<PAGE> 1
As filed with the Securities and Exchange Commission on November 4, 1999
Registration No. _________
==============================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
Skreem.com Corporation
--------------------------------------------
(Name of Small Business Issuer in its Charter)
Delaware 62-1655508
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1110 Palmer Avenue, Winter Park, Florida 32790
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (407) 645-1704
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Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
N/A N/A
----- -----
Securities to be registered under Section 12(g) of the Act:
Common Stock, par value $0.01 per share
---------------------------------------
(Title of Class)
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Skreem.com Corporation
FORM 10-SB
TABLE OF CONTENTS
PART I Page
Item 1. Description of Business ..................................... 3
Item 2. Management's Discussion and Analysis or Plan of Operation ... 7
Item 3. Description of Property...................................... 8
Item 4. Security Ownership of Certain Beneficial Owners
and Management.............................................. 8
Item 5. Directors, Executive Officers, Promoters
and Control Persons......................................... 9
Item 6. Executive Compensation....................................... 10
Item 7. Certain Relationships and Related Transactions............... 11
Item 8. Description of Securities.................................... 11
PART II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and Other Shareholder Matters................. 12
Item 2. Legal Proceedings............................................ 12
Item 3. Changes in and Disagreements with Accountants................ 12
Item 4. Recent Sales of Unregistered Securities...................... 12
Item 5. Indemnification of Directors and Officers.................... 12
PART F/S
Financial Statements......................................... 14
PART III
Item 1. Index to Exhibits............................................ 23
Signatures................................................... 23
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PART I
Item 1. Description of Business
Corporate History
- -----------------
Skreem.com Corporation a Delaware corporation (the "Company")formerly
Commerce Centers Corporation was formed in May 1989 but did not have any
operations until it acquired Skreem.com Corporation a Nevada corporation
("Skreem") in March 1999. Upon the acquisition of Skreem, the Company changed
its name from Commerce Centers Corporation to "Skreem.com Corporation." The
Company acquired all of Skreem's issued and outstanding shares of common stock
making Skreem a wholly-owned subsidiary of the Company. The business of
Skreem has become the only operating business of the Company and the officers
and directors of Skreem have assumed the officers and director positions of
the Company. When used herein the term "Company" refers to the combined
entity unless the context otherwise indicate.
Skreem was formed in 1999 to develop and market computer and Internet
related software. In February 1999, Skreem acquired R&R Marketing Group, Inc.
which had the rights to a series of computer software known as Skreem System
Acceleration. The Skreem software attempts to accelerate the speed of a
computer in relation to various computer programs' operating abilities. The
initial concept was aimed at allowing individuals to purchase this software to
accelerate a computer's operating speed rather than having to purchase new
hardware to achieve increased operating speeds. The software was designed to
be flexible and work with any computer that is a 486DX or superior and runs
either the Windows 95 or 98 operating systems.
Skreem has only recently been formed and has not had the time or
financing to exploit its software. Previously, the efforts of R&R Marketing
Group, Inc., the prior owners of the software, were on the development of the
software and not on its commercialization. Accordingly, the future market
acceptability of the Skreem software is still unknown.
If the Company is successful in exploiting the Skreem software, the
Company intends to develop other computer and Internet related software and
potentially acquire other hi-tech, Internet or software business. In an
effort to fund the development and marketing of the "Skreem System
Acceleration," the Company raised over $900,000 through the sale of shares of
its common stock in a private placement. These funds will be used to complete
Beta versions of its products and commence marketing efforts.
Operations
- ----------
Products and Services
---------------------
The Company's first product is called Skreem System Acceleration, which
is a comprehensive software tool aimed at increasing operating speeds of
computers. The goal of the software is to accelerate the speed in which
computers perform their functions and decrease Internet download and upload
times. Additionally, the software attempts to stabilize Microsoft
Windows(tm), run graphics faster and makes it easier to navigate through
toolbars.
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The Company recently completed benchmark testing using WinTune98, an
industry-standard testing program. All tested variables showed marked
increases in performance. Skreem.com owns 100% of all rights to the
acceleration methodology as well as all pending trademarks.
Skreem System Acceleration has two versions: Skreem for Windows 95 and
Skreem for Windows 98. These main Skreem acceleration software products have
also been partitioned into several distinct products. The Skreem acceleration
tool has been divided into: Skreem Internet, Skreem Windows and Skreem
Graphics. These products are sold separately from the comprehensive Skreem
accelerator tool, providing consumers the ability to choose the specific
Skreem tool to fit their needs.
All of the Company's products and services will be available for
licensing and purchase on the Company's website. The Company anticipates
including extensive technical support options that will reduce the traditional
high cost of customer assistance. Initially the website will be the main
venue for purchasing the Company's products. In a marketing move, the site is
planned to have Java-based "cookies" (invisible applications that
automatically download and run on a user's computer) that will profile the
computer being used by the person viewing the website. The website will then
customize the viewable information to the visitor's computer settings. For
example, a "cookie" will automatically download to a visitor who is using a
486dx computer running Windows 95. That information about the visitor's
computer is sent back to the Company's site within seconds. From then on, the
visitor will see performance charts and graphs showing how the Company's
acceleration software will boost the visitor's specific computer
configuration. Sales efforts are hopefully made easier since potential
customers don't have to search around for details about the Company's products
for their specific computer.
The Company is working on providing web-based support resources that
provide front-line assistance for the Company's suite of applications. Four
types of self-help tools are planned:
Knowledge Base: Users can search a database for common solutions relating
to an issue.
Frequently Asked Questions: Users can review a list of answers to the
most frequent questions relating to Skreem.com software.
FTP download Library: Users can download patches, software updates,
drivers, technical articles, bug fixes and enhancements.
Tech Support Software: Users can quickly download the software used by
the Company for its direct real-time customer support option.
Second-Stage Products and Services
----------------------------------
The Company is developing products for the second phase of its evolution.
The second set of software products will expand the list of possible operating
systems with which the Skreem System Acceleration can operate including:
Skreem 2000, Skreem Windows NT and Skreem Networks. The Company intends to
updated its software with each new iteration of the Windows (tm) operating
system. The Company hopes to be able to eventually offer its Skreem software
products in multiple languages for international sale.
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As funding permits, the Company hopes to be able to develop a strong
software team that not only works on the Skreem products but also will be able
to develop software for licensing to other software firms. Some of the first
projects currently being considered for development for licensing to others
areas include a software installation system that protects against software
piracy, a data encryption system and a proprietary customer service technology
that allows online real-time repair of customers' computers. All future
development will be dependant on the Company's first product, Skreem System
Acceleration and potentially upon the Company's ability to generate further
investment capital for expansion.
Although the Company has developed its product and performed initial
test along with Beta runs, management feels the product is several months from
full commercialization. The Beta results appear promising; however, the
Company must still complete its downloading technology to allow purchasers to
access the software on the Company's web site. Until commercialization of the
product is commenced, there can be no assurance of future success.
Additionally, although Beta versions of the product do not show any operating
problems, upon large scale usage of the product, it would not be unusual for
certain "bugs" to be found which would require correction. This could slow
further developments of the software.
Marketing Strategy
------------------
The Company's short-term marketing strategy is to set up channel sales
through major distributors. The Company plans to promote its products and
brand names with the use of industry and consumer magazine advertising,
co-operative advertising campaigns with the dealers and distributors, as well
as an aggressive display and international trade show schedule.
Strategic alliances and licensing are a major plan of the Company's
long-term marketing strategy to enter new and existing markets making use of
established distribution and customer bases of the Company's partners and
licensees.
Competition and Markets
-----------------------
The Company faces many challenges and competitors to its software. The
competition comes not only from other software products but from computer
hardware manufactures that continue to make faster computers at cheaper
prices. Additionally, other software companies offer products to improve
computer functions. The Company's operation is very vulnerable to competition
because of the Company's financial capabilities and the newness of its
product. The Company's present size and financial capabilities creates a
situation where its competitors are larger, better financed and have better
name recognition than the Company placing the Company at a competitive
disadvantage.
Research and Development
------------------------
The Company's programming and product development has been performed by
two of the Company's officers in the past. The Company intends to hire three
or four new programmers to assist in product development and improvements on
current products. If the Company's current software proves successful, the
Company will accelerate the addition of new programmers to reduce the time
required to develop new software.
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Patents and Trademarks
----------------------
The Company has filed for trademark registration on the name "Skreem.com
System Acceleration," and is in the process of filing trademark registrations
on product names. The Company has been granted Internet registration of the
domain name "Skreem.com."
Government Regulation
---------------------
The Company is not subject to any government regulations other than those
that normally apply to other software manufacturers, such as copyright and
trademarks laws.
Year 2000 Computer Problem
--------------------------
Many currently installed computer systems and software programs are not
capable of correctly processing 21st century dates. As a result, computer
systems, software and other computer controlled processes used by many
companies in a very wide variety of applications will experience operating
difficulties unless they are modified or upgraded to adequately process
information involving, related to, or dependent upon the century change.
Significant uncertainty exists concerning the scope and magnitude of problems
associated with the century change.
The Company has assigned one of its officers to review its Year 2000
risks from the standpoint of its Skreem Acceleration System and the Company's
computer system. The officer is responsible for identifying any potential
problems and to make appropriate corrections to the hardware and software
applications to assure the availability and integrity of the Company's
information systems, operational systems and critical business processes. An
appropriate program of assessment, remediation and testing for both products
and internal systems has recently been completed. Based on this review and
test, the Company believes its software products are Year 2000 compliant and
its internal systems should not experience any Year 2000 problems. The
Company is now reviewing any potential risks of the impending century change
on its business partners, results of operations and financial position.
Employees
---------
The Company has three employees. (See "Directors and Executive
Officers.")
Offices
-------
The Company's principal executive offices are located at 1110 Palmer
Avenue, Winter Park, Florida 32790. These offices are provided, rent free, by
the Company's president, Thomas Tedrow. The Company believes that the above
facilities are adequate for the foreseeable needs of the Company; however,
eventually as the Company expands its employee base, it anticipates adding
additional office space.
<PAGE>
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Item 2. Management's Discussion and Analysis or Plan of Operation
Overview
- --------
The Company has developed and is completing beta test of a software based
system called "Skreem System Acceleration" which accelerates the operating
speed of Microsoft Windows(tm) based software programs. The Company has only
just begun limited marketing of its product. Previous efforts have been
focused on the development of the software and obtaining funds necessary to
produce and market the software. The Company has now raised over $900,000 to
commence manufacturing, marketing and product support activities. The Company
will be completely dependent on the success of the Skreem System Acceleration.
Plan of Operation
- -----------------
The Company intends to commence marketing and distribution of its Skreem
System Acceleration through various means. Initially, even with the funds
raised, the Company will have to focus on limited advertising to garner
interest in the Company's products. Advertising will be through the Company's
Internet site with "banners" from other sites to attract interest. Additional
advertising will be in computer magazines. The Company will also attempt to
place its product in computer stores and other software outlets. The Company
may have difficulty obtaining space on shelves do to its lack of a prior track
record or size.
The Company will use its funds principally to develop a support network
and for marketing its current product. Some funds will be used to hire
additional programmers to improve upon the Company's current products. The
Company does not anticipate it will be profitable in the current year and
foresees at least twelve months of losses as it commences marketing efforts
and hires additional support staff and programmers. If the Company is unable
to generate revenue from product sales within the next twelve months, the
Company would be forced to seek additional capital to continue in business.
Liquidity and Capital Resources
- -------------------------------
At the year end December 31, 1999, and the quarter ended March 31, 1999,
the Company essentially had no assets and was focused on the development of
its software program. The Company fortunately did not have extensive cash
drains as the officers of the Company were the developers of the software and
not taking large salaries. After the quarter ended March 31, 1999, the
Company was able to raise over $900,000 through the sale of shares of its
common stock in a private placement. At June 30, 1999, the Company had
$794,060 in cash to fund operations. The Company believes these funds are
sufficient to support the Company's operations for the next twelve months.
Liabilities at June 30, 1999, were only $15,277.
The Company intends to use its capital to commence marketing operations
on its software, hire additional programmers and fund ongoing working capital
needs. The Company's future success will be dependent on the acceptance of
the "Skreem System Acceleration" software. If the software is not received
well by potential consumers, the Company's future success will be in question.
The Company does not have any other products, at this time, and likely will
not have the capital to develop and market other potential software. Even if
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the Company is successful in generating a market for its software, it is
likely that the Company will need additional capital to aggressively market
its software and to work on the development of additional software.
Management anticipates any future capital will be raised through the sale of
its securities which may dilute current shareholders.
Results of Operations
- ---------------------
The Company's prior operations were limited and principally aimed at the
development of its software. Since inception through June 30, 1999, the
Company had expenses of $211,538 related to the formation of the Company and
software development expenses. The Company anticipates expenses will increase
as it moves into the marketing phase of its product development. For the six
months ended June 30, 1999, the Company had $124,618 in expenses reflecting
the increase in personnel and development cost related to beta test and
initial marketing efforts. The future success of the Company is still an
unknown factor as the Company has not had the time to engage in extensive
marketing efforts and presently has no sales.
Item 3. Description of Property
The Company's only property consist of office space provided by the
Company's president at no charge. The Company believes its present office
space is sufficient for the foreseeable future. Once the Company starts
generating revenue, the Company will consider moving to new office space. The
Company's other property consist of office and computer equipment.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth the number of shares of the Company's
Common Stock, par value $0.01, held by each person who is believed to be the
beneficial owner of 5% or more of the shares of the Company's common
stock outstanding at October 15, 1999, based on the Company's transfer agent's
list, representations and affidavits from shareholders and beneficial
shareholder lists provided by the Depository Trust and securities broker
dealers, and the names and number of shares held by each of the Company's
officers and directors and by all officers and directors as a group.
Title of Name and Address Amount and Nature of Percent
Class Of Beneficial Owner Beneficial Ownership of Class
- -------- ------------------- --------------------- --------
Principal Shareholders
- ----------------------
Common Thomas Tedrow
1110 Palmer Avenue
Winter Park, Florida
32790 7,867,000 58.2%
Common Jeff Martin (1)
179 Fairview Point Circle
Orlando, Florida
32790 581,962 4.3%
Common Forbes Investments (2)
Central Plaza, Suite 4703
18 Harbour Rd.
Wanchai, Hong Kong, PRC 400,012 2.96%
Common FSC Limited (3)
Central Plaza, Suite 4703
18 Harbour Rd.
Wanchai, Hong Kong, PRC 400,012 2.96%
<PAGE> 9
Officers, Directors and Nominees
- --------------------------------
Common Thomas Tedrow ---------See Above---------
Common Mike Reynolds 250,000 1.86%
Common Jacob Nguyen 100,000 0.74%
All Officers, Directors, and
Nominees as a Group (3 Person) 8,217,000 60.78%
- --------------------------------
(1) Mr. Martin owns 506,962 shares directly or through his business. Mr.
Martin's children own 75,000 shares.
(2) Mr. Martin has voting power over 400,012 shares held by Forbes
Investments.
(3) Mr. Martin has voting power over 400,012 shares held by FSC Limited.
Item 5. Directors, Executive Officers, Promoters and Control Persons
The names of the Company's executive officers and directors and the
positions held by them are set forth below:
Name Age Position Director Since
------ ---- -------- --------------
Thomas L. Tedrow 48 President & Chief Executive
Officer, Director 1999
Michael Reynolds 22 Vice-President of Product
Development, Director 1999
Jacob Nguyen 26 Treasurer & Secretary, Director 1999
The term of office of each director is one year and until his successor
is elected at the Company's annual shareholders' meeting and is qualified,
subject to removal by the shareholders. The term of office for each officer
is for one year and until a successor is elected at the annual meeting of the
board of directors and is qualified, subject to removal by the board of
directors.
Biographical Information
- ------------------------
Set forth below is certain biographical information with respect to each
of the Company's officers and directors.
Thomas L. Tedrow is the author of over twenty books. He is an
international marketing strategist who publishes Market Management Reports
and founded Financial Discoveries. He directs Tedrow Communications
Corporation, a marketing communication firm with offices in Orlando, Florida
and Hong Kong. Mr. Tedrow is a graduate of the University of Florida with a
degree in Public Relations/Journalism.
Michael Reynolds is the developer of the Skreem System Acceleration
product. Previously, he was the principal of R&R Marketing, a high-technology
marketing firm based in Missouri which was acquired by the Company. Mr.
Reynolds focuses on the development of various software.
Jacob Nguyen is the managing director of Market Management International,
Inc., an investment research firm. Mr. Nguyen heads a team of analysts and
writers that researches companies from around the world. Previously, he was
vice president of Waterford Sterling, Inc., an international public relations
firm that created media campaigns and advertising for multinational
corporations. Mr. Nguyen has a bachelor's degree in International Economics.
<PAGE> 10
Key Consultant
--------------
Jeff Martin assisted the Company with its merger with Skreem.com
Corporation. And has been providing other business consultation. Mr. Martin
is the principal of Martin Consultants and has worked with Mr. Tedrow with
other corporations. Although not an officer or director of the Company, it is
anticipated Mr. Martin will have a voice in the direction of the Company
particularly given his relationship with Mr. Tedrow and other officers of the
Company. Mr. Martin is a shareholder of the Company.
ITEM 6. EXECUTIVE COMPENSATION
The following tables set forth certain summary information concerning the
compensation paid or accrued for each of the Company's last completed
fiscal years to the Company's or its principal subsidiaries chief executive
officer and each of its other executive officers that received compensation in
excess of $100,000 during such period (as determined at December 31, 1998, the
end of the Company's last completed fiscal year):
SUMMARY COMPENSATION TABLE
- --------------------------
<TABLE>
<CAPTION>
Long Term Compensation
----------------------
Annual Compensation Awards Payouts
------------------- ------ --------
Other Restricted
Name and Annual Stock Options LTIP All other
Principal Position Year Salary Bonus($) Compensation Awards /SARs Payout Compensation
- ------------------ ---- ------ -------- ------------ ------ ------- ------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas Tedrow(1) 1998 -0- -0- -0- -0- -0- -0- -0-
President and CEO
</TABLE>
(1)K.A. Emery was the president of the Company prior to its merger with
Skreem.com and subsequent name change. Ms. Emery did not receive a salary.
Mr. Tedrow was the President of Skreem.com Corporations prior to its merger
with the Company and did not receive a salary during this time. The Company
had no operations prior to its merger with Skreem.com Corporation which itself
had no operations in prior years
Options/SAR Grants in Last Fiscal Year
- --------------------------------------
The Company has never granted options or stock appreciation rights.
Bonuses and Deferred Compensation
- ---------------------------------
None
Compensation Pursuant to Plans
- ------------------------------
The Company does not have any compensation or option plans.
Pension Table
- -------------
Not Applicable
<PAGE> 11
Other Compensation
- ------------------
None
Compensation of Directors
- -------------------------
Director's receive no compensation except for reimbursement for expenses
associated with attending a directors meeting.
Termination of Employment and Change of Control Arrangement
- -----------------------------------------------------------
There are presently nor are there anticipated any agreements regarding
change of control of the Company.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company completed the acquisition of Skreem.com Corporation, a Nevada
corporation in 1999. At the time of the acquisition, the Company was
controlled, in part, by Jeff Martin who has had a long term business
relationship with Tom Tedrow, the current president of the Company and the
president of the private Skreem.com Corporation at the time of the
acquisition. This relationship brings into question the arm's length nature
of the transaction. Management believes the terms of the merger were fair.
Item 8. Description of Securities
Description of Securities
- -------------------------
General
-------
The Company is authorized to issue 30,000,000 shares of capital stock,
par value $0.01 per share designated as Common Stock. There are 13,520,315
fully paid and non assessable shares of Common Stock currently issued and
outstanding as of October 15, 1999.
Common Stock
------------
The holders of Common Stock are entitled to one vote per share on each
matter submitted to a vote at any meeting of shareholders. Shares of Common
Stock do not carry cumulative voting rights and, therefore, a majority of the
shares of outstanding Common Stock will be able to elect the entire board of
directors and, if they do so, minority shareholders would not be able to elect
any persons to the board of directors. The Company's bylaws provide that a
majority of the issued and outstanding shares of the Company constitutes a
quorum for shareholders' meetings, except with respect to certain matters for
which a greater percentage quorum is required by statute or the bylaws.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock or other securities. The Common Stock is
not subject to redemption and carries no subscription or conversion rights.
In the event of liquidation of the Company, the shares of Common Stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities.
Holders of Common Stock are entitled to receive such dividends as the
board of directors may from time to time declare out of funds legally
available for the payment of dividends. The Company seeks growth and
expansion of its business through the reinvestment of profits, if any, and
does not anticipate that it will pay dividends in the foreseeable future
<PAGE> 12
PART II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and Other Shareholder Matters
The Company's Common Stock is currently not quoted or listed for trading
with any exchange or market.
Since its inception, the Company has not paid any dividends on its Common
Stock, and the Company does not anticipate that it will pay dividends in the
foreseeable future.
As of October 15, 1999, the Company had 13,520,315 shares of its Common
Stock issued and outstanding held by approximately 178 shareholders.
Item 2. Legal Proceedings
The Company is not, and has not been, involved in any legal proceedings.
Item 3. Changes in and Disagreements with Accountants
The Company has not changed, nor had any disagreements with, its
independent certified accountants.
Item 4. Recent Sales of Unregistered Securities
In April 1999, the Company engaged in the acquisition of Skreem.com
Corporation, a Nevada corporation, through the exchange of shares of the
Company's common stock for all of the issued and outstanding shares of common
stock of Skreem. The Company relied on exemptions from the registration
provisions of the Securities Act of 1933, as amended (the "Securities Act")
for the issuance of the shares. There were four shareholders of Skreem at the
time of the acquisition. All shares issued to the Skreem shareholders are
considered "restricted securities" by the Company.
In April and May of 1999, the Company completed the sale of 1,000,000
shares of its common stock raising $1,000,000 in a private placement conducted
under Rule 504 of Regulation D promulgated under the Securities Act of 1933,
as amended (the "Securities Act"). The Company filed a form D with the SEC
and made the appropriate New York state filings. All shares of stock issued
were deemed to be "restricted securities" as that term is defined in the
Securities Act and the share certificates have been marked indicating the
shares are "restricted."
Item 5. Indemnification of Directors and Officers
Section 145 of the Delaware Corporation Law provides in relevant parts as
follows:
(1) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
<PAGE> 13
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or on
a plea 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 he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the feet that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only
to the extent that the court in which such action or suit was brought shall
determine on application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in 1) or (2) of this subsection, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(4) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
a person.
The foregoing discussion of indemnification merely summarizes certain
aspects of indemnification provisions and is limited by reference to the above
discussed sections of the Delaware Corporation Law.
The Registrant's certificate of incorporation and bylaws provide that the
Registrant "may indemnify" to the full extent of its power to do so, all
directors, officers, employees, and/or agents. It is anticipated that the
Registrant will indemnify its officers and directors to the full extent
permitted by the above-quoted statute.
Insofar as indemnification by the Registrant for liabilities arising
under the Securities Act may be permitted to officers and directors of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant
is aware that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
<PAGE> 14
PART F/S
--------
Financial Statements and Supplementary Data:
- -------------------------------------------
CONTENTS
PAGE
_ Independent Auditors' Report 15
_ Balance Sheets, June 30, 1999
and 1998 16
_ Statements of Operations for the
year ended June 30, 1999, and
From May 17, 1989 (inception) to June 30, 1999 17
_ Statement of Stockholders' Equity,
from inception on May 17,1989 through
June 30, 1999 18
_ Statements of Cash Flows for the
year ended June 30, 1998, and
from inception on May 17, 1989 through
June 30, 1999 19
- Notes to Financial Statements 20
<PAGE>
<PAGE> 15
ANDERSEN, ANDERSEN & STRONG, L.C.
Certified Public Accounts and Business Consultants
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors
Skreem.com Corporation
Salt Lake City, Utah
We have audited the balance sheets of Skreem.com Corporation (a development
stage company) at June 30, 1999, December 31, 1998, and December 31, 1997 and
the related 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 the period from inception (May 17, 1989) 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 audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinions.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Skreem.com Corporation at
June 30, 1999, December 31, 1998 and December 31, 1997, and the results of its
operations and cash flows for the six months ended June 30, 1999 and the years
ended December 31, 1998, 1997 and the period from inception (May 17, 1989) to
June 30, 1999 in conformity with generally accepted accounting principles.
/S/ ANDERSEN ANDERSEN & STRONG, L.C.
Salt Lake City, Utah
September 29, 1999
<PAGE>
<PAGE> 16
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
BALANCE SHEETS
June 30, 1999 and December 31, 1998
June 30, Dec. 31,
1999 1998
----------- -----------
ASSETS
CURRENT ASSETS:
Cash $ 794,060 $ -
----------- -----------
Total current assets 794,060 -
EQUIPMENT:
Office equipment 10,998 -
Accumulated depreciation ( 716) -
----------- -----------
10,282 -
OTHER ASSETS:
Organization costs net of amortization 858 -
----------- -----------
$ 805,200 $ -
=========== ===========
LIABILITIES AND STOCKHOLDER'S EQUITY
CURRENT LIABILITIES:
Accrued expenses and payroll liabilities $ 15,277 $ -
----------- -----------
Total current liabilities 15,277 -
STOCKHOLDERS EQUITY:
Common stock, par value $.01;
authorized 30,000,000 shares; issued and
outstanding 13,420,315 and 2,920,200 134,203 29,202
Capital in excess of par value 861,561 62,218
Receivable on shares issued - (4,500)
Deficit accumulated during the
development state (205,841) (86,920)
----------- -----------
Total stockholders' equity 805,200 -
----------- -----------
$ 805,200 $ -
=========== ===========
See accompanying notes to financial statements
<PAGE>
<PAGE> 17
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
Statements of Operations
Six Months Ended June 30, 1999, and the Years
Ended December 31, 1998 and 1997
And Inception (May 17, 1989) Through June 30, 1999
<TABLE>
<CAPTION>
Inception
Through
June 30, Dec. 31, Dec.31, June 30,
1999 1998 1997 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
REVENUE
Interest income $ 5,697 $ - $ - $ -
---------- ----------- ----------- ----------
EXPENSES:
General and administrative 123,824 8,470 13,450 210,744
Depreciation and amortization 794 - - 794
---------- ---------- ---------- ----------
Total expenses 124,618 8,470 13,450 211,538
---------- ---------- ---------- ----------
NET LOSS $ (118,921) $ (8,470) $ (13,450) $ (205,841)
========== ========== ========== ==========
Net loss per common share
Basic $ (.01) $ (.01) $ (.01) $ -
=========== ========== ========== ==========
Wieghted average shares outstanding
Basic 8,048,376 1,363,029 1,335,000 -
=========== ========== =========== ==========
</TABLE>
See accompanying notes to financial statements
<PAGE>
<PAGE> 18
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
Statement of Stockholders' Equity (Deficit)
Period From Date of Inception (May 17, 1989) Through June 30, 1999
<TABLE>
<CAPTION>
Common Common Capitol In Receivable
Stock Stock Excess of On Shares Accumulated
Shares Amount Par Value Issued (Deficit) Total
----------- ----------- ----------- ----------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Issuance of shares of common
stock on May 17, 1989 for
professional services rendered
at $.02 1,200,057 $ 12,001 $ 7,999 - $ - $ 20,000
Accumulated deficit - period May
17, 1989 to December 31, 1995 - - - - ( 20,000) ( 20,000)
Issuance of shares of common
stock during 1996 for cash
at $.33 30,000 300 9,700 - - 10,000
Issuance of shares of common
stock during 1996 for professional
services rendered at $.33 105,000 1,050 33,950 - - 35,000
Net loss year ended December 31,
1996 - - - - ( 45,000) ( 45,000)
Net loss year ended December 31,
1997 - - - - ( 13,450) ( 13,450)
----------- ----------- ----------- ----------- ----------- -----------
Balance December 31, 1997 1,335,057 13,351 51,649 - ( 78,450) ( 13,450)
----------- ------------ ----------- ----------- ----------- -----------
Issuance of shares of common
stock during 1998 in settlement
of accrued liabilities for
professional services at $.02 1,315,258 13,152 8,768 - - 21,920
Issuance of shares of common
stock during 1998 for a
commitment to provide future
capital at $.02 270,000 2,700 1,800 ( 4,500) - -
Net loss year ended December 31,
1998 - - - - ( 8,470) ( 8,470)
----------- ----------- ----------- ----------- ----------- -----------
Balance December 31, 1998 2,920,315 $ 29,203 62,217 $( 4,500) $( 86,920) $ -
----------- ----------- ----------- ----------- ----------- -----------
Issuance of shares of common
stock during 1999 to acquire
wholly owned subsidiary at $.00 9,600,000 96,000 ( 86,000) - - 10,000
Issuance of common stock during
1999 for cash at $.99 900,000 9,000 885,344 - - 894,344
Commitment to provide future
capital satisfied - - - 4,500 - 4,500
Net loss for six months ended
June 30, 1999 - - - - ( 118,921) ( 118,921)
----------- ----------- ----------- ----------- ----------- -----------
Balance June 30, 1999 13,420,315 134,203 861,561 $ $( 205,841) $ 789,923)
=========== ============ ============ ============= ============= =============
</TABLE>
See accompanying notes to financial statements
<PAGE>
<PAGE> 19
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
Statements of Cash Flows
Six Months Ended June 30, 1999, and the Years
Ended December 31, 1998 and 1997
And Inception (May 17, 1989) Through June 30, 1999
<TABLE>
<CAPTION>
Inception
Through
June 30, Dec. 31, Dec. 31, June 30,
1999 1999 1999 1999
----------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (118,921) $ ( 8,470) $ (13,450) $ (205,841)
Adjustment to reconcile net loss to
net cash used by operating activities:
Depreciation and amortization 741 - - 794
Increase (decrease) in accounts payable-accrued expenses 15,277 (13,450) 13,450 15,277
Expenses paid with common 9,500 21,920 - 86,420
----------- ----------- ---------- -----------
Net cash (used) by operations ( 93,350) - - (103,350)
----------- ----------- ---------- -----------
CASH FLOW FROM INVESTING ACTIVITIES:
Purchase of equipment ( 10,998) - - ( 10,998)
Increase in organization ( 936) - - ( 936)
----------- ----------- ---------- -----------
( 11,934) - - ( 11,934)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common
stock for cash 899,344 - - 909,344
----------- ----------- ---------- -----------
Net cash provided from financing activities 899,344 - - 909,344
NET INCREASE IN CASH 794,060 - - 794,060
Cash, beginning - - - -
----------- ----------- ----------- -----------
Cash, ending $ 794,060 - $ - $ 794,060
=========== =========== =========== ===========
SUPPLEMENTAL DISCLOSURES:
Non cash financing activities:
Issuance of common stock for expenses $ 9,500 $ 21,920 $ - $ 86,420
=========== ========== =========== ===========
</TABLE>
See accompanying notes to financial statements.
<PAGE>
<PAGE> 20
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND BUSINESS ACTIVITY
Business activity
- -----------------
The Company, a Delaware corporation was incorporated on May 17, 1989, and is
currently in the development stage. The Company intends to acquire and
develop high technology software firms.
In April 1999 the Company changed its name from Commerce Centers Corporation
to Skreem.com Corporation and approved a reverse stock split of 3 shares of
outstanding stock for 5 shares. The report has been prepared as if the stock
split had occurred at inception.
Accounting method
- -----------------
The Company's financial statements are prepared using the accrual method of
accounting.
Principles of consolidation
- ---------------------------
The consolidated financial statements include the accounts of Skreem.com
Corporation, a Nevada corporation. All material intercompany transactions
have been eliminated.
Computer software costs
- -----------------------
The Company expenses research and development costs related to software
development that has not reached technological feasibility and started
production for sale. Thereafter costs are capitalized and amortized over a
maximum of five years or expected life of the product, whichever is less.
Computer research and development costs of $16,959 were incurred in the
current period ended June 30, 1999.
Income (loss) per share
- -----------------------
The computation of income (loss) per share of common stock is based on the
weighted average number of shares outstanding, after the stock split.
Statement of cash flows
- -----------------------
The Company considers all highly liquid debt instruments purchased with a
maturity of three months or less to be cash equivalents for purposes of the
statement of cash flows.
<PAGE>
<PAGE> 21
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENT
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND BUSINESS ACTIVITY
(continued)
Financial instruments
- ---------------------
The Company estimates that the fair value of all financial instruments at June
30, 1999, December 31, 1998 and 1997 does not differ materially from the
aggregate carrying values of its financial instruments recorded in the
accompanying balance sheets.
Dividend policy
- ---------------
The Company has not yet adopted a policy regarding payment of dividends.
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.
2. INCOME TAXES
The Company complies with Statement of Financial Accounting Standards No. 109,
Accounting for Income Taxes. At June 30, 1999 the Company had a net operating
loss ("NOL") carry forward for United States income tax purposes of
approximately $205,841. The NOL carryforward expires in increments beginning
in 2004. The Company's ability to utilize its net NOL carryforward is subject
to the realization of taxable income in future years, and under certain
circumstances, the Tax Reform Act of 1986 restricts a corporation's use of its
NOL carryforward. The Company believes that there is at least a 50% chance
that the carryforward will expire unused, therefore, any tax benefit from the
loss carryforward has been fully offset by a valuation reserve.
3. ACQUISITION OF NEVADA SKREEM.COM CORPORATION
In April 1999 the Company, Skreem.com Corporation, a Delaware corporation
("SCD") acquired all of the outstanding stock of Skreem.com Corporation, a
Nevada corporation ("SCN") through a stock for stock exchange in which the
stockholders of SCN received 9,600,000 post stock split common shares of the
SCD in exchange for all of the stock of the SCN. Skreem.com Corporation
("SCN") was incorporated in Nevada on January 29, 1999 for the purpose of
developing high technology software. For reporting purposes, the acquisition
is treated as an acquisition of the Company ("SCD") by Skreem.com Corporation
of Nevada ("SCN") (reverse acquisition) and a recapitalization of SCN
with its historical financial statements being combined with the Company's.
No proforma statements have been included since the acquisition is considered
to be a reverse acquisition.
<PAGE> 22
SKREEM.COM CORPORATION AND SUBSIDIARY
(A Development Stage Company)
NOTES TO FIANANCIAL STATEMENTS (continued)
4. "Y2K"
Many computer programs have been written using two digits rather than four to
identify the year. Any computer programs that have date-sensitive software
may recognize a date using "00" as the year 1900 rather than the year 2000.
This could result in a system failure or miscalculations causing disruptions
of operations, including, among other things, a temporary inability to process
transactions, send invoices, or engage in similar normal business activities.
This situation is commonly referred as "Y2K". The Company's computer
equipment and software are year 2000 compliant.
5. RELATED PARTY TRANSACTIONS
During February 1998, the Company issued 1,585,258 post stock split shares to
five major stockholders and two persons who were both officers and directors.
The consideration for the issuance was assumption of the Company's accrued
liabilities in the amount of $21,920 by the above mentioned shareholders, and
the agreement by them to fund future Company expenditures in the amount of
$4,500.
The shares issued pursuant to the acquisition agreement as described in note 3
were issued to four individuals who collectively represent a controlling
interest of the Company.
<PAGE>
<PAGE> 23
PART III
--------
ITEM 1. INDEX TO EXHIBITS
- -------------------------
Copies of the following documents are included as exhibits to this Form
10-SB pursuant to item 601 of regulation S-B.
SEC
Exhibit Reference
No. No. Title of Document
- ------- --------- -----------------
2 2.01 Plan and Agreement of Reorganization by and between
Commerce Centers Corporation and Skreem.com Corporation
3(i) 3.01 Articles of Incorporation of the Company and related
Amendments
3(i) 3.02 Article IV of the Articles of Incorporation
3(ii) 3.03 Bylaws of the Company
4 4.01 Specimen Stock Certificate
27 27 Financial Data Schedule
SIGNATURES
------------
In accordance with Section 12 of the Securities Exchange Act of 1934, the
Registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunder duly authorized.
SKREEM.COM CORPORATION
/S/ Signature
- -----------------------------
By: Thomas Tedrow, President
In accordance with Section 12 of the Securities Exchange Act of 1934, the
Registrant caused this registration statement to be signed on its behalf by
the undersigned in the capacities and on the dates stated.
Signature Title Date
- --------- ----- ----
/s/ signature
- ---------------
Thomas Tedrow President, Director October 22, 1999
/s/ signature
- ---------------
Mike Reynolds Director October 22, 1999
/s/ signature
- ---------------
Jacob Nguyen Treasurer, Secretary,
Chief Financial Officer
Director October 22, 1999
<PAGE>
EXHIBIT 3.01
CERTIFICATE OF INCORPORATION
OF
Commerce Centers Corporation
FIRST. The name of this corporation is
Commerce Centers Corporation
SECOND. Its registered office in the State of Delaware is to be located at
750 Market Street in the City of Washington, County of New Castle. The
registered agent in charge thereof is The Company Corporation at "same as
above"
THIRD. The nature of the business and, the objects and purposes proposed to
be transacted, promoted and carried on, are to do any or all the things
herein mentioned, as fully and to the same extent as natural persons might or
could do, and in any part the world, viz: "The purpose of the corporation is
to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware."
FOURTH. The amount of the total authorized capital stock of this corporation
is 30,000,000 Shares of $.01 Par Value.
FIFTH. The name and mailing address of the incorporator is as follows:
NAME: ADDRESS:
Carol Saienni 725 Market St. Wilmington DE 19801
SIXTH. The powers of the incorporator are to terminate upon filing of the
certificate of incorporation, and the names(s) and mailing address(es) of
persons who are to serve as director(s) until the first annual meeting of
stockholders or until their successors are elected and qualify are as follows:
Name and address of director(s)
Claude Smith 170 Smith St., Calhoun, KY 42327
Harry R. Cross P.O. Box 2565, Morgan City, LA 70380
SEVENTH. The Directors shall have power to make and to alter or amend the
By-Laws; to fix the amount to be reserved as working capital, and to authorize
and cause to be executed, mortgages and liens without limit as to the amount,
upon the property and franchise of the Corporation.
With the consent in writing and pursuant to a vote of the holders of a
majority of the capital stock issued and outstanding, the Directors shall have
the authority to dispose, in any manner, of the whole property of this
corporation.
The By-Laws shall determine whether and to what extent the accounts and
books of this corporation, or any of them shall be open to the inspection of
the stockholders; and no stockholder shall have any right of inspecting any
account, or book or document of this Corporation, except as conferred by the
law or the By-Laws, or by resolution of the stockholders.
The stockholders and directors shall have power to hold their meetings and
keep the books, documents and papers of the Corporation outside of the State
of Delaware, as such places as may be from time to time designated by the By-
Laws or by resolution of the stockholders or directors, except as otherwise
required by the laws of Delaware.
<PAGE> 2
It is the intention that the objects, purposes and powers specified in the
Third paragraph hereof shall, except where otherwise specified in said
paragraph, be nowise limited or restricted by reference to or inference from
the terms of any other clause or paragraph in this certificate of
incorporation, but that the objects, purposes and powers specified in the
Third paragraph and in each of the clauses or paragraphs of this charger shall
be regarded as independent objects, purposes and powers.
EIGHTH. Directors of the corporation shall not be liable to either the
corporation or its stockholders for monetary damages for a breach of fiduciary
duties unless the breach involves; (1) a director's duty of loyalty to the
corporation or its stockholders; (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law: (3)
liability for unlawful payments of dividends or unlawful stock purchases or
redemption by the corporation; or (4) a transaction from which the director
derived an improper personal benefit.
I, THE UNDERSIGNED, for the purpose of forming a Corporation under the laws
of the State of Delaware, do make, file and record this Certificate and do
certify that the facts herein are true; and I have accordingly hereunt set may
hand.
DATE AT: 5/17/89
-------
State of Delaware
--------
County of New Castle
------------
/S/ signature
Carol Saienni
-----------------
<PAGE> 1
EXHIBIT 2.01
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made this
1st day of April 1999, by and among Commerce Center Corporation, a Delaware
corporation ("Commerce"); Skreem.com, Corporation, a Nevada corporation
("Skreem"); and the persons listed in Exhibit A-1 hereof who are the owners of
record of all the issued and outstanding stock of Skreem who execute and
deliver the Agreement ("Skreem Stockholders"), based on the following:
Recitals
Commerce wishes to acquire all the issued and outstanding stock of Skreem
in exchange for stock of Commerce in a transaction intended to qualify as a
tax-free exchange pursuant to section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended. The parties intend for this Agreement to represent
the terms and conditions of such tax-free reorganization, which Agreement the
parties hereby adopt.
Agreement
Based on the stated premises, which are incorporated herein by reference,
and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, it is hereby agreed as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01 Exchange of Shares. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 1.05
hereof), the Skreem Stockholders shall assign, transfer, and deliver to
Commerce, free and clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description, all issued and
outstanding shares of common stock of Skreem (the "Skreem Shares") held by
Skreem Stockholders which shares shall represent all issued and outstanding
shares of Skreem common stock, and Commerce agrees to acquire such shares on
such date by issuing and delivering in exchange therefor an aggregate of
16,000,000 restricted shares of Commerce common stock, par value $0.001 per
share, (the "Commerce Common Stock"). Such shares of Commerce Common Stock
shall be issued pro rata based on the number of Skreem Shares held and as set
forth opposite the Skreem Stockholder's respective names in Exhibit A-1. All
16,000,000 shares of Commerce Common Stock to be issued and delivered pursuant
to this Agreement shall be appropriately adjusted to take into account any
stock split, stock dividend, reverse stock split, recapitalization, or similar
change in the Commerce Common Stock which may occur between the date of the
execution of this Agreement and the Closing Date.
1.02 Delivery of Certificates by Skreem Stockholders. The transfer of
Skreem Shares by the Skreem Stockholders shall be effected by the delivery to
Commerce at the Closing (as set forth in Section 1.05 hereof) of certificates
representing the transferred shares endorsed in blank or accompanied by stock
powers executed in blank, with all signatures medallion guaranteed and with
all necessary transfer taxes and other revenue stamps affixed and acquired at
the Skreem Stockholders' expense.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, Commerce will own all the issued and
outstanding shares of Skreem and Skreem will be a wholly-owned subsidiary of
Commerce operating under the name Skreem.com, Corporation.
<PAGE> 2
1.04 Further Assurances. At the Closing and from time to time
thereafter, the Skreem Stockholders shall execute such additional instruments
and take such other action as Commerce may reasonably request, without undue
cost to the Skreem Stockholders in order to more effectively sell, transfer,
and assign clear title and ownership in the Skreem Shares to Commerce.
1.05 Closing and Parties. The Closing contemplated hereby shall be held
at a mutually agreed upon time and place on or before April 15, 1999, or on
another date to be agreed to in writing by the parties (the "Closing Date").
The Agreement may be closed at any time following approval by a majority of
the shareholders of Commerce Common Stock as set forth in Section 4.02 hereof
and the Skreem Stockholders as set forth in Section 5.02. The Closing may be
accomplished by wire, express mail, overnight courier, conference telephone
call or as otherwise agreed to by the respective parties or their duly
authorized representatives.
1.06 Closing Events.
(a) Commerce Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article IV, Commerce shall deliver to Skreem at
Closing all the following:
(i) A certificate of good standing from the secretary of State of
Delaware, issued as of a date within sixty days prior to the Closing Date,
certifying that Commerce is in good standing as a corporation in the State of
Delaware;
(ii) Incumbency and specimen signature certificates dated the
Closing Date with respect to the officers of Commerce executing this Agreement
and any other document delivered pursuant hereto on behalf of
Commerce;
(iii) Copies of the resolutions of Commerce's board of directors
and shareholder minutes or consents authorizing the execution and performance
of this Agreement and the contemplated transactions, certified by the
secretary or an assistant secretary of Commerce as of the Closing Date;
(iv) The certificate contemplated by Section 4.02, duly executed
by the chief executive officer of Commerce;
(v) The certificate contemplated by Section 4.03, dated the
Closing Date, signed by the chief executive officer of Commerce;
(vi) Certificates for 16,000,000 shares of Commerce Common Stock in
the names of the Skreem Stockholders and in the amounts set forth in Exhibit
"A;" and
In addition to the above deliveries, Commerce shall take all steps and actions
as Skreem and Skreem Stockholders may reasonably request or as may otherwise
be reasonably necessary to consummate the transactions contemplated hereby.
(b) Skreem Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article V, Skreem and/or Skreem Stockholder's shall
deliver to Commerce at Closing all the following:
(i) A certificate of good standing from the secretary of state of
Nevada, issued as of a date within five days prior to the Closing Date
certifying that Skreem is in good standing as a corporation in the State of
Nevada;
<PAGE> 3
(ii) Incumbency and specimen signature certificates dated the
Closing Date with respect to the officers of Skreem executing this Agreement
and any other document delivered pursuant hereto on behalf of Skreem;
(iii) Copies of resolutions of the board of directors and of the
stockholders of Skreem authorizing the execution and performance of this
Agreement and the contemplated transactions, certified by the secretary or an
assistant secretary of Skreem as of the Closing Date;
(iv) The certificate contemplated by Section 5.03, executed by the
chief operating officer of Skreem; and
(v) The certificate contemplated by Section 5.04, dated the
Closing Date, signed by the chief operating officer of Skreem.
In addition to the above deliveries, Skreem shall take all steps and actions
as Commerce may reasonably request or as may otherwise be reasonably necessary
to consummate the transactions contemplated hereby.
1.07. Termination
(a)This Agreement may be terminated by the board of directors of either
Commerce or Skreem at any time prior to the Closing Date if:
(i) There shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this Agreement and
which, in the reasonable judgment of such board of directors, made in good
faith and based upon the advice of its legal counsel, makes it inadvisable to
proceed with the transactions contemplated by this Agreement;
(ii) Any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions or in the reasonable judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial likelihood
that any such approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making it
inadvisable to proceed with the exchange;
In the event of termination pursuant to this paragraph (a) of Section 1.07, no
obligation, right, or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
preparation, and execution of this Agreement and the transactions contemplated
hereby.
(b) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Commerce if (i) shareholders of
Commerce owning more than five percent (5%) of the issued and outstanding
shares of Commerce Common Stock perfect their dissenter's rights with respect
to the approval of this Agreement and the transactions contemplated hereby,
(ii) Skreem shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Skreem contained herein shall be inaccurate
in any material respect or (iii) Commerce determines that there has been or is
likely to be any material adverse change in the financial or legal condition
of Skreem. In the event of termination pursuant to this paragraph (b) of this
section 1.07, no obligation, right, remedy, or liability shall arise
hereunder. All parties shall bear their own costs incurred in connection with
<PAGE> 4
the negotiation, preparation, and execution of this Agreement and the
transactions contemplated hereby.
(c) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of Skreem if (i) shareholders of Skreem
owning more than five percent (5%) of the issued and outstanding shares of
Skreem Shares perfect their dissenter's rights with respect to the approval of
this Agreement and the transactions contemplated hereby, (ii) Commerce shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
Commerce contained herein shall be inaccurate in any material respect, or
(iii) Skreem determines that there has been or is likely to be any adverse
change in the financial or legal condition of Commerce. In the event of
termination pursuant to this paragraph (c) of this section 1.07, no
obligation, right, remedy, or liability shall arise hereunder. All parties
shall each bear their own costs incurred in connection with the negotiation,
preparation, and execution of this Agreement and the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF COMMERCE
As an inducement to, and to obtain the reliance of Skreem, Commerce
represents and warrants as follows:
2.01 Organization. Commerce is, and will be on the Closing Date, a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and has the corporate power and is and will be
duly authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own all of
its properties and assets and to carry on its business in all material
respects as it is now being conducted, and there are no other jurisdictions in
which it is not so qualified in which the character and location of the assets
owned by it or the nature of the material business transacted by it requires
qualification, except where failure to do so would not have a material adverse
effect on its business, operations, properties, assets or condition. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement in accordance with the terms
hereof will not, violate any provision of Commerce's articles of incorporation
or bylaws, or other agreement to which it is a party or by which it is bound.
2.02 Approval of Agreement. Commerce has full power, authority, and
legal right and has taken, or will take, all action required by law, its
articles of incorporation, bylaws, and otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The board
of directors of Commerce has authorized and approved the execution, delivery,
and performance of this Agreement and the transactions contemplated hereby;
subject to the approval of the Commerce shareholders and compliance with state
and federal corporate and securities laws.
2.03 Capitalization. The authorized capitalization of Commerce consists
of 30,000,000 shares, of common stock, $0.01 par value, of which 4,876,000
shares are issued and outstanding. All issued and outstanding shares of
Commerce are legally issued, fully paid, and nonassessable and not issued in
violation of the preemptive or other right of any person. There are no
dividends or other amounts due or payable with respect to any of the shares of
capital stock of Commerce.
<PAGE>
<PAGE> 5
2.04. Financial Statements.
(a) Included in Schedule 2.04 are the audited balance sheets of
Commerce as of December 31, 1998, and 1997, and the related statements of
operations, stockholders' equity (deficit), and cash flows for the fiscal year
ended September 30, 1995, and 1994, and from inception (October 31, 1985)
through September 30, 1995, including the notes thereto, and the accompanying
report of Andersen, Andersen and Strong; independent certified public
accountants. At or prior to the Closing Date, Commerce shall deliver the
unaudited balance sheet of Commerce as of March 31, 1999, and the related
statements of operations, stockholders' equity (deficit), and cash flows for
the three months ended March 31, 1999, together with the notes thereto and
representations by the principal accounting and financial officer of Commerce
to the effect that such financial statements contain all adjustments (all of
which are normal recurring adjustments) necessary to present fairly the
results of operations and financial position for the periods and as of the
dates indicated and such financial statements shall not reflect any material
changes since the December 31, 1998, financial statements.
(b) The financial statements of Commerce delivered pursuant to Section
2.04(a) have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved as explained
in the notes to such financial statements. The Commerce financial statements
present fairly, in all material respects, as of their respective dates, the
financial position of Commerce. Commerce did not have, as of the date of any
such financial statements, except as and to the extent reflected or reserved
against therein, any liabilities or obligations (absolute or contingent) which
should be reflected therein in accordance with generally accepted accounting
principles, and all assets reflected therein presently fairly the assets of
Commerce in accordance with generally accepted accounting principles
(c) Commerce has filed or will file as the Closing Date all tax returns
required to be filed by it from inception to the Closing Date. All such
returns and reports are accurate and correct in all material respect.
Commerce has no material liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any deficiencies,
interest, or penalties) accrued for or applicable to the period ended on the
date of the most recent balance sheet of Commerce, except to the extent
reflected on such balance sheet and all such dates and years and periods prior
thereto and for which Commerce may at said date have been liable in its own
right or as transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued but not yet due and payable,
and to the best knowledge of Commerce, no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or contemplated. To
the best knowledge of Commerce, none of such income tax returns has been
examined or is currently being examined by the Internal Revenue Service and no
deficiency assessment or proposed adjustment of any such return is pending,
proposed or contemplated. Commerce has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate solely
to methods of accounting, depreciation, or amortization) that would have a
material adverse affect on Commerce, its financial condition, its business as
presently conducted or proposed to be conducted, or any of its respective
properties or material assets. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any tax return of
Commerce.
2.05 Outstanding Warrants and Options. Commerce has no existing
warrants or options, calls, or commitments of any nature relating to the
authorized and unissued Commerce Common Stock.
<PAGE> 6
2.06 Information. The information concerning Commerce set forth in this
Agreement is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading. Commerce shall cause the schedules
delivered by it pursuant hereto and the instruments delivered to Skreem
hereunder to be updated after the date hereof up to and including the Closing
Date.
2.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the schedules hereto, since the date of the most recent Commerce
balance sheet described in Section 2.04 and included in the information
referred to in Section 2.06:
(a) There has not been (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of Commerce
or (ii) any damage, destruction, or loss to Commerce (whether or not covered
by insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions of Commerce;
(b) Commerce has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any of
its capital stock; (iii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of Commerce; (iv) made any
material change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual or
arrangement for or payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or employee;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any increase in any profit-
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement made to, for, or with its
officers, directors, or employees;
(c)Commerce has not (i) granted or agreed to grant any options, warrants,
or other rights for its stocks, bonds, or other corporate securities calling
for the issuance thereof; (ii) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent Commerce
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer,
any of its material assets, properties, or rights (except assets, properties,
or rights not used or useful in its business which, in the aggregate have a
value of less than $5,000 or canceled, or agreed to cancel, any debts or
claims (except debts and claims which in the aggregate are of a value of less
than $5,000); (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such amendment or
termination is material, considering the business of Commerce; or (vi) issued,
delivered, or agreed to issue or deliver any stock, bonds, or other corporate
securities including debentures (whether authorized and unissued or held as
treasury stock); and
<PAGE> 7
(d) To the best knowledge of Commerce, it has not become subject to any
law or regulation which materially and adversely affects, or in the future
would be reasonably expected to adversely affect, the business, operations,
properties, assets, or condition of Commerce.
2.08 Litigation and Proceedings. There are no material actions, suits,
or administrative or other proceedings pending or, to the knowledge of
Commerce, threatened by or against Commerce or adversely affecting Commerce or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of
any kind. Commerce does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or
instrumentality.
2.09 Compliance With Laws and Regulations. Commerce has complied with
all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
(i) could not materially and adversely affect the business, operations,
properties, assets, or condition of Commerce or (ii) could not result in the
occurrence of any material liability for Commerce. To the best knowledge of
Commerce, the consummation of this transaction will comply with all applicable
statutes and regulations, subject to the preparation and filing of any forms
required by state and federal securities laws.
2.10 Material Contract Defaults. Commerce is not in default in any
material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets, or condition of Commerce, and there is no event of default
or other event which, with notice or lapse of time or both, would constitute a
default in any material respect under any such contract, agreement, lease, or
other commitment in respect of which Commerce has not taken adequate steps to
prevent such a default from occurring.
2.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed
of trust, or other material contract, agreement, or instrument to which
Commerce is a party or to which any of its properties or operations are
subject.
2.12 Subsidiary. Commerce does not own, beneficially or of record, any
equity securities in any other entity.
2.13 Commerce Schedules. Commerce has delivered to Skreem the following
schedules, which are collectively referred to as the "Commerce Schedules" and
which consist of the following separate schedules dated as of the date of
execution of this Agreement, all certified by a duly authorized officer of
Commerce as complete, true, and accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of Commerce in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Commerce approving this Agreement and the transactions herein
contemplated;
<PAGE> 8
(c) A schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or condition
of Commerce since the most recent Commerce balance sheet, required to be
provided pursuant to Section 2.04 hereof;
(d) A schedule setting forth the financial statements required pursuant
to Section 2.04(a) hereof; and
(e) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Commerce
Schedules by Sections 2.01 through 2.12.
Commerce shall cause the Commerce Schedules and the instruments delivered to
Skreem hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date.
Such updated Commerce Schedules, certified in the same manner as the original
Commerce Schedules, shall be delivered prior to and as a condition precedent
to the obligation of Skreem to close.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF SKREEM
As an inducement to, and to obtain the reliance of, Commerce, Skreem
represents and warrants as follows:
3.01 Organization. Skreem is, and will be on the Closing Date, a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada and has the corporate power and is and will be
duly authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own all of
its properties and assets and to carry on its business in all material
respects as it is now being conducted, and there are no other jurisdictions in
which it is not so qualified in which the character and location of the assets
owned by it or the nature of the material business transacted by it requires
qualification, except where failure to do so would not have a material adverse
effect on its business, operations, properties, assets or condition of Skreem.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not, violate any provision of Skreem's articles of incorporation
or bylaws, or other material agreement to which it is a party or by which it
is bound.
3.02 Approval of Agreement. Skreem has full power, authority, and legal
right and has taken, or will take, all action required by law, its articles of
incorporation, bylaws, or otherwise to execute and deliver this Agreement and
to consummate the transactions herein contemplated. The board of directors of
Skreem have authorized and approved the execution, delivery, and performance
of this Agreement and the transactions contemplated hereby; subject to the
approval of the Skreem Stockholders and compliance with state and federal
corporate and securities laws.
3.03 Capitalization. The authorized capitalization of Skreem consists of
25,000 shares, consisting of common stock, no par value, of which as of the
date hereof 25,000 shares are issued and outstanding. All issued and
outstanding shares of Skreem are legally issued, fully paid, and nonassessable
and not issued in violation of the preemptive or other right of any person.
There are no dividends or other amounts due or payable with respect to any of
the shares of capital stock of Skreem.
<PAGE> 9
3.04 Financial Statements.
(a) Included in Schedule 3.04 are the audited balance sheet of Skreem as
of February 28, 1999, and the related statements of operations, cash flows,
and stockholders' equity for the period from inception on January 29, 1999, to
February 28, 1999, including the notes thereto, and the accompanying report
of Anderson, Anderson & Strong, independent certified public accountants. At
or prior to the Closing Date, Skreem shall deliver the unaudited balance sheet
of Skreem as of March 31, 1999, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the three months ended
March 31, 1999, together with the notes thereto and representations by the
chief operating officer of Skreem to the effect that such financial statements
contain all adjustments (all of which are normal recurring adjustments)
necessary to present fairly the results of operations and financial position
for the periods and as of the dates indicated.
(b) The audited financial statements delivered pursuant to Section
3.04(a) have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The
financial statements of Skreem present fairly, as of their respective dates,
the financial position of Skreem. Skreem did not have, as of the date of any
such balance sheets, except as and to the extent reflected or reserved against
therein, any liabilities or obligations (absolute or contingent) which should
be reflected in any financial statements or the notes thereto prepared in
accordance with generally accepted accounting principles, and all assets
reflected therein present fairly the assets of Skreem, in accordance with
generally accepted accounting principles. The statements of revenue and
expenses and cash flows present fairly the financial position and result of
operations of Skreem as of their respective dates and for the respective
periods covered thereby.
3.05 Outstanding Warrants and Options. Skreem has no issued warrants or
options, calls, or commitments of any nature relating to the authorized and
unissued Skreem Common Stock.
3.06 Information. The information concerning Skreem set forth in this
Agreement and in the schedules delivered by Skreem pursuant hereto is complete
and accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required to make
the statements made, in light of the circumstances under which they were made,
not misleading. Skreem shall cause the schedules delivered by Skreem pursuant
hereto to Commerce hereunder to be updated after the date hereof up to and
including the Closing Date.
3.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement since the date of the most recent Skreem balance sheet described in
Section 3.04 and included in the information referred to in Section 3.06:
(a) There has not been (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of Skreem or
(ii) any damage, destruction, or loss to Skreem materially and adversely
affecting the business, operations, properties, assets, or conditions of
Skreem.
(b) Skreem has not (i) amended its articles of incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any payment of dividends
or distributions of any assets of any kind whatsoever to stockholders or
<PAGE> 10
purchased or redeemed, or agreed to purchase or redeem, any of its capital
stock; (iii) waived any rights of value which in the aggregate are
extraordinary and material considering the business of Skreem; (iv) made any
material change in its method of accounting; (v) entered into any other
material transactions other than those contemplated by this Agreement; (vi)
made any material accrual or material arrangement for or payment of bonuses or
special compensation of any kind or any severance or termination pay to any
present or former officer or employee; or (vii) made any material increase in
any profit-sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement made to,
for, or with their officers, directors, or employees;
(c) Skreem has not (i) granted or agreed to grant any options, warrants,
or other rights for its stocks, bonds, or other corporate securities calling
for the issuance thereof; (ii) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent Skreem
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer,
any of its material assets, properties, or rights, or agreed to cancel, any
material debts or claims; (v) made or permitted any amendment or termination
of any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of Skreem; or
(vi) issued, delivered, or agreed to issue or deliver any stock, bonds, or
other corporate securities including debentures (whether authorized and
unissued or held as treasury stock); and
(d) To the best knowledge of Skreem, it has not become subject to any law or
regulation which materially and adversely affects, or in the future would be
reasonably expected to adversely affect, the business, operations, properties,
assets, or condition of Skreem.
3.08 Title and Related Matters. Except as provided herein or disclosed
in the most recent Skreem balance sheet and the notes thereto, Skreem has good
and marketable title to all of its properties, inventory, interests in
properties, technology, whether patented or un-patented, including, but not
limited to the MCM chip, and assets, which are reflected in the most recent
Skreem balance sheet or acquired after that date (except properties, interests
in properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business), free and clear of all mortgages, liens, pledges,
charges, or encumbrances, except (i) statutory liens or claims not yet
delinquent; and (ii) such imperfections of title and easements as do not, and
will not, materially detract from, or interfere with, the present or proposed
use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties. To the best
knowledge of Skreem, its technology does not infringe on the copyright,
patent, trade secret, know-how, or other proprietary right of any other person
or entity and comprises all such rights necessary to permit the operation of
the business of Skreem as now being conducted or as contemplated.
3.09 Litigation and Proceedings. Except as otherwise disclosed in
Schedule 3.09, there are no material actions, suits, or proceedings pending
or, to the knowledge of Skreem, threatened by or against Skreem or adversely
affecting Skreem, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of
any kind. Skreem does not have any knowledge of any default on its part with
<PAGE> 11
respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.10 Material Contract Defaults. Skreem is not in default in any
material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets, or condition of Skreem, and there is no event of default
or other event which, with notice or lapse of time or both, would constitute a
default in any material respect under any such contract, agreement, lease, or
other commitment in respect of which Skreem has not taken adequate steps to
prevent such a default from occurring.
3.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed
of trust, or other material contract, agreement, or instrument to which Skreem
is a party or to which any of its properties or operations are subject.
3.12 Governmental Authorizations. Skreem has all licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date of this Agreement. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Skreem of this Agreement and the consummation by
Skreem of the transactions contemplated hereby.
3.13 Compliance With Laws and Regulations. Skreem has complied with all
applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations,
properties, assets, or condition of Skreem or except to the extent that
noncompliance would not result in the occurrence of any material liability for
Skreem. To the best knowledge of Skreem, the consummation of this transaction
will comply with all applicable statutes and regulations, subject to the
preparation and filing of any forms required by state and federal security
laws.
3.14 Subsidiary. Skreem does not own, beneficially or of record, any
equity securities in any other entity.
3.15 Skreem Schedules. Skreem has delivered to Commerce the following
schedules, which are collectively referred to as the "Skreem Schedules" and
which consist of the following separate schedules dated as of the date of
execution of this Agreement, and instruments and Commerce as of such date, all
certified by the chief executive officer of Skreem as complete, true, and
accurate:
(a) A schedule including copies of the articles of incorporation and
bylaws of Skreem and all amendments thereto in effect as of the date of this
Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Skreem approving this Agreement and the transactions herein
contemplated as referred to in Section 3.02;
<PAGE> 12
(c) A schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or condition
of Skreem since the most recent Skreem balance sheet, required to be provided
pursuant to Section 3.04 hereof;
(d) A schedule setting forth the financial statements required pursuant
to Section 3.04 (a) hereof; and
(e) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Skreem Schedules
by Sections 3.01 through 3.14.
Skreem shall cause the Skreem Schedules and the instruments delivered to
Commerce hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date.
Such updated Skreem Schedules, certified in the same manner as the original
Skreem Schedules, shall be delivered prior to and as a condition precedent to
the obligation of Commerce to close.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF SKREEM
The obligations of Skreem under this Agreement are subject to the
satisfaction of Skreem, at or before the Closing Date, of the following
conditions:
4.01 Shareholder Approval. Commerce shall call and hold a meeting of
its shareholders, or obtain the written consent of a majority of its
shareholders, to approve the transactions contemplated by this agreement
including the acquisition of Skreem through the issuance of Commerce Common
Stock for all of the issued and outstanding Skreem Shares, and the change of
name of Commerce to Skreem.com Corporation" or such other derivation thereof
as may be agreed to by the board of directors of Skreem.
4.02 Accuracy of Representations. The representations and warranties
made by Commerce in this Agreement were true when made and shall be true at
the Closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and Commerce shall have performed or complied
with all covenants and conditions required by this Agreement to be performed
or complied with by Commerce prior to or at the Closing. Skreem shall be
furnished with certificates, signed by duly authorized officers of Commerce
and dated the Closing Date, to the foregoing effect.
4.03 Officer's Certificates. Skreem shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
executive officer of Commerce to the effect that to such officers best
knowledge no litigation, proceeding, investigation, or inquiry is pending or,
to the best knowledge of Commerce threatened, which might result in an action
to enjoin or prevent the consummation of the transactions contemplated by this
Agreement. Furthermore, based on certificates of good standing,
representations of government agencies, and Commerce's own documents and
information, the certificate shall represent, to the best knowledge of the
officer, that:
(a) This Agreement has been duly approved by Commerce's board of
directors and shareholders and has been duly executed and delivered in the
name and on behalf of Commerce by its duly authorized officers pursuant to,
and in compliance with, authority granted by the board of directors of
Commerce pursuant to a unanimous consent;
<PAGE> 13
(b) There have been no material adverse changes in Commerce up to and
including the date of the certificate;
(c) All conditions required by this Agreement have been met, satisfied,
or performed by Commerce;
(d) All authorizations, consents, approvals, registrations, and/or
filings with any governmental body, agency, or court required in connection
with the execution and delivery of the documents by Commerce have been
obtained and are in full force and effect or, if not required to have been
obtained, will be in full force and effect by such time as may be required;
and
(e) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending or
threatened against Commerce, wherein an unfavorable decision, ruling, or
finding could have an adverse effect on the financial condition of Commerce,
the operation of Commerce, or the acquisition and reorganization contemplated
herein, or any agreement or instrument by which Commerce is bound or in any
way contests the existence of Commerce.
4.04 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business, or operations of Commerce, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any
material adverse change in the financial condition, business, or operations of
Commerce.
4.05 Good Standings. Skreem shall have received a certificate of good
standing from the secretary of state of Delaware, dated as of the date within
five days prior to the Closing Date, certifying that Commerce is in good
standing as a corporation in the State of Delaware.
4.06 Other Items. Skreem shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby
as Skreem may reasonably request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF COMMERCE
The obligations of Commerce under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
5.01. Shareholder Approval. Commerce shall call and hold a meeting of
its shareholders, or obtain through a majority written consent of its
shareholders, whereby the shareholders of Commerce authorize and approve this
Agreement and the transactions contemplated hereby.
5.02 Skreem Shareholders. Holders of all of the issued and outstanding
Skreem Shares shall agree to this Agreement and the exchange of shares
contemplated by this Agreement.
5.03 Accuracy of Representations. The representations and warranties
made by Skreem and the Skreem Stockholders in this Agreement were true when
made and shall be true at the Closing Date with the same force and affect as
if such representations and warranties were made at and as of the Closing Date
(except for changes therein permitted by this Agreement), and Skreem shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Skreem prior to or at the
Closing. Commerce shall be furnished with a certificate, signed by a duly
authorized officer of Skreem and dated the Closing Date, to the foregoing
effect.
<PAGE> 14
5.04 Officer's Certificates. Commerce shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
operating officer of Skreem to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Skreem,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government
agencies, and Skreem's own documents, the certificate shall represent, to the
best knowledge of the officer, that:
(a) This agreement has been duly approved by Skreem's board of directors
and shareholders and has been duly executed and delivered in the name and on
behalf of Skreem by its duly authorized officers pursuant to, and in
compliance with, authority granted by the board of directors of Skreem
pursuant to a unanimous consent of its board of directors and a majority vote
of its stockholders;
(b) Except as provided or permitted herein, there have been no material
adverse changes in Skreem up to and including the date of the certificate;
(c) All authorizations, consents, approvals, registrations, and/or filing
with any governmental body, agency, or court required in connection with the
execution and delivery of the documents by Skreem have been obtained and are
in full force and effect or, if not required to have been obtained will be in
full force and effect by such time as may be required; and
(d) Except as otherwise disclosed in Schedule 3.09, there is no material
action, suit, proceeding, inquiry, or investigation at law or in equity by any
public board or body pending or threatened against Skreem, wherein an
unfavorable decision, ruling, or finding would have an adverse affect on the
financial condition of Skreem, the operation of Skreem, or the acquisition and
reorganization contemplated herein, or any material agreement or instrument by
which Skreem is bound or would in any way contest the existence of Skreem.
5.05 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business or operations of Skreem, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause of create any
material adverse change in the financial condition, business, or operations of
Skreem.
5.06 Good Standing. Commerce shall have received a certificate of good
standing from the appropriate authority, dated as of a date with five days
prior to the Closing Date, certifying that the Skreem is in good standing as a
corporation in the State of Nevada.
5.07 Other Items. Commerce shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby
as Commerce may reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 Activities of Commerce and Skreem
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the respective schedules to be delivered by Commerce
and Skreem pursuant hereto or as permitted or contemplated by this Agreement,
Commerce and Skreem will each:
<PAGE> 15
(i) Carry on its business in substantially the same manner as it has
heretofore;
(ii) Maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
(iii) Perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or affecting its
assets, properties, and business;
(iv) Use its best efforts to maintain and preserve it business
organization intact, to retain its key employees, and to maintain its
relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or prior to
the Closing Date all federal, state, county, and local tax returns required to
be filed by or on behalf of such entity or for which such entity may be held
responsible and shall pay, or cause to pay, all taxes required to be shown as
due and payable on such returns, as well as all installments of tax due and
payable during the period commencing on the date of this Agreement and ending
on the Closing Date.; and
(vi) Fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and st ate laws and all
rules, regulations, and orders imposed by federal or state governmental
authorities.
(b) From and after the date of this Agreement and except as provided
herein until the Closing Date, Commerce and Skreem will not:
(i) Make any change in its articles of incorporation or bylaws;
(ii) Enter into or amend any material contract, agreement, or other
instrument of any of the types described in such party's schedules, except
that a party may enter into or amend any contract, agreement, or other
instrument in the ordinary course of business; and
(iii) Enter into any agreement for the sale of Skreem or Commerce
securities without the prior approval of the other party.
6.02 Access to Properties and Records. Until the Closing Date, Skreem
and Commerce will afford to the other party's officers and authorized
representatives full access to the properties, books, and records of the other
party in order that each party may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of Skreem
or Commerce and will furnish the other party with such additional financial
and other information as to the business and properties of Skreem or Commerce
as each party shall from time to time reasonably request.
6.03 Indemnification by Skreem. Skreem will indemnify and hold harmless
Commerce and its directors and officers, and each person, if any, who controls
Commerce within the meaning of the Securities Act, from and against any and
all losses, claims, damages, expenses, liabilities, or actions to which any of
them may become subject under applicable law (including the Securities Act and
the Securities Exchange Act) and will reimburse them for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any claims or actions, whether or not resulting in liability,
insofar as such losses, claims, damages, expenses, liabilities, or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of material fact contained in any application or statement filed
<PAGE> 16
with a governmental body or arising out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary in order to make the statements therein not misleading,
but only insofar as any such statement or omission was made in reliance upon
and in conformity with information furnished in writing by Skreem expressly
for use therein. The indemnity agreement contained in this Section 6.03 shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of Commerce and shall survive the consummation of the
transactions contemplated by this Agreement for a period of six months.
6.04. Indemnification by Commerce. Commerce will indemnify and hold
harmless Skreem, the Skreem Stockholders, Skreem's directors and officers, and
each person, if any, who controls Skreem within the meaning of the Securities
Act, from and against any and all losses, claims, damages, expenses,
liabilities, or actions to which any of them may become subject under
applicable law (including the Securities Act and the Securities Exchange Act)
and will reimburse them for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
any application or statement filed with a governmental body or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary in order to make the
statements therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information
furnished in writing by Commerce expressly for use therein. The indemnity
agreement contained in this Section 6.04 shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of
Skreem and shall survive the consummation of the transactions contemplated by
this Agreement for a period of six months.
6.05 The Acquisition of Commerce Common Stock. Commerce and Skreem
understand and agree that the consummation of this Agreement including the
issuance of the Commerce Common Stock to Skreem in exchange for the Skreem
Shares as contemplated hereby, constitutes the offer and sale of securities
under the Securities Act and applicable state statutes. Commerce and Skreem
agree that such transactions shall be consummated in reliance on exemptions
from the registration and prospectus delivery requirements of such statutes
that depend, among other items, on the circumstances under which such
securities are acquired.
(a) In order to provide documentation for reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, the
signing of this Agreement and the delivery of appropriate separate
representations shall constitute the parties acceptance of, and concurrence
in, the following representations and warranties:
(i) The Skreem Stockholders acknowledge that neither the SEC nor
the securities commission of any state or other federal agency has made any
determination as to the merits of acquiring Commerce Common Stock, and that
this transaction involves certain risks.
(ii) The Skreem Stockholders have received and read the Agreement
and understand the risks related to the consummation of the transactions
herein contemplated.
(iii) Skreem Stockholders have such knowledge and experience in
business and financial matters that they are capable of evaluating each
business.
<PAGE> 17
(iv) The Skreem Stockholders have been provided with copies of all
materials and information requested by them or their representatives,
including any information requested to verify any information furnished (to
the extent such information is available or can be obtained without
unreasonable effort or expense), and the parties have been provided the
opportunity for direct communication regarding the transactions contemplated
hereby.
(v) All information which the Skreem Stockholders have provided to
Commerce or their representatives concerning their suitability and intent to
hold shares in Commerce following the transactions contemplated hereby is
complete, accurate, and correct.
(vi) The Skreem Stockholders have not offered or sold any securities
of Commerce or interest in this Agreement and have no present intention of
dividing the Commerce Common Stock or Skreem Shares to be received or the
rights under this Agreement with others or of reselling or otherwise disposing
of any portion of such stock or rights, either currently or after the passage
of a fixed or determinable period of time or on the occurrence or
nonoccurrence of any predetermined event or circumstance.
(vii) The Skreem Stockholders understand that the Commerce Common
Stock has not been registered, but is being acquired by reason of a specific
exemption under the Securities Act as well as under certain state statutes for
transactions not involving any public offering and that any disposition of the
subject Commerce Common Stock may, under certain circumstances, be
inconsistent with this exemption and may make Skreem or Commerce an
"underwriter", within the meaning of the Securities Act. It is understood
that the definition of "underwriter" focuses upon the concept of
"distribution" and that any subsequent disposition of the subject Commerce
Common Stock can only be effected in transactions which are not considered
distributions. Generally, the term "distribution" is considered synonymous
with "public offering" or any other offer or sale involving general
solicitation or general advertising. Under present law, in determining
whether a distribution occurs when securities are sold into the public market,
under certain circumstances one must consider the availability of public
information regarding the issuer, a holding period for the securities
sufficient to assure that the persons desiring to sell the securities without
registration first bear the economic risk of their investment, and a
limitation on the number of securities which the stockholder is permitted to
sell and on the manner of sale, thereby reducing the potential impact of the
sale on the trading markets. These criteria are set forth specifically in
rule 144 promulgated under the Securities Act, and, after two years after the
date the Commerce Common Stock or Skreem Shares is fully paid for, as
calculated in accordance with rule 144(d), sales of securities in reliance
upon rule 144 can only be made in limited amounts in accordance with the terms
and conditions of that rule. After three years from the date the securities
are fully paid for, as calculated in accordance with rule 144(d), they can
generally be sold without meeting those conditions, provided the holder is not
(and has not been for the preceding three months) an affiliate of the issuer.
(viii) The Skreem Stockholders acknowledge that the shares of
Commerce Common Stock , must be held and may not be sold, transferred, or
otherwise disposed of for value unless they are subsequently registered under
the Securities Act or an exemption from such registration is available.
Commerce is not under any obligation to register the Commerce Common Stock
under the Securities Act. If rule 144 is available after two years and prior
to three years following the date the shares are fully paid for, only routine
sales of such Commerce Common Stock in limited amounts can be made in reliance
upon rule 144 in accordance with the terms and conditions of that rule.
<PAGE> 18
Commerce is not under any obligation to make rule 144 available except as set
forth in this Agreement and in the event rule 144 is not available, compliance
with Regulation A or some other disclosure exemption may be required before
Skreem Stockholders can sell, transfer, or otherwise dispose of such Commerce
Common Stock without registration under the Securities Act. Subject to
compliance with federal and state securities laws, Commerce' registrar and
transfer agent will maintain a stop transfer order against the registration of
transfer of the Commerce Common Stock held by Skreem Stockholders and the
certificates representing the Commerce Common Stock will bear a legend in
substantially the following form so restricting the sale of such securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND ARE
"RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE
SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
(ix) Subject to compliance with federal and state securities laws,
Commerce may refuse to register further transfers or resales of the Commerce
Common Stock in the absence of compliance with rule 144 unless the Skreem
Stockholders furnish Commerce with an opinion of counsel reasonably acceptable
to Commerce stating that the transfer is proper. Further, unless such opinion
states that the shares of Commerce Common Stock are free of any restrictions
under the Securities Act, Commerce may refuse to transfer the securities to
any transferee who does not furnish in writing to Commerce the same
representations and agree to the same conditions with respect to such Commerce
Common Stock as set forth herein. Commerce may also refuse to transfer the
Commerce Common Stock if any circumstances are present reasonably indicating
that the transferee's representations are not accurate.
(b) In connection with the transaction contemplated by this Agreement,
Skreem and Commerce shall each file, with the assistance of the other and
their respective legal counsel, such notices, applications, reports, or other
instruments as may be deemed by them to be necessary or appropriate in an
effort to document reliance on such exemptions, and the appropriate regulatory
authority in the states where the Skreem Stockholders reside unless an
exemption requiring no filing is available in such jurisdictions, all to the
extent and in the manner as may be deemed by such parties to be appropriate.
(c) In order to more fully document reliance on the exemptions as
provided herein, Skreem, the Skreem Stockholders, and Commerce shall execute
and deliver to the other, at or prior to the Closing, such further letters of
representation, acknowledgment, suitability, or the like as Commerce or Skreem
and their respective counsel may reasonably request in connection with
reliance on exemptions from registration under such securities laws.
(d) The Skreem Stockholders acknowledge that the basis for relying on
exemptions from registration or qualifications are factual, depending on the
conduct of the various parties, and that no legal opinion or other assurance
will be required or given to the effect that the transactions contemplated
hereby are in fact exempt from registration or qualification.
6.06 Commerce Liabilities. Immediately prior to the Closing Date,
Commerce shall have no material assets and no liabilities in excess of
$10,000, and all expenses related to this Agreement or otherwise shall have
been paid.
<PAGE> 19
6.07 Securities Filings. Commerce shall be responsible for the
preparation of a Form D and its filing with the Securities and Exchange
Commission and Skreem will be responsible for any and all filings in any
jurisdiction where its shareholders reside which would require a filing with a
governmental agency as a result of the transactions contemplated in this
Agreement.
6.08 Sales of Securities Under Rule 144, If Applicable.
(a) Commerce will use its best efforts to at all times satisfy the
current public information requirements of rule 144 promulgated under the
Securities Act so that its shareholders can sell restricted securities that
have been held for two years or more or such other restricted period as
required by rule 144 as it is from time to time amended.
(b) Upon being informed in writing by any person holding restricted
stock of Commerce as of the date of this Agreement that such person intends to
sell any shares under rule 144 promulgated under the Securities Act (including
any rule adopted in substitution or replacement thereof), Commerce will
certify in writing to such person that it is compliance with rule 144 current
public information requirement to enable such person to sell such person's
restricted stock under rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is
presented to Commerce's transfer agent for registration or transfer in
connection with any sales theretofore made under rule 144, provided such
certificate is duly endorsed for transfer by the appropriate person(s) or
accompanied by a separate stock power duly executed by the appropriate
person(s) in each case with reasonable assurances that such endorsements are
genuine and effective, and is accompanied by an opinion of counsel
satisfactory to Commerce and its counsel that such transfer has complied with
the requirements of rule 144, as the case may be, Commerce will promptly
instruct its transfer agent to register such transfer and to issue one or more
new certificates representing such shares to the transferee and, if
appropriate under the provisions of rule 144, as the case may be, free of any
stop transfer order or restrictive legend. The provisions of this Section
6.08 shall survive the Closing and the consummation of the transactions
contemplated by this Agreement for a period of two years.
(d) The shareholders of Commerce as of the date of this Agreement, as
well as those receiving Commerce Common Stock pursuant to this Agreement, are
intended third-party beneficiaries of this Section 6.08.
6.09 New Board of Directors and Officers. Upon closing of the
transactions contemplated by this Agreement, the current board of directors
and officers of Commerce shall resign and in their place nominees of Skreem
shall be appointed, subject to the approval of the suitability and
qualifications of such nominees.
6.10 Commerce Capitalization. For a period of eighteen months from the
Closing Date, Commerce will not engage in any reverse split of its issued and
outstanding Common Stock without the prior written approval of the holders of
a majority in interest of the issued and outstanding Commerce Common Stock on
the date of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers. Except as provided herein, Commerce and Skreem agree that
<PAGE> 20
there were no finders or brokers involved in bringing the parties together or
who were instrumental in the negotiation, execution, or consummation of this
Agreement. Further, Commerce and Skreem each agree to indemnify the other
against any claim by any third person for any commission, brokerage, or
finder's fee or other payment with respect to this Agreement or the
transactions contemplated hereby based on any alleged agreement or
understanding between such party and such third person, whether express or
implied, from the actions of such party.
The covenants set forth in this section shall survive the Closing Date
and the consummation of the transactions herein contemplated.
7.02 No Representation Regarding Tax Treatment. No representation or
warranty is being made by any party to any other regarding the treatment of
this transaction for federal or state income taxation. Each party has relied
exclusively on its own legal, accounting, and other tax adviser regarding the
treatment of this transaction for federal and state income taxes and on no
representation, warranty, or assurance from any other party or such other
party's legal, accounting, or other adviser.
7.03 Governing Law. This Agreement shall be governed by, enforced and
construed under and in accordance with the laws of the State of Delaware.
7.04 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication confirmed
by registered or certified mail, postage prepaid, or if sent by prepaid
overnight courier addressed as follows:
If to Commerce, to: Kevin J. Monson, President If to Skreem, to: Thomas
Tedrow, President
Commerce Center Corporation Skreem.com, Corporation
1380 S. Devonshire Drive 1110 Palmer Avenue
Salt Lake City, Utah 84108 Winter Park, Florida 32790
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered or sent by
facsimile or telecopy transmission or other electronic communication, or one
day after the date so sent by overnight courier.
7.05 Attorney's Fees. In the event that any party institutes any action
or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
7.06 Schedules; Knowledge. Whenever in any section of this Agreement
reference is made to information set forth in the schedules provided by
Commerce or Skreem such reference is to information specifically set forth in
such schedules and clearly marked to identify the section of this Agreement to
which the information relates. Whenever any representation is made to the
"knowledge" of any party, it shall be deemed to be a representation that no
officer or director of such party, after reasonable investigation, has any
knowledge of such matters.
<PAGE>
<PAGE> 21
7.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All previous
agreements between the parties, whether written or oral, have been merged into
this Agreement. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understandings, agreements, representations, or
warranties, written or oral, except as set forth herein.
7.08 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of six
months from the Closing Date, unless otherwise provided herein.
7.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
7.10 Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred herein, at
law, or in equity, and such remedies may be enforced concurrently, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with
respect to any of the terms contained herein, and any term or condition of
this Agreement may be waived or the time for performance thereof may be
extended by a writing signed by the party or parties for whose benefit the
provision is intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first above written.
COMMERCE CENTER CORPORATION, SKREEM.COM, CORPORATION,
a Delaware corporation a Nevada corporation
/S/ signature /S/ signature
By: --------------------------- By: -------------------------------
Kevin J. Monson, President Thomas Tedrow, President
STATE OF UTAH )
ss.
COUNTY OF SALT LAKE )
On this 1st day of April, 1999, personally appeared before me Kevin J.
Monson, whose identity is personally known to me and who by me duly sworn, did
say that he is the President of Commerce Center Corporation and that said
document was signed by him of behalf of said corporation by authority of its
bylaws, and said Kevin J. Monson acknowledged to me that said corporation
executed the same.
/s/
NOTARY PUBLIC
<PAGE>
<PAGE> 22
STATE OF NEVADA )
ss.
COUNTY OF )
-----------
On this 1st day of April, 1999, personally appeared before me Thomas
Tedrow, whose identity is personally known to me and who by me duly sworn, did
say that he is the President of Skreem.com, Corporation and that said document
was signed by him of behalf of said corporation by authority of its bylaws,
and said Thomas Tedrow acknowledged to me that said corporation executed the
same.
/s/ signature
-------------------------
NOTARY PUBLIC
<PAGE>
<PAGE> 23
Exhibit A-1
Skreem.com, Corporation
List of Shareholders
Number of Commerce
Number of Skreem Shares to be
Name of Shareholder Shares Owner Received in Signature
Exchange
Tom Tedrow 15,040,000 /S/
Jacob Nguyen 160,000 /S/
Michael Reynolds 400,000 /S/
Jeff Reynolds 400,000 /S/
----------
Total Shares 16,000,000
==========
<PAGE> 1
EXHIBIT 3.02
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
COMMERCE CENTERS CORPORATION
Pursuant to the provisions of Section 242, of the General Corporation
Laws of the State of Delaware, Commerce Centers Corporation, a Delaware
corporation, hereinafter referred to as the "Corporation," hereby adopts
the following Certificate of Amendment to its Certificate of
Incorporation:
FIRST: The name of the Corporation is Commerce Centers Corporation.
SECOND: Article I of the Articles of Incorporation shall be amended to
read as follows:
Article I
The name of the corporation is Skreem.com Corporation
THIRD: Pursuant to a majority consent of the Corporation's
shareholders, a plan of recapitalization was approved providing for a 3
for 5 reverse split of the issued and outstanding shares of common stock
of the Corporation reducing the issued and outstanding shares of Common
Stock of the Corporation to 12,525,600 The number of shares voted for
the plan of recapitalization was 15,623,333 representing 74.84% of the
issued and outstanding Common Stock, with no shares opposing or
abstaining.
FOURTH: By executing these Certificate of Amendment to the Certificate
of Incorporation, the president and secretary of the Corporation do
hereby certify that on April 4, 1999, the foregoing amendment to the
Certificate of Incorporation of Commerce Centers Corporation, was
authorized and approved pursuant to Section 242 of the General
Corporation Laws of the State of Delaware by the consent of the majority
of the Corporation's shareholders. The number of issued and outstanding
shares entitled to vote on the foregoing amendment to the Certificate of
Incorporation was 20,876,000 of which 12,525,600 shares voted for, no
shares voted against and no shares abstained from the foregoing
amendment to the Certificate of Incorporation. No other class of shares
was entitled to vote thereon as a class.
DATED this 3 day of May , 1999
----- ---------
/s/ signature
---------------------------
Thomas Tedrow, President
/s/ signature
---------------------------
Jacob Nguyen, Secretary
<PAGE> 2
State of Utah )
:
County of Salt Lake )
On this [sic] day of [sic], 1999, personally appeared before me, the
undersigned, a notary public, Thomas Tedrow and Jacob Nguyen, who being
by me first duly sworn, declared that they are the president and
secretary, respectively, of the above-named corporation, that they
signed the foregoing Certificate of Amendment to the Certificate of
Incorporation and that the statements contained therein are true.
WITNESS MY HAND AND OFFICIAL SEAL.
/S/[sic]
----------------------------------
Notary Public
<PAGE>
Exhibit No. 4 - SPECIMEN STOCK CERTIFICATE
NOT VALID UNLESS COUNTERSIGNED BY TRANSFER AGENT
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
Certificate No. Number of Shares
--VOID XXXXXXX
SKREEM.COM CORPORATION
Total Authorized Capital
30,000,000 Shares of Common Stock
Par Value $0.01 Each
This Certifies that ----------SPECIMEN-------------- is the registered holder
of --------------------VOID-------------------- Shares, fully paid and
nonassessable shares of the Common Stock of SKREEM.COM CORPORATION.
transferable only on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed this ----- day of ----------- A.D. 19xx.
/s/---------------------- [Corporate Seal] /s/-------------------------
Secretary President
Countersigned:
OTC Stock Transfer, Inc.
231 East 2100 South
Salt Lake City, Utah 84115
(801) 485-5555
By:----------------------
<PAGE> 1
EXHIBIT 3.03 BY-LAWS
OF
COMMERCE CENTERS CORPORATION
ARTICLE I - OFFICES
-------------------
The principal office of the corporation in the State of Louisiana shall be
located in the CITY of Morgan City County of St. Marys Parish . The
corporation may have such other offices, either within or without the State of
incorporation as the board of directors may designate or as the business of
the corporation may from time to time require.
ARTICLE II - STOCKHOLDERS
-------------------------
1. ANNUAL MEETING.
The annual meeting of the stockholders shall be held on the 2nd day of June
in each year, beginning with the year 1990 at the hour 2 o' clock P M., for
the purpose of electing directions and for the transaction of each other
business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday such meeting shall be held on the next
succeeding business day.
2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the president or by the
directors, and shall be called by the president at the request of the holders
of not less than 30% per cent of all the outstanding shares of the corporation
entitled to vote at the meeting.
3. PLACE OF MEETING.
The directors may designate any place, either within or without the State
unless otherwise prescribed by statute, as the place of meeting for any annual
meeting or for any special meeting called by the directors. A waiver of notice
signed by all stockholders entitled to vote at a meeting may designate
any place, either within or without the state unless otherwise prescribed by
statute, as the place for holding such meeting. If no designation is made, or
if a special meeting be otherwise called, the place of meeting shall be the
principal office of the corporation.
4. NOTICE OF MEETING.
Written or printed notice stating the place, day and hour of the meeting
and, in case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than 5 nor more than 10 days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, or the secretary, or the officer or persons
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
<PAGE>
<PAGE> 2
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or stockholders
entitled to receive payment of any dividend, or in order to make a
determination of stockholders for any other proper purpose, the directors of
the corporation may provide that the stock transfer books shall be closed for
a stated period but not to exceed, in any case, 15 days. If the stock transfer
books shall be closed for the purpose of determining stockholders entitled to
notice of or to vote at a meeting of stockholders, such books shall be closed
for at least 30 days immediately preceding such meeting. In lieu of closing
the stock transfer books, the directors may fix in advance a date as the
record date for any such determination of stockholders, such date in any case
to be not more than 15 days and, in case of a meeting of stockholders, not
less than 30 days prior to the date on which the particular action requiring
such determination of stockholders is to be taken. If the stock transfer books
are not closed and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders, or
stockholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of stockholders. When a determination of
stockholders entitled to vote at any meeting of stockholder has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
6. VOTING LISTS.
The officer or agent having charge of the stock transfer books for shares of
the corporation shall make, at least 20 days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, which list, for a period of
10 days prior to such meeting, shall be kept on file at the principal office
of the corporation and shall be subject to inspection by any stockholder at
any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any stockholder during the whole time of the meeting. The
original stock transfer book shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at the
meeting of stockholders.
7. QUORUM.
At any meeting of stockholders 51% of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. If less than said number of
the outstanding shares are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified. The stockholders present at Unduly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
<PAGE> 3
8. PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy executed in
writing by the stockholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the secretary of the corporation before or at the
time of the meeting.
9. VOTING.
Each stockholder entitled to vote in accordance with the terms and
provisions of the certificate of incorporation and these by-laws shall be
entitled to one vote, in person or proxy, for each share of stock entitled to
vote held by such stockholders. Upon the demand of any stockholder, the vote
for directors and upon any question before the meeting shall be by ballot. All
elections for directors shall be decided by pluarlity vote; all other
questions shall be decided by majority vote except as otherwise provided by
the Certificate of Incorporation or the laws of this State.
10. ORDER OF BUSINESS.
The order of business at all meetings of the stockholders, shall be as
follows:
1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Reports of Officers.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
11. INFORMAL ACTION BY STOCKHOLDERS.
Unless otherwise provided by law, any action required to be taken at a
meeting of the shareholders, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
ARTICLE III - BOARD OF DIRECTORS
--------------------------------
1. GENERAL POWERS.
The business and affairs of the corporation shall be managed by its board of
directors. The directors shall in all cases act as a board, and they may adopt
such rules and regulations for the conduct of their meetings and the
management of the corporation, as they may deem proper, not inconsistent with
these by-laws and the laws of this State.
2. NUMBER, TENURE AND QUALIFICATIONS.
The number of directors of the corporation shall be one . Each director
shall hold office until the next annual meeting of stockholders and until his
successor shall have been elected and qualified.
3. REGULAR MEETINGS.
A regular meeting of the directors, shall be held without other notice than
this by-law immediately after, and at the same place as, the annual meeting of
<PAGE> 4
stockholders. The directors may provide, by resolution, the time and place for
the holding of additional regular meetings without other noLice than such
resolution.
4. SPECIAL MEETINGS.
Special meeting of the directors may be called by or at the request of the
president or any two directors. The person or persons authorized to call
special meetings of the directors may fix the place for holding any special
meeting of the directors called by them.
5. NOTICE.
Notice of any special meeting shall be given at least lo days previously
thereto by written notice delivered personally, or by telegram or mailed to
each director at his business address. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice be given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph
company. The attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
6. QUORUM.
At any meeting of the directors one shall constitute a quorum for the
transaction of business, but if less than said number is present at a meeting,
a majority of the directors present may adjourn the meeting from time to time
without further notice.
7. MANNER OF ACTING.
The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the board for any reason except the
removal of directors without cause may be filled by vote of a majority of the
directors then in office, although less than a quorum exists. Vacancies
occurring by reason of the removal of directors without cause shall be filled
by vote of the stockholders. A director elected to fill a vacancy caused by
resignation, death or removal shall be elected to hold office for the
unexpired term of his predecessor.
9. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the
stockholders or by action of the board. Directors may be removed without cause
only by vote of the stockholders.
10. RESIGNATION.
A director may resign at any time by giving written notice to the board, the
president or the secretary of the corporation. Unless otherwise specified in
the notice, the resignation shall take effect upon receipt thereof by the
board or such officer, and the acceptance of the resignation shall not be
necessary to make it effective.
<PAGE> 5
11. COMPENSATION.
No compensation shall be paid to directors, as such, for their services, but
by resolution of the board a fixed sum and expenses for actual attendance at
each regular or special meeting of the board may be authorized. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
12. PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the directors
at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
13. EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution, may designate from among its members an executive
committee and other committees, each consisting of three or more directors.
Each such committee shall serve at the pleasure of the board.
ARTICLE IV - OFFICERS
---------------------
1. NUMBER.
The officers of the corporation shall be a president, a vice-president, a
secretary and a treasurer, each of whom shall be elected by the directors.
Such other officers and assistant officers as may be deemed necessary may be
elected or appointed by the directors.
2. ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the directors shall be
elected annually at the first meeting of the directors held after each annual
meeting of the stockholders. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided.
3. REMOVAL.
Any officer or agent elected or appointed by the directors may be removed by
the directors whenever in their judgment the best interests of the corporation
would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
4. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the directors for the
unexpired portion of the term.
<PAGE> 6
5. PRESIDENT.
The president shall be the principal executive officer of the corporation
and, subject to the control of the directors, shall in general supervise and
control all of the business and affairs of the corporation. He shall, when
present, preside at all meetings of the stockholders and of the directors. He
may sign, with the secretary or any other proper officer of the corporation
"hereunto authorized by the directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts, or other instruments
which the directors have authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the directors or
by these by-laws to some other officer or agent of the corporation, or shall
be required by law to be otherwise signed or executed; and in general shall
perform all duties incident to the office of president and such other duties
as may be prescribed by the directors from time to time.
6. VICE-PRESIDENT.
In the absence of the president or in event of his death, inability or
refusal to act, the vice-president shall perform the duties of the president,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. The vice-president shall perform such other
duties as from time to time may be assigned to him by the President or by the
directors.
7. SECRETARY.
The secretary shall keep the minutes of the stockholders' and of the
directors' meetings in one or more books provided for that purpose, see that
all notices are duly given in ace cordance with the provisions of these
by-laws or as required, be custodian of the corporate records and of the seal
of the corporation and keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder,
have general charge of the stock transfer books of the corporation and in
general preform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the president or by the
directors.
8. TREASURER.
If required by the directors, the treasurer shall give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties
as the directors shall determine. He shall have charge and custody of and be
responsible for all funds and securities of the corporation; receive and give
receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in
accordance with these by-laws and in general perform all of the duties
incident to the office of treasurer and such other duties as from time to time
may be assigned to him by the president or by the directors.
9. SALARIES.
The salaries of the officers shall be fixed from time to time by the
directors and no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the corporation.
<PAGE>
<PAGE> 7
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------------------
1. CONTRACTS.
The directors may authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be general or
confined to specific instances.
2. LOANS.
No loans shall be contracted on behalf of the corporation and no evidences
of indebtedness shall be issued in its name unless authorized by a resolution
of the directors. Such authority may be general or confined to specific
instances.
3. CHECKS, DRAFTS, ETC.
All funds of the corporation not otherwise employed shall be deposited from
time to time to the credit of the corporation in such banks, trust companies
or other depositories as the directors may select.
4. DEPOSITS.
All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as the directors may select.
ARTICLE VI - CERTIFICATIONS FOR SHARES AND THEIR TRANSFER
---------------------------------------------------------
1. CERTIFICATIONS FOR SHARES.
Certificates representing shares of the corporation shall be in such form as
be determined by the directors. Such certificates shall be signed by the
president and by the secretary or by such other officers authorized by law and
by the directors. All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the stockholders, the number
of shares and date of issue, shall be entered on the stock transfer books of
the corporation. All certificates surrendered to the corporation for transfer
shall be canceled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
canceled, except that in case in of a lost, destroyed or mutilated certificate
a new one may be issued therefor upon such terms and indemnity to the
corporation as the directors may prescribe.
2. TRANSFERS OF SHARES.
(a) Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue as new certificate to the person entitled
thereto, and cancel the old certificate; every such transfer shall be entered
on the transfer book of the corporation which shall be kept at its principal
office.
(b) The corporation shall be entitled to treat the holder of record of any
share as the holder in fact thereof, and,-accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the
<PAGE> 8
part of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of this state.
ARTICLE VII - FISCAL YEAR
-------------------------
The fiscal year of the corporation shall begin on the 1st day of January in
each year.
ARTICLE VIII - DIVIDENDS
------------------------
The directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law.
ARTICLE IX - SEAL
-----------------
The directors shall provide a corporate seal which shall be circular in form
and shall have inscribed thereon the name of the corporation, the state of
incorporation, year of incorporation and the words, "Corporate Seal".
ARTICLE X - WAIVER OF NOTICE
---------------------------
Unless otherwise provided by law, whenever any notice is required to be
given to any stockholder or director of the corporation under the provisions
of these by-laws or under the provisions of the articles of incorporation, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein; shall be deemed
equivalent to the giving of such notice.
ARTICLE XI - AMENDMENTS
-----------------------
These by-laws may be altered, amended or repealed and new by-laws may be
adopted by a vote of the stockholders representing a majority of all the
shares issued and outstanding, at any annual stockholders' meeting or at any
special stockholders' meeting when the proposed amendment has been set out in
the notice of such meeting.
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