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GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS UNDER THE 1934 ACT
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
File No.: _____________
CIK: 1098970
HANCOCK HOLDINGS, INC.
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(Name of Small Business Issuer)
Delaware 52-2102435
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(State or Other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
39 Broadway, Suite 2704, New York, NY 10006
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(Address of Principal Executive Offices) (Zip Code)
Issuer's telephone number (212) 425-8200
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Securities to be registered under Section 12(b) of the Act:
NONE
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Securities to be Registered Under Section 12(g) of the Act:
Common Stock, $.0001 Par Value
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(Title of Class)
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TABLE OF CONTENTS
PART I.
ITEM 1. DESCRIPTION OF BUSINESS
ITEM 2. PLAN OF OPERATION
ITEM 3. DESCRIPTION OF PROPERTY
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
ITEM 6. EXECUTIVE COMPENSATION
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
ITEM 8. DESCRIPTION OF SECURITIES
PART II.
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCK-HOLDER MATTERS
ITEM 2. LEGAL PROCEEDINGS
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
PART F/S.
FINANCIAL STATEMENTS
INDEPENDENT AUDITORS' REPORT
BALANCE SHEET AS OF SEPTEMBER 30, 1999
NOTES TO BALANCE SHEET AS OF SEPTEMBER 30, 1999
PART III.
ITEM 1. INDEX TO EXHIBITS
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PART I
ITEM 1. DESCRIPTION OF BUSINESS.
Hancock Holdings, Inc. (the "Company"), was incorporated on May 18, 1999,
under the laws of the State of Delaware. The Company was formed in order to seek
business opportunities and is currently a "shell" with no commercial operations.
To date its activities have been organizational in nature and as a result it
must be considered to be in its developmental stage. The Company has no full
time employees, owns no real estate and since inception has been primarily
concerned with developing its business plan and raising its initial capital.
The Company's current business plan is to seek out business opportunities
and to pursue other related activities intended to enhance shareholder value.
Because the Company has no capital, it is unlikely that the Company will be able
to take advantage of more than one such business opportunity. The Company
intends to seek opportunities demonstrating the potential of long-term growth as
opposed to short-term earnings.
The acquisition of a business opportunity will probably be in the form of
a merger with a foreign or domestic private issuer that wishes to become a
reporting issuer. However, the Company is not limiting its search to such an
opportunity and as a result the business opportunity may also take the form of a
purchase, exchange of stock, or otherwise, and may encompass assets or a
business entity, such as a corporation, joint venture, or partnership.
Neither does the Company intend to restrict its search for business
opportunities to any particular geographical area or industry, and may,
therefore, engage in essentially any business, to the extent of its limited
resources. This includes industries such as service, finance, natural resources,
manufacturing, high technology, product development, medical, communications and
others. The Company's discretion in the selection of business opportunities is
unrestricted, subject to the availability of such opportunities, economic
conditions, and other factors.
To date, the Company has not identified any business opportunity that it
plans to pursue, nor has the Company reached any agreement or definitive
understanding with any person concerning an acquisition. The Company is filing
Form 10-SB on a voluntary basis in order to become a 12(g) registered company
under the Securities Exchange Act of 1934. As a "reporting company," the Company
may be more attractive to a private acquisition target because it may be listed
to trade its shares on the OTCBB.
As a consequence of this registration of its securities, any entity which
has an interest in being acquired by, or merging into, the Company is expected
to be an entity that desires to become a public company and establish a public
trading market for its securities. There are various reasons why an entity would
wish to become a public
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company including (i) the ability to use registered securities as currency in
acquisitions of assets or businesses; (ii) increased visibility in the financial
community; (iii) the facilitation of borrowing from financial institutions; (iv)
increased liquidity to investors; (v) greater ease in subsequently raising
capital (vi) compensation of key employees through stock options; (vii) enhanced
corporate image; and (viii) a presence in the United States capital markets.
Management believes that the business opportunity will likely be a
business entity with the goal of becoming a public company in order to use 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 its securities on terms acceptable to it; a company that wishes
to become public with less dilution of its common stock than would occur upon an
underwriting; a company that believes that it will be able to obtain investment
capital on more favorable terms after it has become public; or a foreign company
that wishes to make an initial entry into the United States securities market.
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.
The Company is unable to predict when it may participate in a business
opportunity. It expects, however, that the analysis of specific proposals and
the selection of a business opportunity may take several months or more. 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.
In all probability, however, upon completion of an acquisition or merger,
there will be a change in control through issuance of substantially more shares
of common stock. Further, in conjunction with an acquisition or merger, it is
likely that management may offer to sell a controlling interest at a price not
relative to or reflective of any value of the shares sold by management, and at
a price which could not be achieved by individual shareholders at the time.
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.
RISK FACTORS
The Company's business is subject to numerous risk factors, including the
following:
NO OPERATING HISTORY OR 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 will, in all
likelihood, sustain operating expenses without corresponding revenues, at least
until the consummation of a business combination. This may result in the Company
incurring a
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net operating loss which will increase continuously until the Company can
consummate a business combination with a target company. There is no assurance
that the Company can identify such a target company and consummate such a
business combination.
SPECULATIVE NATURE OF THE COMPANY'S PROPOSED OPERATIONS. 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 management will prefer business combinations with entities having
established operating histories, 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, of which there can be no assurance,
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.
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.
NO AGREEMENT FOR BUSINESS COMBINATION OR OTHER TRANSACTION--NO STANDARDS
FOR BUSINESS COMBINATION. The Company has no current arrangement, agreement or
understanding with respect to engaging in a merger with or acquisition of a
specific business 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. Management has not identified any particular
industry or specific business within an industry for evaluation by the Company.
There is no assurance that the Company will be able to negotiate a business
combination on terms favorable to the 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.
CONTINUED MANAGEMENT CONTROL, LIMITED TIME AVAILABILITY. While seeking a
business combination, management anticipates devoting only a limited amount of
time per month to the business of the Company. The Company's officers have not
entered into a written employment agreement with the Company and they are not
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expected to do so in the foreseeable future. The Company has not obtained key
man life insurance on its officers and directors. Notwithstanding the combined
limited experience and time commitment of management, loss of the services of
these individuals would adversely affect development of the Company's business
and its likelihood of continuing operations.
CONFLICTS OF INTEREST--GENERAL. Certain conflicts of interest may exist
between the Company and its officers and directors. They have other business
interests to which they devote their attention, and may be expected to continue
to do so although management time should be devoted to the business of the
Company. As a result, conflicts of interest may arise that can be resolved only
through exercise of such judgment as is consistent with fiduciary duties to the
Company. See "Management," and "Conflicts of Interest."
It is anticipated that the Company's officers and directors may actively
negotiate or otherwise consent to the purchase of a portion of their common
stock as a condition to, or in connection with, a proposed merger or acquisition
transaction. In this process, the Company's officers may consider their own
personal pecuniary benefit rather than the best interests of other Company
shareholders, and the other Company shareholders are not expected to be afforded
the opportunity to approve or consent to any particular stock buy-out
transaction. See "Conflicts of Interest."
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION. Section 13 of
the Securities Exchange Act of 1934 (the "Exchange Act") requires companies
subject thereto to provide certain information about significant acquisitions
including certified financial statements for the company acquired covering one
or two years, depending on the relative size of the acquisition. The time and
additional costs that may be incurred by some 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.
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 merger or acquisition of the type contemplated by the
Company, there is no assurance the Company will be successful in completing any
such business combination.
LACK OF DIVERSIFICATION. The Company's proposed operations, even if
successful, will in all likelihood result in the Company engaging in a business
combination with only one business entity. Consequently, the Company's
activities will be limited to those engaged in by the business entity that the
Company merges with or acquires. The Company's inability to diversify its
activities into a number of areas may
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subject the Company to economic fluctuations within a particular business or
industry and therefore increase the risks associated with the Company's
operations.
REGULATION UNDER INVESTMENT COMPANY ACT. Although the Company will be
subject to regulation under the Exchange Act, 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 and, consequently, any violation of such Act
could subject the Company to material adverse consequences.
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. Any such business combination may require shareholders of the
Company to sell or transfer all or a portion of the Company's common stock held
by them. The resulting change in control of the Company will likely result in
removal of the present officers and directors of the Company and a corresponding
reduction in or elimination of their participation in the future affairs of the
Company.
REGULATION OF PENNY STOCKS. The Company's securities, when available for
trading, will be subject to a Securities and Exchange Commission rule that
imposes special sales practice requirements upon broker-dealers who sell such
securities to persons other than established customers or accredited investors.
For purposes of the rule, the phrase "accredited investors" means, in general
terms, institutions with assets in excess of $5,000,000, or individuals having a
net worth in excess of $1,000,000 or having an annual income that exceeds
$200,000 (or that, when combined with a spouse's income, exceeds $300,000). For
transactions covered by the rule, the broker-dealer must make a special
suitability determination for the purchaser and receive the purchaser's written
agreement to the transaction prior to the sale. Consequently, the rule may
affect the ability of broker-dealers to sell the Company's securities and also
may affect the ability of purchasers in this offering to sell their securities
in any market that might develop therefore.
In addition, the Securities and Exchange Commission has adopted a number
of rules to regulate "penny stocks." Such rules include Rules 3a51-1, 15g-1,
15g-2, 15g-3, 15g-4, 15g-5, 15g-6, 15g-7, and 15g-9 under the Securities
Exchange Act of 1934, as amended. Because the securities of the Company may
constitute "penny stocks" within the meaning of the rules, the rules would apply
to the Company and to its securities. The rules may further affect the ability
of owners of Shares to sell the securities of the Company in any market that
might develop for them.
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Shareholders should be aware that, according to the Securities and
Exchange Commission, the market for penny stocks has suffered in recent years
from patterns of fraud and abuse. Such patterns include (i) control of the
market for the security by one or a few broker-dealers that are often related to
the promoter or issuer; (ii) manipulation of prices through prearranged matching
of purchases and sales and false and misleading press releases; (iii) "boiler
room" practices involving high-pressure sales tactics and unrealistic price
projections by inexperienced sales persons; (iv) excessive and undisclosed
bid-ask differentials and markups by selling broker-dealers; and (v) the
wholesale dumping of the same securities by promoters and broker-dealers after
prices have been manipulated to a desired level, along with the resulting
inevitable collapse of those prices and with consequent investor losses. The
Company's management is aware of the abuses that have occurred historically in
the penny stock market. Although the Company does not expect to be in a position
to dictate the behavior of the market or of broker-dealers who participate in
the market, management will strive within the confines of practical limitations
to prevent the described patterns from being established with respect to the
Company's securities.
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 that may have an adverse effect on both parties
to the transaction.
NO PUBLIC MARKET EXISTS. There is no public market for the Company's
Common stock, and no assurance can be given that a market will develop or that a
shareholder ever will be able to liquidate his investment without considerable
delay, if at all. If a market should develop, the price may be highly volatile.
Factors such as those discussed in this "Risk Factors" section may have a
significant impact upon the market price of the securities offered hereby. Owing
to the low price of the securities, many brokerage firms may not be willing to
effect transactions in the securities. Even if a purchaser finds a broker
willing to effect a transaction in these securities, the combination of
brokerage commissions, state transfer taxes, if any, and any other selling costs
may exceed the selling price. Further, many lending institutions will not permit
the use of such securities as collateral for any loans.
RULE 144 SALES. All of the outstanding shares of Common Stock held by
present officers, directors, and stockholders are "restricted securities" within
the meaning of Rule 144 under the Securities Act of 1933, as amended. As
restricted shares, these shares may be resold only pursuant to an effective
registration statement or under the requirements of
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Rule 144 or other applicable exemptions from registration under the Act and as
required under applicable state securities laws. Rule 144 provides in essence
that a person who has held restricted securities for one year may, under certain
conditions, sell every three months, in brokerage transactions, a number of
shares that does not exceed the greater of 1.0% of a company's outstanding
common stock or the average weekly trading volume during the four calendar weeks
prior to the sale. There is no limit on the amount of restricted securities that
may be sold by a nonaffiliate after the restricted securities have been held by
the owner for a period of two years. A sale under Rule 144 or under any other
exemption from the Act, if available, or pursuant to subsequent registration of
shares of Common Stock of present stockholders, may have a depressive effect
upon the price of the Common Stock in any market that may develop.
BLUE SKY RESTRICTIONS. Many states have enacted statutes or rules that
restrict or prohibit the sale of securities of "blank check" companies to
residents so long as they remain without specific business plans. To the extent
any current shareholders or subsequent purchaser from a shareholder may reside
in a state that restricts or prohibits resale of shares in a "blank check"
company, warning is hereby given that the shares may be "restricted" from resale
as long as the company is a shell company.
At the date of this registration statement, the Company has no intention
of offering further shares in a private offering to anyone. Further, the policy
of the Board of Directors is that any future offering of shares will only be
made after an acquisition has been made and can be disclosed in appropriate 8-K
filings.
In the event of a violation of state laws regarding resale of "blank
check" shares the Company could be liable for civil and criminal penalties which
would be a substantial impairment to the Company. At date of this registration
statement, all shareholders' shares bear a "restrictive legend," and the Company
will examine each shareholders' resident state laws at the time of any proposed
resale of shares now outstanding to attempt to avoid any inadvertent breach of
state laws.
ITEM 2. PLAN OF OPERATION
The Company intends to merge with or acquire a business entity in exchange
for the Company's securities. The Company has no particular acquisition in mind
and has not entered into any negotiations regarding such an acquisition. Neither
the Company's officers and directors nor any affiliate have engaged in any
negotiations with any representative of any company regarding the possibility of
an acquisition or merger between the Company and such other company.
Management anticipates seeking out 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 will be contacted or solicited.
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Management may engage in such solicitation directly or may employ one or more
other entities to conduct or assist in such solicitation. Management and its
affiliates pay referral fees to consultants and others who refer target
businesses for mergers into public companies in which management and its
affiliates have an interest. Payments are made if a business combination occurs,
and may consist of cash or a portion of the stock in the Company retained by
management and its affiliates, or both.
The Company has no full time employees. The Company's officers have agreed
to allocate a portion of their time to the activities of the Company, without
compensation. The officers anticipate that the business plan of the Company can
be implemented by their devoting no more than 10 hours each per month to the
business affairs of the Company and, consequently, conflicts of interest may
arise with respect to the limited time commitment by such officer.
Management is currently involved with other blank check companies, and is
involved in creating additional blank check companies similar to this one. A
conflict may arise in the event that another blank check company with which
management is affiliated is formed and actively seeks a target company.
Management anticipates 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 by lot. However, other blank check companies that
may be formed 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 or choice by lot.
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.
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 item 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.
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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 may acquire assets and establish wholly-owned subsidiaries in
various businesses or acquire existing businesses as subsidiaries.
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 publicly registered 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
public 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 merger or
acquisition transaction for the owners of a business opportunity.
The analysis of new business opportunities will be undertaken by, or under
the supervision of, the officers and directors of the Company, who are not
professional business analysts. In analyzing prospective business opportunities,
management will 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.
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The Exchange Act requires that any merger or acquisition candidate comply
with certain reporting requirements, which include providing audited financial
statements to be included in the reporting filings made under the Exchange Act.
The Company will not acquire or merge with any company for which audited
financial statements cannot be obtained at or within a reasonable period of time
after closing of the proposed transaction.
The Company may enter into a business combination with a business entity
that desires to establish a public trading market for its shares. A target
company may attempt to avoid what it deems to be adverse consequences of
undertaking its own public offering by seeking a business combination with the
Company. Such consequences may include, but are not limited to, time delays of
the registration process, significant expenses to be incurred in such an
offering, loss of voting control to public shareholders or the inability to
obtain an underwriter or to obtain an underwriter on satisfactory terms.
The Company will not restrict its search for any specific kind of business
entity, 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.
Management of the Company, which in all likelihood will not be experienced
in matters relating to the business of a target company, will rely upon its own
efforts in accomplishing the business purposes of the Company. Outside
consultants or advisors may be utilized by the Company to assist in the search
for qualified target companies. If the Company does retain such an outside
consultant or advisor, any cash fee earned by such person will need to be
assumed by the target company, as the Company has limited cash assets with which
to pay such obligation.
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.
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ACQUISITION OF OPPORTUNITIES
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. It may also
acquire stock or assets of an existing business. 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 officers and directors 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, of which there can be
no assurance, 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. Until such time as this occurs, the Company will not register any
additional securities. 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 (the "Code").
With respect to any merger or acquisition 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
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closing and the conditions which must be satisfied by the parties prior to and
after such closing, will outline the manner of bearing costs, including costs
associated with the Company's attorneys and accountants, and will include
miscellaneous other terms.
The Company will not acquire or merge with any entity that cannot provide
audited financial statements at or within a reasonable period of time after
closing of the proposed transaction. 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 its Form 8-K to be filed with the Securities
and Exchange Commission upon consummation of a merger or acquisition, as well as
the Company's audited financial statements included in its annual report on Form
10-K (or 10-KSB, as applicable). If such audited financial statements are not
available at closing, or within time parameters necessary to insure the
Company's compliance with the requirements of the Exchange Act, or if the
audited financial statements provided do not conform to the representations made
by the target company, the closing documents may provide that the proposed
transaction will be voidable at the discretion of the present management of the
Company.
MHE Projix, LLC. the principal shareholder of the Company, has agreed that
it will advance to the Company any additional funds which the Company needs for
operating capital and for costs in connection with searching for or completing
an acquisition or merger. Such advances will be made without expectation of
repayment unless the owners of the business which the Company acquires or merges
with agree to repay all or a portion of such advances. There is no minimum or
maximum amount MHE Projix will advance to the Company. The Company will not
borrow any funds to make any payments to the Company's promoters, management or
their affiliates or associates.
The Board of Directors has passed a resolution which contains a policy
that the Company will not seek an acquisition or merger with any entity in which
the Company's officers, directors, and shareholders or any affiliate or
associate serves as an officer or director or holds any ownership interest.
COMPETITION
The Company expects to encounter substantial competition in its efforts to
locate attractive business opportunities, primarily from business development
companies, venture capital partnerships and corporations, venture capital
affiliates of large industrial and financial companies, small investment
companies, and wealthy individuals. Many of these entities have significantly
greater financial and personnel resources and technical expertise than the
Company. The Company may also experience competition from other public "blank
check" companies, some of which may have more funds available than the Company.
As a result 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.
<PAGE>
YEAR 2000 ISSUES
Year 2000 problems result primarily from the inability of some computer
software to property store, recall, or use data after December 31, 1999. These
problems may affect many computers and other devices that contain embedded
computer chips. The Company's operations, however, do not rely on information
technology (IT) systems. Accordingly, the Company does not believe it will be
material affected by Year 2000 problems.
However, the Company does rely on non-IT systems that may suffer from Year
2000 problems, including telephone systems and facsimile and other office
machines. Moreover, the Company relies on third-parties that may suffer from
Year 2000 problems that could affect the Company's operations, including banks,
oil field operators, and utilities. In light of the Company's substantially
reduced operations, the Company does not believe that such non-IT systems or
third-party Year 2000 problems will affect the Company in a manner that is
different or more substantial than such problems affect other similarly situated
companies or industry generally. Consequently, the Company does not currently
intend to conduct a readiness assessment of Year 2000 problems or to develop a
detailed contingency plan with respect to Year 2000 problems that may affect the
Company.
ITEM 3. DESCRIPTION OF PROPERTY
The Company has no property. The Company does not currently maintain an
office or any other facilities. It does currently maintain a mailing address at
39 Broadway, Suite 2704, which is the office address of its Secretary, Louis
Taubman. The Company pays no rent for the use of this mailing address. The
Company does not believe that it will need to maintain an office at any time in
the foreseeable future in order to carry out its plan of operations described
herein.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth, as of the date of this registration
statement, 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.
Name and Address Amount of Beneficial Percentage
of Beneficial Owner Ownership of Class
- ------------------- -------------------- ----------
MHE Projix, LLC 4,750,000 95%
516 NE 9th Avenue
Ft. Lauderdale, FL 33301-1218
<PAGE>
Mark Elenowitz 87,500 1.75%
(Chief Executive Officer
and Director)
1862 Mintwood Place NW
Suite 104
Washington, D.C. 20009-1947
Louis Taubman 87,500 1.75%
(Secretary, Treasurer and Director)
39 Broadway, Suite 2704
New York, NY 10006
David Simonetti 25,000 0.5%
(President and Director)
516 NE 9th Avenue
Ft. Lauderdale, FL 33301-1218
Thomas Bostic Smith 25,000 0.5%
(Director)
192 Lawton Road
Riverside, IL 60546
William Quigley, Jr 12,500 0.25%
(Chief Information Officer)
22801 Howard Chapel Road
Brookeville, MD 20833
Barry Labell 12,500 0.25%
(Director)
9805 J Gable Ridge Terrace
Rockville, MD 20850
All Executive Officers and
Directors as a Group 5,000,000 100%
(1) Four of the Company's officers and directors- Louis Taubman, Mark
Elenowitz, David Simonetti, and Thomas Bostic Smith are beneficial owners of MHE
Projix, LLC. MHE Projix provides services for such persons, particularly in
regard to locating private companies which may wish to go public, and acts as an
initial shareholder in certain companies formed by such parties. Since MHE
Projix has fewer than 100 shareholders and is not making and does not intend to
make a public offering of its securities, management believes that it is not
deemed to be an investment company by virtue of an exemption provided under the
Investment Company Act of 1940, as amended.
<PAGE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Company has five Directors and five Officers as follows:
Name Age Positions and Offices Held
---- --- --------------------------
Mark Elenowitz 29 CEO and Director
Louis Taubman 31 Secretary, Treasurer, and Director
David Simonetti 30 President and Director
Tom Bostic Smith 30 Chief Operating Officer and Director
William Quigley, Jr. 51 Chief Information Officer
Barry Labell 28 Director
There are no agreements or understandings for the officers or directors to
resign at the request of another person and the above-named officers and
directors are not acting on behalf of nor will act at the direction of any other
person.
Set forth below is the name of the directors and officers 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:
Mark Elenowitz, 29, has served as CEO and as a Director of the Company since its
inception, and has extensive financial experience within the marketplace,
including experience in corporate finance, mergers and acquisitions, and
marketing. Mr. Elenowitz earned his Series 7 and 63 broker licenses and held a
Series 24 license while employed as branch manager at Tamaron Investments. Mr.
Elenowitz is also Co-Chairman Managing Director of VentureNow, Inc., a private
venture capital company, a Managing Director of Invoke Distribution, an
international direct marketing company, and President of Investor Communications
Company, LLC, an investor relations firm. Mr. Elenowitz has also served as Vice
President of Investor Relations for Quest International Resources Corporation, a
public natural resource exploration company. Previously, Mr. Elenowitz was Vice
President of Sales at Josephthal, Lyon & Ross, Inc., a NYSE member firm. Mr.
Elenowitz is a graduate of the University of Maryland College of Business and
Management, with a Bachelor of Science in Finance.
David Simonetti, 31, has served as President and a Director of the Company since
its inception. Since October of 1998, Mr. Simonetti has served as Co-Chairman
and Chief Executive Officer of VentureNow, Inc., a private venture capital
company. From August
<PAGE>
1997 to December 1998, Mr. Simonetti was Chief Executive Officer of Invoke
Distribution, LLC, a marketing and advertising company. From February 1997 to
October 1998, Mr. Simonetti was Chief Executive Officer of Projix Corporation,
an Internet software company. From October 1994 through February 1997, Mr.
Simonetti served as Vice President and Chief Operating Officer of Edmar, Inc., a
construction management company. Mr. Simonetti also serves on the Board of
Directors of Streamedia Communciations, Inc., a privately-held Internet
broadcasting company. Mr. Simonetti holds a Bachelor of Arts degree from
Marlboro College, Vermont.
Louis E. Taubman, 31, has served as Secretary, Treasurer and as a Director of
the Company since its inception. Mr. Taubman is a partner in the New York law
firm of Kogan & Taubman, LLC, a boutique securities firm. Before joining Kogan &
Taubman, Mr. Taubman maintained a private practice wherein he provided general
corporate and securities counsel to various developmental stage businesses.
Prior to that, Mr. Taubman served as an attorney in the legal department of
Prudential Securities, Inc. Mr. Taubman provides counsel to both issuers and
underwriters with regard to public and private finance, mergers and
acquisitions. Additionally, Mr. Taubman has litigated matters in various federal
and state courts, as well as before such self-regulatory bodies as the NASD, NFA
and NYSE. Mr. Taubman graduated cum laude from New York Law School in 1993 and
holds a Bachelor of Science degree in Political Science from Syracuse
University.
Thomas Bostic Smith, 30, has served as Chief Operating Officer and a Director of
the Company since its inception. Mr. Smith has several years of experience in
the financial marketplace. Most recently, he has been a Director of Investor
Communications Company. Mr. Smith has also served as a Vice President of
Investments and as Account Executive at A.G. Edwards and Sons, Inc. Mr. Smith
has also worked as an Investment Executive at Hamilton Investments, Inc., a
division of Household International, and as an Executive Assistant at Dain
Basworth, Inc. Mr. Smith is a graduate of Loyola University, with a Bachelor of
Finance and a Bachelor of Philosophy.
William H. Quiqley, Jr., 51, has served as Chief Information Officer of the
Company since its inception. Mr. Quigley has more than 30 years of management
and electronic systems experience. He has extensive experience in corporate
management, program and project engineering, systems analysis, design, and
engineering, as well as program development, product integration and production
control for large-scale command and control systems. Mr. Quigley is the
president of two companies, Quigley & Associates, Inc., an engineering firm
providing scientific software (defense systems) and engineering services to
large, international corporations and the U.S. government; and ICServices
Corporation, a company specializing in commercial software engineering,
consulting, corporate image design, and investor relations media development for
emerging public companies.
Barry J. Labell, 28, has served as a Director of the Company since its
inception. Mr. Labell has several years of experience in the financial
marketplace and in sales. Most recently, Mr. Labell has served as Vice President
of Investor Relations at Investor
<PAGE>
Communications Company, as Vice President of Sales and Marketing for On Top of
the Line Sports, a major sports information company based in Florida, and as a
Sales Executive for Intermedia Communications. Previously, Mr. Labell has served
as a Series 7 licensed broker for both Tamaron Investments and Josephthal Lyon &
Ross, Inc. Mr. Labell graduated from the University of Maryland, College Park,
with a Bachelor of Science degree.
CONFLICTS OF INTEREST
The Company's officers and directors have organized and expect 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. Insofar as the officers and directors are
engaged in other business activities, management anticipates that it will devote
only a minor amount of time to the Company's affairs. The Company does not have
a right of first refusal pertaining to opportunities that come to management's
attention insofar as such opportunities may relate to the Company's proposed
business operations.
A conflict may arise in the event that another blank check company with
which management is affiliated is formed and 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 by lot. However, any blank check companies that may be
formed 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 or choice by lot.
Management are principals of other businesses with operations which
require greater time commitments than the Company. As such, demands may be
placed on the time of Management that will detract from the amount of time they
are able to devote to the Company. Management 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 Management would not attend to other matters
prior to those of the Company. Management projects that initially up to ten
hours each per month of their time may be spent locating a target company which
amount of time would increase when the analysis of, and negotiations and
consummation with, a target company are conducted.
In addition to the foregoing, Louis Taubman, the Company's secretary,
treasurer and director, is a partner in the law firm of Kogan & Taubman, LLC,
the Company's current attorneys. In addition, other partners of Kogan & Taubman,
LLC hold an indirect interest in MHE Projix, LLC, the Company's majority
shareholder.
<PAGE>
No other securities, or rights to securities, of the Company will be
issued to management or promoters, or their affiliates or associates, prior to
the completion of a business combination. At the time of a business combination,
management expects that some or all of the shares of Common Stock owned by MHE
Projix, LLC, Mark Elenowitz, Louis Taubman, David Simonetti, Tom Bostic Smith,
William Quigley, Jr., and Barry Labell will be purchased by the target company.
The amount of Common Stock sold or continued to be owned by such parties cannot
be determined at this time.
The terms of a business combination may include such terms as some or all
of the current officers or directors remaining as directors or officers of the
Company and/or the continuing services or other legal work of the Company being
handled by the law firm of which Mr. Taubman is a principal. Additionally, the
terms of a business combination may provide for a payment by cash or otherwise
to MHE Projix, LLC or the officers or directors of the Company for the purchase
of all or part of their common stock of the Company by a target company. Certain
of the Company's principals would directly benefit from such employment or
payments. Such benefits may influence Management's choice of a target company.
The Company may agree to pay finder's fees, as appropriate and allowed, to
unaffiliated persons who may bring a target company to the Company where that
reference results in a business combination. The amount of any finder's fee will
be subject to negotiation, and cannot be estimated at this time. No finder's fee
of any kind will be paid to management or promoters of the Company or to their
associates or affiliates. No loans of any type have, or will be, made to
management or promoters of the Company or to any of their associates or
affiliates.
The Company's officers and directors, and their affiliates or associates
have not had any negotiations with and there are no present arrangements or
understandings with any representatives of the owners of any business or company
regarding the possibility of a business combination with the Company.
The Company will not enter into a business combination, or acquire any
assets of any kind for its securities, in which management or promoters of the
Company or any affiliates or associates have any interest, direct or indirect.
Management has adopted certain policies involving possible conflicts of
interest, including prohibiting any of the following transactions involving
management, promoters, shareholders or their affiliates:
(i) Any lending by the Company to such persons;
(ii) The issuance of any additional securities to such persons prior to a
business combination;
(iii) The entering into any business combination or acquisition of assets
in which such persons have any interest, direct or indirect; or
(iv) The payment of any finder's fees to such persons.
<PAGE>
These policies have been adopted by the Board of Directors of the Company,
and any changes in these provisions require the approval of the Board of
Directors. Management does not intend to propose any such action and does not
anticipate that any such action will occur.
Other than the policies listed above, 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. However, any attempt by shareholders to
enforce a liability of management to the Company would most likely be
prohibitively expensive and time consuming.
INVESTMENT COMPANY ACT OF 1940
Although the Company may participate in a business opportunity by
purchasing, trading or selling the securities of such business, the Company does
not intend to engage primarily in such activities. Specifically, the Company
intends to conduct its activities so as to avoid being classified as an
"investment company" under the Investment Company Act of 1940 (the "Investment
Act"), and therefore to avoid application of the costly and restrictive
registration and other provisions of the Investment Act, and the regulations
promulgated thereunder. In the event, however, that 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.
ITEM 6. EXECUTIVE COMPENSATION.
The Company's officers and directors do not receive any compensation for
their services rendered to the Company, have not received such compensation in
the past, and are not accruing any compensation pursuant to any agreement with
the Company.
The officers and directors of the Company will not receive any finder's
fee, either directly or indirectly, as a result of their efforts to implement
the Company's business plan outlined herein. However, the officers and directors
of the Company anticipate receiving benefits as beneficial shareholders of the
Company. See "Item 4. Security Ownership of Certain Beneficial Owners and
Management."
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.
<PAGE>
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 $725 in cash:
Name Number of Total Shares Consideration
- ---- ---------------------- -------------
MHE Projix, LLC 4,750,000 $475.00
Mark Elenowitz 87,500 $ 87.50
Louis Taubman 87,500 $ 87.50
David Simonetti 25,000 $ 25.00
Tom Bostic Smith 25,000 $ 25.00
Barry Labell 12,500 $ 12.50
William Quigley, Jr 12,500 $ 12.50
The proposed business activities described herein classify the Company as
a blank check company. See "Glossary". The Securities and Exchange Commission
and many states have enacted statutes, rules and regulations limiting the sale
of securities of blank check companies. Management does not intend to undertake
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 described
herein. Accordingly, the shareholders of the Company have executed and delivered
a "lock-up" letter agreement, affirming that such shareholders shall not sell
their shares of the Company's common stock except in connection with or
following completion of a merger or acquisition resulting in the Company no
longer being classified as a blank check company. The shareholders have
deposited their stock certificates with the Company's management, and will not
release the certificates except in connection with or following the completion
of a merger or acquisition.
ITEM 8. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock, par value $.0001 per share, and 20,000,000 shares of Preferred
Stock, par value $.0001 per share. The following statements relating to the
capital stock are summaries and do not purport to be complete. 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.
<PAGE>
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 Company's Certificate of Incorporation authorizes the issuance of
20,000,000 shares of Preferred Stock, $.0001 par value per share, of which no
shares have been issued. 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.
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 right receive a
<PAGE>
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.
GLOSSARY
"Blank Check" Company: As defined in Section 7(b)(3) of the Securities
Act, 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 and is issuing
"penny stock" securities as defined in Rule 3a51-1 of the Exchange Act.
The Company: Hancock Holdings, Inc., the company whose Common Stock is the
subject of this registration statement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
"Penny Stock" Security: As defined in Rule 3a51-1 of the Exchange Act, a
"penny stock" security is any equity security other than a security (i) that is
a reported security (ii) that is issued by an investment company (iii) that is a
put or call issued by the Option Clearing Corporation (iv) that has a price of
$5.00 or more (except for purposes of Rule 419 of the Securities Act) (v) that
is registered on a national securities exchange (vi) that is authorized for
quotation on the Nasdaq Stock Market, unless other provisions of Rule 3a51-1 are
not satisfied, or (vii) that is issued by an issuer with (a) net tangible assets
in excess of $2,000,000, if in continuous operation for more than three years or
$5,000,000 if in operation for less than three years or (b) average revenue of
at least $6,000,000 for the last three years.
Securities Act: The Securities Act of 1933, as amended.
Small Business Issuer: As defined in Rule 12b-2 of the Exchange Act, a
"Small Business Issuer" is an entity (i) which has revenues of less than
$25,000,000 (ii) whose public float (the outstanding securities not held by
affiliates) has a value of less than $25,000,000 (iii) which is a United States
or Canadian issuer (iv) which is not an Investment Company and (v) if a
majority-owned subsidiary, whose parent corporation is also a small business
issuer.
<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.
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.
<PAGE>
If, after a merger or acquisition, the Company does not meet the
qualifications for listing on the Nasdaq SmallCap Market, the Company's
securities may be traded in the over-the-counter ("OTC") market. The OTC market
differs from national and regional stock exchanges in that it (1) is not sited
in a single location but operates through communication of bids, offers and
confirmations between broker-dealers and (2) securities admitted to quotation
are offered by one or more broker-dealers rather than the "specialist" common to
stock exchanges. The Company may apply for listing on the NASD OTC Bulletin
Board or may offer its securities in what are commonly referred to as the "pink
sheets" of the National Quotation Bureau, Inc. To qualify for listing on the
NASD OTC Bulletin Board, an equity security must have one registered
broker-dealer, known as the market maker, willing to list bid or sale quotations
and to sponsor the company for listing on the Bulletin Board.
If the Company is unable initially to satisfy the requirements for
quotation on the Nasdaq SmallCap Market or becomes unable to satisfy the
requirements for continued quotation thereon, and trading, if any, is conducted
in the OTC market, a shareholder may find it more difficult to dispose of, or to
obtain accurate quotations as to the market value of, the Company's securities.
(B) HOLDERS. There are six holders of the Company's Common Stock. On June
1, 1999, the Company issued 5,000,000 of its Common Shares to these shareholders
for cash at $.0001 per share for a total price of $725. The issued and
outstanding shares of the Company's Common Stock were issued in accordance with
the exemptions from registration afforded by Sections 3(b) and 4(2) of the
Securities Act of 1933 and Rules 506 and 701 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 that were not
registered as follows:
<PAGE>
Date Name Number of Shares Consideration
- ---- ---- ---------------- -------------
June 1, 1999 MHE Projix, LLC (1) 4,750,000 $ 475.00
June 1, 1999 Mark Elenowitz (1) 87,500 $ 87.50
June 1, 1999 Louis Taubman (1) 87,500 $ 87.50
June 1, 1999 David Simonetti (1) 25,000 $ 25.00
June 1, 1999 Tom Bostic Smith (1) 25,000 $ 25.00
June 1, 1999 Barry Labell 12,500 $ 12.50
June 1, 1999 William Quigley, Jr. 12,500 $ 12.50
- --------
(1) Mark Elenowitz, Louis Taubman, David Simonetti and Tom Bostic Smith
are the shareholders of MHE Projix, LLC and therefore may be considered to be
indirect beneficial owners of the common stock of the Company issued to MHE
Projix, LLC. With respect to the sales made to MHE Projix, LLC, the Company
relied on the exemption from the registration requirements set forth in Section
4(2) of the Securities Act of 1933, as amended.
The shareholders of the Company have executed and delivered a "lock-up"
letter agreement which provides that such shareholders shall not sell the
securities except in connection with or following the consummation of a merger
or acquisition. Further, each shareholder has placed its stock certificates with
the Company until such time. Any liquidation by the current shareholders after
the release from the "lock-up" selling limitation period may have a depressive
effect upon the trading price of the Company's securities in any future market
that may develop.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a Delaware corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees and agents,
against expenses incurred in any action, suit or proceeding. The Certificate of
Incorporation and the By-laws of the Company provide for indemnification of
directors and officers to the fullest extent permitted by the General
Corporation Law of the State of Delaware.
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
<PAGE>
(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.
<PAGE>
PART F/S
FINANCIAL STATEMENTS.
Attached are audited financial statements for the Company for the period
September 30, 1999. The following financial statements are attached to this
report and filed as a part thereof.
1) Table of Contents - Financial Statements
2) Independent Auditors' Report
3) Balance Sheet as of September 30, 1999
4) Notes to Balance Sheet as of September 30, 1999
INDEX TO FINANCIAL STATEMENTS
HANCOCK HOLDINGS, INC.
(A DEVELOPMENT STAGE COMPANY)
Independent Auditors' Report
Balance Sheet as of September 30, 1999
Notes to Balance Sheet as of September 30, 1999
<PAGE>
HANCOCK HOLDINGS, INC.
(A Development Stage Company)
FINANCIAL STATEMENTS
FOR THE PERIOD FROM INCEPTION TO SEPTEMBER 30, 1999
(See Independent Auditors' Report)
CONTENTS
Page(s)
-------
Independent Auditors' Report 1.
Financial Statements:
Balance Sheet 2.
Statement of Income and Retained Earnings 3.
Statement of Changes in Stockholders' Equity 4.
Statement of Cash Flows 5.
Notes to Financial Statements 6.
Cohen & Kameny CPA's PLLC
<PAGE>
Cohen & Kameny CPA's PLLC
3530 Henry Hudson Parkway, Suite B
Riverdale, NY 10463
(718) 548-7200 Fax (718) 796-0184
Eli Cohen, CPA
David Kameny, CPA
Independent Auditors' Report
To The Board of Directors
Hancock Holdings, Inc.
We have audited the accompanying balance sheet of Hancock Holdings, Inc. (a
Delaware corporation) as of September 30, 1999, and the related statements of
income, stockholders' equity, and cash flows for the period from inception (May
20, 1999) to September 30, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our 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 Hancock Holdings, Inc. as of
September 30, 1999, and the results of its operations and its cash flows for the
initial period then ended in conformity with generally accepted accounting
principles.
-------------------------
COHEN & KAMENY CPA'S PLLC
Riverdale, New York
November 8, 1999
<PAGE>
HANCOCK HOLDINGS, INC.
(A Development Stage Company)
BALANCE SHEET
AS OF SEPTEMBER 30, 1999
(See Independent Auditors' Report)
ASSETS
CURRENT ASSETS:
Cash $ 713.
TOTAL CURRENT ASSETS: 713.
----------
TOTAL ASSETS $ 713.
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
$ --
----------
TOTAL LIABILITIES: --
----------
STOCKHOLDERS' EQUITY:
Common stock, $.0001 par value, 120,000,000 shares
authorized, 4,987,500 issued and outstanding 499.
Additional paid in capital 214.
Retained Earnings --
----------
TOTAL STOCKHOLDERS' EQUITY: 713.
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 713.
==========
The accompanying notes are an integral part of these financial statements.
Page 2.
Cohen & Kameny CPA's PLLC
<PAGE>
HANCOCK HOLDINGS, INC.
(A Development Stage Company)
STATEMENT OF INCOME AND RETAINED EARNINGS
FOR PERIOD FROM INCEPTION TO SEPTEMBER 30, 1999
(See Independent Auditors' Report)
NET SALES --
COST OF SALES --
GROSS PROFIT --
----------
OPERATING EXPENSES --
INCOME FROM OPERATIONS --
----------
NET INCOME --
----------
RETAINED EARNINGS - BEGINNING OF PERIOD --
RETAINED EARNINGS - END OF PERIOD --
==========
The accompanying notes are an integral part of these financial statements.
Page 3.
Cohen & Kameny CPA's PLLC
<PAGE>
HANCOCK HOLDINGS, INC.
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE FROM INCEPTION TO SEPTEMBER 30, 1999
(See Independent Auditors' Report)
Additional
Common Paid-in Retained
Stock Capital Earnings
----------------------------------
Balances at inception - May 20, 1999 475. -- --
Stock options exercised 24. 214. --
Net income -- -- --
----------------------------------
Balances at September 30, 1999 499. 214. --
==================================
The accompanying notes are an integral part of these financial statements.
Page 4.
<PAGE>
HANCOCK HOLDINGS, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM INCEPTION TO SEPTEMBER 30, 1999
(See Independent Auditors' Report)
CASH FLOWS FROM OPERATING ACTIVITIES: $ --
----------
NET CASH PROVIDED BY OPERATING ACTIVITIES --
----------
CASH FLOWS FROM INVESTING ACTIVITIES:
--
----------
NET CASH PROVIDED BY INVESTING ACTIVITIES --
----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Capital contributions 713.
----------
NET CASH PROVIDED BY FINANCING ACTIVITIES 713.
----------
NET INCREASE IN CASH & CASH EQUIVELANTS $ 713.
Cash - at beginning of period --
----------
CASH & CASH EQUIVALENTS - AT END OF PERIOD $ 713.
==========
The accompanying notes are an integral part of these financial statements.
Page 5.
Cohen & Kameny CPA's PLLC
<PAGE>
HANCOCK HOLDINGS, INC.
NOTES TO THE FINANCIAL STATEMENTS
FROM INCEPTION TO THE PERIOD ENDED SEPTEMBER 30, 1999
NOTE 1 - DESCRIPTION OF THE COMPANY'S BUSINESS:
Hancock Holdings, Inc. (the Company) was incorporated on May 20,
1999 in the state of Delaware. The Company was formed in order to
seek business opportunities and is currently a "shell" with no
business operations. As of the date of these financial statements
all of the Company's operations have been organizational in nature
and as a result it must be considered in its developmental stage.
The Company's current business plan is to seek out business
opportunities and to pursue other related activities intended to
enhance shareholder value. The Company will be seeking opportunities
which will probably be in the form of a merger with a foreign or
domestic private issuer that wishes to become a reporting issuer.
However, the Company will explore opportunities which may take the
form of a purchase, exchange of stock, or encompass entities such as
a corporation, joint venture or partnership. This includes
industries such as service, finance, natural resources,
manufacturing, high technology, product development, medical,
communications and others.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
The Company's accounting policies are in accordance with generally
accepted accounting principles. Outlined below are those policies
considered significant.
(a) Statement of cash flows:
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.
NOTE 3 - COMMON STOCK:
As part of the Company's initial organization the Company issued
4,750,000 shares of it's $ .0001 par value common stock. On June 1,
1999 the Company authorized a stock option plan reserving 1,000,000
shares of it's common stock, and pursuant to the plan granted stock
options to it's officers and directors in the amount of 250,000
shares exercisable as defined by the terms of the stock option
agreements. As of September 30, 1999, all of the stock options were
exercised with the exception of stock options aggregating a total of
12,500 shares granted to an officer of the Company. The stock
options may be exercised at a later date as defined by the terms of
the option agreement.
Page 6.
Cohen & Kameny CPA's PLLC
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
(2) Articles of Incorporation and By-laws:
2.1** Certificate of Incorporation
2.2** By-Laws
(3) Instruments Defining the Rights of Holders
3.1** Lock-Up Agreement with MHE Projix, LLC
3.2** Lock-Up Agreement with Mark Elenowitz
3.3** Lock-Up Agreement with Louis Taubman
3.4** Lock-Up Agreement with David Simonetti
3.5** Lock-Up Agreement with Tom Bostic Smith
3.6** Lock-Up Agreement with William Quigley, Jr.
3.7** Lock-Up Agreement with Barry Labell
- ------------
** Filed herewith
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.
HANCOCK HOLDINGS, INC.
By: /s/
--------------------------------
Mark Elenowitz, CEO and Director
<PAGE>
CERTIFICATE OF INCORPORATION
OF
HANCOCK HOLDINGS, INC.
FIRST. The name of this corporation shall be:
HANCOCK HOLDINGS, INC.
SECOND. Its registered office in the State of Delaware is to be located at
1013 Centre Road, in the City of Wilmington, County of New Castle, 19805, and
its registered agent at such address is THE COMPANY CORPORATION.
THIRD. The purpose or purposes of the corporation shall be: To engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which this is authorized to
issue is :
One Hundred Twenty Million (120,000,000) shares with a par value of One
Tenth of One Mil ($0.0001) per share, amounting to Twelve Thousand Dollars
($12,000.00).
FIFTH. The name and mailing address of the incorporator is as follows:
Chennel Mowbray
The Company Corporation
1013 Centre Road
Wilmington, DE 19805
SIXTH. The Board of Directors shall have the power to adopt, amend or
repeal the by-laws.
IN WITNESS WHEREOF, The undersigned, being the incorporator hereinbefore
named, has executed, signed and acknowledged this certificate of incorporation
this eighteenth day of May, A.D. 1999.
/s/
--------------------
Chennell Mowbray
Incorporator
<PAGE>
ACTION OF SOLE INCORPORATOR
HANCOCK HOLDINGS, INC.
The undersigned, without a meeting, being the sole incorporator of the
Corporation, does hereby elect the persons listed below to serve as directors of
the corporation until the first annual meeting of shareholders and until their
successors are elected and qualify:
LOUIS TAUBMAN
/s/
-------------------
Chennell Mowray
Incorporator
Dated: MAY 18, 1999
cmo
<PAGE>
HANCOCK HOLDINGS, INC.
BY-LAWS
ARTICLE I
THE STOCKHOLDERS
SECTION 1.1. ANNUAL MEETING. The annual meeting of the stockholders of
Hancock Holdings, Inc. (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
<PAGE>
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.
(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
<PAGE>
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
<PAGE>
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.
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
<PAGE>
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.
<PAGE>
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
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
<PAGE>
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
(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
<PAGE>
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
<PAGE>
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.
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
<PAGE>
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.
<PAGE>
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.
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
<PAGE>
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 depository 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,
<PAGE>
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.
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.
<PAGE>
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.
ARTICLE VII
FISCAL YEAR
SECTION 7.1. FISCAL YEAR. The fiscal year of the Corporation shall begin
on the first day of October in each year and end on the last day of September in
each year.
<PAGE>
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.
<PAGE>
COHEN & KAMENY CPA'S PLLC
3530 Henry Hudson Parkway, Suite B
Riverdale, New York 10463
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10 Registration Statement of our report
as of September 30, 1999, dated November 8, 1999 relating to the financial
statements of Hancock Holdings, Inc. that appear in such Form 10.
Cohen & Kameny CPA'S PLLC
Certified Public Accountants
Riverdale, New York
November 8, 1999
<PAGE>
MHE Projix, LLC
516 NE 9th Avenue
Ft. Lauderdale, FL 33301-1218
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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
<PAGE>
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 9th day of June, 1999
THE HOLDER
By: /s/
---------------------------
President, MHE Projix, LLC.
<PAGE>
Mark Elenowitz
1862 Mintwood Place NW
Suite 104
Washington, D.C. 20009-1947
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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.
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
----------------------
Mark Elenowitz
<PAGE>
Louis Taubman
39 Broadway
Suite 2704
New York, NY 10006
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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.
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
---------------------
Louis Taubman
<PAGE>
David Simonetti
516 NE 9th Avenue
Ft. Lauderdale, FL 33301-1218
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
-----------------------
David Simonetti
<PAGE>
Tom Bostic Smith
1862 Mintwood Place NW
Suite 104
Washington, D.C. 20009-1947
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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.
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
------------------------
Tom Bostic Smith
<PAGE>
William Quigley, Jr.
22801 Howard Chapel Road
Brookeville, MD 20833
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
----------------------------
William Quigley, Jr.
<PAGE>
Barry Labell
1862 Mintwood Place NW
Suite 104
Washington, D.C. 20009-1947
June 9, 1999
Hancock Holdings, Inc.
39 Broadway
Suite 2704
New York, NY 10006
Re: Lock Up Agreement with Hancock Holdings, Inc.
Gentlemen:
As part of the sale of the shares of Common Stock of Hancock Holdings,
Inc. (the "Company") to the undersigned (the "Holder"), the Holder hereby
represents, warrants, covenants and agrees, for the benefit of the Company and
the 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 Section 7(b)(3) of the Securities Act of 1933, as amended.
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.
<PAGE>
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 9th day of June, 1999.
THE HOLDER
By: /s/
----------------
Barry Labell
