The option shall
be subject to the terms and conditions of the Company's 1999 Stock Incentive
Plan (the "Plan") established by or to be established by the Company's Board of
Directors and the Stock Option Agreement to be entered into by Executive and the
Company. The option shall be qualified to the extent permissible under the Plan
and the Internal Revenue Code, and unqualified as to the balance.
3.4 In addition to the Base Salary, Executive shall be entitled to all
other benefits of employment provided to the other employees of the Company
holding comparable positions within the Company, including but not limited to
paid vacation, paid health insurance for the Executive, spouse and dependents,
paid life insurance to a maximum of base salary, paid mobile telephone expense
for business use, and participation in retirement and investment programs as
instituted by the Company.
3.5 Executive shall be reimbursed for all reasonable "out-of-pocket"
business expenses for business travel and business entertainment incurred in
connection with the performance of his or her duties under this Agreement (i) so
long as such expenses constitute business deductions from taxable income for the
Company and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code and (ii) to the
extent such expenses do not exceed the amounts allocable for such expenses in
budgets that are approved from time to
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time by the Company. The reimbursement of Executive's business expenses shall be
upon monthly presentation to and approval by the Company of valid receipts and
other appropriate documentation for such expenses.
3.6 All compensation shall be subject to customary withholding tax and
other employment taxes as are required with respect to compensation paid by a
corporation to an employee.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement, devote
substantially all his attention and expend his best efforts, energies, and
skills, on a full-time basis, to the business of the Company and any corporation
controlled by or affiliated with the Company. For purposes of this Agreement,
the term the "Company" shall mean the Company and all Subsidiaries. Executive
shall not, during the term of this Agreement, be engaged in any other
substantial business activity without the prior consent of the Board of
Directors of the Company; provided, however, that this restriction shall not be
construed as preventing Executive from investing his personal assets in passive
investments in business entities which are not in competition with the Company
or its affiliates. From time to time Executive may be required to work with
affiliated companies.
4.2 During the Term of this Agreement, Executive shall serve as the Vice
President of Sales and Marketing of the Company and in such other capacity as
determined by the Chief Operating Officer. In the performance of all of his
responsibilities hereunder, Executive shall be subject to all of the Company's
policies, rules, and regulations applicable to its employees of comparable
status and shall report directly to, and shall be subject to, the direction and
control of the Chief Operating Officer and shall perform such duties as shall be
assigned to him by the Chief Operating Officer. In performing such duties,
Executive will be subject to and abide by, and will use his best efforts to
cause other employees of the Company to be subject to and abide by, all policies
and procedures developed by the Company's Executive Officers, Board of Directors
or its Executive Committee.
4.3 Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall first offer such
opportunity to the Company. Should the Board of Directors of the Company not
exercise its right to pursue this business opportunity within a reasonable
period of time, not to exceed sixty (60) days, then Executive with the consent
of the Board of Directors may develop the business opportunity for himself;
provided, however, that such development may in no way conflict or interfere
with the duties owed by Executive to the Company under this Agreement. Further,
Executive may develop such business opportunities only on his own time, and may
not use any service, personnel, equipment, supplies, facility, or trade secrets
of the Company in their development. As used herein, the term "business
opportunity" shall not include
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business opportunities involving investment in publicly traded stocks, bonds or
other securities, or other investments of a personal nature.
4.4 Without first obtaining the written permission of the Board of
Directors of the Company, Executive will not authorize or permit the Company to
engage the services of, or engage in any business activity with, or provide any
financial or other benefit to, any affiliate of Executive. The phrase "affiliate
of Executive" as used in this Paragraph shall mean and include Executive's
family by blood or marriage (including, without limitation, parents, spouse,
siblings, children and in-laws), and any business or business entity which is
directly or indirectly owned or controlled by Executive or any member of the
Executive's family or in which Executive or any member of the Executive's family
has any direct or indirect financial interest whatsoever.
4.5 To induce the Company to enter into this Agreement, the Executive
represents and warrants to the Company that except as set forth on Schedule 4.5
(a) the Executive is not a party or subject to any employment agreement or
arrangement with any other person, firm, company, corporation or other business
entity, (b) the Executive is subject to no restraint, limitation or restriction
by virtue of any agreement or arrangement, or by virtue of any law or rule of
law or otherwise which would impair the Executive's right or ability (i) to
enter the employ of the Company, or (ii) to perform fully his duties and
obligations pursuant to this Agreement, and (c) to the best of Executive's
knowledge no material litigation is pending or threatened against any business
or business entity owned or controlled or formerly owned or controlled by
Executive.
4.6 During each year, Executive in the performance of his duties under
this Agreement shall comply or cause compliance with the applicable Annual Plan
and shall not (except for emergency expenditures or special circumstances
requiring an unanticipated expenditure) deviate materially from any budget
category set forth in the Annual Plan, incur any material additional expense or
change materially the manner of operation of the Company without the approval of
the Board of Directors.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major responsibility for the
operation, administration, development and growth of the Company's business,
(ii) his work for the Company has brought him and will continue to bring him
into close contact with confidential information of the Company and its
customers, and (iii) the agreements and covenants contained in this Paragraph 5
are essential to protect the business interest of the Company and that the
Company will not enter into this Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees as follows:
5.1(a) Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated for any reason
during the Term, for twenty-four (24) months following such date of termination
(the "Termination Period"), the Executive shall not, directly or indirectly,
compete with respect to any services or products of the Company which are
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either offered or are being developed by the Company; or, without limiting the
generality of the foregoing, be or become, or agree to be or become, interested
in or associated with, in any capacity (whether as a partner, shareholder,
owner, officer, director, Executive, principal, agent, creditor, trustee,
consultant, co-venturer or otherwise) with any individual, corporation, firm,
association, partnership, joint venture or other business entity, which competes
with respect to any services or products of the Company which are either offered
or are being developed by the Company; provided, however, that the Executive may
own, solely as an investment, not more than five percent (5%) of any class of
securities of any publicly held corporation in competition with the Company
whose securities are traded on any national securities exchange in the United
States of America, and may retain his ownership interest in those entities
referred to in Subparagraph 4.1.
5.1(b) During the term of this Agreement and, if applicable, during
the Termination Period, the Executive shall not, directly or indirectly, (i)
induce or attempt to influence any employee of the Company to leave its employ,
(ii) aid or agree to aid any competitor, customer or supplier of the Company in
any attempt to hire any person who shall have been employed by the Company
within the one (1) year period preceding such requested aid, or (iii) induce or
attempt to influence any person or business entity who was a customer or
supplier of the Company during any portion of said period to transact business
with a competitor of the Company in Company's business.
5.1(c) During the Term of this Agreement, the Termination Period, if
applicable, and thereafter, the Executive shall not other than in the
performance of his duties disclose to anyone any information about the affairs
of the Company, including, without limitation, trade secrets, trade "know-how",
inventions, customer lists, business plans, operational methods, pricing
policies, marketing plans, sales plans, identity of suppliers or customers,
sales, profits or other financial information, which is confidential to the
Company or is not generally known in the relevant trade, nor shall the Executive
make use of any such information for his own benefit. Any technique, method,
process or technology used by the Company shall be considered a "trade secret"
for the purposes of this Agreement.
5.1(d) Executive hereby agrees that all know-how, documents, reports,
plans, proposals, marketing and sales plans, client lists, client files and
materials made by him or by the Company are the property of the Company and
shall not be used by him in any way adverse to the Company's interests.
Executive shall not deliver, reproduce or in any way allow such documents or
things to be delivered or used by any third party without specific direction or
consent of the Board of Directors of the Company. Executive hereby assigns to
the Company any rights which he may have in any such trade secret or proprietary
information.
5.2 If any of the Restrictive Covenants, or any part thereof, is held to
be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
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5.3 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
6. TERMINATION.
6.1 The Company may terminate the Executive's employment under this
Agreement at any time for Cause. "Cause" shall exist for such termination if
Executive (i) is adjudicated guilty of a felony by a court of competent
jurisdiction, (ii) commits any act of fraud or intentional misrepresentation in
connection with his employment by the Company, (iii) has, in the reasonable
judgment of, and after a good faith investigation by, the Company, (a) engaged
in serious and willful misconduct, which conduct has, or would if generally
known, materially adversely affect the goodwill or reputation of the Company and
which conduct the Executive has not cured or altered to the satisfaction of the
Chief Operating Officer within ten (10) days following written notice by the
Chief Operating Officer to the Executive regarding such conduct, or (b)
willfully and intentionally failed to perform his duties as specified to him by
the Chief Operating Officer, which failure the Executive has not cured or
rectified to the satisfaction of the Chief Operating Officer within ten (10)
days following written notice by the Chief Operating Officer, or (iv) has made
any material misrepresentation to the Company under Paragraphs 4 and 5 hereof.
6.2 If the Company terminates the Executive's employment under this
Agreement pursuant to the provisions of Paragraph 6.1 hereof, the Executive
shall not be entitled to receive any compensation following the date of such
termination.
6.3 This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanently
incapacitated" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his or her duties hereunder and which
appears reasonably certain to continue for at least six (6) consecutive months
without substantial improvement. Executive shall be deemed to have "become
permanently incapacitated" on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so notifies
Executive.
6.4 If Executive's employment is terminated for any reason (whether by
Executive or the Company) within thirty (30) days following a "Change in Control
of the Company" (as defined
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below), Executive shall be entitled to the benefits provided in Section 6.5
below. For purposes of this Agreement, a "Change in Control of the Company"
shall mean, at such time as the Company's Board of Directors becomes fully
constituted (e.g., the number of directors reaches five (5)), a cumulative
change in the identity of a majority of the members of the Company's first fully
constituted Board of Directors (provided, however, that the appointment of a new
director upon the death or resignation of a director by the remaining directors
then in office shall not constitute a change in identity with respect to such
departed director).
6.5 Executive's employment may be terminated by the Company "without
cause" (for any reason or no reason at all) at any time by giving Executive
sixty (60) days prior written notice of termination, which termination shall be
effective on the 60th day following such notice. If Executive's employment under
this Agreement is so terminated, the Company shall make a lump sum cash payment
to Executive on the date of termination of an amount equal to (i) the greater of
(a) the remaining Base Salary payable through the remaining term, or (b) twenty-
four (24) months Base Salary, plus (ii) a pro rata portion of any Incentive
Compensation, if any, earned for the year in which termination occurs prorated
to the date of termination, plus (ii) any unreimbursed expenses accruing to the
date of termination. The Company shall also continue Executive's benefits
through the remainder of the Term.
6.6 Executive may terminate his or her employment hereunder by giving the
Company sixty (60) days prior written notice, which termination shall be
effective on the 60th day following such notice. Voluntary termination shall not
entitle the Executive to receive any compensation following the date of
termination.
6.7 At the Company's option, Executive shall immediately leave the
Company's premises on the date notice of termination is given by either
Executive or the Company. If the Company requests Executive to leave the Company
following notice under Paragraph 6.6, it shall fully compensate Executive
(salary and benefits) through the 60th day following the date of Executive's
notice.
7. MISCELLANEOUS.
7.1 The Company may, from time to time, apply for and take out, in its own
name and at its own expense, life, health, accident, disability or other
insurance upon the Executive in any sum or sums that it may deem necessary to
protect its interests, and the Executive agrees to aid and cooperate in all
reasonable respects with the Company in procuring any and all such insurance,
including without limitation, submitting to the usual and customary medical
examinations, and by filling out, executing and delivering such applications and
other instruments in writing as may be reasonably required by an insurance
company or companies to which an application or applications for such insurance
may be made by or for the Company. In order to induce the Company to enter this
Agreement, the Executive represents and warrants to the Company that to the best
of his knowledge the Executive is insurable at standard (non-rated) premiums.
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7.2 This Agreement is a personal contract, and the rights and interests of
the Executive hereunder may not be sold, transferred, assigned, pledged or
hypothecated except as otherwise expressly permitted by the provisions of this
Agreement. The Executive shall not under any circumstances have any option or
right to require payment hereunder otherwise than in accordance with the terms
hereof. Except as otherwise expressly provided herein, the Executive shall not
have any power of anticipation, alienation or assignment of payments
contemplated hereunder, and all rights and benefits of the Executive shall be
for the sole personal benefit of the Executive, and no other person shall
acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against the
Executive; provided, however, that in the event of the Executive's death, the
Executive's estate, legal representative or beneficiaries (as the case may be)
shall have the right to receive all of the benefit that accrued to the Executive
pursuant to, and in accordance with, the terms of this Agreement.
7.3 The Company shall have the right to assign this Agreement to any
successor of substantially all of its business or assets, and any such successor
shall be bound by all of the provisions hereof.
8. NOTICES.
All notices, requests, demands and other communications provided for
by this Agreement shall be in writing and (unless otherwise specifically
provided herein) shall be deemed to have been given at the time when mailed in
any general or branch United States Post Office, enclosed in a registered or
certified postpaid envelope, addressed to the parties stated below or to such
changed address as such party may have fixed by notice:
To the COMPANY: The BigHub.com, Inc.
2939 Mossrock, Suite 100
San Antonio, Texas 78230
Attn: Chief Operating Officer
Executive: Mark S. Doumani
3388 Via Lido
Newport Beach, California 92660
Facsimile: 949-675-6156
9. ENTIRE AGREEMENT.
This Agreement supersedes any and all Agreements, whether oral or
written, between the parties hereto, with respect to the employment of Executive
by the Company and contains all of the covenants and Agreements between the
parties with respect to the rendering of such services in any manner whatsoever.
Each party to this Agreement acknowledges that no representations,
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inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise with respect to such
employment not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing and
signed by the parties hereto.
10. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect without being impaired or
invalidated in any way.
11. ATTORNEYS' FEES.
Should any litigation or arbitration be commenced between the parties
hereto or their personal representatives concerning any provision of this
Agreement or the rights and duties of any person in relation thereto, the party
prevailing in such litigation or arbitration shall be entitled, in addition to
such other relief as may be granted, to a reasonable sum as and for its or their
attorneys' fees in such litigation or arbitration which shall be determined by
the court or arbitration board.
12. ARBITRATION.
The parties agree that any disputes arising under this Agreement shall
be resolved in as expeditious a manner as possible through binding arbitration
administered by the American Arbitration Association in the County of Orange,
California, or such other place which is mutually agreed upon by the parties.
Further, the parties hereby waive any objection based on personal jurisdiction,
venue or forum non conveniens in any arbitration or action brought under this
paragraph. The decision and award rendered by the arbitrators shall be final and
binding. Judgment upon the award may be entered in any court having jurisdiction
thereof.
Notwithstanding the first paragraph of this paragraph, any dispute
involving an amount that is less than or equal to the maximum jurisdictional
amount for small claims court, as may be amended, shall be brought in the small
claims court for the County of Orange, State of California, or such other place
which is mutually agreed upon by the parties.
13. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with
the laws of the State of California.
14. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representatives, heirs, successors and
assigns.
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15. WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
16. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board of Directors of the Company, is not in conflict with any Bylaw or other
agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above written.
THE COMPANY: THE BIGHUB.COM, INC.
By: /s/ Frank W. Denny
--------------------------
Name: Frank W. Denny
Its: Chairman of the Board
EXECUTIVE:
/s/ Mark S. Doumani
-------------------
Mark S. Doumani
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SCHEDULE 4.5(a)
Employee: Mark S. Doumani
1) Pending lawsuit between Icomworld, Inc. and Shopping.com, Inc.
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