SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------
FORM 10SB12G
---------------------------
GENERAL FORM FOR REGISTRATION OF SECURITIES
PERSUANT TO SECTION 12 (B) OR 12 (G)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number: -
----------------------------
OLD NIGHT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 87-0621120
(STATE OF INCORPORATION) (I.R.S. EMPLOYER ID NO.)
4700 S 900 E SUITE 41B, SALT LAKE CITY UT 84117
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(801) 265-0357
(REGISTRANT'S TELEPHONE NUMBER)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12 (B) OF THE ACT: NONE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12 (G) OF THE ACT: 496,400
Title of each class Name of each exchange on which
To be so registered Each class is to be registered
Common stock: $0.001 Par value N/A
THE AGGREGATE MARKET VALUE OF THE VOTING STOCK HELD BY NON-AFFILIATES OF THE
REGISTRATION WAS $0.001 AS OF DECEMBER 09, 1999.
SHARES OF COMMON STOCK OUTSTANDING AS OF DECEMBER 09, 1999: 496,400
<PAGE>
PART I
ITEM 1
DESCRIPTION OF BUSINESS
Old Night, Inc., f/k/a "Avery, Armstrong and Assoc., Architects and
Engineers, Inc.", (hereinafter "The Company") was incorporated on November 26,
1980, pursuant to the Nevada Business Corporation Act. Its original Articles of
Incorporation provided for authorized capital of two thousand five hundred
(2,500) shares of common stock with no par value. On August 20, 1998, the
shareholders of the Company approved an amendment to the Articles of
Incorporation changing the authorized capital to one hundred million
(100,000,000) shares of common stock with a par value of $0.001 (1 mill) per
share.
The amended Articles were filed with the State of Nevada on December 2,
1998.The Company was formed with the stated purpose of conducting any lawful
business activity. However, the contemplated purpose was to engage in investment
and business development operations related to mineral research and exploration.
The Company's attempts to enter this field were not successful and all attempts
to engage in business ended before 1983, and the Company became dormant.
The Company never engaged in an active trade or business throughout the
period from inception through 1998. On or about September 1998, the directors
determined that the Company should become active and reinstated the Company with
the State of Nevada, and began seeking potential operating businesses and
business opportunities with the intent to acquire or merge with such businesses.
The Company is considered a development stage company and, due to its status as
a "shell" corporation, its principal business purpose is to locate and
consummate a merger or acquisition with a private entity. Because of the
Company's current status having no assets and no recent operating history, in
the event the Company does successfully acquire or merge with an operating
business opportunity, it is likely that the Company's present shareholders will
experience substantial dilution and there will be a probable change in control
of the Company.
The Company is voluntarily filing its registration statement on Form 10-SB
in order to make information concerning itself more readily available to the
public. Management believes that being a reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), could provide a
prospective merger or acquisition candidate with additional information
concerning the Company. In addition, management believes that this might make
the Company more attractive to an operating business opportunity as a potential
business combination candidate. As a result of filing its registration
statement, the Company is obligated to file with the Commission certain interim
and periodic reports including an annual report containing audited financial
statements. The Company intends to continue to voluntarily file these periodic
reports under the Exchange Act even if its obligation to file such reports is
suspended under applicable provisions of the Exchange Act.
Any target acquisition or merger candidate of the Company will become
subject to the same reporting requirements as the Company upon consummation of
any such business combination. Thus, in the event that the Company successfully
completes an acquisition or merger with another operating business, the
resulting combined business must provide audited financial statements for at
least the two most recent fiscal years or, in the event that the combined
operating business has been in business less than two years, audited financial
statements will be required from the period of inception of the target
acquisition or merger candidate.
The Company's principal executive offices are located at 4700 South 900
East S41B , Salt Lake City, Utah, 84117.
Business of Issuer
The Company has no recent operating history and no representation is made,
nor is any intended, that the Company will be able to carry on future business
activities successfully. Further, there can be no assurance that the Company
will have the ability to acquire or merge with an operating business, business
opportunity or property that will be of material value to the Company.
Management plans to investigate, research and, if justified, potentially acquire
or merge with one or more businesses or business opportunities. The Company
currently has no commitment or arrangement, written or oral, to participate in
any business opportunity and management cannot predict the nature of any
potential business opportunity it may ultimately consider. Management will have
broad discretion in its search for and negotiations with any potential business
or business opportunity.
Sources of Business Opportunities
The Company intends to use various sources in its search for potential
business opportunities including its officers and directors, consultants,
special advisors, securities broker-dealers, venture capitalists, members of the
financial community and others who may present management with unsolicited
proposals. Because of the Company's lack of capital, it may not be able to
retain a fee based professional firm specializing in business acquisitions and
reorganizations. Rather, the Company will most likely have to rely on outside
sources, not otherwise associated with the Company, that will accept their
compensation only after the Company has finalized a successful acquisition or
merger. To date, the Company has not engaged nor any prospective consultants
for these purposes. The Company does not intend to restrict its search to any
specific entered into any definitive agreements nor understandings regarding
retention of any consultant to assist the Company in its search for business
opportunities, nor is management presently in a position to actively seek or
retain kind of industry or business. The Company may investigate and ultimately
acquire a venture that is in its preliminary or development stage, is already in
operation, or in various stages of its corporate existence and development.
Management cannot predict at this time the status or nature of any venture in
which the Company may participate. A potential venture might need additional
capital or merely desire to have its shares publicly traded. The most likely
scenario for a possible business arrangement would involve the acquisition of,
or merger with, an operating business that does not need additional capital, but
which merely desires to establish a public trading market for its shares.
Management believes that the Company could provide a potential public vehicle
for a private entity interested in becoming a publicly held corporation without
the time and expense typically associated with an initial public offering.
Evaluation
Once the Company has identified a particular entity as a potential
acquisition or merger candidate, management will seek to determine whether
acquisition or merger is warranted or whether further Investigation is
necessary. Such determination will generally be based on management's knowledge
and experience, or with the assistance of outside advisors and consultants
evaluating the preliminary information available to them. Management may elect
to engage outside independent consultants to perform preliminary analysis of
potential business opportunities. However, because of the Company's lack of
capital it may not have the necessary funds for a complete and exhaustive
investigation of any particular opportunity. In evaluating such potential
business opportunities, the Company will consider, to the extent relevant to the
specific opportunity, several factors including potential benefits to the
Company and its shareholders; working capital, financial requirements and
availability of additional financing; history of operation, if any; nature of
present and expected competition; quality and experience of management; need for
further research, development or exploration; potential for growth and
expansion; potential for profits; and other factors deemed relevant to the
specific opportunity. Because the Company has not located or identified any
specific business opportunity as of the date hereof, there are certain
unidentified risks that cannot be adequately expressed prior to the
identification of a specific business opportunity. There can be no assurance
following consummation of any acquisition or merger that the business venture
will develop into a going concern or, if the business is already operating, that
it will continue to operate successfully. Many of the potential business
opportunities available to the Company may involve new and untested products,
processes or market strategies which may not ultimately prove successful.
Form of Potential Acquisition or Merger
Presently, the Company cannot predict the manner in which it might
participate in a prospective business opportunity. Each separate potential
opportunity will be reviewed and, upon the basis of that review, a suitable
legal structure or method of participation will be chosen. The particular manner
in which the Company participates in a specific business opportunity will depend
upon the nature of that opportunity, the respective needs and desires of the
Company and management of the opportunity, and the relative negotiating strength
of the parties involved. Actual participation in a business venture may take the
form of an asset purchase, lease, joint venture, license, partnership, stock
purchase, reorganization, merger or consolidation. The Company may act directly
or indirectly through an interest in a partnership, corporation, or other form
of organization, however, the Company does not intend to participate in
opportunities through the purchase of minority stock positions.
Because of the Company's current status and recent inactive status, and its
concomitant lack of assets or relevant operating history, it is likely that any
potential merger or acquisition with another operating business will require
substantial dilution of the Company's existing shareholders. There will probably
be a change in control of the Company, with the incoming owners of the targeted
merger or acquisition candidate taking over control of the Company. Management
has not established any guidelines as to the amount of control it will offer to
prospective business opportunity candidates, since this issue will depend to a
large degree on the economic strength and desirability of each candidate, and
correspondent ending relative bargaining power of the parties. However,
management will endeavor to negotiate the best possible terms for the benefit of
the Company's shareholders as the case arises.
Management does not have any plans to borrow funds to compensate any
persons, consultants, promoters, or affiliates in conjunction with its efforts
to find and acquire or merge with another business opportunity. Management does
not have any plans to borrow funds to pay compensation to any prospective
business opportunity, or shareholders, management, creditors, or other potential
parties to the acquisition or merger. In either case, it is unlikely that the
Company would be able to borrow significant funds for such purposes from any
conventional lending sources. In all probability, a public sale of the Company's
securities would also be unfeasible, and management does not contemplate any
form of new public offering at this time. In the event that the Company does
need to raise capital, it would most likely have to rely on the private sale of
its securities. Such a private sale would to available exemptions, if any
applies. However, no private sales are contemplated by the Company's management
at this time. If a private sale of the Company's securities is deemed
appropriate in the future, management will endeavor to acquire funds on the best
terms available to the Company. However, there can be no assurance that the
Company will be able to obtain funding when and if needed, or that such funding,
if available, can be obtained on terms reasonable or acceptable to the Company.
Although not presently anticipated by management, there is a remote possibility
that the Company might sell its securities to its management or affiliates.
In the event of a successful acquisition or merger, a finder's fee, in the
form of cash or securities of the Company, may be paid to persons instrumental
in facilitating the transaction. The Company has not established any criteria or
limits for the determination of a finder's fee, although most likely an
appropriate finder's fee will be negotiated between the parties, including the
potential business opportunity candidate, based upon economic considerations and
reasonable value as estimated and mutually agreed at that time. A finder's fee
would only be payable upon completion of the proposed acquisition or merger in
the normal case, and management does not contemplate any other arrangement at
this time. Management has not actively undertaken a search for, nor retention
of, any finder's fee arrangement with any person. It is possible that a
potential merger or acquisition candidate would have its own finder's fee
arrangement, or other similar business brokerage or investment banking
arrangement, whereupon the terms may be governed by a pre-existing contract; in
such case, the Company may be limited in its ability to affect the terms of
compensation, but most likely the terms would be disclosed and subject to
approval pursuant to submission of the proposed transaction to a vote of the
Company's shareholders. Management cannot predict any other terms of a finder's
fee arrangement at this time. It would be unlikely that a finder's fee payable
to an affiliate of the Company would be proposed because of the potential
conflict of interest issues. If such a fee arrangement was proposed, independent
management and directors would negotiate the best terms available to the Company
so as not to compromise the fiduciary duties of the affiliate in the proposed
transaction, and the Company would require that the proposed arrangement would
be submitted to the shareholders for prior ratification in an appropriate
manner.
Management does not contemplate that the Company would acquire or merge
with a business entity in which any affiliates of the Company have an interest.
Any such related party transaction, however remote, would be submitted for
approval by an independent quorum of the Board of Directors and the proposed
transaction would be submitted to the shareholders for prior ratification in an
appropriate manner. None of the Company's managers, directors, or other
affiliated parties have had any contact, discussions, or other understandings
regarding any particular business opportunity at this time, regardless of any
potential conflict of interest issues. Accordingly, the potential conflict of
interest is merely a remote theoretical possibility at this time.
Rights of Shareholders
It is presently anticipated by management that prior to consummating a
possible acquisition or merger, the Company will seek to have the transaction
ratified by shareholders in the appropriate manner. Most likely, this would
require a general or special shareholder's meeting called for such purpose,
wherein all shareholder's would be entitled to vote in person or by proxy. In
the notice of such a shareholder's meeting and proxy statement, the Company will
provide shareholders complete disclosure documentation concerning a potential
acquisition of merger candidate, including financial information about the
target and all material terms of the acquisition or merger transaction.
Competition
Because the Company has not identified any potential acquisition or merger
candidate, it is unable to evaluate the type and extent of its likely
competition. The Company is aware that there are several other public companies
with only nominal assets that are also searching for operating businesses and
other business opportunities as potential acquisition or merger candidates. The
Company will be in direct competition with these other public companies in its
search for business opportunities and, due to the Company's lack of funds, it
may be difficult to successfully compete with these other companies.
As of the date hereof, the Company does not have any employees and has no
plans for retaining employees until such time as the Company's business warrants
the expense, or until the Company successfully acquires or merges with an
operating business. The Company may find it necessary to periodically hire
part-time clerical help on an as-needed basis.
Facilities
The Company is currently using as its principal place of business the
residence of its President located in Salt Lake City, Utah. Although the
Company has no written agreement and pays no rent for the use of this facility,
it is contemplated that at such future time as an acquisition or merger
transaction may be completed, the Company will secure commercial office space
from which it will conduct its business. Until such an acquisition or merger,
the Company lacks any basis for determining the kinds of office space or other
facilities necessary for its future business. The Company has no current plans
to secure such commercial office space. It is also possible that a merger or
acquisition candidate would have adequate existing facilities upon completion of
such a transaction, and the Company's principal offices may be transferred to
such existing facilities.
Industry Segments
No information is presented regarding industry segments. The Company is
presently a development stage company seeking a potential acquisition of or
merger with a yet to be identified business opportunity. Reference is made to
the statements of income included herein in response to Part F/S of this Form
10-SB, for a report of the Company's operating history for the past two fiscal
years.
Item 2. Management's Discussion and Analysis or Plan of Operation
The Company is considered a development stage company with no assets or
capital and with no operations or income since inception. The costs and expenses
associated with the preparation and filing of this registration statement and
other operations of the Company have been paid for by a shareholder and officer
of the Company, specifically Jon Heidelberger ,the President and a Director of
the Company. It is anticipated that the Company will require only nominal
capital to maintain the corporate viability of the Company and necessary funds
will most likely be provided by the Company's existing shareholders or its
officers and directors in the immediate future. However, unless the Company is
able to facilitate an acquisition of or merger with an operating business or is
able to obtain significant outside financing, there is substantial doubt about
its ability to continue as a viable corporation.
In the opinion of management, inflation has not and will not have a
material effect on the operations of the Company until such time as the Company
successfully completes an acquisition or merger. At that time, management will
evaluate the possible effects of inflation on the Company as it relates to its
business and operations following a successful acquisition or merger.
Plan of Operation
During the next twelve months, the Company will actively seek out and
investigate possible business opportunities with the intent to acquire or merge
with one or more business ventures. In its search for business opportunities,
management will follow the procedures outlined in Item I above. Because the
Company lacks finds, it may be necessary for the officers and directors to
either advance funds to the Company or to accrue expenses until such time as a
successful business consolidation can be made. Management intends to hold
expenses to a minimum and to obtain services on a contingency basis when
possible. Further, the Company's directors will defer any compensation until
such time as an acquisition or merger can be accomplished and will strive to
have the business opportunity provide their remuneration. However, if the
Company engages outside advisors or consultants in its search for business
opportunities, it may be necessary for the Company to attempt to raise
additional funds.
As of the date hereof, the Company has not made any arrangements or
definitive agreements to use outside advisors or consultants or to raise any
capital. In the event the Company does need to raise capital most likely the
only method available to the Company would be the private sale of its
securities. Because of the nature of the Company as a development stage company,
it is unlikely that it could make a public sale of securities or be able to
borrow any significant sum, from either a commercial or private lender. There
can be no assurance that the Company will be able to obtain additional funding
when and if needed, or that such funding, if available, can be obtained on terms
acceptable to the Company.
The Company does not intend to use any employees, with the possible
exception of part-time clerical assistance on an as-needed basis. Outside
advisors or consultants will be used only if they can be obtained for minimal
cost or on a deferred payment basis. Management is confident that it will be
able to operate in this manner and to continue its search for business
opportunities during the next twelve months.
Item 3. Description of Property
The information required by this Item 3 is not applicable to this Form
10-SB due to the fact that the Company does not own or control any material
property.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information, to the best knowledge of the
Company as of December 09, 1999, with respect to each person known by the
Company to own beneficially more than FIve Percent (5%) of the Company's
outstanding common stock, each director of the Company and all directors and
officers of the Company as a group.
Name and Address Amount and Nature of Percent
Beneficial Owner Beneficial Ownership of Class
- ----------------- --------------------- ---------
N. James Marin 40,000 Shares 8%
3600 Harstrand Gulch
Etna, CA 96027
Tim Neal 40,000 Shares 8%
P.O. Box 545
Novato, CA 94948
Note: The Company has been advised that each of the persons
listed above has sole voting power over the shares indicated above.
ITEM 5
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The Directors and Executive Officers of the Company are as follows:
POSITION
NAME AGE TITLE HELD SINCE
Jon Heidelberger* 48 President/Director April 18, 1998
Lorretta Heidelberger* 47 Sec./Treas./Director April 18, 1998
*Jon and Lorretta Heidelberger are husband and wife. Their combined
interest in the Company totals 9,000 shares, approximately 0.018%.
All directors hold office until the next annual meeting of stockholders and
until their successors have been duly elected and qualified. There are no
agreements with respect to the election of directors. The Company has not
compensated its directors for service on the Board of Directors or any committee
thereof. As of the date hereof, no Director has accrued any expenses or
compensation. Officers are appointed annually by the Board of Directors and each
executive officer serves at the discretion of the Board of Directors. The
Company does not have any standing committees at this time.
No Director, Officer, affiliate or promoter of the Company has, within the
past five years, filed any bankruptcy petition, been convicted in or been the
subject of any pending criminal proceedings, nor is any such person the subject
or any order, judgment or decree involving the violation of any state or federal
securities laws.
The business experience of each of the persons listed above during the past
five years is as follows:
JON HEIDELBERGER: DIRECTOR AND PRESIDENT
Jon Heidelberger's business experience and expertise comes primarily from
his successful career in the automobile industry, specifically sales.
LORRETTA HEIDELBERGER: DIRECTOR, TREASURE/SECRETARY
Lorretta Heidelberger's business experience comes from processing financial
corporate data for a major medical corporation.
Item 6. Executive Compensation
The Company has not had a bonus, profit sharing, or deferred compensation
plan for the benefit of its employees, officers or directors. The Company has
not paid any salaries or other compensation to its officers, directors or
employees for the years ended December 31, 1997 and 1998, nor at any time during
1999. Further, the Company has not entered into an employment agreement with
any of its officers, directors or any other persons and no such agreements are
anticipated in the immediate future. It is intended that the Company's
directors will defer any compensation until such time as an acquisition or
merger can be accomplished and will strive to have the business opportunity
provide their remuneration. As of the date hereof, no person has accrued any
compensation from the Company.
Item 7. Certain Relationships and Related Transactions
In August of 1998, in a private transaction, the Company sold 25 pre-split
shares to Jon Heidelberger and 20 pre-split shares to Lorretta Heidelberger in
order to fund certain expenses of the Company. Aside from that transaction,
during the Company's last two fiscal years, there have not been any transactions
between the Company and any officer, director, nominee for election as director,
or any shareholder owning greater than five percent (5%) of the Company's
outstanding shares, nor any member of the above referenced individuals'
immediate family.
Item 8. Description of Securities
Common Stock
The Company is authorized to issue 100,000,000 shares of common stock, Par
Value $0.001, of which 496,400 shares are issued and outstanding as of the date
hereof. All shares of common stock have equal rights and privileges with respect
to voting, liquidation and dividend rights. Each share of common stock entitles
the holder thereof to (i) one non-cumulative vote for each share held of record
on all matters submitted to a vote of the stockholders; (ii) to participate
equally and to receive any and all such dividends as may be declared by the
Board of Directors out of funds legally available therefor; and (iii) to
participate pro rata in any distribution of assets available for distribution
upon liquidation of the Company. Stockholders of the Company have no pre-emptive
rights to acquire additional shares of common stock or any other securities. The
common stock is not subject to redemption and carries no subscription or
conversion rights. All outstanding shares of common stock are fully paid and
non-assessable.
Preferred Stock
The Company does not have any preferred stock, authorized or issued.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity
and Other Shareholder Matters
No shares of the Company's common stock have previously been registered
with the Securities and Exchange Commission (the "Commission") or any state
securities agency or authority. The Company has made an application to the NASD
for the Company's shares to be quoted on the National Quotation Bureau's Pink
Sheets ("Pink Sheets"). The Company's application to the NASD consists of
current corporate information, financial statements and other documents as
required by Rule 15c2-11 of the Securities Exchange Act of 1934, as amended.
Inclusion on the "Pink Sheets" permits price quotations for the Company's shares
to be published by such service.
The Company's common shares are not currently quoted. The Company is not
aware of any established trading market for its common stock nor is there any
record of any reported trades in the public market in recent years. The
Company's common stock has never traded in a public market .
If and when the Company's common stock is traded in the Pink Sheet, most
likely the shares will be subject to the provisions of Section 15(g) and Rule
15g-9 of the Securities Exchange Act of 1934, as amended (the 'Exchange Act"),
commonly referred to as the "penny stock" rule. Section 15(g) sets forth certain
requirements for transactions in penny stocks and Rule 15g9(d)(1) incorporates
the definition of penny stock as that used in Rule 3a5l-l of the Exchange Act.
The Commission generally defines penny stock to be any equity security that has
a market price less than $5.00 per share, subject to certain exceptions. Rule
3a5l-l provides that any equity security is considered to be a penny stock
unless that security is: registered and traded on a national securities exchange
meeting specified criteria set by the Commission; authorized for quotation on
The NASDAQ Stock Market; issued by a registered investment company; excluded
from the definition on the basis of price (at least $5.00 per share) or the
issuer's net tangible assets; or exempted from the definition by the Commission.
If the Company's shares are deemed to be a penny stock, trading in the shares
will be subject to additional sales practice requirements on broker-dealers who
sell penny stocks to persons other than established customers and accredited
investors, generally persons with assets in excess of $1,000,000 or annual
income exceeding $200,000, or $300,000 together with their spouse. For
transactions covered by these rules, broker-dealers must make a special
suitability determination for the purchase of such securities and must have
received the purchaser's written consent to the transaction prior to the
purchase. Additionally, for any transaction involving a penny stock, unless
exempt, the rules require the delivery, prior to the first transaction, of a
risk disclosure document relating to the penny stock market. A broker-dealer
also must disclose the commissions payable to both the broker-dealer and the
registered representative, and current quotations for the securities. Finally,
monthly statements must be sent disclosing recent price information for the
penny stocks held in the account and information on the limited market in penny
stocks. Consequently, these rules may restrict the ability of broker dealers to
trade and/or maintain a market in the Company's common stock and may affect the
ability of shareholders to sell their shares.
As of the date hereof, there were Thirty Two (32) holders of record of the
Company's common stock. As of the date hereof, the Company has issued and
outstanding 496,400 shares of common stock. Of this total, all shares, excepting
those issued to the current officers in August of 1998, were issued in
transactions more than two years ago. (A forward 200-for-1 stock split occurred
on August 20, 1998, increasing the number of shares held by existing
shareholders, which is not deemed a "new" issuance.) Thus, all but 9,000 shares
were issued more than two years ago and may be sold or otherwise transferred
without restriction pursuant to the terms of Rule 144 ("Rule 144") of the
Securities Act of 1933, as amended (the "Act"), unless held by an affiliate or
controlling shareholder of the Company. Of these shares, the Company has
identified 9,000 shares as being held by affiliates of the Company. The
remaining 487,400 shares are deemed free from restrictions and may be sold
and/or transferred without further registration under the Act.
The 9,000 restricted shares presently held by affiliates or controlling
shareholders of the Company have been held for the requisite one year and
therefore may be sold pursuant to Rule 144. In general, under Rule 144 as
currently in effect, a person (or persons whose shares are aggregated) who has
beneficially owned restricted shares of the Company for at least one year,
including any person who may be deemed to be an "affiliate" of the Company (as
the term "affiliate" is defined under the Act), is entitled to sell, within any
three-month period, an amount of shares that does not exceed the greater of (i)
the average weekly trading volume in the Company's common stock during the four
calendar weeks preceding such sale, or (ii) 1 % of the shares then outstanding.
A person who is not deemed to be an "affiliate" of the Company and who has held
restricted shares for at least three years would be entitled to sell such shares
without regard to the resale limitations of Rule 144.
Dividend Policy
The Company has not declared or paid cash dividends or made distributions
in the past, and the Company does not anticipate that it will pay cash dividends
or make distributions in the foreseeable future. The Company currently intends
to retain and reinvest future earnings, if any, to finance its operations.
Item 2. Legal Proceedings
The Company is currently not a party to any material pending legal
proceedings and no such action by, or to the best of its knowledge, against the
Company has been threatened.
Item 3. Changes in and Disagreements with Accountants Item 3 is not applicable
to this Form 10-SB.
Item 4. Recent Sales of Unregistered Securities
In August of 1998, the Company sold 25 pre-split shares of restricted
common stock to Jon Heidelberger and 20 pre-split shares of restricted common
stock to Lorretta Heidelberger in an isolated transaction. The Heidelbergers are
husband and wife and constitute the present officers and directors of the
Company. The transaction is deemed exempt pursuant to Section 4(2) of the Act.
All other issues of securities by the Company were made more than three
years ago.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles and By-Laws provide for indemnification for
liability, including expenses incurred in connection with a claim of liability
arising from having been an officer or director of the Company for any action
alleged to have been taken or omitted by any such person acting as an officer or
director, not involving gross negligence or willful misconduct by such person.
Section 78.751 of the Nevada General Corporation Law allows the Company to
indemnify any person who was or is threatened to made party to any threatened,
pending, or completed action, suit or proceeding, by reason of the fact that he
or she is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee, or
agent of any corporation, partnership, joint venture, trust or other enterprise.
The Company's By-Laws provide that such a person shall be indemnified and held
harmless to the fullest extent provided by Nevada law.
Transfer Agent
The Company has designated Interwest Transfer Company, Inc., 1981 E. Murray
Holliday Road, Holladay, Utah 84117, (801) 272-9294 its transfer agent.
PART F/S
Financial Statements and Supplementary Data
The Company's financial statements at October 31, 1998, and December 31,
1997, and the results of operations, and cash flows for the ten months ended
October 31, 1997 and the years ended December 31, 1997, and 1996 and the period
November 26, 1980 (date of inception) to October 31, 1998 , have been examined
to the extent indicated in the reports by Andersen Andersen and Strong, L.C.,
Certified Public Accountants, and have been prepared in accordance with
generally accepted accounting principles and pursuant to Regulation S-B as
promulgated by the Securities and Exchange Commission and are included herein,
on the following eight (8) pages, in response to Part F/S of this Form 10-SB.
<PAGE>
ITEM 5
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
OLD NIGHT, INC.
(REGISTRANT)
/s/ Jon Heidelberger
BY: _______________________
PRESIDENT AND DIRECTOR
DATED: 06TH DAY OF DECEMBER, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on the 6th day of December, 1999,
/s/ Jon Heidelberger
___________________________________
JON HEIDELBERGER: President and Director
/s/ Lorretta Heidelberger
____________________________________
LORETTA HEIDELBERGER: Director, Secretary and Chief Financial Officer
PART III
ITEM 1. INDEX TO EXHIBITS
THE FOLLOWING EXHIBITS ARE FILED WITH THIS REGISTRATION STATEMENT:
Exhibit No. Description
- ------------ -----------
3 (i) Articles of Incorporation
Certificate of Amendment of Articles of Incorporation
3 (ii) By-Laws
23 Consent of Independent Certified Public Accountant
27 Financial Data Schedule
OLD NIGHT, INC.
FINANCIAL STATEMENTS AND REPORT
OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
OCTOBER 31, 1998, DECEMBER 31, 1997, AND DECEMBER 31, 1996
<PAGE>
Board of Directors
Old Night, Inc.
Salt Lake City, Utah
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have audited the accompanying balance sheets of Old Night, Inc. (a
development stage company) at October 31, 1998, and December 31, 1997 , and the
statements of operations, stockholders' equity, and cash flows for the ten
months ended October 37, 1998 and the years ended December 31, 1997, and 1996,
and the period November 26, 1980 (date of inception) to October 31, 1998. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Old Night, Inc. at October
31, 1998, and December 31, 1997, and the results of operations, and cash flows
for the ten months ended October 31, 1997 and the years ended December 31, 1997,
and 1996, and the period November 26, 1980 (date of inception) to October 31,
1998, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company has been in the
development stage since its inception and has suffered recurring losses from
operations and will need additional working capital for any future activity,
which raises substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are described in Note 4.
These financial statements do not include any adjustments that might result from
the outcome of this uncertainty.
/s/ Andersen Andersen and Strong, L.L.C.
- ----------------------------------------
Andersen Andersen and Strong, L.L.C.
Salt Lake City, Utah
November 23, 1998
OLD NIGHT, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
October 31, 1998, and December 31, 1997
<TABLE>
<CAPTION>
October 31, December 31,
1998 1998
--------- ---------
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash $ - $ -
--------- ---------
Total Current Assets $ - $ -
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ - $ -
--------- ---------
Total Current Liabilities - -
--------- ---------
STOCKHOLDERS' EQUITY
Common stock
100,000,000 shares authorized, at $0.001 par
value; 496,400 shares issued and outstanding
at October 31, 1998; 487,400 at Dec 31, 1998 496 487
Capital in excess of par value 37,504 28,513
Deficit accumulated during the development stage (38,000) (29,000)
--------- ---------
Total Stockholders' Equity (deficiency) - -
--------- ---------
$ - $ -
========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
OLD NIGHT, INC.
( A Development Stage Company)
STATEMENTS OF OPERATIONS
For the Ten Months Ended October 31, 1998 and the Years
Ended December 31, 1997 and 1996 and the Period
November 26, 1980 (Date of Inception) to October 31, 1998
<TABLE>
<CAPTION>
NOV 26, 1980
OCT 31 DEC 31 DEC 31 (Date of Inception) to
1999 1997 1996 OCT 30, 1999
--------- ------- ------- ------------------------
<S> <C> <C> <C> <C>
SALES $ - $ - $ - $ -
EXPENSES 9,000 - - 38,000
--------- ------- ------- ------------------------
NET LOSS $ (9,000) $ - $ - $ (38,000)
========= ======= ======= ========================
NET LOSS PER COMMON
SHARE
Basic $ (.018) $ - $ -
--------- ------- -------
AVERAGE OUTSTANDING
SHARES
Basic 496,400 487,400 487,400
--------- ------- -------
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
OLD NIGHT, INC.
( A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
Period from November 26, 1980 (Date of Inception)
to October 31, 1998
<TABLE>
<CAPTION>
COMMON STOCK CAPITAL In
---------------- EXCESS OF ACCUMULATED
SHARES AMOUNT PAR VALUE DEFICIT
------- ------- ---------- ---------
<S> <C> <C> <C> <C>
Balance November 26, 1980(date of inception) - $ - $ - $ -
Issuance of common stock for cash 160,000 160 7,840 -
at $.05 - August 24, 1983
Issuance of common stock for cash 140,000 140 6,860 -
at $.05 - September 8, 1983
Issuance of common stock for cash
at $.05 - October 17, 1983 133,600 133 9,867 -
Issuance of common stock for cash
at $.0743 - November 1, 1983 53,800 54 3,946 -
Net operating loss for the year ended
December 31, 1993 - - - (29,000)
------- --- ------ -------
BALANCE DECEMBER 31, 1983 487,400 487 28,513 (29,000)
------- --- ------ -------
BALANCE DECEMBER 31, 1997 487,400 487 28,513 (29,000)
Issuance of common stock for cash
at $1.00 - August 25, 1998 9,000 9 8,991 -
Net operating loss for the ten months ended
October 31, 1999 - - - (9,000)
------- ------- --------- ---------
BALANCE OCTOBER 31, 1998 496,400 $ 496 $ 37,504 $(38,000
======= ======= ========== =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
OLD NIGHT, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
For the ten months ended October 31, 1998 and the years ended December 31,
1997, and 1996 and the period from November 26, 1980 (date of inception) to
October 30, 1999
<TABLE>
<CAPTION>
OCTOBER 19, 1988
OCT 31 DEC 31 DEC 31 (DATE OF INCEPTION)
1998 1997 1996 TO JUNE 30, 1999
--------- ------- ------- --------------------
CASH FLOWS FROM
OPERATING ACTIVITIES
<S> <C> <C> <C> <C>
Net loss $ (9,000) $ - $ - $ (38,000)
Adjustments to reconcile net loss to
net cash provided by operating
activities - - - -
Net Cash Used in Operations (9,000) - - (38,000)
--------- ------- ------- --------------------
CASH FLOWS FROM INVESTING
ACTIVITIES - - - -
--------- ------- ------- --------------------
CASH FLOWS FROM FINANCING
ACTIVITIES
Proceeds from issuance of common stock
9,000 - - 38,000
--------- ------- ------- --------------------
Net Increase (Decrease) in Cash - - - -
Cash at Beginning of Period - - - -
--------- ------- ------- --------------------
Cash at End of Period $ - $ - $ - $ -
========= ======= ======= ====================
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
OLD NIGHT, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION
The Company was incorporated under the laws of the State of Nevada on
November 26, 1980 with authorized common stock of 2,500 shares with no par value
under the name of Avery, Armstrong and Associates, Architects Engineers.
On August 20, 1998 the name of the Company was changed to Old Night, Inc,
and the authorized capital stock was increased to 100,000,000 shares with a par
value of $0.001.
On August 20, 1998 the Company completed a forward common stock split of
200 shares for each outstanding share. This report has been prepared showing
after stock split shares with a par value of $.001 from inception.
The Company has been engaged in the activity of seeking developmental
mining properties and was inactive after 1983.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Methods
- -------------------
The Company recognizes income and expenses based on the accrual method of
accounting.
Dividend Policy
- ----------------
The Company has not yet adopted a policy regarding payment of dividends.
Income Taxes
- -------------
At December 31, 1997, the Company had a net operating loss carry forward of
$29,000. The tax benefit from the loss carry forward has been fully offset by a
valuation reserve because the use of the future tax benefit is undeterminable
since the Company has no operations. The net operating loss will expire in 1999.
Earnings (Loss) Per Share
- ----------------------------
Earnings (loss) per share amounts are computed based on the weighted
average number of shares actually outstanding, after the stock split, using the
treasury stock method in accordance with FASB statement No. 128.
Financial Instruments
- ----------------------
The carrying amounts of financial instruments are considered by management to
be their estimated fair values. These values are not necessarily indicative of
the amounts that the Company could realize in a current market exchange.
<PAGE>
- ------
RICH EARTH, INC.
( A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Estimates and Assumptions
- ---------------------------
Management uses estimates and assumptions in preparing financial statements in
accordance with generally accepted accounting principles. Those estimates and
assumptions affect the reported amounts of the assets and liabilities, the
disclosure of contingent assets and liabilities, and the reported revenues and
expenses. Actual results could vary from the estimates that were assumed in
preparing these financial statements.
3. RELATED PARTY TRANSACTIONS
The statement of changes in stockholder's equity shows 496,400 shares of
common stock outstanding of which 363,200 shares were acquired by related
parties.
The officers and directors of the Company are involved in other business
activities and they may, in the future, become involved in additional business
ventures which also may require their attention. If a specific business
opportunity becomes available, such persons may face a conflict in selecting
between the Company and their other business interests. The Company has
formulated no policy for the resolution of such conflicts.
4. GOING CONCERN
Continuation of the Company as a going concern is dependent upon obtaining
sufficient working capital and the management of the Company has developed a
strategy, which it believes will accomplish this objective through equity
funding, and long term financing, which will enable the Company to operate in
the future.
ARTICLES OF INCORPORATION
-------------------------
OF
--
AVERY, ARMSTRONG AND ASSOCIATES, ARCHITECTS AND ENGINEERS
-----------------------------------------------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, for the purpose of association to establish a
corporation for the transaction of business and the promotion and conduct of the
objects and purposes hereinafter stated, under the provisions of and subject to
the requirements of the laws of the State of Nevada, do make, record and file
these Articles of Incorporation, in writing, and we do hereby certify:
I
That the name of the corporation shall be:
AVERY, ARMSTRONG AND ASSOCIATES,
ARCHITECTS AND ENGINEERS.
II That the principal office and place of business of the corporation shall
be at 600 East Charlestown Boulevard, Las Vegas, Nevada, 89104; and that the
resident agent in charge thereof shall be: HILBRECHT, JONES, SCHRECK & BERNHARD,
CHARTERED.
III
That this corporation may engage in any lawful activity.
IV
That this corporation is authorized to issue 2,500 shares of common
stock of no par value with preemptive rights.
V
Any and all shares issued by the corporation, the fixed consideration for
which has been paid stock and not liable for any further call or assessment
thereon, and the holders of such stock shall not be liable for any further
assessments, nor shall the private property of the shareholders, officers, or
directors be subject to the payment of corporate debts or obligations to any
extent whatsoever.
VI
The members of the governing board shall be styled Directors. The Board of
Directors shall consist of not less than one nor more than five members. At all
elections of directors of the corporation, each holder of stock possessing
voting power shall be entitled to as many votes as shall equal the number of his
shares of stock multiplied by the number of directors to be elected, and that he
may cast all of such votes for a single director or may distribute them among
the number to be voted for or any two or more of them, as he may see fit. The
name and address of the first Board of Directors which shall consist of three
members, and of each of the incorporators signing these Articles are as follows:
FIRST BOARD OF DIRECTORS
------------------------
AND INCORPORATORS
-----------------
HELENE FAIRCHILD 600 E.Charleston Blvd., Las Vegas, Nev. 89104
PHRONSIE MARKIN 600 E.Charleston Blvd., Las Vegas, Nev. 89104
DEBRA HOUGHTLING 600 E.Charleston Blvd., Las Vegas, Nev. 89104
VII
This Corporation shall have perpetual existence.
VIII
These articles may be amended by the directors and the stockholders in the
manner provided by law. IN WITNESS WHEREOF, the undersigned directors and
incorporators have executed these Articles of Incorporation this 6th day of
October 1980.
/s/ Helene Fairchild
--------------------
HELENE FAIRCHILD
/s/ Phronsie Markin
--------------------
PHRONSIE MARKIN
/s/ Debra Houghtling
--------------------
DEBRA HOUGHTLING
STATE OF NEVADA )
COUNTY OF CLARK )
On this 6th day of October, 1980, before me, a Notary Public in and for
said county and state, personally appeared HELENE FAIRCHILD, PHRONSIE MARKIN,
and DEBRA HOUTLING, known to me to be the persons described in and who executed
the foregoing ARTICLES OF INCORPORATION, who acknowledged to me that they
executed the same freely and voluntarily and for the uses and purposes therein
mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal.
/s/ Lidia Sanchez
--------------------
NOTARY PUBLIC
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF OLD NIGHT, INC.
We the undersigned, Jon Heidelberger, President and Lorretta Heidelberger,
Secretary of Old Night, Inc., do hereby certify: That the Board of Directors of
said corporation at a meeting duly convened, held on the 2oth day of August,
1998 adopted a resolution to amend the original articles as follows:
ARTICLE I which presently reads as follows:
That the name of the corporation shall be:
AVERY, ARMSTRONG AND ASSOCIATES
ARCHITECTS AND ENGINEERS
Is hereby amended to read as follows:
That the name of the corporation shall be:
OLD NIGHT, INC.
ARTICLE IV which presently reads as follows:
ARTICLE FOUR
STOCK
----
The total authorized capital stock of this corporation shall consist of Two
Thousand Five Hundred (2,500) shares of common stock of no par value or with
preemptive rights. All of the voting power of the capital stock of this
corporation shall be subject to assessment.
Is hereby amended to read as follows:
ARTICLE FOUR
AUTHORIZED CAPITAL STOCK
------------------------
The total authorized capital stock of the Corporation is 1000,000,000
shares of Common Stock, with a par value of $0.001 (1 mil). All stock when
issued shall be deemed fully paid and non-assessable. No cumulative voting, on
any matter to which Stockholders shall be entitled to vote, shall be allowed for
any purpose.
The authorized stock of this corporation may be issued at such time, upon
such terms and conditions and for such consideration as the Board of Directors
shall, from time to time, determine. Shareholders shall not have pre-emptive
rights to acquire unissued shares of the stock of this Corporation.
ARTICLE SIX
Directors
---------
Members of the governing board shall be styled Directors. The Board of
Directors shall consist of not less than one nor more than five members. At all
elections of directors of the corporation each holder of stock possessing voting
power shall be entitled to as many votes as shall be equal the number of shares
of stock multiplied by the number of directors to be elected, and that he may
cast all of such votes for a single director or may distribute them among the
number to be voted for any two or more of them, as he may see fit. the name and
address of the first Board of Directors which shall consist of three members,
and of each of the corporators signing these Articles are as follows:
Article VI which presently reads as follows:
NAME ADDRESS
Helen Fairchild 600 E. Charleston Blvd
Las Vegas, Nevada 89104
Phronsie Markin 600 E. Charleston Blvd
Las Vegas, Nevada 89104
Debra Houghtling 600 E. Charleston Blvd
Las Vegas, Nevada 89104
Is hereby amended to read as follows:
ARTICLE SIX
DIRECTORS
---------
The Directors are hereby granted the authority to do any act on behalf of
the Corporation as may be allowed by law. Any action taken in good faith, shall
be deemed appropriate and in each instances where the Articles of Incorporation
so authorize, such action by the Directors shall be deemed to exist in these
Articles and the authority granted by said Act shall be imputed hereto without
the same specifically having been enumerated herein.
The Board of Directors may consist of from one (1) to nine (9) directors,
as determined, from time to time, by the then existing Board of Directors.
THE FOLLOWING NEW ARTICLES ARE HEREBY ADOPTED
---------------------------------------------
ARTICLE NINE
COMMON DIRECTORS
As provided by Nevada Revised Statute 78.140, without repeating the section
in full here, the same is adopted and no contact or other transaction between
this Corporation and any of its officers, agents or directors shall be deemed
void or voidable solely for that reason. The balance of the provisions of the
code section cited, as it now exists, allowing such transactions, is hereby
incorporated to provide the greatest latitude in its application.
ARTICLE TEN
LIABILITY OF DIRECTORS AND OFFICERS
No Director, Officer or Agent, to include counsel, shall be personally
liable to the Corporation or its Stockholders for monetary damage or any breach
or alleged breach of fiduciary or professional duty by such person acting in
such capacity. It shall be presumed that in accepting the position as an
Officer, Director, Agent or Counsel, said individual relied upon and acted in
reliance upon the terms and protections provided for by this Article.
Notwithstanding the foregoing sentences, a person specifically covered by
this Article shall be liable to the extent provided by applicable law, for acts
or omissions which involve intentional misconduct, fraud or a knowing violation
of law, or for the payment of dividends in violation of NRS 78.300.
ARTICLE ELEVEN
ELECTION REGARDING NRS 78.378 - 78.3793 and 78.411 - 78.444
This Corporation shall NOT be governed by nor shall the provisions of NRS
78.378 through and including 78.3793 and NRS 78.4111 through and including
78.444 in any way whatsoever affect the management, operation or be applied to
the Corporation. This Article may only be amended by a majority vote of not less
than 90% of the then issued and outstanding shares of the COrporation. A quorum
of outstanding shares for voting on an Amendment to this article shall not be
met unless 95% or more of the issued and outstanding shares are present at a
properly called and noticed meeting of the Stockholders. The super-majority set
forth in this Article only applies to any attempted amendment to this Article.
The number of shares of the corporation outstanding and entitled to vote on
an amendment to the Articles of Incorporation is 496,400: that the said change
(s) and amendment have been consented to and approved by a majority vote of the
stockholders holding at least a majority of each class of stock outstanding and
entitled to vote thereon.
/s/ Jon Heidelberger
--------------------
JON HEIDELBERGER
PRESIDENT
/s/ Lorretta Heidelberger
------------------------
LORRETTA HEIDELBERGER
SECRETARY / TREASURER
STATE OF UTAH
COUNTY OF SALT LAKE
Jon and Lorretta Heidelberger personally appeared before me, a Notary
Public, and acknowledged that they executed the above instrument.
/s/ Jackie Long
-------------------------
NOTARY PUBLIC
BY-LAWS OF OLD NIGHT, INC.
ARTICLE I - OFFICES
The principal office of the corporation in the State of
Utah shall be located in the residence of the President County of Salt Lake
City. The corporation may have such other offices, either within or without the
State of incorporation as the board of directors may designate or as the
business of the corporation may require from time to time.
ARTICLE II -STOCKHOLDERS
1. ANNUAL MEETING
The annual meeting of the stockholders shall be held on the first day of
February of each year, beginning in the year 1998 at the hour eleven o clock
A.M., for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. Should the day fixed for the
annual meeting be a legal holiday, said meeting shall be held on the next
succeeding business day.
2. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the president or by the
directors, and shall be called by the president at the request of the holders of
not less than forty five percent (45%) of all the outstanding shares of the
corporation entitled to vote at the meeting.
3. PLACE OF MEETING
The directors may designate any place, either within or without the State
of incorporation, unless otherwise prescribed by statute, as the place of
meeting for any annual meeting or for any special meeting called by the
directors. A waiver of notice, signed by all stockholders entitled to vote at a
meeting, may designate any place, either within or without the state of
incorporation, unless otherwise proscribed by statute, as the place for holding
such meeting. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the Principal Office of the Corporation.
4. NOTICE OF MEETING
Written or printed notice stating the place, day and hour of the meeting
and, in case of a special meeting, the purpose or purposes for which the meeting
is called, shall be delivered no less than ten (10) days nor more than forty
five (45) days before the date of the meeting, either personally or by mail, by
or at the direction of the President, or the Secretary, or the Officer or
persons calling the meeting, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed by the Corporation to be
delivered when deposited in the United States mail, addressed to the stockholder
at his or her address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid.
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE
For the purpose of determining stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or stockholders
entitled to receive payment of any dividend, or in order to make a determination
of stockholders for any other proper purpose, the Directors of the Corporation
may provide that the stock transfer books shall be closed for a stated period
but not to exceed, in any case, fifty (50) days. If the stock transfer books
shall be closed for the purpose of determining stockholders entitled to notice
of or to vote at a meeting of stockholders, such books shall be closed for at
least ten (10) days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Directors may fix, in advance, a date as the record
date for any such determination of stockholders, such date in any case to be not
more than fifty (50) days and, in case of a meeting of stockholders, not less
than ten (10) days prior to the date on which the particular action requiring
such determination of stockholders is to be taken. If the stock transfer books
are not closed, and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders, or
stockholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed, or the date on which the resolution of the Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as provided in
this section, such determination shall apply to any adjournment thereof. 6.
VOTING LISTS The officer or agent having charge of the stock transfer books for
shares of the Corporation shall make, at least three (3) days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares held by each, which list, for a period
of five (5) days prior to such meeting, shall be kept on file at the Principal
Office of the Corporation and shall be subject to the inspection of any
stockholder during the whole time of the meeting. The original stock transfer
book shall be prima facie evidence as to which stockholders are entitled to
examine such list or transfer books, or to vote at the meeting of stockholders.
7. QUORUM
At any meeting of stockholders fifty one percent (51%) of the outstanding
shares of the Corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders. If less than said number
of the outstanding shares are represented at a meeting, a majority of the shares
so represented may adjourn the meeting, from time to time, without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of sufficient stockholders to leave less than a quorum.
8. PROXIES
At all meetings of stockholders, a stockholder may vote by proxy executed
in writing by the stockholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Corporation before, or at the
time of, the meeting.
9. VOTING
Each stockholder entitled to vote in accordance with the terms and
provisions of the certificate of incorporation, and these by-laws, shall be
entitled to one vote, in person or by proxy, for each share of stock entitled to
vote held by such stockholders. Upon the demand of any stockholder, the vote for
Directors and upon any question before the meeting shall be by ballot. All
elections for Directors shall be decided by plurality vote; all other questions
shall be decided by majority vote except as otherwise provided by the
Certificate of Incorporation or the laws of this State.
10. ORDER OF BUSINESS
The order of business at all meetings of the stockholders, shall be as
follows: 1. Call to order 2. Roll Call 3. Proof of notice of meeting or waiver
of notice. 4. Reading of minutes of preceding meeting. 5. Reports of Officers.
6. Reports of Committees. 7. Election of Directors. 8. Unfinished Business. 9.
New Business. 10. Adjournment
11. INFORMAL ACTION BY STOCKHOLDERS
Unless otherwise provided by law, any action required to be taken at a
meeting of the shareholders, or any other action which may be taken at a meeting
of the shareholders, may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
<PAGE>
ARTICLE III - BOARD OF DIRECTORS
1. GENERAL POWERS
The business and affairs of the Corporation shall be managed by its Board
of Directors. The directors shall, in all cases, act as a Board, and it may
adopt such rules and regulations for the conduct of its meetings and the
management of the Corporation, as it deems proper, not inconsistent with these
by-laws and the laws of this State.
2. NUMBER TENURE AND QUALIFICATIONS
The number of directors of the Corporation shall be determined by the Board
of Directors. Each Director shall hold office until the next annual meeting of
stockholders and until his or her successor shall have been qualified and
elected.
3. REGULAR MEETINGS
A regular meeting of the Directors shall be held without other notice than
this by-law immediately after, and at the same place as, the annual meeting of
stockholders. The Directors may provide, by resolution, the time and place for
the holding of additional regular meetings without other notice than such
resolution.
4. SPECIAL MEETINGS
Special meetings of the Directors may be called by, or at the request of,
the President or any two (2) Directors. The person or persons authorized to call
special meetings of the directors may fix the place for holding any special
meeting called by the Directors.
5. NOTICE
Notice of any special meeting shall be given at least ten (10) days
previously thereto by written notice delivered personally, or by mail or by
telegram, to each Director at his business address. If mailed, such notice shall
be deemed to be delivered when deposited in the United States mail so addressed,
with postage thereon prepaid. If notice is given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company. The attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting has not been lawfully called or convened.
6. QUORUM
At any meeting of the Directors two (2) shall constitute a quorum for the
transaction of business, but if less than said number is present at a meeting, a
majority of the Directors present may adjourn the meeting, from time to time,
without further notice.
<PAGE>
7. MANNER OF ACTING
The act of the majority of the Directors present at a meeting at which a
quorum is present shall be the act of the Directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Newly created directorships resulting from an increase in the number of
Directors and/or vacancies occurring in the Board for any reason except the
removal of Directors without cause, may be filled by a vote of a majority of the
incumbent directors, notwithstanding the existence of a quorum. Vacancies
occurring by reason of the removal of Directors without cause shall be filled by
vote of the stockholders. A Director shall be elected to fill a vacancy, caused
by resignation, death or removal, for the unexpired term of his or her
predecessor.
9. REMOVAL OF DIRECTORS
Any or all of the Directors may be removed, for cause, by vote of the
stockholders or by action of the board. Directors may only be removed without
cause by vote of the stockholders.
10. RESIGNATION
A Director may resign at any time by giving written notice either to the
Board, the President or the Secretary of the Corporation. Unless otherwise
specified in the notice, the resignation shall take effect upon receipt thereof
by the Board or such officer, and the acceptance of the resignation shall not be
necessary to make it effective.
11. COMPENSATION
No compensation as such, shall be paid to Directors for their services,
however by resolution of the Board a fixed sum and expenses for actual
attendance at each regular or special meeting of the Board may be authorized.
Nothing contained herein shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
12. PRESUMPTION OF ASSENT
A director of the Corporation who is present at a meeting of the Directors
at which action on any Corporate matter is taken shall be presumed to have
assented to the action taken unless his or her dissent shall be entered in the
minutes of the meeting, or unless he shall file his or her written dissent to
such action with the person acting as the Secretary of the meeting before the
adjournment thereof, or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent, however, within seven (7) days of said adjournment shall
not apply to a director who voted in favor of such action.
13. EXECUTIVE AND OTHER COMMITTEES
The Board, by resolution, may designate from among its members an Executive
Committee and other Committees, each consisting of three (3) or more Directors.
Each such committee shall serve at the pleasure of the Board.
ARTICLE IV - OFFICERS
1. NUMBER
The Officers of the Corporation shall be a President, a Vice-President, a
Secretary and a Treasurer, each of whom shall be elected by the Directors. Such
other Officers and assistant officers, as may be deemed necessary by the
directors, may be elected or appointed.
2. ELECTION AND TERM OF OFFICE
The Officers of the Corporation to be elected by the Directors shall be
elected annually at the first meeting of the Directors held after each annual
meeting of the stockholders. Each officer shall hold office until his or her
successor shall have been duly elected and shall have qualified, or until his or
her death or until he or she shall resign or shall have been removed in the
manner hereinafter provided.
3. REMOVAL
Any officer or agent elected or appointed by the Directors may be removed
by the Directors whenever, in their judgment, the best interests of the
Corporation would be served thereby. Such removal, however, shall be without
prejudice to the contract rights, if any, of the person so removed.
4. VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Directors for the unexpired
portion of the term.
5. PRESIDENT
The President shall be the Principal Executive Officer of the Corporation
and, subject to the control of the Directors, shall in general supervise and
control all of the business and affairs of the Corporation. He or she shall,
when present, preside at all meetings of the stockholders and of the Directors.
He or she may sign, with the Secretary or any other proper Officer of the
Corporation thereunto authorized by the Directors, certificates for shares of
the Corporation, any deeds, mortgages, bonds, contracts, or other instruments
which the Directors have authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the directors or
by these By-Laws to some other officer or agent of the Corporation, or shall be
required by law to be otherwise signed or executed, and, in general, shall
perform all duties incident to the office of President and such other duties as
may be prescribed by the Directors from time to time.
6. VICE-PRESIDENT
In the absence of the President, or in event of his or her death,
incapacitation, inability or refusal to act, the Vice-President shall perform
the duties of the President, and, when so acting, shall have all the powers of,
and be subject to, all the restrictions upon the President. The Vice-President
shall perform such other duties as from time to time may be assigned to him or
her by the President or by the Directors.
7. SECRETARY
The Secretary shall keep the stockholders' and or the directors' meetings
in one or more books provided for that purpose, see that all notices are duly
given in accordance with the provisions of these By-Laws or as required by the
laws of this state, be custodian of the corporate records and of the seal of the
Corporation and keep a register of the post office address of each stockholder
which shall be furnished to the Secretary by such stockholder, have general
charge of the stock transfer books of the Corporation and, in general, perform
all duties incident to the office of Secretary and such other duties as may be
assigned, from time to time, to him or her by the President or by the Directors.
8. TREASURER
If required by the Directors, the Treasurer shall secure a bond for the
faithful discharge of his or her duties in such sum and with such surety or
sureties as the Directors shall determine. He or she shall have charge and
custody of and be responsible for all funds and securities of the Corporation,
receive and give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with these By-Laws and, in general, perform all of the duties
incident to the office of Treasurer and such other duties as may be assigned to
him or her, from time to time, by the President or by the Directors.
9. SALARIES
The salaries of the Officers shall be fixed, from time to time, by the
Directors and no Officer shall be prevented from receiving such salary by reason
of the fact that he or she is also a Director of the Corporation.
ARTICLE V -- CONTRACTS, LOANS, CHECKS AND DEPOSITS
1. CONTRACTS
The Directors may authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of,
and on behalf of, the Corporation, and such authority may be general or confined
to specific instances.
2. LOANS
No loans shall be contracted on behalf of the Corporation and no evidences
of indebtedness shall be issued in its name unless authorized by a resolution of
the Directors. Such authority may be general or confined to specific instances.
3. CHECKS, DRAFTS, ETC
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation, shall be signed
by such officer or officers, agent or agents of the Corporation and in such
manner as shall, from time to time, be determined by resolution of the
Directors.
4. DEPOSITS
All funds of the Corporation not otherwise employed shall be deposited,
from time to time, to the credit of the corporation in such banks, trust
companies or other depositories as the Directors may elect.
ARTICLE VI -- CERTIFICATES FOR SHARES AND THEIR TRANSFER
1. CERTIFICATES FOR SHARES
Certificates representing shares of the Corporation shall be in such form
as determined by the Directors. Such certificates shall be signed by the
President and by the Secretary or by such other officers authorized by law and
by the Directors. All certificates for shares shall be consecutively numbered or
otherwise sequentially identified. The name and address of the stockholder and
the number of shares and date of issue, shall be entered in the stock transfer
books of the Corporation. All certificates surrendered to the Corporation for
transfer shall be canceled and no new certificate shall be issued until the
former certificate, for a like number of shares, shall have been surrendered and
canceled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the Corporation
as the Directors may prescribe.
2. TRANSFERS OF SHARES
(a) Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer it, shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate; every such transfer shall be entered in
the transfer book of the Corporation which shall be kept at its Principal
Office.
(b) The Corporation shall be entitled to treat the holder of record of any
share as the holder in fact thereof, and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such share on the
part of any other person whether or not he or she shall have express or other
notice thereof, except as expressly provided by the laws of this State.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall begin on the first (1) day of
January in each year.
ARTICLE VIII - DIVIDENDS
The Directors may, from time to time, declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law.
ARTICLE IX - SEAL
The Directors shall provide a Corporate Seal, which shall be circular in
form and shall have inscribed thereon the name of the Corporation, the State of
incorporation, year of incorporation and the words, "Corporate Seal".
ARTICLE X - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be
given to any stockholder or Director of the Corporation under the provisions of
these By-Laws or under the provisions of the Articles of Incorporation, a waiver
thereof, in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE XI - AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted by a vote of the stockholders representing a majority of all the shares
issued and outstanding, at any annual stockholders' meeting, or at any special
stockholders' meeting, when the proposed amendment has been set out in the
notice of such meeting.
ARTICLE XI - AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted by a vote of the stockholders representing a majority of all the shares
issued and outstanding, at any annual stockholders meeting, or at any special
stockholders meeting, when the proposed amendment has been set out in the notice
of such meeting.
CERTIFICATE OF SECRETARY OF ADOPTION BY DIRECTORS
I HEREBY CERTIFY that I am the duly elected, qualified and acting Secretary
of the above-named Corporation, and that the above and foregoing Bylaws were
adopted as the Bylaws of said Corporation on the date set forth above by a
majority of vote of the shareholders of said Corporation.
Date: 07/ 11/ 1993
/S/ Lorretta Heidelberger
____________________________
LORRETTA HEIDELBERGER
Secretary / Treasurer
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
Old Night, Inc.
We hereby consent to the use of our report dated November 23, 1998, for the
period ended at October 31, 1998, and December 31, 1997 , and the statements of
operations, stockholders' equity, and cash flows for the ten months ended
October 37, 1998 and the years ended December 31, 1997, and 1996, and the period
November 26, 1980 (date of inception) to October 31, 1998.in the registration
statement of Rich Earth, Inc. filed in the form 10-SB in accordance with Section
12 of the Securities Exchange Act of 1934.
/s/ Andersen Andersen and Strong L.L.C.
October 31, 1998
Salt Lake City, Utah
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 496,400
<OTHER-SE> (496,400)
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-BASIC> 0
<EPS-DILUTED> .018
</TABLE>
