<PAGE>
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: 0001100189
PARC CAPITAL, CORP.
-----------------------------
(Name of Small Business Issuer)
Delaware 13-4079042
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
39 Broadway, Suite 2250, New York, NY 10006
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Issuer's telephone number (212) 425-8200
------------------
Securities to be registered under Section
12(b) of the Act:
NONE
- --------------------------------------------------------------------------------
Securities to be Registered Under Section
12(g) of the Act:
Common Stock, $.0001 Par Value
- --------------------------------------------------------------------------------
(Title of Class)
<PAGE>
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 MARCH 31, 2000
NOTES TO BALANCE SHEET AS OF MARCH 31, 2000
PART III.
ITEM 1. INDEX TO EXHIBITS
<PAGE>
PART I
ITEM 1. DESCRIPTION OF BUSINESS.
Parc Capital, Corp. (the "Company"), was incorporated on September 8,
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
this 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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 the 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.
<PAGE>
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
<PAGE>
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.
TM Capital Partners, L.L.C., 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 TM Capital Partners, L.L.C. 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>
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 2250, 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.
<TABLE>
<CAPTION>
Name and Address Amount of Beneficial Percentage
of Beneficial Owner Ownership of Class
------------------- ------------------- -------------------
<S> <C> <C>
TM Capital partners, L.L.C. (1) 4,750,000 95%
15425 Shady Grove Road
Suite 400
Rockville, MD 20850
Mark Elenowitz 125,000 2.5%
(President, Treasurer
and Director)
15425 Shady Grove Road
Suite 400
Rockville, MD 20850
Louis Taubman 125,000 2.5%
(Secretary and Director)
39 Broadway, Suite 2250
New York, NY 10006
All Executive Officers and
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Directors as a Group 5,000,000 100%
</TABLE>
(1) Two of the Company's officers and directors- Louis Taubman and Mark
Elenowitz are indirect beneficial owners of TM Capital Partners, L.L.C. TM
Capital provides services for such persons, particularly in regard to locating
private companies that may wish to go public, and acts as an initial shareholder
in certain companies formed by such parties. Since TM Capital 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.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Company has two Directors and two Officers as follows:
Name Age Positions and Offices Held
---- --- --------------------------
Mark Elenowitz 29 President, Treasurer and Director
Louis Taubman 31 Secretary and 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 President, Treasurer 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.
<PAGE>
Louis E. Taubman, 31, has served as Secretary 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.
CURRENT BLANK CHECK COMPANIES
Mr. Elenowitz, as president and a director of the Company, and Mr.
Taubman, as secretary and a director of the Company, are currently involved with
other blank check companies, and are involved in creating additional companies
similar to this one. The initial business purpose of each of these companies was
or is to engage in a business combination with an unidentified company or
companies and each were or will be classified as a blank check company until
completion of a business combination.
Generally target companies will be located for the Company and other
identical blank check companies in chronological order of the date of formation
of such blank check companies or, in the case of blank check companies formed on
the same date, alphabetically. However, certain blank check companies may differ
from the Company in certain items such as place of incorporation, number of
shares and shareholders, working capital, types of authorized securities,
preference of a certain blank check company name by management of the target
company, or other items. It may be that a target company may be more suitable
for or may prefer a certain blank check company formed after the Company. In
such case, a business combination might be negotiated on behalf of the more
suitable or preferred blank check company regardless of date of formation.
The following chart summarizes certain information concerning recent
blank check companies with which Mr. Elenowitz and Mr. Taubman are or have been
involved, which have filed or will be filing a registration statement on Form
10-SB. In most instances that a business combination is transacted with one of
these companies, it is required to file a Current Report on Form 8-K describing
the transaction. Reference is made to the Form 8-K filed for any company listed
below for detailed information concerning the business combination entered into
by that company.
<PAGE>
<TABLE>
<CAPTION>
Registration Form/ Date
Anticipated Effective Cleared
Corporation Date by SEC Status
- ----------- ---- ------ ------
<S> <C> <C> <C>
Irving Capital, Corp. Form 10-SB n/a Seeking merger with
6/12/00 unidentified company.
Form 8-K will be filed if business
combination occurs.
Model Capital, Corp. Form 10-SB n/a Seeking merger with
6/12/00 unidentified company.
Form 8-K will be filed if business
combination occurs.
Charm Capital, Corp. Form 10-SB n/a Seeking merger with
6/12/00 unidentified company.
Form 8-K will be filed if business
combination occurs.
Pepper Capital, Corp. Form 10-SB See Seeking merger with
4/10/00 Letter unidentified company.
Form 8-K will be filed if business
combination occurs.
Aries Holdings, Inc. Form 10-SB See Seeking merger with
4/10/00 Letter unidentified company.
Form 8-K will be filed if business
combination occurs.
Parade Holdings, Inc. Form 10-SB n/a Seeking merger with
6/12/00 unidentified company.
Form 8-K will be filed if business
combination occurs.
</TABLE>
RECENT TRANSACTIONS BY BLANK CHECK COMPANIES
On February 22, 2000, Orion Technologies, Inc., a Nevada corporation,
purchased all of the issued and outstanding shares of Hancock Holdings, Inc.
pursuant to a share exchange agreement. Hancock Holdings, Inc. was formed on May
18, 1999 to engage in a merger or acquisition with an unidentified company or
companies. Both Mr. Elenowitz and Mr. Taubman were shareholders in Hancock
Holdings, Inc. At the time of the merger, Orion Technologies, Inc. was an
international holding company concentrating on
<PAGE>
Internet and telecommunications-based technologies and services for e-commerce
and business-to-business markets. Orion Technologies, Inc. has three
wholly-owned subsidiaries: Globalinx Corp., a Delaware Company; EZ Elektronische
Zahlungssysteme GmbH, a German Limited Liability Company; and EPS Elektronische
Processing Systeme GmbH, a German Limited Liability Company. Following the share
exchange, Hancock Holdings, Inc. became a wholly owned subsidiary of Orion
Technologies, Inc., and Orion Technologies, Inc. filed a Form 8-K on February
22, 2000 with the Securities and Exchange Commission describing the transaction.
The common stock of Orion Technologies, Inc. trades on the NASD OTC Bulletin
Board under the symbol ORTG. Detailed information concerning this business
combination may be obtained from its filings under the Exchange Act which are
found in the EDGAR archives page of the Securities and Exchange Commission's
Website at www.sec.gov.
On March 8, 2000, Solomon Alliance Group, Inc., an Arizona corporation,
purchased all of the issued and outstanding shares of Madison Holdings, Inc.
pursuant to a share exchange agreement. Madison Holdings, Inc. was formed on May
18, 1999 to engage in a merger or acquisition with an unidentified company or
companies. Both Mr. Elenowitz and Mr. Taubman were shareholders in Hancock
Holding, Inc. At the time of the merger, Solomon Alliance Group, Inc. was a
development stage company with plans to become a leading provider of customized
wireless data communications solutions for individual and business needs.
Solomon Alliance Group, Inc. has one wholly-owned subsidiary, Visual Link
Wireless, Inc. Following the share exchange, Madison Holdings, Inc. became a
wholly owned subsidiary of Solomon Alliance Group, Inc., and Solomon Alliance
Group, Inc. filed a Form 8-K on March 10, 2000 with the Securities and Exchange
Commission describing the transaction. The common stock of Solomon Alliance
Group, Inc. trades on the NASD OTC Bulletin Board under the symbol SAGE.
Detailed information concerning this business combination may be obtained from
its filings under the Exchange Act which are found in the EDGAR archives page of
the Securities and Exchange Commission's Website at www.sec.gov.
February 22, 2000, Findex.com, Inc., a Nevada corporation, purchased all of the
issued and outstanding shares of Reagan Holdings, Inc. Reagan Holdings, Inc. was
formed on July 27, 1999 to engage in a merger or acquisition with an
unidentified company or companies. Both Mr. Elenowitz and Mr. Taubman were
shareholders in Hancock Holdings, Inc. At the time of the merger, Findex.com,
Inc. was a retail, wholesale, and Internet supplier of software products to
business and religious organizations and individuals. Following the transaction,
Reagan Holdings, Inc. became a wholly owned subsidiary of Findex.com, Inc., and
Findex.com, Inc. filed a Form 8-K on March 15, 2000 with the Securities and
Exchange Commission describing the transaction. The common stock of Findex.com,
Inc. trades on the NASD OTC Bulletin Board under the symbol FIND. Detailed
information concerning this business combination may be obtained from its
filings under the Exchange Act which are found in the EDGAR archives page of the
Securities and Exchange Commission's Website at www.sec.gov.
CONFLICTS OF INTEREST
<PAGE>
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
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 TM Capital Partners, L.L.C, the Company's majority
shareholder.
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 TM
Capital Partners, L.L.C, Mark Elenowitz and Louis Taubman 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.
<PAGE>
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 TM Capital Partners, L.L.C. 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.
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.
<PAGE>
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.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
<PAGE>
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
- --------------------------------------------------------------------------------
TM Capital Partners, L.L.C. 4,750,000 $475.00
Mark Elenowitz 125,000 $125.00
Louis Taubman 125,000 $125.00
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 10,000,000
shares of Common 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.
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
<PAGE>
with respect to the Common Stock. At this time the Company has no intention to
issue 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: Parc Capital, Corp., 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 three holders of the Company's Common Stock. On
March 7, 2000, 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.
<PAGE>
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Company has sold securities that were
not registered as follows:
Date Name Number of Shares Consideration
- ------------- --------------------- ---------------- -------------
Nov. 26, 1999 TM Capital 4,750,000 $475.00
Partners, L.L.C. (1)
Nov. 26, 1999 Mark Elenowitz (1) 125,000 $125.00
Nov. 26, 1999 Louis Taubman (1) 125,000 $125.00
- --------
(1) Mark Elenowitz and Louis Taubman are the indirect owners of TM
Capital Partners, L.L.C. and therefore may be considered to be indirect
beneficial owners of the common stock of the Company issued to TM Capital. With
respect to the sales made to TM Capital, the Company relied on the exemption
from the registration requirements set forth in Section 4(2) of the Securities
Act of 1933, as amended. Shares issued to Louis Taubman and Mark Elenowitz were
issued pursuant Rule 701.
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 (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
<PAGE>
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 ending March 31, 2000. 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 March 31, 2000
4) Notes to Balance Sheet as of March 31, 2000
INDEX TO FINANCIAL STATEMENTS
PARC CAPITAL, CORP.
(A DEVELOPMENT STAGE COMPANY)
Independent Auditors' Report
Balance Sheet as of March 31, 2000
Notes to Balance Sheet as of March 31, 2000
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
FINANCIAL STATEMENTS
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
FINANCIAL STATEMENTS
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
(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
Parc Capital, Corp.
We have audited the accompanying balance sheet of Parc Capital, Corp. (a
Delaware corporation) as of March 31, 2000, and the related statements of
income, stockholders' equity, and cash flows for the period from inception
(September 8, 1999) to March 31, 2000. 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 Parc Capital, Corp. as of March
31, 2000, 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
April 7, 2000
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
BALANCE SHEET
AS OF MARCH 31, 2000
(See Independent Auditors' Report)
ASSETS
CURRENT ASSETS:
Cash $ 710.
TOTAL CURRENT ASSETS: 710.
-----------------
TOTAL ASSETS $ 710.
-----------------
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
$ -
-----------------
TOTAL LIABILITIES: -
-----------------
STOCKHOLDERS' EQUITY:
Common stock, $.0001 par value, 10,000,000
shares authorized, 5,000,000
issued and outstanding $ 500.
Additional paid in capital 225.
Retained Earnings (15).
-----------------
TOTAL STOCKHOLDERS' EQUITY: 710.
-----------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 710.
-----------------
The accompanying notes are an integral part of these financial statements.
Page 2.
Cohen & Kameny CPA's PLLC
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
STATEMENT OF INCOME AND RETAINED EARNINGS
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
(See Independent Auditors' Report)
NET SALES $ -
- ---------
COST OF SALES -
- -------------
GROSS PROFIT -
- ------------
----------------
OPERATING EXPENSES
- ------------------
Bank charges 15.
----------------
(LOSS) FROM OPERATIONS (15).
- ----------------------
NET (LOSS) (15).
- ----------
RETAINED EARNINGS - BEGINNING OF PERIOD -
- ---------------------------------------
RETAINED EARNINGS - END OF PERIOD $ (15).
- ---------------------------------
================
The accompanying notes are an integral part of these financial statements.
Page 3.
Cohen & Kameny CPA's PLLC
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
(See Independent Auditors' Report)
<TABLE>
<CAPTION>
Additional
Common Paid-in Retained
Stock Capital Earnings
-------------------------------------------------
<S> <C> <C> <C>
Balances at inception - September 8, 1999 $ - $ - $ -
Common stock issued 500. 225. -
Net (Loss) - - (15).
-------------------------------------------------
Balances at March 31, 2000 $ 500. $ 225. $ (15).
=================================================
</TABLE>
The accompanying notes are an integral part of these financial statements.
Page 4.
Cohen & Kameny CPA's PLLC
<PAGE>
PARC CAPITAL, CORP.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
(See Independent Auditors' Report)
CASH FLOWS FROM OPERATING ACTIVITIES:
- ------------------------------------
Operating expenses $ (15).
-----------------
NET CASH (USED) BY OPERATING ACTIVITIES (15).
- ---------------------------------------
-----------------
CASH FLOWS FROM INVESTING ACTIVITIES:
- ------------------------------------
-
-----------------
NET CASH PROVIDED BY INVESTING ACTIVITIES -
- -----------------------------------------
-----------------
CASH FLOWS FROM FINANCING ACTIVITIES:
- ------------------------------------
Capital contributions 725.
-----------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 725.
- -----------------------------------------
-----------------
NET INCREASE IN CASH & CASH EQUIVELANTS 710.
- ---------------------------------------
Cash - at beginning of period -
-----------------
CASH & CASH EQUIVALENTS - AT END OF PERIOD $ 710.
- ------------------------------------------
=================
The accompanying notes are an integral part of these financial statements.
Page 5.
Cohen & Kameny CPA's PLLC
<PAGE>
PARC CAPITAL, CORP.
NOTES TO THE FINANCIAL STATEMENTS
FOR THE PERIOD FROM INCEPTION TO MARCH 31, 2000
NOTE 1 - DESCRIPTION OF THE COMPANY'S BUSINESS:
Parc Capital, Corp. (the Company) was incorporated on September 8, 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 - CAPITAL 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 November
26, 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 March 31, 2000, all of the stock options granted were exercised.
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 TM Capital Partners, L.L.C.
3.2** Lock-Up Agreement with Mark Elenowitz
3.3** Lock-Up Agreement with Louis Taubman
(4) Consents
4.1** Consent of Independent Certified Public Accountant
------------
** 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.
PARC CAPITAL, CORP.
By: /s/ MARK ELENOWITZ
Mark Elenowitz, President and Director
By: /s/ LOUIS TAUBMAN
Louis Taubman, Secretary and Director
<PAGE>
CERTIFICATE OF INCORPORATION
OF
PARC CAPITAL, CORP.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts mandatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
corporation") is PARC CAPITAL, CORP.
SECOND: The address, including street, number, city, and county,
of the registered office of the corporation in the State of Delaware is 1013
Centre Road, City of Wilmington 19805, County of New Castle; and the name of the
registered agent of the corporation at such address is Corporation Service
Company.
THIRD: The purpose of the corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which
the corporation shall have the authority to issue is 100,000,000, shares of
Common Stock of a par value of .0001 each.
FIFTH: The name and mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
Merryl Wiener Two World Trade Center
Suite 8746
New York, New York 10048-8798
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its shareholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
ss. 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
ss. 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangements and to any reorganization of this corporation as consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, of sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
EIGHTH: For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs
of the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have of there were no vacancies. No election of directors
need be by written ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provision of ss. 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for its
stock, the power to adopt, amend, or repeal the Bylaws of the corporation
may be exercised by the Board of Directors of the corporation; provided,
however, that any provision for the classification of directors of the
corporation for staggered terms pursuant to the provisions of subsection
(d) of ss. 141 of the General Corporation Law of the State of Delaware
shall be set forth in an initial Bylaw or in a Bylaw adopted by the
stockholders entitled to vote of the corporation unless provisions for such
classification shall be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of shareholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate or incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of ss. 242 of the
General Corporation Law of the State of Delaware
<PAGE>
shall otherwise require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to vote upon
the increase or decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation
is hereby eliminated to the fullest extent permitted by the provision of
paragraph (7) of subsection (b) of ss. 102 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by
the provisions of ss. 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
Signed on September 1, 1999.
/s/ MERRYL WIENER
-----------------
Merryl Wiener, Incorporator
<PAGE>
PARC CAPITAL, CORP.
BY-LAWS
ARTICLE I
THE STOCKHOLDERS
SECTION 1.1. ANNUAL MEETING. The annual meeting of the stockholders of
Parc Capital, Corp. (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 SECRETPARC. 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 April in each year and end on the last day of March 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>
TM Capital Partners, L.L.C.
15425 Shady Grove Road, Suite 400
Rockville, Maryland 20850
March 7, 2000
Parc Capital, Corp.
39 Broadway
Suite 2250
New York, NY 10006
Re: Lock Up Agreement with Parc Capital, Corp.
Gentlemen:
As part of the sale of the shares of Common Stock of Parc Capital,
Corp. (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 7th day of March, 2000.
THE HOLDER
By: /s/ MARK ELENOWITZ
------------------
Mark Elenowitz
President, TM Capital Partners, L.L.C.
<PAGE>
Mark Elenowitz
15425 Shady Grove Road, Suite 400
Rockville, Maryland 20850
March 7, 2000
Parc Capital, Corp.
39 Broadway
Suite 2250
New York, NY 10006
Re: Lock Up Agreement with Parc Capital, Corp.
Gentlemen:
As part of the sale of the shares of Common Stock of Parc Capital,
Corp. (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 7th day of March, 2000.
THE HOLDER
By: /s/ MARK ELENOWITZ
------------------
Mark Elenowitz
<PAGE>
Louis Taubman
39 Broadway
Suite 2250
New York, NY 10006
March 7, 2000
Parc Capital, Corp.
39 Broadway
Suite 2250
New York, NY
Re: Lock Up Agreement with Parc Capital, Corp.
Gentlemen:
As part of the sale of the shares of Common Stock of Parc Capital,
Corp. (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 7th day of March, 2000.
THE HOLDER
By: /s/ LOUIS TAUBMAN
-----------------
Louis Taubman
<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 March 31, 2000, dated April 12, 2000, relating to the financial statements
of Parc Capital, Corp. that appear in such Form 10.
Cohen & Kameny CPA'S PLLC
Certified Public Accountants
Riverdale, New York
April 12, 2000
