As filed with the SEC on January 25, 2000 SEC Registration No. 333-87111
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HOJO HOLDINGS, INC.
(Exact name of registrant as specified in charter)
Delaware 7373 11-3504866
(State or other jurisdiction) (Primary Standard Industrial (IRS Employer
Code) Identification
21 Blackheath Road
Lido Beach, New York 11561
(516)-670-0564
(Address and telephone number of registrant's principal executive offices and
principal place of business)
Joel Arberman
444 Bedford Street, Suite 8s
Stamford, Connecticut 06901
(203) 602-9994
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale
to the public: As soon as practicable after
this Registration Statement becomes
effective.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ x ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [--]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
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CALCULATION OF REGISTRATION FEE
Title of class of Proposed maximum Amount of
Securities to be aggregate offering Registration Fee
registered price (1)
Common Stock,
Par value $0.001
per share $625,000 $173.75
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 (o) under the Securities Act.
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SUBJECT TO COMPLETION, DATED January 25, 2000
Hojo Holdings, Inc.
Maximum of 12,500,000 shares of our common stock.
The purchase price for our shares is $0.05
Total proceeds if maximum issued: $625,000
We will offer the shares ourselves and do not plan to use underwriters or pay
any commissions.
THIS IS A RISKY INVESTMENT. WE HAVE DESCRIBED THESE RISKS UNDER THE CAPTION
"RISK FACTORS" BEGINNING ON PAGE 6.
per share underwriting discounts total
and commissions to Hojo
per share $0.05 none $0.05
total maximum 625,000 none $625,000
The proceeds to be received by Hojo are amounts before deducting expenses of the
offering, estimated to be $30,000.
Neither the Securities and Exchange Commission nor any state securities
commission have approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The information in this prospectus is not complete and may be changed. We may
not sell our shares until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
our shares and it is not soliciting an offer to buy our shares in any state
where the offer or sale is not permitted.
The date of this prospectus is January 25, 2000
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TABLE OF CONTENTS
SUMMARY......................................................................5
RISK FACTORS.................................................................6
USE OF PROCEEDS.............................................................11
DETERMINATION OF OFFERING PRICE.............................................12
DILUTION....................................................................13
SELLING SECURITY HOLDERS....................................................14
PLAN OF DISTRIBUTION........................................................16
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS...........................17
LEGAL PROCEEDINGS...........................................................17
LEGAL MATTERS...............................................................17
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS................17
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT..............19
DESCRIPTION OF SECURITIES...................................................19
SHARES ELIGIBLE FOR FUTURE SALE.............................................20
RELATED PARTY TRANSACTIONS..................................................22
BUSINESS....................................................................22
MANAGEMENT DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.....................30
YEAR 2000 READINESS DISCLOSURE..............................................31
FINANCIAL STATEMENTS........................................................f1
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SUMMARY
Hojo was incorporated in January 1999 and began implementing phases of its
business plan in October 1999. We are an Internet professional services firm
specializing in high-end web site development. Our principal executive offices
are located 21 Blackheath Road, Lido Beach, New York 11561. Our telephone number
at that location is (516) 670-0564. Our web site can be located at
http://www.hojoholdings.com.
Common stock offered for sale. Up to a maximum of 12,500,000 shares
Price to the public. $0.05 per share in cash. However, as many
as 6,250,000 shares, also valued at $0.05
per share, may be issued forservices at the
fair market value of the services rendered.
Number of shares outstanding
before the offering. 2,500,000 shares
Number of shares to be
outstanding after the
offering. maximum of 15,000,000 shares
Terms of the offering. This is a no
minimum offering. Accordingly, as
shares are sold, we will use the
money raised for our activities. The
offering will remain open until
January 25, 2001, unless we decide
to cease selling efforts prior to
this date.
Use of proceeds. We intend to use the net proceeds of this
offering primarily for:
-> development of our web site,
-> recruiting independent contractors,
-> sales and marketing efforts, and
-> general corporate purposes.
Plan of distribution. This is a direct public offering, with no
commitment by anyone to purchase any shares.
Our shares will be offered and sold
by our principal executive officer.
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision.
Unless we are able to sell all of the shares offered, we may not be able to
continue as a going concern.
Our independent certified public accountants have pointed out that we have
an accumulated deficit and negative working capital so our ability to continue
as a going concern is dependent upon obtaining additional financing for our
planned operations. If we do not raise additional capital then you may lose your
entire investment.
Hojo is in the development stage and has generated no revenues to date.
We were incorporated in January, 1999, and are, therefore, in our
development stage with a limited operating history. We have not generated any
revenues. We have experienced losses and an accumulated deficit of approximately
$10,000 through December 31, 1999. Hojo had only $20 in cash as of December 31,
1999. You should consider Hojo and our prospects in light of the risks,
difficulties and uncertainties frequently encountered by companies in an early
stage of development. You should not invest in this offering unless you can
afford to lose your entire investment.
We anticipate future losses and might not become profitable.
We anticipate that we will incur losses for the foreseeable future. Our
operating expenses are expected to increase significantly in connection with our
proposed activities. We will incur expenses in developing our web site, building
a network of independent web site developers, computer programmers and sales
agents and to establish our brand name. We cannot be sure that we can achieve
sufficient revenues in relation to our anticipated expenses to become
profitable. If we do become profitable, we cannot be sure that we can maintain
or increase our profitability.
Our success depends on the services of Mrs. Arberman.
Mrs. Arberman originated the plan for Hojo, and we continue to be dependent
on her efforts to oversee the development of the web site and to secure
independent web site developers, computer programmers, sales and marketing
agents and clients. If we lose her services and can not find a suitable
replacement we may have to cease operations. We do not have insurance covering
the life of Mrs. Arberman.
We have limited experience in attracting and retaining third parties.
Our operating results will depend to a large extent on attracting and
retaining independent web site developers, computer programmers and sales and
marketing agents. To date, we have no agreements with any web site developers,
computer programmers or sales and marketing agents. We have very limited
capabilities and experience in these areas. In the future, we could be dependent
for a substantial portion of our sales and technical development on one or a
very small number of independent agents. In that event, the loss of one or more
significant independent agents could have a material adverse effect on our
business and financial condition.
Since this is a direct public offering and there is no underwriter, we may not
be able to sell any shares ourselves.
No underwriter has been retained by us to sell these securities. This
offering is being conducted as a direct public offering, meaning there is no
guarantee as to how much money we will be able to raise through the sale of our
stock. Our officer will be selling shares herself and has no prior experience in
selling securities. If we fail to sell all the stock we are trying to sell, our
ability to expand and complete our business plan will be materially effected,
and you may lose all or substantially all of your investment.
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USE OF PROCEEDS
Assuming we are able to sell all of the shares we are offering, we expect to
net approximately $282,500, after deducting the estimated expenses of the
offering of approximately $30,000 and assuming that half of the shares offered
are issued for services.
The following table explains our anticipated use of the net proceeds of this
offering, based upon various levels of sales achieved. Specifically, the first
entry is for the relatively fixed costs associated with conducting this offering
and so are not likely to change. The next entry is for our web site development,
with the remaining entries presented in their order of importance to us and our
success.
In general, the more shares we are able so sell, the more we will be able
to quickly retain sales agents, engage additional web site developers and
computer programmers and generally grow our business. The numbers above do not
include any deductions for selling commissions since we will be selling the
shares through the efforts of our officer who will not receive any commissions.
There is no minimum amount that must be sold in this offering and there is
no minimum or maximum amount that must be purchased by each investor. We may not
be able to raise the additional funds we need to operate our business. If we
receive no or nominal proceeds we will not remain as a viable going concern and
investors may lose their entire investment.
Application of 1,000,000 6,250,000
Net Proceeds shares sold shares sold
Offering Costs $ 30,000 $ 30,000
Corporate web site 10,000 20,000
Sales and marketing 10,000 60,000
Working capital 0 202,500
Total $ 50,000 $ 312,500
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Our management will have broad discretion in allocating a substantial
portion of the proceeds of this offering. We will invest proceeds not
immediately required for the purposes described above principally in United
States government securities, short-term certificates of deposit, money market
funds or other short-term interest bearing investments.
In the event we receive the maximum cash proceeds and services of
$312,500, we believe that these net proceeds, together with anticipated funds
from operations, will provide us with sufficient funds to meet our cash
requirements for at least twelve months following the date these maximum
proceeds are raised. As set forth in the above table, if we receive net proceeds
in amounts less than the maximum proceeds, this twelve-month time frame will
probably be diminished and our business plans will have to be decreased. None of
the offering proceeds we receive will be used to make loans to officers,
directors and/or affiliates. In addition, none of the offering proceeds will be
used to acquire other companies or businesses.
Our president has never been paid any salary from Hojo. Although she has
not been paid, our president has agreed to continue to work for us until the
offering is closed or abandoned. Our president will be entitled to begin to
receive an annual salary of $24,000 only when we have issued $200,000 worth of
our shares. We believe that this level of funding will allow us to generate
revenues that will allow our officers' salary to be paid out of our operating
profits. Our officer understands that if these amounts of gross proceeds or net
operating profits are never generated, she has little chance of ever being paid
for her services to us.
In September, 1999, we secured a $12,500 credit line from Joel Arberman, the
husband of our president, to pay our expenses while this offering is completed.
The agreement by which we borrowed these funds and may borrow in the future
provide that at our sole discretion, we have the right to convert the amounts
due to him into our common stock on the basis of one share of common stock for
each $0.05 of debt converted. In the alternative, we may take part of the
proceeds of the offering to pay these debts.
Our description represents our best estimate of the allocation of the net
proceeds of this offering based upon the current status of our business. We
based this estimate on assumptions, including expected size of our client base,
growth of our network of independent agents and revenues. We assumed that our
proposed services could be introduced without unanticipated delays or costs. If
any of these factors change, we may find it necessary to reallocate a portion of
the proceeds within the above-described categories or use portions of the
proceeds for other purposes. Our estimates may prove to be inaccurate or new
activities may be undertaken which will require considerable additional
expenditures or unforeseen expenses may occur.
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If our plans change or our assumptions prove to be inaccurate, we may need
to seek additional financing sooner than currently anticipated or curtail our
operations. We may need to raise additional funds in the future in order to fund
more aggressive brand promotions and more rapid expansion, to develop newer or
enhanced products or services, to fund acquisitions, to respond to competitive
pressures, or to acquire complementary businesses, technologies or services. The
proceeds of this offering may not be sufficient to fund our proposed expansion
and additional financing may not become available if needed.
DETERMINATION OF OFFERING PRICE
There is no established public market for the shares of common stock being
registered. As a result, the offering price and other terms and conditions
relative to our shares have been arbitrarily determined by us and do not
necessarily bear any relationship to assets, earnings, book value or any other
objective criteria of value. In addition, no investment banker, appraiser or
other independent, third party has been consulted concerning the offering price
for the shares or the fairness of the price used for the shares.
DILUTION
Purchasers of the shares will experience immediate and substantial dilution
in the value of their shares after purchase. The difference between the initial
public offering price per share and the net tangible book value per share of
common stock after this offering constitutes the dilution to investors in this
offering. Net tangible book value per share is determined by dividing total
tangible assets less total liabilities by the number of outstanding shares of
common stock.
At December 31, 1999, we had a net tangible book value of $0 or $0.00 per
share. After giving effect to the cash sale of the maximum of 6,250,000 shares
and the receipt of $312,500 in cash, less offering expenses estimated at
$30,000, our adjusted net tangible book value at December 31, 1999 would have
been approximately $275,000 or $.01 per share. This represents an immediate
increase in net tangible book value of $.01 per common share if we are able to
complete the maximum offering to the existing shareholders. Completing the
maximum offering would result in an immediate dilution of $.04 per common share
to persons purchasing shares in this offering.
The following table explains the dilution of this offering, based upon various
levels of sales achieved:
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December 31, 1,000,000 6,250,000
1999 shares sold shares sold
Public offering
price per share n/a $0.05 $0.05
Net tangible
book value
per share of
common stock
before the offering $0 n/a n/a
Pro forma
net tangible
book value per
share of common
stock after the
offering n/a $0.01 $0.01
Increase to
net tangible
book value per
share attributable
to purchase of
common stock by
new investors n/a $0.01 $0.01
Dilution to
new investor n/a $0.04 $0.04
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PLAN OF DISTRIBUTION
General
We are offering up to a maximum of 12,500,00 shares at a price of $0.05 per
share to be sold by our executive officer and director. If we sell the shares
through our president and director, no compensation will be paid with respect to
those sales. Since this offering is conducted as a direct public offering, there
is no assurance that any of the shares will be sold.
The offering will remain open until January 25, 2001, unless the maximum
proceeds are received earlier or we decide to stop selling our shares. Our
officer, existing stockholders and affiliates may purchase shares in this
offering. There is no limit to the number of shares they may purchase.
No escrow of proceeds
There will be no escrow of any of the proceeds of this offering.
Accordingly, we will have use of all funds raised as soon as we accept a
subscription and funds have cleared. These funds shall be non-refundable to
subscribers except as may be required by applicable law.
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Shares issued for services
As many as 6,250,000 shares may be issued for services. Any shares that
are issued for services will be valued at $0.05 per share, which is the amount
we could have received if we sold the shares instead of issuing it for services.
We do not currently have any agreements with others to issue shares for
services. However, we do anticipate that in the future, we may issue shares for
web site development, computer programming, sales and marketing, Internet access
and other services. When we issue shares for services, the value of the services
must be a fair market value. The fair market value of the service provided will
be determined by our president and will be based upon a reasonable evaluation of
market rates and values for specific services.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that reflect our views
about future events and financial performance. Our actual results, performance
or achievements could differ materially from those expressed or implied in these
forward-looking statements for various reasons, including those in the "risk
factors" section on page *. Therefore, you should not place undue reliance upon
these forward-looking statements.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance, or achievements.
LEGAL PROCEEDINGS
We are not a party to or aware of any threatened litigation of a material
nature.
LEGAL MATTERS
The validity of the shares offered under this prospectus is being passed upon
for us by Hoge, Evans, Holmes, Carter & Ledbetter PLLC, Dallas TX.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The following table and subsequent discussion contains information concerning
our director and executive officer, who will serve in the same capacity with us
upon completion of the offering. Our executive officer was elected to her
position in 1999.
Name Age Title
Holli Arberman 25 president and director
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There are no other persons nominated or chosen to become directors or executive
officers nor do we have any employees other than above.
Holli C. Arberman. Mrs. Arberman has served as the president, secretary,
treasurer and a director of Hojo since January 1999. Since January 1999 Mrs.
Arberman has also served as the president, secretary, treasurer and a director
of three other companies which where incorporated by Mr. Arberman on January 6,
1999; HB Holdings, Inc., JAHB Holdings Inc. and HBJA Holdings Inc. None of these
companies currently conduct any business and none currently intends to make any
acquisitions. In addition, since May 1999 Mrs. Arberman has served as president
of Want.md, a web site focused on offering Internet domain name registrations to
medical professionals. From October 1998 until December 1999, Mrs. Arberman has
worked as an independent occupational therapist contractor for various
contracting agencies. From October 1997 until October 1998, Mrs. Arberman served
as an occupational therapist at United Presbyterian Residence Care Corp, a
skilled nursing facility. From September 1995 to October 1997, she earned a M.A
degree in Occupational Therapy from Touro College. Mrs. Arberman is a registered
and licensed Occupational Therapist, is NBCOT Certified and holds a license in
New York and Connecticut.
Mrs. Arberman does not have any experience in overseeing web site development;
securing web site developers, computer programmers, sales and marketing agents;
or in obtaining clients.
Our directors hold office until the next annual meeting of shareholders and
the election and qualification of their successors. Directors receive no
compensation for serving on the board of directors other than reimbursement of
reasonable expenses incurred in attending meetings. Officers are appointed by
the board of directors and serve at the discretion of the board.
Executive Compensation
The following table sets forth all compensation awarded to, earned by, or paid
for services rendered to us in all capacities during the period ended December
31, 1999, by our executive officer whose salary and bonus for the period
exceeded $100,000.
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Summary Compensation Table
Long-Term Compensation Awards
Name and Principal Compensation - 1999
Position Salary ($) Bonus ($)Number of shares
---------- --------- Underlying Options (#)
Holli Arberman, president None None None
Mrs. Arberman is currently employed by Hojo Holdings, Inc. at an annual salary
of $24,000 per annum according to a two year written employment agreement signed
on August 31, 1999. Mrs. Arberman is not accruing or entitled to any
compensation and will not be paid until Hojo raises at least $200,000 from this
offering. Her employment agreement provides for reimbursement of business
related expenses, four weeks of vacation per calendar year, medical and
disability benefits, additional benefits as offered by Hojo and bonus
entitlement. Until there is an independent board member, Mrs. Arberman has
verbally agreed not to receive any benefits or bonus from Hojo. The employment
contract also contains standard non-compete, termination, confidentiality and
other clauses.
We do not presently have a stock option plan but intend to develop an
incentive-based stock option plan for our officers and directors in the future
and may reserve up to ten percent of our outstanding shares of common stock for
that purpose.
Conflict of Interest - Management's Fiduciary Duties
A conflict of interest may arise between management's personal financial
benefit and management's fiduciary duty to you. Management's interest in their
own financial benefit may at some point compromise their fiduciary duty to you.
No proceeds from this offering will be used to purchase directly or
indirectly any shares of the common stock owned by management or any present
shareholder, director or promoter. No proceeds from this offering will be loaned
to any current management or director. We also will not purchase the assets of
any company, which is beneficially owned by any of our officers, directors,
promoters or affiliates.
Our director and officer is or may become, in her individual capacity,
officer, director, controlling shareholder and/or partner of other entities
engaged in a variety of businesses. Mrs. Arberman is already involved in three
businesses that do not have any current business operations. She does not devote
any time to those entities. There exists potential conflicts of interest
including allocation of time between Hojo and her other business activities.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial
ownership of our common stock before and after giving effect to the sale of the
maximum number of shares of common stock offered. All shareholders have sole
voting and investment power over the shares beneficially owned. Included within
this table is information concerning each stockholder who owns more than 5% of
any class of our securities, including those shares subject to outstanding
options. Although our officer may purchase shares in this offering, the
following amounts assume that our officer does not purchase any additional
shares.
Joel Arberman and Holli Arberman are husband and wife. Alfred Arberman and
Rachelle Arberman are husband and wife and also parents to Joel Arberman. They
disclaim all beneficial ownership of each others common shares. Roger Mclelland
and Shanti Mclelland are brothers.
Beneficial ownership shares owned Percentage of shares
class of common stock before after
offering offering
Holli Arberman 900,000 36.00% 6.00%
21 Blackheath Road
Lido Beach, New York 11561
Alfred Arberman 200,000 8.00 1.30
18555 NE 14th Ave
Suite 611F
North Miami Beach, Fl 33179
Rachelle Arberman 200,000 8.00 1.30
18555 NE 14th Ave
Suite 611F
North Miami Beach, Fl 33179
Anil Goel 200,000 8.00 1.30
75-114 Broadway Ave.
Toronto, Ontario M4P1V1, Canada
Brad Jones 200,000 8.00 1.30
80 Kilworth Park Drive
RR#3 Komoka, Ontario, N0L10, Canada
Roger Mclelland 150,000 6.00 1.00
P.O. Box 235
Ajax Ontario, L1S3C3 Canada
Shanti Mclelland 150,000 6.00 1.00
26 Parker Crescent
Ajax, Ontario L1S3R5 Canada
Brad Rotter 150,000 6.00 1.00
1700 Montgomery Street
Suite 250
San Francisco, California 94111
Mr. Joel Arberman has the right to convert the money he loaned to us into a
maximum of 265,000 shares. If the loan is converted into stock, Mr. Arberman
would own 1.76% of the shares outstanding after the offering.
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DESCRIPTION OF SECURITIES
Current capital structure
As of the date of this prospectus, we have 20,000,000 shares of common
stock, par value $0.001, authorized, with 2,500,000 shares outstanding held of
record by 50 stockholders.
Common stock
The holders of common stock are entitled to one vote for each share held of
record on all matters to be voted on by the shareholders. There is no cumulative
voting with respect to the election of directors, with the result that the
holders of more than 50 percent of the shares voted for the election of
directors can elect all of the directors. The holders of common stock are
entitled to receive dividends when, as and if declared by the board of directors
out of funds legally available. In the event of liquidation, dissolution or
winding up of our business, the holders of common stock are entitled to share
ratably in all assets remaining available for distribution to them after payment
of liabilities and after provision has been made for each class of stock, if
any, having preference over the common stock. When issued for the consideration
outlined in this prospectus, all of the outstanding shares of common stock will
be fully paid and non-assessable.
Preferred stock
Hojo Holdings is not presently authorized to issue shares of preferred
stock. However, our board of directors is empowered, without shareholder
approval, to issue additional series of preferred stock with any designations,
rights and preferences as they may from time to time determine. Thus, preferred
stock, if issued, could have dividend, liquidation, conversion, voting or other
rights that could adversely affect the voting power or other rights of the
common stock. Preferred stock, if issued, could be utilized, under special
circumstances, as a method of discouraging, delaying or preventing a change in
control of our business.
Options and Warrants. We do not presently have any options or warrants
authorized. However, our board of directors may later determine to authorize
options and warrants for Hojo Holdings.
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Dividend Policy. To date, we have not paid any dividends. The payment of
dividends, if any, on the common stock in the future is within the sole
discretion of the board of directors and will depend upon our earnings, capital
requirements, financial condition, and other relevant factors. The board of
directors does not intend to declare any dividends on the common stock in the
foreseeable future, but instead intends to retain all earnings, if any, for use
in our business operations.
Transfer Agent and Registrar . We intend to use Florida Atlantic Stock
Transfer, Inc., Tamarac, Florida as our transfer agent for the common stock.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, we will have 15,000,000 shares of
common stock outstanding, if we sell all of the shares in this offering. Of
these shares, the 12,500,000 shares to be sold in this offering will be freely
tradable without restriction or further registration under the Securities Act of
1933, except that any shares purchased by our affiliates, as that term is
defined in Rule 144 under the Securities Act, may generally only be sold in
compliance with the limitations of Rule 144 described below.
The remaining 2,500,000 of common stock held by existing stockholders were
issued and sold by us in reliance on exemptions from the registration
requirements of the Securities Act. Of these shares, 1,400,000 shares have
become eligible for sale on January 6th, 2000, subject to the limitations of
Rule 144. In addition, our executive officer and director will own 900,000
shares of the common stock, which will also become eligible for sale on January
6th, 2000, subject to the limitations of Rule 144. We cannot predict the effect,
if any, that offers or sales of these shares would have on the market price.
Nevertheless, sales of significant amounts of restricted securities in the
public markets could adversely affect the fair market price of the shares, as
well as impair our ability to raise capital through the issuance of additional
equity shares.
In general, under Rule 144, a person who has beneficially owned shares
for at least one year is entitled to sell, within any three-month period, a
number of shares that does not exceed the greater of (1) one percent of the then
outstanding shares of common stock or (2) the average weekly trading volume in
the common stock in the over-the-counter market during the four calendar weeks
preceding the date on which notice of the sale is filed, provided several
requirements concerning availability of public information, manner of sale and
notice of sale are satisfied. In addition, our affiliates must comply with the
restrictions and requirements of Rule 144, other than the one-year holding
period requirement, in order to sell shares of common stock which are not
restricted securities.
Under Rule 144(k), a person who is not an affiliate and has not been an
affiliate for at least three months prior to the sale and who has beneficially
owned shares for at least two years may resell their shares without compliance
with those requirements. In meeting the one-and two-year holding periods
described above, a holder of shares can include the holding periods of a prior
owner who was not an affiliate. The one-and two-year holding periods described
above do not begin to run until the full purchase price or other consideration
is paid by the person acquiring the shares from the issuer or an affiliate.
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There is presently no agreement by any holder, including our "affiliates", of
"restricted" shares not to sell their shares.
Penny stock regulation
Broker- dealer practices in connection with transactions in "penny stocks" are
regulated by penny stock rules adopted by the Commission. Penny stocks generally
are equity securities with a price of less than $5.00. The penny stock rules
require a broker-dealer, prior to a transaction in a penny stock not otherwise
exempt from the rules, to deliver a standardized risk disclosure document that
provides information about penny stocks and the risks in the penny stock market.
The broker-dealer also must provide the customer with current bid and offer
quotations for the penny stock, the compensation of the broker-dealer and its
salesperson in the transaction, and monthly account statements showing the
market value of each penny stock held in the customer's account. In addition,
the penny stock rules generally require that prior to a transaction in a penny
stock, the broker-dealer make a special written determination that the penny
stock is a suitable investment for the purchaser and receive the purchaser's
written agreement to the transaction. These disclosure requirements may have the
effect of reducing the level of trading activity in the secondary market for a
stock that becomes subject to the penny stock rules. As our shares immediately
following this offering will likely be subject to penny stock rules, investors
in this offering will in all likelihood find it more difficult to sell their
securities.
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DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
Our certificate of incorporation contains provisions permitted under the
General Corporation Law of Delaware relating to the liability of directors. The
provisions eliminate a director's liability to stockholders for monetary damages
for a breach of fiduciary duty, except in circumstances involving wrongful acts,
including the breach of a director's duty of loyalty or acts or omissions which
involve intentional misconduct or a knowing violation of law. Our certificate of
incorporation also contains provisions obligating us to indemnify our directors
and officers to the fullest extent permitted by the General Corporation Law of
Delaware. We believe that these provisions will assist us in attracting and
retaining qualified individuals to serve as directors.
Following the close of this offering, we will be subject to the State of
Delaware's business combination statute. In general, the statute prohibits a
publicly held Delaware corporation from engaging in a business combination with
a person who is an interested stockholder for a period of three years after the
date of the transaction in which that person became an interested stockholder,
unless the business combination is approved in a prescribed manner. A business
combination includes a merger, asset sale or other transaction resulting in a
financial benefit to the interested stockholder. An interested stockholder is a
person who, together with affiliates, owns, or, within three years prior to the
proposed business combination, did own 15% or more of our voting stock. The
statute could prohibit or delay mergers or other takeovers or change in control
attempts and accordingly, may discourage attempts to acquire us.
As permitted by Delaware law, we intend to eliminate the personal liability
of our directors for monetary damages for breach or alleged breach of their
fiduciary duties as directors, subject to exceptions. In addition, our bylaws
provide that we are required to indemnify our officers and directors, employees
and agents under circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and we would be required to
advance expenses to our officers and directors as incurred in proceedings
against them for which they may be indemnified. The bylaws provide that we,
among other things, will indemnify officers and directors, employees and agents
against liabilities that may arise by reason of their status or service as
directors, officers, or employees, other than liabilities arising from willful
misconduct, and to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified. At present, we are not aware
of any pending or threatened litigation or proceeding involving a director,
officer, employee or agent of ours in which indemnification would be required or
permitted. We believe that our charter provisions and indemnification agreements
are necessary to attract and retain qualified persons as directors and officers.
We have agreed to the fullest extent permitted by applicable law, to indemnify
all our officers and directors.
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Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of Hojo, we
have been advised that in the opinion of the Securities and Exchange Commission
that the indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable.
RELATED PARTY TRANSACTIONS
On January 6, 1999, Mrs. Arberman, our president, purchased 900,000 shares for
a total consideration of $900.
Mrs. Arberman, our president, provides various equipment and a portion of
her home for office space for no consideration. The value of this equipment
and office space are considered to be insignificant.
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Joel Arberman, the husband of our president, has provided a line of credit in
the amount of $12,500 to us. Advances under the verbal agreement, earn interest
at a fixed rate of 6%, are unsecured, at our sole discretion can be converted
into a maximum of 250,000 common shares, at the rate of one share per $0.05
loaned and have no specific repayment terms.
At the request of Mrs. Arberman, Joel Arberman has been involved in two
administrative roles; o he filed Hojo's articles of incorporation with the State
of Delaware and o he is assisting us with our registration statement.
To date, he has not had any material role in the founding or organizing of the
business. In addition, he has not directly or indirectly received any
consideration for services or property.
Mr. And Mrs. Arberman have no prior experience with any registered or
unregistered blank-check offerings.
All future transactions between Hojo and its officers, directors or 5%
shareholders, and their respective affiliates, will be on terms no less
favorable than could be obtained from unaffiliated third parties and will be
approved by a majority of any independent, disinterested directors.
BUSINESS
General
Hojo was incorporated in January 1999 Although Hojo is only recently
organized and has few tangible assets, Hojo is not a "blank check" company. We
are an Internet professional services firm specializing in high-end web site
development. We intend to obtain clients through commissioned sales and
marketing persons and to service our clients through a network of independent
web site developers and computer programmers that we intend to build.
Our market
Web sites provide companies with a new set of tools for improving basic
business processes including communications, data transmission, marketing,
transaction processing and customer service. Web sites can present advertising
and marketing materials in new and compelling fashions, display products and
services in electronic catalogs, offer products and services for sale online,
process transactions and fulfill orders, provide customers with rapid and
accurate responses to their questions, and gather customer feedback efficiently.
Businesses are rapidly adopting the use of web sites. Companies
implementing web site solutions often must rely on fundamentally new business
approaches because these solutions utilize new technologies and allow companies
to implement a broad scope of business process improvements. Businesses seeking
to realize the benefits provided by web site solutions face a formidable series
of challenges presented by the need to link business strategy with new and
rapidly changing technologies and continuously updated content.
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Before creating any web site, a company must first conduct a thorough
needs assessment to review its strategic business requirements and compare them
to the capabilities of its existing processes and systems. Next, the company
must design the solution and develop an implementation plan. The implementation,
establishment and maintenance of the solution will require significant technical
expertise in a number of areas, including, electronic commerce systems, security
and privacy technologies, application and database programming, mainframe and
legacy integration technologies and advanced user interface and multimedia
production.
Similarly, recent trends are changing the marketing communications
requirements of businesses throughout the world. Businesses must be able to
develop and execute marketing strategies rapidly, because shortening product
life cycles reduce lead times for marketing campaigns. Internet-related services
have emerged as an integral component of marketing and communications strategy.
This new media and the increasing complexity of sophisticated digital delivery,
storage and multimedia enhancement tools and technologies enable companies to
improve the effectiveness of communications, but pose additional challenges to
businesses striving to link business strategy with rapidly changing
technologies.
To perform the multitude of Internet professional services in-house, a company
would have to make substantial commitments of time, money and technical
personnel to keep current with rapidly evolving technologies, content
presentation techniques and competitors' offerings. Professionals with the
requisite strategic, technical and creative skills are often in short supply and
many organizations are reluctant to expand their internal information systems or
marketing departments for particular engagements at a time when they are
attempting to minimize fixed costs to increase returns on investment. At the
same time, external economic factors encourage organizations to focus on their
core competencies and limit workforces in the information technology management
and marketing areas.
Accordingly, many businesses have chosen to outsource a significant
portion of the design, development and maintenance of their web sites and the
development and implementation of their marketing strategies to independent
professionals. These independent professionals can leverage accumulated
strategic, technical and creative talent and track developments in a field
characterized by extremely short technology, process and content lifecycles.
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Companies seeking to establish Internet solutions may turn to their
traditional marketing or technology service providers for assistance. However,
most of these providers have neither a proven track record of successful
Internet solution deployment nor the full portfolio of strategy, technology,
marketing and creative skills required to serve client needs effectively. A
number of small Internet professional services firms have emerged to address the
significant and rapidly growing market for Internet solutions.
We believe that the rapidly increasing demand for Internet solutions has
created a significant market opportunity for our Internet professional services
firm. In the currently fragmented and rapidly changing environment, an
organization that could deliver the creative strengths of advertising and
marketing firms, the strategic skills and technical capabilities of information
technology consulting service providers, could capitalize on this opportunity to
help companies build their businesses in innovative ways.
Strategy
Our mission is to provide clients with the expertise and resources required
to help build their businesses using Internet solutions. To capitalize on the
opportunity presented by the rapid growth in demand for those services, we are
building a professional services firm with independent representatives to
develop client relationships and gain an in-depth understanding of client needs.
We believe that our operational model will enable us to scale rapidly by
leveraging external resources as our operations expand.
Services
We anticipate that we will begin to offer our services during the first
quarter of 2000. We intend to offer a range of services to deliver Internet
solutions designed to help clients build their businesses. In each consulting
engagement, the client can contract for the specific services it requires,
depending on the nature of the engagement and the capabilities of the client's
organization. We intend to bill the majority of our engagements on a time and
materials basis, although we also intend deliver solutions on a fixed-price
basis. If we fail to estimate accurately the resources and time required for a
project or to complete projects within budget, we would have cost overruns and,
in some cases, penalties, which could hurt our business.
Early this year, we intend to offer the following services:
- - Strategy consulting. To conduct a thorough study of a client's strategic
market position, business requirements and existing systems and capabilities to
determine the ways in which Internet solutions can most improve their business
processes. We would deliver our recommendations, which define the strategic
basis for a specific Internet solution that takes into account the client's
budget, timeline and available resources.
- - Analysis and design. We would translate the client's strategic requirements
into a system or process design architecture, a blueprint that defines the roles
the system will perform to meet those requirements. By choosing us, our clients
would receive vendor-neutral solutions prepared by Internet-focused consultants.
We would research, test and evaluate virtually all major Internet technologies
and tools to design system and process architectures that successfully meet
client needs. Our objective is to design, build and deploy a solution that is
logically planned, scales well over time, is sufficiently secure, and is easy to
use, administer and manage.
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- - Technology development and implementation. We would build a testable version
of the client's solution based on the blueprint produced in the analysis and
design phase. We would design, code, integrate and test all necessary programs
and components using a broad range of expertise, including object-based and
relational database systems; electronic commerce systems; custom ActiveX, Java
and C++ programming and host integration; implementation of third-party
applications and security technologies; and integration of hardware, software
and Internet access products. Our independent graphic designers would work to
create a compelling user interface for the solution to enable it to attract and
hold the attention of the client's target audience while conforming to the
client's brand image and marketing campaigns. We would then test the solution
created in the development phase and ready it to be deployed into a full
production system.
- - Audience development. We would work with clients to develop a strategy for
achieving its online marketing objectives by increasing web site traffic,
strengthening brand awareness and generating sales leads. We intend to provide
online media planning and purchasing services and advice regarding online public
relations.
- - Maintenance. We would provide the client with ongoing support services for its
Internet solutions, from content maintenance to site administration, for as long
as the client wishes. Our technical consultants could assist clients on a
case-by-case basis to resolve technical problems, provide assistance with the
hosting environment, and deliver support for Internet solution software.
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Web site developers and computer programmers
We have started to identify suitable consultants to work with us but at
this time we do not have any agreements with any web site developer or computer
programmer. Our president will identify and try to retain initial consultants
through networking and advertisements in technology related publications to
assist us in fulfilling a variety of technical requirements by future clients.
We expect that our consultants will be paid on a time and materials basis.
Prior to bidding on client contracts, we will estimate the time and materials
required completing the project. However, in some cases, we may agree to a
negotiated fixed project. If we fail to estimate accurately the resources and
time required for a project or to complete projects within budget, we would have
cost overruns and, in some cases, penalties, which could hurt our business.
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Clients
We do not currently have any paying clients and there are no arrangements
or understandings to gain clients. If we cannot attract a client base, we will
not be able to generate sufficient web site development revenue. Demand and
market acceptance for Internet web site development is not established. We
cannot be sure that the market will continue to emerge or become sustainable. If
the market fails to develop or develops more slowly than we expect, then our
ability to generate revenue may be materially adversely affected and we may have
to cease operations. Our success will depend in great part on our ability to
successfully implement our marketing and sales program and create sufficient
levels of demand for our services.
We intend to market our services primarily to small and medium-sized
companies, which we define as those with over 10 but less than 500 employees.
These companies have several desirable characteristics as potential clients: a
need for Internet solutions ranging from basic to complex and highly functional
web sites, reasonable budgets devoted to information technology expenditures,
and a relatively high willingness to adopt Internet-based strategies and
solutions. We tailor our professional services to meet the specific needs of
these clients.
For Internet solutions, clients would typically begin by establishing a
basic web site and then implement increasingly powerful business solutions. Our
strategy is to provide clients with services at all stages of their adoption of
Internet solutions. We will target clients whose Internet technology and
marketing communications consulting needs will result in projects that will
generate $25,000 to $250,000 in revenues. However, in the early stages of our
business, we may need to accept smaller size contracts in order to build a
portfolio of references.
Our future consulting engagements may involve projects that are critical to
the operations of our clients' businesses. If we do not perform to our clients'
expectations, we face potential liability. Any failure or inability to meet a
client's expectations in the performance of our services could injure Hojo's
business reputation or result in a claim for substantial damages. Our projects
may involve use of material that is confidential or proprietary client
information. The successful assertion of one or more large claims against us for
failing to protect confidential information or failing to complete a project
properly and on time could hurt us.
Marketing
We anticipate that we will begin to identify and market to clients during
the first quarter of this year. We intend to sell our services through
independent sales and marketing agents. Our president will identify and try to
retain initial marketing consultants through networking and advertisements in
sales and marketing related publications to assist us in fulfilling a variety of
sales and marketing requirements we have.
Independent agents would typically target our sales efforts at senior
executives within a buying organization. When a prospective client is
interested in working with us, we will analyze which portions of its development
we can support. Throughout this analysis, we work with the prospective client
to negotiate terms of a service agreement. Clients are expected to enter
into short-term agreements with us. Our goal through this process is to
demonstrate our capability to provide savings, and to obtain a longer-term
service agreement with the client.
Our marketing efforts will be dedicated to demonstrating the benefits of
Internet solutions, and the effectiveness of our organization in providing
solutions, to key decision makers in client organizations. Our marketing efforts
will be focused on general communications and on obtaining referrals from our
existing clients. We may participate in trade conferences and industry forums,
and advertise in business publications. We intend to increase our advertising
and marketing expenditures in an effort to become better known in our target
markets. These expenditures will cover the
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addition of sales, marketing and business development agents, increased
advertising, increased media relations, increased presence at trade conferences,
and continuing improvements to our web site.
Our marketing budget depends on a number of factors, including our results of
operations and ability to raise additional capital. In the event that we are
successful in raising additional capital or our results of operations exceed our
expectations, our marketing budget for the next 12-month period will increase
significantly.
Strategic relationships
We do not have any strategic relationships at this time. We intend to
enter into strategic relationships with a limited number of leading Internet
hardware, software and content companies. We believe that these relationships,
which will typically be non-exclusive, enable us to deliver clients more
effective solutions with greater efficiency because the strategic relationships
provide us with the opportunity to gain early access to leading-edge technology,
cooperatively market products and services with leading technology vendors,
cross-sell additional services and gain enhanced access to vendor training and
support. We also believe that these relationships are important because they
leverage the strong brand and technology positions of these market leaders.
Operations
We have very limited operations. Our president currently spends a minimum of
40 hours per week working for us. Our operations are in Lido Beach, New York. We
are currently borrowing all of our telecommunications and Internet equipment
from our president. Our systems include one Dell computer containing web site
development, marketing and accounting software.
We currently do not have any redundant systems that would handle our
system functions in the event of a system failure, nor do we have an off-site
backup of our information. In the event of a catastrophic loss at our Lido Beach
facility resulting in damage to, or destruction of, our computer,
telecommunications and Internet systems, we would have a material interruption
in our business operations.
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Competition
The market for Internet professional services is relatively new, intensely
competitive, rapidly evolving and subject to rapid technological change. We
expect competition to persist, intensify and increase in the future. Some of our
larger competitors include other Internet professional service firms including;
Zefer, Usweb, Razorfish and Rare Medium. Some of these competitors offer a full
range of Internet professional services and several others have announced their
intention to do so.
There are relatively low barriers to entry into our business. For example, we
have no significant proprietary technology that would preclude or inhibit
competitors from entering the Internet professional services market. We expect
to face additional competition from new entrants into the market in the future.
Existing or future competitors could develop or offer services that provide
significant performance, price, creative or other advantages over those offered
by us.
We believe that the principal competitive factors in our market are strategic
expertise, technical knowledge and creative skills, brand recognition,
reliability of the delivered solution, client service and price. Most of our
current and potential competitors have longer operating histories, larger
installed client bases, longer relationships with clients and significantly
greater financial, technical, marketing and public relations resources than we
have and could decide at any time to increase their resource commitments to our
market. In addition, the market for Internet solutions is relatively new and
subject to continuing definition, and, as a result, the core business of many of
our competitors may better position them to compete in this market as it
matures. Competition of the type described above could materially adversely
affect our business, results of operations and financial condition.
Regulation of our business
We do not currently face direct regulation by any governmental agency, other
than laws and regulations generally applicable to businesses.
Due to the increasing popularity and use of the Internet, it is possible
that a number of laws and regulations may be adopted in the U.S. and abroad with
particular applicability to the Internet. It is possible that governments will
enact legislation that may be applicable to us in areas including content,
network security, encryption and the use of key escrow, data and privacy
protection, electronic authentication or "digital" signatures, illegal and
harmful content, access charges and retransmission activities. Moreover, the
applicability to the Internet of existing laws governing issues including
property ownership, content, taxation, defamation and personal privacy is
uncertain.
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The majority of laws that currently regulate the Internet were adopted
before the widespread use and commercialization of the Internet and, as a
result, do not contemplate or address the unique issues of the Internet and
related technologies. Any export or import restrictions, new legislation or
regulation or governmental enforcement of existing regulations may limit the
growth of the Internet, increase our cost of doing business or increase our
legal exposure. Any of these factors could have a material adverse effect on our
business, financial condition and results of operations.
Violations of local laws may be alleged or charged by state or foreign
governments and we may unintentionally violate local laws and local laws may be
modified, or new laws enacted, in the future. Any of these developments could
have a material adverse effect on our business, results of operations and
financial condition.
Employees
As of the date of this prospectus, we have one full time employee.
From time to time, we will employ additional independent contractors to
support our development, technical, marketing, sales, support and administrative
organizations. Competition for qualified personnel in the industry in which we
compete is intense. We believe that our future success will depend in part on
our continued ability to attract, hire or acquire and retain qualified
employees.
Properties
We have our corporate headquarters in Lido Beach, New York. Substantially
all of our operating activities are conducted from 200 square feet of office
space provided by our president at no charge. We believe that additional space
will be required as our business expands and believe that we can obtain suitable
space as needed. We do not own any real estate.
Legal proceedings
We are not currently involved in any legal or regulatory proceedings or,
arbitration. However, our business involves substantial risks of liability,
including possible exposure to liability under federal, state and international
laws in connection with the gathering and use of information about our users,
infringing the proprietary rights of others and possible liability for product
defects, errors or malfunctions.
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MANAGEMENT DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Plan of operations
Hojo began implementing phases of its business plan in October 1999. We
began by purchasing and installing office equipment, a computer and web site
development software. We purchased the domain name www.hojoholdings.com and have
designed, developed and launched our first commercial web site.
Our web site utilizes leading-edge technology to present a variety of
information that we believe will be of interest to future customers. We provide
several categories of information, including:
o our services - information about the services we offer
o rates - a section for potential customers to obtain quotes from us
o why a website - an explanation of why we believe web sites are required
business tools
o about us - a description and background of us
o employment - an explanation of the types of independent contractors we
are seeking
o news - current information about us
o contact us - our address, phone/fax number and email address
o samples - we show a variety of web pages and web sites that we have
developed
We believe that the most important portion of our web site is the section
that displays a variety of samples that we created. The samples demonstrate a
variety of web site design and development skills that we possess and can offer
future clients. For example, our web development samples include:
o an animation introducing a new software product
o an animated splash page utilized to introduce a new web site
o a home page created utilizing the latest animation software
o a web site containing a variety of photographs
As a result of the initial samples, we have been able to identify several
individuals and entities that were interested in us to modify their web site and
in some cases to host their web sites. In return for not charging them for our
nominal services, each has agreed to serve as a reference for us, which we
believe will help us in getting paying customers.
Based upon our samples and our references, we have had several early-stage
discussions with individuals that are considering hiring us to develop their web
sites. The discussions are ongoing, have not led to any contract as of the date
of this date and we can not assure you that they will lead to any revenues.
Since early January 2000, we began to identify web site developers that
could assist us with complex web site development that may be required by future
clients. Based upon our recent conversations with qualified individuals, we are
comfortable that we can secure appropriate web site developers as needed and in
an economical manner, to satisfy a wide variety of possible requirements from
future clients. To date, we have not contracted any web site developers. We plan
to continue to identify suitable web site developers so that we have a wide
range to select from we need them.
Beginning in the second quarter of 2000, we plan to identify independent
contractors that can assist us in obtaining web site development contracts. We
believe that these individuals would be compensated on a commission basis, which
would be calculated from the total revenues we receive as a result of their
efforts.
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Revenues
We do not generate any revenues yet. We intend to generate revenue by
offering a range of services to deliver Internet solutions designed to help
clients build their businesses. In each consulting engagement, the client can
contract for the specific services it requires, depending on the nature of the
engagement and the capabilities of the client's organization. We intend to bill
the majority of our engagements on a time and materials basis, although we also
intend to deliver solutions on a fixed-price basis.
Cost of revenues
As we grow, our operating expenses will increase in connection with building
and maintaining our network of independent web site developers and programmers,
sales and marketing agents, web site development, and general and administrative
needed to support our growth.
Web site developer and programmer expenses consist primarily of compensation
for independent consultants that provide us with technical services. We expect
to significantly increase our web site developer and programmer expenses in
absolute dollars as we secure new clients.
Sales and marketing expenses consist primarily of compensation for sales and
marketing agents, travel, public relations, sales and other promotional
materials, trade shows, advertising and other sales and marketing programs. We
expect to continue to increase our sales and marketing expenses in absolute
dollars in future periods to promote our brand, to pursue our business
development strategy and to increase the size of our sales force.
General and administrative expenses consist primarily of compensation for
personnel and fees for outside professional advisors. We expect that general and
administrative expenses will continue to increase in absolute dollars in future
periods as we continue to add staff and infrastructure to support our expected
domestic and international business growth and bear the increased expense
associated with being a public company.
We anticipate that we will incur net losses for the foreseeable future. The
extent of these losses will be contingent, in part, on the amount of net revenue
generated from clients. There can be no assurance that our operating losses will
not increase in the future or that we will ever achieve or sustain
profitability.
Limited operating history
Our limited operating history makes predicting future operating results
very difficult. We believe that you should not rely on our current operating
results to predict our future performance. You must consider our prospects in
light of the risks, expenses and difficulties encountered by companies in new
and rapidly evolving markets. We may not be successful in addressing these risks
and difficulties.
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Our fiscal year ends December 31.
Results of operations
For the period January 5, 1999 to December 31, 1999, we did not generate
any operating revenues and incurred a cumulative net loss of approximately
$10,000. Our operating expenses consist of organizational costs including
accounting, incorporation and state fees as well as the purchase of office
supplies and communications expenses.
The results of operations for the period January 5, 1999 to December 31,
1999 are not necessarily indicative of the results for any future interim
period. We expect to expand our business and client base, which will require us
to increase the number of technical, sales and marketing agents and to develop
our web site and purchase equipment, which will result in increasing expenses.
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Liquidity and capital resources
Since inception, our financing has been provided to us through a credit
line of $12,500 from Joel Arberman, the husband of our president. Advances under
the verbal agreement earn interest at a fixed rate of 6%, are unsecured, can be
converted, at our sole discretion, into one common share for each $0.05 loaned
and have no specific repayment terns. As of December 31, 1999, we borrowed
approximately $10,000 and have a remaining credit line of approximately $2,500.
Our operating and capital requirements have exceeded our cash flow from
operations as we have been building our business. During the period January 5,
1999 to December 31, 1999 we used cash of approximately $12,500 for operating
and investing activities, which have been primarily funded by approximately
$10,000 in borrowings and $2,500 in proceeds from the sale of stock.
At December 31, 1999 we had $20 in cash.
We expect to make expenditures of at least $50,000 during the twelve
months following the closing of this offering. These expenditures will be used
to continue web site development, recruiting independent contractors, begin
sales and marketing and for general working capital.
We have an accumulated deficit and negative working capital and
accordingly, our ability to continue as a going concern is dependent upon
obtaining additional capital and financing for our planned operations.
If we are successful in selling at least 1,000,000 of the shares offered, the
$50,000 of proceeds generated will be sufficient to maintain our operations for
at least 12 months after completion of the offering. If independent contractors
accept stock for their services then we might be able to reduce our cash
requirements. As many as half of the 12,500,000 shares offered may be issued for
services. If we are unable to raise these funds we will not remain as a viable
going concern and investors may lose their entire investment.
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As a result of our limited operating history, we have limited meaningful
historical financial data upon which to base planned operating expenses.
Accordingly, our anticipated expense levels in the future are based in part on
our expectations as to future revenue. We expect that these expense levels will
become, to a large extent, fixed. Revenues and operating results generally will
depend on the volume of, timing of and ability to complete transactions, which
are difficult to forecast. In addition, there can be no assurance that we will
be able to accurately predict our net revenue, particularly in light of the
intense competition for Internet professional services, our limited operating
history and the uncertainty as to the broad acceptance of the web and Internet.
We may be unable to adjust spending in a timely manner to compensate for any
unexpected revenue shortfall or other unanticipated changes in our industry. Any
failure by us to accurately make predictions would have a material adverse
effect on our business, results of operations and financial condition
Material agreements
To date, we have not entered into any arrangements with independent
agents to provide technology development, sales or marketing.
In August 1999, we entered into a two-year employment agreement with Holli
Arberman, our president. Mrs. Arberman will be compensated at the rate of
$24,000 per year. However, no compensation shall be paid until we raise gross
investment proceeds exceeding $200,000.
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YEAR 2000 READINESS DISCLOSURE
We are not currently aware of any Year 2000 compliance problems relating
to our software or systems that would have a material adverse effect on our
business, results of operations and financial condition, without taking into
account our efforts to avoid or fix any problems. There can be no assurance that
third-party software, hardware, or services incorporated into our systems will
not need to be revised or replaced, which could be time consuming and expensive.
Our failure to fix our software or to fix or replace third-party software,
hardware or services on a timely basis could result in lost revenues, increased
operating costs and other business interruptions, any of which could have a
material adverse effect on our business, results of operations and financial
condition. Moreover, failure to adequately address Year 2000 compliance issues
in our software and systems could result in claims of mismanagement,
misrepresentation or breach of contract and related litigation, which could be
costly and time-consuming to defend. In addition, there can be no assurance that
governmental agencies, utility companies, internet access companies, third-party
service providers and others outside our control will be Year 2000 compliant.
The failure by those entities to be Year 2000 compliant could result in a
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<PAGE>
systematic failure beyond our control, including prolonged internet,
telecommunications or electrical failure. That type of failure could prevent us
from delivering our services, decrease the use of the internet or prevent users
from accessing our websites any of which would have a material adverse effect on
our business, results of operations and financial condition.
WHERE YOU CAN FIND MORE INFORMATION?
We have not been subject to the reporting requirements of the Securities
Exchange Act of 1934, prior to completion of this offering. We have filed with
the SEC a registration statement on Form SB-2 to register the offer and sale of
the shares. This prospectus is part of that registration statement, and, as
permitted by the SEC's rules, does not contain all of the information in the
registration statement. For further information with respect to us and the
shares offered under this prospectus, you may refer to the registration
statement and to the exhibits and schedules filed as a part of the registration
statement. You can review the registration statement and our exhibits and
schedules at the public reference facility maintained by the SEC at Judiciary
Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
regional offices of the SEC at 7 World Trade Center, Suite 1300, New York, New
York 10048 and Citicorp Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further information on
the public reference room. The registration statement is also available
electronically on the world wide web at http://www.sec.gov.
You can also call, write or email us at any time with any questions you may
have. We would be pleased to speak with you about any aspect of this offering.
22
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<PAGE>
Hojo Holdings, Inc.
(A Development Stage Enterprise)
TABLE OF CONTENTS
- ------------------------------------------------------------------------------
Independent Auditors' Report F-2
Financial Statements as of and for the period January 5, 1999
(date of incorporation) to December 31, 1999:
Balance Sheet F-3
Statement of Operations F-4
Statement of Stockholders' Deficit F-5
Statement of Cash Flows F-6
Notes to Financial Statements F-7
- -------------------------------------------------------------------------------
F-1
34
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Director of Hojo Holdings, Inc.:
We have audited the accompanying balance sheet of Hojo Holdings, Inc. (the
"Company"), a development stage enterprise, as of December 31, 1999, and the
related statements of operations, stockholders' deficit and cash flows for the
period January 5, 1999 (date of incorporation) to December 31,1999. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining on a test basis, evidence supporting
the amounts and the disclosures in the financial statements. An audit also
includes assessing the accounting principles used and the significant estimates
made by management, as well as the overall financial statement presentation. We
believe our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Company as of December 31,
1999, and the results of its operations and its cash flows for the period
January 5, 1999 (date of incorporation) to December 31, 1999 in conformity with
generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Notes A and B to the
financial statements, the Company is in the development stage and has an
accumulated deficit, anticipates incurring net losses in the foreseeable future
and will require a significant amount of capital to commence its planned
principal operations and proceed with its business plan. As of the date of these
financial statements, no significant capital has been raised, and as such there
is no assurance that the Company will be successful in its efforts to raise the
necessary capital to commence its planned principal operations and/or implement
its business plan. These factors raise substantial doubt about the Company's
ability to continue as a going concern. Management's plans in regard to this
matter are described in Note B. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
Kingery Crouse & Hohl P.A.
January 24, 2000
Tampa FL
F-2
35
<PAGE>
Hojo Holdings, Inc..
(A Development Stage Enterprise)
BALANCE SHEET AS OF DECEMBER 31, 1999
- -------------------------------------------------------------------------------
ASSETS
Cash and cash equivalents $ 20
Computer equipment (less accumulated
depreciation of $0.00) 2,197
---------------
TOTAL $ 2,217
===============
LIABILITIES AND STOCKHOLDERS' DEFICIT
LIABILITIES - Due to affiliate $ 10,003
---------------
STOCKHOLDERS' DEFICIT:
Common stock - $.001 par value - 20,000,000
shares authorized; 2,500,000 shares issued
and outstanding 2,500
Deficit accumulated during the development stage (10,286)
---------------
Total stockholders' deficit (7,786)
---------------
TOTAL $ 2,217
===============
- ------------------------------------------------------------------------------
See notes to financial statements
F-3
36
<PAGE>
Hojo Holdings, Inc.
(A Development Stage Enterprise)
STATEMENT OF OPERATIONS
for the period January 5, 1999 (date of incorporation)
to December 31, 1999
- ------------------------------------------------------------------------------
EXPENSES:
Professional fees $ 5,848
Office 2,226
Marketing 991
Filing fees 554
Organization costs 564
Travel and entertainment 103
-------------------
NET LOSS $ 10,286
===================
NET LOSS PER SHARE:
Basic $ 0.00
===================
Weighted average number of shares - basic 2,500,000
===================
- ------------------------------------------------------------------------------
See notes to financial statements
F-4
37
<PAGE>
Hojo Holdings, Inc.
(A Development Stage Enterprise)
STATEMENT OF STOCKHOLDERS' DEFICIT
for the period January 5, 1999 (date of incorporation)
to December 31, 1999
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Deficit
Accumulated
During the
Common Stock Development
Shares Par Value Stage Total
------------- -------------- ------------------ -----------
<S> <C> <C> <C> <C>
Balances, January 5, 1999
(date of incorporation) 0 $ 0 $ 0 $ 0
Issuance of common stock 2,500,000 2,500 2,500
Net loss for the period,
January 5, 1999 (date of
Incorporation) to
December 31, 1999 (10,286) (10,286)
------------- -------------- ------------------ -----------
Balances, December 31, 1999 2,500,000 $ 2,500 $ (10,286) $ (7,786)
============= ============== ================== ===========
</TABLE>
- -------------------------------------------------------------------------------
See notes to financial statements
F-5
38
<PAGE>
Hojo Holdings, Inc.
(A Development Stage Enterprise)
STATEMENT OF CASH FLOWS
for the period January 5, 1999 (date of incorporation)
to December 31, 1999
- --------------------------------------------------------------------------------
CASH USED IN OPERATING ACTIVITIES - Net loss $ (10,286)
--------------
CASH FLOWS FROM INVESTING ACTIVITIES-
Purchase of computer equipment (2,197)
--------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase in due to affiliate 10,003
Proceeds from the issuance of common stock 2,500
--------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 12,503
--------------
NET INCREASE IN CASH AND CASH EQUIVALENTS 20
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 0
--------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 20
==============
Interest paid $ 0
==============
Taxes paid $ 0
==============
- ------------------------------------------------------------------------------
See notes to financial statements
F-6
39
<PAGE>
Hojo Holdings, Inc.
(A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE A - FORMATION AND OPERATIONS OF THE COMPANY
Hojo Holdings, Inc. (the "Company") was incorporated under the laws of the state
of Delaware on January 5, 1999. The Company, which is considered to be in the
development stage as defined in Financial Accounting Standards Board Statement
No. 7, is a web site development firm that intends to build a network of
independent web site developers for projects it secures from clients. The
planned principal operations of the Company have not commenced, therefore
accounting policies and procedures have not yet been established.
Use of Estimates
The preparation of financial statements in accordance with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial statements. The
reported amounts of revenues and expenses during the reporting period may be
affected by the estimates and assumptions management is required to make. Actual
results could differ from those estimates.
NOTE B - GOING CONCERN
The accompanying financial statements have been prepared on a going concern
basis, which contemplates the realization of assets and the satisfaction of
liabilities in the normal course of business. The Company has an accumulated
deficit of approximately $7,800 through December 31, 1999, anticipates incurring
net losses for the foreseeable future and will require a significant amount of
capital to commence its planned principal operations and proceed with its
business plan. Accordingly, the Company's ability to continue as a going concern
is dependent upon its ability to secure an adequate amount of capital to finance
its planned principal operations and/or implement its business plan. The
Company's plans include a public offering of its common stock (see Note F) and
the issuance of debt, however there is no assurance that they will be successful
in their efforts to raise capital. These factors, among others, may indicate
that the Company will be unable to continue as a going concern for a reasonable
period of time.
The financial statements do not include any adjustments relating to the
recoverability and classification of recorded asset amounts or the amounts and
classification of liabilities that might be necessary should the Company be
unable to continue as a going concern.
F-7
40
<PAGE>
NOTE C - RELATED PARTY TRANSACTIONS
On August 30, 1999, the Company executed a two year employment contract with its
President, which requires annual compensation of approximately $24,000 plus
certain bonuses and fringe benefits (as defined in the agreement). The agreement
shall become effective upon the date on which the Company receives more than
$200,000 of gross investment capital.
During the period January 5, 1999 (date of incorporation) to December 31, 1999,
the Company's President provided various equipment, services and a portion of
her home for office space for no consideration. The value of this equipment,
services and office space are considered to be insignificant and as such no
expense has been recorded.
At December 31, 1999, the Company has an informal line of credit with the
President's husband. Advances under this arrangement accrue interest at a fixed
rate of 6%, are unsecured and have no specified repayment terms. At the sole
discretion of the Company this debt can be converted into a maximum of 250,000
common shares at the rate of one share per $0.05 advanced at the date of
conversion. During the period ended December 31, 1999, the Company borrowed
$12,500 under this arrangement of which $10,003 remained outstanding at December
31, 1999. Interest has not been paid or accrued as of or for the period August
5, 1999 (date of incorporation) to December 31, 1999 because of its
insignificance.
NOTE D - INCOME TAXES
The Company has recognized losses for both financial and tax reporting purposes
and has a net operating loss carryforward of approximately $10,000 as of
December 31, 1999. As such, no deferred income taxes have been provided for in
the accompanying financial statements. Also, because the Company would establish
a valuation allowance for any deferred income tax asset, no deferred income tax
benefit and/or asset has been recorded in the accompanying financial statements.
NOTE E - LOSS PER SHARE
The Company computes net loss per share in accordance with SFAS No. 128
"Earnings per Share" ("SFAS No. 128") and SEC Staff Accounting Bulletin No. 98
("SAB 98"). Under the provisions of SFAS No. 128 and SAB 98, basic net loss per
share is computed by dividing the net loss available to common stockholders for
the period by the weighted average number of common shares outstanding during
the period. Diluted net loss per share is computed by dividing the net loss for
the period by the number of common and
F-8
41
<PAGE>
common equivalent shares outstanding during the period. As of December 31, 1999
there were approximately 200,000 dilutive shares outstanding related to the
convertible debt discussed in NOTE C. These shares are considered antidilutive
for purposes of the earnings per share calculation and are therefore not
included in the earnings pre share calculation; accordingly diluted net loss per
share and basic net loss per share are the same.
NOTE F - COMMON STOCK OFFERING
The Company intends to file a registration statement with the SEC to sell up to
12,500,000 shares of its common stock for $0.05 per share. As many as 6,250,000
of these shares may be issued in exchange for services. The offering will be on
a best-efforts, no minimum basis. As such, there will be no escrow of any of the
proceeds of the offering and the Company will have the immediate use of such
funds to finance its operations.
- --------------------------------------------------------------------------------
F-9
42
<PAGE>
* , 1999
Hojo Holdings, Inc.
12,500,000 shares of common stock
PROSPECTUS
We have not authorized any dealer, salesperson, or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy the securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sales made after the date of this prospectus shall create an implication that
the information contained in this prospectus or the affairs of our business have
not changed since the date of this prospectus.
Until ______________, 2000 all dealers effecting transactions in the registered
securities, whether or not participating in this distribution, may be required
to deliver a prospectus. This is in addition to the obligation of dealers to
deliver a prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.
33
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<PAGE>
Part II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of directors and officers.
The information required by this Item is incorporated by reference to
"indemnification" in the prospectus herein.
Item 25. Other Expenses of Issuance and Distribution.
SEC Registration Fee $173.75
Blue Sky Fees and Expenses 6,000
Legal Fees and Expenses 10,000
Printing and Engraving Expenses 2,000
Accountants' Fees and Expenses 10,000
Miscellaneous 1,826.25
Total $30,000
The expenses, except for the SEC fees, are estimated.
Item 26. Recent sales of unregistered securities.
The following sets forth information relating to all previous sales of common
stock by the Registrant which sales were not registered under the Securities Act
of 1933.
On January 6, 1999, we issued 900,000 shares of common stock to Holli Arberman,
president and CEO at a price of $0.001 per share, for aggregate consideration of
$900. This purchase and sale were exempt from registration under the Securities
Act of 1933, (the "Securities Act"), according to Section 4(2) on the basis that
the transaction did not involve a public offering.
On January 6, 1999, we sold 1,600,000 shares of common stock to 49 investors,
each of whom subscribed to purchase the shares, at a price of $0.001 per share,
for aggregate consideration of $1,600. No sales commissions were paid in
connection with the offering. These sales were exempt from registration under
the Securities Act of 1933, (the "Securities Act"), according to Section 4(2) on
the basis that the transaction did not involve a public offering.
All individuals that purchased shares of stock had the opportunity to ask
questions and receive answers from our officer and director. In addition, they
had access to review all of our corporate records and material contracts and
agreements, which were very limited since we had just incorporated Hojo. Each of
the investors were asked a series of questions to determine whether or not they
were accredited investors, as defined by Rule 215, or if they were sophisticated
investors. All persons that had sufficient knowledge and experience from which
to make an informed investment decision are listed as being sophisticated.
34
44
<PAGE>
January 6, 1999
Holli Arberman sophisticated
January 6, 1999
Alfred Arberman sophisticated
Rachelle Arberman sophisticated
Anil Goel sophisticated
Brad Jones sophisticated
Roger Mclelland sophisticated
Shanti Mclelland sophisticated
Brad Rotter accredited
Robert Enslein accredited
Paul Milelli sophisticated
Tumer Bahcheli accredited
Ellis Reemer accredited
Bryan Eggers sophisticated
Steve Palmer sophisticated
Kevin Lewis accredited
Raj Vadavia sophisticated
Bob Vukovitch accredited
Jonathan Lewis sophisticated
Mark Freeman accredited
Michael Levy accredited
Glenn Bierman accredited
Bella and Mauricio Nemes sophisticated
Simon and Sarah Blechner sophisticated
Sefany Jones sophisticated
Hillary Braderman sophisticated
Larry Stessel accredited
Isabel Arberman sophisticated
Joshua and Renee Bialek sophisticated
Fred Sager accredited
Cliff Berger accredited
Morty Dugatz accredited
Kerry Kassover accredited
Ron Kassover sophisticated
George Chajes sophisticated
Harvey Jacobson accredited
Jeremy and Karen Blumenfeld sophisticated
Lisa Appel sophisticated
Lawrence Frankel sophisticated
Debbie Galla sophisticated
Bob Herbst sophisticated
35
45
<PAGE>
Adam Hutt sophisticated
Lisa Kahn sophisticated
Burt Miller sophisticated
Joseph Popolow accredited
David Smith sophisticated
Ilan Weinberg sophisticated
Elain Calmon sophisticated
Herbert and June Appel sophisticated
Mark Defelice sophisticated
Thomas Caton sophisticated
Item 27. Exhibits.
The exhibits marked with an "*" have already been filed. The remaining exhibits
are filed with this Registration Statement:
Number Exhibit Name
*1.1 Subscription Agreement
*3.1 Articles of Incorporation
3.2 By-Laws
* 5.0 Opinion Regarding Legality
*10.1 Employment Agreement with Holli Arberman.
23.1 Consent of Expert
24.1 Consent of Counsel
All other Exhibits called for by Rule 601 of Regulation S-B are not applicable
to this filing. Information pertaining to our common stock is contained in our
Articles of Incorporation and By-Laws.
Item 28. Undertakings.
The undersigned registrant undertakes:
(1) To file, during any period in which offer or sales are being made, a
post-effective amendment to this registration statement:
To include any prospectus required by section I 0(a)(3) of the Securities Act
of 1933;
Toreflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment) which, individually or in the aggregate, represent a fundamental
change in the information in the registration statement;
Toinclude any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to the information in the Registration Statement.
36
46
<PAGE>
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of securities at that time shall be deemed to be the
initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
Subject to the terms and conditions of Section 15(d) of the Securities
Exchange Act of 1934, the undersigned Registrant undertakes to file with the
Securities and Exchange Commission any supplementary and periodic information,
documents, and reports as may be prescribed by any rule or regulation of the
Commission heretofore or hereafter duly adopted pursuant to authority conferred
to that section.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to our certificate of incorporation or provisions of
Delaware law, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission the indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. If a claim for
indemnification against liabilities (other than the payment by the Registrant)
of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit, or proceeding is
asserted by a director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of our
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether the indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of the issue.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and has duly caused this
registration statement to be signed on our behalf by the undersigned, in the
City of Lido Beach, State of New York, on January 25, 2000.
(Registrant) Hojo Holdings, Inc.
By (signature and title) /s/ Holli Arberman
president, treasurer, and director
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
(signature) /s/ Holli Arberman
(title) president, chief executive officer,
secretary, chairman of the board
(date) January 25, 2000
(signature) /s/ Holli Arberman
(title) Chief Accounting Officer
(date) January 25, 2000
37
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<PAGE>
As filed with the SEC on January 25, 2000 SEC Registration No.333-87111
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
REGISTRATION STATEMENT
ON FORM SB-2
UNDER
THE SECURITIES ACT OF 1933
Hojo Holdings, Inc.
(Consecutively numbered pages 48 through of this Registration Statement)
38
48
<PAGE>
INDEX TO EXHIBITS
SEC REFERENCE TITLE OF DOCUMENT LOCATION
NUMBER
1.1 Subscription Agreement Previous Filing
3.1 Articles of Incorporation Previous Filing
3.2 Bylaws
5 Consent of HOGE, EVANS, This Filing
HOLMES, CARTER & LEDBETTER, Page___
PLLC
10.1 Employment Agreement Previous Filing
for Holli Arberman
23 Consent of Kingery, This Filing
Crouse & Hohl, P.A. Page
39
49
<PAGE>
REFERENCE 3.2
AMENDED AND RESTATEDBYLAWS
50
<PAGE>
AMENDED AND RESTATED BY-LAWS
OF
HOJO HOLDINGS, INC.
(a Delaware corporation)
--------------------------------------------
Adopted by Unanimous Written Consent of the Board of Directors on
December 31, 1999
----------------------------------------
ARTICLE I
Office
Section 1.1. Registered Office. The registered office of Hojo Holdings,
Inc. (the "Corporation") in the State of Delaware shall be located at 15 East
North Street in the City of Dover, County of Kent.
Section 1.2. Registered Agent. The registered agent of the Corporation in
the State of Delaware at its registered office is Incorporating Services, Ltd.
Section 1.3. Principal Office. The principal place of business of the
Corporation shall be at 21 Blackheath Road, in the City of Lido Beach, County of
Nassau and State of New York, or at such other place as the Board of Directors
may at any time or from time to time designate.
Section 1.4. Other Offices. The Corporation may establish or
discontinue, from time to time, such other offices and places of business within
or without the State of Delaware as may be deemed proper for the conduct of the
business of the Corporation.
ARTICLE II
Meeting of Stockholders
Section 2.1. Annual Meeting. The annual meeting of such holders of
capital stock ("Stock") as are entitled to vote thereat ("Annual Meeting of
Stockholders") shall be held for the election of directors and the transaction
of such other business as properly may come before it on the third Monday in
January of each year at 10:00 a.m., local time, or on such other date, and at
such time and place, as shall be determined by resolution of the Board of
Directors. If the day fixed for the annual meeting is a legal holiday, such
meeting shall be held on the next succeeding business day.
51
<PAGE>
Section 2.2. Special Meetings. In addition to such special meetings as
are provided for by law or by the Certificate of Incorporation, special meetings
of the stockholders of the Corporation may be called at any time by the Board of
Directors, and by the Secretary upon the written request stating the purposes of
any such meeting of the holders of record collectively of at least thirty (30%)
percent of the outstanding shares of Stock of the Corporation. Special meetings
shall be called by means of a notice as provided in Section 2.4 hereof.
Section 2.3. Place of Meetings. All meetings of the stockholders shall be
held at such place within or without the State of Delaware as shall be
designated by the Board of Directors.
Section 2.4. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting and, in case
of a special meeting, the purpose or purposes for which the meeting is called.
The notice of each Annual Meeting of Stockholders shall identify each matter
intended to be acted upon at such meeting. If mailed, the notice shall be
addressed to each stockholder in a postage-prepaid envelope at his address as it
appears on the records of the Corporation unless, prior to the time of mailing,
the Secretary shall have received from any such stockholder a written request
that notices intended for him be mailed to some other address. In such case the
notice intended for such stockholder shall be mailed to the address designated
in such request. Notice of each meeting of stockholders shall be delivered
personally or mailed not less than ten (10) nor more than sixty (60) days before
the date fixed for the meeting to each stockholder entitled to vote at such
meeting.
Section 2.5. Waiver of Notice. Whenever notice is required to be given,
a written waiver thereof signed by the person entitled to notice whether before
or after the time stated therein for such meeting shall be deemed equivalent to
notice. Attendance of a person at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except as otherwise provided by law. Neither
the business to be transacted at nor the purpose of any regular or special
meeting of the stockholders need be specified in any written waiver of notice.
Section 2.6. Organization of Meetings. The Chairman of the Board, if
any, shall act as chairman at all meetings of stockholders at which he is
present and, as such chairman, shall call such meetings of stockholders to order
and shall preside thereat. If the Chairman of the Board shall be absent from any
meeting of stockholders, the duties otherwise provided in this Section to be
performed by him at such meeting shall be performed at such meeting by the
President. If both the Chairman of the Board and the President shall be absent,
such duties shall be performed by a Vice President designated by the President
to preside at such meeting. If no such officer is present at such meeting, any
stockholder or the proxy of any stockholder entitled to vote at the meeting may
call the meeting to order and a chairman to preside thereat shall be elected by
a majority of those present and entitled to vote. The Secretary of the
Corporation shall act as secretary at all meetings of the stockholders but, in
his absence, the chairman of the meeting may appoint any person present to act
as secretary of the meeting.
Section 2.7. Stockholders Entitled to Vote. The Board of Directors may
fix a date not less than ten (10) nor more than sixty (60) days preceding the
date of any meeting of stockholders, or preceding the last day on which the
consent of stockholders may be effectively expressed for any purpose without a
meeting, as a record date for the determination of the stockholders entitled:
(a) to notice of, and to vote at, such meeting and any adjournment thereof; or
(b) to express such consent. In such case such stockholders of record on the
date so fixed, shall be entitled to notice of, and to vote at, such meeting and
any adjournment thereof or to express such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date is so fixed.
Section 2.8. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make or cause to be prepared and made, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at such meeting, arranged in alphabetical order and showing the address of
each such stockholder as it appears on the records of the Corporation and the
number of shares registered in the name of each such stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place specified in the notice of meeting
within the city where the meeting is to be held or, if not so specified, at the
place where the meeting is to be held, and a duplicate list shall be similarly
open to examination at the principal place of business of the Corporation. Such
list shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present.
52
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Section 2.9. Quorum and Adjournment. Except as otherwise provided by
law and in the Certificate of Incorporation, the holders of a majority of the
shares of Stock entitled to vote at the meeting shall constitute a quorum at
each meeting of the stockholders. Where more than one class or series of Stock
is entitled to vote at such a meeting, a majority of the shares of each such
class or series of Stock entitled to vote at such meeting shall constitute a
quorum at such meeting. In the absence of a quorum, the holders of a majority of
all such shares of Stock present in person or by proxy may adjourn any meeting
from time to time until a quorum shall attend. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called. Notice of an adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.10. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
Section 2.11. Vote of Stockholders. Except as otherwise permitted by
law, by the Certificate of Incorporation or by Section 2.13 hereof, all action
by stockholders shall be taken at a meeting of the stockholders. Except as
otherwise provided in the Certificate of Incorporation, every stockholder of
record, as determined pursuant to Section 2.7 hereof, who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of Stock entitled to participate in such vote held by such stockholder on
the record date. Every stockholder entitled to vote shall have the right to vote
in person or by proxy. Except as otherwise provided by law, no vote on any
question upon which a vote of the stockholders may be taken need be by ballot
unless the chairman of the meeting shall determine that it shall be by ballot or
the holders of a majority of the shares of Stock present in person or by proxy
and entitled to participate in such vote shall so demand. In a vote by ballot
each ballot shall state the number of shares voted and the name of the
stockholder or proxy voting. Unless otherwise provided by law or by the
Certificate of Incorporation, each director shall be elected and all other
questions shall be decided by the vote of the holders of a majority of the
shares of Stock present in person or by proxy at the meeting and entitled to
vote on the question.
Section 2.12. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder.
Section 2.13. Consent of Stockholders in Lieu of Meeting. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
for or in connection with any corporate action by any provision of the General
Corporation Law of the State of Delaware, the meeting, prior notice of such
meeting and the vote of the stockholders may be dispensed with and such
corporate action may be taken with the written consent of the stockholders of
Stock having not less than the minimum percentage of the total vote required by
statute for the proposed corporate action, unless the Certificate of
Incorporation or the By-Laws require a greater percentage for such action, in
which case the consent shall be that of the holders of such greater percentage;
provided, however, that prompt notice is given to all the stockholders who have
not consented of the taking of such corporate action without a meeting and by
less than unanimous written consent. Whenever it is intended that action is to
be taken by stockholders without a meeting, a form for expressing consent in
writing to such action shall be sent to all holders of Stock entitled to vote on
such action.
Section 2.14. Attendance at Meetings of Stockholders. Any stockholder
of the Corporation not entitled to notice of the meeting or to vote at such
meeting shall nevertheless be entitled to attend any meeting of stockholders of
the Corporation.
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ARTICLE III
Board of Directors
Section 3.1. Election and Term. Except as otherwise provided by law or
by this Article III, directors shall be elected at the Annual Meeting of
Stockholders and shall hold office until the next Annual Meeting of Stockholders
and until their successors are elected and qualify, or until they sooner die,
resign, or are removed. Acceptance of the office of director need not be
expressed in writing.
Section 3.2. Number. The number of directors constituting the Board of
Directors shall be fixed from time to time by the Board of Directors or by the
stockholders, but shall not be less than one nor more than seven. Until so
fixed, the number of directors constituting the Board of Directors shall be two.
A director need not be a stockholder, citizen of the United States or a resident
of the State of Delaware.
Section 3.3. General Powers. The business, properties and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors which, without limiting the generality of the foregoing, shall have
the power to appoint the officers and agents of the Corporation, to fix and
alter the salaries of officers, employees and agents of the Corporation, to
grant general or limited authority (including authority to delegate and
sub-delegate) to officers, employees and agents of the Corporation, to make,
execute, affix the corporate seal to and deliver contracts and other instruments
and documents including bills, notes, checks or other instruments for the
payment of money, in the name and on behalf of the Corporation without specific
authority in each case and to appoint committees in addition to those provided
for in Articles IV and V hereof with such powers and duties as the Board of
Directors may determine and as provided by law. The membership of such
committees shall consist of such persons as are designated by the Board of
Directors. In addition, the Board of Directors may exercise all the powers of
the Corporation and do all lawful acts and things which are not reserved to the
stockholders by law, by the Certificate of Incorporation or by the By-Laws.
Section 3.4. Place of Meetings. Meetings of the Board of Directors may
be held at the principal place of business of the Corporation in the City of
Stamford or at any other place, within or without the State of Delaware, from
time to time as designated by the Board of Directors.
Section 3.5. First Meeting of New Board. A newly elected Board of
Directors shall meet without notice as soon as practicable after each Annual
Meeting of Stockholders at the place at which such meeting of stockholders took
place. If a quorum is not present, such organization meeting may be held at any
other time or place which may be specified for special meetings of the Board of
Directors in a notice given in the manner provided in Section 3.7 hereof or in a
waiver of notice thereof.
Section 3.6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as may be determined by resolution of the
Board of Directors. No notice shall be required for any regular meeting. Except
as otherwise provided by law, any business may be transacted at any regular
meeting of the Board of Directors.
Section 3.7. Special Meetings; Notice; and Waiver of Notice. Special
meetings of the Board of Directors shall be called by the Secretary or an
Assistant Secretary at the request of the Chairman of the Board, if any, the
President, a Vice President, or at the request in writing of no less than two
Directors stating the purpose or purposes of such meeting. Notices of special
meetings shall be mailed to each director addressed to him at his residence or
usual place of business not later than three (3) days before the day on which
the meeting is to be held or shall be sent to him at either of such places by
telegraph or shall be communicated to him personally or by telephone, not later
than the day before the date fixed for the meeting. Notice of any meeting of the
Board of Directors shall not be required to be given to any director if he shall
sign a written waiver thereof either before or after the time stated therein for
such meeting or if he shall be present at the meeting and participate in the
business transacted thereat. Any and all business transacted at any meeting of
the Board of Directors shall be fully effective without any notice thereof
having been given if all the members shall be present thereat. Unless limited by
law, the Certificate of Incorporation, the By-Laws, or by the terms of the
notice thereof, any and all business may be transacted at any special meeting
without the notice thereof having so specifically enumerated the matters to be
acted upon.
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Section 3.8. Organization. The Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors at which he is present. If the
Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 3.8 to be performed by
him at such meeting shall be performed by the President. If both the Chairman of
the Board and the President shall be absent, such duties shall be performed by a
director designated by the President to preside at such meeting. If no such
officer or director is present at such meeting, one of the directors present
shall be chosen to preside by a majority vote of the members of the Board of
Directors present at such meeting. The Secretary of the Corporation shall act as
the secretary at all meetings of the Board of Directors and, in his absence, a
temporary secretary shall be appointed by the chairman of the meeting.
Section 3.9. Quorum and Adjournment. Except as otherwise provided by
Section 3.14 hereof and in the Certificate of Incorporation, at every meeting of
the Board of Directors, if the number of Directors constituting the Board of
Directors is three or more, a majority of the total number of directors shall
constitute a quorum and, if the number of Directors constituting the Board of
Directors is two or less, the entire Board of Directors shall constitute a
quorum. Except as otherwise provided by law, by the Certificate of
Incorporation, by Sections 3.14, 4.1, 4.8, 5.1, 6.3, or 10.1 hereof, if the
number of Directors constituting the Board of Directors is three or more, the
vote of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors and, if the number of
Directors constituting the Board of Directors is two or less, the unanimous vote
of all Directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors. In the absence of a quorum, any meeting may
be adjourned from time to time until a quorum is present. Notice of an adjourned
meeting shall be required to be given if notice was required to be given of the
meeting as originally called.
Section 3.10. Voting. On any question on which the Board of Directors
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting when any member of the Board of Directors present at the
meeting so requests.
Section 3.11. Acting Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of
Directors or of such committee, as the case may be, consent thereto in writing
and such written consents are filed with the minutes of such proceeding.
Section 3.12. Resignations. Any director may resign at any time by
written notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other time is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective unless
such resignation is tendered subject to such acceptance.
Section 3.13. Removal of Directors. Subject to any agreement in writing
between the stockholders of the Corporation, any director may be removed either
with or without cause at any time by action of the holders of record of a
majority of the outstanding shares of Stock of the Corporation then entitled to
vote at an election of directors at a meeting of holders of such shares. The
vacancy in the Board of Directors caused by any such removal may be filled by
action of such stockholders at such meeting or at any subsequent meeting.
Section 3.14. Filling of Vacancies. Except as otherwise provided by
law, in case of any increase in the number of directors or of any vacancy
created by death, resignation, or disqualification, the additional director or
directors may be elected or the vacancy or vacancies may be filled, as the case
may be, by the remaining directors or by a sole remaining director though the
remaining director or directors be less than the quorum provided for in Section
3.9 hereof. Each director so chosen shall hold office until the next Annual
Meeting of Stockholders and until his successor is elected and qualifies or
until such director sooner dies, resigns, or is removed.
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ARTICLE IV
Executive Committee
Section 4.1. Appointment and Powers. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint an Executive Committee and the members thereof consisting of
one or more members which shall have and may exercise, during the intervals
between the meetings of the Board of Directors, all of the powers of the Board
of Directors in the management of the business, properties and affairs of the
Corporation; provided, however, that the foregoing is subject to the applicable
provisions of law and the Certificate of Incorporation and shall not be
construed as authorizing action by the Executive Committee with respect to any
action which is required to be taken by vote of a specified proportion of the
whole Board of Directors. The Executive Committee shall consist of the President
and such directors as may from time to time be designated by the Board of
Directors. So far as practicable, the members of the Executive Committee shall
be appointed at the organization meeting of the Board of Directors in each year
and, unless sooner discharged by affirmative vote of a majority of the whole
Board of Directors, shall hold office until the next annual organization meeting
of the Board of Directors and until their respective successors are appointed or
until they sooner die, resign, or are removed. All acts done and powers
conferred by the Executive Committee shall be deemed to be, and may be certified
as being, done or conferred under authority of the Board of Directors.
Section 4.2. Place of Meetings. Meetings of the Executive Committee may
be held at the principal place of business of the Corporation in the City of
Plainview or at any other place within or without the State of Delaware from
time to time designated by the Board of Directors or the Executive Committee.
Section 4.3. Meetings; Notice; and Waiver of Notice. Regular meetings
of the Executive Committee shall be held at such times as may be determined by
resolution either of the Board of Directors or the Executive Committee and no
notice shall be required for any regular meeting. Special meetings of the
Executive Committee shall be called by the Secretary or an Assistant Secretary
upon the request of any member thereof. Notices of special meetings shall be
mailed to each member, addressed to him at his residence or usual place of
business not later than three days before the day on which the meeting is to be
held or shall be sent to him at either of such places by telegraph, or shall be
delivered to him personally or by telephone, not later than the day before the
date fixed for the meeting. Notice of any such meeting shall not be required to
be given to any member of the Executive Committee if he shall sign a written
waiver thereof either before or after the time stated therein for such meeting
or if he shall be present at the meeting and participate in the business
transacted thereat, and all business transacted at any meeting of the Executive
Committee shall be fully effective without any notice thereof having been given
if all the members shall be present thereat. Unless limited by law, the
Certificate of Incorporation, the By-Laws, or the terms of the notice thereof,
any and all business may be transacted at any special meeting without the notice
thereof having specifically enumerated the matters to be acted upon.
Section 4.4. Organization. The Chairman of the Executive Committee
shall preside at all meetings of the Executive Committee at which he is present.
In the absence of the Chairman of the Executive Committee, the President shall
preside at meetings of the Executive Committee at which he is present. In the
absence of the Chairman of the Executive Committee and the President, the
Chairman of the Board, if any, shall preside at meetings of the Executive
Committee at which he is present. In the absence of the Chairman of the
Executive Committee, the President and the Chairman of the Board, one of the
members present shall be chosen by the members of the Executive Committee
present to preside at such meeting. The Secretary of the Corporation shall act
as secretary at all meetings of the Executive Committee and, in his absence, a
temporary secretary shall be appointed by the chairman of the meeting.
Section 4.5. Quorum and Adjournment. A majority of the members of the
Executive Committee shall constitute a quorum for the transaction of business.
The act of a majority of those present at any meeting at which a quorum is
present shall be the act of the Executive Committee. In the absence of a quorum,
any meeting may be adjourned from time to time until a quorum is present. No
notice of any adjourned meeting shall be required to be given other than by
announcement at the meeting that is being adjourned.
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Section 4.6. Voting. On any question on which the Executive Committee
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting when any member of the Executive Committee present at the
meeting so requests.
Section 4.7. Records. The Executive Committee shall keep minutes of its
acts and proceedings which shall be submitted at the next regular meeting of the
Board of Directors. Any action taken by the Board of Directors with respect
thereto shall be entered in the minutes of the Board of Directors.
Section 4.8. Vacancies; Alternate Members; and Absences. Any vacancy
among the appointed members of the Executive Committee may be filled by
affirmative vote of a majority of the whole Board of Directors. By similar vote,
the Board of Directors may designate one or more directors as alternate members
of the Executive Committee who may replace any absent or disqualified member at
any meeting of the Executive Committee.
ARTICLE V
Other Committees of the Board
Section 5.1. Appointing Other Committees of the Board. The Board of
Directors may from time to time by resolution adopted by affirmative vote of a
majority of the whole Board of Directors appoint other committees of the Board
of Directors and the members thereof which shall have such powers of the Board
of Directors and such duties as the Board of Directors may properly determine
and as provided by law. Such other committee of the Board of Directors shall
consist of one or more directors. By similar vote, the Board of Directors may
designate one or more directors as alternate members of any such committee who
may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of any member of any such
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Section 5.2. Place and Time of Meetings; Notice; Waiver of Notice; and
Records. Meetings of such committees of the Board of Directors may be held at
any place, within or without the State of Delaware, from time to time designated
by the Board of Directors or the committee. Regular meetings of any such
committee shall be held at such times as may be determined by resolution of the
Board of Directors or the committee and no notice shall be required for any
regular meeting. A special meeting of any such committee shall be called by
resolution of the Board of Directors or by the Secretary or an Assistant
Secretary upon the request of any member of the committee. The provisions of
Section 4.3 hereof with respect to notice and waiver of notice of special
meetings of the Executive Committee shall also apply to all special meetings of
other committees of the Board of Directors. Any such committee may make rules
for holding and conducting its meetings and shall keep minutes of all meetings.
ARTICLE VI
The Officers
Section 6.1. Officers. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer. The
officers shall be elected by the Board of Directors. The Board of Directors may
also elect a Chairman of the Board, an Executive Vice President, a Chairman of
the Executive Committee, a Chief Financial Officer, a Controller, one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant
Controllers and such other officers and agents as in their judgment may be
necessary or desirable. The Chairman of the Board, the Chairman of the Executive
Committee, the President, and the Executive Vice President shall be selected
from the directors.
Section 6.2. Terms of Office and Vacancies. So far as is practicable,
all officers shall be appointed at the organization meeting of the Board of
Directors in each year and, except as otherwise provided in Sections 6.1, 6.3,
and 6.4 hereof, shall hold office until the organization meeting of the Board of
Directors in the next subsequent year and until their respective successors are
elected and qualify or until they sooner die, retire, resign or are removed. If
any vacancy shall occur in any office, the Board of Directors may elect a
successor to fill such vacancy for the remainder of the term.
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Section 6.3. Removal of Officers. Any officer may be removed at any
time, either with or without cause, by affirmative vote of a majority of the
whole Board of Directors at any regular meeting or at any special meeting called
for that purpose.
Section 6.4. Resignations. Any officer may resign at any time by giving
written notice thereof to the Corporation. Any resignation shall be effective
immediately unless some other date is specified for it to take effect.
Acceptance of any resignation shall not be necessary to make it effective unless
such resignation is tendered subject to such acceptance.
Section 6.5. Officers Holding More Than One Office. Any officer may hold
two or more offices so long as the duties of such offices can be consistently
performed by the same person.
Section 6.6. The Chairman of the Board. The Chairman of the Board, if
any, shall be a member of the Board of Directors. As provided in Section 2.6
hereof, he shall act as chairman at all meetings of the stockholders at which he
is present; as provided in Section 3.8 hereof, he shall preside at all meetings
of the Board of Directors at which he is present; and as provided in Section 4.4
hereof, in the absence of the Chairman of the Executive Committee and the
President, he shall preside at all meetings of the Executive Committee at which
he is present. He shall also perform such other duties and shall have such other
powers as may from time to time be assigned to him by the Board of Directors. In
the absence or disability of the Chairman of the Board, the duties of the
Chairman of the Board shall be performed and his powers may be exercised by the
President of the Board. In the absence or disability of the Chairman of the
Board and the President, the powers of the Chairman of the Board may be
exercised by such member of the Board of Directors as may be designated by the
Chairman of the Board and, failing such designation or in the absence of the
person so designated, by such member of the Board of Directors as may be
designated by the President.
Section 6.7. The President. The President shall be the chief executive
officer of the Corporation and, subject to the control of the Board of
Directors, shall have general and active charge, control and supervision of the
business, property and affairs of the Corporation, shall approve all operating
expense and capital expenditure budgets and shall formulate recommendations to
the Board of Directors for its action and decision. As provided in Section 4.4
hereof, in the absence of the Chairman of the Executive Committee, he shall
preside at all meetings of the Executive Committee at which he is present. In
the absence or disability of the Chairman of the Board, the duties of the
Chairman of the Board, including those duties set forth in Sections 2.6, 3.8 and
4.4 hereof, shall be performed and his powers may be exercised by the President.
If neither the President nor the Chairman of the Board is available, the duties
of the President shall be performed and his powers may be exercised by such
member of the Board of Directors as may be designated by the President and,
failing such designation or in the absence of the person so designated, by such
member of the Board of Directors as may be designated by the Chairman of the
Board.
Section 6.8. The Vice Presidents. The Vice Presidents, including the
Executive Vice President, shall perform such duties and have such powers as may
from time to time be assigned to them by the Board of Directors, the Chairman of
the Board or the President.
Section 6.9. The Secretary. The Secretary shall attend to the giving of
notice of each meeting of stockholders, the Board of Directors and committees
thereof and, as provided in Sections 2.6, 3.8, and 4.4 hereof, shall act as
secretary at each meeting of stockholders, directors and the Executive
Committee. He shall keep minutes of all proceedings at such meetings as well as
of all proceedings at all meetings of such other committees of the Board of
Directors as any such committee shall direct him to so keep. The Secretary shall
have charge of the corporate seal and he or any officer of the Corporation shall
have authority to attest to any and all instruments or writings to which the
same may be affixed. He shall keep and account for all books, documents, papers
and records of the Corporation except those for which some other officer or
agent is properly accountable. He shall generally perform all the duties usually
appertaining to the office of secretary of a corporation. In the absence of the
Secretary, such person as shall be designated by the chairman of any meeting
shall perform his duties.
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Section 6.10. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit such funds in such
banks or other depositories as the Board of Directors or any officer or officers
thereunto duly authorized by the Board of Directors shall from time to time
direct or approve. In the absence of a Controller, he shall perform all duties
appertaining to the office of Controller of the Corporation. He shall generally
perform all the duties usually appertaining to the office of treasurer of a
corporation. When required by the Board of Directors, he shall give bonds for
the faithful discharge of his duties in such sums and with such sureties as the
Board of Directors shall approve. In the absence of the Treasurer, such person
as shall be designated by the Chairman of the Board or President shall perform
his duties.
Section 6.11. The Controller. The Controller shall prepare and have the
care and custody of the books of account of the Corporation. He shall keep a
full and accurate account of all moneys received and paid on account of the
Corporation. He shall render a statement of his accounts whenever the Board of
Directors shall require. He shall generally perform all the duties usually
appertaining to the office of controller of a corporation. When required by the
Board of Directors, he shall give bonds for the faithful discharge of his duties
in such sums and with such sureties as the Board of Directors shall approve.
Section 6.12. Additional Powers and Duties. In addition to the
foregoing specifically enumerated duties and powers, the several officers of the
Corporation shall perform such other duties and exercise such further powers as
the Board of Directors may from time to time determine or as may be assigned to
them by any superior officer.
ARTICLE VII
Transactions With Directors and Officers
Section 7.1. Transactions with Directors and Officers. No contract or
transaction between the Corporation and one or more of its directors or officers
or between the Corporation and any other corporation, partnership, association
or other organization, in which one or more of its directors or officers are
directors or officers or have a financial interest, shall be void or voidable
solely for such reason or solely because the director or officer is present at
or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction or solely because his or their
votes are counted for such purpose if: (a) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee and the Board of Directors
or the committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors even though the
disinterested directors may be less than a quorum; or (b) the material facts as
to his relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the stockholders
or the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE VIII
Stock and Transfers of Stock
Section 8.1. Stock Certificates. The Stock of the Corporation shall be
represented by certificates signed by two officers of the Corporation, one the
Chairman of the Board, the President or a Vice President and the other the
Secretary or an Assistant Secretary. Any or all of the signatures may be a
facsimile. Such certificates shall be sealed with the seal of the Corporation.
Such seal may be a facsimile, engraved or printed. In case any officer who has
signed any such certificate shall have ceased to be such officer before such
certificate is issued, it may nevertheless be issued by the Corporation with the
same effect as if he were such officer at the date of issue. Certificates
representing the Stock of the Corporation shall be in such form as shall be
approved by the Board of Directors.
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Section 8.2. Restrictive Legend on Certificates. Every certificate
representing shares of Stock of the Corporation shall bear the following legend:
(a) The shares of stock represented hereby have been acquired for
investment and not with a view to distribution or resale, have not been
registered under the Securities Act of 1933, as amended, and are
transferable only in accordance with and upon proof of compliance with
the Securities Act of 1933, as amended, and the Rules promulgated
thereunder."
Section 8.3. Registration of Transfers of Stock. Registration of a
transfer of Stock shall be made on the books of the Corporation only upon
presentation by the person named in the certificate evidencing such stock, or by
an attorney lawfully authorized in writing, upon surrender and cancellation of
such certificate, with duly executed assignment and power of transfer endorsed
thereon or attached thereto, and with such proof of the authenticity of the
signature thereon as the Corporation or its agents may reasonably require.
Section 8.4. Lost Certificates. In case any certificate representing
Stock shall be lost, stolen or destroyed, the Board of Directors in its
discretion or any officer or officers thereunto duly authorized by the Board of
Directors may authorize the issuance of a substitute certificate in the place of
the certificate so lost, stolen or destroyed; provided, however, in each such
case the Corporation may require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation evidence which
the Corporation determines in its discretion satisfactory of the loss, theft or
destruction of such certificate and of the ownership thereof and may also
require a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 8.5. Determination of Stockholders of Record for Certain
Purposes. In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix in advance a record date which shall not be more than sixty
(60) days prior to any such action.
ARTICLE IX
Miscellaneous
Section 9.1. Seal. The seal of the Corporation shall have inscribed thereon
the name of the Corporation, the year of its organization and the state of its
incorporation.
Section 9.2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 9.3. Signatures on Negotiable Instruments. All bills, notes,
checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents of Corporation and in such manner as
from time to time may be prescribed by resolution (whether general or special)
of the Board of Directors or as may be prescribed by any officer or officers or
any officer and agent jointly thereunto duly authorized by the Board of
Directors.
Section 9.4. Indemnification. The Corporation shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of the State of
Delaware, indemnify any and all person whom it shall have power to indemnify
against any and all of the costs, expenses, liabilities or other matters
incurred by them by reason of having been officers or directors of the
Corporation, any subsidiary of the Corporation or of any other corporation for
which any and all persons who acted as officer or director at the request of the
Corporation.
Section 9.5. Books of the Corporation. Except as otherwise provided by
law, the books of the Corporation shall be kept at the principal place of
business of the Corporation and at such other locations as the Board of
Directors may from time to time determine.
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Section 9.6. References to Gender. Whenever in the By-Laws reference is
made to the masculine gender, such reference shall where the context so requires
be deemed to include the feminine gender, and the By-Laws shall be read
accordingly.
Section 9.7. References to Article and Section Numbers and to the
By-Laws and the Certificate of Incorporation. Whenever in the By-Laws reference
is made to an Article or Section number, such reference is to the number of an
Article or Section of the By-Laws. Whenever in the By-Laws reference is made to
the By-Laws, such reference is to these By-Laws of the Corporation as the same
may from time to time be amended. Whenever reference is made to the Certificate
of Incorporation, such reference is to the Certificate of Incorporation of the
Corporation as the same may from time to time be amended.
ARTICLE X
Amendments
Section 10.1. Amendments. Except as otherwise provided in the
Certificate of Incorporation or these By-Laws, the By-Laws may be altered,
amended or repealed from time to time by the Board of Directors by affirmative
vote of a majority of the whole Board of Directors. The By-Laws may be altered,
amended or repealed at any annual or special meeting of stockholders. Notice of
such proposed alteration, amendment or repeal setting forth the substance or
text thereof shall be included in the notice of any meeting of the Board of
Directors or stockholders called to consider any such alteration, amendment or
repeal.
* * * * * * * * *
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REFERENCE 5.0
CONSENT OF HOGE, EVANS, HOLMES, CARTER & LEDBETTER, PLLC
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HOGE, EVANS, HOLMES, CARTER & LEDBETTER, PLLC
ATTORNEYS AND COUNSELORS
HAMPTON COURT
SUITE 600
4311 OAKLAWN
DALLAS, TEXAS 75219
Steven B. Holmes
Licensed In TELEPHONE (214) 765-6000
Texas and Oklahoma TELECOPIER (214) 765-6020
E-MAIL [email protected]
January 24, 2000
Board of Directors
Hojo Holdings, Inc.
21 Blackheath Road
Lido Beach, New York 11561
Re: Hojo Holdings, Inc.
Registration Statement on Form SB-2
Gentlemen:
We have been retained by Hojo Holdings, Inc. (the "Company") in connection
with the Registration Statement (the "Registration Statement") on Form SB-2, to
be filed by the Company with the Securities and Exchange Commission relating to
the offering of securities of the Company. You have requested that we render our
opinion as to whether or not the securities proposed to be issued on terms set
forth in the Registration Statement will be validly issued, fully paid, and
nonassessable.
In connection with the request, we have examined the following:
1. Articles of Incorporation of the Company;
2. Bylaws of the Company;
3. The Registration Statement; and
4. Unanimous consent resolutions of the Company's Board of Directors.
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HOGE, EVANS, HOLMES, CARTER & LEDB LEDBETTER, PLLC
Board of Directors
January 24, 2000
Page 2
We have examined such other corporate records and documents and have made
such other examinations as we have deemed relevant.
Based on the above examination, we are of the opinion that the securities of
the Company to be issued pursuant to the Registration Statement are validly
authorized and, when issued in accordance with the terms set forth in the
Registration Statement, will be validly issued, and fully paid, and
non-assessable under the corporate laws of the State of Delaware.
We consent to our name being used in the Registration Statement as having
rendered the foregoing opinion and as having represented the Company in
connection with the Registration Statement.
Sincerely,
HOGE, EVANS, HOLMES,
CARTER & LEDBETTER PLLC
Steven B. Holmes
SBH
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REFERENCE 23
CONSENT OF KINGERY, CROUSE & HOHL, P.A.
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[LETTERHEAD of KINGERY CROUSE & HOHL P.A.]
January 24, 1999
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the prospectus constituting part of this
Registration Statement on Form SB-2 (No. 333-70663) of our report dated January
24, 1999, with respect to the financial statements of Hojo Holdings, Inc., as of
and for the period January 5, 1999 (date of incorporation) to December 31, 1999,
filed with the Securities and Exchange Commission.
Kingery Crouse & Hohl P.A.
Tampa, Florida
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