SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
PRESUANT TO SECTION 12 (B) OR 12 (G)
OF THE SECURITIES EXCHANGE ACT OF 1934
RICH EARTH, INC
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 87-0635536
(STATE OF INCORPORATION) (I.R.S. EMPLOYER ID NO.)
5821 EMIGRATION CANYON, SALT LAKE CITY UT 84108
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(801) 265-2170
(REGISTRANT'S TELEPHONE NUMBER)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12 (B) OF THE ACT: NONE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12 (G) OF THE ACT: 498,000
Title of each class Name of each exchange on which
To be so registered Each class is to be registered
Commonstock: $0.001 Par value N/A
THE AGGREGATE MARKET VALUE OF THE VOTING STOCK HELD BY NON-AFFILIATES OF THE
REGISTRATION WAS $0.001 AS OF AUGUST 31, 1999.
SHARES OF COMMON STOCK OUTSTANDING AS OF AUGUST 31, 1999: 498,000
<PAGE>
PART I
ITEM 1
DESCRIPTION OF BUSINESS
Rich Earth, Inc., f/k/a "Charken Contractors, Inc.", (hereinafter "The
Company") was incorporated on October 19, 1988, pursuant to the Nevada Business
Corporation Act. Its original Articles of Incorporation provided for authorized
capital of two thousand five hundred (2,500) shares of common stock with no par
value. On June 21, 1999, the shareholders of the Company approved an amendment
to the Articles of Incorporation changing the authorized capital to one hundred
million (100,000,000) shares of common stock with a par value of $0.001 (1 mill)
per share. The amended Articles were filed with the State of Nevada on June 28,
1999.The Company was formed with the stated purpose of conducting any lawful
business activity. However, the contemplated purpose was to engage in investment
and business development operations related to mineral research and exploration.
The Company's attempts to enter this field were not successful and all attempts
to engage in business ended before January of 1994, and the Company became
dormant.
The Company never engaged in an active trade or business throughout the
period from inception through 1998. On or about April 1999, the directors
determined that the Company should become active and reinstated the Company with
the State of Nevada, and began seeking potential operating businesses and
business opportunities with the intent to acquire or merge with such businesses.
The Company is considered a development stage company and, due to its status as
a "shell" corporation, its principal business purpose IS to locate and
consummate a merger or acquisition with a private entity. Because of the
Company's current status having no assets and no recent operating history, in
the event the Company does successfully acquire or merge with an operating
business opportunity, it is likely that the Company's present shareholders will
experience substantial dilution and there will be a probable change in control
of the Company.
The Company is voluntarily filing its registration statement on Form 10-SB
in order to make information concerning itself more readily available to the
public. Management believes that being a reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), could provide a
prospective merger or acquisition candidate with additional information
concerning the Company. In addition, management believes that this might make
the Company more attractive to an operating business opportunity as a potential
business combination candidate. As a result of filing its registration
statement, the Company is obligated to file with the Commission certain interim
and periodic reports including an annual report containing audited financial
statements. The Company intends to continue to voluntarily file these periodic
reports under the Exchange Act even if its obligation to file such reports is
suspended under applicable provisions of the Exchange Act.
Any target acquisition or merger candidate of the Company will become
subject to the same reporting requirements as the Company upon consummation of
any such business combination. Thus, in the event that the Company successfully
completes an acquisition or merger with another operating business, the
resulting combined business must provide audited financial statements for at
least the two most recent fiscal years or, in the event that the combined
operating business has been in business less than two years, audited financial
statements will be required from the period of inception of the target
acquisition or merger candidate.
The Company's principal executive offices are located at: 5821 Emigration
Canyon, Salt Lake City, Utah, 84108.
Business of Issuer
The Company has no recent operating history and no representation is made,
nor is any intended, that the Company will be able to carry on future business
activities successfully. Further, there can be no assurance that the Company
will have the ability to acquire or merge with an operating business, business
opportunity or property that will be of material value to the Company.
Management plans to investigate, research and, if justified, potentially acquire
or merge with one or more businesses or business opportunities. The Company
currently has no commitment or arrangement, written or oral, to participate in
any business opportunity and management cannot predict the nature of any
potential business opportunity it may ultimately consider. Management will have
broad discretion in its search for and negotiations with any potential business
or business opportunity.
Sources of Business Opportunities
The Company intends to use various sources in its search for potential
business opportunities including its officers and directors, consultants,
special advisors, securities broker-dealers, venture capitalists, members of the
financial community and others who may present management with unsolicited
proposals. Because of the Company's lack of capital, it may not be able to
retain a fee based professional firm specializing in business acquisitions and
reorganizations. Rather, the Company will most likely have to rely on outside
sources, not otherwise associated with the Company, that will accept their
compensation only after the Company has finalized a successful acquisition or
merger. To date, the Company has not engaged nor any prospective consultants
for these purposes. The Company does not intend to restrict its search to any
specific entered into any definitive agreements nor understandings regarding
retention of any consultant to assist the Company in its search for business
opportunities, nor is management presently in a position to actively seek or
retain kind of industry or business. The Company may investigate and ultimately
acquire a venture that is in its preliminary or development stage, is already in
operation, or in various stages of its corporate existence and development.
Management cannot predict at this time the status or nature of any venture in
which the Company may participate. A potential venture might need additional
capital or merely desire to have its shares publicly traded. The most likely
scenario for a possible business arrangement would involve the acquisition of,
or merger with, an operating business that does not need additional capital, but
which merely desires to establish a public trading market for its shares.
Management believes that the Company could provide a potential public vehicle
for a private entity interested in becoming a publicly held corporation without
the time and expense typically associated with an initial public offering.
Evaluation
Once the Company has identified a particular entity as a potential
acquisition or merger candidate, management will seek to determine whether
acquisition or merger is warranted or whether further Investigation is
necessary. Such determination will generally be based on management's knowledge
and experience, or with the assistance of outside advisors and consultants
evaluating the preliminary information available to them. Management may elect
to engage outside independent consultants to perform preliminary analysis of
potential business opportunities. However, because of the Company's lack of
capital it may not have the necessary funds for a complete and exhaustive
investigation of any particular opportunity. In evaluating such potential
business opportunities, the Company will consider, to the extent relevant to the
specific opportunity, several factors including potential benefits to the
Company and its shareholders; working capital, financial requirements and
availability of additional financing; history of operation, if any; nature of
present and expected competition; quality and experience of management; need for
further research, development or exploration; potential for growth and
expansion; potential for profits; and other factors deemed relevant to the
specific opportunity. Because the Company has not located or identified any
specific business opportunity as of the date hereof, there are certain
unidentified risks that cannot be adequately expressed prior to the
identification of a specific business opportunity. There can be no assurance
following consummation of any acquisition or merger that the business venture
will develop into a going concern or, if the business is already operating, that
it will continue to operate successfully. Many of the potential business
opportunities available to the Company may involve new and untested products,
processes or market strategies which may not ultimately prove successful.
Form of Potential Acquisition or Merger
Presently, the Company cannot predict the manner in which it might
participate in a prospective business opportunity. Each separate potential
opportunity will be reviewed and, upon the basis of that review, a suitable
legal structure or method of participation will be chosen. The particular
manner in which the Company participates in a specific business opportunity will
depend upon the nature of that opportunity, the respective needs and desires of
the Company and management of the opportunity, and the relative negotiating
strength of the parties involved. Actual participation in a business venture
may take the form of an asset purchase, lease, joint venture, license,
partnership, stock purchase, reorganization, merger OR consolidation. The
Company may act directly or indirectly through an interest in a partnership,
corporation, or other form of organization, however, the Company does not intend
to participate in opportunities through the purchase of minority stock
positions.
Because of the Company's current status and recent inactive status for the
prior eight years, and its concomitant lack of assets or relevant operating
history, it is likely that any potential merger or acquisition with another
operating business will require substantial dilution of the Company's existing
shareholders. There will probably be a change in control of the Company, with
the incoming owners of the targeted merger or acquisition candidate taking over
control of the Company. Management has not established any guidelines as to the
amount of control it will offer to prospective business opportunity candidates,
since this issue will depend to a large degree on the economic strength and
desirability of each candidate, and correspondent ending relative bargaining
power of the parties. However, management will endeavor to negotiate the best
possible terms for the benefit of the Company's shareholders as the case arises.
Management does not have any plans to borrow funds to compensate any persons,
consultants, promoters, or affiliates in conjunction with its efforts to find
and acquire or merge with another business opportunity. Management does not
have any plans to borrow funds to pay compensation to any prospective business
opportunity, or shareholders, management, creditors, or other potential parties
to the acquisition or merger. In either case, it is unlikely that the Company
would be able to borrow significant funds for such purposes from any
conventional lending sources. In all probability, a public sale of the
Company's securities would also be unfeasible, and management does not
contemplate any form of new public offering at this time. In the event that the
Company does need to raise capital, it would most likely have to rely on the
private sale of its securities. Such a private sale would to available
exemptions, if any applies. However, no private sales are contemplated by the
Company's management at this time. If a private sale of the Company's
securities is deemed appropriate in the future, management will endeavor to
acquire funds on the best terms available to the Company. However, there can be
no assurance that the Company will be able to obtain funding when and if needed,
or that such funding, if available, can be obtained on terms reasonable or
acceptable to the Company.
Although not presently anticipated by management, there is a remote possibility
that the Company might sell its securities to its management or affiliates.
In the event of a successful acquisition or merger, a finder's fee, in the
form of cash or securities of the Company, may be paid to persons instrumental
in facilitating the transaction. The Company has not established any criteria
or limits for the determination of a finder's fee, although most likely an
appropriate finder's fee will be negotiated between the parties, including the
potential business opportunity candidate, based upon economic considerations and
reasonable value as estimated and mutually agreed at that time. A finder's fee
would only be payable upon completion of the proposed acquisition or merger in
the normal case, and management does not contemplate any other arrangement at
this time. Management has not actively undertaken a search for, nor retention
of, any finder's fee arrangement with any person. It is possible that a
potential merger or acquisition candidate would have its own finder's fee
arrangement, or other similar business brokerage or investment banking
arrangement, whereupon the terms may be governed by a pre-existing contract; in
such case, the Company may be limited in its ability to affect the terms of
compensation, but most likely the terms would be disclosed and subject to
approval pursuant to submission of the proposed transaction to a vote of the
Company's shareholders. Management cannot predict any other terms of a finder's
fee arrangement at this time. It would be unlikely that a finder's fee payable
to an affiliate of the Company would be proposed because of the potential
conflict of interest issues. If such a fee arrangement was proposed,
independent management and directors would negotiate the best terms available to
the Company so as not to compromise the fiduciary duties of the affiliate in the
proposed transaction, and the Company would require that the proposed
arrangement would be submitted to the shareholders for prior ratification in an
appropriate manner.
Management does not contemplate that the Company would acquire or merge
with a business entity in which any affiliates of the Company have an interest.
Any such related party transaction, however remote, would be submitted for
approval by an independent quorum of the Board of Directors and the proposed
transaction would be submitted to the shareholders for prior ratification in an
appropriate manner. None of the Company's managers, directors, or other
affiliated parties have had any contact, discussions, or other understandings
regarding any particular business opportunity at this time, regardless of any
potential conflict of interest issues. Accordingly, the potential conflict of
interest is merely a remote theoretical possibility at this time.
Rights of Shareholders
It is presently anticipated by management that prior to consummating a
possible acquisition or merger, the Company will seek to have the transaction
ratified by shareholders in the appropriate manner. Most likely, this would
require a general or special shareholder's meeting called for such purpose,
wherein all shareholder's would be entitled to vote in person or by proxy. In
the notice of such a shareholder's meeting and proxy statement, the Company will
provide shareholders complete disclosure documentation concerning a potential
acquisition of merger candidate, including financial information about the
target and all material terms of the acquisition or merger transaction.
Competition
Because the Company has not identified any potential acquisition or merger
candidate, it is unable to evaluate the type and extent of its likely
competition. The Company is aware that there are several other public companies
with only nominal assets that are also searching for operating businesses and
other business opportunities as potential acquisition or merger candidates. The
Company will be in direct competition with these other public companies in its
search for business opportunities and, due to the Company's lack of funds, it
may be difficult to successfully compete with these other companies.
As of the date hereof, the Company does not have any employees and has no
plans for retaining employees until such time as the Company's business warrants
the expense, or until the Company successfully acquires or merges with an
operating business. The Company may find it necessary to periodically hire
part-time clerical help on an as-needed basis.
Facilities
The Company is currently using as its principal place of business the
residence of its President located in Salt Lake City, Utah. Although the
Company has no written agreement and pays no rent for the use of this facility,
it is contemplated that at such future time as an acquisition or merger
transaction may be completed, the Company will secure commercial office space
from which it will conduct its business. Until such an acquisition or merger,
the Company lacks any basis for determining the kinds of office space or other
facilities necessary for its future business. The Company has no current plans
to secure such commercial office space. It is also possible that a merger or
acquisition candidate would have adequate existing facilities upon completion of
such a transaction, and the Company's principal offices may be transferred to
such existing facilities.
Industry Segments
No information is presented regarding industry segments. The Company is
presently a development stage company seeking a potential acquisition of or
merger with a yet to be identified business opportunity. Reference is made to
the statements of income included herein in response to Part F/S of this Form
10-SB, for a report of the Company's operating history for the past two fiscal
years.
Item 2. Management's Discussion and Analysis or Plan of
Operation
The Company is considered a development stage company with no assets or
capital and with no operations or income since inception. The costs and
expenses associated with the preparation and filing of this registration
statement and other operations of the Company have been paid for by a
shareholder and officer of the Company, specifically Lynn Noerring (see Item 4,
Security Ownership of Certain Beneficial Owners and Management - Lynn Noerring
is the Secretary and a Director of the Company). It is anticipated that the
Company will require only nominal capital to maintain the corporate viability of
the Company and necessary funds will most likely be provided by the Company's
existing shareholders or its officers and directors in the immediate future.
However, unless the Company is able to facilitate an acquisition of or merger
with an operating business or is able to obtain significant outside financing,
there is substantial doubt about its ability to continue as a viable
corporation.
In the opinion of management, inflation has not and will not have a material
effect on the operations of the Company until such time as the Company
successfully completes an acquisition or merger. At that time, management will
evaluate the possible effects of inflation on the Company as it relates to its
business and operations following a successful acquisition or merger.
Plan of Operation
During the next twelve months, the Company will actively seek out and
investigate possible business opportunities with the intent to acquire or merge
with one or more business ventures. In its search for business opportunities,
management will follow the procedures outlined in Item I above. Because the
Company lacks finds, it may be necessary for the officers and directors to
either advance funds to the Company or to accrue expenses until such time as a
successful business consolidation can be made. Management intends to hold
expenses to a minimum and to obtain services on a contingency basis when
possible. Further, the Company's directors will defer any compensation until
such time as an acquisition or merger can be accomplished and will strive to
have the business opportunity provide their remuneration. However, if the
Company engages outside advisors or consultants in its search for business
opportunities, it may be necessary for the Company to attempt to raise
additional funds.
As of the date hereof, the Company has not made any arrangements or definitive
agreements to use outside advisors or consultants or to raise any capital. In
the event the Company does need to raise capital most likely the only method
available to the Company would be the private sale of its securities. Because
of the nature of the Company as a development stage company, it is unlikely that
it could make a public sale of securities or be able to borrow any significant
sum, from either a commercial or private lender. There can be no assurance that
the Company will be able to obtain additional funding when and if needed, or
that such funding, if available, can be obtained on terms acceptable to the
Company.
The Company does not intend to use any employees, with the possible exception of
part-time clerical assistance on an as-needed basis. Outside advisors or
consultants will be used only if they can be obtained for minimal cost or on a
deferred payment basis. Management is confident that it will be able to operate
in this manner and to continue its search for business opportunities during the
next twelve months.
Item 3. Description of Property
The information required by this Item 3 is not applicable to this Form
10-SB due to the fact that the Company does not own or control any material
property.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information, to the best knowledge of the
Company as of August 30, 1998, with respect to each person known by the Company
to own beneficially more than 5% of the Company's outstanding common stock, each
director of the Company and all directors and officers of the Company as a
group.
Name and Address Amount and Nature of Percent
Beneficial Owner Beneficial Ownership of Class
- ----------------- --------------------- ---------
Gary Hancey 30,000 Shares 6%
8587 Snowville Drive
Sandy, Utah 84092
Joe Murphy 40,000 Shares 8%
Gold Hill, Utah 84083
Molly Parton 40,000 Shares 8%
P.O. Box 1306
Payson, AZ 85547-1306
Gary Noerring 4,000 Shares nil
5812 Emigration Canyon
Salt Lake City, Utah 84108
Lynn Noerring 4,000 Shares nil
5812 Emigration Canyon
Salt Lake City, Utah 84108
Note: The Company has combined related parties for purposes of
determining beneficial ownership. With regard to Gary and Lynn Noerring, their
combined beneficial ownership totals approximately 1.6% of the issued and
outstanding shares. The Company has been advised that each of the other persons
listed above has sole voting power over the shares indicated above.
ITEM 5
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The Directors and Executive Officers of the Company are as follows:
POSITION
NAME AGE TITLE HELD SINCE
Gary Noerring* 52 President/Director June 29, 1999
Lynn Noerring* 47 Sec./Treas./Director June 29, 1999
- - Gary and Lynn Noerring are husband and wife.
All directors hold office until the next annual meeting of stockholders and
until their successors have been duly elected and qualified. There are no
agreements with respect to the election of directors. The Company has not
compensated its directors for service on the Board of Directors or any committee
thereof. As of the date hereof, no director has accrued any expenses or
compensation. Officers are appointed annually by the Board of Directors and
each executive officer serves at the discretion of the Board of Directors. The
Company does not have any standing committees at this time.
No director, Officer, affiliate or promoter of the Company has, within the past
five years, filed any bankruptcy petition, been convicted in or been the subject
of any pending criminal proceedings, or is any such person the subject or any
order, judgment or decree involving the violation of any state or federal
securities laws.
The business experience of each of the persons listed above during the past
five years is as follows:
GARY NOERRING: DIRECTOR AND PRESIDENT
Mr. Noerring, a self-employed business man. He was the founder, owner and
President of "Gary's Foreign and Domestic Auto Haus". In a period of 12
years, Mr. Noerring built a thriving business and was able to retire in 1994.
He currently manages his personal investments, and brings to the Company sound
leadership grounded in practical business experience.
LYNN NOERRING: DIRECTOR, TREASURE/SECRETARY
From May, 1988 to July, 1998, Ms. Noerring was a Health Technician for
the Headquarters Group, Military Entrance Process Station (MEPS) at Fort
Douglas, Utah, Ms. Noerring worked with all branches of the Service ensuring
successful in and out-processing for the Navy, Air Force, Army, Coast Guard,
Marine Corp and Army National Guard.
As a GS5-7, Ms. Noerring served as Secretary to the Commander, Lt Col
Fitzpatrick, and gained extensive experience compiling civilian and military
evaluation reports, working directly with the Main Headquarters in Chicago in
addition to the Western Sector in Denver.
Item 6. Executive Compensation
The Company has not had a bonus, profit sharing, or deferred compensation
plan for the benefit of its employees, officers or directors. The Company has
not paid any salaries or other compensation to its officers, directors or
employees for the years ended December 31, 1997 and 1998, nor at any time during
1999. Further, the Company has not entered into an employment agreement with
any of its officers, directors or any other persons and no such agreements are
anticipated in the immediate future. It is intended that the Company's
directors will defer any compensation until such time as an acquisition or
merger can be accomplished and will strive to have the business opportunity
provide their remuneration. As of the date hereof, no person has accrued any
compensation from the Company.
Item 7. Certain Relationships and Related Transactions
In July of 1999, in a private transaction, the Company sold 4,000 shares
each to Gary Noerring and Lynn Noerring to cover in order to fund certain
expenses of the Company. Aside from that transaction, during the Company's last
two fiscal years, there have not been any transactions between the Company and
any officer, director, nominee for election as director, or any shareholder
owning greater than five percent (5%) of the Company's outstanding shares, nor
any member of the above referenced individuals' immediate family.
Item 8. Description of Securities
Common Stock
The Company is authorized to issue 100,000,000 shares of common stock, Par Value
$0.001, of which 498,000 shares are issued and outstanding as of the date
hereof. All shares of common stock have equal rights and privileges with
respect to voting, liquidation and dividend rights. Each share of common stock
entitles the holder thereof to (i) one non-cumulative vote for each share held
of record on all matters submitted to a vote of the stockholders; (ii) to
participate equally and to receive any and all such dividends as may be declared
by the Board of Directors out of funds legally available therefor; and (iii) to
participate pro rata in any distribution of assets available for distribution
upon liquidation of the Company. Stockholders of the Company have no
pre-emptive rights to acquire additional shares of common stock or any other
securities. The common stock is not subject to redemption and carries no
subscription or conversion rights. All outstanding shares of common stock are
fully paid and non-assessable.
Preferred Stock
The Company does not have any preferred stock, authorized or issued.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity
and Other Shareholder Matters
No shares of the Company's common stock have previously been registered
with the Securities and Exchange Commission (the "Commission") or any state
securities agency or authority. The Company has made an application to the NASD
for the Company's shares to be quoted on the National Quotation Bureau's Pink
Sheets ("Pink Sheets"). The Company's application to the NASD consists of
current corporate information, financial statements and other documents as
required by Rule 15c2-11 of the Securities Exchange Act of 1934, as amended.
Inclusion on the "Pink Sheets" permits price quotations for the Company's shares
to be published by such service.
The Company's common shares are not currently quoted. The Company is not
aware of any established trading market for its common stock nor is there any
record of any reported trades in the public market in recent years. The
Company's common stock has never traded in a public market .
If and when the Company's common stock is traded in the Pink Sheet, most likely
the shares will be subject to the provisions of Section 15(g) and Rule 15g-9 of
the Securities Exchange Act of 1934, as amended (the 'Exchange Act"), commonly
referred to as the "penny stock" rule. Section 15(g) sets forth certain
requirements for transactions in penny stocks and Rule 15g9(d)(1) incorporates
the definition of penny stock as that used in Rule 3a5l-l of the Exchange Act.
The Commission generally defines penny stock to be any equity security that has
a market price less than $5.00 per share, subject to certain exceptions. Rule
3a5l-l provides that any equity security is considered to be a penny stock
unless that security is: registered and traded on a national securities exchange
meeting specified criteria set by the Commission; authorized for quotation on
The NASDAQ Stock Market; issued by a registered investment company; excluded
from the definition on the basis of price (at least $5.00 per share) or the
issuer's net tangible assets; or exempted from the definition by the Commission.
If the Company's shares are deemed to be a penny stock, trading in the shares
will be subject to additional sales practice requirements on broker-dealers who
sell penny stocks to persons other than established customers and accredited
investors, generally persons with assets in excess of $1,000,000 or annual
income exceeding $200,000, or $300,000 together with their spouse. For
transactions covered by these rules, broker-dealers must make a special
suitability determination for the purchase of such securities and must have
received the purchaser's written consent to the transaction prior to the
purchase. Additionally, for any transaction involving a penny stock, unless
exempt, the rules require the delivery, prior to the first transaction, of a
risk disclosure document relating to the penny stock market. A broker-dealer
also must disclose the commissions payable to both the broker-dealer and the
registered representative, and current quotations for the securities. Finally,
monthly statements must be sent disclosing recent price information for the
penny stocks held in the account and information on the limited market in penny
stocks. Consequently, these rules may restrict the ability of broker dealers to
trade and/or maintain a market in the Company's common stock and may affect the
ability of shareholders to sell their shares.
As of August 30, 1999 there were 37 holders of record of the Company's common
stock. As of the date hereof, the Company has issued and outstanding 498,000
shares of common stock. of this total, all shares, excepting those issued to the
current officers in July of 1999, were issued in transactions more than two
years ago. (A forward 200-for-1 stock split occurred on June 24, 1999,
increasing the number of shares held by existing shareholders, which is not
deemed a "new" issuance.) Thus, all but 8,000 shares were issued more than two
years ago and may be sold or otherwise transferred without restriction pursuant
to the terms of Rule 144 ("Rule 144") of the Securities Act of 1933, as amended
(the "Act"), unless held by an affiliate or controlling shareholder of the
Company. Of these shares, the Company has identified 8,000 shares as being held
by affiliates of the Company. The remaining 490,000 shares are deemed free from
restrictions and may be sold and/or transferred without further registration
under the Act.
The 8,000 restricted shares presently held by affiliates or controlling
shareholders of the Company have not been held for the requisite one year and
therefore may not be sold pursuant to Rule 144. Once such shares or shares
held by affiliates meet the minimum holding period, then, subject to the volume
and other limitations set forth under Rule 144, they may be sold. In general,
under Rule 144 as currently in effect, a person (or persons whose shares are
aggregated) who has beneficially owned restricted shares of the Company for at
least one year, including any person who may be deemed to be an "affiliate" of
the Company (as the term "affiliate" is defined under the Act), is entitled to
sell, within any three-month period, an amount of shares that does not exceed
the greater of (i) the average weekly trading volume in the Company's common
stock during the four calendar weeks preceding such sale, or (ii) 1 % of the
shares then outstanding. A person who is not deemed to be an "affiliate" of the
Company and who has held restricted shares for at least three years would be
entitled to sell such shares without regard to the resale limitations of Rule
144.
Dividend Policy
The Company has not declared or paid cash dividends or made distributions
in the past, and the Company does not anticipate that it will pay cash dividends
or make distributions in the foreseeable future. The Company currently intends
to retain and reinvest future earnings, if any, to finance its operations.
Item 2. Legal Proceedings
The Company is currently not a party to any material pending legal
proceedings and no such action by, or to the best of its knowledge, against the
Company has been threatened.
Item 3. Changes in and Disagreements with Accountants Item 3 is not applicable
to this Form 10-SB.
Item 4. Recent Sales of Unregistered Securities
In July of 1999, the Company sold 4,000 shares of restricted common stock
to Gary Noerring and 4,000 shares of restricted common stock to Lynn Noerring in
an isolated transaction. The Noerrings are husband and wife and constitute the
present officers and directors of the Company. The transaction is deemed exempt
pursuant to Section 4(2) of the Act.
All other issues of securities by the Company were made more than three
years ago.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles and By-Laws provide for indemnification for
liability, including expenses incurred in connection with a claim of liability
arising from having been an officer or director of the Company for any action
alleged to have been taken or omitted by any such person acting as an officer or
director, not involving gross negligence or willful misconduct by such person.
Section 78.751 of the Nevada General Corporation Law allows the Company to
indemnify any person who was or is threatened to made party to any threatened,
pending, or completed action, suit or proceeding, by reason of the fact that he
or she is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee, or
agent of any corporation, partnership, joint venture, trust or other enterprise.
The Company's By-Laws provide that such a person shall be indemnified and held
harmless to the fullest extent provided by Nevada law.
Transfer Agent
The Company has designated Interwest Transfer Company, Inc., 1981 E. Murray
Holliday Road, Holladay, Utah 84117, (801) 272-9294 its transfer agent.
PART F/S
Financial Statements and Supplementary Data
The Company's financial statements for the years ended December 31, 1998,
1997, 1996 and the period October 19, 1988 (date of inception) to June 30, 1999,
have been examined to the extent indicated in the reports by Andersen Andersen
and Strong, L.C., Certified Public Accountants, and have been prepared in
accordance with generally accepted accounting principles and pursuant to
Regulation S-B as promulgated by the Securities and Exchange Commission and are
included herein, on the following eight (8) pages, in response to Part F/S of
this Form 10-SB.
<PAGE>
ITEM 5
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
RICH EARTH, INC.
(REGISTRANT)
/s/ Gary Noerring
BY: _______________________
PRESIDENT AND DIRECTOR
DATED: 23RD DAY OF SEPTEMBER, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on the 23rd day of 1999,
/s/ Gary Noerring
___________________________________
Director and Chief Executive Officer
/s/ Lynn Noerring
____________________________________
Director, Secretary and Chief Financial Officer
PART III
ITEM 1. INDEX TO EXHIBITS
THE FOLLOWING EXHIBITS ARE FILED WITH THIS REGISTRATION STATEMENT:
Exhibit No. Description
- ------------ -----------
3 (i) Articles of Incorporation
Certificate of Amendment of Articles of Incorporation
3 (ii) By-Laws
23 Consent of Independent Certified Public Accountant
27 Financial Data Schedule
RICH EARTH, INC.
FINANCIAL STATEMENTS AND REPORT
OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
JUNE 30, 1999, DECEMBER 31, 1998, AND DECEMBER 31, 1997
<PAGE>
Board of Directors
Rich Earth, Inc.
Salt Lake City, Utah
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have audited the accompanying balance sheets of Rich Earth, Inc. (a
development stage company) at June 30, 1999, December 31, 1998, and December
31, 1997 and the statements of operations, stockholders' equity, and cash flows
for the six months ended June 30, 1999 and the years ended December 31, 1998,
1997, and 1996 and the period October 19, 1988 (date of inception) to June 30,
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 audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and financial statement presentation.
We believe that our audits provide 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 Rich Earth, Inc. at June 30,
1999, December 31, 1998, and December 31, 1997, and the results of operations,
and cash flows for the six months ended June 30, 1999 and the years ended
December 31, 1998, 1997, and 1996 and the period October 19, 1988 (date of
inception) to June 30, 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. The Company has been in the
development stage since its inception and has suffered recurring losses from
operations and will need additional working capital for any future activity,
which raises substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are described in Note 4.
These financial statements do not include any adjustments that might result from
the outcome of this uncertainty.
Salt Lake City, Utah
July 21, 1999
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
JUNE 30, 1999, DECEMBER 31, 1998, AND DECEMBER 31, 1997
<TABLE>
<CAPTION>
JUN 30, DEC 31, DEC 31,
1999 1998 1997
--------- --------- ---------
ASSETS
CURRENT ASSETS
<S> <C> <C> <C>
Cash $ - $ - $ -
--------- --------- ---------
Total Current Assets $ - $ - $ -
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ - $ - $ -
--------- --------- ---------
Total Current Liabilities - - -
--------- --------- ---------
STOCKHOLDERS' EQUITY
Common stock
100,000,000 shares authorized, at $0.001 par
value; 498,000 shares issued and outstanding
on June 30, 1999; 490,000 on Dec 31, 1998 498 490 490
Capital in excess of par value 34,252 26,260 26,260
Deficit accumulated during the development stage (34,750) (26,750) (26,750)
--------- --------- ---------
Total Stockholders' Equity (deficiency) - - -
--------- --------- ---------
- $ - $ -
========= ========= =========
</TABLE>
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND THE YEARS
ENDED DECEMBER 31, 1998, 1997, AND 1996 AND THE PERIOD
OCTOBER 19, 1988 (DATE OF INCEPTION) TO JUNE 30, 1999
<TABLE>
<CAPTION>
OCTOBER 19, 1988
JUN 30 DEC 31 DEC 31 DEC 31 (DATE OF INCEPTION) TO
1999 1998 1997 1996 TO JUNE 30, 1999
--------- ------- ------- ------- ------------------------
<S> <C> <C> <C> <C> <C>
REVENUES $ - $ - $ - $ - $ -
EXPENSES 8,000 - - - 34,750
--------- ------- ------- ------- ------------------------
NET LOSS $ (8,000) $ - $ - $ - $ (34,750)
========= ======= ======= ======= ========================
NET LOSS PER COMMON
SHARE
Basic $ (.02)
---------
AVERAGE OUTSTANDING
SHARES
Basic 490,000
---------
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
PERIOD FROM OCTOBER 19, 1988 (DATE OF INCEPTION)
TO JUNE 30, 1999
<TABLE>
<CAPTION>
COMMON STOCK CAPITAL In
------------------ EXCESS OF ACCUMULATED
SHARES AMOUNT PAR VALUE DEFICIT
------- ------- ---------- ---------
<S> <C> <C> <C> <C>
BALANCE OCTOBER 19, 1988 (date of inception) - $ - $ - $ -
Issuance of common stock for cash 80,000 80 3,920 -
at $.05 - August 15, 1993
Issuance of common stock for cash 160,000 160 7,840 -
at $.05 - August 27, 1993
Issuance of common stock for cash
at $.05 - October 15, 1993 160,000 160 7,840 -
Issuance of common stock for cash
at $.075 - November 18, 1993 50,000 50 3,700 -
Issuance of common stock for cash
at $.075 - December 7. 1993 40,000 40 2,960 -
Net operating loss for the year ended
December 31, 1993 - - - (26,750)
BALANCE DECEMBER 31, 1997 AND 1998 490,000 490 26,260 (26,750)
Issuance of common stock for cash
at $1.00 - June 30, 1999 8,000 8 7,992 -
Net operating loss for the six months ended
June 30, 1999 - - - (8,000)
BALANCE JUNE 30, 1999 498,000 $ 498 $ 34,252 $(34,750
======= ======= ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND THE YEARS ENDED DECEMBER 31, 1998,
1997, AND 1996
AND THE PERIOD FROM OCTOBER 19, 1988 (DATE OF INCEPTION) TO JUNE 30, 1999
<TABLE>
<CAPTION>
OCTOBER 19, 1988
JUN 30 DEC 31 DEC 31 DEC 31 (DATE OF INCEPTION)
1999 1998 1997 1996 TO JUNE 30, 1999
--------- ------- ------- ------- --------------------
CASH FLOWS FROM
OPERATING ACTIVITIES
<S> <C> <C> <C> <C> <C>
Net loss $ (8,000) $ - $ - $ - $ (34,750)
Adjustments to reconcile net loss to
net cash provided by operating
activities - - - - -
Net Cash Used in Operations (8,000) - - - (34,750)
--------- ------- ------- ------- --------------------
CASH FLOWS FROM INVESTING
ACTIVITIES - - - - -
--------- ------- ------- ------- --------------------
CASH FLOWS FROM FINANCING
ACTIVITIES
Proceeds from issuance of common stock
8,000 - - - 34,750
--------- ------- ------- ------- --------------------
Net Increase (Decrease) in Cash - - - - -
Cash at Beginning of Period - - - - -
--------- ------- ------- ------- --------------------
Cash at End of Period $ - $ - $ - $ - $ -
========= ======= ======= ======= ====================
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION
The Company was incorporated under the laws of the State of Nevada on October
19, 1988 with the name of Charken Contractors Inc. with authorized common stock
of 2,500 shares with no par value. On June 28, 1999 the authorized capital
stock was increased to 100,000,000 shares with a par value of $0.001 in
connection with a name change to Rich Earth, Inc.
On June 28, 1999 the Company completed a forward common stock split of 200
shares for each outstanding share. This report has been prepared showing after
stock split shares with a par value of $.001 from inception.
The Company is in the development stage and has been engaged in the activity of
seeking developmental mining properties and became inactive after 1993.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Methods
- -------------------
The Company recognizes income and expenses based on the accrual method of
accounting.
Dividend Policy
- ----------------
The Company has not adopted a policy regarding payment of dividends.
Income Taxes
- -------------
On December 31, 1998, the Company had a net operating loss carry forward of
$26,750. The tax benefit from the loss carry forward has been fully offset by
a valuation reserve because the use of the future tax benefit is undeterminable
since the Company has no operations. The net operating loss expires in 2009.
Earnings (Loss) Per Share
- ----------------------------
Earnings (loss) per share amounts are computed based on the weighted average
number of shares actually outstanding, after the stock split.
Financial Instruments
- ----------------------
The carrying amounts of financial instruments are considered by management to
be their estimated fair values. These values are not necessarily indicative of
the amounts that the Company could realize in a current market exchange.
<PAGE>
- ------
RICH EARTH, INC.
( DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Estimates and Assumptions
- ---------------------------
Management uses estimates and assumptions in preparing financial statements in
accordance with generally accepted accounting principles. Those estimates and
assumptions affect the reported amounts of the assets and liabilities, the
disclosure of contingent assets and liabilities, and the reported revenues and
expenses. Actual results could vary from the estimates that were assumed in
preparing these financial statements.
3. RELATED PARTY TRANSACTIONS
The statement of changes in stockholder's equity shows 498,000 shares of common
stock outstanding of which 250,000 shares were issued to related parties.
The officers and directors of the Company are involved in other business
activities and they may, in the future, become involved in additional business
ventures which also may require their attention. If a specific business
opportunity becomes available, such persons may face a conflict in selecting
between the Company and their other business interests. The Company has
formulated no policy for the resolution of such conflicts.
4. GOING CONCERN
Continuation of the Company as a going concern is dependent upon obtaining
sufficient working capital for any future planned activity and the management
of the Company has developed a strategy, which it believes will accomplish this
objective through equity funding, and long term financing, which will enable
the Company to operate in the future.
ARTICLES OF INCORPORATION
-------------------------
OF
--
CHARKEN CONTRACTORS, INC.
-------------------------
FIRST The name of the corporation:
CHARKEN CONTRACTORS INC.
SECOND It's principal office in the State of Nevada is located at 1000
East William Street, Suite 100, Carson City, Nevada 89701. That this
corporation may maintain an office, or offices in such other place within or
without the State of Nevada as may be from time to time designated by the Board
of Directors, or by the By-Laws of said corporation, and that this Corporation
may conduct all Corporation business of every kind and nature, including the
holding of all meetings of Directors and Stockholders, outside the State of
Nevada as well as within the State of Nevada.
THIRD The objects for which this Corporation is formed are: To
engage in any lawful activity, including, but not limited to the following:
(A) Shall have such rights, privileges and powers as may be conferred
upon corporations by any existing law.
(B) May at any time exercise such rights, privileges and powers, when
not inconsistent with the purposes and objects for which this corporation is
organized.
(C) Shall have power to have succession by its corporate name for the
period limited in its certificate or articles of incorporation, and when no
period is limited, perpetually, or until dissolved and its affairs wound up
according to law.
(D) Shall have power to hold, purchase and convey real and personal
estate and to mortgage or lease any such real and personal estate with its
franchises.
(E) Shall have power to sue and be sued in any court of law or equity.
(F) Shall have power to hold, purchase and convey real and personal
estate and to mortgage or lease any such real and personal estate with its
franchises. The power to hold real and personal estate shall include the power
to take the same by devise or bequest in the State of Nevada, or in any other
state, territory or country.
(G) Shall have power to appoint such officers and agents as the affairs
of the corporation shall require, and to allow them suitable compensation.
(H) Shall have power to make bylaws not inconsistent with the
constitution or laws of the United States, or of the State of Nevada, for the
management, regulation and government of its affairs and property, the transfer
of its stock, the transaction of its business, and the calling and holding of
meetings of its stockholders.
(I) Shall have power to wind up and dissolve itself, or be wound up and
dissolved.
(J) Shall have power to adopt and us a common seal or stamp, and alter
the same at pleasure. The use of a seal or stamp by the corporation on any
corporate documents is not necessary. The corporation may use a seal or stamp
if it desires, but such use or nonuse shall not in any way affect the legality
of the document.
(K) Shall have power to borrow money and contract debts when necessary
for the transaction of its business, or for the exercise of its corporate
rights, privileges or franchises or for any other lawful purpose of its
incorporation; to issue bonds, promissory notes, bills of exchange, debentures
and other obligations and evidences of indebtedness, payable at a specified time
or times, or payable upon the happening of a specified event or events, whether
secured by mortgage, pledge or otherwise or unsecured for money borrowed or in
payment for property purchased or acquired or for any other lawful object.
(L) Shall have power to guarantee, purchase, hold, sell, assign,
transfer, mortgage, pledge or otherwise dispose of the shares of the capital
stock of or any bonds, securities or evidences of the indebtedness created by
any other corporation or corporations of the State of Nevada, or any other state
or government, and, while owners of such stock, bonds, securities or evidences
of indebtedness, to exercise all the rights, powers and privileges of ownership,
including the right to vote, if any.
(M) Shall have power to purchase, hold, sell and transfer shares of its
own capital stock, and use therefor its capital, capital surplus, surplus, or
other property or fund.
(N) Shall have power to conduct business, have one or more offices and
hold, purchase, mortgage and convey real and personal property in the State of
Nevada and in any of the several states, territories, possessions and
dependencies of the United States, the District of Columbia and any foreign
countries.
(O) Shall have power to do all and everything necessary and proper for
the accomplishment of the objects enumerated in its certificate or articles of
incorporation, or any amendment thereof, or necessary or incidental to the
protection and benefit of the corporation, and, in general, to carry on any
lawful business necessary or incidental to the attainment of the objects of the
corporation, whether or not such business is similar in nature to the objects
set for the in the certificate or articles of incorporation of the corporation,
or any amendment thereof.
(P) Shall have power to make donations for the public welfare of
charitable, scientific or educational purposes.
(Q) Shall have power to enter into partnerships, general or limited, or
joint ventures, in connection with any lawful activities.
FOURTH That the total number of voting common stock authorized that may
be issued by the Corporation is TWENTY-FIVE HUNDRED (2,500) shares of stock
without nominal or par value and no other class of stock shall be authorized.
Said shares without nominal or par value may be issued by the corporation from
time to time for such considerations as may be fixed from time to time by the
Board of Directors.
FIFTH The governing board of this corporation shall be known as
directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the By-Laws of this
Corporation, providing that the number of directors shall not be reduced to less
than one (1).
The name and post office address of the first Board of Directors shall be
one (1) in number and listed as follows:
Name Post Office Address
---- ---------------------
Lewis E. Laughlin 1000 East William Street,
Suite 100
Carson City, Nevada 89701
SIXTH The capital stock, after the amount of the subscription
price or par value, has been paid in, shall not be subject to assessment to pay
the debts of the incorporation.
SEVENTH The name and post office address of the Incorporator signing
the Articles of Incorporation as follows:
Name Post Office Address
---- ---------------------
Lewis E. Laughlin 1000 East William Street,
Suite 100
Carson City, Nevada 89701
EIGHTH The resident agent for this corporations shall be:
LAUGHLIN ASSOCIATES, INC.
The address of said agent, and the principal or statutory address of this
corporation in the State of Nevada, shall be:
1000 East William Street,
Suite 100
Carson City, Nevada 89701
NINTH The corporation is to have perpetual existence.
TENTH In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
Subject to the By-Laws, if any, adopted by the Stockholders, to make, alter
or amend the By-Laws of the Corporation.
To fix the amount to be reserved as working capital over and above its
capital stock paid in, to authorize and cause to be executed, mortgages and
liens upon the real and personal property of this Corporation.
By resolution passed a majority of the whole Board, to designate one (1) or
more committees, each committee to consist of one ore more of the Directors of
the Corporation, which, to the extent provided in the resolution, or in the
By-Laws of the Corporation, shall have and may exercise the powers of the Board
of Directors in management of the business and affaires of the Corporation.
Such committee, or committees, shall have such name or names as may be stated in
the By-Laws of the Corporation, or as may be determined from time to time by
resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the Stockholders holding
stock entitling them to exercise at least a majority of the voting power given
at a Stockholders meeting called for that purpose, or when authorized by the
written consent of the holders of at least a majority of the voting stock issued
and outstanding, the Board of Directors shall have power and authority at any
meeting to sell, lease, or exchange all of the property and assets of the
Corporation, including its good will and its corporate franchises, upon such
terms and conditions as its board of Directors deems expedient and for the best
interests of the Corporation.
ELEVENTH No shareholder shall be entitled as a matter of right to
subscribe for or receive additional shares of any class of stock of the
Corporation, whether now or hereafter authorized, or any bonds, debentures or
securities convertible into stock, but such additional shares of stock or other
securities convertible into stock may be issued or disposed of by the Board of
Directors to such persons and on such terms as in its discretion its shall deem
advisable.
TWELFTH No director or officer of the Corporation shall be personally
liable to Corporation to the Corporation or any of its stockholders for damages
for breach of fiduciary duty as a director of officer involving any act or
omission of any such director or officer, provided, however, that the foregoing
provision shall not eliminate or limit the liability of a director or officer
(i) for acts or omission which involve intentional misconduct, fraud or a
knowing violation of law, or (ii) the payment of dividends in violation of
Section 78.300 of the Nevada Revised Statutes. Any repeal or modification of
this Article by the stockholders of the Corporation shall be prospective only
and shall not adversely affect any limitation on the personal liability of a
director or officer of the Corporation for acts or omissions prior to such
repeal or modification.
THIRTEENTH This Corporation reserves the right to amend, alter, change
or repeal any provision contained in the Articles of Incorporation, in the
manner now or hereafter prescribed by statute, or by the Articles of
Incorporation, and all rights conferred upon Stockholders herein are granted
subject to this reservation.
I, THE UNDERSIGNED, being the Incorporator hereinbefore named for the
purpose of forming a Corporation pursuant to the General Corporation Law of the
State of Nevada, do make and file these Articles of Incorporation, hereby
declaring and certifying that the facts herein stated are true, and accordingly
have hereunto set my hand this 18th day of October, 1988.
/s/ Lewis E. Laughlin
- ------------------------
STATE OF NEVADA )
) SS:
CARSON CITY )
On this 18th day of October, 1988, in Carson City, Nevada, before me, the
undersigned, a Notary Public in and for Carson City, State of Nevada, personally
appeared:
Lewis E. Laughlin
Known to me to be the person whose name is subscribed to the foregoing document
and acknowledged to me that he executed the same.
/s/ Rhea Hascall
- --------------------
Notary Public
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF CHARKEN CONTRACTORS, INC.
We the undersigned, Gary Noerring, President and Lynn Noerring, Secretary of
Charken Contractors, Inc., do hereby certify: That the Board of Directors of
said corporation at a meeting duly convened, held on the 21st day of June , 1999
adopted a resolution to amend the original articles as follows:
ARTICLE I WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE FIRST
Corporate Name
That the name of the corporation shall be:
CHARKEN CONTRACTORS, INC.
IS HEREBY AMENDED TO READ AS FOLLOWS:
ARTICLE FIRST
Corporate Name
That the name of the corporation shall be:
RICH EARTH , INC.
ARTICLE IV WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE FOUR
STOCK
-----
That the total number of voting common stock authorized that may be issued by
the Corporation is TWENTY-FIVE HUNDRED (2,500) shares of stock without nominal
or par value and no other class of stock shall be authorized. Said shares
without nominal or par value may be issued by the corporation from time to time
for such considerations as may be fixed from time to time by the Board of
Directors.
IS HEREBY AMENDED TO READ AS FOLLOWS:
ARTICLE FOUR
AUTHORIZED CAPITAL STOCK
The total authorized capital stock of the Corporation is 100,000,000 shares
of Common Stock, with a par value of $0.001 (1mil). All stock when issued shall
be deemed fully paid and non-assessable. No cumulative voting, on any matter to
which Stockholders shall be entitled to vote, shall be allowed for any purpose.
<PAGE>
The authorized stock of this corporation may be issued at such time, upon
such terms and conditions and for such consideration as the Board of Directors
shall, from time to time, determine. Shareholders shall not have pre-emptive
rights to acquire unissued shares of the stock of this Corporation.
ARTICLE V WHICH PRESENTLY READS AS FOLLOWS:
ARTICLE FIVE
Directors
---------
The governing board of this corporation shall be known as directors, and
the number of directors may from time to time be increased or decreased in such
manner as shall be provided by the By-laws of this Corporation, providing that
the number of directors shall not be reduced to less than one (1).
NAME ADDRESS
Lewis E. Laughlin 1000 East William Street, Suite 100
Carson City, Nevada 89701
IS HEREBY AMENDED TO READ AS FOLLOWS:
ARTICLE FIVE
DIRECTORS
---------
The Directors are hereby granted the authority to do any act on behalf of
the Corporation as may be allowed by law. Any action taken in good faith, shall
be deemed appropriate and in each instances where the Articles of Incorporation
so authorize, such action by the Directors, shall be deemed to exist in these
Articles and the authority granted by said Act shall be imputed hereto without
the same specifically having been enumerated herein.
The Board of Directors may consist of from one (1) to nine (9) directors,
as determined, from time to time, by the then existing Board of Directors.
THE FOLLOWING NEW ARTICLES ARE HEREBY ADOPTED
---------------------------------------------
ARTICLE FOURTEEN
COMMON DIRECTORS
As provide by Nevada Revised Status 78.140, without repeating the section
in full here, the same is adopted and no contact or other transaction between
this Corporation and any of its officers, agents or directors shall be deemed
void or voidable solely for that reason. The balance of the provisions of the
code section cited, as it now exists, allowing such transactions, is hereby
incorporated into this Article as though more fully set-forth, and such Article
shall be read and interpreted to provide the greatest latitude in its
application.
<PAGE>
ARTICLE FIFTEEN
LIABILITY OF DIRECTORS AND OFFICERS
No Director, Officer of Agent, to include counsel, shall be personally
liable to the Corporation or its Stockholders for monetary damage for any breach
or alleged breach of fiduciary or professional duty by such person acting in
such capacity. It shall be presumed that in accepting the position as an
Officer, Director, Agent or Counsel, said individual relied upon and acted in
reliance upon the terms and protections provided for by this Article.
Notwithstanding the foregoing sentences, a person specifically covered by this
Article, shall be liable to the extent provided by applicable law, for acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law, or for the payment of dividends in violation of NRS 78.300
ARTICLE SIXTEEN
ELECTION REGARDING NRS 78.378 - 78.3793 AND 78.411 - 78.444
This Corporation shall NOT be governed by nor shall the provisions of NRS
78.378 through and including 78.3793 and NRS 78.4111 through and including
78.444 in any way whatsoever affect the management, operation or be applied in
this Corporation. This Article may only be amended by a majority vote of not
less than 90% of the then issued and outstanding shares of the Corporation. A
quorum of outstanding shares for voting on an Amendment to this article shall
not be met unless 95% or more of the issued and outstanding shares are present
at a properly called and noticed meeting of the Stockholders. The
super-majority set forth in this Article only applies to any attempted amendment
to this Article.
The number of shares of the corporation outstanding and entitled to vote on an
amendment to the Articles of Incorporation is 490,000; that the said change (s)
-------
and amendment have been consented to and approved by a majority vote of the
stockholders holding at least a majority of each class of stock outstanding and
entitled to vote thereon.
/s/ Gary Noerring
------------------------
Gary Noerring
President
/s/ Lynn Noerring
-----------------------
Lynn Noerring
Secretary/Treasurer
BY LAWS
OF
RICH EARTH, INC.
(A CORPORATION)
TABLE OF CONTENTS
ARTICLE I 4
OFFICES 4
Section 1: PRINCIPAL OFFICES 4
Section 2: OTHER OFFICES 4
ARTICLE II 4
MEETINGS OF SHAREHOLDERS 4
Section 1:ANNUAL MEETING 4
Section 2. PLACE OF MEETINGS 5
Section 3: SHAREHOLDER ACTION WITHOUT MEETING 5
Section 4:SPECIAL MEETINGS 5
Section 5: NOTICE OF MEETINGS 5
Section 6: WAIVER OF NOTICE 6
Section 7: QUORUM 6
Section 8: PROXIES 6
Section 9: VOTING 6
Section 10: LIST OF SHAREHOLDERS 6
Section 11: INSPECTORS 7
Section 12: ELECTION BY BALLOT 7
Section 13: ORDER OF BUSINESS 7
ARTICLE III 8
BOARD OF DIRECTORS 8
Section 1: GENERAL POWERS 8
Section 2: ENUMERATION OF DIRECTOR'S POWER 8
Section 3: NUMBER, TENURE, QUALIFICATION AND ELECTIONS 9
Section 4: VACANCIES 9
Section 5: ANNUAL MEETING 9
Section 6: NOTICE OF MEETINGS 10
Section 7: PLACE OF MEETINGS AND MEETINGS BY TELEPHONE 10
Section 8: SPECIAL MEETINGS 10
Section 9: MAJORITY OF QUORUM 10
Section 10: TRANSACTIONS OF BOARD OF DIRECTORS 10
Section 11: ADJOURNMENT 10
Section 12: CONDUCT OF MEETINGS 11
Section 13: ACTION WITHOUT MEETING 11
Section 14: FEES AND COMPENSATION OF DIRECTORS 11
Section 15: APPROVAL OF BONUSES FOR DIRECTORS AND OFFICERS 11
ARTICLE IV 12
OFFICERS 12
Section 1: OFFICERS 12
Section 2: ELECTION OF OFFICERS 12
Section 3: SUBORDINATE OFFICERS 12
Section 4: REMOVAL AND RESIGNATION OF OFFICERS 12
Section 5: VACANCIES IN OFFICES 13
Section 6: PRESIDENT 13
Section 7: VICE PRESIDENT 13
Section 8: SECRETARY 13
Section 9: CHIEF FINANCIAL OFFICER 13
ARTICLE V 14
INDEMNIFICATION OF DIRECTORS OFFICERS EMPLOYEES AND OTHER AGENTS 14
Section 1: AGENTS, PROCEEDINGS, AND EXPENSES 14
Section 2: ACTIONS OTHER THAN BY THE CORPORATION 15
Section 3: ACTIONS BY THE CORPORATION 15
Section 4: SUCCESSFUL DEFENSE BY AGENT 16
Section 5: REQUIRED APPROVAL 16
Section 6: ADVANCE OF EXPENSES 17
Section 7: OTHER CONTRACTUAL RIGHTS 17
Section 8: INSURANCE 17
Section 9: FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN 17
ARTICLE VI 18
STOCK CERTIFICATES 18
Section 1: FORM 18
Section 2:TRANSFERS 18
Section 3: LOST, DESTROYED, AND STOLEN CERTIFICATES 18
ARTICLE VII 19
CORPORATE ACTIONS 19
Section 1: CONTRACTS 19
Section 2: LOAN 19
Section 3: CHECKS, DRAFTS, OR ORDERS 19
Section 4: BANK DEPOSITS 19
ARTICLE III 20
MISCELLANEOUS 20
Section 1: INSPECTION OF CORPORATE RECORDS 20
Section 2: INSPECTION OF ARTICLES OF INCORPORATION
AND BYLAWS 20
Section 3: FISCAL YEAR 20
Section 4:CONSTRUCTION AND DEFINITION 21
ARTICLE IX 21
AMENDMENTS TO BYLAWS 21
CERTIFICATE OF SECRETARY OF ADOPTION BY DIRECTORS 21
Corporate Bylaws
----------------
ARTICLE I
---------
OFFICES
SECTION 1: PRINCIPAL OFFICES
-------------------------------
The Principal Office for the transaction of the business of the Corporation
is fixed and located at the residence of the President. The Board of Directors
may, from time to time, change the Principal Office from one location to another
as may be necessary.
The Secretary shall note any change of the location of the Principal Office on
these Bylaws contiguous this section, or this section may be amended to identify
the new location.
SECTION 2: OTHER OFFICES
---------------------------
The Board of Directors may, at any time, establish branch or subordinate
offices at any place or places.
ARTICLE II
----------
MEETINGS OF SHAREHOLDERS
SECTION 1:ANNUAL MEETING
--------------------------
The annual meeting of shareholders shall be held on the last 1st day of
January of each year, beginning with the year 2000, at 12:00 , or at such other
date and time that shall be scheduled by the Board of Directors to the extent
that such scheduling is in compliance with the laws of the State of .
At this meeting, Directors shall be elected, and any other proper business
within the power of the shareholders may be transacted.
In the event that an annual meeting is not held in any year, the Board of
Directors, as then constituted, shall continue to perform their duties until
such annual or special meeting is properly called and they, or any of them, are
re-elected or replaced.
<PAGE>
SECTION 2. PLACE OF MEETINGS
--------------------------------
All annual shareholders meetings shall be held at the Corporation's
Principal Office, or at an alternate location selected by the Board of Directors
upon notification to the shareholders as required by Section 4 of these
Articles.
All other shareholders meetings shall be held either at the Principal Office or
any other place within or outside the State of that may be designated either by
the Board of Directors in accordance with these Bylaws, or by the written
consent of all persons entitled to vote at the meeting, given either before or
after the meeting and filed with the Secretary of the Corporation.
SECTION 3: SHAREHOLDER ACTION WITHOUT MEETING
--------------------------------------------------
Pursuant to law, any action which could be taken at a meeting of the
shareholders may be taken without a meeting if a written consent thereto is
signed by shareholders holding at least a majority of the voting power of the
Corporation, except that if a different proportion of voting power is required
for such action at a meeting, then that proportion of written consent shall be
required.
SECTION 4:SPECIAL MEETINGS
----------------------------
A special shareholders meeting, for any purpose whatsoever, may be called
at any time by the President, any Vice-President, the Board of Directors, or one
or more shareholders holding not less than one-tenth (1/10) of the voting power
of the Corporation.
SECTION 5: NOTICE OF MEETINGS
---------------------------------
Written notices specifying the place, day, and hour of the meeting and, in
the case of a special meeting, the general nature of the business to be
transacted, shall be given not less than ten (10) days, nor more than fifty (50)
days before the date of the meeting.
Such notice must be given personally or by mail or by other means of written
communication, addressed to the shareholder at the address appearing on the
books of the Corporation, or given by the shareholder to the Corporation for the
purpose of notice.
If no such address appears, or is given by a shareholder of record entitled to
vote at the meeting, notice is given at the place where the Principal Executive
Office of the Corporation is located, or by publication at least once in a
newspaper of general circulation in the county where the Principal Executive
Office is located.
<PAGE>
SECTION 6: WAIVER OF NOTICE
-------------------------------
A shareholder may waive notice of any annual or special meeting by signing
a written notice of waiver either before or after the date of such meeting.
SECTION 7: QUORUM
-------------------
The presence in person or by proxy of the holders of at least fifty-one
percent (51%) of the outstanding shares entitled to vote at any meeting of the
shareholders shall constitute a quorum for the transaction of business.
The shareholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum; any action taken
(other than adjournment) shall be approved by at least a majority of the shares
required to constitute a quorum.
SECTION 8: PROXIES
--------------------
Every person entitled to vote at a shareholders' meeting of the
Corporation, or entitled to execute written consent authorizing action in lieu
of a meeting, may do so either in person, or by proxy, executed in writing by
the shareholder or by his or her duly authorized attorney-in-fact. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy.
SECTION 9: VOTING
-------------------
Except as otherwise provided in the Articles of Incorporation, or by
agreement, or by the general Corporation law, shareholders, at the close of
business on the record date, are entitled to notice and to vote.
SECTION 10: LIST OF SHAREHOLDERS
------------------------------------
The Secretary shall prepare, at least ten (10) days before every meeting of
shareholders, a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, showing the address of each
shareholder, for any purpose germane to the meeting.
This 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 shareholder present.
<PAGE>
- ------
SECTION 11: INSPECTORS
- ------------------------
At each meeting of shareholders, the Chairperson of the meeting may appoint
one or more Inspectors of Voting whose duty it shall be to receive and count the
ballots and make a written report showing the results of the balloting. The
Secretary of the Corporation may perform this function.
SECTION 12: ELECTION BY BALLOT
----------------------------------
Election for Directors need not be by ballot unless a shareholder demands
election by ballot at the meeting and before the voting begins. The candidates
receiving the highest number of votes, up to the number of directors to be
elected, shall be elected. No cumulative voting shall be allowed.
SECTION 13: ORDER OF BUSINESS
---------------------------------
The order of business at the annual meeting of the shareholders, insofar as
possible, and at all other meetings of shareholders, shall be as follows:
1. Call to Order
2. Proof of Notice of Meeting
3. Reading and Disposing of any unapproved minutes
4. Reports of Officers
5. Reports of Committees
6. Election of Directors
7. Disposition of Unfinished Business
8. Disposition of New Business
9. Adjournment
<PAGE>
------
ARTICLE III
-----------
BOARD OF DIRECTORS
SECTION 1: GENERAL POWERS
----------------------------
Subject to the provisions of the Corporation Act, and any limitations in
the Articles of Incorporation, and any limitations in the Articles of
Incorporation and these Bylaws relating to actions required to be approved by
the shareholders or by the outstanding shares, the business and affairs of the
Corporation shall be managed, and all corporate powers shall be exercised, by or
under the direction of the Board of Directors.
SECTION 2: ENUMERATION OF DIRECTOR'S POWER
-----------------------------------------------
Without prejudice to these general rules, and subject to the same
limitation, the Board of Directors shall have the power to:
1. Select and remove all officers, agents and employees of the Corporation;
prescribe any powers and duties for them that are consistent with law, with the
Articles of Incorporation, and these Bylaws; fix their compensation; and require
from them security for faithful service.
2. Change the Principal Executive Office or the Principal Business Office
from one location to another; cause the Corporation to be qualified to do
business in any other state, territory, dependency, or country, and conduct
business within or outside the State of ; and designate any place within or
outside the State of for the holding of any shareholders meeting or meetings,
including Annual Meetings.
3. Adopt, make, or use a Corporate Seal; prescribe the forms of Certificates
of Stock; and alter the form of the Seal and Certificate.
4. Authorize the issuance of shares of stock of the Corporation on any
lawful terms, in consideration of moneys paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received.
5. Engage in and/or adopt employment agreements, contracts, or other
employment contracts with independent contractors, companies, government
agencies, or individuals.
<PAGE>
- ------
SECTION 3: NUMBER, TENURE, QUALIFICATION AND ELECTIONS
- ------------------------------------------------------------
To the extent allowed by the Articles of Incorporation, the Board of
Directors shall be fixed from time to time by resolution of the Board, but shall
not be less than three (3), nor shall it exceed five (5). Directors need not be
shareholders of the Corporation.
The number of Directors may be increased beyond five (5) only by approval
of the outstanding shares of the Corporation.
The Directors of the Corporation shall be elected at the Annual Meeting of the
shareholders and shall serve until the next annual or special meeting is
properly called and they, or any of them, are re-elected and until their
successors have been elected and qualified.
SECTION 4: VACANCIES
----------------------
A vacancy, or vacancies, on the Board of Directors shall be deemed to exist
in the event of the death, resignation, or removal of any Director, or if the
Board of Directors, by resolution, declares vacant that office of a Director who
has been declared of unsound mind by an order of court, or convicted of a
felony, or if the authorized number of Directors is increased, the shareholders
fail at any meeting of shareholders at which the Director or Directors are
elected, to elect the number of Directors to be voted for at that meeting.
Any Director may resign, effective immediately, upon giving written notice
to the Chairperson of the Board, the President, the Secretary, or the Board of
Directors, unless a notice specifies a later time for the resignation to become
effective.
If the resignation of a Director is effective at a future time, the Board
of Directors may elect a successor to take office when the resignation becomes
effective.
Vacancies on the Board of Directors may be filled by a majority of the
remaining Directors, whether or not less than a quorum, or by a sole remaining
Director, except that a vacancy created by the removal of a Director by the vote
or written consent of the shareholders, or by court order, may be filled only by
the vote or written consent of the shareholders or by court order may be filled
only by the vote of a majority of the shares entitled to vote represented at a
duly held meeting at which a quorum is present, or by the unanimous written
consent of the shareholders of the outstanding shares entitles to vote.
The shareholders may elect a Director or Directors at any time to fill any
vacancy or vacancies not filled by the Directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote, except that filling a vacancy created by a removal of a
Director shall require the written consent of the holders of all outstanding
shares entitled to vote.
Each Director so elected shall hold office until the next annual meeting of
the shareholders and until a successor has been elected and qualified.
SECTION 5: ANNUAL MEETING
----------------------------
Immediately following each annual meeting of shareholders, the Board of
Directors may hold a regular meeting at the place that the annual meeting of
shareholders was held or at any other place that shall have been designated by
the Board of Directors for the purpose of organization, any desired election of
officers, and the transaction of other business. Notice of these regular
meetings shall not be required.
SECTION 6: NOTICE OF MEETINGS
---------------------------------
Notice need not be given of regular meetings of the Board of Directors, nor
is it necessary to give notice of adjourned meetings. Notice of special
meetings shall be in writing by mail at least four (4) days prior to the date of
the meeting or forty-eight (48) hours' notice delivered personally.
SECTION 7: PLACE OF MEETINGS AND MEETINGS BY TELEPHONE
--------------------------------------------------------------
Regular and special meetings of the Board of Directors may be held at any
place within or outside the State of that has been designated, from time to
time, by the Board. In the absence of such designation, meetings shall be held
at the principal executive office of the Corporation. Any meeting, regular or
special, may be held by conference in the meeting can hear one another, and all
such Directors shall be present in person at the meeting.
SECTION 8: SPECIAL MEETINGS
------------------------------
The Chairperson of the Board, or the President, any Vice President, or the
Secretary may call special meetings of the Board of Directors, for any purpose
or purposes, at any time.
SECTION 9: MAJORITY OF QUORUM
---------------------------------
A majority of the authorized number of Directors constitutes a quorum of
the Board for the transaction of business except as hereinafter provided.
SECTION 10: TRANSACTIONS OF BOARD OF DIRECTORS
----------------------------------------------------
Except as otherwise provided in the Articles or these Bylaws, or by law,
every act or decision done or made by a majority of the Directors present at a
duly held meeting at which a quorum is present, is the act of the Board,
provided, however, that any meeting at which a quorum was initially present may
continue to transact business notwithstanding the withdrawal of Directors if any
action taken is approved by a least a majority of the required quorum for such
meeting.
SECTION 11: ADJOURNMENT
-------------------------
A majority of Directors present at any meeting, whether or not a quorum is
present, may adjourn the meeting to another time and place. If the meeting is
adjourned for more than twenty-four (24) hours, notice of the adjournment to
another time and place must be given prior to the time of the adjourned meeting
to the Directors who were present at the time of the adjournment.
SECTION 12: CONDUCT OF MEETINGS
-----------------------------------
The Chairperson of the Board, or if there is no such officer, the
President, or in his or her absence, any Director selected by the Director
present, shall preside at the meeting of the Board of Directors. The Secretary
of the Corporation, or in the Secretary's absence any person appointed by the
Presiding Officer, shall act as Secretary of the Board.
SECTION 13: ACTION WITHOUT MEETING
--------------------------------------
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting if all members of the Board shall individually or
collectively consent, in writing, to such action by unanimous vote of the Board
of Directors.
Such written consent (s) shall be filed with the minutes of the proceedings
of the Board.
SECTION 14: FEES AND COMPENSATION OF DIRECTORS
----------------------------------------------------
Directors and members of committees may receive such compensation, if any,
for their services, and such reimbursement of expenses, as may be fixed or
determined by resolution of the Board of Directors.
Nothing herein contained shall be construed to preclude any Director from
serving the corporation in any other capacity as an officer, agent, employee, or
otherwise, and receiving compensation for such services.
SECTION 15: APPROVAL OF BONUSES FOR DIRECTORS AND OFFICERS
------------------------------------------------------------------
No bonuses of share in the earnings or profits of the Corporation shall be
paid to any of the Officers, Directors, or employees of the Corporation, except
as approved by the Board of Directors.
<PAGE>
------
ARTICLE IV
----------
OFFICERS
SECTION 1: OFFICERS
---------------------
The Officers of the Corporation shall be a President, a Vice-President, a
Secretary, and a Chief Financial Officer (Treasurer).
The Corporation may also have, at the discretion of the Board of Directors,
a Chairman of the Board, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article IV.
The same person, except the offices of President and Secretary, may hold any
number of offices.
SECTION 2: ELECTION OF OFFICERS
-----------------------------------
The Officers of the Corporation, except such Officers as may be appointed
in accordance with the provisions of Section 3 or Section 5 of this Article IV,
shall be chosen by the Board of Directors, and each shall serve at the pleasure
of the Board, subject to the rights, if any, of an Officer under any contract of
employment.
SECTION 3: SUBORDINATE OFFICERS
-----------------------------------
The Board of Directors may appoint, and may empower the President to
appoint, such other Officers as the business of the corporation may require.
Each of them shall hold office for such period, have such authority and perform
such duties as are provided in the Bylaws, or as the Board of Directors may from
time to time determine.
SECTION 4: REMOVAL AND RESIGNATION OF OFFICERS
-----------------------------------------------------
Subject to the rights, if any, of an Officer under a contract of
employment, any officer may be removed, either with or without cause, by the
Board of Directors, at any regular or special meeting of the Board, or, except
in case of an officer chosen by the Board of Directors.
Any Officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect on the date of receipt of that
notice, or at any later time specified in that notice, unless otherwise
specified in that notice. Any resignation is without prejudice to the rights,
if any, of the corporation under any contract for which the officer is a party.
<PAGE>
- ------
SECTION 5: VACANCIES IN OFFICES
- --------------------------------------
A vacancy in any office, because of death, resignation, removal,
disqualification, or any other cause, shall be filled in the manner prescribed
in these Bylaws for regular appointments to that office.
SECTION 6: PRESIDENT
-------------------------
Subject to such powers, if any, as may be given by the Bylaws or Board of
Directors to other officers of the Corporation, the President shall be the
General Manager and Chief Executive Officer of the Corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction, and control of the business and the officers of the Corporation.
He shall have the general powers and duties of management usually vested in
the officer of President of a corporation, and shall have such other powers and
duties as may be prescribed by the Board of Directors or the Bylaws.
SECTION 7: VICE PRESIDENT
-----------------------------
In the absence or disability of the President, the Vice-President
designated by the Board of Directors shall perform all the duties of the
President, and when so acting shall have all the powers of, and be subject to
all of the restrictions upon, the President.
The sole duty of the Vice-President of this Corporation shall be to
function as a representative of the President in such case as the President may
be absent or disabled. The Vice-President may, when not acting in the
representative capacity of the President, hold other positions and be assigned
other duties within the Corporation.
SECTION 8: SECRETARY
-----------------------
The Secretary shall keep or cause to be kept, at the principal executive
office or such other place as the Board of Directors may direct, a book of
minutes of all meetings and actions of Directors, committees of Directors and
shareholders, with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice given, the names of those present at
Director meetings or committee meetings, the number of shares present or
represented at shareholders meetings, and the proceedings.
The Secretary shall keep, or cause to be kept, at the Principal Executive
Office or at the office of the Corporation, and shall give, or cause to be
given, notice of all meetings of the shareholders, of the Board of Directors,
and of committees of the Board of Directors required by the Bylaws or by law to
be given.
The Secretary shall keep the seal of the Corporation, if one is adopted, in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board of Directors or by the Bylaws.
SECTION 9: CHIEF FINANCIAL OFFICER
---------------------------------------
The Chief Financial Officer (Treasurer) shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The book of accounts shall at all reasonable
times be opened to inspection by any Director.
The Chief Financial Officer shall deposit all monies and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
President and Directors, whenever they request it, an account of all of his
transactions as Chief Financial Officer and of the financial condition of the
Corporation, and shall have other powers and perform other such duties as may be
prescribed by the Board of Directors or the Bylaws.
ARTICLE V
----------
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
SECTION 1: AGENTS, PROCEEDINGS, AND EXPENSES
----------------------------------------------------
For the purpose of this Article, "agent" means any person who is, or was,
a Director, Officer, employee, or other agent of this Corporation, or is, or
was, serving at the request of this Corporation as a Director, Officer,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a Director, officer, employee,
or agent of a foreign or domestic corporation which was a predecessor
corporation of this corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative, or investigative;
and "expenses" includes, without imitation, attorney's fees and any expenses of
establishing a right to indemnification under Section 4 or Section 5 of this
Article.
<PAGE>
- ------
SECTION 2: ACTIONS OTHER THAN BY THE CORPORATION
- --------------------------------------------------------
This Corporation shall defend and indemnify any person who was or is a
party, or is threatened to be made a party, to any proceeding (other than an
action by or in the right of this Corporation) by reason of the fact that such
person is or a was an agent of this Corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if that person acted in good faith and in a
manner that that person reasonably believed to be in the best interests if this
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of that person was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction, or upon a pleas of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interest of this
Corporation or that the person had reasonable cause to believe that the person's
conduct was lawful.
SECTION 3: ACTIONS BY THE CORPORATION
---------------------------------------------
This Corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action by
or in the right of this Corporation to procure a judgment in its favor by reason
of the fact that said person is or was an agent, counsel to the Corporation,
against expenses actually and reasonably incurred by that person in connection
with the defense or settlement of that action if that person acted in good
faith, in a manner that that person believed to be in the best interests of this
Corporation and with such care, including reasonably inquiry, that such action
would not be deemed grossly negligent on the part of such agent ( for the
purposes of this Article V, the term "agent" shall mean and include all
officers, directors, counsel, and employees). Indemnification shall be
available under this Section 3, conditioned only upon the following:
(a) In respect of any claim, issue or matter as to which that person may be
liable to this Corporation, the duty and obligation of the Corporation to defend
and indemnify such agent shall be absolute unless and only to the extent that
the court in which that action was brought shall determine, upon application,
that in view of all the circumstances of the case, said person acted with
reckless disregard equated to gross negligence with regard to the specific
claims made against said person;
(b)
<PAGE>
The indemnification provisions set-forth herein are to be interpreted as broadly
as possible in their application to any Officer, Director, Counsel or Agent of
the Corporation, to include accountants and counsel for the Corporation. Such
interpretation shall treat these provisions as continuing contractual
obligations of the Corporation and subsequent modification shall not limit the
effect of these provisions as applied to the covered classes, who were so
covered, at any time following adoption hereof.
SECTION 4: SUCCESSFUL DEFENSE BY AGENT
-------------------------------------------
To the extent that an agent of this Corporation has been successful on the
merits, or otherwise in defense of any proceeding referred to in Section 2 or 3
of this Article, or in defense of any claim, issue, or matter therein, the agent
shall be indemnified against expenses actually and reasonably incurred by the
agent in connection therewith.
An agent shall be deemed successful if the Court fails to make a specific
finding regarding the degree of fault as set forth in Section 3, hereinabove.
SECTION 5: REQUIRED APPROVAL
-------------------------------
Except as provided in Section 4 of this Article, any indemnification under
this Article shall be made by this Corporation only if authorized in the
specific case on a determination that indemnification of the agent is proper in
the circumstances because the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Section 2 or 3 of
this Article, by:
(a) A majority vote of a quorum consisting of Directors who are not parties
to the proceeding;
(b) Approval by the affirmative vote of a majority of the shares of this
Corporation entitled to vote represented at a duly held meeting at which a
quorum is present or by written consent of holders of a majority of the
outstanding shares entitled to vote; or
(c) The court in which the proceeding is or was pending, on application made
by this Corporation or the agent or the attorney or other person rendering
services in connection with the defense, whether or not such application by the
agent, attorney or other person is opposed by this Corporation.
<PAGE>
- ------
SECTION 6: ADVANCE OF EXPENSES
- ----------------------------------
Expenses incurred in defending any proceeding may be advanced by this
Corporation before the final disposition of the proceeding on receipt of an
understanding by or on behalf of the agent to repay the amount of the advance
unless it shall be determined ultimately that the agent is entitled to be
indemnified as authorized in this Article.
SECTION 7: OTHER CONTRACTUAL RIGHTS
---------------------------------------
Nothing contained in this Article shall affect any right to indemnification
to which persons other than Directors and Officers of this Corporation, or any
subsidiary hereof, may be entitled to contract or otherwise.
SECTION 8: INSURANCE
----------------------
Upon, and in the event of, a determination by the Board of Directors of
this Corporation to purchase such insurance, this Corporation shall purchase and
maintain insurance on behalf of any agent of the Corporation against any
liability asserted against, or incurred by, the agent in such capacity, or
arising out of the agent's status as such, whether or not this corporation would
have the power to indemnify the agent against that liability under the
provisions of this section.
SECTION 9: FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN
----------------------------------------------------------------
This Article does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of any employee benefit plan in that
person's capacity as such, even though that person may also be an agent of the
Corporation as defined in Section 2 of this Article.
Nothing contained in this Article shall limit any right to indemnification
to which such trustee, investment manager, or other fiduciary may be entitled by
contract or otherwise, which shall be enforceable to the extent permitted by
applicable law other than this Article.
<PAGE>
------
ARTICLE VI
----------
STOCK CERTIFICATES
SECTION 1: FORM
-----------------
The shares of the Corporation shall be represented by certificates signed
by the President or Vice President, and the Chief Financial Officer or the
Secretary of the Corporation. Any or all of such signatures may be facsimiles,
if countersigned by a transfer agent, or registered by a registrar, other than
the Corporation itself or an employee of the Corporation. Each such certificate
shall also state:
(a) The name of the record holder of the shares represented by such
certificate;
(b) The number of shares represented thereby;
(c) A designation of any class or series of which such shares are a part;
(d) That the shares have a par value of $0.001;
(e) That the corporation is organized under the laws of the State of .
(f) Any restrictions applicable to the shares shall be so designated on the
face thereof.
SECTION 2:TRANSFERS
--------------------
Transfer of shares of the Corporation shall be made in the manner set forth
in the Uniform Commercial Code. The Corporation shall maintain stock transfer
books, and any transfers shall be registered thereon only on request and
surrender of the stock certificate representing the transferred shares, duly
endorsed; if transfer is by Power of Attorney, the Power of Attorney shall be
deposited with the Secretary of the Corporation or with the designated Transfer
Agency.
SECTION 3: LOST, DESTROYED, AND STOLEN CERTIFICATES
---------------------------------------------------------
No certificate or shares of stock in the Corporation shall be issued in
place of any certificate alleged to have been lost, destroyed, stolen, or
mutilated except on production of such evidence and provision of such indemnity
to the Corporation as the Board of Directors may prescribe.
<PAGE>
------
ARTICLE VII
-----------
CORPORATE ACTIONS
SECTION 1: CONTRACTS
----------------------
The Board of Directors may authorize any officer or officers, or any agent
or agents of the Corporation, to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 2: LOAN
-----------------
The Corporation shall make no loan to its officers or Directors, and the
Corporation, secured by its shares, shall make no loan.
No loan shall be made or contracted on behalf of the Corporation and no
evidences of indebtedness shall be issued in its name unless authorized by
resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
SECTION 3: CHECKS, DRAFTS, OR ORDERS
-----------------------------------------
All checks, drafts, or other orders for the payment of money by or to the
Corporation, and all notes and other evidence of indebtedness issued in the name
of the Corporation shall be signed by such officer or officers, agent or agents
of the Corporation, and in such manner as shall be determined by resolution of
the Board of Directors.
SECTION 4: BANK DEPOSITS
---------------------------
All funds of the Corporation and otherwise employed, shall be deposited to
the credit of the Corporation in such banks, trust companies, or other
depositories as the Board of Directors may select.
<PAGE>
ARTICLE VIII
------------
MISCELLANEOUS
SECTION 1: INSPECTION OF CORPORATE RECORDS
-----------------------------------------------
Any information storage device, if readily convertible into legible form,
may keep the stock ledger and minute books. Any shareholder of record, in
person or by an attorney or agent who presents proof of such position with
guaranteed signature on such proof, may, upon written demand under oath, stating
purpose, inspect for any proper purpose, the stock ledger, list of shareholders
and make written extracts of the same.
Such extracts shall be made in writing by the individual preparing or
requesting such inspection, and such inspection shall be during normal business
hours and shall not be made without at least five (5) business days written
notice thereof. Such notice, to be effective, must be received not at least
five (5) business days prior to the proposed inspection date; a signed receipt
from the US Postal Service shall be proof of such notice and the date of
receipt.
SECTION 2: INSPECTION OF ARTICLES OF INCORPORATION AND BYLAWS
---------------------------------------------------------------------
The original or a copy of the Articles of Incorporation and Bylaws of the
Corporation, as amended or otherwise altered to date, and certified by the
Secretary of the Corporation, shall at all times be kept at the Principal
Executive Office of the Corporation. Such Articles and Bylaws shall be open for
inspection to all shareholders of record or holders of voting trust certificates
at all reasonable times during the business hours of the Corporation.
SECTION 3: FISCAL YEAR
-------------------------
The fiscal year of the Corporation shall begin on the first day of January
of each year and end at midnight on the last day of December of the same year or
as otherwise determined by the Board of Directors.
<PAGE>
- ------
SECTION 4:CONSTRUCTION AND DEFINITION
- ----------------------------------------
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions contained in the applicable Statutes that shall
govern the construction of these Bylaws.
Without limiting the foregoing, the masculine gender, where used, includes
the feminine and neuter, the singular number includes the plural, and the plural
number includes the singular, "shall" is mandatory and "may" is permissive; and
"person" includes the Corporation as well as a natural person.
ARTICLE IX
----------
AMENDMENTS TO BYLAWS
These Bylaws may be amended at any time by a majority vote of the Board of
Directors or by a majority vote of the outstanding shares held by the
shareholders of the corporation.
CERTIFICATE OF SECRETARY OF ADOPTION BY DIRECTORS
I HEREBY CERTIFY that I am the duly elected, qualified and acting Secretary
of the above-named Corporation, and that the above and foregoing Bylaws were
adopted as the Bylaws of said Corporation on the date set forth above by a
majority of vote of the shareholders of said Corporation.
Date: 07/ 11/ 1993
/S/ Charles Spaulding
____________________________
Charles Spaulding
Secretary
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
Rich Earth, Inc.
We hereby consent to the use of our report dated July 21, 1999, for the period
ended June 30, 1999 in the registration statement of Rich Earth, Inc. filed in
the form 10-SB in accordance with Section 12 of the Securities Exchange Act of
1934.
Andersen Andersen and Strong L.L.C.
September 23, 1999
Salt Lake City, Utah
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