U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS UNDER SECTION 12(b)
OR 12(g) OF THE SECURITIES ACT OF 1934
BIG FUN TOYS, INC.
------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-4737488
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
22147 PACIFIC COAST HIGHWAY, #4, MALIBU, CA 90265
------------------------------------------- -----
(Address of Principal Executive Offices (Zip Code)
Registrant's Telephone Number, Including Area Code: 310) 317-6939
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:
COMMON STOCK, $.001 PAR VALUE
-----------------------------
(Title of Class)
<PAGE>
BIG FUN TOYS, INC.
FORM 10-SB
TABLE OF CONTENTS
ITEM No. Page
------- ----
PART I
Item 1. Description of Business ....................................1
Item 2. Management's Discussion and Analysis
or Plan of Operation.......................................3
Item 3. Description of Properties...................................3
Item 4. Security Ownership of Certain Beneficial
Owners and Management..................................4
4
Item 5. Directors, Executive Officers, Promoters and
Control Persons ...........................................5
Item 6. Executive Compensation......................................7
Item 7. Certain Relationships and
Related Transactions ......................................8
Item 8. Description of Securities...................................8
PART II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and Other Shareholder Matters................9
Item 2. Legal Proceedings...........................................9
Item 3. Changes in and Disagreements With Accountants.............. 9
ITEM 4. Recent Sales of Unregistered Securities.....................9
ITEM 5. Indemnification of Directors and Officers..................10
PART F/S
Financial Statements...............................................F/S
PART III
Item 1. Index to Exhibits and Description of Exhibits..............12
Signature Page......................................................13
i
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
History
- -------
Big Fun Toys, Inc. ("Big Fun Toys" or the "Company") was incorporated May
9, 1997 under the laws of the State of Delaware. The Company sells toys,
children's books and other children's related retail items over the Internet.
Since its launch, the Company has been continuously expanding with more product
selection and children/women related content and features, in addition to the
forming of strategic partnerships. One such partnership under development is
with a portal site, which is one of the tastest growing sites on the Internet.
This will allow a symbiotic relationship providing the Company the use of 80
million page views per month where it will be featured as the premium
destination for toys and content and allowing both companies to form common
`communities' of content, chat room features, and other related links to enhance
and attract business to both sites. The Company will focus on developing other
strategic partnerships, as well, such as philanthropic partnerships with the Red
Cross, March of Dimes, or other children-related causes. It will donate a
certain percentage of its sales to one of these organizations and, in return, it
will be able to advertise this partnership.
E-commerce is growing at the phenomenal rate of over 60% annually as
projected, by Jupiter Communications. Over 16 million people were estimated to
do shopping online in 1998. The Internet is therefore a tremendous opportunity
for companies with the right mix of products, technology, marketing and
management.
The Company
- -----------
The Company is lead by an experienced management team with an average of
over 15 years industry experience including start-ups. The founders have funded
the start-up and initial launch with their own money. Current expansion is
limited by the internal funding available for marketing and promotion. Marketing
and promotion expenditures are directly related to the volume of anticipated
traffic on the Company's website.
The Company's business objective is to become the top "children's shopping
destination" on the Internet. The concept is to develop a site with integrated
retail content for children from age 1 to 14 years. This strategy consists in
becoming one of the major toys, games, children's books and related retail items
sites on the web. The Company intends to invest in the development of a complete
shopping site that is easy to use for buyers, has a large selection and highly
competitive prices. The initial online shipping site is fully developed and has
been operational since mid-October, 1998. The site launch was timed for
Halloween shopping.
The management philosophy is to build a visionary company that is capable
of quickly responding to the dynamic nature of e-commerce. The Company is
committed to becoming the leading independent Internet site for the children's
non-clothing retail niche. For instance, the Company will carry seasonally hot
toys, computer and video games, music CDs, videos, collectible toys and licensed
sports jerseys. With additional funding growth rates of 300 to 600% are
possible.
1
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The marketing strategy is to compete on price and selection with such
competitors as Etoys. The Company plans to create marketing partnerships and
alliances with portal site market leaders such as Netscape and MSN. Alliances
such as these cannot be established without a well-funded operation capable of
sales in three years of $50M.
Marketing Strategy
- ------------------
The marketing strategy encompasses a wide, integrated approach that
includes:
1. Search engine listings in major search engines such as Excite,
Infoseek, AltaVista, etc;
2. Listing in major directories such as Yahoo, Internet yellow pages, and
Internet shopping directories;
3. Banner advertising on high traffic, children's and working women's
related sites;
4. Media relations;
5. Co-operative promotions;
6. E-mail distribution lists;
7. Charitable tie-ins;
8. Incentives for visiting the site;
9. Print advertising;
10. Radio advertising;
11. Talk show interviews; and,
12. Internet news outlets.
Marketing campaigns will use close relationships with high visibility,
child related causes and publications to propel the Company message. The "one
stop solution" for the busy parent or relative, saving him/her time and money
will be a strong theme.
2
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A variety of tactics will be used to attract shopping to the site and to
maintain loyalty for revisiting. These include a Company Birthday Club, discount
for repeat purchases, special e-mail coupons, free gift wrapping on purchases
over a specified limit, The Pediatricians Corner with Q&A on children's health,
Kid's Cooking Corner, Kid's Book Corner and links to the Consumer Product Safety
Commission. Special promotions will be made with toy manufacturers of unique
items. The Company's branded items such as water bottles, printed T-shirts,
whistles, yo-yos, etc. will be sold and added as bonuses on selected purchases.
These programs are innovative for Internet children's sites. Several ideas
pioneered by the Company have been copied by others, such as give aways and
e-mail registration. The Company has many more ideas for innovative marketing.
Many of the tactics are not being used by any of the Company's competitors. In
the end, the success of the Company is dependent in large part to a broad
marketing effort to attract visitors to the site. The unique customer retention
programs will be the best on the Internet for children's sites.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
RESULTS OF OPERATIONS
- ---------------------
The following discussion and analysis below should be read in conjunction
with the financial statements, including the notes thereto, appearing elsewhere
in this Registration Statement. For the period since inception (May 9, 1997)
through August 31, 1999, during the Company's development stage, the Company has
a cash balance of $71.00, and has generated a net loss of ($1,309).
FINANCIAL CONDITION AND LIQUIDITY
- ---------------------------------
The Company has limited liquidity and has an ongoing need to finance its
activities. To date, the Company currently has funded these cash requirements by
offering and selling its Common Stock, and has issued 750,000 shares of Common
Stock for net proceeds of $1,010.00.
ITEM 3. DESCRIPTION OF PROPERTIES
The Company's executive and administrative offices are located at 22147
Pacific Coast Highway, #4, Malibu, California 90265. The Company pays no rent
for use of the office and does not believe that it will require any additional
office space in the foreseeable future in order to carry out its plan of
operations described herein.
3
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ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial
ownership of the Company's Common Stock as of the date hereof by (i) each person
known by the Company to be the beneficial owner of more than five percent of its
Common Stock; (ii) each director; (iii) each executive officer listed in the
Summary Compensation Table in Item 6 of this Form 10; and (iv) all directors and
executive officers as a group. Unless otherwise indicted, each of the following
stockholders has sole voting and investment power with respect to the shares
beneficially owned, except to the extent that such authority is shared by
spouses under applicable law.
Amount of Percentage of
Name and Address of Beneficial Outstanding
Beneficial Owner Ownership Shares
- ---------------- --------- ------
PageOne Business Productions, LLC(1) 412,500 55%
860 Via de la Paz, Suite E-1
Pacific Palisades, CA 90272
Appletree Investment Co., Ltd.(2) 337,500 45%
C/o Anglo Irish Trust (I.O.M.)
69 Athol Street
Douglas, Isle of Man 1M1 1JE
George A. Todt (3) 0 0%
James F. Walters (4) 0 0%
Mary Elizabeth Rowbottom(5) 0 0%
All executive officers and directors as a 0 0%
group (3 persons)
- -----------------------------
(1) PageOne Business Productions, LLC is a Delaware Limited Liability Company,
registered to do business in the State of California.
(2) Appletree Investment Company, Ltd., is a European investment group
domiciled o`n the Isle of Man, 69 Athol Street, Douglas, Isle of Man, 1M1
1JE. Appletree Investment Company, Ltd. is owned by an Isle of Man trust.
(3) George A. Todt is a director of the Company and a managing member of
PageOne Business Productions, LLC, 860 Via de la Paz, Suite E-1, Pacific
Palisades, CA 90272 and has shared voting power and dispositive power over
such shares.
(4) James F. Walters is the Vice President, Treasurer and Chief Financial
Officer of the Company and a managing member of PageOne Business
Productions, LLC, and has shared voting power and dispositive power over
such shares.
(5) Mary Elizabeth Rowbottom is the President and Secretary of the Company and
Vice President of PageOne Business Productions, LLC.
4
<PAGE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS. PROMOTERS AND CONTROL PERSONS
The names of the directors and executive officers of the Company, as
well as their respective ages and positions with the Company, are as follows:
Name Age Position
- ---- --- --------
George A. Todt 46 Chairman of the Board of Directors
James F. Walters 45 Vice President, Treasurer and Chief
Financial Officer
Mary Elizabeth Rowbottom 28 President and Secretary
GEORGE A. TODT has been the Chairman of the Company's Board of Directors
since its inception. Prior to founding the Company, Mr. Todt has been a managing
member of PageOne Business Productions, LLC, since March 1996. Mr. Todt's
experience over the past 15 years includes working with 10 start-up companies,
raising venture capital, and arranging strategic partnerships and initial public
offerings. He has researched, developed and implemented marketing and sales
training programs in several industries.
From 1990 to 1995, Mr. Todt was Chief Executive Officer of REPCO, a
start-up company based in St. Louis, Missouri, where his responsibilities
included product selection, market research and implementation, from large
contracts to small industrial products. REPCo's largest project included a
turn-key tire recylcing plant built in Japan. Mr. Todt traveled extensively in
China, Japan, India, Russia and Europe, establishing manufacturing contracts,
marketing and distribution programs, and bidding on and managing government
contracts. Mr. Todt also has consulted internationally on technology exchanges
and rights.
From 1989 to 1991, Mr. Todt was an investor/director of FLEXWARE, an
accounting and networking software company located in Los Angeles, which was a
leader in the field of networking language for MAC, DOS, UNIX and DEC computers.
Mr. Todt assisted in obtaining financing, restructuring and establishing a
marketing strategy for FLEXWARE.
In June 1986, Mr. Todt began working full-time in sales with Todt
Industrial Supply, and in December 1986, he acquired the company and Todt Sheet
Metal Company (collectively, the "Todt Companies" in Cape Girardeau, Missouri).
From 1987 to 1990, Mr. Todt served as Chief Executive Officer of the Todt
Companies, reorganized the companies, implemented new marketing and sales
programs, automated accounting and developed the business into eight divisions,
four of which he created. Under Mr. Todt's leadership, the Todt Companies grew
from 29 to 130 employees, and annual sales grew from $2 million to $8 million.
From 1985 to 1986, Mr. Todt served as Vice President of Administration at
HOH Water Technology, Los Angeles, California. As Vice President, he reorganized
the Company's structure, developed an engineering department, was responsible
for redesigning its product, developing a marketing plan and negotiating
strategic alliances with General Electric, Du Pont, and Mitsui. Eventually, he
succeeded in taking HOH public.
5
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From 1979 to 1983, Mr. Todt was the founder and Managing Director of Todt &
Associates, a marketing and investment partnership in Malibu, California,
raising financing for several start-up companies and projects, developing mining
and refining equipment for the precious metal industry, and setting up a sales
and distribution network. In addition, Mr. Todt managed an international
precious metal arbitrage company and researched a book on precious metals which
spent 22 weeks on England's "best seller" list. Mr. Todt also designed,
coordinated and managed three hundred employees in the construction of a
$4,000,000 multi-purpose building.
JAMES F. WALTERS has served as the Vice President, Treasurer and Chief
Financial Officer of the Company since its inception. Mr. Walters joined Kellogg
& Andelson as an accountant in 1976, was elected a partner in 1980, was promoted
to Managing Partner in 1984, and elected Chairman of the Board of Kellogg &
Andelson Accountancy Corporation in 1995. As Chairman, Mr. Walters is currently
responsible for the overall management of the 80-person firm. Mr. Walters has
assisted the firm's clients in connection with the preparation of their initial
public offerings, private finance, merger, acquisition and restructuring
strategies. He continues to be an active consultant in the many phases of client
business operations, such as operational control systems, general management and
capital funding, servicing middle market companies in many different industries,
including aerospace, mail order, entertainment, high tech, retail,
import/export, graphic design, business management, plastics and publishing.
Mr. Walters previously served as a member of the Board of Directors of
Kistler Aerospace, a manufacturer of reusable rockets that deliver satellites
into orbit, and was instrumental in the initial financing of that company. Mr.
Walters also serves as a member of the Board of Directors of California Fitnuts,
Inc., a start-up company which produces, through a patented process, nuts that
have 50% less fat. In addition, Mr. Walters has founded, owned and managed
companies in the commercial photography, corporate events, auto repair and
concrete molding industries.
Mr. Walters received an M.B.A. degree from Pepperdine University (Malibu,
California) in 1981, and a B.S. degree in Accounting from California State
University, Northridge (CSUN) in 1976.
MARY ELIZABETH ROWBOTTOM has served as the Secretary of the Company since
inception and has been President since November 22, 1999. Ms. Rowbottom also has
worked at PageOne Business Productions since September 1996 serving as Vice
President since March 1997. From 1994 to 1996, Ms. Rowbottom served in various
capacities and, most recently, as a talent manager with HSI Productions, a
bi-coastal commercial film production company producing television commercials
and music videos, and serviced substantial advertising agency clients, including
Leo Burnett, DDB Needham and Bozell Worldwide. Prior thereto, Ms. Rowbottom was
an assistant to Merrill Lynch account representatives. Ms. Rowbottom received a
B.A. degree in Communications from the University of Wisconsin in 1993.
6
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Directors of the Company are elected annually by the stockholders of the
Company to serve for a term of one year or until their successors are duly
elected and qualified. Officers serve at the pleasure of the Board of Directors
subject to any rights under employment agreements. All directors will receive
reimbursement of reasonable out-of-pocket expenses incurred in connection with
meetings of the Board. No other compensation is, or will be, paid to directors
for services rendered as directors. From the Company's inception to the date of
this filing, there have been no meetings of the Company's Board of Directors.
Other actions of the Company's Board of Directors were taken pursuant to
unanimous written consents. There are no family relationships between any
directors or officers of the Company.
ITEM 6. EXECUTIVE COMPENSATION
Consistent with our present policy, no director or executive officer of Big
Fun Toys receives compensation for services rendered to the company. However,
such persons are entitled to be reimbursed for expenses incurred by them in
pursuit of Big Fun Toys' business objectives.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION VALUE
- --------------------------------------------------------------------------------
The Company does not have any officer or director stock option plan. The
Company intends to incorporate one after a public offering. The Company does not
have an employee stock option plan. (ESOP). The Company intends to incorporate
one after a public offering.
<TABLE>
SUMMARY COMPENSATION TABLE
<CAPTION>
Annual Compensation Long Term Compensation
---------------------------------------------- ------------------------------------------------
(a) (b) (c) (d) (e) (f) g) (h) (i)
Other Restricted
Annual Stock Options LTIP All Other
Position Year Salary ($) Bonuses($) Compensation Awards SARs Payouts ($) Compensation
- -------- ---- ---------- ---------- ------------ ---------- ------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
None
</TABLE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
- -------------------------------------
There were no option/SAR Grants in the last fiscal year.
COMPENSATION OF DIRECTORS
- ------------------------
The Company's directors serve without compensation.
7
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ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
At the time of incorporation, 1,000 shares were issued to PageOne Business
Productions, LLC., and in March, 1999, 100 shares were issued to PageOne
Business Productions, LLC, of which Mr. Todt and Mr. Walters are managing
members and Ms. Rowbottom is the Vice President.
ITEM 8. DESCRIPTION OF SECURITIES
Big Fun Toys' Restated Certificate of Incorporation provides for an
authorized capital stock of 100,000,000 shares of Common Stock, $.001 par value
(the "Common Stock"), and 8,000,000 shares of Preferred Stock, $.001 par value
(the "Preferred Stock"). At August 31, 1999, the Company had 750,000 shares of
Common Stock issued and outstanding. At such date, there were no shares of
Preferred Stock issued and outstanding.
COMMON STOCK
- ------------
Each share of Common Stock entitles the holder thereof to one vote for each
share on all matters submitted to the stockholders. The Common Stock is not
subject to redemption or to liability for further calls. Holders of Common Stock
will be entitled to receive such dividends as may be declared by the Board of
Directors of the Company out of funds legally available therefor and to share
pro rata in any distribution to stockholders. The stockholders have no
conversion, preemptive or other subscription rights. Shares of authorized and
unissued Common Stock are issuable by the Board of Directors without any further
stockholder approval.
PREFERRED STOCK
- ---------------
The Board of Directors is authorized, without further action by the
stockholders, to issue from time to time shares of Preferred Stock in one or
more classes or series and to fix the designations, voting rights, liquidation
preferences, dividend rights, conversion rights, rights and terms of redemption
(including sinking fund provisions) and certain other rights and preferences of
the Preferred Stock. The issuance of shares of Preferred Stock under certain
circumstances could adversely affect the voting power of the holders of Common
Stock and may have the effect of delaying, deferring or preventing a change in
control of the Company. As of the date of this Prospectus, the Company has no
plan or arrangement for the issuance of any shares of Preferred Stock.
TRANSFER AGENT
- --------------
The Company has appointed American Securities Transfer and Trust as the
transfer agent and registrar of the Common Stock.
8
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PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
The Company's Common Stock is not presently traded on an established public
trading market. Following the filing on this Form 10, the Company anticipates
that it will submit its Common Stock for listing on the OTC Electronic Bulletin
Board.
The approximate number of record holders of the Company's Common Stock as
of August 31, 1999 was 2, inclusive of those brokerage firms and/or clearing
houses holding the Company's common shares for their clientele (with each such
brokerage house and/or clearing house being considered as one holder). The
aggregate number of shares of Common Stock outstanding as of August 31, 1999 was
750,000.
The Company has not declared or paid any cash dividends on its Common Stock
and does not intend to declare any dividends in the foreseeable future. The
payment of dividends, if any, is within the discretion of the Board of Directors
and will depend on the Company's earnings, if any, its capital requirements and
financial condition, and such other factors as the Board of Directors may
consider. In addition, if the Company is able to negotiate new credit
facilities, such facilities may include restrictions on the Company's ability to
pay dividends.
ITEM 2. LEGAL PROCEEDINGS
There are no pending legal proceedings to which the Company is a party or
to which any of the Company's assets or properties are subject.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
Weinberg & Company, P.A., Certified Public Accountants ("Weinberg"), has
served as the Company's principal accountant since inception. There were no
accounting or auditing disagreements between the Company and Weinberg.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
In March 1999, the Company issued unregistered securities to the initial
shareholders of the Company resulting in the issuance and delivery of 100 shares
and 900 shares of the Company's Common Stock to PageOne Business Productions,
LLC, and Appletree Investment Company, Ltd., respectively. Such securities were
issued for aggregate consideration totalling $1,000 pursuant to the exemptions
from registration provided under the Delaware General Corporation Law and the
exemption provided by Section 4(2) of the Securities Act of 1933, as amended,
for issuances of securities not involving any public offering.
9
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The following table sets forth the names of the recipients and amounts
received in connection with said transactions:
Number of Shares of
Name of Stockholder Common Stock Acquired
------------------- ---------------------
PageOne Business 1,100
Productions, LLC
Appletree Investment 900
Company, Ltd.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that, except to the
extent prohibited by the Delaware General Corporation Law (the "DGCL"), its
directors shall not be personally liable to the Company or its stockholders for
monetary damages for any breach of fiduciary duty as directors of the Company.
Under Delaware law, the directors have fiduciary duties to the Company that are
not eliminated by this provision of the Certificate of Incorporation and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available. In addition, each director will
continue to be subject to liability under Delaware law for breach of the
director's duty of loyalty to the Company for acts or omissions that are found
by a court of competent jurisdiction to be not in good faith or involving
intentional misconduct, for knowing violations of law, for action leading to
improper personal benefit to the director and for payment of dividends or
approval of stock repurchases or redemptions that are prohibited by Delaware
law. This provision also does not affect the director's responsibilities under
any other laws, such as the federal securities laws or state or federal
environmental laws. In addition, the Company intends to maintain liability
insurance for its officers and directors.
Section 145 of the DGCL permits the Company to, and the Certificate of
Incorporation provides that the Company may, indemnify each person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was, or has agreed to
become, a director or officer of the Company, or is or was serving, or has
agreed to serve, at the request of the Company, as a director, officer or
trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other EEDs (including any employee benefit plan), or by
reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom. Such
right of indemnification shall inure to such individuals whether or not the
claim asserted is based on matters that antedate the adoption of the Certificate
of Incorporation. Such right of indemnification shall continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of the
10
<PAGE>
heirs and personal representatives of such a person. The indemnification
provided by the Certificate of Incorporation shall not be deemed exclusive of
any other rights that may be provided now or in the future under any provision
currently in effect or hereafter adopted by the Certificate of Incorporation, by
any agreement, by vote of stockholders, by resolution of directors, by provision
of law or otherwise. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors of the Company pursuant to the
foregoing provision, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Section 102(b)(7) of the DGCL permits a corporation to eliminate or limit
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
relating to unlawful dividends, stock purchases or redemptions or (iv) for any
transaction from which the director derived an improper personal benefit.
Section 102(b)(7) of the DGCL is designed, among other things, to encourage
qualified individuals to serve as directors of Delaware corporations. The
Company believes this provision will assist it in securing the services of
qualified directors who are not employees of the Company. This provision has no
effect on the availability of equitable remedies, such as injunction or
rescission. If equitable remedies are found not to be available to stockholders
in any particular case, stockholders may not have any effective remedy against
actions taken by directors that constitute negligence or gross negligence.
11
<PAGE>
PART F/S FINANCIAL STATEMENTS
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
--------
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF AUGUST 31, 1999
PAGE 3 - STATEMENTS OF OPERATIONS FOR THE
PERIODS FROM JANUARY 1, 1999 TO AUGUST 31,
1999 AND MAY 9, 1997 (INCEPTION) TO AUGUST
31, 1999
PAGE 4 - STATEMENT OF CHANGES IN STOCKHOLDERS'
DEFICIENCY FOR THE PERIOD FROM MAY 9, 1997,
(INCEPTION) TO AUGUST 31, 1999
PAGE 5 - STATEMENTS OF CASH FLOWS FOR THE PERIODS
FROM JANUARY 1, 1999 TO AUGUST 31, 1999 AND
MAY 9, 1997 (INCEPTION) TO AUGUST 31, 1999
PAGES 6 - 7 - NOTES TO FINANCIAL STATEMENTS AS OF AUGUST
31, 1999
F/S
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Big Fun Toys, Inc.
(A Development Stage Company)
We have audited the accompanying balance sheet of Big Fun Toys, Inc. (a
development stage company) as of August 31, 1999 and the related statements of
operations, changes in stockholders' deficiency and cash flows for the periods
from January 1, 1999 to August 31, 1999 and May 9, 1997 (inception) to August
31, 1999. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly in all
material respects, the financial position of Big Fun Toys, Inc. (a development
stage company) as of August 31, 1999, and the results of its operations and its
cash flows for the periods from January 1, 1999 to August 31, 1999 and May 9,
1997 (inception) to August 31, 1999, in conformity with generally accepted
accounting principles.
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
October 29, 1999
F/S-1
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF AUGUST 31, 1999
ASSETS
Cash $ 71
Loan receivable - related party 130
----------
TOTAL ASSETS $ 201
------------ ==========
LIABILITIES AND STOCKHOLDERS' DEFICIENCY
LIABILITIES
Accrued expenses $ 500
----------
Total Liabilities 500
----------
STOCKHOLDERS' DEFICIENCY
Preferred Stock, $.001 par value,
8,000,000 shares authorized, zero
issued and outstanding -
Common Stock, .001 par value, 100,000,000
shares authorized, 750,000 issued and
outstanding 750
Additional paid-in capital 260
Accumulated deficit during development stage (1,309)
-----------
Total Stockholders' Deficiency ( 299)
-----------
TOTAL LIABILITIES AND STOCKHOLDERS'
-----------------------------------
DEFICIENCY $ 201
---------- ===========
See accompanying notes to financial statements.
F/S-2
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
FOR THE PERIODS FROM JANUARY 1, 1999 TO AUGUST 31,
1999 AND MAY 9, 1997 (INCEPTION) TO AUGUST 31, 1999
JANUARY 1, 1999 MAY 9, 1997 TO
TO AUGUST 31, 1999 AUGUST 31, 1999
------------------ ----------------
Income $ - $ -
Expenses
Accounting fees 500 500
Bank service fees 60 60
Consulting fees 10 10
Legal fees 500 500
Miscellaneous taxes 239 239
------------- -------------
NET LOSS $ (1,309) $ (1,309)
- -------- ============= =============
See accompanying notes to financial statements.
F/S-3
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' DEFICIENCY
FOR THE PERIOD FROM MAY 9, 1997
(INCEPTION) TO AUGUST 31, 1999
Deficit
Additional Accumulated
Common Paid-In During Devel-
Stock Capital opment Stage Total
------ -------- ----------- -------
Common stock issuance $ 750 $ 260 $ - $ 1,010
Net loss for the
period ended August
31, 1999 - - (1,309) (1,309)
------ ------- ------- -------
BALANCE AT AUGUST
- -----------------
31, 1999 $ 750 $ 260 $(1,309) $( 299)
-------- ====== ======= ======= =======
See accompanying notes to financial statements.
F/S-4
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
FOR THE PERIODS FROM JANUARY 1, 1999 TO AUGUST 31,
1999 AND MAY 9, 1997 (INCEPTION) TO AUGUST 31, 1999
JANUARY 1, 1999 MAY 9, 1997 TO
TO AUGUST 31, 1999 AUGUST 31, 1999
------------------ ---------------
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ (1,309) $ (1,309)
Adjustments to
reconcile net loss
to net cash used
by operating activities:
Consulting services performed
for issuance of stock 10 10
Increase in accrued expenses 500 500
----------------- -----------
Net cash used by
operating activities ( 799) ( 799)
----------------- -----------
CASH FLOWS FROM INVESTING
ACTIVITIES - -
----------------- ------------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Advances to related party ( 130) ( 130)
Proceeds from issuance
of common stock 1,000 1,000
----------------- -----------
Net cash provided by
financing activities 870 870
----------------- -----------
INCREASE IN CASH AND
CASH EQUIVALENTS 71 71
CASH AND CASH EQUIVALENTS -
BEGINNING OF PERIOD - -
----------------- -----------
CASH AND CASH EQUIVALENTS -
END OF PERIOD $ 71 $ 71
------------- ================= ===========
See accompanying notes to financial statements.
F/S-5
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF AUGUST 31, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) Organization and Business Operations
Big Fun Toys, Inc. (a development stage company) ("the Company") was
incorporated in Delaware on May 9, 1997 to serve as a vehicle to effect
a merger, exchange of capital stock, asset acquisition or other
business combination with a domestic or foreign private business. At
August 31, 1999, the Company had not yet commenced any formal business
operations, and all activity to date relates to the Company's formation
and proposed fund raising.
The Company's ability to commence operations is contingent upon its
ability to identify a prospective target business and raise the capital
it will require through the issuance of equity securities, debt
securities, bank borrowings or a combination thereof.
(B) Use of Estimates
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates.
(C) Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all
highly liquid investments purchased with an original maturity of three
months or less to be cash equivalents.
(D) Income Taxes
The Company accounts for income taxes under the Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes" ("Statement 109"). Under Statement 109,
deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax basis. Deferred tax assets and liabilities are measured
using enacted tax rates expected to apply to taxable income in the
years in which those temporary differences are expected to be recovered
or settled. Under Statement 109, the effect on deferred tax assets and
liabilities of a change in tax rates is recognized in income in the
period that includes the enactment date. There were no current or
deferred income tax expense or benefits due to the Company not having
any material operations for the period ending August 31, 1999.
F/S-6
<PAGE>
BIG FUN TOYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF AUGUST 31, 1999
NOTE 2 - STOCKHOLDERS' DEFICIENCY
The Company was originally authorized to issue 2,000 shares of common
stock at no par value. The Company issued 900 and 1,100 shares to
AppleTree Investment Company, Ltd. and PageOne Business Productions,
LLC, respectively. No preferred shares have been issued as of August
31, 1999.
Management filed a restated certificate of incorporation with the State
of Delaware in June of 1999 which increased the number of authorized
common shares to 100,000,000, effected a 375 to 1 split of the 2,000
previously issued common shares and created 8,000,000 authorized shares
of preferred stock. In addition, the par value of the common stock was
changed to $.001 per share and the par value of the new preferred stock
was set at $.001 per share.
The financial statements at August 31, 1999 give effect to common and
preferred stock amounts and par values enumerated in the restated
certificate of incorporation.
NOTE 3 - LOAN RECEIVABLE - RELATED PARTY
The loan receivable - related party is a non-interest bearing loan
receivable from PageOne Business Productions, LLC ("PageOne") arising
from funds advanced to PageOne.
F/S-7
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS
Description Page
- ----------- ----
3.1 Certificate of Incorporation........................a
3.2 Restated Certification of Incorporation.............b
3.3 Bylaws..............................................h
23.1 Consent of Weinberg & Company, P.A.,
Independent CertifiedPublic Accountants...........s
24.1 Power of Attorney...................................t
27 Financial Data Schedule ............................u
12
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Company has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
BIG FUN TOYS, INC.,
/s/ Mary Elizabeth Rowbottom
By:_______________________________
Mary Elizabeth Rowbottom, President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ George A. Todt
- ------------------ Chairman, Board of Directors December 17, 1999
George A. Todt
/s/ James F. Walters Vice President, Treasurer, December 17, 1999
- -------------------- Chief Financial Officer
James F. Walters and Director
(Principal Accounting Officer)
/s/ Mary Elizabeth Rowbottom President and Secretary December 17, 1999
- ----------------------------
Mary Elizabeth Rowbottom
/s/ Mary Elizabeth Rowbottom
- ----------------------------
Mary Elizabeth Rowbottom
Power of Attorney
13
EXHIBIT 3.1
FIRST: The name of this corporation is:
Big Fun Toys, Inc.
SECOND: The name and address of the Corporation's Registered Agent is:
Corporate Creations Enterprises, Inc.
686 North Dupont Boulevard #302
Milford DE 19963
Kent County
THIRD: The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under Delaware law.
FOURTH: The Corporation shall have the authority to issue 2,000 shares of common
stock, par value zero per share.
FIFTH: The directors shall be protected from personal liability to the fullest
extent permitted by law.
SIXTH: The name and address of the incorporator is:
Corporate Creations International Inc.
941 Fourth Street #200
Miami Beach, FL 33139
The undersigned incorporator executed this Certificate of Incorporation on the
date shown below.
/s/ Kara O'Donnell
CORPORATE CREATIONS INTERNATIONAL INC.
Kara O'Donnell, Vice President
Date: May 9, 1997
a
EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
BIG FUN TOYS, INC.
UNDER SECTIONS 242 & 245
OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
We, George Todt, President, and Mary Elizabeth Rowbottom, Secretary, of BIG
FUN TOYS, INC., do hereby certify under the seal of said corporation as follows:
1. That the name of the corporation is BIG FUN TOYS, INC.
2. That the Certificate of Incorporation of the corporation was filed by
the Secretary of State of the State of Delaware in Milford, Delaware, on the 9th
day of May, 1997.
3. That the amendment to the Certificate of Incorporation effected by this
Certificate, among others, is as follows:
To amend Article FOURTH thereof by increasing the number of authorized
shares of capital stock of the corporation, effecting a 375:1 stock split,
and creating preferred stock.
4. That the amendment and the restatement of the Certificate of
Incorporation have been duly adopted in accordance with the requirements of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
5. That the text of the Certificate of Incorporation of said BIG FUN TOYS,
INC., is hereby amended and restated by this Certificate, to read in full, as
follows:
b
<PAGE>
CERTIFICATE OF INCORPORATION
OF
BIG FUN TOYS, INC.
FIRST: The name of the corporation is BIG FUN TOYS, INC. (hereinafter
referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 686 North Dupont Boulevard, #302, in the City of Milford,
County of Kent. The name of the registered agent of the Corporation at that
address is Corporate Creations Enterprises, Inc.
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 the State of Delaware (the "Delaware General Corporation Law").
FOURTH: (a) General. The number of shares of capital stock that the
Corporation is authorized to have at any one time is one hundred eight million
(108,000,000) shares, consisting of: (i) one hundred million (100,000,000)
shares of Common Stock, par value $0.001 per share (the "Common Stock") and (ii)
eight million (8,000,000) shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
(b) Upon the amendment of this article to read as herein set
forth, each issued share of Common Stock of the Corporation shall be split up
and converted into three hundred seventy-five (375) shares of Common Stock. The
stock split and conversion shall automatically occur on the effective date of
this provision. The relative rights and preferences of the issued shares of
Common Stock shall remain unchanged; only the number of issued shares of Common
Stock shall increase. Outstanding certificates representing shares of Common
Stock shall, upon the effective date of this provision, be deemed to represent
375 times the number of shares of Common Stock stated thereon. Holders of
certificates of shares of Common Stock may tender such certificates in exchange
for new certificates stating the correct number of shares the previously issued
certificates are deemed to represent upon the effective date of this provision,
but failure to tender will not affect the stock split and conversion provided
herein. The resulting shares shall be deemed fully paid and non-assessable and
the holders of such shares shall be entitled to exercise voting rights, receive
dividends and participate in the Corporation to the extent allowed and subject
to the limitations provided under applicable law and the Corporation's
certificate of incorporation.
(c) Preferred Stock. Authority is hereby expressly vested in
the Board of Directors of the Corporation, subject to the provisions of this
ARTICLE FOURTH and to the limitations prescribed by law, to authorize the
issuance from time to time of one or more series of Preferred Stock. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination or fixing of the following by
resolution or resolutions adopted by the affirmative vote of a majority of the
total number of the Directors then in office:
c
<PAGE>
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes or series of the Corporation's capital stock and whether such
dividends shall be cumulative or non-cumulative;
(iii) Whether the shares of such series shall be subject to
redemption for cash, property or rights, including securities of any
other corporation, by the Corporation or upon the happening of a
specified event and, if made subject to any such redemption, the times
or events, prices, rates, adjustments and other terms and conditions
of such redemptions;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or the
Corporation or upon the happening of a specified event, shares of any
other class or classes or of any other series of the same class of the
Corporation's capital stock and, if provision be made for conversion
or exchange, the times or events, prices, rates, adjustments and other
terms and conditions of such conversions or exchanges;
(vi) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(vii) The rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or winding up of
the Corporation; and
(viii) The provisions as to voting, optional and/or other special
rights and preferences, if any, including, without limitation, the
right to elect one or more Directors.
(d) Common Stock. Except as otherwise provided by the Delaware
General Corporation Law or this Certificate of Incorporation (the
"Certificate"), the holders of Common Stock (i) subject to the rights of holders
of any series of Preferred Stock, shall share ratably in all dividends payable
in cash, stock or otherwise and other distributions, whether in respect of
liquidation or dissolution (voluntary or involuntary) or otherwise and (ii) are
subject to all the powers, rights, privileges, preferences and priorities of any
series of Preferred Stock as provided herein or in any resolution or resolutions
adopted by the Board of Directors pursuant to authority expressly vested in it
by the provisions of Section (c) of this ARTICLE FOURTH.
(i) The Common Stock shall not be convertible into, or
exchangeable for, shares of any other class or classes or of any other
series of the same class of the Corporation's capital stock.
d
<PAGE>
(ii) No holder of Common Stock shall have any preemptive,
subscription, redemption, conversion or sinking fund rights with
respect to the Common Stock, or to any obligations convertible
(directly or indirectly) into stock of the Corporation whether now or
hereafter authorized.
(iii) Except as otherwise provided by the Delaware General
Corporation Law or this Certificate, and subject to the rights of
holders of any series of Preferred Stock, all of the voting power of
the stockholders of the Corporation shall be vested in the holders of
the Common Stock, and each holder of Common Stock shall have one vote
for each share held by such holder on all matters voted upon by the
stockholders of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers
conferred by the Delaware General Corporation Law, the Board of Directors of the
Corporation is expressly authorized to make, alter, amend, change, add to or
repeal the By-laws of the Corporation by the affirmative vote of a majority of
the total number of Directors then in office. Any alteration or repeal of the
By-laws of the Corporation by the stockholders of the Corporation shall require
the affirmative vote of at least a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote on such
alteration or repeal, subject to ARTICLE NINTH hereof and applicable provisions
of the Corporation's By-laws.
SEVENTH: (a) Stockholder Action. Election of Directors need
not be by written ballot unless the By-laws of the Corporation so provide.
Subject to any rights of holders of any series of Preferred Stock, from and
after the date on which the Common Stock of the Corporation is registered
pursuant to the Exchange Act, (i) any action required or permitted to be taken
by the stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected in lieu
thereof by any consent in writing by such stockholders, (ii) special meetings of
stockholders of the Corporation may be called only by either the Board of
Directors pursuant to a resolution adopted by the affirmative vote of the
majority of the total number of Directors then in office or by the chief
executive officer of the Corporation, and (iii) advance notice of stockholder
nominations of persons for election to the Board of Directors of the Corporation
and of business to be brought before any annual meeting of the stockholders by
the stockholders of the Corporation shall be given in the manner provided in the
By-laws of the Corporation.
(b) Number of Directors and Term of Office. Subject to any
rights of holders of any series of Preferred Stock to elect additional Directors
under specified circumstances, the number of Directors which shall constitute
the Board of Directors of the Corporation shall be fixed from time to time in
the manner set forth in the By-laws of the Corporation.
e
<PAGE>
(c) Removal and Resignation. No Director may be removed from
office without cause and without the affirmative vote of the holders of a
majority of the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of Directors voting
together as a single class; provided, however, that if the holders of any class
or series of capital stock are entitled by the provisions of this Certificate
(it being understood that any references to this Certificate shall include any
duly authorized certificate of designation) to elect one or more Directors, such
Director or Directors so elected may be removed without cause only by the vote
of the holders of a majority of the outstanding shares of that class or series
entitled to vote. Any Director may resign at any time upon written notice to the
Corporation.
(d) Vacancies and Newly Created Directorships. Subject to any
rights of holders of any series of Preferred Stock to fill such newly created
Directorships or vacancies, any newly created Directorships resulting from any
increase in the authorized number of Directors and any vacancies in the Board of
Directors resulting from death, resignation, disqualification or removal from
office for cause shall, unless otherwise provided by law or by resolution
approved by the affirmative vote of a majority of the total number of Directors
then in office, be filled only by resolution approved by the affirmative vote of
a majority of the total number of Directors then in office. Any Director so
chosen shall hold office until the next election of the class for which such
Director shall have been chosen, and until his successor shall have been duly
elected and qualified, unless he shall resign, die, become disqualified or be
removed for cause.
EIGHTH: (a) Dividends. The Board of Directors shall have
authority from time to time to set apart out of any assets of the Corporation
otherwise available for dividends a reserve or reserves as working capital or
for any other purpose or purposes, and to abolish or add to any such reserve or
reserves from time to time as said Board may deem to be in the interest of the
Corporation; and said Board shall likewise have power to determine in its
discretion, except as herein otherwise provided, what part of the assets of the
Corporation available for dividends in excess of such reserve or reserves shall
be declared in dividends and paid to the stockholders of the Corporation.
(b) Issuance of Stock. The shares of all classes of stock of
the Corporation may be issued by the Corporation from time to time for such
consideration as from time to time may be fixed by the Board of Directors of the
Corporation, provided that shares of stock having a par value shall not be
issued for a consideration less than such par value, as determined by the Board.
At any time, or from time to time, the Corporation may grant rights or options
to purchase from the Corporation any shares of its stock of any class or classes
to run for such period of time, for such consideration, upon such terms and
conditions, and in such form as the Board of Directors may determine. The Board
of Directors shall have authority, as provided by law, to determine that only a
part of the consideration which shall be received by the Corporation for the
shares of its stock which it shall issue from time to time, shall be capital;
provided, however, that, if all the shares issued shall be shares having a par
value, the amount of the part of such consideration so determined to be capital
shall be equal to the aggregate par value of such shares. The excess, if any, at
any time, of the total net assets of the Corporation over the amount so
determined to be capital, as aforesaid, shall be surplus. All classes of stock
of the Corporation shall be and remain at all times nonassessable.
f
<PAGE>
The Board of Directors is hereby expressly authorized, in its
discretion, in connection with the issuance of any obligations or stock of the
Corporation (but without intending hereby to limit its general power so to do in
other cases), to grant rights or options to purchase stock of the Corporation of
any class upon such terms and during such period as the Board of Directors shall
determine, and to cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
(c) Inspection of Books and Records. The Board of Directors
shall have power from time to time to determine to what extent and at what times
and places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
(d) Location of Meetings, Books and Records. Except as
otherwise provided in the By-laws, the stockholders of the Corporation and the
Board of Directors may hold their meetings and have an office or offices outside
of the State of Delaware and, subject to the provisions of the laws of said
State, may keep the books of the Corporation outside of said State at such
places as may, from time to time, be designated by the Board of Directors.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate in the manner now
or hereinafter prescribed herein and by the laws of the State of Delaware, and
all rights conferred upon stockholders herein are granted subject to this
reservation. Notwithstanding anything contained in this Certificate to the
contrary, Sections (a), (c) and (d) of ARTICLE FOURTH, ARTICLE TENTH, ARTICLE
SEVENTH, and this ARTICLE NINTH of this Certificate shall not be altered,
amended or repealed and no provision inconsistent therewith shall be adopted
without the affirmative vote of the holders of at least a majority of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote on such alteration, amendment or repeal, voting together as a
single class.
TENTH: (a) Limitation of Liability.
(i) To the fullest extent permitted by the Delaware General
Corporation Law as it now exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
permitted prior thereto), and except as otherwise provided in the
Corporation's By-laws, no Director of the Corporation shall be liable
to the Corporation or its stockholders for monetary damages arising
from a breach of fiduciary duty owed to the Corporation or its
stockholders.
(ii) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right
or protection of a Director of the Corporation existing at the time of
such repeal or modification.
g
<PAGE>
(b) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the Corporation or, while
a Director or officer of the Corporation, is or was serving at the request of
the Corporation as a Director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a Director or
officer or in any other capacity while serving as a Director or officer, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section (c) of this ARTICLE TENTH
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section (b) of this ARTICLE TENTH shall be
a contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (an "advance of expenses"); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an advance of
expenses incurred by an indemnitee in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section (b) or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
Directors and officers.
h
<PAGE>
(c) Procedure for Indemnification. Any indemnification of a
Director or officer of the Corporation or advance of expenses under Section (b)
of this ARTICLE TENTH shall be made promptly, and in any event within forty-five
(45) days (or, in the case of an advance of expenses, twenty (20) days), upon
the written request of the Director or officer. If a determination by the
Corporation that the Director or officer is entitled to indemnification pursuant
to this ARTICLE TENTH is required, and the Corporation fails to respond within
sixty (60) days to a written request for indemnity, the Corporation shall be
deemed to have approved the request. If the Corporation denies a written request
for indemnification or advance of expenses, in whole or in part, or if payment
in full pursuant to such request is not made within forty-five (45) days (or, in
the case of an advance of expenses, twenty (20) days), the right to
indemnification or advances as granted by this ARTICLE TENTH shall be
enforceable by the Director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for the
advance of expenses where the undertaking required pursuant to Section (b) of
this ARTICLE TENTH, if any, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct. The procedure for indemnification of other employees and agents for
whom indemnification is provided pursuant to Section (b) of this ARTICLE TENTH
shall be the same procedure set forth in this Section (c) for Directors or
officers, unless otherwise set forth in the action of the Board of Directors
providing indemnification for such employee or agent.
(d) Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation or was serving at the
request of the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
(e) Service for Subsidiaries. Any person serving as a
Director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture or other enterprise, at least 50% of
whose equity interests are owned by the Corporation (a "subsidiary" for this
ARTICLE TENTH) shall be conclusively presumed to be serving in such capacity at
the request of the Corporation.
i
<PAGE>
(f) Reliance. Persons who after the date of the adoption of
this provision become or remain Directors or officers of the Corporation or who,
while a Director or officer of the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE TENTH in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
ARTICLE TENTH shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
(g) Non-Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in this ARTICLE TENTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under this Certificate or under any statute, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
(h) Merger or Consolidation. For purposes of this ARTICLE
TENTH, references to the "Corporation" shall include, in addition to the
resulting Corporation, any constituent Corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this ARTICLE
TENTH with respect to the resulting or surviving Corporation as he or she would
have with respect to such constituent Corporation if its separate existence had
continued.
ELEVENTH: The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law with respect to business
combinations with interested stockholders.
IN WITNESS WHEREOF, the undersigned hereby executed this instrument and
affirms, under penalty of perjury, that this instrument is the act and deed of
the undersigned and that the facts stated herein are true, and accordingly have
hereunto set my hand as of July 6, 1999.
/s/ George Todt
- ---------------
George Todt, President
/s/ Mary Elizabeth Rowbottom
- ----------------------------
Mary Elizabeth Rowbottom, Secretary
j
EXHIBIT 3.3
Bylaws
Of
BIG FUN TOYS, INC.
ARTICLE I. DIRECTORS
Section 1. Function. All corporate powers shall be exercised by or under the
authority of the Board of Directors. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. Directors must
be natural persons who are at least 18 years of age, but need not be
shareholders of the Corporation. Residents of any state may be directors.
Section 2. Compensation. The shareholders shall have authority to fix the
compensation of directors. Unless specifically authorized by a resolution of the
shareholders, the directors shall serve in such capacity without compensation.
Section 3. Presumption of Assent. A director who is present at a meeting of the
Board of Directors or a committee of the Board of Directors at which action on
any corporate matter is taken, shall be presumed to have assented to the action
taken, unless he objects at the beginning of the meeting (or promptly upon
arriving) to the holding of the meeting or transacting the specified business at
the meeting, or if the director votes against the action taken or abstains from
voting because of an asserted conflict of interest.
Section 4. Number. The Corporation shall have at least the minimum number of
directors required by law. The number of directors may be increased or decreased
from time to time by the Board of Directors.
Section 5. Election and Term. At each annual meeting of shareholders, the
shareholders shall elect directors to hold office until the next annual meeting
or until their earlier resignation, removal from office or death. Directors
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election at a meeting at which a quorum is present.
Section 6. Vacancies. Any vacancy occurring in the Board of Directors, including
a vacancy created by an increase in the number of directors, may be filled by
the shareholders or by the affirmative vote of a majority of the remaining
directors through less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall hold office only until the next election of
directors by the shareholders. If there are no remaining directors, the vacancy
shall be filled by the shareholders.
Section 7. Removal of Directors. At a meeting of shareholders, any director or
the entire Board of Directors may be removed, with or without cause, provided
the notice of the meeting states that one of the purposes of the meeting is the
removal of the director. A director may be removed only if the number of votes
cast to remove him exceeds the number of votes cast against removal.
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<PAGE>
Section 8. Ouorum and Voting. A majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of business. The act
of a majority of directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 9. Executive and Other Committees. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members, one or more committees, each of which must have at least two
members. Each committee shall have the authority set forth in the resolution
designating the committee.
Section 10. Place of Meeting. Regular and special meetings of the Board of
Directors shall be held at the principal place of business of the Corporation or
at another place designated by the person or persons giving notice or otherwise
calling the meeting.
Section 11. Time, Notice and Call of Meetings. Regular meetings of the Board of
Directors shall be held without notice at the time and on the date designated by
resolution of the Board of Directors. Written notice of the time, date and place
of special meetings of the Board of Directors shall be given to each director by
mail delivery at least two days before the meeting.
Notice of a meeting of the Board of Directors need not be given to a
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting, and the manner in which it has been
called or convened, unless a director objects to the transaction of business
(promptly upon arrival at the meeting) because the meeting is not lawfully
called or convened. Neither the business to be transaction at, nor the purpose
of, any regular or special meeting of the Board of Directors must be specified
in the notice or waiver of notice of the meeting.
A majority of the directors present, whether or not a quorum exists, may
adjourn and meeting of the Board of Directors to another time and place. Notice
of an adjourned meeting shall be given to the directors who were not present at
the time of the adjournment and, unless the time and place of the adjourned
meeting are announced at the time of the adjournment, to the other directors.
meetings of the Board of Directors may be called by the President or the
Chairman of the Board of Directors. Members of the Board of Directors and any
committee of the Board may participate in a meeting by telephone conference or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. participation by these means constitutes
presence in person at a meeting.
Section 12. Action By Written Consent. Any action required or permitted to be
taken at a meeting of directors may be taken without a meeting if a consent in
writing setting forth the action to be taken and signed by all of the directors
is filed in the minutes of the proceedings of the Board. The action taken shall
be deemed effective when the last director signs the consent, unless the consent
specifies otherwise.
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<PAGE>
ARTICLE II. MEETINGS OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of the shareholders of the
corporation for the election of officers and for such other business as may
properly come before the meeting shall be held at such time and place as
designated by the Board of Directors.
Section 2. Special Meeting. Special meetings of the shareholders shall be held
when directed by the President or when requested in writing by shareholders
holding at least 10% of the Corporation's stock having the right and entitled to
vote at such meeting. A meeting requested by shareholders shall be called by the
President for a date not less than 10 nor more than 60 days after the request is
made. Only business within the purposes described in the meeting notice may be
conducted at a special shareholders I meeting.
Section 3. Place. Meetings of the shareholders will be held at the principal
place of business of the Corporation or at such other place as is designated by
the Board of Directors.
Section 4. Notice. A written notice of each meeting of shareholders shall be
mailed to each shareholder having the right and entitled to vote at the meeting
at the address as it appears on the records of the Corporation. The meeting
notice shall be mailed not less than 10 nor more than 60 days before the date
set for the meeting. The record date for determining shareholders entitled to
vote at the meeting will be the close of business on the day before the notice
is sent. The notice shall state the time and place the meeting is to be held. A
notice of a special meeting shall also state the purposes of the meeting. A
notice of meeting shall be sufficient for that meeting and any adjournment of
it. If a shareholder transfers any shares after the notice is sent, it shall not
be necessary to notify the transferee. All shareholders may waive notice of a
meeting at any time.
Section 5. Shareholder Quorum. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders. Any number of shareholders, even if less than a quorum, may
adjourn the meeting without further notice until a quorum is obtained.
Section 6. Shareholder Voting. If a quorum is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders. Each outstanding share
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. An alphabetical list of all shareholders who are entitled to
notice of a shareholders, meeting along with their addresses and the number of
shares held by each, shall be produced at a shareholders, meeting upon the
request of any shareholder.
Section 7. Proxies. A shareholder entitled to vote at any meeting of
shareholders or any adjournment thereof, may vote in person or by proxy executed
in writing and signed by the shareholder or his attorney-in-fact. The
appointment of proxy will be effective when received by the Corporation's
officer or agent authorized to tabulate votes. No proxy shall be valid more than
11 months after the date of its execution unless a longer term is expressly
stated in the proxy.
m
<PAGE>
Section 8. Validation. If shareholders who hold a majority of the voting stock
entitled to vote at a meeting are present at the meeting, and sign a written
consent to the meeting on the record, the acts of the meeting shall be valid,
even if the meeting was not legally called and noticed.
Section 9. Conduct of Business By Written Consent. Any action of the
shareholders may be taken without a meeting, if written consents, setting forth
the action taken, are signed by at least a majority of shares entitled to vote
and are delivered to the officer or agent of the Corporation having custody of
the Corporation's records within 60 days after the date that the earliest
written consent was delivered. Within 10 days after obtaining an authorization
of an action by written consent, notice shall be given to those shareholders who
have not consented in writing or who are not entitled to vote on the action. The
notice shall fairly summarize the material features of the authorized action. If
the action creates dissenters' rights, the notice shall contain a clear
statement of the rights of dissenting shareholders to be paid the fair value of
their shares upon compliance with and as provided for by the state law governing
corporations.
ARTICLE III. OFFICERS
Section 1. Officers; Election; Resignation; Vacancies. The Corporation shall
have the officers and assistant officers that the Board of Directors appoint
from time to time. Except as otherwise provided in an employment agreement which
the Corporation has with an officer, each officer shall serve until a successor
is chosen by the directors at a regular or special meeting of the directors or
until removed. Officers and agents shall be chosen, serve for the terms, and
have the duties determined by the directors. A person may hold two or more
offices.
Any officer may resign at any time upon written notice to the Corporation.
The resignation shall be effective upon receipt, unless the notice specifies a
later date. If the resignation is effective at a later date and the Corporation
accepts the future effective date, the Board of Directors may fill the pending
vacancy before the effective date, provided the successor officer does not take
office until the future effective date. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 2. Powers and Duties of Officers. The officers of the Corporation shall
have such powers and duties in the management of the Corporation as may be
prescribed by the Board of Directors and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the
Board of Directors.
Section 3. Removal of Officers. Any officer or agent or member of a committee
elected or appointed by the Board of Directors may be removed by the Board with
or without cause whenever, in its judgment, the best interests of the
Corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer, agent or member of a committee shall not of itself
create contract rights. Any officer, if appointed by another officer, may be
removed by that officer.
n
<PAGE>
Section 4. Salaries. The Board of Directors may cause the Corporation to enter
into employment agreements with any officer of the Corporation. Unless provided
for in an employment agreement between the Corporation and an officer, all
officers of the Corporation serve in their capacities without compensation.
Section 5. Bank Accounts. The
Corporation shall have accounts with financial
institutions as determined by the Board of Directors.
ARTICLE IV. DISTRIBUTIONS
The Board of Directors may, from time to time, declare distributions to its
shareholders in cash, property, or its own shares, unless the distribution would
cause (i) the Corporation to be unable to pay its debts as they become due in
the usual course of business, or (ii) the Corporation's assets to be less than
its liabilities plus the amount necessary, if the Corporation were dissolved at
the time of the distribution, to satisfy the preferential rights of shareholders
whose rights are superior to those receiving the distribution. The shareholders
and the Corporation may enter into an agreement requiring the distribution of
corporate profits, subject to the provisions of law.
ARTICLE V. CORPORATE RECORDS
Section 1. Corporate Records. The Corporation shall maintain its records in
written form or in another form capable of conversion into written form within a
reasonable time. The Corporation shall keep as permanent records minutes of all
meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by a committee of the Board of Directors on behalf of the
Corporation. The Corporation shall maintain accurate accounting records and a
record of its shareholders in a form that permits preparation of a list of the
names and addresses of all shareholders in alphabetical order by class of shares
showing the number and series of shares held by each.
The Corporation shall keep a copy of its articles or restated articles of
incorporation and all amendments to them currently in effect; these Bylaws or
restated Bylaws and all amendments currently in effect; resolutions adopted by
the Board of Directors creating one or more classes or series of shares and
fixing their relative rights, preferences, and limitations, if shares issued
pursuant to those resolutions are outstanding; the minutes of all shareholders,
meetings and records of all actions taken by shareholders without a meeting for
the past three years; written communications to all shareholders generally or
all shareholders of a class or series within the past three years, including the
financial statements furnished for the last three years; a list of names and
business street addresses of its current directors and officers; and its most
recent annual report delivered to the Department of State.
o
<PAGE>
Section 2. Shareholders' Inspection Rights. A shareholder is entitled to inspect
and copy, during regular business hours at a reasonable location specified by
the Corporation, any books and records of the Corporation. The shareholder must
give the Corporation written notice of this demand at least five business days
before the date on which he wishes to inspect and copy the record(s). The demand
must be made in good faith and for a proper purpose. The shareholder must
describe with reasonable particularity the purpose and the records he desires to
inspect, and the records must be directly connected with this purpose. This
Section does not affect the right of a shareholder to inspect and copy the
shareholders, list described in this Article, if the shareholder is in
litigation with the Corporation. In such a case, the shareholder shall have the
same rights as any other litigant to compel the production of corporate records
for examination.
The Corporation may deny any demand for inspection if the demand was made
for an improper purpose, or if the demanding shareholder has within the two
years preceding his demand, sold or offered for sale any list of shareholders of
the Corporation or of any other corporation, has aided or abetted any person in
procuring any list of shareholders for that purpose, or has improperly used any
information secured through any prior examination of the records of this
Corporation or any other corporation.
Section 3. Financial Statements for Shareholders. Unless modified by resolution
of the shareholders within 120 days after the close of each fiscal year, the
Corporation shall furnish its shareholders with annual financial statements
which may be consolidated or combined statements of the Corporation and one or
more of its subsidiaries, as appropriate, that include a balance sheet as of the
end of the fiscal year, an income statement for that year, and a statement or
cash flows for that year. if financial statements are prepared for the
Corporation on the basis of generally accepted accounting principles, the annual
financial statements must also be prepared on that basis.
If the annual financial statements are reported upon by a public
accountant, h is report must accompany them. If not, the statements must be
accompanies by a statement of the President or the person responsible for the
Corporation's accounting records stating his reasonable belief whether the
statements were prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation and describing any
respects in which the statements were not prepared on a basis of accounting
consistent with the statements prepared for the preceding year. The Corporation
shall mail the annual financial statements to each shareholder within 120 days
after the close of each fiscal year, or within such additional time thereafter
as is reasonably necessary to enable the Corporation to prepare its financial
statements. Thereafter, on written request from a shareholder who was not mailed
the statements, the Corporation shall mail him the latest annual financial
statements.
Section 4. Other Reports to Shareholders. If the Corporation indemnifies or
advances expenses to any director, officer, employee or agent otherwise than by
court order or action by the shareholders or by an insurance carrier pursuant to
insurance maintained by the Corporation, the Corporation shall report the
indemnification or advance in writing to the shareholders with or before the
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<PAGE>
notice of the next annual shareholders, meeting, or prior to the meeting if the
indemnification or advance occurs prior after the giving of the notice but prior
to the time the annual meeting is held. This report shall include a statement
specifying the persons paid, the amounts paid, and the nature and status at the
time of such payment of the litigation or threatened litigation.
If the Corporation issued or authorizes the issuance of shares for promises
to render services in the future, the Corporation shall report in writing to the
shareholders the number of shares authorized or issued, and the consideration
received by the Corporation, with or before the notice of the next shareholders,
meeting.
ARTICLE VI. STOCK CERTIFICATES
Section 1. Issuance. The Board of Directors may authorize the issuance of some
or all of the shares of any or all of its classes or series without
certificates. each certificate issued shall be signed by the President and the
Secretary (or the Treasurer). The rights and obligations of shareholders are
identical whether or not their shares are represented by certificates.
Section 2. Registered Shareholders. No certificate shall be issued for any share
until the share is fully paid. The Corporation shall be entitled to treat the
holder of record of shares as the holder in fact, and except as otherwise
provided by law, shall not be bound to recognize any equitable or other claim to
or interest in the shares.
Section 3. Transfer of Shares. Shares of the Corporation shall be transferred on
its books only after the surrender to the Corporation of the share certificates
duly endorsed by the holder of record or attorney- in- fact. If the surrendered
certificates are canceled, new certificates shall be issued to the person
entitled to them, and the transaction recorded on the books of the Corporation.
Section 4. Lost, Stole or Destroyed Certificates. If a shareholder claims to
have lost or destroyed a certificate of shares issued by the Corporation, a new
certificate shall be issued upon the delivery to the Corporation of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed, and at the discretion of the Board of Directors, upon the deposit
of a bond or other indemnity as the Board reasonably requires.
ARTICLE VII. INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation hereby indemnifies each
person (including the heirs, executors, administrators, or estate of such
person) who is or was a director of officer of the Corporation to the fullest
extent permitted or authorized by current or future legislation or judicial or
administrative decision against all fines, liabilities, costs and expenses,
including attorneys' fees, arising out of his or her status as a director,
officer, agent, employee or representative. The foregoing right of
indemnification shall not be exclusive of other rights to which those seeking an
indemnification may be entitled. The Corporation may maintain insurance, at its
expense, to protect itself and all officers and directors against fines,
liabilities, costs and expenses, whether or not the Corporation would have the
legal power to indemnify them directly against such liability.
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<PAGE>
Section 2. Advances. If this Article or any portion of it is invalidated on any
ground by a court of competent jurisdiction, the Corporation nevertheless
indemnifies each person described in Section 1 of this Article to the fullest
extent permitted by all portions of this Article that have not been invalidated
and to the fullest extent permitted by law.
ARTICLE VIII. AMENDMENT
These Bylaws may be altered, amended or repealed, and new Bylaws adopted,
by a majority vote of the directors or by a vote of the shareholders holding a
majority of the shares.
I certify that these are the Bylaws adopted by the Board of Directors of
the Corporation.
/s/ Mary Elizabeth Rowbottom
----------------------------
Secretary
Date: June 9, 1999
r
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration Statement, of Big
Fun Toys, Inc. our report for the periods from January 1, 1999 to August 31,
1999 and May 9, 1997 (inception) to August 31, 1999 dated October 29, 1999,
relating to the financial statements of Big Fun Toys, Inc. which appear in such
Form 10-SB.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
December 14, 1999
s
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned director or officer of BIG FUN TOYS, INC., a Delaware
corporation (the "Company"), does hereby constitute and appoint George A. Todt
and Mary Elizabeth Rowbottom, and each of them, with full power of substitution
and resubstitution, as his or her true and lawful attorney(s) to do any and all
things, and to execute any and all instruments, which said attorney(s) and
agent(s) may deem necessary or advisable to enable the Company to comply with
the Securities Exchange Act of 1934, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Exchange Act of 1934, as
amended, of shares of capital stock of the Company, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in the capacities indicated below to the
Registration Statement on Form 10, and any and all amendments thereto on Form 8,
to be filed for such registration.
Signature Title Date
/s/ George A. Todt Chairman, Board of Directors December 17, 1999
- -----------------
George A. Todt
/s/ James F. Walters Vice President, Treasurer, December 17, 1999
- -------------------- Chief Financial Officer
James F. Walters and Director
(Principal Accounting Officer)
/s/ Mary Elizabeth Rowbottom President December 17, 1999
- ----------------------------
Mary Elizabeth Rowbottom
t
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