U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
General Form for Registration of Securities
of Small Business Issuers
Under Section 12(b) or (g) of
the Securities Exchange Act of 1934
ARBER HOLDINGS
(Name of Small Business Issuer)
Delaware pending
------------------------------- -------------------------------
(State or Other Jurisdiction of I.R.S. Employer Identification Number
Incorporation or Organization)
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
(Address of Principal Executive Offices including Zip Code)
(305) 948-8077
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(Issuer's Telephone Number)
Securities to be Registered Under Section 12(b) of the Act: None
Securities to be Registered Under Section 12(g) of the Act: Common Stock,
$.0001 Par Value
(Title of Class)
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PART I
ITEM 1. BUSINESS.
Arber Holdings (the "Company") was incorporated on November 8, 1999 under
the laws of the State of Delaware to engage in any lawful corporate undertaking,
including, but not limited to, selected mergers and acquisitions. The Company
has been in the developmental stage since inception and has no operations to
date other than issuing shares to its original shareholder.
The Company will attempt to locate and negotiate with a business entity for
the combination of that target company with the Company. The combination will
normally take the form of a merger, stock-for-stock exchange or stock-for-assets
exchange. In most instances the target company will wish to structure the
business combination to be within the definition of a tax-free reorganization
under Section 351 or Section 368 of the Internal Revenue Code of 1986, as
amended.
No assurances can be given that the Company will be successful in locating
or negotiating with any target company.
The Company has been formed to provide a method for a foreign or domestic
private company to become a reporting ("public") company with a class of
registered securities.
ASPECTS OF A REPORTING COMPANY
There are certain perceived benefits to being a reporting company. These are
commonly thought to include the following:
* increased visibility in the financial community;
* provision of information required under Rule 144 for trading of eligible
securities; * compliance with a requirement for admission to quotation
on the OTC Bulletin Board maintained by Nasdaq or on the
Nasdaq SmallCap Market;
* the facilitation of borrowing from financial institutions;
* improved trading efficiency;
* shareholder liquidity;
* greater ease in subsequently raising of capital;
* compensation of key employees through stock options for which there may
be a market valuation;
* enhanced corporate image.
There are also certain perceived disadvantages to being a reporting
company. These are commonly thought to include the following:
* requirement for audited financial statements;
* required publication of corporate information;
* required filings of periodic and episodic
reports with the Securities and Exchange Commission;
* increased rules and regulations governing management,
corporate activities and shareholder relations.
COMPARISON WITH INITIAL PUBLIC OFFERING
Certain private companies may find a business combination more attractive
than an initial public offering of their securities. Reasons for this may
include the following:
* inability to obtain underwriter;
* possible larger costs, fees and expenses;
* possible delays in the public offering process;
* greater dilution of their outstanding securities.
Certain private companies may find a business combination less attractive
than an initial public offering of their securities. Reasons for this may
include the following:
* no investment capital raised through a business combination;
* no underwriter support of after-market trading.
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POTENTIAL TARGET COMPANIES
A business entity, if any, which may be interested in a business combination
with the Company may include the following:
* a company for which a primary purpose of becoming public
is the use of its securities for the acquisition of assets or
businesses;
* a company which is unable to find an underwriter of its
securities or is unable to find an underwriter of securities
on terms acceptable to it;
* a company which wishes to become public with less dilution of its
common stock than would occur upon an
underwriting;
* a company which believes that it will be able to obtain
investment capital on more favorable terms after it has
become public;
* a foreign company which may wish an initial entry into
the United States securities market;
* a special situation company, such as a company seeking a
public market to satisfy redemption requirements under a
qualified Employee Stock Option Plan;
* a company seeking one or more of the other perceived benefits of
becoming a public company.
A business combination with a target company will normally involve the
transfer to the target company of the majority of the issued and outstanding
common stock of the Company, and the substitution by the target company of its
own management and board of directors.
No assurances can be given that the Company will be able to enter into a
business combination, as to the terms of a business combination, or as to the
nature of the target company.
The proposed business activities described herein classify the Company as a
"blank check" company. The Securities and Exchange Commission and certain states
have enacted statutes, rules and regulations limiting the sale of securities of
blank check companies. The Company will not issue or sell additional shares or
take any efforts to cause a market to develop in the Company's securities until
such time as the Company has successfully implemented its business plan and it
is no longer classified as a blank check company.
The sole shareholder of the Company has executed and delivered a "lock-up"
agreement affirming that it will not sell or otherwise transfer its shares
except in connection with or following a business combination resulting in the
Company no longer being classified as a blank check company.
The Company is voluntarily filing this Registration Statement with the
Securities and Exchange Commission and is under no obligation to do so under the
Securities Exchange Act of 1934. The Company will voluntarily continue to file
all reports required of it under the Exchange Act until a business combination
has occurred. A business combination will normally result in a change in control
and management of the Company. Since a benefit of a business combination with
the Company would normally be considered its status as a reporting company, it
is anticipated that the Company will continue to file reports under the Exchange
Act following a business combination. No assurance can be given that this will
occur or, if it does, for how long.
Alfred Arberman is the sole officer and director of the Company and the
controlling shareholder of the Company's sole shareholder, Joren LLC. The
Company has no employees nor are there any other persons than Mr. Arberman who
devote any of their time to its affairs. All references herein to management of
the Company are to Mr. Arberman. The inability at any time of Mr. Arberman to
devote sufficient attention to the Company could have a material adverse impact
on its operations.
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GLOSSARY
"Blank Check" Company As used herein, a "blank check" company is a
development stage company that has no specific business plan or
purpose or has indicated that its business plan is to engage in
a merger or acquisition with an unidentified company or
companies.
Business Combination Normally a merger, stock-for-stock exchange or
stock-for-assets exchange between the Registrant and a
target company.
The Company or The corporation whose common stock is the subject of this
the Registrant Registration Statement.
Exchange Act The Securities Exchange Act of 1934, as amended.
Securities Act The Securities Act of 1933, as amended.
RISK FACTORS
The Company's business is subject to numerous risk factors, including the
following:
THE COMPANY HAS NO OPERATING HISTORY NOR REVENUE AND MINIMAL ASSETS. The
Company has had no operating history nor any revenues or earnings from
operations. The Company has no significant assets or financial resources. The
Company has operated at a loss to date and will, in all likelihood, continue to
sustain operating expenses without corresponding revenues, at least until the
consummation of a business combination. Joren LLC. has agreed to pay all
expenses incurred by the Company until a business combination without repayment
by the Company. Joren LLC. is the sole shareholder of the Company. To date,
expenses of approximately $299 have been incurred by the Company.
THE COMPANY HAS ONLY ONE DIRECTOR AND ONE OFFICER. The Company's president,
its sole officer, is Alfred Arberman who is also its sole director and the
controlling shareholder of its sole shareholder. Because management consists of
only one person, the Company does not benefit from multiple judgments that a
greater number of directors or officers would provide and the Company will rely
completely on the judgment of its sole officer and director when selecting a
target company. The decision to enter into a business combination will likely be
made without detailed feasibility studies, independent analysis, market surveys
or similar information which, if the Company had more funds available to it,
would be desirable. Mr. Arberman anticipates devoting only a limited amount of
time per month to the business of the Company. Mr. Arberman has not entered into
a written employment agreement with the Company and he is not expected to do so.
The Company has not obtained key man life insurance on Mr. Arberman . The loss
of the services of Mr. Arberman would adversely affect development of the
Company's business and its likelihood of continuing operations.
CONFLICTS OF INTEREST. Mr. Arberman, the Company's president, participates
in other business ventures which may compete directly with the Company.
Additional conflicts of interest and non-arms length transactions may also arise
in the future. The Company has adopted a policy that it will not enter into a
business combination with any entity in which any member of management serves as
an officer, director or partner, or in which such person or such person's
affiliates or associates hold any ownership interest. The terms of business
combination may include such terms as Mr. Arberman remaining a director or
officer of the Company. The terms of a business combination may provide for a
payment by cash or otherwise to Arberman for the purchase or retirement of all
or part of its common stock of the Company by a target company or for services
rendered incident to or following a business combination. Mr. Arberman would
directly benefit from such employment or payment. Such benefits may influence
Mr. Arberman's choice of a target company. The Certificate of Incorporation of
the Company provides that the Company may indemnify officers and/or directors of
the Company for liabilities, which can include liabilities arising under the
securities laws. Therefore, assets of the Company could be used or attached to
satisfy any liabilities subject to such indemnification. See "ITEM 5. DIRECTORS,
EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS--Conflicts of Interest."
THE PROPOSED OPERATIONS OF THE COMPANY ARE SPECULATIVE. The success of the
Company's proposed plan of operation will depend to a great extent on the
operations, financial condition and management of the identified target company.
While business combinations with entities having established operating histories
are preferred, there can be no assurance that the Company will be successful in
locating candidates meeting such criteria. In the event the Company completes a
business combination the success of the Company's operations will be dependent
upon management of the target company and numerous other factors beyond the
Company's control. There is no assurance that the Company can identify a target
company and consummate a business combination.
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PURCHASE OF PENNY STOCKS CAN BE RISKY. In the event that a public market
develops for the Company's securities following a business combination, such
securities may be classified as a penny stock depending upon their market price
and the manner in which they are traded. The Securities and Exchange Commission
has adopted Rule 15g-9 which establishes the definition of a "penny stock," for
purposes relevant to the Company, as any equity security that has a market price
of less than $5.00 per share or with an exercise price of less than $5.00 per
share whose securities are admitted to quotation but do not trade on the Nasdaq
SmallCap Market or on a national securities exchange. For any transaction
involving a penny stock, unless exempt, the rules require delivery of a document
to investors stating the risks, special suitability inquiry, regular reporting
and other requirements. Prices for penny stocks are often not available and
investors are often unable to sell such stock. Thus an investor may lose his
investment in a penny stock and consequently should be cautious of any purchase
of penny stocks.
THERE IS A SCARCITY OF AND COMPETITION FOR BUSINESS OPPORTUNITIES AND
COMBINATIONS. The Company is and will continue to be an insignificant
participant in the business of seeking mergers with and acquisitions of business
entities. A large number of established and well-financed entities, including
venture capital firms, are active in mergers and acquisitions of companies which
may be merger or acquisition target candidates for the Company. Nearly all such
entities have significantly greater financial resources, technical expertise and
managerial capabilities than the Company and, consequently, the Company will be
at a competitive disadvantage in identifying possible business opportunities and
successfully completing a business combination. Moreover, the Company will also
compete with numerous other small public companies in seeking merger or
acquisition candidates.
THERE IS NO AGREEMENT FOR A BUSINESS COMBINATION AND NO MINIMUM REQUIREMENTS
FOR BUSINESS COMBINATION. The Company has no current arrangement, agreement or
understanding with respect to engaging in a business combination with a specific
entity. There can be no assurance that the Company will be successful in
identifying and evaluating suitable business opportunities or in concluding a
business combination. No particular industry or specific business within an
industry has been selected for a target company. The Company has not established
a specific length of operating history or a specified level of earnings, assets,
net worth or other criteria which it will require a target company to have
achieved, or without which the Company would not consider a business combination
with such business entity. Accordingly, the Company may enter into a business
combination with a business entity having no significant operating history,
losses, limited or no potential for immediate earnings, limited assets, negative
net worth or other negative characteristics. There is no assurance that the
Company will be able to negotiate a business combination on terms favorable to
the Company.
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION. Pursuant to the
requirements of Section 13 of the Securities Exchange Act of 1934 (the "Exchange
Act"), the Company is required to provide certain information about significant
acquisitions including audited financial statements of the acquired company.
These audited financial statements must be furnished within 75 days following
the effective date of a business combination. Obtaining audited financial
statements are the economic responsibility of the target company. The additional
time and costs that may be incurred by some potential target companies to
prepare such financial statements may significantly delay or essentially
preclude consummation of an otherwise desirable acquisition by the Company.
Acquisition prospects that do not have or are unable to obtain the required
audited statements may not be appropriate for acquisition so long as the
reporting requirements of the Exchange Act are applicable. Notwithstanding a
target company's agreement to obtain audited financial statements within the
required time frame, such audited financials may not be available to the Company
at the time of effecting a business combination. In cases where audited
financials are unavailable, the Company will have to rely upon unaudited
information that has not been verified by outside auditors in making its
decision to engage in a transaction with the business entity. This risk
increases the prospect that a business combination with such a business entity
might prove to be an unfavorable one for the Company.
LACK OF MARKET RESEARCH OR MARKETING ORGANIZATION. The Company has neither
conducted, nor have others made available to it, market research indicating that
demand exists for the transactions contemplated by the Company. Even in the
event demand exists for a transaction of the type contemplated by the Company,
there is no assurance the Company will be successful in completing any such
business combination.
REGULATION UNDER INVESTMENT COMPANY ACT. In the event the Company engages in
business combinations which result in the Company holding passive investment
interests in a number of entities, the Company could be subject to regulation
under the Investment Company Act of 1940. In such event, the Company would be
required to register as an investment company and could be expected to incur
significant registration and compliance costs. The Company has obtained no
formal determination from the Securities and Exchange Commission as to the
status of the Company under the Investment Company Act of 1940 and,
consequently, any violation of such Act could subject the Company to material
adverse consequences.
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PROBABLE CHANGE IN CONTROL AND MANAGEMENT. A business combination involving
the issuance of the Company's common stock will, in all likelihood, result in
shareholders of a target company obtaining a controlling interest in the
Company. As a condition of the business combination agreement, Joren LLC., the
sole shareholder of the Company, may agree to sell or transfer all or a portion
of its Company's common stock so to provide the target company with all or
majority control. The resulting change in control of the Company will likely
result in removal of the present officer and director of the Company and a
corresponding reduction in or elimination of his participation in the future
affairs of the Company.
POSSIBLE DILUTION OF VALUE OF SHARES UPON BUSINESS COMBINATION. A business
combination normally will involve the issuance of a significant number of
additional shares. Depending upon the value of the assets acquired in such
business combination, the per share value of the Company's common stock may
increase or decrease, perhaps significantly.
TAXATION. Federal and state tax consequences will, in all likelihood, be
major considerations in any business combination the Company may undertake.
Currently, such transactions may be structured so as to result in tax-free
treatment to both companies, pursuant to various federal and state tax
provisions. The Company intends to structure any business combination so as to
minimize the federal and state tax consequences to both the Company and the
target company; however, there can be no assurance that such business
combination will meet the statutory requirements of a tax-free reorganization or
that the parties will obtain the intended tax-free treatment upon a transfer of
stock or assets. A non-qualifying reorganization could result in the imposition
of both federal and state taxes which may have an adverse effect on both parties
to the transaction.
ITEM 2. PLAN OF OPERATION
SEARCH FOR TARGET COMPANY
The Company intends to enter into a business combination with a target
company in exchange for the Company's securities. The Company has not engaged in
any negotiations with any specific entity regarding the possibility of a
business combination with the Company. The Company has entered into an agreement
with Joren LLC., the sole shareholder of the Company, to supervise the search
for target companies as potential candidates for a business combination. The
agreement will continue until such time as the Company has effected a business
combination. Joren LLC., Inc. has agreed to pay all expenses of the Company
without repayment until such time as a business combination is effected. Alfred
Arberman, who is the sole officer and director of the Company, is the sole
officer and director and controlling shareholder of Joren LLC.
Joren LLC. may only locate potential target companies for the Company and is
not authorized to enter into any agreement with a potential target company
binding the Company. The Company's agreement with Joren LLC. is not exclusive
and Joren LLC. has entered into agreements with other companies similar to the
Company on similar terms. Joren LLC. may provide assistance to target companies
incident to and following a business combination, and receive payment for such
assistance from a target companies.
Joren LLC. owns 5,000,000 shares of the Company's common stock for which it
paid $500, or $.0001, par value, per share.
Joren LLC. has entered, and anticipates that it will enter, into
agreements with other consultants to assist it in locating a target company and
Joren LLC. may share its stock in the Company with or grant options on such
stock to such referring consultants and may make payment to such consultants
from its own resources. There is no minimum or maximum amount of stock, options,
or cash that Arber may grant or pay to such consultants. Joren LLC. is solely
responsible for the costs and expenses of its activities in seeking a potential
target company, including any agreements with consultants, and the Company has
no obligation to pay any costs incurred or negotiated by Joren LLC.
Joren LLC. anticipates that it may seek to locate a target company through
solicitation. Such solicitation may include newspaper or magazine
advertisements, mailings and other distributions to law firms, accounting firms,
investment bankers, financial advisors and similar persons, the use of one or
more World Wide Web sites and similar methods. No estimate can be made as to the
number of persons who may be contacted or solicited. To date Joren LLC. has not
utilized solicitation, does not anticipate that it will do so, and expects to
rely on referrals from consultants in the business and financial communities for
referrals of potential target companies.
MANAGEMENT OF THE COMPANY
The Company has no full time employees. Alfred Arberman is the sole
officer of the Company and its sole director. Mr. Arberman is also the
controlling shareholder of Joren LLC., the Company's sole shareholder. Mr.
Arberman, as president of the Company, has agreed to allocate a portion of his
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time to the activities of the Company without compensation. Potential
conflicts may arise with respect to the limited time commitment by Mr.
Arberman and the potential demands of the Company's activities.
The amount of time spent by Mr. Arberman on the activities of the Company is
not predictable. Such time may vary widely from an extensive amount when
reviewing a target company and effecting a business combination to an
essentially quiet time when activities of management focus elsewhere, or some
amount in between. It is impossible to predict with any precision the exact
amount of time Mr. Arberman will actually be required to spend to locate a
suitable target company. Mr. Arberman estimates that the business plan of the
Company can be implemented by devoting approximately 10 to 25 hours per month
over the course of several months but such figure cannot be stated with
precision.
GENERAL BUSINESS PLAN
The Company's purpose is to seek, investigate and, if such investigation
warrants, acquire an interest in a business entity which desires to seek the
perceived advantages of a corporation which has a class of securities registered
under the Exchange Act. The Company will not restrict its search to any specific
business, industry, or geographical location and the Company may participate in
a business venture of virtually any kind or nature. Management anticipates that
it will be able to participate in only one potential business venture because
the Company has nominal assets and limited financial resources. See PART F/S,
"FINANCIAL STATEMENTS." This lack of diversification should be considered a
substantial risk to the shareholders of the Company because it will not permit
the Company to offset potential losses from one venture against gains from
another.
The Company may seek a business opportunity with entities which have
recently commenced operations, or which wish to utilize the public marketplace
in order to raise additional capital in order to expand into new products or
markets, to develop a new product or service, or for other corporate purposes.
The Company anticipates that the selection of a business opportunity in
which to participate will be complex and extremely risky. Management believes
(but has not conducted any research to confirm) that there are business entities
seeking the perceived benefits of a reporting corporation. Such perceived
benefits may include facilitating or improving the terms on which additional
equity financing may be sought, providing liquidity for incentive stock options
or similar benefits to key employees, increasing the opportunity to use
securities for acquisitions, providing liquidity for shareholders and other
factors. Business opportunities may be available in many different industries
and at various stages of development, all of which will make the task of
comparative investigation and analysis of such business opportunities difficult
and complex.
The Company has, and will continue to have, no capital with which to provide
the owners of business entities with any cash or other assets. However,
management believes the Company will be able to offer owners of acquisition
candidates the opportunity to acquire a controlling ownership interest in a
reporting company without incurring the cost and time required to conduct an
initial public offering. Management has not conducted market research and is not
aware of statistical data to support the perceived benefits of a business
combination for the owners of a target company.
The analysis of new business opportunities will be undertaken by, or under
the supervision of, the officer and director of the Company, who is not a
professional business analyst. In analyzing prospective business opportunities,
management may consider such matters as the available technical, financial and
managerial resources; working capital and other financial requirements; history
of operations, if any; prospects for the future; nature of present and expected
competition; the quality and experience of management services which may be
available and the depth of that management; the potential for further research,
development, or exploration; specific risk factors not now foreseeable but which
then may be anticipated to impact the proposed activities of the Company; the
potential for growth or expansion; the potential for profit; the perceived
public recognition or acceptance of products, services, or trades; name
identification; and other relevant factors. This discussion of the proposed
criteria is not meant to be restrictive of the Company's virtually unlimited
discretion to search for and enter into potential business opportunities.
The Company is subject to all of the reporting requirements included in the
Exchange Act. Included in these requirements is the duty of the Company to file
audited financial statements as part of or within 60 days following the due date
for filing its Form 8-K which is required to be filed with the Securities and
Exchange Commission within 15 days following the completion of the business
combination. The Company intends to acquire or merge with a company for which
audited financial statements are available or for which it believes audited
financial statements can be obtained within the required period of time. The
Company may reserve the right in the documents for the business combination to
void the transaction if the audited financial statements are not timely
available or if the audited financial statements provided do not conform to the
representations made by the target company.
The Company will not restrict its search for any specific kind of business
entities, but may acquire a venture which is in its preliminary or development
stage, which is already in operation, or in essentially any stage of its
business life. It is impossible to predict at this time the status of any
business in which the Company may become engaged, in that such business may need
to seek additional capital, may desire to have its shares publicly traded, or
may seek other perceived advantages which the Company may offer.
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Following a business combination the Company may benefit from the services
of others in regard to accounting, legal services, underwritings and corporate
public relations. If requested by a target company, management may recommend one
or more underwriters, financial advisors, accountants, public relations firms or
other consultants to provide such services.
A potential target company may have an agreement with a consultant or
advisor providing that services of the consultant or advisor be continued after
any business combination. Additionally, a target company may be presented to the
Company only on the condition that the services of a consultant or advisor be
continued after a merger or acquisition. Such preexisting agreements of target
companies for the continuation of the services of attorneys, accountants,
advisors or consultants could be a factor in the selection of a target company.
TERMS OF A BUSINESS COMBINATION
In implementing a structure for a particular business acquisition, the
Company may become a party to a merger, consolidation, reorganization, joint
venture, or licensing agreement with another corporation or entity. On the
consummation of a transaction, it is likely that the present management and
shareholders of the Company will no longer be in control of the Company. In
addition, it is likely that the Company's officer and director will, as part of
the terms of the acquisition transaction, resign and be replaced by one or more
new officers and directors.
It is anticipated that any securities issued in any such reorganization
would be issued in reliance upon exemption from registration under applicable
federal and state securities laws. In some circumstances, however, as a
negotiated element of its transaction, the Company may agree to register all or
a part of such securities immediately after the transaction is consummated or at
specified times thereafter. If such registration occurs, it will be undertaken
by the surviving entity after the Company has entered into an agreement for a
business combination or has consummated a business combination and the Company
is no longer considered a blank check company. The issuance of additional
securities and their potential sale into any trading market which may develop in
the Company's securities may depress the market value of the Company's
securities in the future if such a market develops, of which there is no
assurance.
While the terms of a business transaction to which the Company may be a
party cannot be predicted, it is expected that the parties to the business
transaction will desire to avoid the creation of a taxable event and thereby
structure the acquisition in a tax-free reorganization under Sections 351 or 368
of the Internal Revenue Code of 1986, as amended.
With respect to negotiations with a target company, management expects to
focus on the percentage of the Company which target company shareholders would
acquire in exchange for their shareholdings in the target company. Depending
upon, among other things, the target company's assets and liabilities, the
Company's shareholders will in all likelihood hold a substantially lesser
percentage ownership interest in the Company following any merger or
acquisition. The percentage of ownership may be subject to significant reduction
in the event the Company acquires a target company with substantial assets. Any
merger or acquisition effected by the Company can be expected to have a
significant dilutive effect on the percentage of shares held by the Company's
shareholders at such time.
The Company will participate in a business opportunity only after the
negotiation and execution of appropriate agreements. Although the terms of such
agreements cannot be predicted, generally such agreements will require certain
representations and warranties of the parties thereto, will specify certain
events of default, will detail the terms of closing and the conditions which
must be satisfied by the parties prior to and after such closing and will
include miscellaneous other terms.
Joren LLC. will pay all expenses in regard to its search for a suitable
target company. The Company does not anticipate expending funds itself for
locating a target company. Alfred Arberman, the officer and director of the
Company, will provide his services without charge or repayment by the Company.
To date, Joren LLC. has incurred expenses on behalf of the Company aggregating
approximately $299, including incorporation and accounting expenses. The Company
will not borrow any funds to make any payments to the Company's management, its
affiliates or associates.
The Board of Directors has passed a resolution which contains a policy that
the Company will not seek a business combination with any entity in which the
Company's officer, director, shareholders or any affiliate or associate serves
as an officer or director or holds any ownership interest.
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UNDERTAKINGS AND UNDERSTANDINGS REQUIRED OF TARGET COMPANIES
As part of a business combination agreement, the Company intends to obtain
certain representations and warranties from a target company as to its conduct
following the business combination. Such representations and warranties may
include (i) the agreement of the target company to make all necessary filings
and to take all other steps necessary to remain a reporting company under the
Exchange Act (ii) imposing certain restrictions on the timing and amount of the
issuance of additional free-trading stock, including stock registered on Form
S-8 or issued pursuant to Regulation S and (iii) giving assurances of ongoing
compliance with the Securities Act, the Exchange Act, the General Rules and
Regulations of the Securities and Exchange Commission, and other applicable
laws, rules and regulations.
A prospective target company should be aware that the market price and
volume of its securities, when and if listed for secondary trading, may depend
in great measure upon the willingness and efforts of successor management to
encourage interest in the Company within the United States financial community.
The Company does not have the market support of an underwriter that would
normally follow a public offering of its securities. Initial market makers are
likely to simply post bid and asked prices and are unlikely to take positions in
the Company's securities for their own account or customers without active
encouragement and a basis for doing so. In addition, certain market makers may
take short positions in the Company's securities, which may result in a
significant pressure on their market price. The Company may consider the ability
and commitment of a target company to actively encourage interest in its
securities following a business combination in deciding whether to enter into a
transaction with such company.
A business combination with the Company separates the process of becoming
a public company from the raising of investment capital. As a result, a business
combination with Company normally will not be a beneficial transaction for a
target company whose primary reason for becoming a public company is the
immediate infusion of capital. The Company may require assurances from the
target company that it has or that it has a reasonable belief that it will have
sufficient sources of capital to continue operations following the business
combination. However, it is possible that a target company may give such
assurances in error, or that the basis for such belief may change as a result of
circumstances beyond the control of the target company.
Prior to completion of a business combination, the Company will generally
require that it be provided with written materials regarding the target company
containing such items as a description of products, services and company
history; management resumes; financial information; available projections, with
related assumptions upon which they are based; an explanation of proprietary
products and services; evidence of existing patents, trademarks, or service
marks, or rights thereto; present and proposed forms of compensation to
management; a description of transactions between such company and its
affiliates during relevant periods; a description of present and required
facilities; an analysis of risks and competitive conditions; a financial plan of
operation and estimated capital requirements; audited financial statements, or
if they are not available, unaudited financial statements, together with
reasonable assurances that audited financial statements would be able to be
produced within a reasonable period of time not to exceed 75 days following
completion of a business combination; and other information deemed relevant.
COMPETITION
The Company will remain an insignificant participant among the firms which
engage in the acquisition of business opportunities. There are many established
venture capital and financial concerns which have significantly greater
financial and personnel resources and technical expertise than the Company. In
view of the Company's combined extremely limited financial resources and limited
management availability, the Company will continue to be at a significant
competitive disadvantage compared to the Company's competitors.
ITEM 3. DESCRIPTION OF PROPERTY
The Company has no properties and at this time has no agreements to acquire
any properties. The Company currently uses the offices of management at no cost
to the Company. Management has agreed to continue this arrangement until the
Company completes an acquisition or merger.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth each person known by the Company to be the
beneficial owner of five percent or more of the Company's Common Stock, all
directors individually and all directors and officers of the Company as a group.
Except as noted, each person has sole voting and investment power with respect
to the shares shown.
9
<PAGE>
Name and Address Amount of Beneficial Percentage
of Beneficial Owner Ownership of Class
Joren LLC. (1) 5,000,000 100%
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
Alfred Arberman (2) 5,000,000 100%
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
All Executive Officers and
Directors as a Group (1 Person)
5,000,000 100%
(1) Mr. Arberman is the controlling shareholder and sole director and
officer of Joren LLC. Joren LLC. has agreed to provide certain assistance to the
Company in locating potential target companies, and to pay all costs of the
Company until a business combination, without reimbursement. See "PLAN OF
OPERATIONS General Business Plan".
(2) As the controlling shareholder, sole director and officer of Joren LLC.,
Mr. Arberman is deemed to be the beneficial owner of the common stock of the
Company owned by Joren LLC.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Company has one Director and Officer as follows:
Name Age Positions and Offices Held
Alfred Arberman 54 President, Secretary, Director
There are no agreements or understandings for the officer or director to
resign at the request of another person and the above-named officer and director
is not acting on behalf of nor will act at the direction of any other person.
Set forth below is the name of the director and officer of the Company, all
positions and offices with the Company held, the period during which he has
served as such, and the business experience during at least the last five years:
Alfred Arberman has served as president, chief executive officer and a
member of our board of directors since November 8, 1999. From July 1999 until
October 1999, Mr. Arberman served as production manager of Richlace Inc., a
textile manufacturing firm. From August 1998 until July 1999, Mr. Arberman was
an independent textile manufacturing consultant. From July 1974 until August
1998, Mr. Arberman served as the Vice President of Manufacturing of Westchester
Lace, Inc., a textile manufacturing firm.
PREVIOUS BLANK CHECK COMPANIES
Management has not been involved in any previous blank check offerings.
CURRENT BLANK CHECK COMPANIES
Alfred Arberman, the president of the Company, is currently involved with
other blank check companies, and is involved in creating additional companies
similar to this one. The initial business purpose of each of these companies was
or is to engage in a business combination with an unidentified company or
companies and each were or will be classified as a blank check company until
completion of a business combination.
Target companies will be located for the Company and other identical blank
check companies in chronological order of the date of formation of such blank
check companies or, in the case of blank check companies formed on the same
date, alphabetically. However, certain blank check companies may differ from the
Company in certain items such as place of incorporation, number of shares and
shareholders, working capital, types of authorized securities, preference of a
certain blank check company name by management of the target company, or other
items. It may be that a target company may be more suitable for or may prefer a
certain blank check company formed after the Company. In such case, a business
combination might be negotiated on behalf of the more suitable or preferred
blank check company regardless of date of formation.
10
<PAGE>
Mr. Arberman is the president, sole director and a beneficial shareholder of
Aguay Corporation, Arber Holdings, Argen Corporation, Entina Corporation, Renjo
Corporation and Urag Corporation. Each of these companies has filed a
registration statement on Form 10-SB under the Exchange Act, which as of the
date of this Registration Statement has not been declared effective. The initial
business purpose of each of these companies is to engage in a merger or
acquisition with an unidentified company or companies and each will be
classified as a blank check company until completion of a business acquisition.
RECENT TRANSACTIONS BY BLANK CHECK COMPANIES
None.
CONFLICTS OF INTEREST
Alfred Arberman, the Company's sole officer and director, has organized and
expects to organize other companies of a similar nature and with a similar
purpose as the Company. Consequently, there are potential inherent conflicts of
interest in acting as an officer and director of the Company. In addition,
insofar as Mr. Arberman is engaged in other business activities, he may devote
only a portion of his time to the Company's affairs.
A conflict may arise in the event that another blank check company with
which Mr. Arberman is affiliated also actively seeks a target company. It is
anticipated that target companies will be located for the Company and other
blank check companies in chronological order of the date of formation of such
blank check companies or, in the case of blank check companies formed on the
same date, alphabetically. However, other blank check companies may differ from
the Company in certain items such as place of incorporation, number of shares
and shareholders, working capital, types of authorized securities, or other
items. It may be that a target company may be more suitable for or may prefer a
certain blank check company formed after the Company. In such case, a business
combination might be negotiated on behalf of the more suitable or preferred
blank check company regardless of date of formation.
Mr. Arberman intends to devote as much time to the activities of the Company
as required. However, should such a conflict arise, there is no assurance that
Mr. Arberman would not attend to other matters prior to those of the Company.
Mr. Arberman estimates that the business plan of the Company can be implemented
in theory by devoting approximately 10 to 25 hours per month over the course of
several months but such figure cannot be stated with precision.
Mr. Arberman is the president, director and controlling shareholder of Joren
LLC., a Delaware LLC, which owns 5,000,000 shares of the Company's common stock.
At the time of a business combination, some or all of the shares of common stock
owned by Joren LLC. may be purchased by the target company or retired by the
Company. The amount of common stock sold or continued to be owned by Joren LLC.
cannot be determined at this time.
The terms of business combination may include such terms as Mr. Arberman
remaining a director or officer of the Company. The terms of a business
combination may provide for a payment by cash or otherwise to Joren LLC., for
the purchase or retirement of all or part of its common stock of the Company by
a target company or for services rendered incident to or following a business
combination. Mr. Arberman would directly benefit from such employment or
payment. Such benefits may influence Mr. Arberman's choice of a target company.
However, Mr. Arberman's beneficial and economic interest in all blank check
companies with which he is currently involved is identical.
The Company will not enter into a business combination, or acquire any
assets of any kind for its securities, in which management of the Company or any
affiliates or associates have any interest, direct or indirect.
There are no binding guidelines or procedures for resolving potential
conflicts of interest. Failure by management to resolve conflicts of interest in
favor of the Company could result in liability of management to the Company.
INVESTMENT COMPANY ACT OF 1940
Although the Company will be subject to regulation under the Securities Act
of 1933 and the Securities Exchange Act of 1934, management believes the Company
will not be subject to regulation under the Investment Company Act of 1940
insofar as the Company will not be engaged in the business of investing or
trading in securities. In the event the Company engages in business combinations
which result in the Company holding passive investment interests in a number of
entities the Company could be subject to regulation under the Investment Company
Act of 1940. In such event, the Company would be required to register as an
investment company and could be expected to incur significant registration and
compliance costs. The Company has obtained no formal determination from the
Securities and Exchange Commission as to the status of the Company under the
Investment Company Act of 1940. Any violation of such Act would subject the
Company to material adverse consequences.
11
<PAGE>
ITEM 6. EXECUTIVE COMPENSATION.
The Company's officer and director does not receive any compensation for his
services rendered to the Company, has not received such compensation in the
past, and is not accruing any compensation pursuant to any agreement with the
Company. However, the officer and director of the Company anticipates receiving
benefits as a beneficial shareholder of the Company, as the officer and director
and controlling shareholder of Arber Holdings. See "ITEM 5. DIRECTORS, EXECUTIVE
OFFICERS, PROMOTERS AND CONTROL PERSONS Conflicts of Interest".
No retirement, pension, profit sharing, stock option or insurance programs
or other similar programs have been adopted by the Company for the benefit of
its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company has issued a total of 5,000,000 shares of Common Stock to the
following persons for a total of $500 in cash:
Name Number of Total SharesConsideration
Joren LLC. 5,000,000 $500
Mr. Arberman is the sole director, controlling shareholder and president
of Joren LLC. With respect to the sales made to Joren LLC., the Company relied
upon Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act") and Rule 506 promulgated thereunder.
ITEM 8. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Company consists of 25,000,000 shares of
common stock, par value $.0001 per share, of which there are 5,000,000 issued
and outstanding and 5,000,000 shares of preferred stock, par value $.0001 per
share, of which none have been designated or issued. The following statements
relating to the capital stock set forth the material terms of the Company's
securities; however, reference is made to the more detailed provisions of, and
such statements are qualified in their entirety by reference to, the Certificate
of Incorporation and the By-laws, copies of which are filed as exhibits to this
registration statement.
COMMON STOCK
Holders of shares of common stock are entitled to one vote for each share on
all matters to be voted on by the stockholders. Holders of common stock do not
have cumulative voting rights. Holders of common stock are entitled to share
ratably in dividends, if any, as may be declared from time to time by the Board
of Directors in its discretion from funds legally available therefor. In the
event of a liquidation, dissolution or winding up of the Company, the holders of
common stock are entitled to share pro rata all assets remaining after payment
in full of all liabilities. All of the outstanding shares of common stock are
fully paid and non-assessable.
Holders of common stock have no preemptive rights to purchase the Company's
common stock. There are no conversion or redemption rights or sinking fund
provisions with respect to the common stock.
PREFERRED STOCK
The Board of Directors is authorized to provide for the issuance of shares
of preferred stock in series and, by filing a certificate pursuant to the
applicable law of Delaware, to establish from time to time the number of shares
to be included in each such series, and to fix the designation, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof without any further vote or action by the
shareholders. Any shares of preferred stock so issued would have priority over
the common stock with respect to dividend or liquidation rights. Any future
issuance of preferred stock may have the effect of delaying, deferring or
preventing a change in control of the Company without further action by the
shareholders and may adversely affect the voting and other rights of the holders
of common stock. At present, the Company has no plans to issue any preferred
stock nor adopt any series, preferences or other classification of preferred
stock.
12
<PAGE>
The issuance of shares of preferred stock, or the issuance of rights to
purchase such shares, could be used to discourage an unsolicited acquisition
proposal. For instance, the issuance of a series of preferred stock might impede
a business combination by including class voting rights that would enable the
holder to block such a transaction, or facilitate a business combination by
including voting rights that would provide a required percentage vote of the
stockholders. In addition, under certain circumstances, the issuance of
preferred stock could adversely affect the voting power of the holders of the
common stock. Although the Board of Directors is required to make any
determination to issue such stock based on its judgment as to the best interests
of the stockholders of the Company, the Board of Directors could act in a manner
that would discourage an acquisition attempt or other transaction that some, or
a majority, of the stockholders might believe to be in their best interests or
in which stockholders might receive a premium for their stock over the then
market price of such stock. The Board of Directors does not at present intend to
seek stockholder approval prior to any issuance of currently authorized stock,
unless otherwise required by law or stock exchange rules. The Company has no
present plans to issue any preferred stock.
DIVIDENDS
Dividends, if any, will be contingent upon the Company's revenues and
earnings, if any, capital requirements and financial conditions. The payment of
dividends, if any, will be within the discretion of the Company's Board of
Directors. The Company presently intends to retain all earnings, if any, for use
in its business operations and accordingly, the Board of Directors does not
anticipate declaring any dividends prior to a business combination.
TRADING OF SECURITIES IN SECONDARY MARKET
The National Securities Market Improvement Act of 1996 limited the authority
of states to impose restrictions upon sales of securities made pursuant to
Sections 4(1) and 4(3) of the Securities Act of companies which file reports
under Sections 13 or 15(d) of the Exchange Act. Upon effectiveness of this
registration statement, the Company will be required to, and will, file reports
under Section 13 of the Exchange Act. As a result, sales of the Company's common
stock in the secondary market by the holders thereof may then be made pursuant
to Section 4(1) of the Securities Act (sales other than by an issuer,
underwriter or broker) without qualification under state securities acts.
Following a business combination, a target company will normally wish to
cause the Company's common stock to trade in one or more United States
securities markets. The target company may elect to take the steps required for
such admission to quotation following the business combination or at some later
time.
In order to qualify for listing on the Nasdaq SmallCap Market, a company
must have at least (i) net tangible assets of $4,000,000 or market
capitalization of $50,000,000 or net income for two of the last three years of
$750,000; (ii) public float of 1,000,000 shares with a market value of
$5,000,000; (iii) a bid price of $4.00; (iv) three market makers; (v) 300
shareholders and (vi) an operating history of one year or, if less than one
year, $50,000,000 in market capitalization. For continued listing on the Nasdaq
SmallCap Market, a company must have at least (i) net tangible assets of
$2,000,000 or market capitalization of $35,000,000 or net income for two of the
last three years of $500,000; (ii) a public float of 500,000 shares with a
market value of $1,000,000; (iii) a bid price of $1.00; (iv) two market makers;
and (v) 300 shareholders.
If, after a business combination, the Company does not meet the
qualifications for listing on the Nasdaq SmallCap Market, the Company may apply
for quotation of its securities on the OTC Bulletin Board. In certain cases the
Company may elect to have its securities initially quoted in the "pink sheets"
published by the National Quotation Bureau, Inc.
To have its securities quoted on the OTC Bulletin Board a company must:
(1) be a company that reports its current financial information to the
Securities and Exchange Commission, banking regulators or insurance regulators;
(2) has at least one market maker who completes and files a Form 211 with
NASD Regulation, Inc.
The OTC Bulletin Board is a dealer-driven quotation service. Unlike the
Nasdaq Stock Market, companies cannot directly apply to be quoted on the OTC
Bulletin Board, only market makers can initiate quotes, and quoted companies do
not have to meet any quantitative financial requirements. Any equity security of
a reporting company not listed on the Nasdaq Stock Market or on a national
securities exchange is eligible.
TRANSFER AGENT
It is anticipated that Florida Atlantic Stock Transfer, Inc., Tamarac,
Florida will act as transfer agent for the common stock of the Company.
13
<PAGE>
PART II
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
(A) MARKET PRICE. There is no trading market for the Company's Common Stock
at present and there has been no trading market to date. There is no assurance
that a trading market will ever develop or, if such a market does develop, that
it will continue.
The Securities and Exchange Commission has adopted Rule 15g-9 which
establishes the definition of a "penny stock," for purposes relevant to the
Company, as any equity security that has a market price of less than $5.00 per
share or with an exercise price of less than $5.00 per share, subject to certain
exceptions. For any transaction involving a penny stock, unless exempt, the
rules require:
(i) that a broker or dealer approve a person's account for transactions in
penny stocks and
(ii) the broker or dealer receive from the investor a written agreement to
the transaction, setting forth the identity and quantity of the penny stock
to be purchased.
In order to approve a person's account for transactions in penny stocks, the
broker or dealer must
(i) obtain financial information and investment experience and objectives of
the person; and
(ii) make a reasonable determination that the transactions in penny stocks
are suitable for that person and that person has sufficient knowledge and
experience in financial matters to be capable of evaluating the risks of
transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prepared by the Commission relating to the penny
stock market, which, in highlight form,
(i) sets forth the basis on which the broker or dealer made the suitability
determination and
(ii) that the broker or dealer received a signed, written agreement from the
investor prior to the transaction. Disclosure also has to be made about the
risks of investing in penny stocks in both public offerings and in secondary
trading, and about commissions payable to both the broker-dealer and the
registered representative, current quotations for the securities and the rights
and remedies available to an investor in cases of fraud in penny stock
transactions.
Finally, monthly statements have to be sent disclosing recent price
information for the penny stock held in the account and information on the
limited market in penny stocks.
(B) HOLDERS. There is one holder of the Company's Common Stock. The issued
and outstanding shares of the Company's Common Stock were issued in accordance
with the exemptions from registration afforded by Section 4(2) of the Securities
Act of 1933 and Rule 506 promulgated thereunder.
(C) DIVIDENDS. The Company has not paid any dividends to date, and has no
plans to do so in the immediate future.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
The Company has not changed accountants since its formation and there are no
disagreements with the findings of its accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Company has sold securities which were not
registered as follows:
14
<PAGE>
Date Name Number of Shares Consideration
November 8, 1999 Joren LLC. 5,000,000 $500
--------
Mr. Arberman is the sole director, controlling shareholder and president of
Joren LLC. With respect to the sales made to Joren LLC., the Company relied upon
Section 4(2) of the Securities Act of 1933, as amended and Rule 506 promulgated
thereunder.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware provides
that a certificate of incorporation may contain a provision eliminating the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) of the General Corporation Law of the State of Delaware, or (iv)
for any transaction from which the director derived an improper personal
benefit. The Company's Certificate of Incorporation contains such a provision.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING
THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, IT IS THE OPINION OF THE
SECURITIES AND EXCHANGE COMMISSION THAT SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
PART F/S
FINANCIAL STATEMENTS.
Set forth below are the audited financial statements for the Company for the
period ended November 11, 1999. The following financial statements are attached
to this report and filed as a part thereof.
15
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF AND FOR THE PERIOD ENDED
NOVEMBER 11, 1999
CONTENTS
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF NOVEMBER 11, 1999
PAGE 3 STATEMENT OF OPERATIONS FOR THE PERIOD
FROM NOVEMBER 8, 1999 (INCEPTION) TO NOVEMBER 11, 1999
PAGE 4 STATEMENT OF CHANGES IN STOCKHOLDER'S
EQUITY FOR THE PERIOD FROM NOVEMBER 8, 1999 (INCEPTION)
TO NOVEMBER 11, 1999
PAGE 5 STATEMENT OF CASH FLOWS FOR THE PERIOD FROM
NOVEMBER 8, 1999 (INCEPTION) TO NOVEMBER 11, 1999
PAGES 6-8 NOTES TO FINANCIAL STATEMENTS AS OF
NOVEMBER 11, 1999
16
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Arber Holdings
(A Development Stage Company)
We have audited the accompanying balance sheet of Arber Holdings (a development
stage company) as of November 11, 1999 and the related statements of operations,
changes in stockholder's equity and cash flows for the period from November 8,
1999 (inception) to November 11, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly in all
material respects, the financial position of Arber Holdings (a development stage
company) as of November 11, 1999, and the results of its operations and its cash
flows for the period from November 8, 1999 (inception) to November 11, 1999 in
conformity with generally accepted accounting principles.
Kingery, Crouse & Hohl, P.A.
Tampa, Florida
November 12, 1999
17
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF NOVEMBER 11, 1999
ASSETS
Cash $ 500
---------
TOTAL ASSETS $ 500
=========
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES $ -
STOCKHOLDER'S EQUITY
Preferred Stock, $.0001
par value, 5 million
shares authorized, zero
issued and outstanding -
Common Stock, $.0001 par
value, 20 million
shares authorized,
5,000,000 issued
and outstanding 500
Additional paid-in
capital 299
Deficit accumulated
during development stage (299)
--------
Total Stockholder's Equity 500
--------
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 500
========
See accompanying notes to financial statements.
2
18
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIOD FROM NOVEMBER 8, 1999
(INCEPTION) TO NOVEMBER 11, 1999
Income $ -
Expenses
Organization expense 299
-------
Total expenses 299
-------
NET LOSS $ (299)
========
See accompanying notes to financial statements.
3
19
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDER'S EQUITY
FOR THE PERIOD FROM NOVEMBER 8, 1999
(INCEPTION) TO NOVEMBER 11, 1999
Deficit
Additional Accumulated
Common Paid-In During Devel-
Stock Capital opment Stage Total
Common stock issuance $ 500 $ - $ - $ 500
Fair value of services
and expenses contributed - 299 - 299
Net loss for the period
ended November 11, 1999 - - (299) (299)
--------- -------- --------- ---------
BALANCE AT NOVEMBER 11, 1999 $ 500 $ 299 $ (299) $ 500
========= ======== ========= =========
See accompanying notes to financial statements.
4
20
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM NOVEMBER 8, 1999
(INCEPTION) TO NOVEMBER 11, 1999
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ (299)
Adjustment to reconcile net loss
to net cash used by operating activities:
Capitalized services and expenses 299
Net cash used in operating activities -
CASH FLOWS FROM INVESTING ACTIVITIES -
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 500
Net cash provided by financing activities 500
INCREASE IN CASH AND CASH EQUIVALENTS 500
CASH AND CASH EQUIVALENTS BEGINNING OF PERIOD -
---------
CASH AND CASH EQUIVALENTS END OF PERIOD $ 500
=========
See accompanying notes to financial statements.
5
21
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF NOVEMBER 11, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
Arber Holdings (a development stage company) ("the Company") was
incorporated in Delaware on November 8, 1999 to serve as a vehicle to
effect a merger, exchange of capital stock, asset acquisition or other
business combination with a domestic or foreign private business. At
November 11, 1999, the Company had not yet commenced any formal business
operations, and all activity to date relates to the Company's formation and
proposed fund raising. The Company's fiscal year end is December 31.
The Company's ability to commence operations is contingent upon its ability
to identify a prospective target business and raise the capital it will
require through the issuance of equity securities, debt securities, bank
borrowings or a combination thereof.
B. Use of Estimates
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
C. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all
highly liquid investments purchased with an original maturity of three
months or less to be cash equivalents.
6
22
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF NOVEMBER 11, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
D. Income Taxes
The Company accounts for income taxes under the Financial Accounting
Standards Board of Financial Accounting Standards No. 109, "Accounting for
Income Taxes" ("Statement 109"). Under Statement 109, deferred tax assets
and liabilities are recognized for the future tax consequences attributable
to differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax basis. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are
expected to be recovered or settled. Under Statement 109, the effect on
deferred tax assets and liabilities of a change in tax rates is recognized
in income in the period that includes the enactment date. There were no
current or deferred income tax expense or benefits due to the Company not
having any material operations for the period ending November 11, 1999.
NOTE 2 - STOCKHOLDER'S EQUITY
A. Preferred Stock
The Company is authorized to issue 5,000,000 shares of preferred stock at
$.0001 par value, with such designations, voting and other rights and
preferences as may be determined from time to time by the Board of
Directors.
B. Common Stock
The Company is authorized to issue 20,000,000 shares of common stock at
$.0001 par value. The Company issued 5,000,000 shares of its common stock
to Joren LLC. for an aggregate consideration of $500.
7
23
<PAGE>
ARBER HOLDINGS
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF NOVEMBER 11, 1999
NOTE 2 - STOCKHOLDER'S EQUITY (CONT'D)
C. Additional Paid-In Capital
Additional paid-in capital at November 11, 1999 represents the fair value
of services contributed to the Company by its president and the
amount of organization costs incurred by Joren LLC.
on behalf of the Company. (See Note 3)
NOTE 3 AGREEMENT
On November 12, 1999, the Company signed an agreement with, a related
entity. The Agreement calls for Joren LLC. to provide the following
services, without reimbursement from the Company, until the Company enters
into a business combination as described in Note 1A:
1. Preparation and filing of required documents with the Securities and
Exchange Commission.
2. Location and review of potential target companies. 3. Payment of all
corporate, organizational, and other costs incurred by the Company.
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PART III
ITEM 1. INDEX TO EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
3.1 Certificate of Incorporation
3.2 By-Laws
3.3 Specimen stock certificate
10.1 Agreement with Joren LLC.
10.2 Lock up agreement
23.1 Consent of Accountants
23.2 Consent of Hodge, Evans, Holmes, Carter & Ledbetter, PLLC
27 Financial Data Schedule
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SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
Registrant caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized.
ARBER HOLDINGS
By: /s/ Alfred Arberman
Alfred Arberman, Director and President
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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ARBER HOLDINGS
ARTICLE ONE
Name
The name of the Corporation is Arber Holdings.
ARTICLE TWO
Duration
The Corporation shall have perpetual existence.
ARTICLE THREE
Purpose
The purpose for which this Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
Shares
The total number of shares of stock which the Corporation shall have
authority to issue is 25,000,000 shares, consisting of 20,000,000 shares of
Common Stock having a par value of $.0001 per share and 5,000,000 shares of
Preferred Stock having a par value of $.0001 per share.
The Board of Directors is authorized to provide for the issuance of the
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
A. The number of shares constituting that series and the distinctive
designation of that series;
B. The dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on share of that series;
C. Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
D. Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
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E. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
F. Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
G. The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
H. Any other relative rights, preferences and limitations of that series.
ARTICLE FIVE
Commencement of Business
The Corporation is authorized to commence business as soon as its
certificate of incorporation has been filed.
ARTICLE SIX
Principal Office and Registered Agent
The post office address of the initial registered office of the Corporation
and the name of its initial registered agent and its business address is
Incorporating Services, LTD. 15 E. North Street P.O. Box 989
Dover, Delaware 19903
The initial registered agent is a resident of the State of Delaware.
ARTICLE SEVEN
Incorporator
Alfred Arberman, 18555 NE 14th Ave. Building "F" Ste. 611,
North Miami Beach, Florida 33179
ARTICLE EIGHT
Pre-Emptive Rights
No Shareholder or other person shall have any pre-emptive rights whatsoever.
ARTICLE NINE
By-Laws
The initial by-laws shall be adopted by the Shareholders or the Board of
Directors. The power to alter, amend, or repeal the by-laws or adopt new by-laws
is vested in the Board of Directors, subject to repeal or change by action of
the Shareholders.
ARTICLE TEN
Number of Votes
Each share of Common Stock has one vote on each matter on which the share is
entitled to vote.
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ARTICLE ELEVEN
Majority Votes
A majority vote of a quorum of Shareholders (consisting of the holders of a
majority of the shares entitled to vote, represented in person or by proxy) is
sufficient for any action which requires the vote or concurrence of
Shareholders, unless otherwise required or permitted by law or the by-laws of
the Corporation.
ARTICLE TWELVE
Non-Cumulative Voting
Directors shall be elected by majority vote. Cumulative voting shall not be
permitted.
ARTICLE THIRTEEN
Interested Directors, Officers and Securityholders
A. Validity. If Paragraph (B) is satisfied, no contract or other transaction
between the Corporation and any of its directors, officers or securityholders,
or any corporation or firm in which any of them are directly or indirectly
interested, shall be invalid solely because of this relationship or because of
the presence of the director, officer or securityholder at the meeting of the
Board of Directors or committee authorizing the contract or transaction, or his
participation or vote in the meeting or authorization.
B. Disclosure, Approval, Fairness. Paragraph (A) shall apply only if:
(1) The material facts of the relationship or interest of each such
director, officer or securityholder are known or disclosed:
(a) to the Board of Directors or the committee and it nevertheless
authorizes or ratifies the contract or transaction by a majority of the
directors present, each such interested director to be counted in determining
whether a quorum is present but not in calculating the majority necessary to
carry the vote; or
(b) to the Shareholders and they nevertheless authorize or ratify the
contract or transaction by a majority of the shares present, each such
interested person to be counted for quorum and voting purposes; or
(2) the contract or transaction is fair to the Corporation as of the time it
is authorized or ratified by the Board of Directors, the committee or the
Shareholders.
ARTICLE FOURTEEN
Indemnification and Insurance
A. Persons. The Corporation shall indemnify, to the extent provided in
Paragraphs (B), (D) or (F) and to the extent permitted from time to time by law:
(1) any person who is or was director, officer, agent or employee of the
Corporation, and
(2) any person who serves or served at the Corporation's request as a
director, officer, agent, employee, partner or trustee of another corporation or
of a partnership, joint venture, trust or other enterprise.
B. Extent--Derivative Suits. In case of a suit by or in the right of the
Corporation against a person named in Paragraph (A) by reason of his holding a
position named in Paragraph (A), the Corporation shall indemnify him, if he
satisfies the standard in Paragraph (C), for expenses (including attorney's fees
but excluding amounts paid in settlement) actually and reasonably incurred by
him in connection with the defense or settlement of the suit.
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C. Standard--Derivative Suits. In case of a suit by or in the right of the
Corporation, a person named in Paragraph (A) shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject of the
suit, and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation. However, he shall not be indemnified in
respect of any claim, issue or matter as to which he has been adjudged 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 the suit was brought
shall determine, upon application, that despite the adjudication but in view of
all the circumstances, he is fairly and reasonably entitled to indemnity for
such expenses as the court shall deem proper.
D. Extent--Nonderivative Suits. In case of a suit, action or proceeding
(whether civil, criminal, administrative or investigative), other than a suit by
or in the right of the Corporation against a person named in Paragraph (A) by
reason of his holding a position named in Paragraph (A), the Corporation shall
indemnify him, if he satisfies the standard in Paragraph (E), for amounts
actually and reasonably incurred by him in connection with the defense or
settlement of the suit as
(1) expenses (including attorneys' fees), (2) amounts paid in settlement (3)
judgments, and (4) fines.
E. Standard--Nonderivative Suits. In case of a nonderivative suit, a person
named in Paragraph (A) shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject of the
nonderivative suit, and in a manner 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, he had no reason to believe his conduct was
unlawful. The termination of a nonderivative suit by judgement, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person failed to satisfy
this Paragraph (E) (2).
F. Determination That Standard Has Been Met. A determination that the
standard of Paragraph (C) or (E) has been satisfied may be made by a court of
law or equity or the determination may be made by:
(1) a majority of the directors of the Corporation (whether or not a quorum)
who were not parties to the action, suit or proceeding, or
(2) independent legal counsel (appointed by a majority of the directors of
the Corporation, whether or not a quorum, or elected by the Shareholders of the
Corporation) in a written opinion, or
(3) the Shareholders of the Corporation.
G. Proration. Anyone making a determination under Paragraph (F) may
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
(including attorney's fees) which may become subject to indemnification under
paragraphs (A) - (G) if:
(1) the Board of Directors authorizes the specific payment and
(2) the person receiving the payment undertakes in writing to repay unless
it is ultimately determined that he is entitled to indemnification by the
Corporation under Paragraphs (A) - (G).
I. Nonexclusive. The indemnification provided by Paragraphs (A) - (G) shall
not be exclusive of any other rights to which a person may be entitled by law or
by by-law, agreement, vote of Shareholders or disinterested directors, or
otherwise.
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J. Continuation. The indemnification and advance payment provided by
Paragraphs (A) - (H) shall continue as to a person who has ceased to hold a
position named in paragraph (A) and shall inure to his heirs, executors and
administrators.
K. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who holds or who has held any position named in Paragraph (A)
against any liability incurred by him in any such positions or arising out of
this status as such, whether or not the Corporation would have power to
indemnify him against such liability under Paragraphs (A) - (H).
L. Reports. Indemnification payments, advance payments, and insurance
purchases and payments made under Paragraphs (A) - (K) shall be reported in
writing to the Shareholders of the Corporation with the next notice of annual
meeting, or within six months, whichever is sooner.
M. Amendment of Article. Any changes in the General Corporation Law of
Delaware increasing, decreasing, amending, changing or otherwise effecting the
indemnification of directors, officers, agents, or employees of the Corporation
shall be incorporated by reference in this Article as of the date of such
changes without further action by the Corporation, its Board of Directors, of
Shareholders, it being the intention of this Article that directors, officers,
agents and employees of the Corporation shall be indemnified to the maximum
degree allowed by the General Corporation Law of the State of Delaware at all
times.
ARTICLE FIFTEEN
Limitation On Director Liability
A. Scope of Limitation. No person, by virtue of being or having been a
director of the Corporation, shall have any personal liability for monetary
damages to the Corporation or any of its Shareholders for any breach of
fiduciary duty except as to the extent provided in Paragraph (B).
B. Extent of Limitation. The limitation provided for in this Article shall
not eliminate or limit the liability of a director to the Corporation or its
Shareholders (i) for any breach of the director's duty of loyalty to the
Corporation or its Shareholders (ii) for any acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law (iii) for
any unlawful payment of dividends or unlawful stock purchases or redemptions in
violation of Section 174 of the General Corporation Law of Delaware or (iv) for
any transaction for which the director derived an improper personal benefit.
IN WITNESS WHEREOF, the incorporator hereunto has executed this certificate
of incorporation on this 8th day of November, 1999.
Alfred Arberman, Incorporator
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EXHIBIT 3.2
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ARBER HOLDINGS
BY-LAWS
ARTICLE I
The Stockholders
SECTION 1.1. ANNUAL MEETING. The annual meeting of the stockholders of
Arber Holdings (the "Corporation") shall be held on the third Thursday in May of
each year at 10:30 a.m. local time, or at such other date or time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, for the election of directors and for the transaction of such
other business as may come before the meeting.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of the stockholders may be
called at any time by the written resolution or request of two-thirds or more of
the members of the Board of Directors, the president, or any executive vice
president and shall be called upon the written request of the holders of
two-thirds or more in amount, of each class or series of the capital stock of
the Corporation entitled to vote at such meeting on the matters(s) that are the
subject of the proposed meeting, such written request in each case to specify
the purpose or purposes for which such meeting shall be called, and with respect
to stockholder proposals, shall further comply with the requirements of this
Article.
SECTION 1.3. NOTICE OF MEETINGS. Written notice of each meeting of
stockholders, whether annual or special, stating the date, hour and place where
it is to be held, shall be served either personally or by mail, not less than
fifteen nor more than sixty days before the meeting, upon each stockholder of
record entitled to vote at such meeting, and to any other stockholder to whom
the giving of notice may be required by law. Notice of a special meeting shall
also state the purpose or purposes for which the meeting is called and shall
indicate that it is being issued by, or at the direction of, the person or
persons calling the meeting. If, at any meeting, action is proposed to be taken
that would, if taken, entitle stockholders to receive payment for their stock,
the notice of such meeting shall include a statement of that purpose and to that
effect. If mailed, notice shall be deemed to be delivered when deposited in the
United States mail or with any private express mail service, postage or delivery
fee prepaid, and shall be directed to each such stockholder at his address, as
it appears on the records of the stockholders of the Corporation, unless he
shall have previously filed with the secretary of the Corporation a written
request that notices intended for him be mailed to some other address, in which
case, it shall be mailed to the address designated in such request.
SECTION 1.4. FIXING DATE OF RECORD. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of, or to vote at, a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of, or to vote at, a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting (to the extent that
such action by written consent is permitted by law, the Certificate of
Incorporation or these By-Laws), the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which date shall not
be more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in its state
of incorporation, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 1.5. INSPECTORS. At each meeting of the stockholders, the polls
shall be opened and closed and the proxies and ballots shall be received and be
taken in charge. All questions touching on the qualification of voters and the
validity of proxies and the acceptance or rejection of votes, shall be decided
by one or more inspectors. Such inspectors shall be appointed by the Board of
Directors before or at the meeting, or, if no such appointment shall have been
made, then by the presiding officer at the meeting. If for any reason any of the
inspectors previously appointed shall fail to attend or refuse or be unable to
serve, inspectors in place of any so failing to attend or refusing or unable to
serve shall be appointed in like manner.
SECTION 1.6. QUORUM. At any meeting of the stockholders, the holders of a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, and, in that case,
the representation of the number so required shall constitute a quorum.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed in
accordance with these By-Laws for an annual or special meeting, a majority in
interest of the stockholders present in person or by proxy may adjourn, from
time to time, without notice other than by announcement at the meeting, until
holders of the amount of stock requisite to constitute a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as originally
notified.
SECTION 1.7. BUSINESS. The chairman of the Board, if any, the president, or
in his absence the vice-chairman, if any, or an executive vice president, in the
order named, shall call meetings of the stockholders to order, and shall act as
chairman of such meeting; provided, however, that the Board of Directors or
executive committee may appoint any stockholder to act as chairman of any
meeting in the absence of the chairman of the Board. The secretary of the
Corporation shall act as secretary at all meetings of the stockholders, but in
the absence of the secretary at any meeting of the stockholders, the presiding
officer may appoint any person to act as secretary of the meeting.
SECTION 1.8. STOCKHOLDER PROPOSALS. No proposal by a stockholder shall be
presented for vote at a special or annual meeting of stockholders unless such
stockholder shall, not later than the close of business on the fifth day
following the date on which notice of the meeting is first given to
stockholders, provide the Board of Directors or the secretary of the Corporation
with written notice of intention to present a proposal for action at the
forthcoming meeting of stockholders, which notice shall include the name and
address of such stockholder, the number of voting securities that he holds of
record and that he holds beneficially, the text of the proposal to be presented
to the meeting and a statement in support of the proposal.
Any stockholder who was a stockholder of record on the applicable record
date may make any other proposal at an annual meeting or special meeting of
stockholders and the same may be discussed and considered, but unless stated in
writing and filed with the Board of Directors or the secretary prior to the date
set forth herein above, such proposal shall be laid over for action at an
adjourned, special, or annual meeting of the stockholders taking place sixty
days or more thereafter. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors,
and committees, but in connection with such reports, no new business proposed by
a stockholder, qua stockholder, shall be acted upon at such annual meeting
unless stated and filed as herein provided.
Notwithstanding any other provision of these By-Laws, the Corporation shall
be under no obligation to include any stockholder proposal in its proxy
statement materials or otherwise present any such proposal to stockholders at a
special or annual meeting of stockholders if the Board of Directors reasonably
believes the proponents thereof have not complied with Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder; nor shall the Corporation be required to include any stockholder
proposal not required to be included in its proxy materials to stockholders in
accordance with any such section, rule or regulation.
SECTION 1.9. PROXIES. At all meetings of stockholders, a stockholder
entitled to vote may vote either in person or by proxy executed in writing by
the stockholder or by his duly authorized attorney-in-fact. Such proxy shall be
filed with the secretary before or at the time of the meeting. No proxy shall be
valid after eleven months from the date of its execution, unless otherwise
provided in the proxy.
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SECTION 1.10. VOTING BY BALLOT. The votes for directors, and upon the
demand of any stockholder or when required by law, the votes upon any question
before the meeting, shall be by ballot.
SECTION 1.11. VOTING LISTS. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of stock registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder
who is present.
SECTION 1.12. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without the state of incorporation, as the place of
meeting for any annual meeting or any special meeting called by the Board of
Directors. If no designation is made or if a special meeting is otherwise
called, the place of meeting shall be the principal office of the Corporation.
SECTION 1.13. VOTING OF STOCK OF CERTAIN HOLDERS. Shares of capital stock
of the Corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may prescribe, or in the absence of such provision, as the board of
directors of such corporation may determine.
Shares of capital stock of the Corporation standing in the name of a
deceased person, a minor ward or an incompetent person may be voted by his
administrator, executor, court-appointed guardian or conservator, either in
person or by proxy, without a transfer of such stock into the name of such
administrator, executor, court-appointed guardian or conservator. Shares of
capital stock of the Corporation standing in the name of a trustee may be voted
by him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the name of a
receiver may be voted, either in person or by proxy, by such receiver, and stock
held by or under the control of a receiver may be voted by such receiver without
the transfer thereof into his name if authority to do so is contained in any
appropriate order of the court by which such receiver was appointed.
A stockholder whose stock is pledged shall be entitled to vote such stock,
either in person or by proxy, until the stock has been transferred into the name
of the pledgee, and thereafter the pledgee shall be entitled to vote, either in
person or by proxy, the stock so transferred.
Shares of its own capital stock belonging to this Corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding stock at any given time, but shares
of its own stock held by it in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding stock at any given time.
ARTICLE II
Board of Directors
SECTION 2.1. GENERAL POWERS. The business, affairs, and the property of the
Corporation shall be managed and controlled by the Board of Directors (the
"Board"), and, except as otherwise expressly provided by law, the Certificate of
Incorporation or these By-Laws, all of the powers of the Corporation shall be
vested in the Board.
SECTION 2.2. NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board shall be not fewer than one nor more than five.
Within the limits above specified, the number of directors shall be determined
by the Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office.
SECTION 2.3. ELECTION, TERM AND REMOVAL. Directors shall be elected at the
annual meeting of stockholders to succeed those directors whose terms have
expired. Each director shall hold office for the term for which elected and
until his or her successor shall be elected and qualified. Directors need not be
stockholders. A director may be removed from office at a meeting expressly
called for that purpose by the vote of not less than a majority of the
outstanding capital stock entitled to vote at an election of directors.
SECTION 2.4. VACANCIES. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors, may be filled
by the affirmative vote of a majority of the remaining directors then in office,
though less than a quorum; except that vacancies resulting from removal from
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office by a vote of the stockholders may be filled by the stockholders at the
same meeting at which such removal occurs provided that the holders of not less
than a majority of the outstanding capital stock of the Corporation (assessed
upon the basis of votes and not on the basis of number of shares) entitled to
vote for the election of directors, voting together as a single class, shall
vote for each replacement director. All directors elected to fill vacancies
shall hold office for a term expiring at the time of the next annual meeting of
stockholders and upon election and qualification of his successor. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of an incumbent director.
SECTION 2.5. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the president or to the secretary of the
Corporation. The resignation of any director shall take effect at the time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 2.6. PLACE OF MEETINGS, ETC. The Board of Directors may hold its
meetings, and may have an office and keep the books of the Corporation (except
as otherwise may be provided for by law), in such place or places in or outside
the state of incorporation as the Board from time to time may determine.
SECTION 2.7. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held as soon as practicable after adjournment of the annual meeting of
stockholders at such time and place as the Board of Directors may fix. No notice
shall be required for any such regular meeting of the Board.
SECTION 2.8. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at places and times fixed by resolution of the Board of Directors,
or upon call of the chairman of the Board, if any, or vice-chairman of the
Board, if any, the president, an executive vice president or two-thirds of the
directors then in office.
The secretary or officer performing the secretary's duties shall give not
less than twenty-four hours' notice by letter, telegraph or telephone (or in
person) of all special meetings of the Board of Directors, provided that notice
need not given of the annual meeting or of regular meetings held at times and
places fixed by resolution of the Board. Meetings may be held at any time
without notice if all of the directors are present, or if those not present
waive notice in writing either before or after the meeting. The notice of
meetings of the Board need not state the purpose of the meeting.
SECTION 2.9. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Directors of the Corporation, or any committee thereof, may participate in a
regular or special or any other meeting of the Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
shall constitute presence in person at such meeting.
SECTION 2.10. ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if prior or subsequent to such action
all the members of the Board or such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Board or committee.
SECTION 2.11. QUORUM. A majority of the total number of directors then in
office shall constitute a quorum for the transaction of business; but if at any
meeting of the Board there be less than a quorum present, a majority of those
present may adjourn the meeting from time to time.
SECTION 2.12. BUSINESS. Business shall be transacted at meetings of the
Board of Directors in such order as the Board may determine. At all meetings of
the Board of Directors, the chairman of the Board, if any, the president, or in
his absence the vice-chairman, if any, or an executive vice president, in the
order named, shall preside.
SECTION 2.13. INTEREST OF DIRECTORS IN CONTRACTS. (a) No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the Corporation's
directors or officers, are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
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(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of
Directors, a committee of the Board of Directors or the
stockholders.
(b) Interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
SECTION 2.14. COMPENSATION OF DIRECTORS. Each director of the Corporation
who is not a salaried officer or employee of the Corporation, or of a subsidiary
of the Corporation, shall receive such allowances for serving as a director and
such fees for attendance at meetings of the Board of Directors or the executive
committee or any other committee appointed by the Board as the Board may from
time to time determine.
SECTION 2.15. LOANS TO OFFICERS OR EMPLOYEES. The Board of Directors may
lend money to, guarantee any obligation of, or otherwise assist, any officer or
other employee of the Corporation or of any subsidiary, whether or not such
officer or employee is also a director of the Corporation, whenever, in the
judgment of the directors, such loan, guarantee, or assistance may reasonably be
expected to benefit the Corporation; provided, however, that any such loan,
guarantee, or other assistance given to an officer or employee who is also a
director of the Corporation must be authorized by a majority of the entire Board
of Directors. Any such loan, guarantee, or other assistance may be made with or
without interest and may be unsecured or secured in such manner as the Board of
Directors shall approve, including, but not limited to, a pledge of shares of
the Corporation, and may be made upon such other terms and conditions as the
Board of Directors may determine.
SECTION 2.16. NOMINATION. Subject to the rights of holders of any class or
series of stock having a preference over the common stock as to dividends or
upon liquidation, nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the secretary of the Corporation
not later than (i) with respect to an election to be held at an annual meeting
of stockholders, the close of business on the last day of the eighth month after
the immediately preceding annual meeting of stockholders, and (ii) with respect
to an election to be held at a special meeting of stockholders for the election
of directors, the close of business on the fifth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors,
and; (e) the consent of each nominee to serve as a director of the Corporation
if so elected. The presiding officer at the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the foregoing
procedure.
ARTICLE III
Committees
SECTION 3.1. COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the number of directors then fixed by these By-Laws or resolution
thereto, may establish such standing or special committees of the Board as it
may deem advisable, and the members, terms, and authority of such committees
shall be set forth in the resolutions establishing such committee.
SECTION 3.2. EXECUTIVE COMMITTEE NUMBER AND TERM OF OFFICE. The Board of
Directors may, at any meeting, by majority vote of the Board of Directors, elect
from the directors an executive committee. The executive committee shall consist
of such number of members as may be fixed from time to time by resolution of the
Board of Directors. The Board of Directors may designate a chairman of the
committee who shall preside at all meetings thereof, and the committee shall
designate a member thereof to preside in the absence of the chairman.
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SECTION 3.3. EXECUTIVE COMMITTEE POWERS. The executive committee may, while
the Board of Directors is not in session, exercise all or any of the powers of
the Board of Directors in all cases in which specific directions shall not have
been given by the Board of Directors; except that the executive committee shall
not have the power or authority of the Board of Directors to (i) amend the
Certificate of Incorporation or the By-Laws of the Corporation, (ii) fill
vacancies on the Board of Directors, (iii) adopt an agreement or certification
of ownership, merger or consolidation, (iv) recommend to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, or a dissolution of the Corporation or a revocation of a
dissolution, (v) declare a dividend, or (vi) authorize the issuance of stock.
SECTION 3.4. EXECUTIVE COMMITTEE MEETINGS. Regular and special meetings of
the executive committee may be called and held subject to the same requirements
with respect to time, place and notice as are specified in these By-Laws for
regular and special meetings of the Board of Directors. Special meetings of the
executive committee may be called by any member thereof. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special or regular meeting of the executive meeting if a quorum is present. At
any meeting at which every member of the executive committee shall be present,
in person or by telephone, even though without any notice, any business may be
transacted. All action by the executive committee shall be reported to the Board
of Directors at its meeting next succeeding such action.
The executive committee shall fix its own rules of procedure, and shall
meet where and as provided by such rules or by resolution of the Board of
Directors, but in every case the presence of a majority of the total number of
members of the executive committee shall be necessary to constitute a quorum. In
every case, the affirmative vote of a quorum shall be necessary for the adoption
of any resolution.
SECTION 3.5. EXECUTIVE COMMITTEE VACANCIES. The Board of Directors, by
majority vote of the Board of Directors then in office, shall fill vacancies in
the executive committee by election from the directors.
ARTICLE IV
The Officers
SECTION 4.1. NUMBER AND TERM OF OFFICE. The officers of the Corporation
shall consist of, as the Board of Directors may determine and appoint from time
to time, a chief executive officer, a president, one or more executive
vice-presidents, a secretary, a treasurer, a controller, and/or such other
officers as may from time to time be elected or appointed by the Board of
Directors, including such additional vice-presidents with such designations, if
any, as may be determined by the Board of Directors and such assistant
secretaries and assistant treasurers. In addition, the Board of Directors may
elect a chairman of the Board and may also elect a vice-chairman as officers of
the Corporation. Any two or more offices may be held by the same person. In its
discretion, the Board of Directors may leave unfilled any office except as may
be required by law.
The officers of the Corporation shall be elected or appointed from time to
time by the Board of Directors. Each officer shall hold office until his
successor shall have been duly elected or appointed or until his death or until
he shall resign or shall have been removed by the Board of Directors.
Each of the salaried officers of the Corporation shall devote his entire
time, skill and energy to the business of the Corporation, unless the contrary
is expressly consented to by the Board of Directors or the executive committee.
SECTION 4.2. REMOVAL. Any officer may be removed by the Board of
Directors whenever, in its judgment, the best interests of the Corporation
would be served thereby.
SECTION 4.3. THE CHAIRMAN OF THE BOARD. The chairman of the Board, if any,
shall preside at all meetings of stockholders and of the Board of Directors and
shall have such other authority and perform such other duties as are prescribed
by law, by these By-Laws and by the Board of Directors. The Board of Directors
may designate the chairman of the Board as chief executive officer, in which
case he shall have such authority and perform such duties as are prescribed by
these By-Laws and the Board of Directors for the chief executive officer.
SECTION 4.4. THE VICE-CHAIRMAN. The vice-chairman, if any, shall have such
authority and perform such other duties as are prescribed by these By-Laws and
by the Board of Directors. In the absence or inability to act of the chairman of
the Board and the president, he shall preside at the meetings of the
stockholders and of the Board of Directors and shall have and exercise all of
the powers and duties of the chairman of the Board. The Board of Directors may
designate the vice-chairman as chief executive officer, in which case he shall
have such authority and perform such duties as are prescribed by these By-Laws
and the Board of Directors for the chief executive officer.
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SECTION 4.5. THE PRESIDENT. The president shall have such authority and
perform such duties as are prescribed by law, by these By-Laws, by the Board of
Directors and by the chief executive officer (if the president is not the chief
executive officer). The president, if there is no chairman of the Board, or in
the absence or the inability to act of the chairman of the Board, shall preside
at all meetings of stockholders and of the Board of Directors. Unless the Board
of Directors designates the chairman of the Board or the vice-chairman as chief
executive officer, the president shall be the chief executive officer, in which
case he shall have such authority and perform such duties as are prescribed by
these By-Laws and the Board of Directors for the chief executive officer.
SECTION 4.6. THE CHIEF EXECUTIVE OFFICER. Unless the Board of Directors
designates the chairman of the Board or the vice-chairman as chief executive
officer, the president shall be the chief executive officer. The chief executive
officer of the Corporation shall have, subject to the supervision and direction
of the Board of Directors, general supervision of the business, property and
affairs of the Corporation, including the power to appoint and discharge agents
and employees, and the powers vested in him by the Board of Directors, by law or
by these By-Laws or which usually attach or pertain to such office.
SECTION 4.7. THE EXECUTIVE VICE-PRESIDENTS. In the absence of the chairman
of the Board, if any, the president and the vice-chairman, if any, or in the
event of their inability or refusal to act, the executive vice-president (or in
the event there is more than one executive vice-president, the executive
vice-presidents in the order designated, or in the absence of any designation,
then in the order of their election) shall perform the duties of the chairman of
the Board, of the president and of the vice-chairman, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the chairman
of the Board, the president and the vice-chairman. Any executive vice-president
may sign, with the secretary or an authorized assistant secretary, certificates
for stock of the Corporation and shall perform such other duties as from time to
time may be assigned to him by the chairman of the Board, the president, the
vice-chairman, the Board of Directors or these By-Laws.
SECTION 4.8. THE VICE-PRESIDENTS. The vice-presidents, if any, shall
perform such duties as may be assigned to them from time to time by the chairman
of the Board, the president, the vice-chairman, the Board of Directors, or these
By-Laws.
SECTION 4.9. THE TREASURER. Subject to the direction of chief executive
officer and the Board of Directors, the treasurer shall have charge and custody
of all the funds and securities of the Corporation; when necessary or proper he
shall endorse for collection, or cause to be endorsed, on behalf of the
Corporation, checks, notes and other obligations, and shall cause the deposit of
the same to the credit of the Corporation in such bank or banks or depositary as
the Board of Directors may designate or as the Board of Directors by resolution
may authorize; he shall sign all receipts and vouchers for payments made to the
Corporation other than routine receipts and vouchers, the signing of which he
may delegate; he shall sign all checks made by the Corporation (provided,
however, that the Board of Directors may authorize and prescribe by resolution
the manner in which checks drawn on banks or depositories shall be signed,
including the use of facsimile signatures, and the manner in which officers,
agents or employees shall be authorized to sign); unless otherwise provided by
resolution of the Board of Directors, he shall sign with an officer-director all
bills of exchange and promissory notes of the Corporation; whenever required by
the Board of Directors, he shall render a statement of his cash account; he
shall enter regularly full and accurate account of the Corporation in books of
the Corporation to be kept by him for that purpose; he shall, at all reasonable
times, exhibit his books and accounts to any director of the Corporation upon
application at his office during business hours; and he shall perform all acts
incident to the position of treasurer. If required by the Board of Directors,
the treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such sure ties as the Board of Directors may require.
SECTION 4.10. THE SECRETARY. The secretary shall keep the minutes of all
meetings of the Board of Directors, the minutes of all meetings of the
stockholders and (unless otherwise directed by the Board of Directors) the
minutes of all committees, in books provided for that purpose; he shall attend
to the giving and serving of all notices of the Corporation; he may sign with an
officer-director or any other duly authorized person, in the name of the
Corporation, all contracts authorized by the Board of Directors or by the
executive committee, and, when so ordered by the Board of Directors or the
executive committee, he shall affix the seal of the Corporation thereto; he may
sign with the president or an executive vice-president all certificates of
shares of the capital stock; he shall have charge of the certificate books,
transfer books and stock ledgers, and such other books and papers as the Board
of Directors or the executive committee may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon application
at the secretary's office during business hours; and he shall in general perform
all the duties incident to the office of the secretary, subject to the control
of the chief executive officer and the Board of Directors.
SECTION 4.11. THE CONTROLLER. The controller shall be the chief accounting
officer of the Corporation. Subject to the supervision of the Board of
Directors, the chief executive officer and the treasurer, the controller shall
provide for and maintain adequate records of all assets, liabilities and
transactions of the Corporation, shall see that accurate audits of the
Corporation's affairs are currently and adequately made and shall perform such
other duties as from time to time may be assigned to him.
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SECTION 4.12. THE ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
assistant treasurers shall respectively, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors may determine. The assistant secretaries as
thereunto authorized by the Board of Directors may sign with the chairman of the
Board, the president, the vice-chairman or an executive vice-president,
certificates for stock of the Corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The assistant treasurers
and assistant secretaries, in general, shall perform such duties as shall be
assigned to them by the treasurer or the secretary, respectively, or chief
executive officer, the Board of Directors, or these By-Laws.
SECTION 4.13. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of 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.
SECTION 4.14. VOTING UPON STOCKS. Unless otherwise ordered by the Board of
Directors or by the executive committee, any officer, director or any person or
persons appointed in writing by any of them, shall have full power and authority
in behalf of the Corporation to attend and to act and to vote at any meetings of
stockholders of any corporation in which the Corporation may hold stock, and at
any such meeting shall possess and may exercise any and all the rights and
powers incident to the ownership of such stock, and which, as the owner thereof,
the Corporation might have possessed and exercised if present. The Board of
Directors may confer like powers upon any other person or persons.
ARTICLE V
Contracts and Loans
SECTION 5.1. CONTRACTS. The Board of 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.
SECTION 5.2. 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 Board of Directors. Such authority
may be general or confined to specific instances.
ARTICLE VI
Certificates for Stock and Their Transfer
SECTION 6.1. CERTIFICATES FOR STOCK. Certificates representing stock of the
Corporation shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed by the chairman of the Board, the
president, the vice-chairman or an executive vice-president and/or by the
secretary or an authorized assistant secretary and shall be sealed with the seal
of the Corporation. The seal may be a facsimile. If a stock certificate is
countersigned (i) by a transfer agent other than the Corporation or its
employee, or (ii) by a registrar other than the Corporation or its employee, any
other signature on the certificate may be a facsimile. In the event that any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. All certificates for stock shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares of stock represented thereby are issued, with the number of shares of
stock and date of issue, shall be entered on the books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be canceled and
no new certificates shall be issued until the former certificate for a like
number of shares of stock shall have been surrendered and canceled, except that,
in the event of a lost, destroyed or mutilated certificate, a new one may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
SECTION 6.2. TRANSFERS OF STOCK. Transfers of stock of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the Corporation, and on
surrender for cancellation of the certificate for such stock. The person in
whose name stock stands on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation.
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ARTICLE VII
Fiscal Year
SECTION 7.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the first day of January in each year and end on the last day of
December in each year.
ARTICLE VIII
Seal
SECTION 8.1. SEAL. The Board of Directors shall approve a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the
name of the Corporation.
ARTICLE IX
Waiver of Notice
SECTION 9.1. WAIVER OF NOTICE. Whenever any notice is required to be given
under the provisions of these By-Laws or under the provisions of the Certificate
of Incorporation or under the provisions of the corporation law of the state of
incorporation, 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. Attendance of any person at a
meeting for which any notice is required to be given under the provisions of
these By-Laws, the Certificate of Incorporation or the corporation law of the
state of incorporation shall constitute a waiver of notice of such meeting
except when the person attends for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
ARTICLE X
Amendments
SECTION 10.1. AMENDMENTS. These By-Laws may be altered, amended or
repealed and new By-Laws may be adopted at any meeting of the Board of Directors
of the Corporation by the affirmative vote of a majority of the members of the
Board, or by the affirmative vote of a majority of the outstanding capital stock
of the Corporation (assessed upon the basis of votes and not on the basis of
number of shares) entitled to vote generally in the election of directors,
voting together as a single class.
ARTICLE XI
Indemnification
SECTION 11.1. INDEMNIFICATION. The Corporation shall indemnify its
officers, directors, employees and agents to the fullest extent permitted by
the General Corporation Law of Delaware, as amended from time to time.
[END]
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EXHIBIT 3.3
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November 8, 1999
Number Shares
Incorporated under the laws of the state of Delaware
Arber Holdings
Authorized to issue 25,000,000 shares
20,000,000 common shares 5,000,000 preferred shares
par value $.0001 each par value $.0001 each
This certifies that _______________________________ is the owner of
_____________________ fully paid and non-assessable Shares of the Common
Shares of ARBER HOLDINGS
transferrable only on the books of the Corporation by the holder hereof in
person or by duly authorized 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 to be sealed with the Seal of the
Corporation
this ________ day of ____________A.D. _____
-------------------------------------
President
[SEAL]
(Reverse side of stock certificate)
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations. Additional abbreviations may also
be used though not in the list.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common UNIF GIFT MIN ACT -- ____________Custodian _________(Minor)
under Uniform Gifts to Minors Act ______________(State)
For value received, the undersigned hereby sells, assigns and transfers unto
_____________________________ (please insert social security or other
identifying number of assignee) _________________________________________
____________________________________________________________________
(please print or typewrite name and address of assignee)
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_____________________________ Shares represented by the within Certificate, and
hereby irrevocably constitutes and appoints ____________________ Attorney to
transfer the said shares on the books of the within-named Corporation with full
power of substitution in the premises.
Dated, _______________________________
-----------------------------------
In presence of
- ---------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the certificate in every particular without alteration
or enlargement, or any change whatever.
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EXHIBIT 10.1
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ARBER HOLDINGS
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
Joren LLC.
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
Re: Lock Up Agreement with Joren LLC.
Gentlemen:
As part of the sale of the shares of Common Stock of Arber Holdings (the
"Company") to the undersigned (the "Holder"), the Holder hereby represents,
warrants, covenants and agrees, for the benefit of the Company and any holders
of record (the "third party beneficiaries") of the Company's outstanding
securities, including the Company's Common Stock, $.0001 par value (the "Stock")
at the date hereof and during the pendency of this letter agreement that the
Holder will not transfer, sell, contract to sell, devise, gift, assign, pledge,
hypothecate, distribute or grant any option to purchase or otherwise dispose of,
directly or indirectly, its shares of Stock of the Company owned beneficially or
otherwise by the Holder except in connection with or following completion of a
merger, acquisition or other transaction by the Company resulting in the Company
no longer being classified as a blank check company as defined in the
registration statement of the Company filed on Form 10-SB.
Any attempted sale, transfer or other disposition in violation of this
letter agreement shall be null and void.
The Holder further agrees that the Company (i) may instruct its transfer
agent not to transfer such securities (ii) may provide a copy of this letter
agreement to the Company's transfer agent for the purpose of instructing the
Company's transfer agent to place a legend on the certificate(s) evidencing the
securities subject hereto and disclosing that any transfer, sale, contract for
sale, devise, gift, assignment, pledge or hypothecation of such securities is
subject to the terms of this letter agreement and (iii) may issue stop-transfer
instructions to its transfer agent for the period contemplated by this letter
agreement for such securities.
This letter agreement shall be binding upon the Holder, its agents, heirs,
successors, assigns and beneficiaries.
Any waiver by the Company of any of the terms and conditions of this letter
agreement in any instance must be in writing and must be duly executed by the
Company and the Holder and shall not be deemed or construed to be a waiver of
such term or condition for the future, or of any subsequent breach thereof.
The Holder agrees that any breach of this letter agreement will cause the
Company and the third party beneficiaries irreparable damage for which there is
no adequate remedy at law. If there is a breach or threatened breach of this
letter agreement by the Holder, the Holder hereby agrees that the Company and
the third party beneficiaries shall be entitled to the issuance of an immediate
injunction without notice to restrain the breach or threatened breach. The
Holder also agrees that the Company and all third party beneficiaries shall be
entitled to pursue any other remedies for such a breach or threatened breach,
including a claim for money damages.
Agreed and accepted this 8th day of November, 1999.
THE HOLDER
By: /s/ Alfred Arberman
President
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EXHIBIT 10.2
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AGREEMENT between ARBER HOLDINGS ("Arber") and JOREN LLC. ("JOREN").
WHEREAS Arber is a development stage company that has no specific business
plan and intends to merge, acquire or otherwise combine with an unidentified
company (the "Business Combination");
WHEREAS Joren assisted in the incorporation of Arber;
WHEREAS Joren is a shareholder of Arber and desires that Arber locate a
suitable target company for a Business Combination;
WHEREAS Arber desires that Joren assist it in locating a suitable target
company for a Business Combination;
NOW THEREFORE, it is agreed:
1.00 ACTIONS BY JOREN. Joren LLC agrees to assist in:
1.01 The preparation and filing with the Securities and Exchange Commission
of a registration statement on Form 10-SB for the common stock of Arber;
1.02 The location and review of potential target companies for a Business
Combination and the introduction of potential candidates to Arber;
1.03 The preparation and filing with the Securities and Exchange Commission
of all required filings under the Securities Exchange Act of 1934 until Arber
enters into a Business Combination;
2.00 PAYMENT OF ARBER EXPENSES. Joren agrees to pay on behalf of Arber all
corporate, organizational and other costs incurred or accrued by Arber until
effectiveness of a Business Combination. Joren understands and agrees that it
will not be reimbursed for any payments made by it on behalf of Arber.
3.00 INDEPENDENT CONSULTANT. Joren is not now, and shall not be, authorized
to enter into any agreements, contracts or understandings on behalf of Arber and
Joren is not, and shall not be deemed to be, an agent of Arber.
4.00 USE OF OTHER CONSULTANTS. Arber understands and agrees that Joren
intends to work with consultants, brokers, bankers, or others to assist it in
locating business entities suitable for a Business Combination and that Joren
may share with such consultants or others, in its sole discretion, all or any
portion of its stock in Arber and may make payments to such consultants from its
own resources for their services. Arber shall have no responsibility for all or
any portion of such payments.
5.00 JOREN EXPENSES. Joren will bear its own expenses incurred in regard to
its actions under this agreement.
6.00 ARBITRATION. The parties hereby agree that any and all claims (except
only for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the State of Florida.
7.00 COVENANT OF FURTHER ASSURANCES. The parties agree to take any further
actions and to execute any further documents which may from time to time be
necessary or appropriate to carry out the purposes of this agreement.
8.00 PRIOR AGREEMENTS. This agreement constitutes the entire agreement
between the parties and memorializes the prior oral agreement between the
parties and all understandings between the parties pursuant to such oral
agreements are recorded herein. The effective date herein is as of the earliest
date of the oral agreement between the parties.
9.00 EFFECTIVE DATE. The effective date of this agreement is as of November
8, 1999.
IN WITNESS WHEREOF, the parties have approved and executed this agreement.
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ARBER HOLDINGS
/s/ Alfred Arberman
President
JOREN LLC
/s/ Alfred Arberman
President
49
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EXHIBIT 23.1
50
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration Statement of Arber
Holdings our report as of and for the period ended November 11, 1999 dated
November 12, 1999 relating to the financial statements of Arber Holdings which
appears in such Form 10-SB.
KINGERY, CROUSE & HOHl, P.A.
Certified Public Accountants
Tampa, Florida
November 12, 1999
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EXHIBIT 23.2
52
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HOGE, EVANS, HOLMES, CARTER & LEDBETTER, PLLC
ATTORNEYS AND COUNSELORS
HAMPTON COURT
SUITE 600
4311 OAKLAWN
DALLAS, TEXAS 75219
Steven B. Holmes
Licensed In TELEPHONE (214) 765-6000
Texas and Oklahoma TELECOPIER (214) 765-6020
E-MAIL [email protected]
November 12, 1999
Board of Directors
Arber Holdings
18555 NE 14th Ave.
Building "F" Ste. 611
North Miami Beach, Florida 33179
Re: Arber Holdings
Registration Statement on Form 10-SB
Gentlemen:
We have been retained by Arber Holdings (the "Company") in connection with
the Registration Statement (the "Registration Statement") on Form 10-SB, to be
filed by the Company with the Securities and Exchange Commission relating to the
offering of securities of the Company. You have requested that we render our
opinion as to whether or not the securities proposed to be issued on terms set
forth in the Registration Statement will be validly issued, fully paid, and
nonassessable.
In connection with the request, we have examined the following:
1. Articles of Incorporation of the Company;
2. Bylaws of the Company;
3. The Registration Statement; and
4. Unanimous consent resolutions of the Company's Board of Directors.
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HOGE, EVANS, HOLMES, CARTER & LEDBETTER, PLLC
Board of Directors
November 12, 1999
Page 2
We have examined such other corporate records and documents and have made
such other examinations as we have deemed relevant.
Based on the above examination, we are of the opinion that the securities of
the Company to be issued pursuant to the Registration Statement are validly
authorized and, when issued in accordance with the terms set forth in the
Registration Statement, will be validly issued, and fully paid, and
non-assessable under the corporate laws of the State of Delaware.
We consent to our name being used in the Registration Statement as having
rendered the foregoing opinion and as having represented the Company in
connection with the Registration Statement.
Sincerely,
HOGE, EVANS, HOLMES,
CARTER & LEDBETTER PLLC
/s/Steven B. Holmes
SBH
54
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