SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
- ----------------------------------------------------------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- ----------------------------------------------------------------------------
MOORE SOLUTIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
- ----------------------------------------------------------------------------
FLORIDA 7379 65-0697102
(STATE OR OTHER (PRIMARY STANDARD (IRS EMPLOYER
JURISDICTION OF INDUSTRIAL NUMBER)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION NUMBER
10570 SOUTH FEDERAL HIGHWAY
PORT ST. LUCIE, FL 34952
(561) 337-4005
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT C. HACKNEY, ESQ.
HACKNEY & MILLER, P.A.
ADMIRALTY OFFICE TOWER TWO
4400 PGA BOULEVARD, SUITE 505
PALM BEACH GARDENS, FL 33410
(561) 627-0677
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
- -----------------------------------------------------------------------------
COPIES OF ALL COMMUNICATIONS SHOULD BE SENT TO:
ROBERT C. HACKNEY, ESQ.
JOEL M. MCTAGUE, ESQ.
HACKNEY & MILLER, P.A.
ADMIRALTY OFFICE TOWER TWO
4400 PGA BOULEVARD, SUITE 505
PALM BEACH GARDENS, FL 33410
(561) 627-0677
<PAGE 2>
Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462 (b) under the Securities Act, check the following box
and list the Securities Act registration statement number or the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462 (d)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
TITLE OF EACH AMOUNT TO BE PROPOSED PROPOSED FILING
CLASS OF REGISTERED MAXIMUM FEE
SECURITIES TO OFFERING PRICE
BE REGISTERED PER SHARE
- -----------------------------------------------------------------------------
Common Stock 2,000,000 $10.00 $20,000,000
- -----------------------------------------------------------------------------
(1) Registration fee enclosed herewith. Estimated solely for purposes of
calculating the registration fee under Rule 457.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
STATE.
<PAGE 3>
PROSPECTUS (SUBJECT TO COMPLETION)
Issued
2,000,000 SHARES
MOORE SOLUTIONS, INC.
COMMON STOCK
- ------------------------------------------------------------------------------
We are offering to exchange up to 2,000,000 shares of common stock of Moore
Solutions, Inc., for Odd Lots of less than 100 shares, and round lots not
in excess of 500 shares of common stock of the following companies: x, and y,
which are sometimes referred to jointly in this document as the "Affinity
Companies." The number of shares of the Affinity Companies will be
determined by the average closing price of the Affinity Companies' stock at
closing on the ______ day of____, 2000.
The offer will expire at 8:00 pm, New York City Time, on _________, _________
________, 2000, unless the offer is extended.
The offer is being made on a 'first come, first exchange' basis, with the
offer being limited to odd lots of less than 100 shares and round lots not in
excess of 500 shares of the stock of the Affinity Companies.
This offer is being made only to those shareholders who consent to electronic
delivery of this prospectus.
Our common stock is not yet publicly traded, and the exchange price of $10
per share has been arbitrarily determined by us. Upon completion of this
offering, we will apply for trading on Nasadaq, and have already applied for
trading on the Chicago Stock Exchange.
The offer is also subject to certain other conditions contained in this
Exchange Offer. See "Terms of the Exchange Offer."
For a discussion of certain factors that you should consider before you
participate in this exchange offer, see "Risk Factors" commencing on
page ____.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
- -----------------------------------------------------------------------------
The date of this prospectus is March___, 2000
<PAGE 4>
PROSPECTUS SUMMARY
Questions and answers about the exchange offer
1. Q. What is Moore Solutions, Inc.?
A. MSI is an integrated computer services firm, providing training,
web site construction, and maintenance for corporate clients. These
different facets of Moore merge business to business internet
solutions (web site design) with traditional brick and mortar aspects
(computer training).
2. Q. What group of shareholders are eligible to participate in the
exchange offer?
A. Shareholders in selected states who own odd-lots, which means
less than 100 shares, and shareholders owning round lots of up to
500 shares.
3. Q. How is this different from a tender offer?
A. By limiting the offer to less than 2% of the stockholder of the
Affinity Companies, the exchange offer does not fall within
Regulation 14D of the tender offer provisions of the Securities &
Exchange Act of 1934. Regulation 14D only applies to tender
offers which are subject to section 14(d)(1) of the Securities
Exchange Act of 1934. Our offer is exempt from Regulation 14D
since it falls below the threshold of 5% of the stock of the
Affinity Companies, and is further exempt from 14D due to section
14(d)(8), since it falls below 2% of the stock of the Affinity
Companies.
4. Q. If MSI is involved in the internet, why are they acquiring
stock of Autonation, Inc. and HealthSouth Corp?
A. Because this exchange offer represents phase one of MSI's
business plan. Moore is using a patent pending system known as the
"Hackney Miller Affinity Exchange SystemTM" to acquire its initial
capitalization.
5. Q. What is the "Hackney Miller Affinity Exchange System TM"?
A. It is a system that is designed to benefit the Affinity Companies
by aggregating, or "cleaning up" its odd-lot and small shareholder
base while providing capitalization to MSI to pursue its main
objective of becoming the premier computer training and web site
design company.
6. Q. How do I participate?
A. By executing the Letter of Transmittal and arranging to send your
stock. For specific questions,
<PAGE 5>
contact the Information Agent at ____________.
7. Q. What is the exchange formula and how was it determined?
A. The term "exchange formula" means the following: we will multiply
the number of shares tendered by each shareholder of an Affinity
Company by the average closing price per share of their stock on the
day prior to the Expiration Date. We will then exchange those shares
for an equal value of our shares, at the rate of $10 per share for our
shares. The price of our shares has been arbitrarily determined by us,
and our shares are not presently publicly traded.
8. Q. After the exchange offer, will I be able to trade my Moore stock?
A. Yes. Upon completion of the offering, MSI intends on making an
application for NASDAQ, and has already applied for listing on the
Chicago Stock Exchange. Management believes that for the time period
immediately following the offering, the share price for MSI will
track the prices of the Affinity Companies. As MSI divests itself of
its holdings and invests them in the business going forward,
management then believes Moore's share price will trade
independently of the Affinity Companies.
9. Q. Which state must I be a resident of to participate in this offering?
A. We will only accept shares for exchange from shareholders of the
Affinity Companies who are residents of the following states:
Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine,
Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New
Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South
Carolina, Texas, Vermont, and West Virginia. We will also accept
shares from shareholders who are not residents of the United States.
We are not permitted to accept shares for exchange from
shareholders who are residents of Alabama, California, Connecticut,
Iowa, Louisiana, Maryland, Michigan, Mississippi, Missouri, New
Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South
Dakota, Tennessee, Utah, Virginia, Washington, Wisconsin, and
Wyoming.
10. Q. Is there any income tax effect on me if I exchange my shares?
A. You will realize a tax gain or loss depending upon your tax basis
in your stock. See Certain U.S. Federal Tax Consequences of the
Exchange Offer.
11. Q. What are the benefits to me the shareholder?
A. The benefits to the shareholder is that they can exchange some,
or all, of their holdings, realizing a tax gain or loss, for shares
in an internet company.
<PAGE 6>
SUMMARY OF THE COMPANY
We were originally founded to provide web site development, design and
hosting. In 1997, we added computer software training and education. In 1998,
we began developing our sales and distribution division which is designed to use
our Authorized Representative Program to focus on selling our standardized
ecommerce solutions on a worldwide basis.
MSi has created a standardized ecommerce solution for both business to
business, or B2B, and business to consumer, or B2C, purposes. In addition, we
provide the business community with qualified technical personnel through
our multi-faceted computer software training and education division. By
obtaining government contracts and training county and municipal government
employees, we also service the growing business to government, or B2G, sector.
SUMMARY OF THE EXCHANGE OFFER
We have summarized the terms of the exchange offer in this section.
Before you decide to tender your shares of the Affinity Company or Companies in
this offer, you should read the detailed description of the offer under "Terms
of the Exchange Offer" for further information.
Terms of the Exchange Offer
We are offering up to 2,000,000 shares of our common stock in exchange for
any combination of the shares of the Affinity Companies stock that is equivalent
in value to $20 million, as calculated according to the "exchange formula."
Exchange Formula
The term "exchange formula" means the following: we will multiply the number
of shares tendered by each shareholder of an Affinity Company by the average
closing price per share of their stock on the day prior to the Expiration
Date. We will then exchange those shares for an equal value of our shares, at
the rate of $10 per share for our shares. The price of our shares has been
arbitrarily determined by us, and our shares are not presently publicly traded.
Expiration Date; extension, termination
The exchange offer will expire at 8:00 p.m., New York City Time, on ________,
or any subsequent date to which we extend it. You must tender your stock
prior to this date if you wish to participate in the offer. We have the right
to: terminate the exchange offer; extend the expiration date of the exchange
offer or waive any condition or otherwise amend the terms of the exchange
offer in any respect, other than the condition that the registration statement
be declared effective.
Conditions to the exchange offer
<PAGE 7>
The exchange offer is subject to the registration statement and any
amendment to the registration statement covering the common stock being
effective under the Securities Act of 1933. Some other conditions of the offer
are that
* we will not accept any shares of the Affinity Companies stock
if the amount accepted would exceed 1.9% of the issued and outstanding
shares of stock of such company
* we will not accept shares for exchange if the total value of
the shares tendered on the Expiration Date do not equal at least $2
million, as calculated according to the exchange formula
* we will not accept any shares for exchange if the they are tendered
by a shareholder who is a resident of a state where the offer is not
permitted by state law
* we will only accept shares from stockholders who have consented to
electronic delivery of this prospectus and
* the offer is being made on a "first come, first exchange basis."
The offer also is subject to customary conditions, which we may waive.
Please read "Terms of the Exchange Offer" for more information.
Procedure for tendering stock of Affinity Companies
If you hold you stock through a broker, dealer, commercial bank, trust
company or other nominee, you should contact that person promptly if you wish to
tender your stock. If you hold your stock through a broker, dealer, commercial
bank, trust company or other nominee, you may also comply with the procedures
for guaranteed delivery. Please do not send letter of transmittal to us. You
should send those letters to the Exchange Agent. The exchange agent can answer
you questions regarding how to tender you stock.
Information Agent:
Corporate Investor Communications, Inc., is the Information Agent and can be
contacted at:__________.
Risk factors
You should consider carefully the matters described under "Risk Factors" as
well as other information set forth in this prospectus and in the letter of
transmittal.
- -----------------------------------------------------------------------------
FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference
contain forward-looking statements based on current expectations, estimates and
projections about Moore Solutions, Inc.'s industry, management's beliefs and
certain assumptions made by management. All statements, trends, analyses and
other information contained in this prospectus relative to trends in net
sales, gross margin, anticipated expense levels and liquidity and capital
resources, as well as other statements including, but not limited to, words such
as "anticipate,"
<PAGE 8>
"believe," "plan," "estimate," "expect," "seek" and "intend," and other
similar expressions, constitute forward-looking statements. These
forward-looking statements involve risks and uncertainties, and actual
results may differ materially from those anticipated or expressed in such
statements. Potential risks and uncertainties include, among others, those
set forth herein under "Risk Factors." Particular attention should be paid to
the cautionary statements involving MSI's limited operating history, the
unpredictability of its future revenues, the unpredictable and evolving
nature of its business model, the intensely competitive internet service
industry and the risks associated with capacity constraints, systems
development, management of growth, acquisitions, any new products and
international or domestic business expansion. Except as required by law, MSI
undertakes no obligation to update any forward-looking statement, whether as a
result of new information, future events or otherwise. Readers, however,
should review carefully the factors set forth in other reports or documents
that MSI will file with the SEC from time to time.
RISK FACTORS
An investment in the common stock offered hereby involves a high degree
of risk. The following risk factors, together with the other information set
forth in this prospectus, should be considered carefully before purchasing the
common stock offered hereby.
LIMITED OPERATING HISTORY
Moore Solutions, Inc. was incorporated in August 1996, and accordingly,
MSI has a limited operating history on which to base an evaluation of its
business and prospects. Moore Solutions, Inc.'s prospects must be considered
in light of the risks, expenses and difficulties encountered frequently by
companies in their early stage of online commerce. Such risks for MSI
include, but are not limited to, an evolving and unpredictable business
model and the management of growth. To address these risks, MSI must, among
other things, maintain and increase its customer base, implement and
successfully execute its business and marketing strategy and it expansion into
new product and geographic markets, continue to develop and upgrade its
technology, improve its web site, provide superior customer service and
fulfillment, respond to competitive developments and attract, retain and
motivate qualified personnel. There can be no assurance that MSI will be
successful in addressing such risks, and the failure to do so could have a
material adverse effect on MSI's business, prospects, financial condition and
results of operations.
MICROSOFT RISK
Moore Solutions is dependent upon Microsoft not only for Microsoft's
software, but also for Microsoft's certification programs. A significant
part of the revenue derives from Microsoft's releasing new versions of its
software and clients requiring updated training in that software. Moore
Solutions, Inc. also benefits from Microsoft certification programs, not
just for clients but also for itself. There can be no assurance that
Microsoft will continue to release new versions of its software or that it
will continue to support its current certification programs. In order to hedge
this risk, Moore Solutions, Inc. has relationships with other software companies
and certification program. MSI trains on products from Corel, Intuit, Adobe,
Novell, Sun Microsystems, as well as vertical market suppliers. MSI also
teaches programming languages, and offers hardware certifications such as the A+
certification.
UNPREDICTABILITY OF FUTURE REVENUES; POTENTIAL FLUCTUATIONS IN QUARTERLY
OPERATING RESULTS; SEASONALITY
<PAGE 9>
As a result of our limited operating history and the emerging nature of
the markets in which we compete, we are unable to forecast accurately our
revenues. Our current and future expense levels are based largely on its
investment plans and estimates of future revenues and are to a large extent
fixed. Sales and operating results generally depend upon the volume of, timing
of and ability to respond to client requests, which are difficult to forecast.
Moore may be unable to adjust spending in a timely manner to compensate for any
unexpected revenue shortfall. Accordingly, any significant shortfall in
revenues in relation to MSI's planned expenditures would have an immediate
adverse effect on MSI's business, prospects, financial condition and results of
operations. Further, as a strategic response to changes in the competitive
environment, MSI may from time to time make certain pricing, service,
marketing or acquisition decisions that could have a material adverse effect
on its business, prospects, financial condition and results of operations.
Moore Solutions, Inc. expects to experience significant fluctuations in
our future quarterly operating results due to a variety of factors, many of
which are outside MSI's control. Factors that may adversely affect MSI's
quarterly operating results include:
* MSI's ability to retain existing customers, attract new
customers at a steady rate and maintain customer satisfaction
* MSI's ability to maintain gross margins in its existing
business and in future product lines and markets
* the development, announcement or introduction of new sites,
services and products by MSI and its competitors
* price competition or higher wholesale prices in the industry
* the level of use of the internet, online services and
computer software and increasing consumer acceptance of the
internet
* MSI's ability to upgrade and develop its systems and infrastructure
* MSI's ability to attract new personnel in a timely and effective
manner
* the level of traffic on MSI's web site
* MSI's ability to manage effectively its development of new
business segments and markets
* MSl's ability to successfully manage the integration of
operations and technology of acquisitions or other business
combinations
* technical difficulties, system downtime or Internet brownouts
* the amount and timing of operating costs and capital
expenditures relating to expansion of MSI's business, operations
and infrastructure
<PAGE 10>
* the amount and timing of new software introductions to market
during the period
* governmental regulation and taxation policies
* disruptions in service by common carries due to strikes or
otherwise
* general economic conditions and economic conditions specific
to the internet and the computer software training industry.
Moore Solutions, Inc. expects that it will experience seasonality in
its business, reflecting a combination of seasonal fluctuations in internet
usage and traditional business seasonality patterns. Internet usage and the
rate of internet growth may be expected to decline during the summer.
New business software titles tend to be released later in the year.
Because of the foregoing factors, in one or more future quarters Moore
Solutions, Inc.'s operating results may fall below the expectations of
securities analysts or investors. In such event, the trading price of the
common stock would likely be materially adversely affected.
SYSTEM DEVELOPMENT AND OPERATION RISKS
Moore Solutions' business is dependent on the efficient and
uninterrupted operation of its computer and communications hardware systems.
The systems and operations used by Moore Solutions are vulnerable to damage or
interruption from fire, flood, power loss, telecommunications failure,
break-ins, earthquakes, hurricanes, and other similar events that are outside
of Moore's control. Any system interruption, including any interruptions in
our web site or reduced access to client's sites, would reduce the
attractiveness of our product and service offerings and could, therefore,
materially adversely affect us. Substantially all of the computer and
communications hardware related to Moore's business is located at our
corporate offices. Moore Solutions, Inc., anticipates continued growth in
the use of its website as spending for advertising increases and the
upgrading of systems and infrastructure to accommodate such growth. Any
inability or delay in appropriately upgrading its systems and infrastructure
would have a material adverse effect on Moore.
MANAGEMENT OF POTENTIAL GROWTH
Moore Solutions, Inc., has rapidly and significantly expanded its operations
and anticipates that further expansion will be required to address potential
growth in its customer based, to expand its product and service offerings and
its international operations, and to pursue other market opportunities.
Similarly, MSl's employee base has expanded, growing from 2 to 14. The
expansion of our operations and employee base has placed, and is expected to
continue to place, a significant strain on our management, operational and
financial resources. To manage the expected growth of its operations and
personnel, MSI will be required to improve existing and implement new
transaction-processing, operational and financial systems, procedures and
controls, as well as to expand, train and manage its growing employee base.
There can be no assurance that Moore's current and planned personnel, systems,
procedures and controls will be adequate to support MSI's future operations;
that management will be able to hire, train, retain, motivate and manage
required personnel; or that company management will be able to successfully
identify, manage and exploit existing and potential market opportunities. If
MSI is unable to manage growth effectively, such inability could have a material
adverse effect on our business,
<PAGE 11>
prospects, financial condition and results of operations.
RISKS OF NEW BUSINESS AREAS
Moore Solutions, Inc. over time intends to expand its operations by
promoting new or complementary products or sales formats and by expanding
the breadth and depth of its products or service offerings. Expansion of
MSI's operations in this manner would require significant additional
expenses and development, operations and editorial resources and would
strain MSI's management, financial and operational resources. Furthermore,
gross margins attributable to new business areas may be lower than those
associated with Moore Solutions, Inc.'s existing business activities. There
can be no assurance that MSI will be able to expand its operations in a
cost-effective or timely manner. Furthermore, any new business launched by
Moore Solutions, Inc. that is not received favorably by consumers could
damage MSI's reputation or the Moore Solutions, Inc., brand. The lack of
market acceptance of such efforts or MSI's inability to generate satisfactory
revenues from such expanded services or products to offset their cost could
have a material adverse effect on Moore Solutions, Inc.'s business,
prospects, financial condition and results of operations. Gross margins
attributable to new business areas may be lower than those associate with
MSI's existing business activities.
RISKS OF BUSINESS COMBINATIONS AND STRATEGIC ALLIANCES
Moore Solutions, Inc. may choose to expand its operations or market presence
by entering into business combinations, investments, joint ventures or other
strategic alliances with third parties. Any such transaction would be
accompanied by risks commonly encountered in such transactions, which could
include, among others, the difficulty of assimilating the operations,
technology and personnel of the combined companies, the potential disruption
of MSI's ongoing business, the inability to retain key technical and
managerial personnel, the inability of management to maximize the financial and
strategic position of Moore through the successful integration of acquired
businesses, additional expenses associated with amortization of acquired
intangible assets, the maintenance of uniform standards, controls and policies
and the impairment of relationships with existing employees and customers.
There can be no assurance that MSI would be successful in overcoming these risks
or any other problems encountered in connection with such business
combinations, investments, joint ventures or other strategic alliances, or that
such transactions would not have a material adverse effect on MSI's business,
prospects, financial condition and results of operations.
RELIANCE ON CERTAIN CUSTOMERS
Moore Solutions is not dependent on any certain customers for 10% or more of
it's business. The business model of MSI will reduce reliance on even its
largest customers individually to less than 2% of it's total business revenue.
YEAR 2000 COMPLIANCE RISK
Moore Solutions, Inc. uses computer software programs and operating systems
in its internal operations, including applications used in financial business
systems and various administration functions. Computer programs have
traditionally been written using two digits rather than four to define the
applicable year. As a consequence, unless modified, computer systems will
not be able to differentiate between the years 2000 and 1900. Failure to
address this problem could result in system failures and the generation of
erroneous data. Moore Solutions has reviewed its computer programs and
systems to ensure that the programs and systems will function
<PAGE 12>
properly and be in compliance for the Year 2000. To the extent these software
applications contain code that is unable to appropriately interpret calendar
Year 2000, some level of modification of such source code or applications
could be necessary. In addition, MSI cannot predict the effect of the Year
2000 problem on the entities with which MSI transacts business, and there
can be no assurance that the effect of the Year 2000 problem on such
entities will not have a material adverse effect on MSI's business, financial
condition or results of operations.
GOVERNMENTAL REGULATION AND LEGAL UNCERTAINTIES
Moore Solutions, Inc. is not currently subject to direct regulation by any
domestic or foreign government agency, other than regulations applicable to
businesses generally and laws or regulations directly applicable to access to
internet carriers and online commerce. Due to the increasing popularity and
use of the internet and other online services, however, it is possible that
a number of laws and regulations may be adopted with respect to the internet
or other online services covering issues such as user privacy, pricing,
content, copyrights, distribution and characteristics and quality of products
and services. Furthermore, the growth and development of the market for online
commerce may prompt calls for more stringent consumer protection laws that may
impose additional burdens on those companies conducting business online. The
adoption of any additional laws or regulations may decrease the growth of
the internet or other online services, which could, in turn,decrease the
demand for MSI's products and services and increase MSI's costs of doing
business, or otherwise have a material adverse effect on MSI's business,
prospects, financial condition and results of operations. Moreover, the
applicability to the internet and other online services of existing laws in
various jurisdictions governing issues such as property ownership, sales and
other taxes, libel and personal privacy is uncertain and may take years to
resolve. Any such new legislation or regulation, the application of laws and
regulations from jurisdictions whose laws do not currently apply to our
business, or the application of existing laws and regulations to the internet
and other online services could have a material adverse effect on our business,
prospects, financial condition and result of operations.
OTHER LEGAL RISK
From time to time, Moore Solutions, Inc. may be involved in litigation
surrounding normal, day to day business activities that threaten all
business equally. At the present time, MSI is involved in litigation in a
defendant in a landlord - tenant action. It is too early to determine if the
judgment, if any, against Moore Solutions, Inc. will be material.
PORTFOLIO RISK
Moore Solutions, Inc., from time to time, may make certain investments
in publicly traded securities. There is no assurance that MSI despite its best
efforts, can identify those securities that will do as well as we expect.
Additionally, the portfolio of securities may go down in value based upon
prevailing market conditions.
THE COMPANY
Moore Solutions, Inc., is a Florida corporation that was incorporated in
1996. Our principal corporate offices are located in Port St. Lucie, Florida,
on what is commonly referred to as the Treasure Coast, one of the fastest
growing areas in Florida.
MSi has created a standardized ecommerce solution for both business to
business, or B2B, and business to
<PAGE 13>
consumer, or B2C, purposes. In addition, we provide the business community
with qualified technical personnel through our multi-faceted computer
software training and education division. By obtaining government contracts
and training county and municipal government employees, we also service the
growing business to government, or B2G, sector.
We were originally founded to provide web site development, design and
hosting. In 1997, we added computer software training and education. In 1998,
we began developing our sales and distribution division which is designed to use
our Authorized Representative Program to focus on selling our standardized
ecommerce solutions on a worldwide basis.
MSI's objectives of
* bringing value added computer software training and education
to business and government,
* providing quality web site design, hosting, and promotion,
* creating user friendly database solutions for corporate clients,
are synergistic since we train personnel who may also be available
for employment with us, and we anticipate that companies using our training
division will also need web site development and hosting. We also anticipate
an ongoing relationship with existing customers learning new software
packages or new clients entering cyberspace.
Our three divisions
The following is a description of our three divisions:
* multi-faceted computer software training and education;
* web site development, design and hosting, including B2B
ecommerce and B2C ecommerce and related online solutions; and
* sales and distribution division, using our Authorized
Representative Program to focus on selling our standardized ecommerce
solutions on a worldwide basis, through strategic realtionships with existing
sales organizations.
Division One: Our computer software training and education division
Status of availability of trained, qualified technology workers
We believe that due to the formation of new companies as a result of
the growth of the Internet, that there is a shortage of skilled technology
workers available in the marketplace. For example, a study by the University
of Texas found that the number of Internet related jobs increased from 1.6
million in the first quarter of 1998 to 2.3 million in the first quarter of
1999. The ecommerce section expanded more rapidly than the other sections of the
Internet economy growing by 400,000 jobs or 78%. Of the 3,400 companies
participating in the study by the
<PAGE 14>
University of Texas, one in three did not exist prior to 1996. We believe
that this growth is due to the addition of new start up companies, growth
of existing Internet companies and companies in other industries going
online, combined with the lack of trained individuals.
Industry sources indicate that 95% of all companies require personnel
with computer literacy, and that 74% of those receiving training do so in a
classroom setting with live instructors. Although there has been growth in the
online training portion of this industry, and we intend to move into that
sector in the future, we believe that the instructor lead, live interactive
model provides the best training and is in high demand.
According to Training Magazine, an industry source, $62.5 billion was
budgeted for formal training by U.S. organizations in 1999. Of that amount,
$15 billion went to outside providers of training products. Overall, U.S.
organizations with 100 or more employees spent 3% more for formal training
than they did in 1998, with the amount spent on outside training expenditures
increasing by 4.9%.
In the South Florida marketplace, high tech companies are growing
rapidly and most plan to expand their staffs in the next year, according to a
survey by the Information Technology Forum of South Florida. The big high tech
industry segments in South Florida are web design, communications and electronic
publishing. With more than 125 South Florida companies involved in web design
and related services, web designers are in high demand, with average local
salaries of $52,500 annually.
Nationwide, as many as 346,000 vacancies exist in information
technology positions according to a study by Virginia Polytechnic Institute
and State University, and the Information Technology Association of America, a
trade group based in Washington, D.C.
Extensive selection of computer software training at MSi
We currently offer approximately 120 training classes. Difficulty ranges
from "Introduction to Computers" to "Implementing and Supporting TCP/IP on
Windows NT 4.0" These classes are offered at a variety of times to accommodate
schedules of working professionals. The training classes allow operator
flexibility in certification for clients.
The following is a list of the computer software training classes that
we offer:
A + Certification Course
Access 2000 Level 1
Access 2000 Level 2
Access 2000 Advanced
Access 97 Level 1
Access 97 Level 2
Access 97 Advanced
ACT 3.0 Introduction
Act 3.0 Advanced
Active X controls with Visual Basic 5.0
Adobe Photoshop 4.0 Intro
Coreldraw7.0 Introduction
Coreldraw 9.0 Introduction
<PAGE 15>
Coreldraw 9.0 Advanced
Designing distributed applications with Visual Studio
Effective Web Design
Enhancing Web Pages with Javascript
Essentials of Microsoft Networking
Excel 2000 Worksheets
Excel 2000 Database & Charts
Excel 2000 Advanced
Excel 97 Worksheets
Excel 97 Database & Charts
Excel 97 Advanced
Exchange Server 5.0 Implementation & Support
Exchange Server 5.5 Design & Implementation
Exchange 5.5 Optimization & Troubleshooting
Exchange Server 5.5 System Admin
Flash 4.0 Intro.
Frontpage 2000 Intro
Frontpage 2000 Advanced
Frontpage 97 Intro
Frontpage 97 Advanced
Frontpage 98 Intro
Frontpage 98 Advanced
HTML Level 1 4.0
HTML Level 2 4.0
HTML Programming for Netscape
Implementing & Supporting TCP/IP
Internet & WWW IE 4.0
Internet Content Creator
Internet Explorer 5.0
Internet Explorer 5.0 System Administration
Internet Information Server 5.0
Internet Research Specialist
Internet Website Designer
Java Programming Intro
Java Programming Advanced
Intro to Javascript programming
Advanced Javascript Programming
Lotus 97 Worksheets
MCP Path
MCSE Path
MS Office 2000 Document Integration
MS Office 2000 Macro Programming using Visual Basic
MS Office 2000 New features
MS Office 2000 Web components and collaboration
Netscape Communicator 4.0
Netscape navigator 3.0
<PAGE 16>
Notes Intro 4.0
Office 97 Document Integration
Outlook 2000 Level 1
Outlook 2000 Level 2
Outlook 97 & 98 Level1
Outlook 97 & 98 Level 2
Path- Internet Content Creator
Perl Programming
Photoshop 4.0 Intro
Photoshop 4.0 tips and tricks
Photoshop 4.0 Web Production
Powerpoint Introduction 2000
Powerpoint Advanced 2000
Powerpoint 97 Introduction
Powerpoint 97 Advanced
Publisher 2000 Intro
Publisher 97 and 98
Quattro Pro 7.0
Quattro Pro 8.0 Level 1 & 2
Quickbooks pro 5.0 Intro
Quickbooks Pro 99 Intro
Quickbooks Pro Advanced 99
Systems Management Server Install & system support NT 4.0
SQL 7.0 Introduction
SQL Database and Design 7.0
Unix Introduction
Unix Intermediate
Mastering Visual Basic Fundamentals
Visual Basic 5.0 Database Programming
Visual Basic 5.0 Introduction
Visual Basic 6.0 Introduction
Visual Basic Scripting
Visual Interdev & Active Server Pages
Web Content Creator
Web development with cascading style sheets
Web pro site developer
Windows 2000 Server first look and Install admin.
Windows 2000 First look system support
Windows 2000 Introduction
Windows 2000 Support skills for NT Administrators
Windows 2000 transition from '98
Windows 2000 Upgrade from NT 4.0
Windows 95 Advanced
Windows 95 Installing and Networking
<PAGE 17>
Windows 95 Introduction
Windows 98 Installation
Windows 98 Introduction
Windows 98 transition from 95
Windows 98 selected features
Windows NT Architecture & Support
Windows NT 4.0 Internet Information Server
Windows NT 4.0 Advanced Server Series
Windows NT 4.0 System Administration
Windows NT 4.0 Workstation
Word 2000 level 1
Word 2000 Level 2
Word 2000 advanced
Word 97 Intro
Word 97 Level2
Word 97 Advanced
WordPerfect Intro. 7.0
WordPerfect Level2 7.0
Wordperfect 8.0 Level 1
Wordperfect 8.0 Level 2
Works 4.0
XML Introduction
In addition, we are a Microsoft Certified Solutions Provider or
"MCSP". This means that the client knows we have demonstrated ability in
Microsoft products and are able to teach to certification levels. Microsoft has
assessed us on their packages and they share a partnership which allows us
over 100 different software licenses and cutting edge technology. We get
new software titles before they are released to the general public. Though
our Microsoft relationship, we have access to experts across the country and
the right to use the Microsoft logos when advertising or marketing products.
We have three Microsoft Certified Professionals on our staff who are
instructors, as well as a Microsoft Certified System Engineer. Our staff has
passed examinations that Microsoft has set created its products and Microsoft
claims that only 15% of those taking such an examination do so with a passing
grade.
We provide Certification Testing
We are licensed by Microsoft to administer the Microsoft Office
User Specialist certification, or "MOUS", testing. This means that clients
who pass the tests have greater product knowledge and tend to be more
efficient than the average employee. Some industry estimates indicate that
over 90% of the Fortune 500 companies use Microsoft Office products. We also
have one MOUS master.
Since July, 1998, more than 100,000 people worldwide have taken
MOUS certification exams. A candidate who passes receives a certificate which
acts as a competent benchmark for skill measurement. We believe that
employers have confidence when hiring potential employees who are MOUS
certified, and workers can promote their marketable skills when job seeking.
National surveys indicate that workers with computer skills are in great
demand, and not just those with programming and software design experience.
Since Microsoft Office applications are used in 90% of Fortune 500 companies,
we believe that MOUS certification is vitally important to the marketplace.
The key foundation of the belief of the importance of MOUS certification is that
70% of all
<PAGE 18>
features requested by customers for product implementation are already
built into Microsoft Office. This means that most users are not aware of these
features and not using the products to their fullest extent, which can be
rectified by additional training. In short, we believe that MOUS
certification demonstrates employee competence and helps managers with job
placement and advancement. We believe that it also helps employees contribute
to the overall effectiveness of the organization.
We are an Authorized Prometric Testing Center. Sylvan Prometric(R) works
closely with three main markets---information technology certification, academic
admissions, and professional licensure and certification. By providing this
service, we not only have the capability of testing students in-house, but
also draw other students and professionals to our testing centers, exposing
our product base to potential new customers.
We also teach A+ certification with instructors who are A+ certified by
the Computer Industry Association, known as "CompTIA." A+ certification is an
internationally recognized credential which independently verifies the
competency of service technicians in the computer industry.
B2G services
Since the inception of our computer software training and education
division, we have provided computer software training to various government
agencies on the county and municipality level. We believe that there will be
continued growth in the business to government sector of the instructor-led
training industry. We believe that the B2G portion of our computer software
training and education division will continue to grow and will remain a
significant part of our business.
Growth Plan for our computer software training and education division
We plan to expand our computer software training and education
division by opening one new training center approximately every three months
over the next year. We intend to concentrate initially on opening centers in
Florida, and expanding nationwide thereafter. Our initial centers will be
located in Melbourne, West Palm Beach and Ft. Lauderdale. Our main limitation
in expanding will be the availability of training personnel. We intend to
continue to monitor the expanding online training model for viability for
future expansion.
Our goal in the second quarter of 2000 is to hire three additional
professional sales representatives, two of whom will be focused on the
corporate marketplace, and one focused on the government marketplace. As an
adjunct to our sales representatives we will use a direct mail campaign and a
targeted e-mail campaign. Both the direct mail and e-mail campaigns will be
directed at targets that have been identified using detailed criteria, to
avoid the mass mailing, or spamming situation. We believe that a program
addressed to pre-qualified targets combined with a repetitious message of what
MSI can do to enhance a customer's business, will produce strong results.
Division Two: Our web site development, design and hosting division
While our web site hosting services are traditional in nature,
our web site development and design services are unique to our company. We
have combined traditional advertising techniques with the latest high tech tools
to produces a web site design process that is user friendly to our clients,
and produces a site that is standardized, yet has the look and feel of a much
more expensive custom site. We believe that by standardizing the process we
can produce a low cost commerce solution for use by our clients.
<PAGE 19>
We believe that the growth in our web site development, design and
hosting division will be fueled by the growth in ecommerce.
Ecommerce growth
According to industry sources, ecommerce in the United States
is growing 30 times the rate of the overall economy. Over 53 million US
adults are Internet users and many are buying and selling goods and services
online. Analysts at Jupiter Communications estimate that $6 billion was spent on
online consumer shopping during this year's holiday season, and expect that
number to grow to $78 billion by 2003. According to Forrester Research, more
than 50 million households will make online purchases over the next five
years and online spending per household will grow from $1,167 in 1999 to
$3,738 in 2004.
While online consumer shopping, better known as B2C, or business to
consumer, is growing rapidly, the business to business sector is even larger.
Gartner Group, an industry source, estimates that business to business, or
B2B, ecommerce is 12 o 15 times greater than B2C. Gartner Group estimates that
B2B ecommerce transactions will skyrocket to $7.29 trillion by 2004, up from
$145 billion in 1999. Gartner also estimates that the B2B ecommerce market in
Europe will increase from $31.8 billion in 1999 to $2.34 trillion in 2004.
Forrester Research and Boston Consulting Group agree that B2B is already
larger than B2C and will reach anywhere from 1 to 3 trillion dollars in five
years, making up roughly 10 to 30% of all business transactions.
Our standardized ecommerce solution
While many companies provide web site design services, we believe that
we are unique in our approach to web site design. Our goal has been to
produce web sites for our clients that are high quality, yet reasonably
priced. While organizing our authorized representative program, we developed a
system for web site design that permits us to create sites that have the look
and feel of an expensive custom designed site, yet are priced at approximately
one-half of the cost of comparable sites built by other developers.
Basically, the design process starts with determining the objective,
features, and links. Information for the text is then gathered and prepared
for copy editing. Design preferences and ideas then are established. Next, the
entire web site is story boarded. After the client approves the story
boards, they are sent to our coding department where they are converted into
HTML and loaded onto the server that has been designated for that web site.
During this process, we use a system that is made up of standardized design
criteria which is in the process of being protected under copyright laws, and a
proprietary storyboarding process that insures that the client is pleased
with the look of the site before it is designed on the computer. We believe that
this process saves time and expense during the design stage of the site.
Division Three: Our sales and distribution division, using our Authorized
Representative Program
Since we believe that we have developed a reasonably priced system
for clients to generate, execute and fulfill ecommerce transactions, we
developed the authorized representative program to expand the distribution of
our products outside of the Treasure Coast. This program allows for qualified
independent contractors to market our web site design products. In order to
maintain quality, the authorized representative candidate must undertake a
rigorous training program provided by us. To this end, we have developed an
extensive Authorized
<PAGE 20>
Representative training and testing program which teaches the authorized
representative our system. We maintain central processing of web sites
development and design as well as the training program for the authorized
representatives.
Growth Plan for Divisions Two and Three
The growth of our web site development, design and hosting division is
dependent upon the growth of our sales and distribution division, using our
Authorized Representative Program. Over the next twelve months, we will focus on
marketing our services through various advertising and marketing campaigns.
The primary target audience for the company's web site services is the
small and medium sized business. We believe that many established businesses
that presently operate as brick and mortar organizations desire to become the
so-called "click and mortar" business. We believe that this market needs a
reasonably priced solution to provide ecommerce to consumers and other
businesses.
To address this need for reasonably priced ecommerce solutions,
MSi will introduce its authorized representative program on a national scale.
To do so, we will us the following:
* The Internet: the company will target organizations that have a
customer base of small to medium sized businesses, such as print
shops, mailbox service facilities, office products stores and others;
* Direct mail: We will target the same types of organizations
as will for the Internet, and use targeted efforts on an ongoing basis;
* Magazines: The Company will advertise in publications such as
Business 2.0, Red Herring, Wired, The Wall Street Journal, and
others; and
* Public Relations: We will also focus on special events,
conferences and trade shows on an ongoing basis to expand awareness
of the company.
Our Competition
Most of our competition comes from smaller firms located across
the country, with little to no national exposure. We expect to be the first
company with national exposure to create, host and service web sites for
clients, as well as provide computer instruction to corporations and
individuals. We believe Productivity Point International to be our largest
competitor of software training with 52 schools across the country.
Since the Internet and internet related businesses are relatively
new, the market is evolving rapidly and intensely competitive, and that
competition will intensify in the near future. Barriers to entry are minimal,
and current and new competitors can copy the business model used by Moore at
little cost. There can be no assurances that we will be able to compete
successfully against current and future competitors. New technologies and the
expansion of existing technologies may increase the competitive pressures on us.
Rapid Technological Change
To remain competitive, we must continue to enhance and improve
the responsiveness, functionality and
<PAGE 21>
features of our services to clients. The Internet, and computer technology
in general, are characterized by rapid technological change, changes in user
and customer requirements and preferences,frequent new products and service
introductions embodying new technologies and the emergence of new industry
standards and practices that could render our existing services and
proprietary technology and systems obsolete. Our success will depend, in
part, on our ability to license leading technologies useful in our business,
enhance our existing services, develop new services and technology that
address the increasingly sophisticated and varied needs of our prospective
customers and respond to technological advances and emerging industry
standards and practices on a cost-effective and timely basis.
The development of a web site and other proprietary technology
entails significant technical, financial and business risks. There can be
no assurance that we will successfully implement new technologies or adapt
our web site, proprietary technology and computer training systems to customer
requirements or emerging industry standards. If we are unable, for technical,
legal, financial or other reasons, to adapt in a timely manner in response to
changing market conditions or customer requirements, such inability could have
a material adverse effect on our business, prospects, financial condition and
results of operation.
Dependence of key personnel
Our performance is substantially dependent on the continued services
and on the performance of our senior management and other key personnel,
particularly Terrance Moore, our CEO and Chairman of the Board of Directors,
Jayne Moore, our President, and Chris Hubbard, our Vice-President. We do not
have long-term employment agreements with any of our key personnel and maintains
no "key person" life insurance policies. The loss of the services of its
executive officers or other key employees could have a material adverse effect
on our business, prospects, financial condition and results of operations.
Dependence on internet and computer growth
Our long term viability is substantially dependent upon the widespread
consumer acceptance and use of the Internet as a medium of commerce. Use of
the Internet as a means of effecting retail transactions as well as marketing is
at an early stage of development, and demand and market acceptance for
recently introduced services and products over the internet is very
uncertain. We cannot predict the extent to which consumers will be willing to
use our clients.
The Internet's viability as a commercial marketplace could be adversely
affected by delays in the development of services or due to increased
government regulation. Changes in, or insufficient availability of,
telecommunications services to support the internet also could result in
slower response times and aversely affect usage of the internet generally and
our clients in particular. If the use of the Internet does not continue to
grow or grows more slowly than expected, or if the infrastructure for the
Internet does not effectively support growth that may occur, we would be
materially adversely affected.
Trademarks and proprietary rights
We regard our trademarks, trade secrets and similar intellectual
property as valuable to our business, and relies on trademark and copyright law,
trade secret protection and confidentiality and/or license agreements with its
employees and others to protect our proprietary rights. There can be no
assurance that the steps taken by us will be adequate to prevent
misappropriation or infringement of our proprietary property.
<PAGE 22>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATION
The following discussion of our financial condition and results
of operations should be read together with the financial statements and
related notes that are included in this prospectus. This discussion contains
forward-looking statements that involve risks and uncertainties. Our actual
results may differ materially from those anticipated in these forward-looking
statements as a result of various factors, including those set forth under "Risk
Factors" or in other parts of this prospectus.
Overview
Currently, we group our products and services into two main business
sectors: computer software training and web site design. Moore Solutions'
software training sector consists of introductory, intermediate and advanced
application software training, and software technology training including
operating systems, programming languages, and hardware certifications.
The software training sectors includes operation of testing centers for
Prometric Systems and Microsoft Office User Specialists. The web site design
sector provides complete turnkey design services for small and medium sized
business. We utilize a team building concept to provide small and medium
sized business with a high quality website at a price within the range of
their existing budgets.
Our web site design sector is a leading provider of technology-
enabled e-Business web site services for companies that seek to optimize
their internet business presence. Although it was incorporated in August, 1996,
Moore Solutions, did not solidify our business model until 1998. Before 1998,
Moore Solutions, Inc. operated under our prior business model, which consisted
of generating our revenues primarily by individual sales in the local market.
During 1999, Moore devoted most of its resources to developing its new
business plan and technology and establishing its technical and sales
organizations.
In the second half of 1999, Moore Solutions began generating revenue
from its revised business model and since the fourth quarter of 1999 we have
derived substantially all of our design sector revenues from this source. Our
services include planning the site layout, coordinating the graphic and copy
portions of the site, enabling the e-commerce, programming and functionality
of the site, and search registration, tracking, analyzing and reporting the
results of the search engine positioning.
In the third quarter of 1999, we began utilizing its PHP and
relational database designs to enhance our service offerings and expand its
business. Our plans to expand our revenues sources by leveraging the
capabilities of our design manufacturing through the implementation of our
Authorized Representative Program through strategic alliances within the
advertising and marketing industry. The Authorized Representative Program is
made possible by close collaboration with the software training division which
has put in place the training materials, workbooks, and sales procedures for
development of this international marketing and distribution arm.
Moore Solutions currently charges its clients a fixed fee for
web site design, which varies from assignment to assignment. This fee is
based principally on the extent of services provided, the size of the site,
and the technology necessary to implement the clients business model on-line.
Moore Solutions recognizes revenues from
<PAGE 23>
design services in the period that they are billed, provided that no
significant obligations on our part remain and the collection of the trade
receivable is probable.
Cost of revenues primarily of the cost of the telecommunications and
other costs related to maintaining our services at third-party locations. These
costs are recorded in the period that the hosting services are delivered and the
related revenues are recorded. Currently, Moore Solutions purchases hosting
space from national hosting companies for resale to our clients. In the future,
Moore Solutions may purchase our own servers for hosting of client sites and co-
locate them at facilities that can provide the high level of service Moore
Solutions demands at an effective cost point.
Cost of revenues consists primarily of instructional material
and testing licensing fees. We expense all of its research and development
costs in the period in which we incur these costs. The period from
development to application of new delivery techniques has been short, and
therefore development costs qualifying for capitalization have been
significant. Accordingly, Moore Solutions has not capitalized any research
and development cost to date.
Moore's software training sector provides service to individuals,
companies and individual clients. Moore's business model incorporates
instructor led, hands on computer training in a classroom setting with
interactive follow-up exercises and e-mail support. All application training
uses vender certified training material, and Moore Solutions, Inc. offers
certification testing to those clients desiring to document the application
proficiency. Moore Solutions provides testing services to clients through
affiliation with Prometric Systems and Microsoft Office User Specialist testing.
Advanced technology training accounts for a major portion of
the current growth in the companies training revenue. Offerings include
Microsoft operating systems including Windows 95, 98, NT 4.0 and Windows 2000
Professional. Also offered are programming languages, web certifications, and
hardware training including the A+ Certification preparation courses. Client
mix includes government agencies, private companies and individuals. We
offer contract off-site training, on-site group client training, and public
classes for small business clients and individuals.
Cost of revenues consists primarily of instructional material
and testing licensing fees. Moore Solutions expenses all of our research and
development costs in the period in which we incur these costs. The period
from development to application of new delivery techniques has been short, and
therefore development costs qualifying for capitalization have been
insignificant. Accordingly, we have not capitalized any research and
development cost to date.
Results of Operations
The following table sets forth our statement of operations data expressed as
a percentage of total revenues:
Twelve Months
Years Ended
December 31,
1997 1998 1999
<PAGE 24>
As a Percentage of
Revenues:
Revenues: 100% 100% 100%
Cost of revenues: 16.1% 11.3% 8.5%
Gross profit: 83.9% 88.7% 92.5%
Operating expenses:
Sales & marketing: 32.3% 20.1% 5.6%
General & administrative 135.6% 122.6% 82.3%
Labor 158.6% 57.6% 43.3%
Total operating expenses: 326.5% 200.37% 131.3%
Loss from operations: (226.5) (111.6) (38.7)
Interest income: (1.0) (2.4) (1.3)
(expense), net
Net Loss: (227.5) (114) (40)
Revenues
Revenues increased to two hundred eight three thousand dollars for twelve
months ended December 31, 1999 from $133 thousand for the twelve months
ended December 31, 1998. The period to period increase was primarily due to the
implementation of our revised business model.
In the twelve months ended December 31, 1999, our largest client represented
approximately 9% of our revenues; in the twelve months ended December 31,
1998, our largest client represented approximately 14% of our revenues.
Cost of Revenues. Cost of revenues decreased to 8.5% of revenues, for the
twelve months ended December, 1999, from 11.3% of revenues, for the six
months ended June, 1998. The increase in cost of revenues in the 1999 period
was due primarily to the increase in our revenues. The cost of revenues was
comprised primarily of training material costs and hosting services during
both periods.
Operating Expenses
Sales and Marketing. Sales and marketing expenses consist of primarily
marketing expenses, including those expenses associated with customer service
and support and advertising. Sales and marketing expenses decreased to 4.3%
of revenues, for the twelve months ended December 31, 1999 from 20.1% of
revenues, for the twelve
<PAGE 25>
months ended December, 1998. The decrease in sales and marketing expenses
as a percentage of revenues was due primarily to the significant withdrawal
of market efforts during the development of the Authorized Representative
marketing and distribution program. Moore Solutions, Inc. expects that sales
and marketing expenses will increase substantially in dollars and percent of
revenue over the next year with the rollout of Moore Solutions' national
marketing campaign.
Research and Development
Research and development expenses consist primarily of compensation expenses
for Moore's internal development staff and contractor services. These
expenses have historically not been separated from other operating expenses
and are included in the manufacturing and administrative expense. Moore
Solutions expects to spend significant amounts on research and develop as we
continue to develop and upgrades its technology. Accordingly, we expect that
research and development expenses will increase in dollars.
General and Administrative.
General and administrative expenses consist primarily of compensation and
related expenses and cost of outside contractor services for administrative
personnel, rent and equipment. General and administrative expenses increased to
$227,800, or 77.6% of revenues, for the twelve months ended December 31,
1999, from $163,338, or 122.6% of revenues, for the twelve months ended December
31, 1998. The dollar increase in general and administrative expenses as a
percentage of revenues was due primarily to the significant growth in
revenues. Moore Solutions expects that general and administrative expenses
will continue to increase in dollars in the future, reflecting additional
costs associated with increasing our infrastructure and headcount as we grow and
the costs of being a public company.
For accounting purposes, Moore Solutions recognizes stock-based compensation
in connection with the issuance of shares of its common stock and the granting
of options to purchase our common stock to employees and consultants with
purchase or exercise prices that are less than the deemed fair market value at
the grant date. Stock-based compensation related to the issuance of shares
of common stock has been expensed in the period in which the common stock was
issued. Stock-based compensation related to the issuance of options to purchase
common stock is being amortized over the vesting period of the stock options
through 2001. These deferred amounts and the related amortization charges
will increase if Moore Solutions records further deferred stock-based
compensation in future periods.
Revenues.
Revenues were $283,618 in 1999 and $133,229 in 1998. The increase in
revenues from 1998 to 1999 was due primarily to the introduction of
technology classes in our training sector, and implementation of its
Authorized Representative distribution channel in the web design sector.
Cost of Revenues.
Total cost of revenues was $12,873 or 8.5% of revenues in 1999, and $15,054,
or 11.3% of revenues in 1998. The dollar decrease in cost of revenues and
the decrease in cost of revenues as a percentage of
<PAGE 26>
revenues in 1999 as compared to 1998 was due primarily to the negotiation
of better costs due to increased volume. While these dollar costs are
expected to grow with additional increases in volume, the cost of revenue
as a percentage of revenues is expected to continue to decline.
Operating Expenses
Sales and Marketing. Sales and marketing expenses were $15,882, or 5.6% of
revenues, in 1999, compared to $27,025, or 20.1% of revenues, in 1998. The
dollar decreases in sales and marketing expenses from 1998 to 1999 were due
primarily to a pullback in Moore's marketing campaigns while its business
model was revised. The decrease in sales and marketing expenses as a
percentage of revenues was due also to the rate of increase in revenues in
1999.
Results of Operations
Due to the early stage of Moore Solutions, the period-to-period comparisons
of our historical operating results should not be relied upon as indicative of
future performance. During the second half of 1999, our results reflect the
transition from our prior business model to our current business model,
resulting in a 137% growth in revenue. Beginning in the third quarter of
1999, our financial performance solely reflected our current business model.
Although we experienced revenue growth in recent periods, we anticipate that
it will incur operating losses for the foreseeable future due to the high
level of planned operating and capital expenditures.
Liquidity and Capital Resources
Since our inception in August, 1996, through December, 1999, we have
financed our operations primarily through the private placement of common
stock. As of December 31, 1999, Moore Solutions, Inc. had $72,883.78 in cash
and cash equivalents.
Net cash used in operating activities in the years ended December 31, 1999,
1998, 1997, and the period from August 15, 1996, (inception) through December
31, 1996, was $351,720. Net cash used in operating activities in each of
these periods was primarily the result of net losses before non-cash charges,
and increases in accounts receivable, offset by increases in accounts payable
and accrued liabilities, and, depreciation and amortization charges.
Although Moore Solutions, Inc. has no material commitments for capital
expenditures, Moore Solutions anticipates an increase in the rate of capital
expenditures consistent with our anticipated growth in operations,
infrastructure and personnel. We believe that the net proceeds from this
offering, combined with current cash balances and cash equivalents, will be
sufficient to meet our anticipated liquidity needs for working capital and
capital expenditures for at least twelve months from the date of this
prospectus. Moore Solutions' forecast of the period of time through which its
financial resources will be adequate to support operations is a forward-looking
statement that involves risks and uncertainties, and actual results could
vary materially as a result of the factors described above. If we require
additional capital resources to grow its business internally or to acquire
complementary technologies and businesses, Moore Solutions may seek to sell
additional equity or debt securities or secure a bank line of credit. The
sale of additional equity or convertible debt securities could result in
additional dilution to Moore Solutions' stockholders. Moore cannot assure
that any financing arrangements will be available in amounts or on terms
acceptable to the company.
Market Risk Disclosure
<PAGE 27>
The following discusses our exposure to market risk related to changes in
foreign currency exchange rates and interest rates. The discussion contains
forward-looking statements that are subject to risks and uncertainties.
Actual results could vary materially as a result of a number of factors
including those set forth in the risk factors section of this prospectus.
Foreign Currency Exchange Rate Risk
To date, the company has not had any revenues from international operations,
and all of our recognized revenues have been denominated in U.S. dollars from
clients in the United States. Moore Solutions expects, however, that future
revenues may be also derived from international markets and may be
denominated in the currency of the applicable market. As a result, our
operating results may become subject to significant fluctuations based upon
changes in the exchange rates of foreign currencies in relation to the U.S.
dollar. Furthermore, to the extent that we engage in international sales
denominated in U.S. dollars, an increase in the value of the U.S. dollar
relative to foreign currencies could make our products less competitive in
international markets. Although Moore Solutions, Inc. expects to monitor
our exposure to currency fluctuations as we expand into international
markets, and, when appropriate, may use financial hedging techniques in the
future to minimize the effects of these fluctuations, Moore cannot assure
that exchange rate fluctuations will harm our financial results in the future.
Interest Rate Risk
As of June 30, 1999, Moore Solutions, Inc. had cash and cash equivalents of
$72,803, which consist of cash and highly liquid short-term investments.
Moore Solutions, Inc.'s short-term investments will decline in value by an
immaterial amount if market interest rates increase. Declines of interest rates
over time will reduce, however, Moore Solutions, Inc.'s interest income from
its short-term investments.
Recent Accounting Pronouncements
In March, 1998, the Accounting Standards Executive Committee, or ASEC,
issued Statement of Position 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." SOP 98-1 provides
guidance on when costs related to software developed or obtained for internal
use should be capitalized or expensed. SOP 98-1 is effective for
transactions entered into for fiscal years beginning after December 15, 1998.
We have reviewed the provisions of SOP 98-1 and we do not believe adoption of
this standard will have a material effect upon our statement of operations.
In April, 1998, the ASEC issued SOP 98-5, "Reporting on the Costs of Start-Up
Activities". SOP 98-5 requires the cost of start-up activities, including
organization costs, to be expensed as incurred. We do not expect this
pronouncement to have a material effect upon our statement of operations.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities," which requires companies to record derivative financial
instruments on the balance sheet as assets or liabilities, measured at fair
value. Gains or losses resulting from changes in the values of those
derivatives would be accounted for depending on the use of the derivative and
whether it qualifies for hedging accounting. The key criterion for hedge
accounting is that the hedging relationship must be highly effective in
achieving offsetting changes in fair market value or cash flows. SFAS No.
133 is effective for all fiscal quarters of all fiscal years beginning after
June 15, 1999. Moore Solutions,
<PAGE 28>
Inc. does not anticipate that this statement will have a material effect upon
its statement of operations.
In December 1998, the American Institute of Certified Public Accountants
issued SOP 98-9, "Modification of SOP 97-2, Software Revenue Recognition, with
Respect to Certain Transactions." SOP 98-9 amends SOP 97-2 and SOP 98-4 by
extending the deferral of the application of certain provisions of SOP 97-2
amended by SOP 98-4 through fiscal years beginning on or before March 15, 1999.
All other provisions of SOP 98-9 are effective for transactions entered into
in fiscal years beginning after March 15, 1999. Moore Solutions, does not
anticipate that these statements will have a material adverse effect upon its
statement of operations.
MANAGEMENT
The following table sets forth certain information regarding the directors
and executive officers of Moore Solutions, Inc.
Name Age Position
Officers
___________________________________________________________________________
Terrance Moore 33 Chief Executive Officer,Secretary
And Chairman
L. Jayne Moore 37 President, Director, &
Director of Training
Chris Hubbard 50 Vice President, & Director of
WebSite Design
Directors
_______________________________________________________________
Terrance Moore 33 Director
L. Jayne Moore 37 Director
Chris Hubbard 50 Director
Richard J. Kren 49 Director
Gary Perez Director
Terms of Office
The our directorshold office until the next annual meeting of
the company's stockholders until their successors are elected and duly
qualified. All officers serve at the discretion of the directors.
Business Experience
Terrance Moore has been C.E.O., Secretary and Chairman of the Board of
Directors since Moore Solutions, Inc.'s inception in 1996. Prior to
founding MSi, Moore was Vice President of Treasor Corporation from 1994 to
1996 where he was responsible for Sales and Marketing. Moore attended SUNY
Farmingdale and SUNY Brockpport. Moore also is President of Treasure Coast
Business on the Green Business networking group, graduate of class XVI of
leadership St. Lucie County, received Business Expansion Award 1999 St.
Lucie County, is a Member of the Big Brothers Big Sisters Steering Committee
and Board of Trustee for North Stuart Baptist Church.
<PAGE 29>
L. Jayne Moore has been President, Director and Director of Training of MSi
since Moore Solutions, Inc.'s inception in 1996. Prior to founding MSi, Moore
was the Head of Computer Systems for Tresor Corporatioon from 1994 to 1996.
Moore graduated from Wolverhampton University in the United Kingdom with a
B.A. in Humanities and graduated in the top 5% of the country. She is a
Microsoft Certified Professional in Windows NT 4.0 and a Microsoft Officer
User Specialist in Word 97.
Chris Hubbard has been Vice-President, Director of Training of MSi since
1997. Prior to joining MSi, Hubbard was Vice-President of Hunley-Hubbard
Construction, where he was responsible for finance and new business development.
Previous to that, he was President of WGYL Radio Corp., where he built a
market dominating ratings position. Hubbard attended Indian River Community
College and LeTourneau College. He has served as Chairman of the Private
Industry Council, President of the Sunshine Physical Therapy Center, and
President of the Chamber of Commerce.
Richard J. Kren has served as a member of the board of directors since
December, 1999. Mr. Kren is Vice President for Wilmington Trust since
October, 1999. Prior to his employment with Wilmington Trust, he served
with Merin Hunter Codman as Director of New Business Development. Before Merin
Hunter Codman, Mr. Krenn was the President and Chief Executive Officer for
Greenworld Technologies from 1997 to 1998. From 1995 to 1997, he was
Managing Director of International Aviation Alliance. He is the past
Chairman for the Learning Connection of Naples and Co-Chairman of the Jeb
Bush Campaign of Collier County. He received his B.S. in Accounting from the
University of Connecticut.
Gary Perez has served as a member of the board of directors since December
1999. Mr. Perez is a private investor who retired from Microsoft in 1994 to
become the President and CEO of Computers Made Simple. In 1998, Mr. Prerez also
served as the Director of Sales and Marketing for The Panda Project. At
Microsoft, Mr. Perez was the Senior Manager responsible for Intercontinental
OEM business development for Canada, Mexico, and Latin America. Mr. Perez
received his B.S. degree from Seattle Pacific University.
<PAGE 30>
DESCRIPTION OF CAPITAL STOCK OF MOORE SOLUTIONS, INC.
The authorized capital stock of Moore Solutions, Inc. consists of
10,000,000 shares of common stock, $0.01 par value per share, and 2,500,000
shares of preferred stock, $0.01 par value per share. The following summary
of certain provisions of the common stock and preferred stock does not
purport to be complete and is subject to, and qualified in its entirety
by,the provisions of the company's Restated Articles of Incorporation and
the provisions of applicable law.
COMMON STOCK
There is 10,000,00 shares of common stock authorized by the amount
and reserved amount of interest, with a par value of $.01 per share. Each
share is entitled to one vote, and, subject to those preferences that may
exist for preferred shares, such dividends that, form time to time, we may
declare to be paid of out and is legally available for the payment of dividends.
In the event of a liquidation, dissolution or winding up of the company, the
holders of common stock are entitled to share ratably in all assets remaining
after payment of liabilities and liquidation preferences of any outstanding
shares of preferred stock. Holders of common stock have no preemptive rights
or rights to convert their common stock into any other securities. There
are no redemption or sinking fund provisions applicable to the common stock.
All outstanding shares of common stock are fully paid and nonassessable, and
the shares of common stock to be issued pursuant to this prospectus will be
fully paid and nonassessable.
At the present time, there is no public market for our common stock
and subsequent to this offering there is no assurance that a market will
develop. MSI has applied for listing on the Chicago Stock Exchange to
commence after this offering and expects to apply for Nasdaq listing as well.
MSI does not contemplate or anticipate paying any dividends upon
its common stock in the foreseeable future. It is currently anticipated that
earnings, if any, will be used to finance the development and expansion of MSI's
business.
PREFERRED STOCK
There are 2,500,000 shares of preferred stock authorized to be
issued by the amount and reserved amount of interest, with a par value of
$.01 per share. The board of directors has wide latitude in determining the
rights and preferences of such series of stock. The board of directors, without
stockholder approval, can issue preferred stock with voting, conversion or
other rights that could adversely affect the voting power and other rights of
the holders of common stock. Preferred stock could thus be issued quickly
with terms calculated to delay or prevent a change in control of Moore
Solutions, Inc. or make removal of management more difficult. Additionally, the
issuance of preferred stock may have the effect of decreasing the market
price of the common stock, and may adversely affect the voting and other
rights of the holders of common stock. Moore Solutions, Inc. has 100,000
preferred shares outstanding. This series has a liquidation preference over
common stock and no voting rights. The stock is convertible to common stock at
a one to one exchange ratio of $.25 per share and is callable in six months
at $.60 per share. These shares are held by one shareholder.
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information as of the date
of this Prospectus, regarding
<PAGE 31>
ownership of Moore Solutions, Inc.'s common stock:
* by each person known by Moore Solutions, Inc. to be the
beneficial owner of more than 5% of Moore Solutions, Inc.'s
outstanding common stock
* by each director of Moore Solutions, Inc.
* by certain related stockholders
* by all executive officers and directors of Moore Solutions,
Inc. as a group. All persons named have sole voting and
investment power with respect to such shares, subject to
community property laws, and except as otherwise noted
PERCENT BENEFICIALLY
OWNED
-----------------------------------
____________________________________________________________________________
Name of Number of Percentage Number of Percentage
Shareholder Shares Owned Owned Before Shares Owned Owned After
Before Offering Offering After Offering Offering
- ----------------------------------------------------------------------------
Terrance & L. 1,750,000 48.3% 1,750,000 31.01%
Janye Moore (1)
- ----------------------------------------------------------------------------
Chris Hubbard 1,830,000 50.23% 1,830,000 32.43%
(2)
- ---------------------------------------------------------------------------
Max 100,000 2.74%
Westmoreland
- ----------------------------------------------------------------------------
Total 3,680,000
- ----------------------------------------------------------------------------
(1) Terrance and L. Jayne Moore are husband and wife. The 1,750,000 shares
represented as owned by them are owned in seperate accounts equally under
their individual names. Each disclaim beneficial ownership of the other's
shares.
(2) Chris Hubbard's totals include those shares owned by his wife, Anna M.
Hubbard, who owns 1,750,000 shares individually; by his parents, 100,000;
and by his brother, 5,000 shares. Mr.Hubbard disclaims beneficial
ownership of each of the shares and represents that he neither controls
nor owns any shares of Moore Solutions, Inc..
(3) See table under "Management of Moore Solutions, Inc." for officers and
directorships held by the Persons listed hereunder.
ANTITAKEOVER EFFECTS OF CERTAIN PROVISIONS OF MOORE SOLUTIONS, INC.'S
POISON PILL PLAN, AMENDED CERTIFICATE OF INCORPORATION, THE EQUITY INCENTIVE
PLAN, AND FLORIDA LAW
On November 30, 1999, the our board of directors declared a dividend of
one purchase warrant for every outstanding share of common stock, $.01 par
value. The warrants will be distributed on January 31, 2000, to
<PAGE 32>
stockholders of record as of the close of business on that date. The terms of
the warrants are set forth in the Warrants Agreement dated as of November 30,
1999, between Moore Solutions, Inc. and North American Transfer Co., as
warrants agent. The Warrants Agreement provides for the issuance of one
warrant for every share of common stock issued and outstanding on the dividend
record date and for each share of common stock which is issued or sold after
that date and prior to the distribution date.
Each warrant entitles the holder to purchase from the company one
share of common stock at a price of $.10 per share, subject to adjustment. The
warrants will expire on December 30, 2009 (the "Expiration Date"), or the
earlier redemption of the warrants, and are not exercisable until the
distribution date.
No separate warrants certificates will be issued at the present time.
Until the distribution date (or earlier redemption or expiration of the
warrants),
* the warrants will be evidenced by the common stock certificates
and will be transferred with and only with such common stock
certificates,|
* new common stock certificates issued after the dividend
record date upon transfer or new issuance of the common stock
will contain a notation incorporating the Warrants Agreement by
reference, and
* the surrender for transfer of any of Moore Solutions, Inc.'s
common stock certificates will also constitute the transfer of
the warrants associated with the common stock represented by
such certificate.
The warrants will separate from the common stock and warrants
certificates will be issued on the distribution date. Unless otherwise
determined by a majority of the board, the distribution date will occur on the
earlier of:
* the tenth business day following the later of the date of a
public announcement that a person, including affiliates or
associates of such person, except as described below, has
acquired or obtained the warrant to acquire, beneficial
ownership of 15% or more of the outstanding shares of common
stock or the date on which an executive officer of Moore
Solutions, Inc. has actual knowledge that an acquiring person
became such, or
* the tenth business day following commencement of a tender
offer or exchange offer that would result in any person
together with its affiliates and associates owning 15% or more
of Moore Solutions, Inc.'s outstanding common stock. In any
event, the board of directors may delay the distribution of
the certificates. After the distribution date, separate
certificates evidencing the warrants will be mailed to holders
of record of Moore Solutions, Inc.'s common stock as of the
close of business on the distribution date and such separate
warrants certificates alone will evidence the warrants.
If, at any time after January 31, 2000, any person or group of
affiliated or associated persons (other than Moore Solutions, Inc. and its
affiliates) shall become an acquiring person, each holder of a warrant will have
the warrant to receive shares of our common stock (or, in certain
circumstances, cash, property or other securities) having a market value of
one hundred times the exercise price of the warrant. Also, in the event that
after the stock acquisition date Moore Solutions, Inc. was acquired in a
merger or other business combination, or more
<PAGE 33>
than 25% of its assets or earning power was sold, each holder of a warrant
would have the warrant to exercise such warrant and thereby receive common
stock of the acquiring company with a market value of one hundred times the
exercise price of the warrant. Following the occurrence of any of the events
described in this paragraph, any warrants that are, or were, beneficially
owned by any acquiring person shall immediately become null and void.
The board may, at its option, at any time after any person becomes
an acquiring person, exchange all or part of the then outstanding and
exercisable warrants for shares of common stock at an exchange ratio of one
share of common stock per warrant, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after November 30,
1999. The board, however, may not effect an exchange at any time after any
person other than:
* MSI,
* any subsidiary of MSI,
* any employee benefit plan of MSI or any subsidiary of MSI, or
* any entity holding common stock for or pursuant to the terms of any
such plan, together with all affiliates of such person, becomes the
beneficial owner of 50% or more of the common stock then outstanding.
Immediately upon the action of the board ordering the exchange of any
warrants and without any further action and without any notice, the warrant
to exercise such warrants will terminate and the only warrant thereafter of a
holder of such warrants will be to receive that number of shares of common stock
equal to the number of such warrants held by the holder multiplied by the
exchange ratio.
The exercise price of the warrants, and the number of shares of
common stock or other securities or property issuable upon exercise of the
warrants are subject to adjustment from time to time to prevent dilution:
* in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the common stock
* upon the grant to holders of the common stock of certain
warrants or warrants to subscribe for shares of the common
stock or convertible securities at less than the current market
price of the common stock or
* upon the distribution to holders of the common stock of evidences of
indebtedness or assets (excluding cash dividends paid out of the
earnings or retained earnings of Moore Solutions, Inc. and certain
other distributions) or of subscription warrants.
At any time prior to the earlier of the distribution date or the
close of business on the expiration date, MSI, by a majority vote of the
board then in office, may redeem the warrants at a redemption price of $.01
per warrant, as described in the warrants agreement. Immediately upon the
action of the board electing to redeem the warrants, the warrant to exercise
the warrants will terminate and the only right of the holders of warrants will
be to receive the redemption price.
Until a warrant is exercised, the holder thereof, as such, will have
no warrants as a stockholder of Moore, including, without limitation, the
warrant to vote or to receive dividends.
The Warrants Agreement may be amended by the board at any time prior
to the distribution date without the approval of the holders of the warrants.
From and after the distribution date, the warrants agreement may be
<PAGE 34>
amended by the board without the approval of the holders of the warrants in
order to cure any ambiguity, to correct any defective or inconsistent
provisions, to change any time period for redemption or any other time period
under the Warrants Agreement or to make any other changes that do not
adversely affect the interests of the holders of the warrants (other than any
acquiring person or its affiliates and associates, or their transferees).
The form of Warrants Agreement dated as of November 30, 1999,
between Moore Solutions, Inc. and North American Transfer Co., as warrants
agent, specifying the terms of the warrants (including as exhibits the form of
the warrants certificate and the summary of warrants) is attached hereto as
an exhibit. The foregoing description of the warrants does not purport to be
complete and is qualified in its entirety by reference to the Warrants
Agreement, which is incorporated herein by reference.
Moore Solutions, Inc.'s board of directors, without stockholder
approval, has the authority under Moore Solutions, Inc.'s Amended Certificate
of Incorporation to issue, at the board of directors' discretion, series of
preferred shares with such rights, limitations and preferences as may be
determined at the time of issuance. Additionally, Moore Solutions, Inc.'s
Equity Incentive Plan allows for all options and awards in the company's
equity to vest upon a "change of control" as defined by the plan.
The laws of the State of Florida, where Moore Solutions' principal
executive offices are located, impose restrictions on certain transactions
between certain foreign corporations and significant stockholders. Florida
Statutes 607.0901 to 607.0903 is an "affiliated transaction" statute which
prevents certain hostile and coercive merger devices. An affiliated transaction
is a significant transaction (e.g., merger, a sale of more than 5% of the
assets, issuance of an additional 5% of stock, or dissolution) with a
shareholder who owns more than 10% of the outstanding stock of a company. In
addition to any approval required by law, Moore Solutions, Inc. charter, or by
the interests given to either bondholders to stockholders by operation of an
agreement, an affiliated transaction must also be approved by either a
majority of the corporation's disinterested directors, or two thirds of the
remaining disinterested shareholders. There are three exceptions to this rule.
First, the affiliated transaction statute can be avoided if the minimum price
paid to the shareholders is at least equal to the highest price paid by an
interested shareholder in the past two years. Second, if the interested
shareholder has owned more than 80% of the corporation's outstanding shares for
at least five years before the affiliated transaction occurs,the statute does
not apply. Third, the statute would not apply if the interested shareholder
owned more than 90% of the outstanding shares when the affiliated transaction
occurs. Additionally, a corporation may elect to opt out of the statute; Moore
Solutions, Inc. has not yet chosen this option.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is North
American Transfer Co.
CHICAGO STOCK EXCHANGE
Moore Solutions, Inc. plans on applying for a listing on the Nasdaq
system immediately upon completion of this offering. In the meantime, Moore
Solutions, Inc. has made an initial application for listing on the Chicago Stock
Exchange.
<PAGE 35>
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference in this prospectus other
information that Autonation and HealthSouth file with them, which means that
we can disclose important information to you by referring you to those
documents. This prospectus incorporates important business and financial
information about Autonation and Health South that is not included in or
delivered with this prospectus. The information that Autonation and
HealthSouth file later with the SEC will automatically update and supersede
the information included in and incorporated by reference in this prospectus.
We incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until the expiration of this exchange offer.
For Autonation:
1. The annual report on Form 10-K for the year ended 12-31-98, as amended.
2. The quarterly report on Form 10-Q for the fiscal quarter ended 9-30-99,
as amended.
For HealthSouth:
1. The annual report on Form 10-K for the year ended 12-31-98, as amended.
2. The quarterly report on Form 10-Q for the fiscal quarter ended 9-30-99,
as amended.
The Companies have filed each of these documents with the SEC and they
are available from the SEC's Internet site at/or public reference rooms
described under "Where You Can Find More Information" below.
------------------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information that is different from or in addition to what is contained in this
prospectus. Therefore, if anyone does give you information of this sort, you
should not rely on it. If you are in a jurisdiction where it is unlawful
to offer to exchange or sell or to ask for offers to exchange or buy the
securities offered by this prospectus, or if you are a person to whom it is
unlawful to direct those activities, then the offer presented in this
prospectus does not extend to you. The information contained in this prospectus
speaks only as of its date unless the information specifically indicates that
another date applies.
<PAGE 36>
TERMS OF THE EXCHANGE OFFER
Moore Solutions, Inc., a Florida corporation, hereby offers to exchange
an aggregate of 2,000,000 shares of Common Stock, for shares of common stock, of
the following two corporations: Autonation, Inc. and HealthSouth Corp., upon
the terms and subject to the conditions set forth below and in the Letter of
Transmittal, which is Appendix A to this prospectus.
1. BASIC TERMS OF THE OFFER
The following terms and conditions apply to our Offer:
"expiration date" shall mean the new time and date upon which the offer is set
to expire.
We may:
* extend the offer, if at any scheduled expiration date of the offer any of
the conditions of the offer shall not be satisfied or waived. The extension will
be until such time as such conditions are satisfied or waived.
* extend the offer for any period required by statute, rule, regulation,
interpretation or position of the Commission or any other governmental
authority or agency thereof applicable to the offer.
* extend the offer for any reason on one or more occasions.
As used in this offer to exchange, "business day" means any day other than a
Saturday, Sunday or a U.S. federal holiday, and consists of the time period from
12:01 a.m. through 12:00 Midnight, New York City time.
We expressly reserve the following rights:
* to waive any condition to the offer.
* to extend the offering period.
* to terminate the offer and not to accept for exchange any shares not
previously accepted for exchange, if any condition to the offer is not
satisfied, by giving oral or written notice of such termination to the
depositary, and
* at any time, to amend the offer in any respect.
While we reserve the above rights, we are not obligated to take any of the
described actions.
2. ACCEPTANCE FOR EXCHANGE AND EXCHANGE FOR SHARES
For a stockholder to validly tender shares pursuant to the offer, either
(a) a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature guarantees or an
Agent's Message (in connection with book-entry transfer of shares of common
stock) and any other required documents,must be received by the depositary at
one of its addresses set forth herein prior to the expiration date
and either
(i) Certificates for tendered shares must be received by the depositary at one
of such addresses prior to the expiration date or
<PAGE 37>
(ii) Shares must be delivered pursuant to the procedures for book-entry
transfer set forth below in Section 3 and a book-entry confirmation must be
received by the depositary on or prior to the expiration date
or
(b) the tendering stockholder must comply with the guaranteed delivery
procedures set forth herein and in Section 3 below.
The term "Agent's Message" means a message transmitted by a book-entry
transfer facility to, and received by, the depositary and forming a part of a
book-entry confirmation, which states that such book-entry transfer facility has
received an express acknowledgment from the participant in such book-entry
transfer facility transferring the shares which are the subject of such book-
entry confirmation that such participant has received and agrees to be bound by
the terms of the Letter of Transmittal and that offeror may enforce such
agreement against such participant.
We will be deemed to have accepted for exchange, and thereby exchanged,
shares validly deposited with the depositary when we give oral or written notice
to the depositary of our acceptance. In all cases, exchange for shares pursuant
to the offer will be made by deposit of our common stock with the depositary.
The depositary will act as agent for exchanging stockholders for the purpose
of receiving common stock from us and transmitting common stock to exchanging
stockholders whose shares have been accepted by us.
If acceptance for exchange is delayed for any reason, or we are unable
to accept for exchange shares deposited pursuant to the offer, then, without
prejudice to our rights under Section 6 below, the depositary may, nevertheless,
on our behalf, retain deposited shares.
If any deposited shares are not exchanged for any reason or if
certificates are submitted for more shares than are exchanged, certificates for
such shares not exchanged will be credited to an account maintained at the
appropriate book-entry transfer facility according to the procedures set
forth in Section 3 below, as promptly as possible following the expiration,
termination or withdrawal of the Offer.
3. PROCEDURE FOR EXCHANGING SHARES
Book-Entry Transfer. The depositary will make a request to establish an
account with respect to the Shares at The Depository Trust Company for purposes
of the offer.
Any financial institution that is a participant in a book-entry transfer
facility's system may make book-entry delivery of shares by causing a book-entry
transfer facility to transfer such shares into the depositary's account at such
book-entry transfer facility in
<PAGE 38>
accordance with that facility's procedure for such transfer. Although delivery
of shares may be effected through book-entry transfer into the depositary's
account at a book-entry transfer facility, however, an Agent's Message in
connection with a book-entry transfer and any other required documents, must,
in any case, be transmitted to, and received by, the depositary at its address
set forth in this offer to exchange on or prior to the expiration date.
The confirmation of a book-entry transfer of shares into the depositary's
account at a book-entry transfer facility as described above is known as a "Book
- -Entry Confirmation."
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed by a member in good standing of the Securities Transfer Agent's
Medallion Program, or by any other bank, broker, dealer, credit union, savings
association or other entity that is an "eligible guarantor institution," as
such term is defined in Rule 17Ad-15 under the Exchange Act, each of the
foregoing constituting an "Eligible Institution", unless the shares are
deposited:
(i) by a registered holder (which term, for purposes of this Section,
includes any participant in any of the book-entry transfer facilities'
systems whose name appears on a security position listing as the
owner of the shares) of shares who has not completed either the box
labeled "Special Delivery Instructions" or the box labeled "Special
Payment Instructions" on the Letter of Transmittal or
(ii) for the account of an eligible institution. See Instruction 1
contained in the Letter of Transmittal. If the certificates
representing shares are registered in the name of a person or
persons other than the signer of the Exchange Agreement and Letter of
Transmittal, or if exchange is to be made or certificates for shares
not accepted for exchange are to be issued to a person other than
the registered holder, then the certificates representing shares
must be endorsed or accompanied by appropriate stock powers, in each
case signed exactly as the name or names of the registered holder
or holders appear on the certificates, with the signatures on the
certificates or stock powers guaranteed as described above and as
provided in the Letter of Transmittal. See Instructions 1 and 5
contained in the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender securities and the
certificates are not immediately available or the procedures for book entry
transfer cannot be completed on a timely basis or time will not permit all
required documents to reach the depositary prior to the expiration date, such
tender may be made if all the following conditions are met:
(i) such tender is made by or through an eligible institution;
(ii) a properly completed and executed Notice of Guaranteed Delivery,
substantially in the form provided by us is received by the
depositary, prior to the expiration date.
<PAGE 39>
(iii) the certificates for all tendered shares of common stock, in proper
form for transfer, or a book-entry confirmation, together with a
properly completed and executed Letter of Transmittal, with any
required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and any other required documents, are
received by the depositary within three trading days after the date
of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand to the depositary
or transmitted by telegram, facsimile transmission or mailed to the depositary
and must include the guarantee by and eligible institution in the form set forth
in such Notice of Guaranteed Delivery.
Backup Withholding. In order to avoid "backup withholding" of U.S.
Federal Income Tax on any gain pursuant to the offer, a stockholder surrendering
shares in the offer must, unless an exemption applies, provide the depositary
with such stockholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such stockholder is not subject to backup withholding.
If a stockholder does not provide such stockholder's correct TIN or fails to
provide the certifications described above, the Internal Revenue Service may
impose a penalty on such stockholder and payment of cash to such stockholder
pursuant to the offer may be subject to backup withholding of 31%.
All stockholders surrendering shares pursuant to the offer should complete and
sign the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary to
avoid backup withholding (unless an applicable exemption exists and is
proved in a manner satisfactory to the offeror and the depositary). Certain
stockholders (including, among others, all corporations and certain foreign
individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8 (Certificate of Foreign Status), a copy of which may be
obtained from the depositary, in order to avoid backup withholding. See
Instruction 10 to the Letter of Transmittal.
Determination of Validity.
--------------------------
* All questions as to the form of documents and the validity, eligibility
(including time of receipt) and acceptance for any exchange of shares pursuant
to any of the procedures described above will be determined by us, which
determination shall be final and binding on all parties.
<PAGE 40>
* We reserve the absolute right to reject any or all deposited shares that are
determined by us not to be in proper form or the acceptance of or exchange for
which, in our opinion, may be unlawful.
* We also reserve the absolute right to waive any defect or irregularity in
any exchange of shares.
* We also reserve the absolute right to waive or to amend any of the
conditions of the offer.
* Our interpretation of the terms and conditions of the offer including the
Letter of Transmittal and the instructions thereto, will be final and binding on
all parties.
* No exchange of shares will be deemed to have been validly made until all
defects and irregularities have been cured or waived.
* None of offeror, the depositary, or any other person will be under any duty
to give notification of any defects or irregularities in exchanges or incur any
liability for failure to give any such notification.
Appointment as Proxy. By executing a Letter of Transmittal, (or agreeing
to be bound by its terms through an Agent's Message) an exchanging stockholder
irrevocably appoints designees of offeror as such stockholder's attorneys-in
- -fact and proxies, each with full power of substitution, in the manner set
forth in the Letter of Transmittal, to the full extent of such stockholder's
rights with respect to the shares deposited by such stockholder and accepted for
exchange by us.
All such powers of attorney and proxies shall be considered coupled with an
interest in the deposited shares. Such powers of attorney and proxies shall be
irrevocable and shall be effective when, and only to the extent that,
offeror accepts such shares for exchange.
Upon such acceptance for exchange, all prior powers of attorney and proxies
given by such stockholder with respect to such shares will be revoked, without
further action, and no subsequent powers of attorney and proxies may be given
by such stockholder. If any are given, will not be deemed effective.
The designees of offeror will be empowered to exercise all voting and other
rights of such stockholder with respect to such shares as they in their sole
discretion may deem proper, including, without limitation, in respect of any
annual or special meeting of the Company's stockholders, or any adjournment
or postponement thereof, or in connection with any action by written consent
in lieu of any such meeting or otherwise.
4. WITHDRAWAL RIGHTS
* Exchanges of shares pursuant to the offer are irrevocable.
<PAGE 41>
* Shares deposited pursuant to the offer may not be withdrawn at any time
prior to the expiration date.
* If we extend the offer, or are delayed in our exchange for shares, then,
without prejudice to our rights under this offer, deposited shares may be
retained by the depositary on our behalf and may not be withdrawn.
5. CERTAIN FEES AND EXPENSES
We have retained Wilmington Trust Company to act as the depositary in
connection with the offer. The depositary will receive reasonable and
customary compensation for its services, will be reimbursed for certain
reasonable out-of-pocket expenses and will be indemnified against certain
liabilities and expenses in connection therewith, including certain
liabilities under the U.S. federal securities laws.
We will not pay any fees or commissions to any broker or dealer or other
person for soliciting exchanges of shares pursuant to the offer.
6. CERTAIN CONDITIONS OF THE OFFER
The exchange offer is subject to the registration statement and nay
amendment to the registration statement covering our common stock being
effective under the Securities Act of 1933. The exchange offer is also
subject to the other conditions set forth in this section.
Notwithstanding any other provision of the offer, we:
* shall not be required to accept for exchange any shares deposited until the
expiration of any applicable waiting period for the offer, and
* may terminate or amend the offer as to any shares not then accepted for
exchange,
* shall not be required to accept for exchange any shares, or
* may delay the acceptance of shares deposited,
if at any time prior to the acceptance for payment of shares, any of the
following events shall occur:
(a) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction, promulgated, enacted,
entered, enforced or deemed applicable to the offer, that would or
is reasonably likely to
<PAGE 42>
(i) make the acceptance for exchange of, or exchange of some or all of
the shares pursuant to the offer illegal, or otherwise restrict or
prohibit or make materially more costly the consummation of the offer,
(ii) result in a significant delay in or restrict our ability to
accept for exchange some or all of the shares pursuant to the offer,
(iii)render us unable to accept for exchange some or all of the shares
pursuant to the offer,
(iv) impose material limitations on our ability to acquire or hold,
transfer or dispose of, or effectively to exercise all rights of
ownership of, some or all of the shares including the right to vote
the shares exchanged by it pursuant to the offer on all matters
properly presented to the stockholders of the Affinity Companies,
(v) otherwise materially adversely affect us, or the value of the
shares or otherwise make consummation of the offer, unduly burdensome;
(b) there shall have been threatened, instituted or pending any action,
proceeding or counterclaim by or before any governmental,
administrative or regulatory agency or instrumentality or before
any court, arbitration tribunal or any other tribunal, domestic or
foreign, challenging the making of the offer or the acquisition by us
of the shares pursuant to the offer or seeking to obtain any
material damages, or seeking to, directly or indirectly, result in any
of the consequences referred to in clauses (i) through (v) of
paragraph (a) above;
(c) there shall have occurred:
(i) for a period of more than one full trading day any general
suspension of, or limitation on prices for, trading in
securities on any national securities exchange or in the
over-the-counter market in the United States,
(ii) the declaration of any banking moratorium or any
suspension of payments in respect of banks or any
limitation (whether or not mandatory) on the extension of
credit by lending institutions in the United States,
(iii)the commencement of a war, armed hostilities or any other
international or national calamity involving the United
States, or
(iv) a material adverse change in the United States currency
exchange rates or a suspension of, or limitation on, the
markets therefor;
(d) there shall have occurred any change, condition, event or
development in the business, condition (financial or otherwise),
assets, liabilities, results of operations or prospects of the
Affinity Compaies or any of their subsidiaries that is, or is
reasonably
<PAGE 43>
likely to be, materially adverse to the them taken as a
whole or that materially impairs, or is reasonably likely to
materially impair the ability of the parties to consummate the
offer; which, in the sole judgment of offeror, in any case, and
regardless of the circumstances giving rise to any such condition,
makes it inadvisable to proceed with the offer or with acceptance for
exchange or exchange for shares.
The foregoing conditions are for our sole benefit and may be
asserted regardless of the circumstances or waived by us in whole or
in part at any time or from time to time in our discretion.
Our failure at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right, and each such right
shall be deemed an ongoing right which may be asserted at any time.
Any determination by us concerning the events described above will
be final and binding on all parties.
7. CERTAIN LEGAL MATTERS
We will only accept shares for exchange from shareholders of the
Affinity Companies who are residents of the following states: Alaska,
Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii,
Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts,
Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, New York,
North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina,
Texas, Vermont, and West Virginia. We will also accept shares from
shareholders who are not residents of the United States. We are
not permitted to accept shares for exchange from shareholders who are
residents of Alabama, California, Connecticut, Iowa, Louisiana,
Maryland, Michigan, Mississippi, New Hampshire, New Jersey, North Dakota,
Pennsylvania, South Dakota, Tennessee, Utah, Virginia, Washington,
Wisconsin, and Wyoming.
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
OF THE EXCHANGE OFFER
The following is a summary of the principal U.S. Federal Income Tax
Consequences of the offer to holders whose shares are exchanged pursuant to the
offer. The discussion applies only to holders of shares in whose hands shares
are capital assets, and may not apply to shares received pursuant to the
exercise of employee stock options or otherwise as compensation, or to
holders of shares who are not citizens or residents of the United States.
The U.S. Federal Income Tax consequences set forth below are included for
general informational purposes only and are based upon present law. Because
individual circumstances may differ, each holder of shares should consult
such holder's own tax advisor to determine the applicability of the rules
discussed below to such stockholder and the particular tax effects of the
offer including the application and effect of state, local and other tax laws.
<PAGE 44>
The receipt of the common stock will be a taxable transaction for U.S.
Federal Income Tax purposes and also may be a taxable transaction under
applicable state, local and other income tax laws. In general, for U.S.
Federal Income Tax purposes, a holder of shares will recognize gain or loss
equal to the difference between such holder's adjusted tax basis in the
shares exchanged pursuant to the offer and the value of the common stock
received therefor. Gain or loss must be determined separately for each block
of shares (i.e., shares acquired at the same cost in a single transaction)
sold pursuant to the offer. Such gain or loss will be capital gain or loss
and will be long-term gain or loss if, on the date of sale the shares were
held for more than one year.
Payments in connection with the offer may be subject to backup
withholding at a 31% rate. Backup withholding generally applies if the
stockholder:
(a) fails to furnish such stockholder's social security number or TIN,
(b) furnishes an incorrect TIN,
(c) fails properly to report interest or dividends or
(d) under certain circumstances, fails to provide a certified statement,
signed under penalties of perjury, that the TIN provided is such
stockholder's correct number and that such stockholder is not subject
to backup withholding. Backup withholding is not an additional tax but
merely an advance payment, which may be refunded to the extent it results
in an overpayment of tax.
Certain persons generally are exempt from backup withholding, including
corporations and financial institutions. Certain penalties apply for failure to
furnish correct information and for failure to include the reportable
payments in income. Each stockholder should consult with such stockholder's
own tax advisor as to such stockholder's qualification for exemption from
withholding and the procedure for obtaining such exemption.
LEGAL MATTERS
<PAGE 45>
The legality of the Common Stock being offered hereby will be passed
upon for Moore Solutions, Inc. by Hackney & Miller, P.A., Admiralty Office
Tower Two, 4400 PGA Boulevard, Suite 505, Palm Beach Gardens, FL 33410.
EXPERTS
The Financial Statements of the Company for the periods ending December
31, 1999, 1998, 1997 and for the period August 5, 1996 (inception) through
December 31, 1996, , have been included in this Prospectus in reliance upon
the report appearing elsewhere herein, of DiBartolomeo, McBee & Associates,
certified public accountants, and upon the authority of said certified public
accountants as experts in accounting and auditing.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THAT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE
OFFER CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON HAVING BEEN AUTHORIZED BY
MOORE SOLUTIONS, INC.. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF MOORE SOLUTIONS, INC. SINCE THE
DATE HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
<PAGE 47>
MOORE SOLUTIONS, INC.
FINANCIAL STATEMENTS
AND ACCOMPANYING INFORMATION
December 31, 1999, 1998, 1997 and
For the period August 5, 1996 (Inception) through December 31,1996
CONTENTS
--------
Page
----
Independent Auditors' Report 1
Balance Sheets 2
Statement of Operations and Retained Earnings (Deficit) 3
Statement of Cash Flows 4
Notes to Financial Statements 5-7
<PAGE 1> of Fiancial Statements
DIBARTOLOMEO, MCBEE & ASSOCIATES, P.A.
CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors
Moore Solutions, Inc.
Port St. Lucie, FL
We have audited the accompanying balance sheets of Moore Solutions, Inc.
as of December 31, 1999, 1998, 1997 and 1996 and the related statements of
operations, changes in stockholders eqity (deficit) and cash flows for the
years ending December 31, 1999, 1998 and 1997 and for the period August 5,
1996 (Inception) through December 31, 1996. These financial statements are
the responsibility of the company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Moore Solutions, Inc.,
as of December 31, 1999, 1998, 1997
<PAGE 48>
and 1996 and the results of its operations and its cash flows for the years
ending December 31, 1999, 1998 and 1997 and for the period August 5, 1996
(Inception) through December 31, 1996 in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that Moore
Solutions, Inc. will continue as a going concern. As shown in the financial
statements, Moore Solutions, Inc., incurred a net loss of $120,692 for the year
ending December 31, 1999 and has incurred net losses for the previous three
years. At, December 31, 1999, total liabilities exceed total assets by
$121,541. These factors, and other discussed in Note E, raise substantial
doubt about Moore Solutions, Inc.'s ability to continue as a going concern. The
financial statements do not include any adjustment relating to the
recoverability and classification of recorded assets, or the amounts and
classification of liabilities that might be necessary in the event that Moore
Solutions, Inc. cannot continue in existence.
DIBARTOLOMEO, MCBEE & ASSOCIATES, P.A.
CERTIFIED PUBLIC ACCOUNTANTS
<PAGE 49>
<PAGE 2> of Financial Statements
MOORE SOLUTIONS, INC.
BALANCE SHEETS
December 31, 1999, 1998, 1997 and 1996
ASSETS
CURRENT ASSETS 1999 1998 1997 1996
Cash and Cash
Equivalents $ 59,242 $ 996 $4,345 $2,017
Accounts Receivable 45,731 9,184 5,071 307
(Net of Allow. Of $2,455
in 1998 $0 in 1997 and
1996)
Prepaid Expenses 6,100
--------- ------- -------- -------
TOTAL CURRENT ASSETS 104,973 10,180 9,416 8,424
--------- ------- -------- -------
PROPERTY AND EQUIPMENT
Furniture and Fixtures 36,265 32,860 30,907 4,414
Equipment 40,505 40,505 18,596 4,550
--------- -------- -------- -------
76,770 73,365 49,503 8,964
Less Accumulated
Depreciation 46,378 29,356 10,916 687
-------- -------- -------- -------
NET PROPERTY AND
EQUIPMENT 30,392 44,009 38,587 8,277
------- -------- -------- -------
$135,365 $54,189 $48,003 $16,701
LIABILITIES AND EQUITY
CURRENT LIABILITIES
Accounts Payable $ 53,993 $56,320 $ 250 $ 2,542
Note Payable First Union --- --- 30,557 ---
Current Portion of Long-Term
Debt - Note C 7,668 5,129 --- ---
Current Portion of
Obligations
Under Capital Leases
-Note D 5,680 4,511 --- ---
--------- --------- -------- ---------
TOTAL CURRENT
LIABILITIES $ 67,341 $ 65,960 $30,807 $ 2,542
========== ========= ========= ========
LONG-TERM DEBT LESS
PRINCIPAL DUE WITHIN
ONE YEAR - Note C 182,259 212,228 49,124 ---
<PAGE 50>
OBLIGATIONS UNDER CAPITAL
LEASES - Note D 7,306 12,799 --- ---
STOCKHOLDERS EQUITY (DEFICIT)
Capital Stock - par value
$.01 per share 10,000,000
shares authorized, issued
and outstanding 3642901 36,430 1 1 1
Preferred Stock - $.01 Par
Value per share Authorized
2,500,000 Shares; Issued and
Outstanding 100,000 1,000 - - -
Additional Paid in
Capital 344,514 145,994 145,870 26,775
Retained Earnings(Deficit)(503,485) (382,793) (177,799) 2,617)
--------- --------- ---------- -------
TOTAL STOCKHOLDERS
EQUITY (DEFICIT) (121,541) (236,798) (31,928) 14,159
----------- ---------- --------
$ 135,365 $54,189 48,003 16,701
========== ========== ========== =======
Read Accompanying Notes to Financial Statements
<PAGE 51>
<PAGE 3> of FINANCIAL STATEMENTS
MOORE SOLUTIONS, INC.
STATEMENT OF OPERATIONS AND RETAINED EARNINGS (DEFICIT)
Years Ending December 31, 1999, 1998 and 1997
And for the period August 5, 1996 (Inception)
through December 31, 1996
1999 1998 1997 1996
REVENUE
Class Income $182,693 $ 57,297 $31,295 $ 555
Design Income 54,277 50,707 30,402 6,407
Consulting Income 45,751 25,929 10,322 ----
Other Income 477 524 572 ----
========= ======== ======== =======
TOTAL REVENUE 283,168 134,457 72,591 6,962
OPERATING EXPENSES 403,860 339,451 237,733 19,579
---------- --------- --------- -------
LOSS FROM
OPERATIONS (120,692) (204,994) (165,182) (12,617)
INCOME TAXES - Note B ---- --- --- ---
----------- --------- -------- ---------
NET LOSS (120,692) (204,994) (165,182) (12,617)
<PAGE 52>
MOORE SOLUTIONS, INC.
STATEMENTS OF CHANGES IN STOCKHOLDERS EQUITY
Years Ending December 31, 1999, 1998 and 1997
And for the period August 5, 1996 (Inception) through
December 31, 1996
1999 1998 1997 1996
---------- --------- -------- ----------
COMMON STOCK
Beginning of period $ 1 $ 1 $ 1 $ -
Additions 36,429 - - 1
--------------------------------------------------
End of Period 36,430 1 1 1
--------------------------------------------------
PREFERRED STOCK
Beginning of period - - - -
Additions 1,000 - - -
--------------------------------------------------
End of period 1,000 - - -
--------------------------------------------------
ADDITIONAL PAID IN CAPITAL
Beginning of period 145,994 145,870 26,775 -
Additions 198,520 124 119,095 26,775
---------------------------------------------------
End of Period 344,514 145,994 145,870 26,775
---------------------------------------------------
RETAINED EARNINGS
(DEFICIT)
Beginning of Year/Period (382,793) (177,799) (12,617) ---
Net Loss (120,692) (204,994) (165,182) (12,617)
----------------------------------------------------
End of Year $(503,485) $(382,793) $(177,799) $(12,617)
========= =========== ========== ==========
TOTAL STOCKHOLDERS
EQUITY (DEFICIT) $(121,541) $(236,798) $(31,928) $14,159
========= =========== ========== ==========
<PAGE 4> FINANCIAL STATEMENTS
MOORE SOLUTIONS, INC.
STATEMENT OF CASH FLOWS
Years Ending December 31, 1999, 1998 and 1997
And for the period August 5, 1996 (Inception)
through December 31, 1996
1999 1998 1997 1996
---------- ---------- ---------- ---------
CASH FLOWS FROM
OPERATING ACTIVIES
Cash received from customers $246,621 $130,444 $ 67,727 $ 555
Cash paid to suppliers
and employees (375,680) (260,291) (223,036) (16,350)
<PAGE 53>
Interest Paid (13,485) (4,750) (700) ----
----------- ---------- ----------- ---------
NET CASH USED IN
OPERATING ACTIVITIES (142,544) (134,597) (156,009) (15,795)
----------- --------- ----------- ---------
CASH FLOWS FROM INVESTING
ACTIVITIES
Cash paid for purchase of
property And equipment (3,405) (23,862) (40,539) (8.964)
--------- --------- ----------- ---------
NET CASH USED IN INVESTING
ACTIVITIES (3,405) (23,862) (40,539) (8.964)
CASH FLOWS FROM FINANCING
ACTIVITIES
Contributions to Paid In
Capital 198,520 124 119,195 26,775
Purchase of Stock 37,429 ---- --- 1
Principal Paid under Capital
Lease Obligations (4,324) (4,599) --- ---
Capital Lease Obligations --- 21,909 --- ---
Proceeds from Stockholder
Loans --- 137,676 49,124 ---
Proceeds from Issuance
of Debt 30,557
--------- --------- ---------- -------
NET CASH PROVIDED BY
FINANCING ACTIVITIES 204,195 155,110 198,876 26,776
--------- --------- ---------- -------
NET INCREASE (DECREASE) IN
CASH AND CASH EQUIVALENTS 58,246 (3,349) 2,328 2,017
CASH AND CASH EQUIVALENTS
Beginning of year/period 996 4,345 2,017 ---
-------- --------- --------- -------
End of year _59,242 $ 996 $ 4,345 $2,017
========= ========= ========= =======
RECONCILIATION OF NET LOSS TO NET
CASH USED IN OPERATING ACTIVITIES:
Net loss $(120,692) $(204,994) $(165,182) $(12,617)
Add (deduct) items not
affecting cash:
Depreciation 17,022 18,440 10,229 687
(Increase) in Accounts
receivable (36,547) (4,113) (4,864) (307)
(Increase) Decrease in
Prepaid Exp. --- ---- 6,100 (6,100)
(Increase) (Decrease) in
Accounts payable _(2,327) 56,070 (2,292) 2,542
========== ========== ========= =======
NET CASH USED IN OPERATING
ACTIVITIES _$142,544) $(134,597) $(156,009) $(15,795)
========== ========== ========== ========
<PAGE 54>
<PAGE 5> NOTES TO FINANCIAL STATEMENTS
MOORE SOLUTIONS, INC.
NOTES TO FINANCIAL STATEMENTS
December 31, 1999, 1998, 1997 and 1996
NOTE A - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business Activities
- -------------------
Moore Solutions, Inc. (Moore Solutions, Inc.) provides computer consulting,
web site design, and computer training services. The majority of clients are
located in the South Florida area.
Basis of Accounting
- --------------------
Moore Solutions, Inc. uses the accrual method of accounting for financial
statement purposes. Under this method, revenue is recognized when earned
and expenses recognized when incurred.
Cash Equivalents
- -----------------
The Company considers highly liquid debt instruments with maturity dates of
three months or less to be cash equivalents.
Use of Estimates
- -----------------
The preparation of 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 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.
Property and Equipment
- -----------------------
Property and equipment are stated at cost. Depreciation is computed over
useful lives of five and seven years on the straight-line method.
Concentration of Credit Risk
- ----------------------------
The Company grants credit to its customers, most of whom are located in the
South Florida area.
NOTE B - INCOME TAXES
The Company had net operating loss carryovers of $503,465, $382,793,
$177,799 and $12,617 at December 31, 1999, 1998, 1997 and 1996 expiring in
15 to 20 years.
<PAGE 55>
<PAGE 6> NOTES TO FINANCIAL STATEMENTS
MOORE SOLUTIONS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
December 31, 1999, 1998, 1997 and 1996
NOTE C - LONG TERM DEBT
Following is a summary of long-term debt at December 31, 1999, 1998, 1997
and 1996:
1999 1998 1997 1996
Note payable to bank monthly
installments Of $639 including
interest at prime rate plus
.98 of one point maturing
October 2003 collateralized
with Certificate of Deposit in
the name of Anne Hubbard
$ 25,429 $30,557 $ ---- $----
Stockholder Loans 164,498 186,800 49,124 ---
========= ========= ========= =========
189,927 217,357 49,124
Less Current Portion (7,668) (5,129) ____ ____
========== ========= ========= =========
$182,259 $212,228 $49,124
Following are maturities of long-term debt for each of the following years:
2000 7,668
2001 6,133
2002 6,707
2003 6,979
Thereafter 162,440
---------
TOTAL $ 189,927
================
NOTE D - CAPITAL LEASE OBLIGATIONS
Moore Solutions, Inc. is the lessee of computer equipment under capital
leases expiring in August of 2001 and June of 2003. The asset and liability
under this lease are recorded at the lower of the present value of the
minimum lease payments or the fair market value of the asset. The asset is
amortized over the lower of its related lease term or estimated productive
life. Amortization of the assets is included in depreciation expense for 1999.
Following is a summary of property acquired under capital leases as of
December 31:
1999 1998 1997 1996
------ ------ ------ -------
Computer Equipment $21,909 $21,909 $---- $-----
Less Accumulated
Amortization (11,393) (4.382) ---- -----
$10,516 $17,527 $---- $-----
======== ========= ========= =======
<PAGE 56>
<PAGE 7> NOTES TO FINANCIAL STATEMENTS
NOTE D - CAPITAL LEASE OBLIGATIONS (CONTINUED)
Minimum future lease payments under capital leases as of December 31, 1998
are as follows:
2000 5,680
2001 4,669
2002 1,686
951
------
TOTAL $ 12,986
NOTE E - GOING CONCERN CONTINGENCY
The Company has minimal capital available to meet future obligations and to
carry out its planned operations. These factors raise substantial doubt about
Moore Solutions, Inc.'s ability to continue as a going concern.
In order to begin any significant operations, the Company will have to
pursue other sources of capital, such as raising equity as discussed in Note
F. The financial statements do not include any adjustments that might result
from the outcome of this uncertainty.
NOTE F - CAPITAL STOCK
The rights of common shares are subject to any prior rights to receive
dividends to which the shareholders of any series of the preferred stock may
be entitled. The rights for preferred shares, in the event of the Company's
liquidation, retain precedence over the equity claims by all other common
shareholders. The preferred shares do not have voting rights, unless
converted into common shares. The preferred stock, one eyar after date of
issuance, shall be convertible to common stock at the price of $1 per share upon
written notice by the shareholder to the compay. The preferred shares are
subject to a dividend representing 5% of the original purchase price, payable
at the close of the fiscal year. The company is not obligated to pay this
dividend until the Company shows a profit for that year. This dividend is
non cumulative. For a period of 2 years after original acquisition by the
preferred shareholder, the shareholder is not eligible to sell these shares
to a third party without first notifying and offering to the Company, the
shares under the same arrangements.
The board of directors has authorized an antitakover plan. On November 30,
1999, the directors declared a dividend of one purchase warrant for every
outstanding share of common stock to be distributed on January 31, 2000 to
stockholders of record on that date, and for each share of common stock that
is issued or sold after that date and prior to the distribution date as defined
below.
Each warrant entitles the holder to purchase one share of common stock at a
price of $.10 per share, subject to adjustment. The warrants will expire on
December 30, 2009. The warrants will be separate from the common stock and
warrant certificates will be issued on the distribution date defined as
the earlier of (i) the tenth business day following the later of the date of
public announcement that a person has acquired beneficial interest of 15% or
more of the outstanding
<PAGE 57>
share of common stock or (ii) the tenth business day after the announcement
of a tender offer for 15% or more of the outstanding common stock.
The warrants are structured to be exercised at a future date and contingent
on various restrictive events as more fully described in the warrant
agreement. The warrants will be evaluated in accordance with Financial
Accounting Standard 123 "Accounting for Stock-Based Compensation" and
Financial Accounting Standard 128 "Earnings per Share" in the future.
NOTE G - SUBSEQUENT EVENTS
Subsequent to December 31, 1998, Moore Solutions, Inc. expects to file a
registration statement with the Securities and Exchange Commission to offer
additional shares of stock. The board of directors has not set the terms and
conditions of this offer. In 1999, the board of directors authorized an
additional 9,999,900 shares of common stock and 2,500,000 shares of
preferred stock.
In 1999 Moore Solutions, Inc. has stated that there is a lawsuit pending
against them. It is a landlord vs. tenant action based on alleged breach of
lease agreement. Total possible damages, if any, cannot be determined
accurately at this time.
<PAGE 58>
APPENDIX A
LETTER OF TRANSMITTAL
To Exchange Shares of Common Stock of Autonation, Inc.
and HealthSouth Corp.
Pursuant to the Exchange Offer Dated ____________ by
Moore Solutions, Inc.
THE OFFER WILL EXPIRE AT 8:00 PM, NEW
YORK CITY TIME, ON __________,___________ , 2000
UNLESS THE OFFER IS EXTENDED.
The Depository For The Offer is:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Telephone: (302) 651-1000
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS
LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW AND
COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Shares (as
defined below) of Autonation, Inc. and HealthSouth Corp., (the
"Stockholders") if certificates evidencing Shares ("Certificates") are to be
forwarded herewith or, unless an Agent's Message (as defined in Instruction
2 below) is utilized, if delivery of Shares is to be made by book-entry
transfer to an account maintained by Wilmington Trust Company (the "Depository")
at The Depository Trust Company ("DTC") (a "Book-Entry Transfer Facility")
pursuant to the procedures set forth in the prospectus under Terms of the
Exchange Offer, Section 3 (as defined below).
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
<PAGE 59>
NAME(S) AND
ADDRESS(ES) OF
REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK,
EXACTLY AS NAME(S)APPEAR
ON CERTIFICATE(S)
SHARE NUMBER OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
- ------------- -----------------------------------------------------
- ------------- -----------------------------------------------------
Total Shares Tendered:
---------------------------------
- ----------------------------------------------------------------------------
(1) Need not be completed by holders of Shares delivering Shares by Book-
Entry Transfer.
(2) Unless otherwise indicated, it will be assumed that all Shares
represented by Certificates delivered to the Depositary are being tendered.
See Instruction 4.
- ---------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER).
(N)ame of Tendering Institution:________________________________________
(C)heck Box of Book-Entry Transfer Facility:
/ / DTC
(A)ccount Number:____________________________________________________________
(T)ransaction Code Number:___________________________________________________
/ / CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
(N)ame(s) of Registered Holder(s):_________________________________________
(W)indow Ticket Number (if any):___________________________________________
(D)ate of Execution of Notice of Guaranteed Delivery: _____________________
(N)ame of Institution which Guaranteed Delivery:___________________________
(I)f delivered by Book-Entry Transfer, check box of Applicable Book-Entry
Facility:
/ / DTC
(A)ccount Number:___________________________________________________________
<PAGE 60>
(T)ransaction Code Number:__________________________________________________
PLEASE READ THE INSTRUCTIONS SET FORTH
IN THIS LETTER OF TRANSMITTAL CAREFULLY
Ladies and Gentlemen:
The undersigned hereby delivers to Moore Solutions, Inc., a Florida
corporation ("Offeror") the above-described shares of common stock, (the
"Shares"), of __________________________ (the "Company"), in exchange for
Offeror's common stock as defined in the Exchange Offer, upon the terms and
subject to the conditions set forth in the Exchange Offer dated ___________,
2000 (the "Exchange Offer"), receipt of which is hereby acknowledged, and in
this Letter of Transmittal (which together with any amendments or supplements
thereto or hereto)constitute the "Offer").
Subject to, and effective upon, acceptance for exchange of, Shares
deposited herewith in accordance with the terms and subject to the conditions
of the Offer (including, if the Offer is extended or amended, the terms or
conditions of any such extension or amendment), the undersigned hereby sells,
assigns and transfers to, or upon the order of, Offeror all right, title and
interest in and to all of the Shares that are being deposited hereby and any and
all other Shares or other securities issued or issuable in respect of such
Shares on or after ____________, 2000 (a "Distribution"), and irrevocably
constitutes and appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares (and any
Distributions), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to
* deliver Certificates evidencing such Shares (and any Distributions),
or transfer ownership of such Shares (and any Distributions) on the
account books maintained by a Book-Entry Transfer Facility together,
in any such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, Offeror, upon receipt by the
Depositary as the undersigned's agent, of the common stock,
* present such Shares (and any Distributions) for transfer on the
books of the Company and
* receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and any Distributions), all in accordance
with the terms and subject to the conditions of the Offer.
The undersigned hereby irrevocably appoints Terrence Moore in his
capacity as an officer of the Offeror, and any individual who shall
thereafter succeed to such office of Offeror, and each of them, as the
attorney-in-fact and proxy of the undersigned, each with full power of
substitution, to the full extent of the undersigned's rights with respect to all
Shares deposited hereby and accepted for exchange by Offeror (and any
Distributions), including, without limitation, the right to vote such Shares
(and any Distributions) in such manner as each such attorney and proxy or his
substitute shall, in his or her sole discretion, deem proper. All such powers of
attorney and proxies, being deemed to be irrevocable, shall be considered
coupled with an interest in the Shares deposited herewith. Such appointment
will be effective when, and only to the extent that, Offeror accepts such Shares
for exchange. Upon such acceptance for exchange, all prior powers of attorney
and proxies given by the undersigned with respect to such Shares (and any
<PAGE 61>
Distributions) will be revoked, without further action, and no subsequent
powers of attorneys and proxies may be given with respect thereto (and, if
given, will be deemed ineffective). The designees of Offeror will, with
respect to the Shares (and any Distributions) for which such appointment is
effective, be empowered to exercise all voting and other rights of the
undersigned with respect to such Shares (and any Distributions) as they in
their sole discretion may deem proper. Offeror reserves the absolute right to
require that, in order for Shares to be deemed validly tendered, immediately
upon the acceptance for exchange of such Shares, Offeror or its designees are
able to exercise full voting rights with respect to such Shares (and any
Distributions).
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Exchange Offer, this tender is irrevocable.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
delivered hereby (and any Distributions) and that, when the same are accepted
for exchange by Offeror, Offeror will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions,
charges and encumbrances, and that the Shares delivered hereby (and any
Distributions) will not be subject to any adverse claim. The undersigned,
upon request, will execute and deliver any additional documents deemed by the
Depositary or Offeror to be necessary or desirable to complete the sale,
assignment and transfer of Shares delivered hereby (and any Distributions).
In addition, the undersigned shall promptly remit and transfer to the
Depositary for the account of Offeror any and all Distributions issued to the
undersigned on or after ___________, 2000, in respect of the Shares tendered
hereby, accompanied by appropriate documentation of transfer; and pending
such remittance and transfer or appropriate assurance thereof, Offeror shall
be entitled to all rights and privileges as owner of any such Distributions and
may withhold the common stock or deduct from the exchange price the value
thereof, as determined by Offeror in its sole discretion.
The undersigned understands that the valid delivery of Shares pursuant
to any one of the procedures described in Section 3 of the Exchange Offer and
in the instructions hereto will constitute a binding agreement between the
undersigned and Offeror with respect to such Shares upon the terms and subject
to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth
in the Exchange Offer, Offeror may not be required to accept for exchange any
of the Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the Common Stock and/or return any Certificates evidencing
Shares not tendered or not accepted for exchange in the name(s) of the
registered holder(s) appearing under "Description of Shares Tendered".
Similarly, unless otherwise indicated under "Special Delivery Instructions",
please mail the Common Stock and/or return any Certificates evidencing Shares
not tendered or not accepted for exchange (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing under
"Description of Shares Tendered". In the event that both the "Special Payment
Instructions" and the "Special Delivery Instructions" are completed, please
issue the Common Stock and/or return any such Certificates evidencing Shares
not tendered or not accepted for exchange (and accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return such
certificates (and accompanying documents, as appropriate) to, the person(s)
so indicated. Unless otherwise indicated herein under "Special Payment
Instructions", in the case of a book-entry delivery
<PAGE 62>
of Shares, please credit the account maintained at the Book-Entry Transfer
Facility indicated above with respect to any Shares not accepted for payment.
The undersigned recognizes that Offeror has no obligation pursuant to the
"Special Payment Instructions" to transfer any Shares from the name of the
registered holder thereof if Offeror does not accept for exchange any of the
Shares tendered hereby.
- -------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for exchange and/or the Common Stock are to be issued in the name
of someone other than the undersigned, or if Shares delivered by book-entry
transfer that are not accepted for exchange are to be returned by credit to an
account maintained at a Book-Entry Transfer Facility other than the account
indicated above.
Issue:_____ Check _____ Certificate(s) to:
Name:
_________________________________________________________________________
(Please print or type)
Address: ______________________________________________________________________
(Include Zip Code)
______________________________________________________________________________
(Tax Identification or Social Security Number)
(See Substitute Form W-9)
______ Credit unexchanged Common Shares delivered by book-entry transfer to
the Book-Entry Transfer Facility account set forth below:
Check appropriate Box:
______ The Depositor Trust Company
______ Philadelphia Depository Trust Company
____________________________________________
(Account Number)
- --------------------------------------------------------------------------------
<PAGE 63>
- ------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for exchange and/or the Common Stock are to be sent to someone
other than the undersigned, or to the undersigned at an address other than
that above.
Mail: (check appropriate box(es))
____ Check to:
____ Certificate(s) to:
Name: _____________________________________________________________________
(Please print or type)
Address:
___________________________________________________________________________
(Include Zip Code)
____________________________________________________________________________
(Tax Identification Number)
(See Substitute Form W-9)
STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE FORM W-9 BELOW
_____________________________________________________________________________
_____________________________________________________________________________
(SIGNATURE(S) OF STOCKHOLDER(S))
DATED: ____________________________, 2000
- -----------------------------------------------------------------------------
IMPORTANT
STOCKHOLDER SIGNATURE
(Also Complete Substitute Form W-9 Below)
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Signature(s) or Owner(s)
Name(s) _________________________________________________________
Name of Firm __________________________________________________
Capacity (full title)____________________________________________
(See Instruction 5)
Address _________________________________________________________
_________________________________________________________________
(Zip Code)
<PAGE 64>
Area Code and Telephone Number ________________________________
Taxpayer Identification or Social Security Number _____________
(See Substitute Form W-9)
Dated: ____________, 2000
(Must be signed by registered holder(s) exactly as name(s)
appear(s) on stock certificate(s) or on a security position listing or by the
person(s) authorized to become registered holder(s) by certificates and
documents transmitted herewith. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, agent, officer or a corporation or
other person acting in a fiduciary or representative capacity, please set
forth full title and see Instruction 5).
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION
GUARANTEE IN SPACE BELOW.
Authorized signature(s)___________________________________
Name(s)___________________________________________________
Name of Firm ____________________________________________
(Please Print)
_________________________________________________________
(Zip Code)
Area Code and Telephone Number __________________________
Dated:_____________, 2000
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below,
signatures on this Letter of Transmittal must be guaranteed by a member in
good standing of the Securities Transfer Agent's Medallion Program, or by any
other bank, broker, dealer, credit union, savings association or other entity
that is an "eligible guarantor institution", as such term is defined in Rule
17Ad-15 under the
<PAGE 65>
Securities Exchange Act of 1934, as amended (the "Exchange Act") (each of
the foregoing constituting an "Eligible Institution"), unless the Shares
tendered hereby are tendered (i) by the registered holder (which term, for
purposes of this document, shall include any participant in a Book-Entry
Transfer Facility whose name appears on a security position listing as the
owner of Shares) of such Shares who has completed neither the box entitled
"Special Payment Instructions" nor the box entitled "Special Delivery
Instructions" hereby or (ii) for the account of an Eligible Institution. See
Instruction 5. If the Certificates are registered in the name of a person
other than the signer of this Letter of Transmittal, or if the Units are to be
made or delivered to, or Certificates evidencing unexchanged Shares are to be
issued or returned to, a person other than the registered owner, then the
tendered Certificates must be endorsed or accompanied by duly executed stock
powers, in either case signed exactly as the name or names of the registered
owner or owners appear on the Certificates, with the signatures on the
Certificates or stock powers guaranteed by an Eligible Institution as provided
herein. See Instruction 5.
2. Requirement of Tender. This Letter of Transmittal is to be completed
by Stockholders if Certificates evidencing Shares are to be forwarded
herewith or, unless an Agent's Message is utilized, if delivery of Shares is
to be made pursuant to the procedures for book-entry transfer set forth in
Section 3 of the Exchange Offer. For a Stockholder to validly tender Shares
pursuant to the Offer, either
* a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature
guarantees or an Agent's Message (in connection with book-entry transfer
of shares of Common Stock) and any other required documents, must be
received by the Depositary at one of its addresses set forth herein
prior to the Expiration Date (as defined in Section 1 of the Exchange
Offer) and either (i) Certificates for tendered Shares must be
received by the Depositary at one of such addresses prior to the
Expiration Date or (ii) Shares must be delivered pursuant to the
procedures for book-entry transfer set forth in Section 3 of the
Exchange Offer and a Book-Entry Confirmation must be received by the
Depositary on or prior to the Expiration Date or
* the tendering stockholder must comply with the guaranteed delivery
procedures set forth herein and in Section 3 of the Exchange Offer.
Stockholders whose certificates for securities are not immediately available
or who cannot deliver their certificates and all other required documents to
the Depositary prior to the expiration Date or who cannot comply with the
book entry procedures on a timely basis may tender their securities by
properly completing and duly executing the Notice of Guaranteed Delivery
pursuant to the guaranteed delivery procedures set forth herein and in
Section 3 of the Exchange Offer.
Pursuant to such guaranteed delivery procedures,
* such tender must be made by or through an Eligible Institution,
* a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Offeror, must
be received by the Depositary prior to the Expiration Date and
* the certificates of all tendered securities, in proper form
for transfer (or a book-entry Confirmation with respect to all
tendered securities), together with a properly completed and
duly executed Letter of Transmittal (or a manually signed
facsimile thereof), with any required signature guarantees, or,
in the case of a book-entry transfer, an Agent's Message, and any
<PAGE 66>
other required documents must be received by the Depositary
within three trading days after the date of execution of such
Notice of Guaranteed Deliver. A "trading day" is any day on
which the Nasdaq National Market is open for business.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and form a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the shares of Common Stock, that such participant
has received and agrees to be bound by such terms of the Letter of
Transmittal and that Offeror may enforce such agreement against the participant.
The signatures on this Letter of Transmittal cover the securities tendered
hereby.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE
TENDERING STOCKHOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be exchanged. All tendering Stockholders, by
execution of this Letter of Transmittal (or a facsimile thereof), waive any
right to receive any notice of the acceptance of their Shares for exchange.
3. Inadequate Space. If the space provided herein is inadequate, the
information required under "Description of Shares Tendered" should be listed
on a separate signed schedule attached hereto.
4. Partial Tenders. If fewer than all of the Shares represented by any
Certificates delivered to the Depositary herewith are to be tendered hereby,
fill in the number of Shares which are to be tendered in the box entitled
"Number of Shares Tendered." In such case, if Offeror accepts the tendered
Shares for exchange, a new Certificate for the remainder of the Shares that
were evidenced by your old certificate(s) will be sent, without expense, to
the person(s) signing this Letter of Transmittal, unless otherwise provided in
the box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" on this Letter of Transmittal, as soon as practicable
after the Expiration Date. All Shares represented by Certificate(s) delivered
to the Depositary will be deemed to have been tendered unless otherwise
indicated.
5. Signatures on Letter of Transmittal, , Instruments of Transfer and
Endorsements. If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
<PAGE 67>
If any of the tendered Shares are registered in different names on
several Certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
Certificates.
If this Letter of Transmittal or any Certificates or instruments of
transfer are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to Offeror of such person's authority to so act
must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares listed and transmitted hereby, no endorsements of Certificates or
separate instruments of transfer are required unless payment is to be made, or
Certificates not tendered or not exchanged are to be issued or returned, to
a person other than the registered holder(s). Signatures on such Certificates
or instruments of transfer must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by the Certificate(s) listed and
transmitted hereby, the Certificate(s) must be endorsed or accompanied by
appropriate instruments of transfer, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Certificate(s). Signatures
on such Certificate(s) or instruments of transfer must be guaranteed by an
Eligible Institution.
6. Transfer Taxes. Offeror will not pay or cause to be paid any transfer
taxes with respect to the transfer and sale of Shares to it or its order
pursuant to the Offer and such transfer taxes will be charged to the tendering
stockholder.
7. Special Payment and Delivery Instructions. If Certificates for
unexchanged Shares are to be issued in the name of a person other than the
signer of this Letter of Transmittal or such Certificates are to be returned
to someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. If any tendered Shares are not exchanged for
any reason and such Shares are delivered by Book-Entry Transfer Facility, such
Shares will be credited to an account maintained at the appropriate Book-Entry
Transfer Facility.
8. Waiver of Conditions. The conditions of the Offer may be waived by
Offeror, in whole or in part, at any time or from time to time, in Offeror's
sole discretion subject to the conditions described in the Exchange Offer.
9. Backup Withholding Tax. Each tendering Stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN")
on Substitute Form W-9, which is provided under "Important Tax Information"
below and to certify that the stockholder is not subject to backup
withholding.
FAILURE TO PROVIDE THE INFORMATION ON THE SUBSTITUTE FORM W-9 MAY SUBJECT
THE TENDERING STOCKHOLDER TO 31% FEDERAL INCOME TAX BACKUP WITHHOLDING ON THE
PAYMENT OF THE PURCHASE PRICE FOR THE SHARES.
<PAGE 68>
The tendering Stockholder should indicate in the box in Part III of the
Substitute Form W-9 if the tendering Stockholder has not been issued a TIN
and has applied for a TIN or intends to apply for a TIN in the near future. If
the Stockholder has indicated in the box in Part III that a TIN has been applied
for and the Depositary is not provided with a TIN by the time of payment, the
Depositary will withhold 31% of all Units, if any, made thereafter pursuant
to the Offer until a TIN is provided to the Depositary.
10. Lost or Destroyed Certificates. If any Certificate(s) representing
Shares has been lost or destroyed, the holders should promptly notify the
Company's transfer agent, Bank of New York. The holders will then be
instructed as to the procedure to be followed in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed Certificates have
been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED
FACSIMILE THEREOF) TOGETHER WITH ANY REQUIRED SIGNNATURE GUARANTEES, OR, IN
THE CASE OF A BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED
DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND
EITHER CERTIFICATES FOR TENDERED SECURITIES MUST BE RECEIVED BY THE
DEPOSITARY OR SECURITIES MUST BE DLEIVERED PURSUANT TO THE PROCEDURES FOR
BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE
TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Stockholder whose tendered Shares are
accepted for exchange is required to provide the Depositary (as payor) with
such Stockholder's correct TIN on Substitute Form W-9 below. If such Stockholder
is an individual, the TIN is his or her social security number. If the
tendering Stockholder has not been issued a TIN and has applied for a number
or intends to apply for a number in the near future, such Stockholder should
so indicate on the Substitute Form W-9. See Instruction 10. If the Depositary is
not provided with the correct TIN, the Stockholder may be subject to a $50
penalty imposed by the Internal Revenue Service. In addition, payments that
are made to such Stockholders with respect to Shares purchased pursuant to the
Offer may be subject to backup federal income tax withholding.
Certain Stockholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such Stockholder must submit a statement, signed under
penalties of perjury, attesting to that individual's exempt status. Forms for
such statements can be obtained from the Depositary. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold
31% of any payments made to the Stockholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the
Internal Revenue Service.
<PAGE 69>
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding with respect to payment
of the purchase price for Shares purchased pursuant to the Offer, a
Stockholder must provide the Depositary with his correct TIN by completing the
Substitute Form W-9 below, certifying that the TIN provided on Substitute
Form W-9 is correct (or that such Stockholder is awaiting a TIN) and that (1)
such Stockholder has not been notified by the Internal Revenue Service that
he is subject to backup withholding as a result of failure to report all
interest or dividends or (2) the Internal Revenue Service has notified the
Stockholder that he is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are registered in more than one name or are
not in the name of the actual owner, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
______________________________, 2000
Signature
Date
Name (Please Print)
- --------------------------------------------------------------
<PAGE 70>
PAYOR'S NAME: HACKNEY & MILLER, P.A.
SUBSTITUTE
Form W-9
Department of Treasury
Internal Revenue Service
Payor's Request for
Taxpayer Identification
Number ("TIN") and
Certification
- ---------------------------------------------------------------------------
Part 1. Please provide your TIN in the box at right and
certify by signing and
Dating below.
- ---------------------------------------------------------------------------
Social Security Number OR
Employer Identification Number
_______________________________
- ----------------------------------------------------------------------------
Part 2. Check the box if you are NOT subject to backup withholding under the
Provisions of Section 3408(a)(1)(C) of the Internal Revenue Code of 1986
because (1) you have not been notified that you are subject to backup
withholding as a result of failure to report all interest or dividends or (2)
the Internal Revenue Service has notified you that you are no longer subject
to backup withholding
- -----------------------------------------------------------------------------
Part 3 - Certification - Under the penalties of perjury, I
certify that the information Provided on this form is true,
correct and complete.
- -----------------------------------------------------------------------------
Print your name: ___________________________
Address: __________________________________
__________________________________________
__________________________________________
Signature: _________________________________
Date: ____________________________
- -----------------------------------------------------------------------------
Awaiting TIN
- ----------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN
BACKUP WITHHOLDING ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE
EXCHANGE OFFER.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF SUBSTITUTE FORM W-9.
- -----------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered
an application to receive a taxpayeridentification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number within 60 days,
31% of all reportable payments made to me thereafter will be withheld until I
provide a number.
_____________________________________________
______________________________________________
Signature Date
- ----------------------------------------------------------------------------
<PAGE 71>
APPENDIX B
Notice of Guaranteed Delivery
For
Tender of Shares of Common Stock
Of
Autonation, Inc.
Or
HealthSouth, Corp.
To
Moore Solutions, Inc.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or a form substantially
equivalent hereto, must be used to accept the Offer (as defined below) (i) if
certificates for Securities (as defined below) are not immediately available,
(ii) if the procedure for book-entry transfer cannot be completed prior to
the Expiration Date (as defined in Section 1 of the Offer to Purchase
described below) or (iii) if time will not permit all required documents to
reach the Depositary prior to the Expiration Date. Such form may be delivered
by hand, transmitted by facsimile transmission or mailed to the Depositary.
The Depositary for the Offer is:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Telephone: (302) 651-1000
(for eligible institutions only)
Confirm Facsimile by Telephone Only:
<PAGE 72>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A
SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE
GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON
THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Moore Solutions, Inc., a Florida
corporation ("Offeror") upon the terms and subject to the conditions set
forth in the Offeror's Exchange Offer dated _____, 2000 (the "Exchange Offer")
and the related Letter of Transmittal (which, together with any amendments or
supplements thereto, constitute the "Exchange Offer"), receipt of which is
hereby acknowledged, the number of shares set forth below of common stock,
(the "Securities"), of the Company, pursuant to the guaranteed delivery
procedures set forth in the Exchange Offer.
Signature(s)_____________________ Address(es)_________________________
_______________________________ ___________________________________
Zip Code
Name(s) of Record Holder(s)________ Area Code and Tel.No.(s)______________
________________________________ Taxpayer Identification or
Please Print or Type Social Security Number________________
Number of shares of Common Stock Check box if shares of Common Stock will
_______________________________ be tendered by book-entry transfer: [___]
Certificate No.(s) (If Available) Account Number_____________________
_______________________________
_______________________________
Dated ________________, 2000
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
------------------------------------------------
BELOW
(Not to be used for signature guarantee)
<PAGE 73>
The undersigned, a participant in the Security Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Guarantee
Program, the Stock Exchange Medallion Program or an "eligible guarantor
institution" as such term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended, hereby guarantees to deliver to the
Depositary either certificates representing the shares of Common Stock and
shares of Preferred Stock tendered hereby, in proper form for transfer, or, in
the case of shares of Common Stock, confirmation of book-entry transfer of
such shares of Common Stock into the Depositary's accounts at The Depositary
Trust Company, in each case with delivery of a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof), with
any required signature guarantees, or an Agent's Message (as defined in the
Offer to Purchase), and any other required documents, within three trading days
(as defined in the Offer to Purchase) after the date hereof.
_________________________________ ____________________________________
Name of Firm Authorized Signature
_________________________________ Name_______________________________
Address Please Print or Type
_________________________________ Title________________________________
Zip Code
Date___________________________,2000
Area Code and Tel. No.______________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OF COMMON STOCK WITH THIS
NOTICE. CERTIFICATES SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
<PAGE 74>
2,000,000
MOORE SOLUTIONS, INC.
COMMON STOCK
- ------------------------------------------------------------------------------
PROSPECTUS
- -------------------------------------------------------------------------------
January 10, 1999
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Florida Statute Section 607.0850 provides that a corporation may indemnify
directors and officers, as well as other employees and agents, along with a
director, officer, employee or agent against of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
incurred in legal proceedings connected with their service to the
corporation, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, had no reasonable cause to believe his or her conduct was
unlawful.
<PAGE 75>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit No. Exhibit Description
3.0 Amended Articles of Incorporation of Moore Solutions,Inc.
3.1 Bylaws of Moore Solutions, Inc.
4.0 Specimen Stock Certificate
4.1 Form of Common Stock Purchase Warrant
5.0 Opinion of Hackney & Miller P.A., as to legality
10.0 Moore Solutions, Inc. 1999 Stock Option Plan
10.2 Business Lease Agreement by and between Moore Solutions, Inc.
and American Sea Breeze, Inc.
10.3 Business Lease Agreement by and between Moore Solutions, Inc.
and American Sea Breeze, Inc.
10.4 Investment Advisory Agreement with Crown Capital Advisors, Inc.
23.0 Consent of DiBartolomeo, McBee & Associates, P.A., independent
certified public accountants
23.1 Consent of Hackney & Miller, P.A. (included in Exhibit 5.0)
28.0 Letter of Transmittal
28.1 Notice of Guaranteed Delivery
28.2 Consent for Electronic Communication
<PAGE 76>
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes as follows:
(1) Prior to any public reoffering of the securities registered
hereunder through use of a prospectus that is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145 ( c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form.
(2) Every prospectus that (i) is filled pursuant to paragraph (1)
immediately preceding or (ii) purports to meet the requirements of Section
10(a)(3) of the Securities Act of 1933 and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of any
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) The undersigned registrant will deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirement of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, will deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(4) For purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) The registrant will respond to requests for information
that is incorporated by reference into the prospectus pursuant to Item of
this form, within one business day of receipt of such request, and to send
the incorporated documents by first-class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(6) The registrant will supply by means of a post-effective
amendment all information concerning a transaction, and Moore Solutions, Inc.
being acquired involved therein, that was not the subject of an included in
the registration statement when it became effective, except where the
<PAGE 77>
transaction in which the securities being offered pursuant to the
registration statement would itself qualify for an exemption under Section 5
of the Securities Act of 1933, absent the existence of other similar (prior or
subsequent) transactions.
(7) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant 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 of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by its is against
public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(8) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(A) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(B) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(C) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement or any material change to such information in the registration
statement.
(9) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(10) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
AVAILABLE INFORMATION
Moore Solutions, Inc. will be subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith will file reports, proxy and
information statements and other information with the SEC. Such reports,
proxy
<PAGE 78>
and information statements and other information filed by Moore Solutions,
Inc. with the SEC can be inspected and copied at the public reference
facilities of the SEC, Room 1024, Judiciary Plaza, 450 Fifth Street, NW,
Washington, DC, 20549, as well as at the following SEC Regional Offices:
Seven World Trade Center, New York, NY 10048; and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, IL 60661-2511. Copies can be obtained from
the SEC by mail at prescribed rates. Requests should be directed tot he SEC's
Public Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, NW,
Washington, DC, 20549.
Moore Solutions, Inc. has filed the Registration Statement under
the Securities Act covering the securities described herein. This
prospectus does not contain all of the information set forth in the
registration statement, certain parts of which are omitted in accordance with
the rules and regulations of the SEC. For further information, reference is
hereby made to the registration statement and the exhibits thereto, which may
be inspected without charge at the office of the SEC at 450 Fifth Street, NW,
Washington, DC, 20549, and copies of which may be obtained from the SEC at
prescribed rates.
The SEC maintains a web site that contains reports, proxy and
information statements and other information regarding registrants, such as
Moore Solutions, Inc., that file electronically with the SEC. The address of
such site is http://www.sec.gov.
<PAGE 79>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has caused this registration statement to be signed by the undersigned,
thereunto duly authorized, in the City of Port St. Lucie, State of Florida,
on March 8, 2000.
Moore Solutions, Inc.
/s/ Terrance Moore
________________________________________
Terrance Moore
Chief Executive Officer, Secretary and Chairman
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Terrance Moore their true and lawful
attorney-in-fact and agent with full power of substitution, for him and his
name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Form S-4 Registration
Statement, and to file the same with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission,
granting such attorney-in-fact the full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Title Date
/s/ Terrance Moore
_____________________ Director March 8, 2000
Terrance Moore
/s/ Jayne Moore
_____________________ Director March 8, 2000
J. Jayne Moore
/s/ Chris Hubbard
_____________________ Director March 8, 2000
Chris Hubbard
/s/ Richard J. Krenn
____________________ Director March 8, 2000
Richard J. Krenn
<PAGE 80>
/s/ Gary Perez
____________________ Director March 8, 2000
Gary Perez
<PAGE 81>
Exhibit 3.0
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MOORE SOLUTIONS, INC.
1. The following provisions of the Articles of Incorporation of Moore
Solutions, Inc., a Florida corporation, filed in Tallahassee on August 15,
1996, be and they hereby are amended and restated as follows:
Article 1. Name
The name of this corporation is Moore Solutions, Inc.
Article 2. Purposes
The purpose or purposes for which this corporation is organized are:
To acquire, own and operate information technology companies and systems,
including internet related businesses.
To acquire by purchase, exchange, gift, bequest, subscription or otherwise,
and to hold, own, mortgage, pledge, hypothecate, sell, assign, transfer,
exchange or otherwise dispose of or deal in or with its own corporate
securities or stock or other securities, including without limitations, any
shares of stock, bonds, debentures, notes, mortgages, or other instruments
representing rights or interests therein or any property or assets created or
issued by any person, firm, association or corporation, or any government or
subdivisions, agencies or instrumentalities thereof; to make payment therefore
in any lawful manner or to issue in exchange therefore its own securities or
to use its unrestricted intention that the purposes specified in each of the
paragraphs of this Article 2 shall be regarded as independent purposes and
powers.
To do each and every thing necessary, suitable or proper for the
accomplishment of any of the purposes or the attainment of any one or more of
the subjects herein enumerated, or which may at any time appear conducive to
or expedient for the protection or benefit of this corporation, and to do said
acts as fully and to the same extent as natural persons might, or could do,
in any part of the world as principals, agents, partners, trustees or
otherwise, either alone or in conjunction with any other persons, association
or corporation.
To transact any and all lawful business for which corporations may be
incorporated under the Florida General Corporation Act.
The foregoing clauses shall be construed both as purposes and powers, and
shall not be held to limit or restrict in any manner the general powers of
the corporation, and the enjoyment and exercise thereof, as conferred by Laws
of the State of Florida; and it is the intention that the purposes and powers
specified in each of the paragraphs of this Article 2 shall be regarded as
independent purposes
<PAGE 82>
and powers.
Article 3. Registered Office; Registered Agent
The address of the initial registered office of the corporation is 4400 PGA
Boulevard, Suite 505, Palm Beach Gardens, Florida 33410 and the name of its
initial registered agent at such address is Robert C. Hackney.
Article 4. Principal Office
The business address of the corporation's principal office is 10570 South
Federal Highway, Port St. Lucie, Florida 34952.
Article 5. Duration
The period of this corporation's duration is perpetual.
Article 6. Directors and Officers
6.1 Number; Initial Directors
The number of directors constituting the board of directors is two, and the
names and addresses of the persons who are to serve as directors until the
next annual meeting of the shareholders or until their successors are elected
and qualified are:
Name Address
Terrance Moore 10570 South Federal Highway,
Port St. Lucie, Florida 34952.
L. Jayne Moore 10570 South Federal Highway,
Port St. Lucie, Florida 34952.
6.2 Changes in Authorized Number of Directors
The number of directors of the corporation set forth in Section 6.1 of this
Article shall constitute the authorized number of directors until changed by
an amendment of these articles of incorporation or by a bylaw duly adopted by
the vote or written consent of the holders of a majority of the then outstanding
shares of common stock in the corporation.
<PAGE 83>
6.3 Powers of Directors
Subject to the limitations contained in the articles of incorporation and the
Florida General Corporation Act concerning corporate action that must be
authorized or approved by the shareholders of the corporation, all corporate
powers shall be exercised by or under the authority of the board of
directors, and the business and affairs of the corporation shall be
controlled by the board.
The board of directors shall delegate, to the extent that it considers
necessary, any portion of its authority to manage, control, and conduct the
current business of the company, to any standing or special committee of the
corporation or to any officer or agent thereof. Notwithstanding any delegation
of authority that the board may make hereunder, it shall exercise general
supervision over the officers and agents of the corporation and shall be
responsible to the shareholders for the proper performance of their
respective duties.
6.4 Removal of Directors and Officers
Any officer elected or appointed by the board of directors, or by the
Executive Committee, or by the shareholders, or any member of the Executive
Committee, or of any other standing committee, or any director of this
corporation may be removed at any time, with or without cause, in such manner
as shall be provided in the bylaws of this corporation.
6.5 Voting for Directors
In all elections of directors of this corporation, each shareholder has the
right to cast as many votes as equal the number of shares held by the
shareholder multiplied by the number of directors to be elected, and the
shareholder may cast all of such votes for a single director or may distribute
them among the number of directors to be elected, or any two or more of
them, as such shareholder may see fit. This Section 6.5 may be amended only
by a vote of all of the outstanding shares of stock of the corporation.
Article 7. Incorporator
The name and address of the incorporator is:
Name Address
Robert C. Hackney 4400 PGA Boulevard, Suite 505
Palm Beach Gardens, Florida 33410
Article 8. Capitalization
The total number of shares of all classes of stock which the corporation
shall have authority to issue is 12,500,000, divided into 10,000,000 shares
of common stock at $.01 par value each and 2,500,000 shares of preferred stock,
at $.01 par value each.
8.1: Statement of Rights for Common Shares
<PAGE 84>
(a) Subject to any prior rights to receive dividends to which the holders
of shares of any series of the preferred stock may be entitled, the holders of
shares of common stock shall be entitled to receive dividends, if and when
declared payable from time to time by the board of directors, from funds
legally available for payment of dividends.
(b) In the event of any dissolution, liquidation or winding up of this
corporation, whether voluntary or involuntary, after there shall have been
paid to the holders of shares of preferred stock the full amounts to which
they shall be entitled, the holders of the then outstanding shares of common
stock shall be entitled to receive, pro rata, any remaining assets of this
corporation available for distribution to its shareholders. The board of
directors may distribute in kind to the holders of the shares of common stock
such remaining assets of this corporation or may sell, transfer or otherwise
dispose of all or any part of such remaining assets to any other corporation,
trust or entity and receive payment in cash, stock or obligations of such other
corporation, trust or entity or any combination of such cash, stock, or
obligations, and may sell all or any part of the consideration so received, and
may distribute the consideration so received or any balance or proceeds of
it to holders of the shares of common stock. The voluntary sale, conveyance,
lease, exchange or transfer of all or substantially all the property or assets
of this corporation (unless in connection with that event the dissolution,
liquidation or winding up of this corporation is specifically approved), or
the merger or consolidation of this corporation into or with any other
corporation, or the merger of any other corporation into it, or any
purchase or redemption of shares of stock of this corporation of any class,
shall not be deemed to be a dissolution, liquidation or winding up of this
corporation for the purpose of this paragraph (b).
(c) Except as provided by law or this certificate of incorporation with
respect to voting by class or series, each outstanding share of common stock
of this corporation shall entitle the holder of that share to one vote on each
matter submitted to a vote at a meeting of shareholders.
(d) Such numbers of shares of common stock as may from time to time be
required for such purpose shall be reserved for issuance (i) upon conversion
of any shares of preferred stock or any obligation of this corporation
convertible into shares of common stock and (ii) upon exercise of any options or
warrants to purchase shares of common stock.
8.2 Statement of Rights for Preferred Shares. The board of directors is
expressly authorized to adopt, from time to time, a resolution or resolutions
providing for the issue of preferred stock in one or more series, to fix the
number of shares in each such series and to fix the designations and the
powers, preferences and relative, participating, optional and other special
rights and the qualifications, limitations and restrictions of such shares, of
each such series.
The authority of the board of directors with respect to each such series
shall include a determination of the following, which may vary as between
the different series of preferred stock:
(a) The number of shares constituting the series and the distinctive
designation of the series;
(b) The dividend rate on the shares of the series, the conditions and
dates upon which dividends on such shares shall be payable, the
extent, if any, to which dividends on such shares shall be
cumulative, and the relative rights of preference, if any, of payment
of dividends on such shares;
<PAGE 85>
(c) Whether or not the shares of the series are redeemable and, if
redeemable, the time or times during which they shall be redeemable
and the amount per share payable on redemption of such shares, which
amount may, but need not, vary according to the time and
circumstances of such redemption;
(d) The amount payable in respect of the shares of the series, in the
event of any liquidation, dissolution or winding up of this
corporation, which amount may, but need not, vary according to the
time or circumstances of such action, and the relative rights of
preference, if any, of payment of such amount;
(e) Any requirement as to a sinking fund for the shares of the series, or
any requirement as to the redemption, purchase or other retirement by
this corporation of the shares of the series;
(f) The right, if any, to exchange or convert shares of the series into
other securities or property, and the rate or basis, time, manner
and condition of exchange or conversion;
(g) The voting rights, if any, to which the holders of shares of the
series shall be entitled in addition to the voting rights provided by
law; and
(h) Any other terms, conditions or provisions with respect to the series
not inconsistent with the provisions of this Article or any
resolution adopted by the board of directors pursuant to this Article.
The number of authorized shares of preferred stock may be increased or
decreased by the affirmative vote of the holders of a majority of the stock of
this corporation entitled to vote at a meeting of shareholders. No holder of
shares of preferred stock of this corporation shall, by reason of such holding
have any preemptive right to subscribe to any additional issue of any stock
of any class or series nor to any security convertible into such stock.
Article 9. Shareholders
9.1 Amendment of Bylaws
The board of directors has the power to make, repeal, amend and alter the
bylaws of the corporation, to the extent provided in the bylaws. However, the
paramount power to repeal, amend and alter the bylaws, or to adopt new bylaws,
is vested in the common shareholders. This power may be exercised by a vote of
all of the common shareholders present at any annual or special meeting of
the common shareholders. Moreover, the directors have no power to suspend,
repeal, amend or otherwise alter any bylaw or portion of any bylaw so enacted by
the shareholders, unless the shareholders, in enacting any bylaw or portion of
any bylaw, otherwise provide.
9.2 Personal Liability of Shareholders
The private property of the shareholders of this corporation is not subject
to the payment of corporate debts, except to the extent of any unpaid balance of
subscription for shares.
<PAGE 86>
9.3 Voting Rights
Except as otherwise expressly provided by the law of the State of Florida or
these articles of incorporation or the resolution of the board of directors
providing for the issue of a series of preferred stock, the holders of the
common stock shall possess exclusive voting power for the election of directors
and for all other purposes. Every holder of record of common stock entitled
to vote and, except as otherwise expressly provided in the resolution or
resolutions of the board of directors providing for the issue of a series of
preferred stock, every holder of record of any series of preferred stock
at the time entitled to vote, shall be entitled to one vote for each share
held.
9.4 Actions by Written Consent
Whenever the vote of shareholders at a meeting of shareholders is required or
permitted to be taken for or in connection with any corporate action by any
provision of the corporation law of the State of Florida, or of these articles
of incorporation or of the bylaws authorized or permitted by that law, the
meeting and vote of shareholders may be dispensed with if the proposed
corporate action is taken with the written consent of the holders of stock
having a majority of the total number of votes which might have been cast for or
in connection with that action if a meeting were held; provided that in no case
shall the written consent be by the holders of stock having less than the
minimum percentage of the vote required by statute for that action, and
provided that prompt notice is given to all shareholders of the taking of
corporate action without a meeting and by less than unanimous written consent.
Article 10. Amendments
The corporation shall be deemed, for all purposes, to have reserved the right
to amend, alter, change or repeal any provision contained in its articles of
incorporation, as amended, to the extent and in the manner now or in the future
permitted or prescribed by statute, and all rights conferred in these
articles upon shareholders are granted subject to that reservation.
Article 11. Regulation of Business and Affairs of Corporation
11.1 Powers of Board of Directors
(a) In furtherance and not in limitation of the powers conferred upon the
board of directors by statute, the board of directors is expressly authorized,
without any vote or other action by shareholders other than such as at the
time shall be expressly required by statute or by the provisions of these
articles of incorporation, as amended, or of the bylaw, to exercise all of the
powers, rights and privileges of the corporation (whether expressed or implied
in these articles or conferred by statute) and to do all acts and things which
may be done by the corporation, including, without limiting the generality of
the above, the right
(i) Pursuant to a provision of the bylaw, by resolution adopted by a
majority of the actual number of directors elected and qualified, to designate
from among its members an executive committee and one or more other
committees, each of which, to the extent provided in that resolution or in the
bylaw, shall have and exercise all the authority of the board of directors
except as otherwise provided by law;
<PAGE 76>
(ii) To make, alter, amend or repeal bylaws for the corporation;
(iii) To authorize the issuance from time to time of all or any shares of the
corporation, now or in the future authorized, part paid receipts or allotment
certificates in respect of any such shares, and any securities convertible
into or exchangeable for any such shares (regardless of whether those shares,
receipts, certificates or securities be unissued or issued and subsequently
acquired by the corporation), in each case to such corporations, associations,
partnerships, firms, individuals or others (without offering those shares or any
part of them to the holders of any shares of the corporation of any class
now or in the future authorized), and for such consideration (regardless of
whether more or less than the par value of the shares), and on such terms as
as the board of directors from time to time in its discretion lawfully may
determine;
(iv) From time to time to create and issue rights or options to subscribe
for, purchase or otherwise acquire any shares of stock of the corporation of any
class now or in the future authorized or any bonds or other obligations or
securities of the corporation (without offering the same or any part of them
to the holders of any shares of the corporation of any class now or in the
future authorized);
(v) In furtherance and not in limitation of the provisions of the above
subdivisions (iii) and (iv), from time to time to establish and amend plans
for the distribution among or sale to any one or more of the officers or
employees of the corporation, or any subsidiary of the corporation, of any
shares of stock or other securities of the corporation of any class, or for the
grant to any of such officers or employees of rights or options to subscribe
for, purchase or otherwise acquire any such shares or other securities, without
in any case offering those shares or any part of them to the holders of any
shares of the corporation of any class now or in the future authorized; such
distribution, sale or grant may be in addition to or partly in lieu of the
compensation of any such officer or employee and may be made in consideration
for or in recognition of services rendered by the officer or employee, or
to provide them with an incentive to serve or to agree to serve the
corporation or any subsidiary of the corporation, or otherwise as the board
of directors may determine; and
(vi) To sell, lease, exchange, mortgage, pledge, or otherwise dispose of
or encumber all or any part of the assets of the corporation unless and
except to the extent otherwise expressly required by statute.
(b) The board of directors, in its discretion, may from time to time
(i) Declare and pay dividends upon the authorized shares of stock of the
corporation out of any assets of the corporation available for dividends, but
dividends may be declared and paid upon shares issued as partly paid only upon
the basis of the percentage of the consideration actually paid on those
shares at the time of the declaration and payment;
(ii) Use and apply any of its assets available for dividends in purchasing
or acquiring any of the shares of stock of the corporation; and
<PAGE 88>
(iii) Set apart out of its assets available for dividends such sum or sums
as the board of directors may deem proper, as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for maintaining or increasing the
property or business of the corporation, or for any other purpose it may
deem conducive to the best interests of the corporation. The board of
directors in its discretion at any time may increase, diminish or abolish any
such reserve in the manner in which it was created.
11.2 Approval of Interested Director or Officer Transactions
No contract or transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the board
or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
1. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the board of directors or the
committee, and the board or committee in good faith authorizes the contract or
transaction by a vote sufficient for such purpose without counting the vote
of the interested director or directors; or
2. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the shareholders; or
3. The contract or transaction is fair as to the corporation as of the time
it is authorized, approved or ratified, by the board of directors, a committee
thereof, or the shareholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
11.3 Indemnification
(a) The corporation shall indemnify any 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 (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is 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 expenses (including attorneys'
fee), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
<PAGE 89>
(b) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is 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
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such other court shall deem proper.
(c) To the extent that any person referred to in paragraphs (a) and (b)
of this article has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to therein or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under paragraphs (a) and (b) of this article
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b)
of this article. Such determination shall be made (a) by the board of directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (b) if such quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by the shareholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the board of directors in the
specific case upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation as provided
in this article.
(f) The indemnification provided by this article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any statute, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is 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 liability asserted
against him and
<PAGE 90>
incurred by him/her in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article 11.
(h) For the purposes of this article, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger
as well as the resulting or surviving corporation so that any person who is or
was a director, officer, employee or agent of such a 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 the provisions of this section with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
2. The foregoing amendments were adopted by the sole Incorporator pursuant to
Florida Statute 607.1005, without shareholder action and no shareholder action
was required.
IN WITNESS WHEREOF, the undersigned, has personally executed these amended
and restated articles of incorporation on this 7th day of April, 1999.
/s/ Robert C. Hackney
__________________________
Robert C. Hackney, Esquire
(Incorporator)
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing Articles of Amendment were acknowledged before me by Robert C.
Hackney who produced his Florida Driver's License as identification this the
7th day of April, 1999 by:
/s/ Donald W. Miller [ Notary Public] Donald W. Miller
___________________________ [State of Florida] My Commission # CC 672777
Notary Public [Seal} Expires: August 18, 2001
State of Florida Bonded Thru Notary Public
Underwriters
<PAGE 91>
CERTIFICATE DESIGNATING PLACE OF
BUSINESS OR DOMICILE FOR THE SERVICE
OF PROCESS WITHIN THIS STATE NAMING,
AGENT UPON WHOM PROCESS MAY BE SERVED
The following is submitted pursuant to Sections 48.091 (1) and 607.034,
Florida Statutes:
BDT Acquisition Corp. desiring to organize under the laws of the State of
Florida being in the County of Palm Beach, at 4400 PGA Blvd., Suite 505, Palm
Beach Gardens, FL 33410 has named Robert C. Hackney, Esquire, located at that
same address as its initial registered agent to accept service of process within
this state.
ACKNOWLEDGMENT:
Having been named to accept service of process for the above-stated
corporation, at the initial registered office of the Corporation of this
State, I hereby accept to act in this capacity and agree to comply with the
provisions of said statute relative to keeping the registered office of the
corporation open from 10:00 a.m. to noon each day, except Saturdays, Sundays
and legal holidays, and to pose therein a sign designating the name of the
corporation and the name of its registered agent.
Date: April 12, 1999
_________________
By:/s/Robert C. Hackney
__________________________
Robert C. Hackney, Esquire
<PAGE 92>
Exhibit 3.1
BY-LAWS
MOORE SOLUTIONS, INC.
ARTICLE ONE
--------------
CAPITAL STOCK
SECTION ONE: Share certificates, as approved by the Board of Directors, shall
be issued to shareholders specifying the name of the owner, number of shares,
and date of issue. Each certificate shall be signed by the President and
Secretary with the corporate seal affixed thereon. Each certificate shall be
numbered in the order in which it is issued.
SECTION TWO: Each shareholder shall be entitled to one vote per share of
common stock, unless otherwise stated in the Articles of Incorporation.
SECTION THREE: Transfer of shares of stock shall be in the transfer ledger of
the corporation. Such transfers shall be done in person or by power of
attorney. Transfers shall be completed on the surrender of the old certificate,
duly assigned.
ARTICLE TWO
--------------
SHAREHOLDER'S MEETINGS
SECTION ONE: The annual meeting of the shareholders shall be held on the
final Tuesday of May of each year at the Company's corporate offices. If the
stated day is a weekend day or a legal holiday, the meeting shall be held on the
next succeeding day not a weekend day or a holiday.
SECTION TWO: The place of the annual meeting may be changed by the Board of
Directors within or without the State of Florida for any given year upon at
least ten and no more than sixty days notice to shareholders. Special
meetings
may be held within or without the State of Florida and at such time as the
Board of Directors may fix.
SECTION THREE: Special meetings of the shareholders may be called at any time
by the Board of Directors or the President or, upon written request of any
holder(s) of at least one-half of the outstanding capital stock.
SECTION FOUR: Notice of any special meeting of the shareholders shall be
given to all shareholders to their last known address by registered mail.
Notice of any special meeting of the shareholders shall state the purpose of
such meeting. Notice of a special meeting may be waived in writing either
before or after such meeting.
SECTION FIVE: Unless otherwise provided by law or the Articles of
Incorporation, all meetings of the shareholders, action may be taken by a
majority vote of the number of shares entitled to vote as represented by the
shareholders present at such meeting. Directors shall be elected by a plurality
vote. A quorum shall constitute one share over fifty percent of the
outstanding shares
<PAGE 93>
entitled to vote as represented by the shareholders present at such meeting.
No business may be transacted without the presence of a quorum. At any time
during any shareholders meeting, if it is determined that a quorum is no
longer present, the meeting shall be then adjourned.
SECTION SIX: Action my be taken by the shareholders without a formal meeting
by consent, if such consent is executed in writing by all of the shareholders
entitled to vote and if allowed under the laws of the Florida.
ARTICLE THREE
--------------
DIRECTORS
SECTION ONE: The Board of Directors shall control the full and entire
management of the affairs and business of the corporation. The Board of
Directors shall adopt rules and regulations to manage the affairs and business
of the corporation by resolution at a special or the annual meeting. A quorum
shall consist of a majority of the directors. Resolutions adopted and all
business transacted by the Board of Directors shall be done by a majority vote
of the directors present at such meetings.
SECTION TWO: The Board of Directors shall consist of 5 member to be elected
by the shareholder at an annual meeting. The term of office shall be one
year. Vacancies may be filled by the Board of Directors prior to the
expiration of the term. Such appointment shall continue until the next annual
meeting of the shareholders.
SECTION THREE: The Board of Directors shall meet annually at the same place
of the shareholders meetings immediately following the annual meeting of the
shareholders. Special meetings of the Board of Directors may be called by the
President on three days notice either personally or by mail or wire, or such
other and further notice as required by the laws of Florida.
SECTION FOUR: Notice of special or regular meetings of the Board of Directors
other than the annual meeting of the Board of Directors, shall be made by mail
to the last known address of each director. Such notice shall be mailed ten
days prior to such meeting and shall include time and place and reasons for
the meeting. All other requirements of the laws of the State of Florida for
notices shall be followed.
SECTION FIVE: All directors of the corporation who are present at a meeting
of the Board of Directors shall be deemed to have assented to action taken at
such meeting as to any corporate action taken, unless a director who did not
vote in favor on such action goes on record in the minutes as dissenting. In
such a case, the dissenting director will not be deemed to having assented to
the action taken.
SECTION SIX: Directors may be removed for cause by a majority vote at a
meeting of the shareholders or Directors. Directors may be removed without
cause by a majority vote at a meeting of the shareholders.
ARTICLE FOUR
--------------
OFFICERS
<PAGE 94>
SECTION ONE: The officers of the corporation shall consist of a Chief
Executive Officer, President, Vice-President, Secretary and Chief Financial
Officer. All officers shall be elected by the Board of Directors and shall
serve a term for compensation as fixed by the Board of Directors. The Board
of Directors may establish other offices as it may deem fit.
SECTION TWO: The chief executive officer shall be the President. The
President shall have management powers of the corporation. His duties shall
include, but are not limited to, administration of the corporation, presiding
over shareholders' meetings including general supervision of the policies of the
corporation as well as general management. The President shall execute
contracts, mortgages, loans and bonds under the seal of the corporation.
The President shall have other powers as determined by the Board of Directors by
resolution.
SECTION THREE: The Secretary shall keep the minutes of meetings of the Board
of Directors and shareholder meetings. The Secretary shall have charge of the
minute books, seal and stock books of the corporation. The Secretary shall have
other powers as delegated by the President.
SECTION FOUR: The Chief Financial Officer shall have the power to manage the
financial affairs of the corporation. The Treasurer shall keep books and
records of the financial affairs and make such available to the President and
Board of Directors upon request. The Treasurer may make recommendations to the
officers and directors in regard to the financial affairs of the corporation.
SECTION FIVE: The Vice-President, if one is appointed by the Board of
Directors, shall have such powers as delegated to him by the President. Upon
the inability of the President to perform the President's duties, the
Vice-President shall serve as President until such time as the President shall
be able to perform or further action by the Board of Directors. The
President shall be deemed unable to perform his duties upon written
notification by the President of such inability or resignation to the Board
of Directors that the President is unable to perform.
SECTION SIX: Vacancies shall be filled by the Board of Directors. Until such
time as vacancies are filled the following rules of succession shall apply
without regard to Section Five of this Article. The Vice-President shall act as
President, the Treasurer shall act as Secretary, and the Secretary shall act
as Treasurer.
SECTION SEVEN: Assistants to officers may be appointed by the President.
These duties shall be those delegated to them by the President or the board
of Directors.
SECTION EIGHT: Compensation of the officers shall be determined by the Board
of Directors.
ARTICLE FIVE
---------------
CONTRACTS AND INSTRUMENTS OF INDEBTEDNESS
SECTION ONE: No contracts or any instrument of indebtedness shall be
executed without approval by the Board of Directors by resolution. Upon
such resolution, the President shall be authorized to execute contracts or
instruments of indebtedness as specified in the resolution.
SECTION TWO: All checks, drafts or other instruments of indebtedness shall be
executed in the
<PAGE 95>
manner as determined by the Board of Directors by resolution.
ARTICLE SIX
------------
CORPORATE SEAL
The seal of the corporation shall be provided for by the Board of
Directors by resolution. The seal shall be used by the President or other
officers of the corporation as provided for in these By-Laws.
ARTICLE SEVEN
--------------
AMENDMENT
These By-Laws may be amended from time to time by a majority vote of
the Board of Directors or by a majority vote of the shareholders. These By-Laws
may be repealed and new By-Laws established in the same manner as amendments.
These By-Laws will continue in full force and effect until amended or
repealed and replaced by new By-Laws.
ARTICLE EIGHT
---------------
DIVIDENDS
The Board of Directors may from time to time declare dividends to
the shareholders. These distributions may be in cash or property. No such
dividends may be made out of the capital of the corporation.
CONSENT AND RATIFICATION BY THE SHAREHOLDERS
OF THE ORGANIZATIONAL MEETING OF THE
INCORPORATORS AND DIRECTORS
The undersigned, being all of the shareholders of Moore Solutions,
having read the minutes of the organizational meeting of the incorporators and
directors, hereby ratify and assent to all action taken in said meeting.
This 15 day of December, 1999.
<PAGE 96>
Exhibit 4.0
FORM OF STOCK CERTIFICATE
[FRONT OF SAMPLE STOCK CERTIFICATE]
NUMBER SHARES
SEE REVERSE FOR CERTAIN DEFINITIONS
COMMON STOCK
MOORE SOLUTIONS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
THIS CERTIFIES THAT:
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF $.0001 PAR VALUE
EACH OF
MOORE SOLUTIONS, INC.
transferable on the books of the Corporation in person or by attorney
upon surrender of this certificate duly endorsed or assigned. This
certificate and the shares represented hereby are subject to the laws of the
State of Florida and to the Articles of Incorporation and Bylaws of the
Corporation, as now or hereafter amended. This certificate is not valid
until countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
DATED: COUNTERSIGNED:
NORTH AMERICAN TRANSFER CO.
147 W. MERRICK RD., FREEPORT, NY 11520
BY:
AUTHORIZED
SIGNATURE
[CORPORATION SEAL]
/s/ Terrance Moore /s/ L.Jayne Moore
SECRETARY PRESIDENT
<PAGE 97>
[BACK OF SAMPLE STOCK CERTIFICATE]
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT............................Custodian......................
(Cust) (Minor)
under Uniform Gifts to Minors
Act............. (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
- ------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
- ------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Shares of the stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- -----------------------------------------------------------------------------
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated _____________________________
-------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,WITHOUT
ALTERATION OR ENLARGEMENT OR CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY
A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF A NATIONAL OR REGIONAL OR
OTHER RECOGNIZED STOCK EXCHANGE IN CONFORMANCE WITH A SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO S.CE.C.RULE 17AD-15.
<PAGE 98>
Exhibit 4.1
Moore Solutions, Inc.
and
North American Transfer Company
as Warrants Agent
Warrants Agreement
Dated as of January 1, 2000
WARRANTS AGREEMENT
This Warrants Agreement (the "Agreement") dated as of January 1,
2000, is between Moore Solutions, Inc., a Florida corporation (the"Company")
and North American Transfer Company, as Warrants agent (the"Warrants Agent").
W I T N E S S E T H:
WHEREAS, on January 1, 2000, the Board of Directors of the Company
(the "Board") authorized the issuance of Warrants (collectively, the
" Warrants," and individually a " Warrant"), each Warrant being a right to
purchase, on the terms and subject to the provisions of this Agreement, one
share of the Company's Common Stock; and
WHEREAS, on January 1, 2000, (the "Declaration Date") the Board (a)
authorized and declared a dividend distribution of one Warrant for every
share of Common Stock of the Company outstanding at the Close of Business on
January 31, 2000, (the "Dividend Record Date"), and (b) authorized the
issuance of, and agreed to issue, one Warrant (as such number may be adjusted
in accordance with Section 11(i) or 11(p) hereof) for every share of Common
Stock of the Company issued between the Dividend Record Date and the
Distribution Date (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms have the meanings
indicated:
<PAGE 99>
(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates of such Person, shall be the Beneficial Owner of 15% or more of
the shares of Common Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of
the Company or of any Subsidiary of the Company, (iv) any Person organized,
appointed, or established by the Company or a Subsidiary of the Company pursuant
to the terms of any plan described in clause (iii) above or (v) any such Person
who has reported or is required to report such ownership on Schedule 13G under
the Exchange Act (or any comparable or successor report) or on Schedule 13D
under the Exchange Act (or any comparable or successor report) which Schedule
13D does not state any intention to or reserve the Warrant to control or
influence the management or policies of the Company or engage in any of the
actions specified in Item 4 of such Schedule (other than the disposition of
the Common Stock) and, within 10 Business Days of being requested by the
Company to advise it regarding the same, certifies to the Company that such
Person acquired shares of Common Stock in excess of 14.9% inadvertently or
without knowledge of the terms of the Warrants and who, together with all of
such Person's Affiliates, thereafter does not acquire additional shares of
Common Stock while the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding, provided, however, that if the Person requested to so
certify fails to do so within 10 Business Days, then such Person shall become an
Acquiring Person immediately after such 10 Business Day Period.
(b) "Act" shall mean the Securities Act of 1933 (or any successor act),
as amended and as may from time to time be in effect and the Rules and
Regulations promulgated by the Securities and Exchange Commission thereunder.
(c) "Affiliate," with respect to any Person, shall mean any other Person
who is, or who would be deemed to be, an "affiliate" or an "associate" of such
Person within the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as such Rule is in
effect on the Declaration Date; provided, that no Person shall be deemed an
affiliate of another Person solely as a result of such Persons' status as
directors of the Company.
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own" or have "Beneficial Ownership" of, any securities:
(i) which such Person or any of such Person's Affiliates has
"beneficial ownership" of within the meaning of Rule 13d-3 of the
General Rules and Regulations under the Exchange Act, as such Rule
is in effect on the Declaration Date;
(ii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the Warrant to acquire (whether such Warrant is
exercisable immediately or after the passage of time) pursuant to any
<PAGE 100>
agreement, arrangement or understanding (whether or not in writing) or
upon the exercise of conversion, exchange or other Warrants, or
options, or otherwise;
(iii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the right to vote or dispose of, including
pursuant to any agreement, arrangement or understanding (whether or not
in writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security for
purposes of this Section 1(d)(iii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding: (A) arises solely from a revocable proxy
given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable proxy solicitation
rules and regulations promulgated under the Exchange Act or (B) is made
in connection with, or is to otherwise participate in, a proxy or
consent solicitation made, or to be made, pursuant to, and in accordance
with, the applicable proxy solicitation rules and regulations
promulgated under the Exchange Act, in either case described in clause
(A) or (B) above, whether or not such agreement, arrangement
or understanding is also then reportable by such Person on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(iv) which are beneficially owned, directly or indirectly, by any
other Person or any Affiliate thereof with which such Person or any of
such Person's Affiliates has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or in connection with a
proxy or consent solicitation described in clause (A) or (B) of the
proviso to Section 1(d)(iii) hereof) or disposing of any securities of
the Company;
provided, however, that for purposes of this Section 1(d) a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such Person or any of
such Person's Affiliates until such tendered securities are accepted for
purchase or exchange, (B) securities issuable upon exercise of Warrants at
any time prior to the occurrence of a Common Stock Event, or (C) securities
issuable upon exercise of Warrants which were held by a Person or its
Affiliates prior to the Distribution Date as long as such Person is not
responsible for the occurrence of the Common Stock Event giving rise to the
Distribution Date; and provided, further, however, that nothing in this Section
1(d) shall cause a Person engaged in business as an underwriter of securities to
be the "Beneficial Owner" of, or to "beneficially own," any securities acquired
through such Person's participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such acquisition.
<PAGE 101>
(e) "Board" shall have the meaning set forth in the preamble to this
Agreement.
(f) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of Florida or the city in which
the principal office of the Warrants Agent is located are authorized or
obligated by law or executive order to close.
(g) " Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Company.
(h) " Common Stock Equivalents" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(i) " Warrants" shall have the meaning set forth in the preamble to
this Agreement.
(j) " Warrant Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(l) "Close of Business" on any given date shall mean 5:00 p.m.,
West Palm Beach, Florida time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 p.m., West Palm Beach, Florida
time, on the next succeeding Business Day.
(m) "Closing Price" shall have the meaning set forth in Section 11(d)
hereof.
(n) "Common Stock" shall mean collectively, the Common Stock, except
that "Common Stock" when used with respect to any Person other than the
Company shall mean either (i) the common stock (or other capital stock or shares
of beneficial interest) of such Person with the greatest voting power, or (ii)
the equity securities or other equity interests having power to control or
direct the management and affairs of such Person, or (iii) if such Person is a
Subsidiary of another Person, the Person (A) who ultimately controls such Person
that is the Subsidiary and (B) which has outstanding such common stock (or
such other capital stock, equity securities or interests).
(o) "Common Stock Event" shall mean the occurrence of any event
described in (i) Section 11(a)(ii) hereof or (ii) clause (a), (b) or (c) of the
first sentence of Section 13 hereof.
(p) "Company" shall have the meaning set forth in the preamble to this
Agreement.
<PAGE 102>
(q) "Current Market Price" shall have the meaning set forth in Section
11(d) hereof.
(r) "Current Value" shall have the meaning set forth in Section
11(a)(iii) hereof.
(s) "Declaration Date" shall have the meaning set forth in the preamble
to this Agreement.
(t) "Directors" shall mean the members of the Board.
(u) "Disqualified Transferee" shall mean any Person who is a direct or
indirect transferee of any Warrant from an Acquiring Person or an Affiliate
of an Acquiring Person and became such a transferee (x) after the occurrence
of a Common Stock Event or (y) prior to or concurrently with the Acquiring
Person becoming such and received such Warrant pursuant to a transfer
(whether or not for value) (A) from the Acquiring Person to holders of its
Common Stock or other equity securities or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement, or understanding
(whether or not in writing) regarding the transferred Warrant, or (B)
which a majority of the Board then in office reasonably determines is part of a
plan, arrangement, or understanding (whether or not in writing) which has as
a primary purpose or effect, the avoidance of Section 7(e) hereof.
(v) "Distribution Date" shall mean the date which is the later of (A)
the earlier of (x) the 10th Business Day following the Stock Acquisition Date or
(y) the 10th Business Day following the Offer Commencement Date or (B) such
specified or unspecified date thereafter which is on or after the Dividend
Record Date, as may be determined by a majority of the Board then in office.
(w) "Dividend Record Date" shall have the meaning set forth in the
preamble to this Agreement.
(x) "Excess Amount" shall have the meaning set forth in Section
11(a)(iii) hereof.
(y) "Exchange Act" shall mean the Securities Exchange Act of 1934 (or
any successor act), as in effect on the Declaration Date and the Rules and
Regulations promulgated thereunder by the Securities and Exchange Commission.
(z) "Exchange Ratio" shall have the meaning set forth in Section 24(a)
hereof.
(aa) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
<PAGE 103>
(bb) "Offer Commencement Date" shall mean the date of the commencement
by any Person, other than (i) the Company, (ii) a Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any Subsidiary of the
Company or (iv) any Person organized, appointed, or established by the Company
or such Subsidiary pursuant to the terms of any such plan, of a tender or
exchange offer (including when such offer is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations under
the Exchange Act) if upon consummation thereof the Person and Affiliates thereof
would be the Beneficial Owner of 15% or more of the then outstanding shares of
Common Stock (including any such date which is after the date of this Agreement
and prior to the issuance of the Warrants on the Dividend Record Date or
thereafter).
(cc) "Officers' Certificate" has the meaning set forth in Section 20
(b) hereof.
(dd) "Other Consideration" has the meaning set forth in Section 6(a)
hereof.
(ee) "Permitted Transferee" shall have the meaning set forth in
paragraph 4 of Section A of the Company's Articles of Incorporation.
(ff) "Person" shall mean a corporation, association, partnership, joint
venture, trust, limited liability company, estate, organization, business,
entity or individual.
(gg) "Purchase Price" shall have the meaning set forth in Section 7(b)
hereof.
(hh) "Redemption Price" shall have the meaning set forth in Section 23
hereof.
(ii) "Warrants" shall have the meaning set forth in the preamble to this
Agreement.
(jj) "Warrants Agent" shall have the meaning set forth in the preamble
to this Agreement subject to the appointment of a successor Warrants Agent
pursuant to Section 21 hereof.
(kk) "Stock Acquisition Date" shall mean the later of (i) the date of
the first public announcement by an Acquiring Person or the Company that an
Acquiring Person has become such (including the first date on which any filing
with any governmental authority disclosing that an Acquiring Person has become
such becomes available to the public), or (ii) the date on which an executive
officer of the Company has actual knowledge that an Acquiring Person has become
such.
<PAGE 104>
(ll) "Subsidiary" shall mean, as of any date, any Person of which the
Company (or other specified parent) owns directly, or indirectly through a
Subsidiary or Subsidiaries, at least a majority of the outstanding capital stock
(or other shares of beneficial interest) entitled to vote generally, or holds
directly, or indirectly through a Subsidiary or Subsidiaries, at least a
majority of partnership or similar interests, or is a general partner or of
which the Company (or other specified parent) owns voting securities sufficient
to elect at least a majority of the directors of such Person.
(mm) "Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
(nn) "Summary of Warrants" shall have the meaning set forth in
Section 3(b) hereof.
(oo) "Trading Day" shall mean a day on which the principal national
securities exchange on which such security is listed or admitted to trading is
open for the transaction of business or, if such security is not listed or
admitted to trading on any national securities exchange, a day which is a
Business Day.
Section 2. Appointment of Warrants Agent.
The Company hereby appoints the Warrants Agent to act as agent for the
Company and the holders of the Warrants (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders of the
Common Stock) in accordance with the terms and conditions hereof, and the
Warrants Agent hereby accepts such appointment. The Company may from time to
time, upon prior written notice to the Warrants Agent, appoint such
Co-Warrants Agents as it may deem necessary or desirable and the respective
duties of the Warrants Agent and the Co-Warrants Agent shall be as the Company
shall determine.
Section 3. Issuance of Warrant Certificates.
(a) Until the Distribution Date, (i) the Warrants will be
evidenced (subject to the provisions of Section 3(b) hereof) by the certificates
representing shares of Common Stock registered in the names of the holders
of the Common Stock (which certificates shall be deemed also to be
certificates for the associated Warrants) and not by separate Warrants
certificates, and (ii) the Warrants will be transferable only in connection
with the transfer of the associated shares of Common Stock. As soon as
practicable after the Distribution Date, the Warrants Agent will send by
first-class, insured, postage prepaid mail, to each record holder of the
Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the stock transfer records of the Company,
one or more Warrant Certificates, in substantially the form of Exhibit A
hereto
<PAGE 105>
(the "Warrant Certificates"), evidencing in the aggregate that number of
Warrants to which such holder is entitled in accordance with the provisions
of this Agreement. As of and after the Distribution Date, the Warrants will be
evidenced solely by such Warrant Certificates. The Warrants are exercisable
only in accordance with the provisions of Section 7 thereof and are redeemable
only in accordance with Section 23 hereof.
(b) As soon as practicable after the Dividend Record Date, the Company
will cause a copy of a Summary of Warrants, in substantially the form
attached hereto as Exhibit B (the "Summary of Warrants"), to be sent by
first-class, postage prepaid mail, to each record holder of the Common Stock
as of the Close of Business on the Dividend Record Date, at the address of
such holder shown on the stock transfer records of the Company. With respect to
certificates for the Common Stock outstanding as of the Dividend Record
Date, until the Distribution Date, the Warrants associated with the shares
of Common Stock represented by such certificates will be evidenced by such
certificates for the Common Stock and the registered holders of the
Common Stock shall also be the registered holders of the associated Warrants.
Until the Distribution Date (or the earlier redemption, expiration or
termination of the Warrants), the surrender for transfer of any of the
certificates representing shares of the Common Stock outstanding on the
Dividend Record Date, with or without a copy of the Summary of Warrants,
shall also constitute the transfer of the Warrants associated with the
Common Stock represented by such certificate.
(c) Warrants shall be issued in respect of all shares of
Common Stock issued (whether originally issued or delivered from the Company's
treasury) after the Dividend Record Date but prior to the earliest of (i) the
Distribution Date, (ii) the Expiration Date, or (iii) the redemption of the
Warrants, including in respect of all shares of Common Stock issued upon
conversion of Class A Warrants to buy Common Stock. Certificates representing
such shares of Common Stock and certificates issued on transfer of such
shares of Common Stock, with or without a copy of the Summary of Warrants,
prior to the Distribution Date (or earlier expiration or redemption of the
Warrants) shall be deemed also to be certificates for the associated Warrants,
and commencing as soon as reasonably practicable following the Dividend Record
Date shall bear the following legend (or a legend substantially in the form
thereof):
This certificate also evidences and entitles the holder to Warrants set
forth in a Warrants Agreement between the issuer and North American
Transfer Company,as Warrants Agent (the "Warrants Agent"), dated as of
January 1, 2000, (the "Warrants Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at the
principal offices of both the issuer and the Warrants Agent. The Warrants
Agent will mail to the registered holder of this certificate a copy of
the Warrants Agreement, as in effect on the date of mailing, without
charge upon written request. Under certain circumstances set
<PAGE 106>
forth in the Warrants Agreement, such Warrants will be evidenced by
separate certificates and will no longer be evidenced by this certificate.
Under certain circumstances set forth in the Warrants Agreement,
Warrants issued to, or held by any Person who is, was or becomes, or
acquires shares from, an Acquiring Person or any Affiliate of an
Acquiring Person (as each such term is defined in the Warrants Agreement
and generally relating to the ownership or purchase of large
shareholdings), whether currently held by or on behalf of such Person or
Affiliate or by certain subsequent holders, may become null and void.
Until the Distribution Date or the earlier redemption, expiration or termination
of the Warrants, the Warrants associated with the Common Stock shall be
evidenced by the Common Stock certificates alone and the registered holders
of Common Stock shall also be the registered holders of the associated
Warrants, and the surrender for transfer of any of such certificates shall
also constitute the transfer of the Warrants associated with the Common Stock
represented by such certificate. Warrants shall be issued to the extent provided
in Section 22 hereof after the Distribution Date and prior to the Expiration
Date.
Section 4. Form of Warrant Certificates.
(a) The Warrant Certificates (and the form of assignment and the
form of exercise notice and certificate to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit A hereto and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may from time to time be listed or traded, or to conform to usage.
Subject to the provisions of Sections 11 and 22 hereof, the Warrant
Certificates, whenever distributed, shall be dated as of the Dividend Record
Date (or, if the shares pursuant to which the Warrants are attached are
issued thereafter, such date of issuance), shall include the date of
countersignature and on their face shall entitle the holders thereof to purchase
such number of shares of Common Stock as shall be set forth therein at
the Purchase Price (as hereinafter defined), but the amount and type of
securities issuable upon the exercise of each Warrant and the Purchase
Price shall be subject to adjustment as provided herein.
(b) Any Warrant Certificate issued pursuant to Section 3(a) or 22
hereof that represents Warrants beneficially owned by (i) any Acquiring
Person or any Affiliate of an Acquiring Person, or (ii) any Disqualified
Transferee, and any other Warrant Certificate issued pursuant to Section
6 or 11 hereof upon the transfer, exchange, replacement, or adjustment of any
such Warrant Certificate shall contain (to the extent feasible) the
following legend:
<PAGE 107>
The Warrants represented by this Warrant Certificate are or
were beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate (which includes both affiliates and associates)
of an Acquiring Person (as each such term is defined in the
Warrants Agreement between the issuer and North American Transfer
Company as Warrants Agent, dated as of January 1, 2000, (the "Warrants
Agreement")). Accordingly, this Warrant Certificate and the Class
A Warrants represented hereby may become null and void in the
circumstances specified in Section 7(e) of the Warrants Agreement.
The Warrants Agent will mail to the registered holder of this
certificate a copy of the Warrants Agreement, as in effect on the
date of such mailing, without charge upon written request.
Section 5. Countersignature and Registration.
The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, or any Vice President, either
manually or by facsimile signature, and shall have affixed thereto the Company's
seal or facsimile thereof which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature.
The Warrant Certificates shall be countersigned, either manually or by
facsimile signature, by the Warrants Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be such officer of
the Company before countersignature by the Warrants Agent and issuance and
delivery by the Company, such Warrant Certificates, nevertheless, may be
countersigned by the Warrants Agent, issued, and delivered with the same
force and effect as though the person who signed such Warrant Certificates
had not ceased to be such officer of the Company. Any Warrant Certificate may
be signed on behalf of the Company by any person who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the
execution of this Agreement any such person was not such an officer.
Following the Distribution Date, the Warrants Agent shall keep or
cause to be kept, at the office of the Warrants Agent designated for such
purpose, books for registration and transfer of the Warrant Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Warrant Certificates, the number of Warrants
evidenced on its face by each of the Warrant Certificates, and the date
of countersignature thereof by the Warrants Agent.
Section 6. Transfer, Split Up, Combination and Exchange of Warrants
Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
(a) Subject to the provisions of Sections 4(b), 7(e), and 14 hereof, at
<PAGE 108>
any time after the Close of Business on the Distribution Date, and at or prior
to the earlier of the Close of Business on the Expiration Date or the redemption
of the Warrants, any Warrant Certificate may be transferred, split up,
combined or exchanged for another Warrant Certificate or Warrant
Certificates, entitling the registered holder to purchase a like number of
shares of Common Stock (or, following a Common Stock Event, Common Stock and/or
such other securities, cash, or other assets as shall be issuable in respect
of the Warrants in accordance with the terms of this Agreement (such other
securities, cash or other assets being referred to herein as "Other
Consideration")) as the Warrant Certificate surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Warrant Certificate shall make such request in writing delivered to the Warrants
Agent, and shall surrender the Class A Warrant Certificate to be transferred,
split up, combined, or exchanged at the office of the Warrants Agent
designated for such purpose, accompanied by a signature guarantee and such
other documentation as the Warrants Agent may reasonably request. Neither the
Warrants Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Warrant
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Warrant Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner from whom the Warrants evidenced by such
Warrant Certificate are to be transferred (or the Beneficial Owner to whom
such Warrants are to be transferred) or Affiliates thereof as the Company shall
reasonably request. Thereupon, subject to Sections 4(b), 7(e) and 14 hereof, the
Company shall execute and the Warrants Agent shall countersign and deliver to
the Person entitled thereto a Warrant Certificate or Warrant Certificates,
as the case may be, as so requested. The Company may require payment by the
holders of Warrants of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split up, combination or
exchange of Warrant Certificates which the Company is not required to pay in
accordance with Section 9(d) hereof.
(b) Upon receipt by the Company and the Warrants Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Warrant Certificate, and, in case of loss, theft or destruction, the
receipt of indemnity or security satisfactory to them, and upon reimbursement to
the Company and the Warrants Agent of all reasonable expenses incidental
thereto, and upon surrender to the Warrants Agent and cancellation of the
Warrant Certificate, if mutilated, accompanied by a signature guarantee and
such other documentation as the Warrants Agent may reasonably request, the
Company will execute and deliver a new Warrant Certificate of like tenor to
the Warrants Agent for countersignature and delivery to the registered owner in
lieu of the Warrant Certificate so lost, stolen, destroyed, or mutilated.
Section 7. Exercise of Warrants; Purchase Price; Expiration Date of Class
A Warrants.
<PAGE 109>
(a) Except as otherwise provided herein, the registered holder of any
Warrant Certificate may exercise the Warrants evidenced thereby in whole or
in part at any time from and after the Distribution Date and at or prior to
the Close of Business on December 30, 2009, (the "Expiration Date") or the
earlier redemption of the Warrants. Immediately upon the Close of Business
on the Expiration Date (or the earlier redemption of Warrants), all Warrants
shall be extinguished and all Warrant Certificates shall become null and
void. To exercise Warrants, the registered holder of the Warrant Certificate
evidencing such Warrants shall surrender such Warrant Certificate, with
the form of election to purchase on the reverse side thereof and the
certificate contained therein duly executed, to the Warrants Agent at the office
of the Warrants Agent designated for such purpose, accompanied by a signature
guarantee and such other documentation as the Warrants Agent may reasonably
request, together with payment in cash, only by electronic or wire transfer,
or by certified check or bank check, of the Purchase Price with respect to the
total number of shares of Common Stock (or, after a Common Stock Event,
shares or similar units of Common Stock and/or Other Consideration) as to
which the Warrants are exercised (which payment shall include any
additional amount payable by such Person in accordance with Section 9(d)
hereof). The Warrants Agent shall promptly deliver to the Company all
payments of the Purchase Price received in respect of Warrants Certificates
accepted for exercise.
(b) The purchase price for each share of Common Stock issuable
pursuant to the exercise of a Warrant (the "Purchase Price") shall
initially be $.10, shall be subject to adjustment as provided in Section 11
hereof, and shall be payable in lawful money of the United States of America.
(c) Upon receipt of a Warrant Certificate representing the Warrants,
with the form of election to purchase set forth on the reverse side thereof
and the certificate contained therein duly executed, accompanied by payment
of the Purchase Price, with respect to each Warrant so exercised, the Warrants
Agent, subject to Sections 7(e), 11(a)(iii) and 20(k) hereof, shall thereupon
promptly (i) requisition from any transfer agent of the Common Stock (or from
the Company if there shall be no such transfer agent, or make available if the
Warrants Agent is such transfer agent) certificates for the total number of
shares of Common Stock to be purchased and the Company hereby irrevocably
authorizes such transfer agent to comply with any such request, (ii) after
receipt of such certificates, cause the same to be delivered to or upon the
order of the registered holder of such Warrant Certificate, registered in
such name or names as may be designated in writing by such holder, and (iii)
when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of a fractional share in accordance with Section 14 hereof and
after receipt promptly deliver such cash to or upon the order of the registered
holder of such Warrant Certificate. After the occurrence of a Common Stock
Event, the Company shall make all necessary arrangements so that any Other
Consideration then deliverable in respect of the Warrants is available for
distribution by the Warrants Agent. For purposes of this Section 7, the Warrants
Agent shall be entitled to rely, and shall be protected in relying, on an
<PAGE 110>
Officers' Certificate from the Company to the effect that the Distribution Date
has occurred.
(d) Subject to Sections 4(b), 7(e) and 14 hereof, in case the registered
holder of any Warrant Certificate shall exercise less than all the Class
A Warrants evidenced thereby, a new Warrant Certificate evidencing Warrants
equivalent to the Warrants remaining unexercised shall be executed and
delivered by the Company to the Warrants Agent and countersigned and
delivered by the Warrants Agent to the registered holder of such Warrant
Certificate or to such holder's duly authorized assigns.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Common Stock Event, any Warrants beneficially
owned by (i) an Acquiring Person or an Affiliate of an Acquiring Person, or
(ii) a Disqualified Transferee shall become null and void without any further
action, and no holder of such Warrants shall have any Warrants whatsoever
with respect to such Warrants, whether under any provision of this Agreement
or otherwise. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are complied with,
but the Company shall have no liability to any holder of Warrant Certificates or
other Person and none of the terms of this Agreement or the Warrants shall be
deemed to be waived with respect to such holder or other Person as a result of
any failure by the Company to make any determinations with respect to an
Acquiring Person or any Affiliate of an Acquiring Person or Disqualified
Transferees hereunder or any failure to have a legend placed on any Warrant
Certificate in accordance with Section 4(b) hereof or on any Common Stock
certificate in accordance with Section 3(c) hereof.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Warrants Agent nor the Company shall be obligated to undertake any action
with respect to a holder of any Warrant Certificate upon the occurrence of any
purported exercise thereof unless such holder shall have (i) completed and
signed the certificate contained in the form of election to purchase set forth
on the reverse side of the Warrant Certificate surrendered for such
exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner from whom the Warrants evidenced by such Warrants
Certificate are to be transferred (or the Beneficial Owner to whom such
Warrants are to be transferred) or Affiliates thereof as the Company shall
reasonably request. Section 8. Cancellation and Destruction of Warrant
Certificates.
All Warrant Certificates surrendered for the purpose of and
accepted for exercise, or surrendered for the purpose of redemption, transfer,
split up, combination or exchange shall, if surrendered to the Company or to any
of its agents (other than the Warrants Agent), be delivered to the Warrants
Agent for cancellation or in canceled form, or, if surrendered to the
Warrants Agent,
<PAGE 111>
shall be canceled by it, and no Warrant Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Warrants Agent for cancellation
and retirement, and the Warrants Agent shall so cancel and retire, any other
Warrant Certificates purchased or retired by the Company otherwise than upon
the exercise thereof. The Warrants Agent shall deliver all canceled Warrants
Certificates to the Company, or may, at the written request of the Company,
but shall not be required to, destroy such canceled Warrant Certificates,
and in such case shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of Shares of Common Stock; Other
Covenants.
(a) The Company covenants and agrees that on and after the Distribution
Date, it shall use reasonable efforts to cause to be reserved and kept available
out of its authorized and unissued shares of Common Stock (or,following
the occurrence of a Common Stock Event, out of its authorized and unissued
shares of Common Stock and/or Other Consideration, or out of its
authorized and issued shares held in its treasury), the number of shares of
Common Stock (or, following a Common Stock Event, shares and/or similar
units of Common Stock and/or Other Consideration) that, except
as provided in Section 11(a)(iii) hereof, would then be sufficient to permit
the exercise in full of all outstanding Warrants; provided, that the
reservation of such shares, however, shall be subject and subordinate to any
other reservation of such shares made by the Company at any time for any
lawful purpose; provided, further, however, that in no event shall such
failure to so reserve shares affect the Warrants of any holder of Warrants
hereunder.
(b) The Company covenants and agrees that on and after the Distribution
Date so long as the Common Stock (or, following a Common Stock Event,
shares and/or similar units of Common Stock and/or Other Consideration)
issuable upon the exercise of Warrants may be listed on any national
securities exchange, the Company shall use its best efforts to cause all shares
(or similar units) reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company covenants and agrees that it shall take all such action
as may be necessary to ensure that each share of Common Stock (or, following
a Common Stock Event, each share and/or similar unit of Common Stock and/or
Other Consideration) delivered upon exercise of Warrants shall, at the time
of delivery of the certificates for such shares (or units), subject to
payment in full of the Purchase Price, be duly and validly authorized and
issued and fully paid and nonassessable.
(d) The Company covenants and agrees that it shall pay when due and
payable any and all federal and state transfer taxes and similar charges which
may be payable in respect of the issuance or delivery of the Warrants
<PAGE 112>
Certificates or of any shares of Common Stock (or, following the occurrence
of a Common Stock Event, each share and/or similar unit of Common Stock and/
or Other Consideration) upon the exercise of Warrants; provided, however,
that the Company shall not be required to pay any transfer tax which may be
payable in respect of any transfer involved in the transfer or delivery of
Warrant Certificates or in the issuance or delivery of certificates for any
shares of Common Stock (or, following the occurrence of a Common Stock Event,
each share and/or similar unit of Common Stock and/or Other Consideration) in
a name other than that of the registered holder of the Warrant Certificate
evidencing Warrants surrendered for exercise or to issue or deliver any
certificates for any shares of Common Stock (and, following the occurrence of a
Common Stock Event, any shares and/or similar units of Common Stock and/or
Other Consideration) upon the exercise of any Warrants until any such tax shall
have been paid (any such tax being payable by the holder of such Warrants
Certificate at the time of surrender thereof) or until it has been established
to the Company's satisfaction that no such tax is due.
(e) The Company shall use its best efforts (i) to file, as soon as
practicable following the earliest date after the first occurrence of a Common
Stock Event on which the consideration to be delivered by the Company upon
exercise of the Warrants has been determined in accordance with this
Agreement, or as soon as is required by law following the Distribution Date, as
the case may be, a registration statement under the Act, with respect to the
securities issuable upon exercise of the Warrants on an appropriate form,
(ii) to cause such registration statement to become effective as soon as
practicable after such filing, and (iii) to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the Warrants are no
longer exercisable for such securities, or (B) the Expiration Date or earlier
redemption of the Warrants. The Company will also take such action as may
be appropriate under, or to ensure compliance with, the securities or "blue sky"
laws of the various states of the United States in connection with the
exercisability of the Warrants. The Company may temporarily suspend, for a
period of time not to exceed ninety (90) days after the date set forth in clause
(i) of the first sentence of this Section 9(e), the exercisability of the Class
A Warrants in order to prepare and file such registration statement or to permit
it to become effective. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Warrants has been
temporarily suspended. The Company shall thereafter issue a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Warrants
shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
Section 10. Common Stock Record Date; Etc.
<PAGE 113>
Each Person in whose name any certificate for any shares of Common
Stock (or, following the occurrence of a Common Stock Event, shares and/or
similar units of Common Stock and/or Other Consideration) is issued upon the
exercise of Warrants shall for all purposes be deemed to have become the
holder of record of such shares of Common Stock (or such shares and/or
similar units of Common Stock and/or Other Consideration, as the case may
be) represented thereby, and such certificate shall be dated the date which
is the later of (i) the date upon which the Warrants Certificate evidencing
such Warrants was duly surrendered, or (ii) the date upon which payment of
the Purchase Price (and any applicable transfer taxes) in respect thereof was
made; provided, however, that if such date is a date upon which the relevant
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (or Other Consideration) on, and such
certificate shall be dated, the next succeeding Business Day on which such
transfer books of the Company are open; provided, further, that the Company
covenants and agrees that it shall not close such transfer books for a period
exceeding ten consecutive days. Prior to the exercise of the Warrants
evidenced thereby (which shall be deemed to have occurred on the date such
certificate for shares and/or similar units of Common Stock or Other
Consideration shall be dated in accordance with this Section 10), the holder
of a Warrant Certificate, as such, shall not be entitled to any Warrants of
a security holder of the Company with respect to the shares of Common Stock
(and/or such shares or similar units of Common Stock or Other Consideration) for
which the Warrants shall be exercisable, including, without limitation, the
Warrant to vote, to receive dividends or other distributions, or to exercise any
preemptive Warrants, and shall not be entitled to receive any notice of any
proceedings of the Company,except as expressly provided herein.
Section 11. Antidilution Adjustments.
The Purchase Price and the number and kind of securities covered by
each Warrant and the number of Warrants outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a)(i) In the event that the Company shall at any time after the
Declaration Date (A) declare and pay a dividend on the Common
Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding
Common Stock into a smaller number of shares, or (D) issue, change, or
alter any of its shares of capital stock in a reclassification or
recapitalization (including any such reclassification in connection with
a consolidation or merger in which the Company is the continuing or
surviving Person), except as otherwise provided in this Section 11(a)
and Section 7(e) hereof, then, and in each such case, the Purchase Price
in effect at the time of the record date for such dividend or the
effective time of such subdivision,
<PAGE 114>
combination, reclassification or recapitalization, and the number
and kind of shares of capital stock issuable upon exercise
of the Warrants at such time, shall be proportionately
adjusted so that the holder of any Warrant exercised after such
time shall be entitled to receive the aggregate number and
kind of shares of Common Stock or other capital stock which, if such
Warrant had been exercised immediately prior to such time at the
Purchase Price then in effect and at a time when the transfer books
for the Common Stock (or other capital stock) of the Company were open,
such holder would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision, combination,
reclassification or recapitalization. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section 11(a)
(ii) hereof, the adjustment provided in this Section 11(a)(i) shall be
in addition to,and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
(ii) In the event
(A) any Person shall at any time after the Declaration
Date become an Acquiring Person; or
(B) any Acquiring Person or any Affiliate of any Acquiring
Person, at any time after the Declaration Date, directly or indirectly,
shall (1) merge into the Company or otherwise combine with the
Company, and the Company shall be the continuing or surviving
corporation of such merger or combination and the Class A Common Stock
of the Company shall remain outstanding and no shares thereof shall be
changed or otherwise transformed into stock or other securities of any
other Person or the Company or cash or any other property, (2) in one or
more transactions, transfer any assets to the Company in exchange (in
whole or in part) for shares of any class of its equity securities or
for securities exercisable for or convertible into shares of any such
class or otherwise obtain from the Company, with or without
consideration, any additional shares of any such class or securities
exercisable for or convertible into shares of any such class (other than
as part of a pro rata distribution to all holders of such class), (3)
sell, purchase, lease, exchange,mortgage, pledge, transfer or otherwise
dispose (in one transaction or a series of transactions) to,from or with
the Company or any of the Company's Subsidiaries, assets with an
aggregate fair market value in excess of 25% of the assets of the
Company and its Subsidiaries determined on a consolidated basis on terms
and conditions less favorable to the Company than the Company would
be able to obtain through arm's-length negotiation
<PAGE 115>
with an unaffiliated third party, (4) receive any compensation from
the Company or any of the Company's Subsidiaries other than
compensation as a director of the Company or for full-time
employment as a regular employee at rates in accordance with the
Company's (or such Subsidiary's) past practices, (5) receive the
benefit (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance provided
by the Company or any of its Subsidiaries on terms and conditions
less favorable to the Company (or such Subsidiary)than the Company
would be able to obtain through arm's-length negotiation with an
unaffiliated third party or (6) commence a tender or exchange offer
for securities of the Company; or
(C) during such time as there is an Acquiring Person at
any time after the Declaration Date, there shall be any
reclassification of securities (including any combination thereof),
or recapitalization of the Company, or any merger or consolidation of
the Company with any of its Subsidiaries (whether or not with or into
or otherwise involving an Acquiring Person or any Affiliate of an
Acquiring Person), or any repurchase by the Company or any of its
Subsidiaries of shares of the Common Stock of the Company, or any other
class or series of securities issued by the Company, which
reclassification, recapitalization, merger, consolidation or
repurchase is effected at a time when a majority of the Board
consists of persons who are the Acquiring Person or its Affiliates,
or nominees or designees of any thereof, which has the effect,
directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of any class of
equity securities or securities exercisable for or convertible
into any class of equity securities of the Company or any of its
Subsidiaries which is directly or indirectly owned by an Acquiring
Person or any Affiliate of an Acquiring Person,
then, in each such case, upon the Close of Business 10 Business Days after
the occurrence of such event, proper provision shall be made so that each
holder of a Warrant, except as provided in Section 7(e) hereof, shall
thereafter have the Warrant to receive, upon exercise thereof at the Purchase
Price in effect at the time of exercise in accordance with the terms of this
Agreement, in lieu of one share of Common Stock, such number of shares of
Common Stock of the Company as shall equal the result obtained by (x)
multiplying an amount equal to the then current Purchase Price by an
amount equal to the number of shares of Common Stock for which a
Warrant was or would have been exercisable immediately prior to the first
<PAGE 116>
occurrence of any such event whether or not such Warrant was then
exercisable, and (y) dividing that product by 1% of the Current Market Price
per share of the Common Stock of the Company (as defined in Section 11(d)
hereof) determined as of the date of such first occurrence.
(iii) In lieu of issuing whole or fractional shares of
Common Stock in accordance with Section 7(c) hereof, the Company shall (i) in
the event that the number of shares of Common Stock which are authorized by
the Company's charter but not outstanding or reserved for issuance for
purposes other than upon exercise of the Warrants are not sufficient to
permit the exercise in full of the Warrants in accordance with Section 7(c)
hereof, or (ii) if a majority of the Board then in office determines that it
would be appropriate and not contrary to the interests of the holders of
Warrants (other than any Acquiring Person or Disqualified Transferee or any
Affiliate of the Acquiring Person or Disqualified Transferee), (A) determine
an amount, if any, (the "Excess Amount") equal to the excess of (1) the value
(the "Current Value") of the whole or fractional shares of Common Stock
issuable upon the exercise of a Warrant in accordance with Section 7(c) hereof,
over (2) the Purchase Price, and (B) with respect to each Warrant,(subject to
Section 7(e) hereof) make adequate provision to substitute for such whole or
fractional shares of Common Stock, upon payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the Purchase Price, (3) Class B Common Stock
or other equity securities of the Company (including, without limitation, shares
or units of preferred stock which the Board has deemed in good faith to have the
same value as a share of Common Stock (such shares of equity securities
being referred to herein as " Common Stock Equivalents")), (4) debt securities
of the Company, (5) other assets, or (6) any combination of the foregoing (which
would include the additional consideration provided to any holder by reducing
the Purchase Price) having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the Board; provided, however,
subject to the provisions of Section 9(e), that if the Company shall not have
made adequate provision to deliver value pursuant to clause (B)above within
30 days following the Close of Business 10 Business Days after the first
occurrence of a Common Stock Event described in Section 11(a)(ii) hereof,
then the Company shall be obligated to deliver, upon the surrender for
exercise of a Warrant and without requiring payment of the Purchase Price,
whole or fractional shares of Common Stock (to the extent available) and then,
if necessary, cash, securities, and/or assets which in the aggregate are
equal to the Excess Amount. If the Board shall determine in good faith that
it is likely that sufficient additional shares of Common Stock or
<PAGE 117>
Common Stock Equivalents could be authorized for issuance upon exercise in
full of the Warrants, the 30-day period set forth above may be extended to the
extent necessary, but not more than 90 days following the Close of Business
10 Business Days after the first occurrence of such a Common Stock Event
(such 30 day period) as it may be extended to 90 days, is referred to herein
as the "Substitution Period"). To the extent that the Company determines that
some action is to be taken pursuant to the preceding provisions of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof,
that (except as to the form of consideration which shall be determined as
appropriate by a majority of the Board then in office) such action shall apply
uniformly to all outstanding Warrants which shall not have become null and
void, and (y) may suspend the exercisability of the Warrants until the
expiration of the Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of distribution to be
made pursuant to such provisions and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Warrants has been temporarily
suspended. The Company shall thereafter issue a public announcement at such
time as the suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of the Common Stock issuable upon exercise of a Warrant
in accordance with Section 7(c) hereof shall be the Current Market Price per
share of the Common Stock (as determined pursuant to Section 11(d) hereof) on
the Close of Business 10 Business Days after the date of the first occurrence
of such a Common Stock Event and the value of any Common Stock Equivalent
shall be deemed to be equal to the Current Market Price per share of the Common
Stock on such date.
(b) In the event the Company shall, after the Dividend Record Date, fix
a record date for the issuance of any options, warrants, or other Warrants to
all holders of Common Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase (i)
Common Stock or (ii) Common Stock Equivalents or (iii) securities
convertible into Common Stock or Common Stock Equivalents at a price per
share of Common Stock or Common Stock Equivalents (or having a conversion
price per share of Common Stock, if a security is convertible into Common
Stock or Common Stock Equivalents) less than the Current Market Price per
share of Common Stock (determined in accordance with Section 11(d) hereof)
determined as of such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock and/or Common Stock Equivalents which
the aggregate
<PAGE 118>
minimum offering price of the total number of shares of Common Stock and/or
Common Stock Equivalents so to be offered (and/or the aggregate minimum
conversion price of such convertible securities so to be offered) would
purchase at such Current Market Price, and the denominator of which shall be the
number of shares of Common Stock outstanding on such record date plus the
maximum number of additional shares of Common Stock and/or Common Stock
Equivalents to be offered for subscription or purchase (or the maximum
number of shares into which such convertible securities so to be offered are
convertible). In case such subscription price may be paid by delivery of
consideration part or all of which shall be in a form other than cash, for
purposes of this Section 11(b) the value of such consideration shall be the fair
market value thereof as determined in good faith by the Board (which
determination shall be described in an Officers' Certificate filed with the
Warrants Agent). Shares of Common Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such options, warrants or other Warrants
are not so issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed (subject,
however, to such other adjustments as are provided herein).
(c) In the event that the Company shall, after the Dividend Record Date,
fix a record date for the making of a distribution to all holders of Common
Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving or continuing
Person) of evidences of indebtedness, cash (other than cash dividends paid out
of the earnings or retained earnings of the Company and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied), other property (other than a
dividend payable in a number of shares of Common Stock, but including
any dividend payable in capital stock other than Common Stock), or
subscription Warrants or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, of which the numerator shall be (i) the Current
Market Price per share of Common Stock (as defined in Section 11(d) hereof)
determined as of such record date, less (ii) the sum of (A) that portion
of cash plus (B) the fair market value, as determined in good faith by the Board
(which determination shall be described in an Officers' Certificate filed with
the Warrants Agent) of that portion of such evidences of indebtedness, such
other property, and/or such subscription Warrants or warrants applicable to
one share of Common Stock and of which the denominator shall be such Current
Market Price per share of the Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
<PAGE 119>
been fixed (subject, however, to such other adjustments as are provided herein).
(d) For purposes of any computation pursuant to Section 11(a)(iii)
hereof, the "Current Market Price" per share (or unit) of any security on any
date shall be deemed to be the average of the daily Closing Price of such
security for the 10 consecutive Trading Days immediately after such date, and
for the purpose of any other computation hereunder, the "Current Market Price"
per share (or unit) of any security on any date shall be deemed to be the
average of the daily Closing Price of such security for the 20 consecutive
Trading Days immediately prior to such date; provided, however, that in the
event that the Current Market Price per share of such security is determined
during a period following the announcement by the issuer of such security of (i)
a dividend or distribution on such security payable in shares (or units) of such
security or securities convertible into shares (or units) of such security, or
(ii) any subdivision, combination or reclassification of such security, and
prior to the expiration of such 10 Trading Days or 20 Trading Days after (A) the
ex-dividend date for such dividend or distribution, or (B) the record date for
such subdivision, combination or reclassification, as the case may be, then, and
in each such case, the "Current Market Price" shall be the Closing Price of such
security on the last day of such respective 10 Trading Day or 20 Trading Day
period. For purposes of this Agreement, the "Closing Price" of any security on
any day shall be the last sale price, regular way, with respect to shares (or
units) of such security, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, with respect to such
security, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on
the New York Stock Exchange; or, if such security is not listed or admitted
to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which such security is listed or
admitted to trading; or, if such security is not so listed or admitted to
trading, the last quoted sale price with respect to shares (or units) of such
security, or, if not so quoted, as the average of the high bid and low asked
prices in the over-the-counter market with respect to shares (or units) of such
security, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other similar system then in use; or, if on
any such date such security is not quoted by any such organization, the average
of the closing bid and asked prices with respect to shares (or units) of such
security, as furnished by a professional market maker making a market in such
security selected by the Board; or, if no such market maker is available, the
fair market value of shares (or units) of such security as of such day as
determined in good faith by the Board (which determination shall be described in
an Officers' Certificate filed with the Warrants Agent).
(e) No adjustment in the Purchase Price shall be required unless
adjustment would require an increase or decrease of at least 1% in such price;
<PAGE 120>
provided, however, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share (or similar
unit) of Common Stock or other securities. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the date of the
transaction which mandates the adjustment or (ii) the Expiration Date. Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those
required by this Section 11, as it in its discretion shall determine to be
advisable in order that any dividends, subdivision of shares, distribution of
Warrants to purchase shares of beneficial interest or other stock or securities,
or distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
(f) In the event that at any time, as a result of an adjustment made in
respect of a Common Stock Event, the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of Common Stock, thereafter the number of such
other shares so receivable upon exercise of any Warrant and the Purchase
Price thereof shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
such other shares contained in Sections 11(a), (b), (c), (e), (g), (h), (i),
(j), (k), (m) and (p) hereof, and the provisions of Sections 7, 9, 10, 11(d), 13
and 14 hereof with respect to the shares of Common Stock shall apply on like
terms to any such other shares.
(g) All Warrants originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the
Warrant to purchase, at the adjusted Purchase Price, the number of shares
of Common Stock purchasable from time to time hereunder upon exercise of the
Warrants represented thereby, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i) hereof, upon each adjustment of the Purchase Price as a result of
the calculations made pursuant to Sections 11(b) and 11(c) hereof, each
Warrant outstanding immediately prior to the making of such adjustment shall
thereafter evidence the Warrant to purchase, at the adjusted Purchase Price,
that number of shares of Common Stock (calculated to the nearest
ten-thousandth of a share) obtained by (i) multiplying (x) the number of shares
of Common Stock covered by a Warrant immediately prior to this adjustment,
by (y) the Purchase Price in effect immediately prior to such adjustment of
the Purchase Price, and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase
<PAGE 121>
Price.
(i) Assuming that no other adjustment pursuant to this Section 11 has
been made, the Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Warrants in substitution for any
adjustment in the number of shares of Common Stock purchasable upon the
exercise of a Warrant. Each of the Warrants outstanding after such
adjustment of the number of Warrants shall be exercisable for the number
of shares of Common Stock for which a Warrant was exercisable immediately
prior to such adjustment. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to such adjustment of the Purchase Price by
the Purchase Price in effect immediately after such adjustment of the
Purchase Price. The Company shall make a public announcement of its election
to adjust the number of Warrants, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Warrant Certificates have been issued,
shall be at least 10 days later than the date of the public announcement. If
Warrant Certificates have been issued, upon each adjustment of the number
of Warrants pursuant to this Section 11(i) the Company shall, as promptly
as practicable, cause to be distributed to holders of record of Warrants
Certificates on such record date Warrant Certificates evidencing, subject
to Section 14 hereof, the additional Warrants to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Warrant Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if required by the Company,
new Warrant Certificates evidencing all the Warrants to which such holders
shall be entitled after such adjustment. Warrant Certificates so to be
distributed shall be issued, executed, and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the holders of record of
Warrant Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of whole or fractional shares of Common Stock issuable upon
exercise of such Warrants, the Warrant Certificates theretofore and
thereafter issued may continue to express the Purchase Price per share and the
number of shares of Common Stock which were expressed in the initial Warrant
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, of the number of shares of
<PAGE 122>
Common Stock issuable upon exercise of the Warrants, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue such number of fully
paid and nonassessable shares of Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Warrant exercised after such record
date of the number of shares of Common Stock or other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of shares of Common Stock or other capital stock or securities of
the Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's Warrant to receive such additional securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it, by means of a resolution of the Board acting in good faith,
shall determine to be advisable in order that any consolidation or subdivision
of the Common Stock, issuance wholly for cash of any Common Stock at less
than the Current Market Price thereof, issuance wholly for cash of Common
Stock (or other securities which by their terms are convertible into or
exchangeable for Common Stock), dividends payable in shares of Common
Stock or other capital stock or shares of beneficial interest, or issuance of
Warrants, options, or warrants referred to hereinabove in this Section 11,
hereafter made or declared by the Company to the holders of its Common Stock,
shall not be taxable to such holders.
(n) The Company covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11(o) hereof), or (iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction or a series of related transactions, more than 25% of (A) the assets
(taken at net asset value as stated on the books of the Company and determined
on a consolidated basis in accordance with generally accepted accounting
principles consistently applied) or (B) the earning power of the Company and
its Subsidiaries (determined on a consolidated basis in accordance with
generally accepted accounting principles consistently applied) to any other
Person or Persons (other than the Company or any of its Subsidiaries in one or
more transactions
<PAGE 123>
each of which complies with Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale, there are
any Warrants, warrants or other instruments or securities outstanding or
agreements (whether or not in writing) in effect that would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the
Warrants or (y) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the stockholders of such other Person shall
have received a distribution of Warrants previously owned by such Person or any
of its Affiliates.
(o) The Company covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 23 or 27 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Warrants.
(p) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the Dividend Declaration Date and
prior to the Distribution Date (i) declare or pay a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, or (ii) effect a
subdivision, combination or consolidation of the outstanding Class A Common
Stock (by reclassification or otherwise than by payment of dividends in
shares of Common Stock) into a greater or smaller number of shares, then
in any such case, (i) the number of shares of Common Stock purchasable
after such event upon proper exercise of each Warrant shall be determined
by multiplying the number of shares of Common Stock so purchasable
immediately prior to such event by a fraction the numerator of which shall be
the total number of shares of Common Stock outstanding immediately prior to
the occurrence of the event and the denominator of which shall be the total
number of shares of Common Stock outstanding immediately following the
occurrence of such event; and (ii) each share of Common Stock outstanding
immediately after such event shall have issued with respect to it that number
of Warrants which each share of Common Stock outstanding immediately prior
to such event had issued with respect to it. The adjustments provided for in
this Section 11(p) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation is
effected.
Section 12. Certificate of Adjustments.
Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Company shall (a) promptly prepare an Officers' Certificate setting forth
such adjustment, including any adjustment in Purchase Price, the number of
shares or Other Consideration payable, and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Warrants Agent and
with the transfer agent for the Common Stock a copy of such Officers'
Certificate, and (c) mail a brief summary thereof to each registered
<PAGE 124>
holder of a Warrant Certificate in accordance with Section 26 hereof. The
Warrants Agent shall be fully protected in relying on any such Officers'
Certificate and on any adjustment therein contained, and shall not be deemed
to have knowledge of any such adjustment unless and until it shall have received
such an Officers' Certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
In the event that, following the Stock Acquisition Date, directly or
indirectly, (a) the Company shall consolidate with, or merge with and into, any
other Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(o) hereof) and the Company shall not be the continuing
or surviving Person of such consolidation or merger, (b) any Person (other than
a Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof) shall consolidate with, or merge with and into, the Company, the Company
shall be the continuing or surviving Person of such consolidation or merger and,
in connection with such consolidation or merger, all or part of the Common Stock
of the Company shall be changed or otherwise transformed into other stock or
other securities of any other Person or the Company or cash or any other
property, or (c) the Company shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, more than 25% of (A) the assets (taken at net
asset value as stated on the books of the Company and determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied) or (B) the earning power of the Company and its
Subsidiaries (determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied) to any Person (other than
the Company or any Subsidiary of the Company in one or more transactions each of
which complies with Section 11(o) hereof) then, from and after such event,
proper provision shall be made so that (i) each holder of a Warrant,
except as provided in Section 7(e) hereof, shall thereafter have the Warrant to
receive, upon the exercise thereof at the Purchase Price in effect at the time
of such exercise in accordance with the terms of this Agreement, such number of
whole or fractional shares of validly authorized and issued, fully paid,
non-assessable, and freely tradeable Common Stock of such other Person (or in
the case of a transaction or series of transactions described in clause (c)
above, the Person receiving the greatest amount of the assets or earning power
of the Company, or if the Common Stock of such other Person is not and has not
been continuously registered under Section 12 of the Exchange Act for the
preceding 12-month period and such Person is a direct or indirect Subsidiary of
another Person, that other Person, or if such other Person is a direct or
indirect Subsidiary of more than one other Person, the Common Stock of two or
more of which are and have been so registered, such other Person whose
outstanding Common Stock has the greatest aggregate value), free and clear of
any liens, encumbrances, Warrants of first refusal, or other adverse claims, as
<PAGE 125>
shall be equal to the result obtained by (x) multiplying the Purchase Price in
effect immediately prior to the first occurrence of any Common Stock Event
described in this Section 13 by the number of shares of Common Stock for
which a Warrant is exercisable immediately prior to such first occurrence
(and without taking into account any prior adjustment made pursuant to 11(a)
(ii)) and (y) dividing that product by 1% of the Current Market Price per
share (as defined in Section 11(d) hereof) of the Common Stock of such other
Person determined as of the date of consummation of such consolidation,
merger, sale, or transfer; (ii) the issuer of such Common Stock shall thereafter
be liable for, and shall assume, by virtue of such consolidation, merger,
sale, or transfer, all the obligations and duties of the Company pursuant to
this Agreement; (iii) the term "Company" shall thereafter be deemed, for all
purposes of this Agreement, to refer to such issuer, it being specifically
intended that the provisions of Section 11 hereof (other than Section 11(a)(ii)
hereof) shall apply only to such issuer following the first occurrence of a
Common Stock Event described in this Section 13; (iv) such issuer shall take
such steps (including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with such consummation as
may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the whole or
fractional shares of its Common Stock thereafter deliverable upon the exercise
of the Warrants; and (v) the provisions of Section 11(a)(ii) hereof shall be of
no effect following the first occurrence of any Common Stock Event described
in clauses (a), (b) or (c) of this Section 13. The Company shall not consummate
any such consolidation, merger, sale or transfer unless (i) such issuer shall
have a sufficient number of authorized shares of its Common Stock which have not
been issued or reserved for issuance as will permit the exercise in full of the
Warrants in accordance with this Section 13, and (ii) prior thereto the Company
and such issuer shall have executed and delivered to the Warrants Agent a
supplemental agreement so providing and further providing that as soon as
practicable after the date of any Common Stock Event described above in this
Section 13 such issuer shall (A) prepare and file a registration statement under
the Act, with respect to the Warrants and the securities purchasable upon
exercise of the Warrants on an appropriate form, and will use its best efforts
to cause such registration statement to (I) become effective as soon as
practicable after such filing and (II) remain effective (with a prospectus at
all times meeting the requirements of the Act) until the Expiration Date, and
(B) will deliver to holders of the Warrants historical financial statements of
such issuer and each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange Act. Furthermore,
in case the Person which is to be party to a transaction referred to in this
Section 13 has any provision in any of its authorized securities or in its
charter or by-laws or other agreement or instrument governing its affairs, which
provision would have the effect of causing such Person to issue, in connection
with, or as a consequence of, the consummation of a Common Stock Event described
in clauses (a), (b), or (c) of this Section 13, whole or fractional shares of
Common Stock of such Person at less than the then Current Market Price per share
thereof (as defined in Section 11(d) hereof), or to issue securities exercisable
for, or convertible into, Common Stock of such Person at
<PAGE 126>
less than such then Current Market Price, then, in such event, the Company
hereby agrees with each holder of the Warrants that it shall not consummate
any such transaction unless prior thereto the Company and such Person shall
have executed and delivered to the Warrants Agent a supplemental agreement
providing that such provision in question shall have been canceled, waived,
or amended so that it will have no effect in connection with, or as a
consequence of, the consummation of the proposed transaction. The provisions
of this Section 13 shall similarly apply to successive mergers or consolidations
or sales or other transfers. In the event that a Common Stock Event described
in this Section 13 shall occur at any time after the occurrence of a Common
Stock Event described in Section 11(a)(ii) hereof, the Warrants which have not
theretofore been exercised shall thereafter become exercisable, except as
provided in Section 7(e) hereof, in the manner described in this Section 13.
Section 14. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants
or to distribute fractions of Warrants, except prior to the Distribution
Date as provided in Section 11(i) hereof, or to distribute Warrant
Certificates which evidence fractional Warrants. In lieu of issuing such
fractional Warrants, at the election of the Company, there shall be paid to
the registered holders of the Warrants with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole Warrant. For
the purposes of this Section 14(a), the current market value of a whole
Warrant shall be the Closing Price of the Warrants for the Trading Day
immediately prior to the date on which such fractional Warrants would have
been otherwise issuable.
(b) The Company shall not be required to issue fractions of shares of
its capital stock upon exercise of the Warrants or to distribute
certificates which evidence fractional shares. In lieu of fractional shares, at
the election of the Company, there shall be paid to the registered holders of
Warrants at the time such Warrants are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of a
share of such capital stock. For purposes of this Section 14(b), the current
market value of a share of such capital stock shall be the Closing Price of such
capital stock for the Trading Day immediately prior to the date of such
exercise.
(c) The holder of a Warrant, by the acceptance of the Warrant,
expressly waives such holder's Warrant to receive any fractional Warrants or
(except as provided in Section 14(b) hereof) any fractional share upon
exercise of a Warrant.
<PAGE 127>
Section 15. Warrants of Action.
Excepting the Warrants of action given the Warrants Agent under
Section 18 hereof and except as set forth in Section 20(l) hereof, all
Warrants of action in respect of this Agreement are vested in the registered
holder of each Warrant; and any registered holder of any Warrant, without the
consent of the Warrants Agent or of the holder of any other Warrant, may,
in its own behalf and for its own benefit, enforce, and may institute and
maintain any suit, action, or proceeding against the Company to enforce, or
otherwise act in respect of, such registered holder's Warrant to exercise the
Warrants evidenced by such Warrant in the manner provided in such Warrant
Certificate and in this Agreement, and the Company hereby agrees to
reimburse such registered holder for all expenses (including reasonable
attorneys' fees) incurred by such registered holder in connection therewith.
Without limiting the foregoing or any remedies available to the holders of
Warrants, it is specifically acknowledged that the holders of Warrants
would not have an adequate remedy at law for any breach of the obligations
hereunder, and shall be entitled to injunctive relief against actual or
threatened violations of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Warrants Holders.
Every holder of a Warrant by accepting the same consents and agrees
with the Company and the Warrants Agent and with every other holder of a
Warrant that:
(a) prior to the Distribution Date, the Warrants will be
transferable only in connection with the transfer of Common Stock;
(b) from and after the Distribution Date, the Warrants Certificates
are transferable only on the registry books of the Warrants Agent if
surrendered at the principal office of the Warrants Agent, duly endorsed or
accompanied by a proper instrument of transfer with a form of assignment and
certificate set forth on the reverse side thereof duly executed, accompanied by
a signature guarantee and such other documentation as the Warrants Agent may
reasonably request;
(c) subject to Sections 6(a) and 7(f) hereof, the Company and the
Warrants Agent may deem and treat the person in whose name a Warrant
Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of
the Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Certificate or, prior to the Distribution Date,
the associated Common Stock certificate, made by anyone other than the
Company or the Warrants Agent) for all purposes whatsoever, and neither the
Company nor the Warrants Agent shall be affected by any notice to the contrary;
<PAGE 128>
and
(d) notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Warrants Agent shall have any liability to any holder of a
Warrant or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company agrees to use its
best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Warrant Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Warrant Certificate shall be entitled
to vote, receive dividends, or otherwise be deemed for any purpose the holder of
any securities of the Company which may be issuable on the exercise of the Class
A Warrants represented thereby, nor shall anything contained herein or in any
Warrant Certificate be construed to confer upon the holder of any Warrant
Certificate, as such, any of the Warrants of a stockholder of the Company
or any Warrant to vote in the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any
action by the Company, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive
dividends or preemptive Warrants, or otherwise, until the time specified in
Section 10 hereof.
Section 18. Concerning the Warrants Agent.
The Company agrees to pay to the Warrants Agent such reasonable
compensation as shall be agreed to in writing between the Company and the
Warrants Agent for all services rendered by it hereunder and, from time
to time, on demand of the Warrants Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify the
Warrants Agent for, and to hold it harmless against, any and all loss,
liability, damages, claims or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Warrants Agent, for anything done
or omitted by the Warrants Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses (including
reasonable attorneys' fees and expenses) of defending against any claim of
liability for any of the foregoing.
The Warrants Agent shall be protected and shall incur no liability
for or
<PAGE 129>
in respect of any action taken, suffered, or omitted by it in connection with
its administration of this Agreement in reliance upon any Warrants
Certificate or certificate for any number of shares of Common Stock or
for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, instruction,
direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed and executed by the proper
Person or Persons, and verified or acknowledged as required by this Agreement.
Section 19. Merger or Consolidation or Change of Name of Warrants Agent.
Any corporation into which the Warrants Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrants Agent shall be a party, or any corporation
succeeding to the shareholder services business of the Warrants Agent, shall
be the successor to the Warrants Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation would be eligible
for appointment as a successor Warrants Agent under the provisions
of Section 21 hereof. In case at the time such successor Warrants Agent shall
succeed to the agency created by this Agreement and any of the Warrant
Certificates shall have been countersigned but not delivered, any such
successor Warrants Agent may adopt the countersignature of the predecessor
Warrants Agent and deliver such Warrant Certificates so countersigned; and in
case at that time any of the Warrant Certificates shall not have been
countersigned, any successor Warrants Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrants Agent or in the name
of the successor Warrants Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates and
in this Agreement.
In case at any time the name of the Warrants Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrants Agent may adopt the countersignature under its
prior name and deliver such Warrant Certificates so countersigned; and in
case at that time any of the Warrant Certificates shall not have been
countersigned, the Warrants Agent may countersign such Warrant Certificates
either in its prior name or in its changed name; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
Section 20. Duties of Warrants Agent.
The Warrants Agent undertakes only the duties and obligations expressly
imposed upon it by this Agreement and no implied duties or obligations shall be
read into this Agreement against the Warrants Agent. The Warrants Agent shall
perform its duties and obligations hereunder upon the following terms and
<PAGE 130>
conditions:
(a) The Warrants Agent may consult with legal counsel of its selection
(who may be legal counsel to the Company), and the opinion of such counsel shall
be full and complete authorization and protection to the Warrants Agent as to
any action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement the
Warrants Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person) be proved
or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate (an "Officers' Certificate") signed by a
person believed by the Warrants Agent to be the Chairman of the Board, the
President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company and
delivered to the Warrants Agent; and such Officers' Certificate shall be full
authorization to the Warrants Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
Officers' Certificate.
(c) The Warrants Agent shall be liable hereunder only for its own gross
negligence, bad faith, or willful misconduct.
(d) The Warrants Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Warrant Certificates (except its countersignature on such Warrants
Certificate) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Warrants Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Warrants Agent) or in respect of
the validity or execution of any Warrant Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrants Certificate; nor shall it be responsible for any adjustment
required under the provisions of Sections 11 or 13 hereof or be responsible for
the manner, method or amount of any such adjustment or procedures or the
ascertaining of the existence of facts that would require any such adjustment or
procedure (except with respect to the exercise of Warrants evidenced by
Warrants Certificates after receipt of a certificate delivered pursuant
to Section 12 hereof, describing any such adjustment or procedures); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any Common Stock or other
securities to be issued pursuant to this Agreement or any Warrant
Certificate or as to
<PAGE 131>
whether any shares of Common Stock, or any shares or similar units of
other securities, will, when issued, be validly authorized and issued, fully
paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver, or cause to be performed, executed, acknowledged and delivered, all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrants Agent for the carrying out or performing by the
Warrants Agent of the provisions of this Agreement.
(g) The Warrants Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person believed by the Warrants Agent to be the Chairman of the Board, the
President or any Vice President or the Secretary or any Assistant Secretary or
the Treasurer or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer. Any application by the
Warrants Agent for written instructions from the Company may, at the option
of the Warrants Agent, set forth in writing any action proposed to be
taken or omitted by the Warrants Agent with respect to its duties or obligations
under this Agreement and the date on and/or after which such action shall be
taken or omitted and the Warrants Agent shall not be liable for any action taken
or omitted in accordance with a proposal included in any such application on
or after the date specified therein (which date shall not be less than three
Business Days after the date any such officer actually receives such
application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking or omitting any such action, the
Warrants Agent has received written instructions from the Company in response
to such application specifying the action to be taken or omitted.
(h) The Warrants Agent and any stockholder, director, officer, or
employee of the Warrants Agent may buy, sell, or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not Warrants Agent under this Agreement. Nothing herein shall preclude the
Warrants Agent from acting in any other capacity for the Company or for any
other entity.
(i) The Warrants Agent may execute and exercise any of the Warrants or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Warrants Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however, that reasonable care
was exercised in the selection and continued employment thereof.
<PAGE 132>
(j) No provision of this Agreement shall require the Warrants Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its Warrants if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Warrant Certificate surrendered to
the Warrants Agent for exercise or transfer, the certification appearing on the
reverse side thereof following the form of election to purchase has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Warrants Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.
(l) The provisions of this Section 20 are solely for the benefit of the
Warrants Agent or the Company and any failure or omission under this Section 20
shall not affect the Warrants of the Company under this Agreement and neither
the Warrants Agent nor the Company shall have any liability to any holder of
Warrants or other Person on account of such failure or omission.
Section 21. Change of Warrants Agent.
The Warrants Agent or any successor Warrants Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to the transfer agent of the Common Stock by
registered or certified mail, and, subsequent to the Distribution Date, to the
holders of the Warrant Certificates by first-class mail. The Company may
remove the Warrants Agent or any successor Warrants Agent upon 30 days'
notice in writing, mailed to the Warrants Agent, to the transfer agent of the
Common Stock by registered or certified mail, and, subsequent to the
Distribution Date, to the holders of the Warrant Certificates by first-class
mail. If the Warrants Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the
Warrants Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrants Agent or by the holder of a Warrant Certificate (who
shall, with such notice, submit such holder's Warrant Certificate for
inspection by the Company), then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the
appointment of a new Warrants Agent. Any successor Warrants Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States, the State of New York or
the State of Florida (or of any other State of the United States so long as such
corporation is authorized to do business as a banking institution in the
State of New York or the State of Florida, in good standing, having an office
designated for such purpose in the State of New York or the State of Florida,
which is authorized under such laws to exercise
<PAGE 133>
corporate trust and/or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Warrants Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Warrants Agent shall be vested
with the same powers, Warrants, duties and responsibilities as if it had been
originally named as Warrants Agent without further act or deed; but the
predecessor Warrants Agent shall deliver and transfer to the successor Warrants
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose; and,
except as the context herein otherwise requires, such successor Warrants Agent
shall be deemed to be the "Warrants Agent" for all purposes of this
Agreement. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Warrants Agent
and the transfer agent of the Common Stock, and mail a notice thereof in
writing to the registered holders of the Warrant Certificates. Failure to
give any notice provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the resignation or
removal of the Warrants Agent or the appointment of the successor Warrants
Agent, as the case may be.
Section 22. Issuance of New Warrant Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Warrants to the contrary, the Company may, at its option, issue new Warrant
Certificates evidencing Warrants in such form as may be approved by the Board
to reflect any adjustment or change in the Purchase Price per share and the
number or kind or class of shares of stock or other securities or property
purchasable under the Warrant Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or
sale by the Company of shares of Common Stock following the Distribution Date
and prior to the redemption or expiration of the Warrants, the Company (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board, issue Warrant Certificates representing the appropriate number
of Warrants in connection with such issuance or sale; provided, however, that
(i)no such Warrants evidenced by a Warrant Certificate shall be issued if, and
to the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or the Person to whom such Warrants would be issued, and (ii) no
such Warrant Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption and Termination.
The Company, may, at its option, upon the affirmative vote or written
consent of not less than a majority of the Board then in office, at any time
prior to the earlier of (i) the Distribution Date or (ii) the Close of Business
<PAGE 134>
on the Expiration Date, redeem all (but not less than all) of the then
outstanding Warrants at a redemption price of $.01 per Warrant,
appropriately adjusted to reflect any stock split, stock dividend, combination
of shares, or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price"). The
Company may, at its option, pay the Redemption Price in cash, Common Stock
(based on the Current Market Price of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by the
majority of the Board then in office. Immediately upon the taking of such action
ordering the redemption of all of the Warrants, evidence of which shall
have been filed with the Warrants Agent, and without any further action and
without any notice, the Warrant to exercise the Warrants so redeemed will
terminate and the only Warrant thereafter of the holders of such Warrants so
redeemed shall be to receive the Redemption Price (without the payment of any
interest thereon). Within 10 days after such action ordering the redemption of
all of the Warrants, the Company shall give notice of such redemption to
the holders of the then outstanding Warrants by mailing such notice to all
such holders at their last addresses as they appear upon the registry books of
the Warrants Agent or, prior to the Distribution Date, on the registry books
of the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall state the method
by which the payment of the Redemption Price shall be made.
Section 24. Exchange.
(a) The Board, by majority vote of the Directors then in office, may, at
its option, at any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Warrants for shares of
Common Stock at an exchange ratio of one share of Common Stock per Warrant,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio, as the same
may be adjusted from time to time, being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board shall not be
empowered to effect such exchange at any time after any Person (other than
(i) the Company, (ii) any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any such Subsidiary, or (iv) any entity holding Common
Stock for or pursuant to the terms of any such plan), together with all
Affiliates of such Person, becomes the Beneficial Owner of 50% or more of the
Common Stock then outstanding.
(b) Immediately upon the action of the Board ordering the exchange of
any Warrants pursuant to subsection (a) of this Section 24 and without any
further action and without any notice, the Warrant to exercise such Warrants
shall terminate and the only Warrant thereafter of a holder of such Warrants
shall be to receive that number of shares of Common Stock equal to the
<PAGE 135>
number of such Warrants held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such Warrants at their
last addresses as they appear upon the registry books of the Warrants Agent.
Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of
exchange shall state the method by which the exchange of the Common Stock for
Warrants shall be effected and, in the event of any partial exchange, the
number of Warrants which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Warrants (other than Warrants
which have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Warrants.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute shares of Common Stock Equivalents for shares of
Common Stock exchangeable for Warrants.
(d) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit any
exchange of Warrants as contemplated in accordance with this Section 24,
the Company shall take all such action as may be necessary to authorize
additional Common Stock for issuance upon exchange of the Warrants.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares
of Common Stock. In lieu of such fractional shares of Common Stock, the
Company shall pay to each registered holder of a Warrant Certificate with
regard to which a fractional share of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole share of Common Stock. For the purposes of this paragraph
(e), the current market value of a whole share of Common Stock shall be the
Closing Price of a share of Common Stock (as determined pursuant to Section
11(d) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
In case the Company shall after the Distribution Date propose (a) to pay
any dividend payable in stock of any class to the holders of its Common
Stock or to make any other distribution to the holders of its Common
Stock (other than a cash dividend out of earnings or the retained earnings of
the Company), or (b) to offer to the holders of its Common Stock Warrants
or warrants to subscribe for or to purchase any additional shares of
<PAGE 136>
Common Stock or shares of stock of any other class or any other securities,
Warrants, or options, or (c) to effect any reclassification of the Common
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Common Stock), or (d) to effect any consolidation
or merger into or with, or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than 25% of (i) the
assets of the Company and its Subsidiaries (taken at net asset value as stated
on the books of the Company and determined on a consolidated basis in accordance
with generally accepted accounting principles consistently applied) or (ii) the
earning power of the Company and its Subsidiaries (determined on a
consolidated basis in accordance with generally accepted accounting
principles consistently applied) to any other Person or Persons, or (e) to
effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to the Warrants Agent and each holder of
a Warrant, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, distribution of Warrants or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed, and
such notice shall be so given in the case of any action covered by clause (a)
or (b) above at least twenty days prior to the record date for determining
holders of the Common Stock for purposes of such action, and in the case of
any such other action, at least twenty days prior to the date of the taking
of such proposed action or the date of participation therein by the holders
of Common Stock whichever shall be the earlier. The failure to give notice
required by this Section 25 or any defect therein shall not affect the
legality or validity of the action taken by the Company or the vote upon any
such action.
In case any Common Stock Event described in Section 11(a)(ii) hereof
shall occur, then, in any such case, the Company shall as soon as practicable
thereafter give to the Warrants Agent and each holder of a Warrants
Certificate, in accordance with Section 26 hereof, a notice of the occurrence of
such Common Stock Event, which shall specify such event and the consequences of
the event to holders of Warrants under Section 11(a)(ii) hereof.
Notwithstanding anything in this Agreement to the contrary, prior to the
Distribution Date a filing by the Company with the Securities and Exchange
Commission shall constitute sufficient notice to the holders of securities of
the Company, including the Warrants, for purposes of this Agreement and no
other notice need be given.
Section 26. Notices.
Notices or demands authorized by this Agreement to be given or made by
the Warrants Agent or by the holder of any Warrant Certificate to the
<PAGE 137>
Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Warrants Agent) as follows:
Moore Solutions, Inc.
10570 SOUTH FEDERAL HIGHWAY
PORT ST. LUCIE, FL 34952
Copy to:
Joel McTague
Hackney Miller, P.A.
4400 PGA Boulevard, Suite 505
Palm Beach Gardens, FL 33410
Subject to the provisions of Sections 19 and 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the Company or by
the holder of any Warrant Certificate to or on the Warrants Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
North American Transfer Company
(Moore Solutions, Inc. Warrants Agreement)
Notices or demands authorized by this Agreement to be given or made by
the Company or the Warrants Agent to the holder of any Warrant Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown on the
registry books of the Company.
Section 27. Supplements and Amendments.
Prior to the Distribution Date, the Board, upon the vote of a majority
of the Board then in office, may from time to time supplement or amend this
Agreement without the approval of any holders of the Warrants. From and
after the Distribution Date, the Board may, upon the vote of a majority of the
Board then in office, from time to time amend this Agreement without the
approval of any holders of the Warrants in order (i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii) to change
any time period governing redemption of the Warrants or any other time
period or (iv) to make any other provisions in regard to matters or questions
arising hereunder which the Board, upon the vote of a majority of the Board
then in office, may deem necessary or desirable and which shall not
adversely affect the interests of the holders of the Warrants (other than
<PAGE 138>
any Acquiring Person or Disqualified Transferee or any Affiliate of an Acquiring
Person or Disqualified Transferee). The Warrants Agent shall join with the
Company in the execution and delivery of any such supplement or amendment,
unless such supplement or amendment affects any of the Warrants, duties, or
obligations of the Warrants Agent hereunder, in which case the Warrants Agent
may, but shall not be required to, join in such execution and delivery.
Section 28. Successors.
All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Warrants Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board; etc.
The Board shall have the exclusive power and authority to administer
this Agreement and to exercise all Warrants and powers specifically granted
to the Board, or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the Warrant and
power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below all omissions with respect to the
foregoing) which are done or made by the Board in good faith and with the
concurrence of a majority of the Board then in office shall (x) be final,
conclusive and binding on the Company, the Warrants Agent, the holders of the
Warrants and all other parties and (y) not subject any Director to any
liability to the holders of the Warrants.
Section 30. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any Person other
than the Company, the Warrants Agent, and the registered holders of the
Warrants (and, prior to the Distribution Date, the associated shares of
Common Stock) any legal or equitable Warrant, remedy, or claim under this
Agreement or the Warrants; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrants Agent, and the registered holders
of the Warrants (and, prior to the Distribution Date, the associated Class
A Common Stock).
Section 31. Severability.
The invalidity or unenforceability of any term or provision hereof shall
not affect the validity or enforceability of any other term or provision hereof.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or
<PAGE 139>
unenforceable and the Board determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect
the purpose or effect of this Agreement, the Warrant of redemption set forth
in Section 23 hereof shall be reinstated and shall not expire until the Close
of Business on the tenth day following the date of such determination by
the Board.
Section 32. Governing Law.
This Agreement and each Warrant Certificate issued hereunder shall
be deemed to be a contract made under the laws of the State of Florida and
for all purposes shall be governed by and construed in accordance with the laws
of said State applicable to contracts to be made and performed entirely within
said State.
Section 33. Counterparts.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
Section 34. Descriptive Headings.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and set their respective hands and seals, all as of the day and
year first above written.
Moore Solutions, Inc.
By: /s/ L. Jayne Moore
_______________________________
L. Jayne Moore
Title: President
Attest:
By: ______________________________
Title:
<PAGE 140>
North American Transfer Company
By: /s/ Mildred Rostolder
______________________________
Mildred Rostolder
Title:President
Attest:
By: _______________________________
Title:
<PAGE 141>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
Certificate No. W- _______ Warrants
NOT EXERCISABLE AFTER DECEMBER 30, 2009, OR EARLIER IF ORDER OF
REDEMPTION IS GIVEN. THE WARRANTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER WARRANT ON THE TERMS SET FORTH IN THE WARRANT
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, WARRANTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES AND ASSOCIATES) OF
AN ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN THE WARRANTS AGREEMENT)
AND ANY SUBSEQUENT HOLDER OF SUCH WARRANTS MAY BECOME NULL AND VOID. THE
WARRANTS SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD, BY A
HOLDER IN ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO
SUCH HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE WARRANTS IN SUCH
JURISDICTION SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE. [THE WARRANTS
REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES AND
ASSOCIATES) OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN THE WARRANTS
AGREEMENT). ACCORDINGLY, THIS WARRANT CERTIFICATE AND THE WARRANTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF THE WARRANT AGREEMENT.]1
Warrant Certificate
Moore Solutions, Inc.
This certifies that ____________________________ , or registered
assigns, is the registered owner of the number of Warrants set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions, and conditions of the Warrants Agreement dated as of
November 30, 1999, (the " Warrants Agreement") between Moore Solutions, Inc.
(the "Company"), and North American Transfer Company (the "Warrants Agent"),
to purchase from the Company at any time after the Distribution Date (as such
term is defined in the Warrants Agreement) and prior to 5:00 p.m. (West Palm
Beach, Florida time) on December 30, 2009, (the "Expiration Date") at the office
of the Warrants Agent designated for such purpose, or its successors as
Warrants Agent, one share of Common Stock, with a par value of $.01 per share
(" Common Stock"), of the Company per each Warrant represented hereby, at a
purchase price of $.10 per share (the "Purchase Price") upon presentation and
surrender of this Warrant Certificate with
- ---------------------------------
1The portion of legend in brackets shall be inserted only if applicable.
<PAGE 142>
the Form of Election to Purchase set forth on the reverse side hereof and the
certificate contained therein duly completed and executed, accompanied by a
signature guarantee and such other documentation as the Warrants Agent may
reasonably request. The number of Warrants evidenced by this Warrant Certificate
(and the number of shares which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth above, are the number
and Purchase Price as of January 31, 2000, based on the shares of Common
Stock of the Company as constituted at such date.
As more fully set forth in the Warrants Agreement, upon the
occurrence of a Common Stock Event (as such term is defined in the Warrants
Agreement), if the Warrants evidenced by this Warrants Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate of an Acquiring
Person (as each such term is defined in the Warrants Agreement) or (ii) a
Disqualified Transferee (as defined in the Warrants Agreement), such Warrants
shall automatically become null and void and no holder hereof shall have any
Warrant with respect to such Warrants from and after the occurrence of such
Common Stock Event.
The Warrants evidenced by this Warrant Certificate shall not be
exercisable, and shall be void so long as held, by a holder in any
jurisdiction where the requisite qualification to the issuance to such holder,
or the exercise by such holder, of the Warrants in such jurisdiction shall
not have been obtained or be obtainable.
As provided in the Warrants Agreement, the Purchase Price, and the
number and type of securities which may be purchased upon the exercise of the
Warrants evidenced by this Warrant Certificate are subject to modification
and adjustment upon the happening of certain events.
In the circumstances described in Section 13 of the Warrants
Agreement, the securities issuable upon the exercise of the Warrants
evidenced hereby shall be the common stock or similar equity securities or
equity interests of an entity other than the Company.
This Warrant Certificate is subject to all of the terms, provisions,
and conditions of the Warrants Agreement, which terms, provisions, and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Warrants Agreement reference is hereby made for a full description
of the Warrants, limitations of Warrants, obligations, duties, and immunities
hereunder of the Warrants Agent, the Company, and the holders of the Warrant
Certificates, which limitations of Warrants include the temporary suspension
of the exercisability of such Warrants under the specific circumstances set
forth in the Warrants Agreement. Copies of the Warrants Agreement are on
file at the office of the Warrants Agent designated for such purpose and may be
obtained by the holder of any Warrants upon written request to the Warrants
Agent.
<PAGE 143>
This Warrant Certificate, with or without other Warrants
Certificates, upon surrender at the office of the Warrants Agent designated for
such purpose, accompanied by a signature guarantee and such other documentation
as the Warrants Agent designated for such purpose may reasonably request, may be
exchanged for another Warrant Certificate or Warrant Certificates of like
tenor and date evidencing Warrants entitling the holder to purchase a like
aggregate number of shares of Common Stock (or other consideration, as the
case may be) as the Warrants evidenced by the Warrant Certificate or Warrant
Certificates surrendered shall have entitled such holder to purchase. If this
Warrant Certificate shall be exercised in part, the holder shall be entitled
to receive, upon surrender hereof, another Warrant Certificate or Warrant
Certificates for the number of whole Warrants not exercised.
Subject to the provisions of the Warrants Agreement, the Warrants
evidenced by this Warrant Certificate may be redeemed by the Company by a
majority vote of the Board (as defined in the Warrants Agreement) then in
office at any time prior to the earlier of the Distribution Date or the
Expiration Date, at a redemption price of $.01 per Warrant (which amount is
subject to adjustment as provided in the Warrants Agreement). In addition,
in certain circumstances, the Warrants may be exchanged, in whole or in part,
for shares of Common Stock. Immediately upon the action of the Board
ordering the exchange of any Warrants and without any further action and
without any notice, the Warrant to exercise such Warrants will terminate and
the only Warrant thereafter of a holder of such Warrants will be to receive that
number of shares of Common Stock issuable upon the exchange.
The Company is not obligated to issue whole or fractional shares of
Common Stock (or other securities) upon the exercise of any Warrant or
Warrants evidenced hereby, but in lieu thereof a cash payment may be made at
the election of the Company, as provided in the Warrants Agreement.
No holder of this Warrant Certificate, as such, shall be entitled
to vote or receive dividends or be deemed for any purpose the holder of
Common Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the
Warrants Agreement or herein be construed to confer upon the holder hereof, as
such, any of the Warrants of a stockholder of the Company or any Warrant to
vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
action by the Company, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Warrants Agreement), or to
receive dividends or subscription Warrants, or otherwise, until the Warrant
evidenced by this Warrant Certificate shall have been exercised as provided
in the Warrants Agreement.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrants Agent.
<PAGE 144>
WITNESS the facsimile signature of the proper officers and the seal
of the Company. Dated as of January 1, 2000.
Moore Solutions,Inc.
By_________________________________
Title:
ATTEST:
_______________________________
Title:
Countersigned:
_______________________________
North American Transfer Company
By_____________________________
Authorized Signatory
Date of Countersignature:
<PAGE 145>
[Form of Reverse Side of Warrant Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate)
FOR VALUE RECEIVED ________________________ hereby sells, assigns and
transfers unto_______________________________________________________________
____________________________________
(Please print name and address of transferee)
_______________________________________________________________ whose social
security or tax identification number is:______________ the Warrants
evidenced by this Warrant Certificate, together with all Warrant, title and
interest herein, and does hereby irrevocably constitute and appoint
____________________ Attorney, to transfer the within Warrant Certificate on
the books of the within-named Company, with full power of substitution.
Dated: _________________________, ____.
_______________________________
Signature
Signature Guaranteed:*
- - --------
* Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantees medallion program) pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934.
<PAGE 146>
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Warrants evidenced by this Warrant Certificate [ ]
are [ ] are not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate of an
Acquiring Person (as each such term is defined in the Warrants Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Warrants evidenced by this Warrants
Certificate after the occurrence of a Common Stock Event from any Person who is,
was or subsequently became an Acquiring Person or an Affiliate of an Acquiring
Person.
Dated:____________________ ______________________________________
Signature
Signature Guaranteed:*
____________________________
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Warrants Certificate
in every particular, without alteration or enlargement or any change whatsoever.
<PAGE 147>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Warrant Certificate)
Moore Solutions, Inc.
The undersigned hereby irrevocably elects to exercise_________________
Warrants represented by this Warrant Certificate to purchase the number of
shares of Common Stock (or other securities) issuable upon the exercise of
such Warrants and requests that certificates for such shares be issued in
the name of:
Please insert social security
or other identifying number________________________________________
(Please print name and address)
_______________________________________________________________
If such number of Warrants shall not be all the Warrants evidenced
by this Warrant Certificate, a new Warrant Certificate for the
balance remaining of such Warrants shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number________________________________________
(Please print name and address)
_______________________________________________________________
Dated: _______________________, ____
_______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Class
A Warrant Certificate)
Signature Guaranteed:**
- - --------
** Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantee medallion program) pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934.
<PAGE 148>
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Warrants evidenced by this Warrant Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate of any such Acquiring Person
(as each such term is defined in the Warrants Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Warrants evidenced by this Warrants
Certificate after the occurrence of a Common Stock Event (as such term is
defined in the Warrants Agreement) from any Person who is, was, or
subsequently became an Acquiring Person or an Affiliate of an Acquiring Person.
Dated: _________________, ____ _________________________
Signature
Signature Guaranteed:***
__________________________
- - --------
*** Signature must be guaranteed by an "Eligible Guarantor
Institution" (with membership in an approved signature guarantee medallion
program) pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934.
<PAGE 149>
EXHIBIT B
Moore Solutions, Inc.
SUMMARY OF PURCHASE WARRANTS
On January 1, 2000, the Board of Directors (the "Board") of Moore
Solutions, Inc. (the "Company") declared a dividend of one purchase Warrant
(a "Warrant") for every outstanding share of the Company's Common Stock, $.10
par value per share (the " Common Stock"). The Warrants will be distributed
on January 31, 2000, to stockholders of record as of the close of business on
January 31, 2000, (the "Dividend Record Date"). The terms of the Warrants are
set forth in a Warrants Agreement dated as of January 1, 2000, (the "Warrants
Agreement") between the Company and American Stock Transfer Trust Company
(the "Warrants Agent"). The Warrants Agreement provides for the issuance of
one Warrant for every share of Common Stock issued and outstanding on the
Dividend Record Date and for each share of Common Stock which is issued or sold
after that date and prior to the "Distribution Date" (as defined below).
Each Warrant entitles the holder to purchase from the Company one
share of Common Stock at a price of $.10 per share, subject to adjustment.
The Warrants will expire on December 30, 2009 (the "Expiration Date"), or
upon the earlier redemption of the Warrants, and are not exercisable until the
Distribution Date.
No separate certificates representing the Warrants will be issued
at the present time. Until the Distribution Date (or earlier redemption or
expiration of the Warrants), (i) the Warrants will be evidenced by the
Common Stock certificates and will be transferred with and only with
such Common Stock certificates, (ii) new Common Stock certificates issued
after the Dividend Record Date upon transfer or new issuance of the Company's
Common Stock will contain a notation incorporating the Warrants Agreement by
reference and (iii) the surrender for transfer of any of the Company's
Common Stock certificates will also constitute the transfer of the Warrants
associated with the Common Stock represented by such certificate.
The Warrants will separate from the Common Stock and certificates
representing the Warrants will be issued on the Distribution Date. Unless
otherwise determined by a majority of the Board then in office, the
Distribution Date will occur on the earlier of (i) the tenth business day
following the later of (A) the date of a public announcement that a person,
including affiliates or associates of such person (an "Acquiring Person"),
except as described below, has acquired or obtained the Warrant to acquire,
beneficial ownership of 15% or more of the outstanding shares of Common Stock
or (B) the date on which an executive officer of the Company has actual
knowledge that an Acquiring Person became such (the later being, the "Stock
Acquisition Date") or (ii) the tenth business day following commencement of a
tender offer or exchange offer that would result in any person, together with
its affiliates and associates owning 15% or more of the Company's outstanding
Common Stock. In any
<PAGE 150>
event, the Board of Directors may delay the distribution of the certificates.
After the Distribution Date, separate certificates evidencing the Warrants
("Warrant Certificates") will be mailed to holders of record of the Company's
Class A Common Stock as of the close of business on the Distribution Date and
thereafter, such separate Warrant Certificates alone will evidence the
Warrants.
If, at any time after the Board declares the Warrants dividend,
any person or group of affiliated or associated persons (other than the Company
and its affiliates) shall become an Acquiring Person, each holder of a
Warrant will have the Warrant to receive shares of the Company's Common
Stock (or, in certain circumstances, cash, property or other securities of the
Company) having a market value of two times the exercise price of the
Warrant. For example, if the exercise price is $.10, the holder of each
Warrant would be entitled to receive $10.00 in market value of the Company's
Common Stock for $.10. Also, in the event that at any time after the Stock
Acquisition Date, the Company was acquired in a merger or other business
combination, or if more than 25% of its assets or earning power was sold, each
holder of a Warrant would have the Warrant to exercise such Warrant
and thereby receive common stock of the acquiring company with a market value of
two times the exercise price of the Warrant. Thus, if the exercise price
is $.10, the holder of each Warrant would be entitled to receive $10.00
in market value of the acquiring company's common stock upon payment of the
$.10. Following the occurrence of any of the events described in this
paragraph, any Warrants that are, or (under certain circumstances
specified in the Warrants Agreement) were, beneficially owned by any
Acquiring Person or Disqualified Transferee shall immediately become null and
void.
The Board may, at its option, at any time after any person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Warrants for shares of Common Stock (or, other securities of the Company
equivalent in value to such shares of Common Stock) at an exchange ratio of
one share of Common Stock (or other such consideration) per Warrant,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date of declaration of the Warrants dividend
(such exchange ratio being hereinafter referred to as the "Exchange Ratio"). The
Board, however, may not effect an exchange at any time after any person (other
than (i) the Company, (ii) any subsidiary of the Company, (iii) any employee
benefit plan of the Company or any such subsidiary or any entity holding Common
Stock for or pursuant to the terms of any such plan), together with all
affiliates of such person, becomes the beneficial owner of 50% or more of the
Common Stock then outstanding. Immediately upon the action of the Board
ordering the exchange of any Warrants and without any further action and
without any notice, the Warrant to exercise such Warrants will terminate and
the only Warrant thereafter of a holder of such Warrants will be to receive
that number of shares of
<PAGE 151>
Common Stock equal to the number of such Warrants held by the holder
multiplied by the Exchange Ratio.
The exercise price of the Warrants, and the number of shares of
Common Stock or other consideration issuable upon exercise of the Class
A Warrants, are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Common Stock, (ii) upon the grant to holders of
the Common Stock of certain Warrants or warrants to subscribe for shares
of the Common Stock or convertible securities at less than the current
market price of the Common Stock or (iii) upon the distribution to holders
of the Common Stock of evidences of indebtedness or assets (excluding cash
dividends paid out of the earnings or retained earnings of the Company and
certain other distributions) or of subscription Warrants or warrants (other
than those referred to above).
With certain exceptions, no adjustments in the exercise price of the
Warrants will be required until cumulative adjustments equal at least 1% in
such price.
At any time prior to the earlier of (i) the Distribution Date or (ii)
the close of business ten years after the Warrants Agreement becomes
effective (the "Expiration Date"), the Company, by a majority vote of the Board
then in office, may redeem the Warrants at a redemption price of $.01 per
Warrant (the "Redemption Price"), as described in the Warrants Agreement.
Immediately upon the action of the Board electing to redeem the Class
A Warrants, the Warrant to exercise the Warrants will terminate and the only
Warrant of the holders of Warrants will be to receive the Redemption Price.
Until a Warrant is exercised, the holder thereof, as such, will
have no Warrants as a stockholder of the Company, including, without limitation,
the Warrant to vote or to receive dividends.
Neither the distribution of the Warrants nor the subsequent
separation of the Warrants on the Distribution Date will be a taxable event
for the Company or its stockholders. Holders of Warrants may, depending upon
the circumstances, recognize taxable income upon the occurrence of certain
Warrants triggering events including a tender offer for 15% or more of the
Common Stock or a person or group attaining beneficial ownership of 15% or
more of the Common Stock (collectively, "Common Stock Events"). In addition,
holders of Warrants may have taxable income as a result of (i) an exchange
by the Company of shares of Common Stock for Warrants as described above or
(ii) certain anti-dilution adjustments made to the terms of the Warrants
after the Distribution Date. A redemption of the Warrants would be a taxable
event to holders.
The Warrants Agreement may be amended by the Board at any time
<PAGE 152>
prior to the Distribution Date without the approval of the holders of the
Warrants. From and after the Distribution Date, the Warrants Agreement may
be amended by the Board without the approval of the holders of the Warrants
in order to cure any ambiguity, to correct any defective or inconsistent
provisions, to change any time period for redemption or any other time period
under the Warrants Agreement or to make any other changes that do not
adversely affect the interests of the holders of the Warrants (other than
any Acquiring Person or its affiliates or associates or their transferees).
A copy of the Warrants Agreement will be filed with the Securities
and Exchange Commission as an Exhibit to the Company's Form 8-A registration
statement with respect to the Warrants. A copy of the Warrants Agreement is
available free of charge from the Warrants Agent, at the following address:
North American Transfer Company
147 W. Merrick Road
Freeport, NY 11520
(Moore Solutions, Inc. Warrants Agreement)
This summary description of the Warrants does not purport to
be complete and is qualified in its entirety by reference to the
Warrants Agreement, which is incorporated herein by reference.
<PAGE 153>
Exhibit 5.0
Registration Statement Form S-4
EXHIBIT 5.0
February ___, 2000
Moore Solutions, Inc.
10570 S Federal Highway
Port St. Lucie, FL 34952
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We are counsel for Moore Solutions, Inc., a Florida corporation (the
"Company") in connection with its proposed public offering under the
Securities Act of 1933, as amended, of up to 2,000,000 Units of its securities,
each Unit consisting of one share of $.01 par value Common Stock
("Common Stock") and one Class A Common Stock Purchase Warrant ("Class A
Warrant") through a Registration Statement on Form S-4 ("Registration
Statement") as to which this opinion is a part, to be filed with the Securities
and Exchange Commission (the "Commission").
In connection with rendering our opinion as set forth below, we have
reviewed and examined originals or copies identified to our satisfaction of
the following:
(1) Articles of Incorporation, and amendment thereto, of the Company as
filed with the Secretary of State of the State of Florida.
(2) Corporate minutes containing the written deliberations and
resolutions of the Board of Directors and shareholders of the Company.
(3) The Registration Statement and the Preliminary Prospectus contained
within the Registration Statement.
(4) The other exhibits to the Registration Statement.
We have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the
Company, and have made such other investigations as we have deemed necessary
or appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, it is our opinion that
the Units, Common Stock, Warrants and Common Stock issuable upon exercise of the
Warrants offered under the Registration Statement will, upon the purchase,
receipt of full payment, issuance and delivery in accordance with
<PAGE 154>
the terms of the offering described in the Registration Statement, be fully
and validly authorized, legally issued fully paid and non-assessable.
We hereby consent to the use of this opinion, as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Prospectus constituting a part thereof.
Very truly yours,
/s/ Hackney & Miller, P.A.
- --------------------------
Hackney & Miller, P.A.
<PAGE 155>
Exhibit 10.0
MOORE SOLUTIONS, INC.
1999 EQUITY INCENTIVE PLAN
SECTION 1.
PURPOSE.
The purposes of the Moore Solutions, Inc., 1999 Equity Incentive Plan (the
"Plan") are to promote the interests of Moore Solutions, Inc. (the "Company")
and its shareholders by (i) attracting and retaining key employees,
consultants and non-employee directors of the Company and its Affiliates; (ii)
motivating such individuals by means of performance-related incentives to
achieve long-range performance goals; (iii) enabling such individuals to
participate in the long-term growth and financial success of the Company; and
(iv) linking compensation to the long-term interests of shareholders. With
respect to any awards granted under the Plan that are intended to comply with
the requirements of "performance-based compensation" under Section 162(m) of
the Code (as defined below), the Plan shall be interpreted in a manner
consistent with such requirements.
SECTION 2.
DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set forth
below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company, (ii) any entity in which the Company has a
significant equity interest and (iii) an affiliate of the Company, as defined in
Rule 12b-2 promulgated under Section 12 of the Exchange Act, in each case
as determined by the Committee.
"Award" shall mean any Option, Restricted Stock Award, Restricted
Stock Unit, Other Stock-Based Award or Performance Award as the Board may, in
good faith, determine it shall issue.
"Award Agreement" shall mean any written agreement, contract, or
other instrument or document evidencing any Award, which may, but need not,
be executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean, unless otherwise defined in the applicable
Award Agreement, (i) the engaging by the Participant in willful misconduct
that is injurious to the Company or its Affiliates, (ii) the embezzlement or
misappropriation of funds or property of the Company or its Affiliates by the
Participant, or (iii) the willful failure or refusal by the Participant to
substantially perform his or her duties or responsibilities that continues
after being brought to the attention of the Participant (other than any such
failure resulting from the Participant's incapacity due to Disability). For
purposes of this paragraph, no act, or failure to act, on the Participant's
part shall be considered "willful" unless done,
<PAGE 156>
or omitted to be done, by him or her not in good faith and without reasonable
belief that his or her action or omission was in the best interest of the
Company. Any determination of Cause shall be made by the Committee in its sole
discretion. Any such determination by the Board shall be final and binding on
a Participant.
"Change in Control" shall mean, unless otherwise defined in the
applicable Award Agreement, a change in control of the Company, which will be
deemed to have occurred if:
(i) any "Person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than (A) the Company, (B) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, and
(C) any corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of Shares),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company (not
including any securities acquired directly from the Company or its
Affiliates) representing 25% or more of the combined voting power of the
Company's then outstanding voting securities;
(ii) the following individuals cease for any reason to constitute
a majority of the number of directors then serving: individuals who, on the
effective date (as defined in Section 16(a) of the Plan), constitute the Board
and any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the election of directors
of the Company) whose appointment or election by the Board or nomination for
election by the Company's shareholders was approved or recommended by a vote of
at least two-thirds (2/3) of the directors then still in office who either
were directors on the effective date of the Plan or whose appointment,
election or nomination for election was previously so approved or recommended;
(iii) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any other
corporation, other than (A) a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity) more than
60% of the combined voting power of the voting securities of the Company or such
surviving or parent entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no "person"
(as defined above), directly or indirectly, acquired 40% or more of the
combined voting power of the Company's then outstanding securities (not
including any securities acquired directly from the Company or its
Affiliates);
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for the sale
or disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect), other than a sale or
disposition by the Company of all or substantially all of the Company's assets
to an entity, at least 60% of the combined voting power of the voting
securities of which are owned by shareholders of the Company in substantially
the same proportions as their ownership of the Company immediately prior to
such sale; or
<PAGE 157>
(v) or any other "Change in Control" that fails to meet the
continuity of interest requirement under the regulations promulgated under
the Code by the Internal Rev. Ser. 1.368-1 and -2.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Committee" shall mean a committee of the Board (which may
include the entire Board) designated by the Board to administer the Plan,
provided; that there shall be at least one Non-Employee Director who shall sit
on the Committee. The Committee shall be the Compensation Committee or a sub-
committee thereof, unless the Board shall appoint another committee to
administer the Plan. Notwithstanding the foregoing, for purposes of
discretionary awards granted to Non-Employee Directors pursuant to Section 10 of
the Plan, references to the Committee shall be deemed to be references to
the Board.
"Covered Officer" shall mean at any date (i) any individual
who, with respect to the previous taxable year of the Company, was a
"covered employee" of the Company within the meaning of Section 162(m);
provided, that the term "Covered Officer", however, shall not include any
such individual who is designated by the Committee, in its discretion, at the
time of any Award or at any subsequent time, as reasonably expected not to be
such a "covered employee" with respect to the current taxable year of the
Company and (ii) any individual who is designated by the Committee, in its
discretion, at the time of any Award or at any subsequent time, as reasonably
expected to be such a "covered employee" with respect to the current
taxable year of the Company or with respect to the taxable year of the
Company in which any applicable Award will be paid.
"Disability" shall mean, unless otherwise defined in the
applicable Award Agreement, a disability that would qualify as such under the
Company's then current long-term disability plan.
"Employee" shall mean an employee of the Company or of any
Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" with respect to the Shares, as of any date,
shall mean:
a. If the company is publicly traded on the National
Association of Securities Dealers, Inc., Automated
Quotation System ("NASDAQ"), the fair market value
shall be the closing inside bid price of the common
stock as quoted on NASDAQ;
b. If the company is traded in an over the counter market
("OTC") other than NASDAQ, the fair market value shall be
the average closing bid price of the common stock over the
last ten (10) trading sessions;
<PAGE 158>
c. If the company is traded on a regional or national exchange
other than NASDAQ or the OTC, the fair market value shall be
the closing bid price of the Common Stock;
d. If the Company's common stock has not traded on any
volume (as defined as less than 10% of outstanding market
float of its common stock trading over the last 10 trading
days), then the fair market value shall be determined by
the average of the closing stock price on the last ten (10)
trading sessions that more than 10% of the outstanding
market float has traded.
e. If the common stock is not publicly traded, but the
company has concluded a private placement of shares of
common stock within the past 24 months, the fair market
value shall be based upon the gross sales price of common
stock in the last such private placement.
f. In the event that the common stock shall not fall into any
of the above categories, then the price of the stock shall
be determined by the discounted cash flow method as used by
the investment community at large.
"Incentive Stock Option" shall mean an option to purchase
Shares from the Company that is granted under Section 6 of the Plan and that
is intended to meet the requirements of Section 422 of the Code or any
successor provision thereto.
"Non-Qualified Stock Option" shall mean an option to purchase
Shares from the Company that is granted under Section 6 of the Plan and that
is not intended to be an Incentive Stock Option.
"Non-Employee Director" shall mean a member of the Board who is
not an employee of the Company or any of its Affiliates.
"Option" shall mean an Incentive Stock Option or a Non-
Qualified Stock Option.
"Other Stock-Based Award" shall mean any award granted under
Section 9 of the Plan.
"Participant" shall mean any Employee, Non-Employee Director or
consultant who receives an Award under the Plan.
"Performance Award" shall mean any right granted under Section
8 of the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization,
government or political subdivision thereof or other such entity that may
acquire legal person hood under applicable state or Federal law.
"Restricted Stock" shall mean any Share granted under Section 7
of the Plan.
"Restricted Stock Unit" shall mean any unit granted under
Section 7 of the Plan.
<PAGE 159>
"Retirement" shall mean, unless otherwise defined in the
applicable Award Agreement, retirement of a Participant from the employ or
service of the Company and any of its Affiliates in accordance with the
terms of the applicable Company retirement plan or, if a Participant is not
covered by any such plan, retirement on or after such Participant's 65th
birthday.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
"Section 16" shall mean Section 16 of the Exchange Act and the
rules promulgated thereunder and any successor provision thereto as in effect
from time to time.
"Section 162(m)" shall mean Section 162(m) of the Code and the
rules promulgated thereunder or any successor provision thereto as in effect
from time to time.
"Shares" shall mean shares of the common stock of the Company,
or the Committee may designate such other securities of the Company as from
time to time.
"Substitute Awards" shall mean Awards granted solely in
assumption of, or in substitution for, outstanding awards previously granted
by a company acquired by the Company or with which the Company combines.
SECTION 3.
ADMINISTRATION.
(a) Authority of Committee. The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have full power and authority to: (i)
designate Participants;(ii) determine the type or types of Awards to be granted
to a Participant; (iii) determine the number of Shares to be covered by, or
with respect to which payments, rights, or other matters are to be calculated
in connection with, Awards; (iv) determine the terms and conditions of any
Award; (v) determine whether, to what extent, and under what circumstances
Awards may be settled, or exercised in cash, Shares, other securities, other
Awards or other property, or canceled, forfeited, or suspended and the method or
methods by which Awards may be settled, exercised, canceled, forfeited, or
suspended; (vi) determine whether, to what extent, and under what circumstances
cash, Shares, other securities, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or at
the election of the holder thereof or of the Committee; (vii) interpret and
administer the Plan and any instrument or agreement relating to, or Award made
under, the Plan; (viii) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and (ix) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and other
decisions under or with respect to the Plan or
<PAGE 160>
any Award shall be within the sole discretion of the Committee, may be made
at any time and shall be final, conclusive, and binding upon all Persons,
including the Company, any Affiliate, any Participant, any holder or
beneficiary of any Award, any Employee, any Non-Employee Director and any
consultant.
(c) Delegation. Subject to the terms of the Plan and applicable law, the
Committee may delegate to one or more officers or managers of the Company or
any Affiliate, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to grant
Awards to, or to cancel, modify or waive rights with respect to, or to alter,
discontinue, suspend, or terminate Awards held by, Participants who are not
officers or directors of the Company for purposes of Section 16 or who are
otherwise not subject to such Section.
(d) No Liability. No member of the Board or Committee shall be liable
for any action taken or determination made in good faith with respect to the
Plan or any Award granted hereunder.
SECTION 4.
SHARES AVAILABLE FOR AWARDS.
(a) Shares Available. Subject to adjustment as provided in Section
4(b), the number of Shares with respect to which Awards may be granted under
the Plan shall be _______ and the number of Shares with respect to which
Awards (other than Options) may be granted under the Plan shall be _______. If,
after the effective date of the Plan, any Shares covered by an Award granted
under the Plan, or to which such an Award relates, are forfeited, or if such an
Award is settled for cash or otherwise terminates or is canceled without the
delivery of Shares, then the Shares covered by such Award, or to which such
Award relates, or the number of Shares otherwise counted against the aggregate
number of Shares with respect to which Awards may be granted, to the extent
of any such settlement, forfeiture, termination or cancellation, shall again
become Shares with respect to which Awards may be granted. In the event that any
Option or other Award granted hereunder is exercised through the delivery of
Shares or in the event that withholding tax liabilities arising from such
Award are satisfied by the withholding of Shares by the Company, the number of
Shares available for Awards under the Plan shall be increased by the number
of Shares so surrendered or withheld. Notwithstanding the foregoing and
subject to adjustment as provided in Section 4(b), no Participant may receive
Options under the Plan in any calendar year that relate to more than 50,000
Shares; provided, a Participant, however, may receive Options that relate to up
to 100,000 Shares during the initial year of the Plan or in the calendar year
in which the Participant's employment with the Company begins.
(b) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable: (i) adjust
<PAGE 161>
any or all of (1) the number of Shares or other securities of the Company (or
number and kind of other securities or property) with respect to which Awards
may be granted, (2) the maximum number of Shares subject to Awards granted to
a Participant pursuant to Sections 4(a) and 11(b) of the Plan, (3) the number
of Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards and (4) the grant or
exercise price with respect to any Award; (ii) if deemed appropriate,
provide for an equivalent award in respect of securities of the surviving
entity of any merger, consolidation or other transaction or event having a
similar effect; or (iii) if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, in each case, that
(A) with respect to Awards of Incentive Stock Options no such adjustment
shall be authorized to the extent that such authority would cause the Plan to
violate Section 422(b)(1) of the Code, as from time to time amended and (B) with
respect to any Award no such adjustment shall be authorized to the extent
that such authority would be inconsistent with the Plan's meeting the
requirements of Section 162(m), unless otherwise determined by the Committee.
(c) Substitute Awards. Any Shares underlying Substitute Awards
shall not, unless required by Section 16, be counted against the Shares
available for Awards under the Plan.
(d) Source of Shares. Shares which are to be delivered under the
Plan may be obtained by the Company from its treasury, by purchases on the
open market or from private sources, or by issuing authorized but unmissed
Shares. Any issuance of authorized but unmissed Shares shall be approved by the
Board or the Committee. Authorized but unissued Shares may not be delivered
under the Plan if the purchase price thereof is less than the par value of
the Shares. Subject to the provisions of Section 11(i) below, fractional Shares
may not be issued and sold under the Plan.
(e) Oversubscription. If the number of Shares that Participants
become entitled to purchase is greater than the number of Shares offered in a
particular Offering Period or remaining available, the available Shares shall be
allocated by the Committee among such Participants in such manner as it deems
fair and equitable.
SECTION 5.
ELIGIBILITY.
Any Employee (including any officer or employee-director of the Company or
any Affiliate who is not a member of the Committee), Non-Employee Director or
consultant shall be eligible to be designated a Participant; provided that Non-
Employee Directors shall only be eligible to receive Awards granted pursuant to
Section 10; provided that such rules, however, shall neither permit nor deny
participation in the Plan contrary to the requirements of the Code (including,
but not limited to, Sections 423(b)(3), (4) and (5) thereof) and regulations
promulgated thereunder. No Employee shall be eligible to participate in the
Plan until the completion of six (6) months of service. During an Offering
Period, no Employee may participate under the Plan if such Employee would own 5%
or more of the total combined voting power or value of all classes of stock
of the Company or any Subsidiary. For purposes of the preceding sentence,
the rules of Section 424(d) of the Code shall apply in determining the stock
ownership of an Employee, and Shares which the Employee would be permitted to
purchase under the current Offering Period shall be treated as Shares owned
by the Employee.
<PAGE 162>
SECTION 6.
STOCK OPTIONS.
(a) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Participants to whom
Options shall be granted, the number of Shares to be covered by each Option,
the option price and the conditions and limitations applicable to the exercise
of the Option. The Committee shall have the authority to grant Incentive
Stock Options, or to grant NonQualified Stock Options, or to grant both types of
options. In the case of Incentive Stock Options, the terms and conditions of
such grants shall be subject to and comply with such rules as may be
prescribed by Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute.
(b) Exercise Price. The Committee in its sole discretion shall
establish the exercise price at the time each Option is granted. Except in
the case of Substitute Awards, the exercise price of an Option may not be less
than the Fair Market Value on the date of grant of such Option.
(c) Exercise. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter. The
Committee may impose such conditions with respect to the exercise of options,
including without limitation, any relating to the application of federal,
state or foreign securities laws or the Code, as it may deem necessary or
advisable. Notwithstanding the foregoing, an Option shall not be exercisable
after the expiration of ten years from the date such Option was granted.
(d) Payment. No Shares shall be delivered pursuant to any
exercise of an Option until payment in full of the option price is received
by the Company. Such payment may be made in cash, or its equivalent, or by
exchanging Shares owned by the Participant for at least six (6) months (which
are not the subject of any pledge or other security interest), or by a
combination of the foregoing, provided that the combined value of all cash
and cash equivalents and the Fair Market Value of any such Shares so tendered
to the Company as of the date of such tender is at least equal to such option
price. A Participant may elect to pay all or any portion of the aggregate
exercise price by having Shares with a Fair Market Value on the date of
exercise equal to the aggregate exercise price withheld by the Company or
sold by a broker-dealer.
<PAGE 163>
SECTION 7.
RESTRICTED STOCK AND RESTRICTED STOCK UNITS.
(a) Grant. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Participants to whom
Shares of Restricted Stock and Restricted Stock Units shall be granted, the
number of Shares of Restricted Stock and/or the number of Restricted Stock Units
to be granted to each Participant, the duration of the period during which,
and the conditions under which, the Restricted Stock and Restricted Stock
Units may be forfeited to the Company, and the other terms and conditions of
such Awards.
(b) Transfer Restrictions. Shares of Restricted Stock and
Restricted Stock Units may not be sold, assigned, transferred, pledged or
otherwise encumbered, except, in the case of Restricted Stock, as provided in
the Plan or the applicable Award Agreements. Certificates issued in respect of
Shares of Restricted Stock shall be registered in the name of the Participant
and deposited by such Participant, together with a stock power endorsed in
blank, with the Company. Upon the lapse of the restrictions applicable to
such Shares of Restricted Stock, the Company shall deliver such certificates
to the Participant or the Participant's legal representative.
(c) Payment. Each Restricted Stock Unit shall have a value equal
to the Fair Market Value of a Share. Restricted Stock Units shall be paid in
cash, Shares, other securities or other property, as determined in the sole
discretion of the Committee, upon the lapse of the restrictions applicable
thereto, or otherwise in accordance with the applicable Award Agreement.
(d) Dividends and Distributions. Dividends and other distributions
paid on or in respect of Restricted Stock or Restricted Stock Units may be
paid directly to the Participant, or may be reinvested in additional Shares of
Restricted Stock or in additional Restricted Stock Units, as determined by the
Committee in its sole discretion.
SECTION 8.
PERFORMANCE AWARDS.
(a) Grant. The Committee shall have sole and complete authority
to determine the Participants who shall receive a "Performance Award," which
shall consist of a right that is (i) denominated in cash or Shares, (ii)
valued, as determined by the Committee, in accordance with the achievement of
such performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
(b) Terms and Conditions. Subject to the terms of the Plan and
any applicable Award Agreement, the Committee shall determine the performance
goals to be achieved during any performance period, the length of any
performance period, the amount of any Performance Award and the amount and
kind of any payment or transfer to be made pursuant to any Performance Award.
(c) Payment of Performance Awards. Performance Awards may be
paid in a lump sum or in installments following the close of the performance
period or, in accordance with procedures established by the Committee, on a
deferred basis.
<PAGE 164>
SECTION 9.
OTHER STOCK-BASED AWARDS.
The Committee shall have authority to grant to Participants an "Other Stock
- -Based Award," which shall consist of any right that is (i) not an Award
described in Sections 6 through 8 above and (ii) an Award of Shares or an
Award denominated or payable in, valued in whole or in part by reference to, or
otherwise based on or related to, Shares (including, without limitation,
securities convertible into Shares), as deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms of the Plan
and any applicable Award Agreement, the Committee shall determine the terms and
conditions of any such Other Stock-Based Award.
SECTION 10.
NON-EMPLOYEE DIRECTOR AWARDS.
The Committee may provide that all or a portion of a Non-Employee Director's
annual retainer and/or meeting fees be payable (either automatically or at
the election of a Non-Employee Director) in the form of Nonqualified Stock
Options, Restricted Stock and/or Other Stock-Based Awards, including
unrestricted Shares. Subject to the terms of the Plan and any applicable
Award Agreement, the Committee shall determine the terms and conditions of
any such Awards. In addition, the Committee may, in its sole discretion,
grant awards of Restricted Stock to Non-Employee Directors pursuant to such
terms and conditions as it may deem advisable, so long as such terms and
conditions are not inconsistent with any other terms of the Plan.
SECTION 11.
PROVISIONS APPLICABLE TO COVERED OFFICERS AND PERFORMANCE-BASED
AWARDS.
Notwithstanding anything in the Plan to the contrary, unless
the Committee determines otherwise, all performance-based Restricted Stock
Awards, Restricted Stock Units, Performance Awards, or other Stock-Based
Awards shall be subject to the terms and provisions of this Section 11.
(a) The Committee may grant Restricted Stock Awards, Restricted
Stock Units, Performance Awards and Other Stock-Based Awards to Covered
Officers that vest or become exercisable upon the attainment of performance
targets related to one or more performance goals selected by the Committee
from among the goals specified below. For the purposes of this Section 11,
performance goals shall be limited to one or more of the following Company,
subsidiary, operating unit or division financial performance measures:
(i) earnings before interest, taxes,depreciation and/or
amortization
(ii) operating income or profit
(iii) return on equity, assets, capital, capital employed,
or investment
(iv) after tax operating income
(v) net income
(vi) earnings or book value per share
<PAGE 165>
(vii) cash flow(s)
(viii) total sales or revenues or sales or revenues per
employee
(ix) production (separative work units or SWUs)
(x) stock price or total shareholder return
(xi) dividends
(xii) strategic business objectives, consisting of one or
more objectives based on
meeting specified cost targets,business expansion
goals, and goals relating to acquisitions or
divestitures
(xiii) except in the case of Section 162(m)
awards to Covered Officers, any other
performance criteria established by the Committee
or any combination thereof. Each goal may be expressed on an absolute and/or
relative basis, may be based on or otherwise employ comparisons based on
internal targets, the past performance of the Company and/or the past or current
performance of other companies, and in the case of earnings-based measures,
may use or employ comparisons relating to capital, shareholders' equity and/
or shares outstanding, or to assets or net assets.
(b) With respect to any Participant, the maximum annual number of
shares in respect of which Restricted Stock Awards, Performance Awards and
Other Stock-Based Awards may be granted under the Plan is _______ and the
maximum annual amount of any Award settled in cash is $_________.
(c) To the extent necessary to comply with Section 162(m), with
respect to Restricted Stock Awards, Restricted Stock Units, Performance
Awards and Other Stock-Based Awards, no later than ninety (90) days following
the commencement of each performance period (or such other time as may be
required or permitted by Section 162(m) of the Code), the Committee shall, in
writing, (A) select the performance goal or goals applicable to the
performance period, (B) establish the various targets and bonus amounts which
may be earned for such performance period and (C) specify the relationship
between performance goals and targets and the amounts to be earned by each
Covered Officer for such performance period. Following the completion of each
performance period, the Committee shall certify in writing whether the
applicable performance targets have been achieved and the amounts, if any,
payable to Covered Officers for such performance period. In determining the
amount earned by a Covered Officer for a given performance period, subject to
any applicable Award Agreement, the Committee shall have the right to reduce
(but not increase) the amount payable at a given level of performance to take
into account additional factors that the Committee may deem relevant to the
assessment of individual or corporate performance for the performance period.
<PAGE 166>
SECTION 12.
TERMINATION OF EMPLOYMENT/SERVICE.
The Committee shall have the full power and authority to determine the terms
and conditions that shall apply to any Award upon a termination of employment/
service, including a termination by the Company without Cause, by a Participant
voluntarily, or by reason of death, Disability or Retirement. Unless
otherwise specified in an Agreement or by determination of the Committee,
upon a Participant's ceasing to be an Employee of the Company or a
participating Subsidiary, for any reason, he or she shall be deemed to have
elected to withdraw from the Plan and the payroll deductions credited to such
Participant's account during the Offering Period, but not yet used, shall be
returned to the Participant or, in the case of his or her death, to the
Participant's designated beneficiary or estate.
SECTION 13.
CHANGE IN CONTROL.
Upon a Change in Control, all outstanding Awards shall vest, become
immediately exercisable or payable or have all restrictions lifted.
SECTION 14.
AMENDMENT AND TERMINATION.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement for which or
with which the Board deems it necessary or desirable to comply.
(b) Amendments to Awards. The Committee may waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of any Participant or any holder or beneficiary of any Award
theretofore granted shall not to that extent be effective without the consent of
the affected Participant, holder, or beneficiary; and provided further that
the Committee shall not have the power to amend the terms of previously
granted Awards to reduce, or cancel such Awards and grant substitute Awards
which would have the effect of reducing the exercise price except pursuant to
paragraph (c) below.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual
or Nonrecurring Events. The Committee is hereby authorized to make
adjustments in the terms and conditions of, and the criteria included in,
Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(b) hereof) affecting the
Company, any Affiliate, or the financial statements of the Company or any
Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made
<PAGE 167>
available under the Plan; provided that no such adjustment shall be
authorized to the extent that such authority would be inconsistent with the
Plan's meeting the requirements of Section 162(m), unless otherwise
determined by the Committee.
SECTION 15.
GENERAL PROVISIONS.
(a) Dividend Equivalents. In the sole and complete discretion of the
Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis.
(b) Transferability. Except as provided below, no Award shall be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant, except by will or the laws of descent and
distribution. Notwithstanding the foregoing, a Participant may transfer any
vested Award, other than an Incentive Stock Option, to members of his or her
immediate family (defined as his or her spouse, children or grandchildren) or
to one or more trusts for the exclusive benefit of such immediate family members
or partnerships in which such immediate family members are the only partners if
the Award Agreement so provides, the transfer is approved by the Committee
and the Participant does not receive any financial or material consideration for
the transfer. Any such transferred Award shall continue to be subject to the
same terms and conditions that were applicable to such Award immediately
prior to its transfer (except that such transferred Award shall not be
further transferable by the transferee).
(c) No Rights to Awards. No Person shall have any claim to be
granted any Award, and there is no obligation for uniformity of treatment of
Employees, Non-Employee Directors, consultants, Participants, or holders or
beneficiaries of Awards. The terms and conditions of Awards need not be the same
with respect to each recipient.
(d) Share Certificates. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the Plan
or the rules, regulations, and other requirements of the SEC, any stock
exchange upon which such Shares or other securities are then listed, and any
applicable Federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
(e) Withholding. A participant may be required to pay to the
Company or any Affiliate and the Company or any Affiliate shall have the
right and is hereby authorized to withhold from any Award, from any payment
due or transfer made under any Award or under the Plan or from any
compensation or other amount owing to a Participant the amount (in cash,
Shares, other securities, other Awards or other property) of any applicable
withholding or other taxes in respect of an Award, its exercise, or any
payment or transfer under an Award or under the Plan and to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes. The Committee may provide for
additional cash payments to holders of Awards to defray or offset any tax
arising from the grant, vesting, exercise, or payments of any Award.
<PAGE 168>
(f) Award Agreements. Each Award hereunder shall be evidenced
by an Award Agreement that shall be delivered to the Participant and shall
specify the terms and conditions of the Award and any rules applicable
thereto. In the event of a conflict between the terms of the Plan and any
Award Agreement, the terms of the Award Agreement shall prevail.
(g) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other compensation arrangements, which may, but
need not, provide for the grant of options, restricted stock, Shares and other
types of Awards provided for hereunder (subject to shareholder approval if
such approval is required), and such arrangements may be either generally
applicable or applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of
the Company or any Affiliate. Further, the Company or an Affiliate may at any
time dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan in any Award
Agreement, or by law.
(i) No Rights as Shareholder. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the named record holder of such
Shares. Notwithstanding the foregoing, in connection with each grant of
Restricted Stock hereunder, the applicable Award shall specify if and to what
extent the Participant shall not be entitled to the rights of a shareholder in
respect of such Restricted Stock.
(j) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan and any Award
Agreement shall be determined in accordance with the laws of the State of
Florida without giving effect to the conflict of law principles thereof.
(k) Severability. If any provision of the Plan or any Award is
or becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or
any Award under any law deemed applicable by the Committee, such provision shall
be construed or deemed amended to conform to the applicable laws, or if it
cannot be construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan or the Award, such
provision shall be stricken as to such jurisdiction, Person or Award and the
remainder of the Plan and any such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer
any Shares or other consideration under an Award if, acting in its sole
discretion, it determines that the issuance or transfer of such Shares or such
other consideration might violate any applicable law or regulation (including
applicable non-U.S. laws or regulations) or entitle the Company to recover
the same under Section 16(b), and any payment tendered to the Company by a
Participant, other holder or beneficiary in connection with the exercise of such
Award shall be promptly refunded to the relevant Participant, holder, or
beneficiary.Without limiting the generality of the foregoing, no Award
granted hereunder shall be construed as an offer to sell securities of the
Company, and no such offer shall be outstanding, unless and until the
Committee in its sole discretion has determined that any such offer, if
<PAGE 169>
made, would be in compliance with all applicable requirements of the U.S.
federal or non-U.S. securities laws and any other laws to which such offer, if
made, would be subject.
(m) No Trust or Fund Created. Neither the Plan nor any Award
shall create or be construed to create a trust or separate fund of any kind
or a fiduciary relationship between the Company or any Affiliate and a
Participant or any other Person. To the extent that any Person acquires a
right to receive payments from the Company or any Affiliate pursuant to an
Award, such right shall be no greater than the right of any unsecured general
creditor of the Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Shares or whether such fractional Shares
or any rights thereto shall be canceled, terminated or otherwise eliminated.
(o) Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
(p) Shareholder Approval. This Plan shall not be effective until
approved by the shareholders of the Company as provided in Section 423(b)(2)
of the Code and the regulations thereunder.
SECTION 16.
TERM OF THE PLAN.
(a) Effective Date. The Plan shall be effective as of________,
1999, provided it has been approved by the Company's shareholders.
(b) Expiration Date. No new Awards shall be granted under the
Plan after the tenth anniversary of the Effective Date. Unless otherwise
expressly provided in the Plan or in an applicable Award Agreement, any Award
granted hereunder may, and the authority of the Board or the Committee to amend,
alter, adjust, suspend, discontinue, or terminate any such Award or to waive
any conditions or rights under any such Award shall, continue after the
authority for grant of new Awards hereunder has been exhausted.
<PAGE 170>
Exhibit 10.4
FINANCIAL ADVISORY AND
------------------------
INVESTMENT ADVISING AGREEMENT
-----------------------------
This Agreement is made and entered into as this ____ day of __________,
1999 by and between Crown Capital Advisors, Inc. ("the Investment Adviser")
and Moore Solutions, Inc. ("the Company"), for the purpose of defining and
acknowledging the terms of this Agreement.
In consideration of the mutual promises made herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Exclusivity. The Company hereby engages the Investment Adviser on
an exclusive basis for the term specified in Paragraph Two (2)
hereof to render services to the Company as its corporate finance
consultant, financial advisor and investment adviser upon the terms
and conditions set forth herein.
2. Term. This Agreement shall be effective for a period of one year,
commencing upon the date this contract is executed by both parties
and may be extended as the parties shall mutually agree in
writing, subject to the establishment of arrangements for
additional compensation and other appropriate terms for such
extension.
3. Services to be Provided. During the term of this Agreement,the
Investment Adviser shall provide the Company with such regular and
customary consulting advice as is reasonably requested by the
Company, provided that the Investment Adviser shall not be
requested to undertake duties not reasonably within the scope of
the financial advisory or investment advising services
contemplated by this agreement. It is understood and acknowledged
by the parties that the value of Investment Adviser's advice is not
readily quantifiable, and that Investment Adviser shall be
obligated to render advice upon the request of the Company, in good
faith, and shall use its best efforts to perform the contemplated
duties as set forth herein. Investment Adviser's duties may include,
but will not necessarily be limited to, providing recommendations
and assisting in the following:
1. disseminating information about the Company to the investment
community at large;
2. rendering advice and assistance in connection with the
preparation of annual and interim reports and press releases;
3. assisting in the company's financial public relations;
4. arranging, on behalf of the Company, at appropriate times,
meetings with securities analysts of investment banking firms;
5. rendering advice with regard to internal operations,
including, but not limited to:
<PAGE 171>
1. the formation of corporate goals and their implementation;
2. the Company's financial structure and its divisions or
subsidiaries;
3. securing, when and if necessary and possible, additional
financing through banks, insurance companies or other
institutions; and
4. corporate organization and personnel;
6. rendering advice with regard to any of the following corporate
finance matters:
1. changes in the capitalization of the Company;
2. changes in the corporate structure;
3. redistribution of shareholdings of the Company's stock;
4. sales of securities in public or private transactions and
the structuring thereof;
5. alternative uses of corporate assets; and
6. structure and use of debt;
7. rendering advice or assistance with regard to any of the
following merger or acquisition activities:
1. the acquisition and/or merger of or with other companies;
2. divestiture or any other similar transaction; and
3. the sale of the Company itself (or any significant
percentage, assets, subsidiaries or affiliates thereof);
8. rendering advice and/or assistance with regard to bank
financing or any other financing from financial institutions or
individuals (including but not limited to revolving credit
facilities, lines of credits, term loans, rediscounted credit
facilities, senior and junior loans, whether collateralized or
unsecured, etc.);
9. act as an information agent in connection with any tender
offers or share exchange;
10.it is understood by both parties that Investment Advisor
will not act as an underwriter or placement agent for the
Company's securities.
4. Undertakings of the Company. In order to facilitate financing, the
Company shall afford to the Investment Adviser and its
representatives full and complete access to all of its properties
and records and the full cooperation of management in the prompt
preparation of a
<PAGE 172>
confidential placement memorandum containing all of the information
the Investment Adviser may deem necessary to effect the successful
placement of the transaction.
5. Compensation. In consideration for the services rendered by
Investment Advisers to the Company pursuant to this agreement
(and in addition to the expenses provided for in Paragraph
Seven hereof), the Company shall compensate the Investment
Adviser as follows:
1. Initial Retainer. None.
2. Initial Warrants. At closing of the first transaction,
credit facility or equity financing transaction, as
contemplated herein, the Company shall issue to the Investment
Adviser and/or its designees Warrants to purchase two percent
(2%) of the Company's fully diluted common stock at a nominal
purchase price (the "Warrant Option"). All Warrants shall
expire five (5) years from the date of issuance and shall have
"piggy back" and demand registration rights and anti-dilution
provisions acceptable to the Investment Adviser.
1. Cashless Exercise . In lieu of paying the shares purchase
price in cash, the Investment Adviser may, at its option,
deliver to the Company for cancellation shares of common stock
or other outstanding securities of the Company convertible into
the Company's common stock (including rights represented by
this Warrant) that have a value equal to the shares purchase
price. The determination of value shall be made by agreement
between the Holder and the Company, but, failing such
agreement, by reference to the trading price of the Company's
common stock on the date of exercise.
3. Merger and Acquisition Fee. If any transaction (as
hereinafter defined) is consummated during the Term of this
Agreement with any parties, whether introduced or contacted by
the Company or Investment Advisers during the term of this
agreement, the Company shall pay at the closing of each such
transaction a cash fee equal to the sum of:
1. Five percent (5%) of the first ten million dollars
($10,000,000) of the aggregate consideration (as herein
defined) of a transaction;
2. Four percent (4%) of the second ten million dollars
($10,000,000) of the aggregate consideration of a transaction;
3. Three percent (3%) of the third ten million dollars
($10,000,000) of the aggregate consideration of a transaction;
and
4. Two percent (2%) of the aggregate consideration over thirty
million dollars ($30,000,000).
4. Aggregate Consideration is defined and computed as follows:
<PAGE 173>
1. The total sale proceeds and other consideration received
(which shall be deemed to include amounts paid into escrow) by
the Company and/or its shareholders or by a target and/or its
shareholders upon the consummation of the transaction
(including payments made in installments), inclusive of cash,
securities, notes, consulting agreements and agreements not to
compete, plus the total value of liabilities assumed.
2. If a portion of such consideration includes contingency
payments (whether or not related to future earnings or
operations), aggregate consideration will include 75% of the
face value of such payment without regard to whether the
conditions for the payment of such contingent amounts have
been or may be satisfied.
3. If the aggregate consideration for the transaction consists
in whole or in part of securities, for the purposes of
calculating the amount of aggregate consideration, the value
of such securities will be the value thereof on the day
preceding the consummation of the transaction as the company
and investment adviser agree; provided, in the case of
securities for which there is a public trading market,
however, the value will be determined by the average last
sales price for such securities for the last twenty (20)
days prior to such consummation as determined by Investment
Adviser and communicated by Investment Adviser to the Company.
If there is no public trading market for such securities but
securities have been sold in a private placement within the
past twenty-four (24) months, the fair market value shall be
based upon the gross sales price in the last such private
placement. For other property received or receivable as a
part of the aggregate consideration and the parties are unable
to agree, then each of Investment Adviser and the Company will
select an investment banking firm respected in the merger and
acquisition field to determine a value and the midpoint
between the two values established by the two independent
experts will be the fair market value for the purpose
hereof.
4. For purposes of this agreement, any of the following
transactions shall constitute a "transaction":
(1) the sale, outside of the ordinary course of business, of
the Company or any of its assets, securities, or business
by means of a merger, consolidation, joint venture,
exchange offer or purchase or sale of stock or assets, or
any transaction resulting in any change of control of the
Company or its assets or business; or
(2) the purchase by the Company, outside of the ordinary
course of business, or another company or any of its
assets, securities or business by means of a merger,
consolidation, joint venture, exchange offer, tender
offer or purchase or sale of stock or assets.
<PAGE 174>
(3) Notwithstanding the above, the proposed initial
transaction involving the public offering of the
Company's Securities as described by the Form S-4
filed by Hackney & Miller, P.A., shall be aggregated
as a single transaction.
5. Third-Party Debt Placements. In the event Investment Adviser
is involved in originating a debt facility, inclusive of
revolving credit facilities, lines of credits, term loans,
rediscounted credit facilities, senior and junior loans,
whether collateralized or unsecured, etc., (the "credit
facility") with a bank or other institutional lender (the
"lending source"), the Company will pay Investment Adviser
a fee of two percent (2%) of the maximum amount of the
Credit Facility. In the event Investment Adviser is involved
in arranging an increase in a Credit Facility, the Company
will pay Investment Adviser a fee of two percent (2%) of the
increase from the maximum amount of the existing Credit
Facility to the maximum amount of the new Credit Facility.
6. Strategic Alliances and Partnerships.In the event Investment
Adviser introduces the Company to a joint venture partner or
customer and sales develop as a result of the introduction,
the Company agrees to pay a fee of two percent (2%) of total
sales generated directly from this introduction during the
first two (2)years following the date of the first sale.
Total sales shall mean cash receipts less any applicable
refunds, returns, allowances,credits and shipping charges
and monies paid by the Company by way of settlement or
judgment arising out of claims made or threatened
against the Company. Commission payments shall be paid on the
15th day of each month following the receipt of customers'
payment. In the event any adjustments are made to the total
sales after the commission has been paid, the Company shall
be entitled to an appropriate refund or credit against
future payments due under this Agreement.
7. Fairness Opinions, Valuations and Other Services. Fees and
expenses payable to Investment Adviser with regard to
fairness opinions, valuations, and services not specifically
set forth herein will be determined by mutual agreement in
writing at such time as the nature and terms of such
transactions are determined.
6. Payment of Fees. All fees to be paid pursuant to this Agreement
are due and payable to the Investment Adviser in cash at the
closing or closings of any transaction as specified in Paragraph
Three hereof. The Company hereby irrevocably authorizes and
instructs third party funding sources, including Lending Sources
and private equity groups, (the "Funding Sources"), to pay
directly to Investment Adviser cash sums provided for in Paragraph
Five above and further authorizes Investment Adviser to notify the
Funding Sources of this provision and the terms of this agreement for
purposes of this provision and payment of the sums due under Paragraph
Five of this Agreement. The Company agrees that Investment Adviser is
a direct beneficiary of any eventual financing agreement between
the Company and the Funding Sources. The Company hereby expressly
agrees that in the event any dispute or disagreement arises with
respect to the payment to Investment Adviser under this agreement,
that the Financing Sources shall immediately place all disputed sums
in an interest bearing
<PAGE 175>
Escrow account pending resolution of the dispute. The Company
hereby irrevocably authorizes and instructs the Funding Sources
to escrow such disputed sums. The Company further agrees that
any sums due under this agreement which are not in dispute
shall not be escrowed, but shall be paid upon closing to Investment
Adviser by the Funding Sources as provided for under the terms of
this Agreement.
7. Continuing Obligation. In the event that this agreement shall not
be renewed or if terminated for any reason notwithstanding any such
renewal or termination, Investment Adviser shall be entitled to a full
fee as provided under Paragraph Five hereof, for any transaction for
which the discussions were initiated during the term of this agreement
and which is consummated within a period of twelve (12) months
after non-renewal or termination of this agreement.
8. Expense Reimbursement. In addition to the compensation payable
hereunder, and regardless whether any transaction set forth in
Paragraph Three or Five hereof is proposed or consummated, the
Company shall reimburse Investment Adviser for all fees and
disbursements of Investment Adviser's counsel, travel and out of
pocket expenses incurred in connection with the services performed
by Investment Adviser pursuant to this Agreement, including without
limitation, hotel, food and associated expenses, telephone calls and
legal expenses. Any travel, accommodations or consultant fees in
excess of $2,000 shall be approved in advance by the Company.
9. Confidentiality. The Company acknowledges that all opinions and
advice (written or oral) given by the Investment Adviser to the
Company in connection with Investment Adviser's engagement are
intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company
agrees that no person or entity other than the Company shall be
entitled to make use of or rely upon the advice of the Investment
Adviser to be given hereunder, and no such opinion or advice shall
be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor
may the Company make any public references to Investment Adviser, or
use Investment Adviser's name in any annual reports or any other
reports or releases of the Company without Investment Adviser's prior
written consent.
10. Independent Contractor. The Company acknowledges that the
Investment Adviser is in the business of providing financial
services and consulting advice to others. Nothing herein
contained shall be construed to limit or restrict Investment
Adviser in conducting such business with respect to others, or
in rendering such advice to others. Investment Adviser shall
perform its services hereunder as an independent contractor and
not as an employee of the Company or an affiliate thereof. It
is expressly understood and agreed to by the parties hereto
that the Investment Adviser shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any
manner, except as may be agreed to expressly by the Company in
writing from time to time.
11. Reliance. The Company recognizes and confirms that, in advising
the Company and in fulfilling its engagement hereunder, the
Investment Adviser will use and rely on data, material and other
information furnished to Investment Adviser by the Company. The
Company acknowledges and agrees that in performing its services
under this engagement, Investment
<PAGE 176>
Adviser may rely upon the data, material and other information
supplied by the Company without independently verifying the accuracy,
completeness or veracity of same.
12. Notices. Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently
given if hand-delivered or sent (i) postage prepaid by
registered mail, or (ii) by facsimile, to the respective
parties as set forth below, or to such other address as either
party may notify the other of in writing:
- ------------------------------------------------------------------------------
Terrance Moore Crown Captial Advisors, Inc.
Moore Solutions, Inc. Admirality Tower Two
10570 South Federal Highway, Suite 307 4400 PGA Boulevard
Post St. Lucie, FL 34952 Suite 307
561-337-4053 (fax) Palm Beach Gardens,FL 33410
(561) 625-4685 (fax)
- ------------------------------------------------------------------------------
13. Indemnification. Investment Adviser and the Company have
entered into a separate letter agreement dated the date hereof
("the indemnity letter") proving for the indemnification of
Investment Adviser by the Company in connection with Investment
Adviser's engagement hereunder.
14. Counterparts. This agreement may be executed in any number
of counterparts, each of which together shall constitute one
and the same original document.
15. Assignability and Modification. This agreement is not
assignable and cannot be modified or changed, nor can any of
its provisions be waived, except by the mutual agreement in
writing of all parties.
16. Governing Law. This agreement shall be governed by the
laws of the State of Florida.
17. Severability. Each paragraph, term or provision of this
agreement shall be considered severable and if, for any reason,
any paragraph, term or provision is determined to be invalid or
contrary to any existing or future law or regulation, such will
not impair the operation, or effect the remaining portions, of
this agreement.
18. Dispute Resolution. The parties shall attempt amicably to
resolve disagreements by negotiating with each other. In the
event that the matter is not amicably resolved through
negotiation, any controversy, dispute or disagreement arising
out of or relating to this agreement (a "controversy") shall be
submitted to a nationally recognized arbitration association,
such as the American Arbitration Association, for final binding
arbitration, which shall be conducted by a single arbitrator
(the "arbitrator") in West Palm Beach, Florida, pursuant to the
American Arbitration Association Rules ("the rules").
Notwithstanding anything to the contrary contained in the
Rules, the Arbitrator shall not award consequential, exemplary,
incidental, punitive or special damages.
<PAGE 177>
If any part shall desire relief of any nature whatsoever from
any other party as a result of any Controversy, such party will
initiate such arbitration proceedings within a reasonable time,
but in no event more than one (1) year after the facts
underlying said Controversy first arise or become known to the
party seeking relief (whichever is later). The failure of such
party to institute such proceedings within said period shall be
deemed a full waiver of any claim for such relief. Arbitrator
may award the prevailing party its costs for the arbitration
proceeding; including its reasonable attorneys' fees and costs.
The parties agree that the decision and award of the Arbitrator
shall be taken, but that such award or decision may be entered
as a judgement and enforced in any court having jurisdiction
over the party against whom enforcement is sought. Any
equitable relief awarded under this paragraph shall be
dissolved upon issuance of the Arbitrator's decision and order.
Notwithstanding the provisions for dispute resolution, in the
event of a breach or threatened breach by any party to this
agreement, either party shall be entitled in order to maintain
the status quo and pending the outcome of any arbitration
pursuant to this agreement, seek an injunction or similar
equitable relief restraining either party, as the case may be,
from committing or continuing any such breach or threatened
breach or granting specific performance of any act required to
be performed without the necessity of showing that money
damages would not afford an adequate remedy and without the
necessity of posting any bond or other security. The parties
hereto hereby consent to the jurisdiction of the Federal
district courts for the Southern District of Florida, and the
Florida state courts located in 15th Circuit Court for any
proceedings under this paragraph. The parties agree that the
availability of arbitration in the agreement shall not be used
by any party as grounds for the dismissal of an injunctive
action instituted by the other party.
Agreed to and accepted by:
/s/ Terrance Moore Robert C. Hackney, Esquire
________________________________ __________________________________
For Moore Solutions, Inc. For Crown Capital Advisors, Inc.
Novermber 24, 1999 November 24, 1999
- -------------------- -----------------------
Date Date
<PAGE 178>
EXHIBIT 23.0
March 8, 2000
Board of Directors
Moore Solutions, Inc.
10570 South Federal Highway
Port St. Lucie, FL 34952
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use of our audit report dated February 8,
2000 (and all references to our firm) included in Moore Solution Inc.'s Form S-4
for the periods ended December 31, 1999, 1998, 1997, and 1996 which is
incorporated by reference in Form S-4's report for the period ended June 30,
1999.
/s/DiBartolomeo, McBee & Associates, PA
------------------------------------------------
DiBartolomeo, McBee & Associates, PA
Certified Public Accountants
March 8, 2000
<PAGE 179>
Exhibit 28.0
LETTER OF TRANSMITTAL
To Exchange Shares of Common Stock of Autonation, Inc..
and HealthSouth Corp.
Pursuant to the Exchange Offer Dated ___________ by
Moore Solutions, Inc.
THE OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON _____________, ___________, 2000
UNLESS THE OFFER IS EXTENDED.
The Depository For The Offer is:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Telephone: (302) 651-1000
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER OF
TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW AND COMPLETE THE
SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Shares (as
defined below) of Autonation, Inc. and HealthSouth Corp. (the "Stockholders")
if certificates evidencing Shares ("Certificates") are to be forwarded herewith
or, unless an Agent's Message (as defined in Instruction 2 below) is utilized,
if delivery of Shares is to be made by book-entry transfer to an account
maintained by Wilmington Trust Company (the "Depository") at The Depository
Trust Company ("DTC") (a "Book-Entry Transfer Facility") pursuant to the
procedures set forth in the prospectus under Terms of the Exchange Offer,
Section 3 (as defined below).
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
- ----------------------------------------------------------------------------
<PAGE 180>
DESCRIPTION OF SHARES TENDERED
NAME(S) AND
ADDRESS(ES) OF
REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK,
EXACTLY AS NAME(S)APPEAR
ON CERTIFICATE(S)
SHARE NUMBER OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
- ----------------- ----------------------------------------------------
- ----------------- ----------------------------------------------------
Total Shares Tendered:_________________________________
--------------------------------------------------------------
(1) Need not be completed by holders of Shares delivering Shares by Book-
Entry Transfer.
(2) Unless otherwise indicated, it will be assumed that all Shares
represented by Certificates delivered to the Depositary are being
tendered. See Instruction 4.
- ---------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY
TRANSFER FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER).
(N)ame of Tendering Institution:________________________________________
(C)heck Box of Book-Entry Transfer Facility:
/ / DTC
(A)ccount Number:__________________________________________________________
(T)ransaction Code Number:_________________________________________________
/ / CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF
GUARANTEED DELIVERY.
(N)ame(s) of Registered Holder(s):________________________________________
(W)indow Ticket Number (if any):__________________________________________
(D)ate of Execution of Notice of Guaranteed Delivery:______________________
<PAGE 181>
(N)ame of Institution which Guaranteed Delivery:
(I)f delivered by Book-Entry Transfer, check box of Applicable Book-Entry
Facility:
/ / DTC
(A)ccount Number:_______________________________________________________
(T)ransaction Code Number:_______________________________________________
PLEASE READ THE INSTRUCTIONS SET FORTH
IN THIS LETTER OF TRANSMITTAL CAREFULLY
Ladies and Gentlemen:
The undersigned hereby delivers to Moore Solutions, Inc., a Florida
corporation ("Offeror") the above-described shares of common stock, (the
"Shares"), of_____________ (the "Company"), in exchange for Offeror's common
stock as defined in the Exchange Offer, upon the terms and subject to the
conditions set forth in the Exchange Offer dated __________, 2000 (the
"Exchange Offer"), receipt of which is hereby acknowledged, and in this Letter
of Transmittal (which together with any amendments or supplements thereto or
hereto) constitute the "Offer").
Subject to, and effective upon, acceptance for exchange of, Shares
deposited herewith in accordance with the terms and subject to the conditions
of the Offer (including, if the Offer is extended or amended, the terms or
conditions of any such extension or amendment), the undersigned hereby sells,
assigns and transfers to, or upon the order of, Offeror all right, title and
interest in and to all of the Shares that are being deposited hereby and any
and all other Shares or other securities issued or issuable in respect of
such Shares on or after _________, 2000 (a "Distribution"), and irrevocably
constitutes and appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares (and any
Distributions), with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to
* deliver Certificates evidencing such Shares (and any
Distributions), or transfer ownership of such Shares (and any
Distributions) on the account books maintained by a Book-Entry
Transfer Facility together, in any such case, with all
accompanying evidences of transfer and authenticity to, or upon
the order of, Offeror, upon receipt by the Depositary as the
undersigned's agent, of the common stock,
* present such Shares (and any Distributions) for transfer on
the books of the Company and
* receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares (and any Distributions),
all in accordance with the terms and subject to the conditions
of the Offer.
The undersigned hereby irrevocably appoints Terrence Moore in his
capacity as an officer of the Offeror, and any individual who shall
thereafter succeed to such office of Offeror, and each of them, as the attorney-
in-fact and proxy of the undersigned, each with full power of substitution, to
the full extent of the undersigned's rights with respect to all Shares
deposited hereby and accepted for exchange by Offeror(and any Distributions),
including, without limitation, the right to vote such
<PAGE 182>
Shares (and any Distributions) in such manner as each such attorney and proxy or
his substitute shall, in his or her sole discretion, deem proper. All such
powers of attorney and proxies, being deemed to be irrevocable, shall be
considered coupled with an interest in the Shares deposited herewith. Such
appointment will be effective when, and only to the extent that, Offeror accepts
such Shares for exchange. Upon such acceptance for exchange, all prior powers of
attorney and proxies given by the undersigned with respect to such Shares (and
any Distributions) will be revoked, without further action, and no subsequent
powers of attorneys and proxies may be given with respect thereto (and, if
given, will be deemed ineffective). The designees of Offeror will, with
respect to the Shares (and any Distributions) for which such appointment is
effective, be empowered to exercise all voting and other rights of the
undersigned with respect to such Shares (and any Distributions) as they in
their sole discretion may deem proper. Offeror reserves the absolute right to
require that, in order for Shares to be deemed validly tendered, immediately
upon the acceptance for exchange of such Shares, Offeror or its designees are
able to exercise full voting rights with respect to such Shares (and any
Distributions).
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Exchange Offer, this tender is irrevocable.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
delivered hereby (and any Distributions) and that, when the same are accepted
for exchange by Offeror, Offeror will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions,
charges and encumbrances, and that the Shares delivered hereby (and any
Distributions) will not be subject to any adverse claim. The undersigned, upon
request, will execute and deliver any additional documents deemed by the
Depositary or Offeror to be necessary or desirable to complete the sale,
assignment and transfer of Shares delivered hereby (and any Distributions).
In addition, the undersigned shall promptly remit and transfer to the Depositary
for the account of Offeror any and all Distributions issued to the undersigned
on or after _____________, 2000, in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer; and pending such
remittance and transfer or appropriate assurance thereof, Offeror shall be
entitled to all rights and privileges as owner of any such Distributions and
may withhold the common stock or deduct from the exchange price the value
thereof, as determined by Offeror in its sole discretion.
The undersigned understands that the valid delivery of Shares pursuant
to any one of the procedures described in Section 3 of the Exchange Offer and
in the instructions hereto will constitute a binding agreement between the
undersigned and Offeror with respect to such Shares upon the terms and subject
to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth
in the Exchange Offer, Offeror may not be required to accept for exchange any of
the Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the Common Stock and/or return any Certificates evidencing
Shares not tendered or not accepted for exchange in the name(s) of the
registered holder(s) appearing under "Description of Shares Tendered".
Similarly, unless otherwise indicated under "Special Delivery Instructions",
please mail the Common Stock
<PAGE 183>
and/or return any Certificates evidencing Shares not tendered or
not accepted for exchange (and accompanying documents, as appropriate) to
the address(es) of the registered holder(s) appearing under "Description
of Shares Tendered". In the event that both the "Special Payment
Instructions" and the "Special Delivery Instructions" are completed, please
issue the Common Stock and/or return any such Certificates evidencing Shares not
tendered or not accepted forexchange (and accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return such
certificates (and accompanying documents, as appropriate) to, the person(s)
so indicated. Unless otherwise indicated herein under "Special Payment
Instructions", in the case of a book-entry delivery of Shares, please credit the
account maintained at the Book-Entry Transfer Facility indicated above with
respect to any Shares not accepted for payment. The undersigned recognizes
that Offeror has no obligation pursuant to the "Special Payment Instructions"
to transfer any Shares from the name of the registered holder thereof if Offeror
does not accept for exchange any of the Shares tendered hereby.
- ----------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for exchange and/or the Common Stock are to be issued in the name
of someone other than the undersigned, or if Shares delivered by book-entry
transfer that are not accepted for exchange are to be returned by credit to an
account maintained at a Book-Entry Transfer Facility other than the account
indicated above.
Issue:_________ Check ________ Certificate(s) to:
Name: _______________________________________________________________
(Please print or type)
Address: _______________________________________________________________
(Include Zip Code)
_______________________________________________________________
(Tax Identification or Social Security Number)
(See Substitute Form W-9)
_____ Credit unexchanged Common Shares delivered by book-entry
transfer to the Book-Entry Transfer Facility account set forth
below:
Check appropriate Box:
______ The Depositor Trust Company
______ Philadelphia Depository Trust Company
____________________________________________
(Account Number)
_____________________________________________________________________________
<PAGE 184>
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not
accepted for exchange and/or the Common Stock are to be sent to someone
other than the undersigned, or to the undersigned at an address other than
that
above.
Mail: (check appropriate box(es))
_____ Check to:
_____ Certificate(s) to:
Name:_______________________________________________________________
(Please print or type)
Address: ______________________________________________________________
(Include Zip Code)
________________________________________________________________________
(Tax Identification Number)
(See Substitute Form W-9)
STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE FORM W-9 BELOW
_______________________________________________________________
_______________________________________________________________
(SIGNATURE(S) OF STOCKHOLDER(S))
DATED: ____________________________, 2000
- ----------------------------------------------------------------------------
IMPORTANT
STOCKHOLDER SIGNATURE
(Also Complete Substitute Form W-9 Below)
- ---------------------------------------------------------------
- ---------------------------------------------------------------
(Signature(s) or Owner(s)
Name(s)_________________________________________________________
Name of Firm____________________________________________________
Capacity (full title)___________________________________________
(See Instruction 5)
Address_________________________________________________________
________________________________________________________________
(Zip Code)
<PAGE 185>
Area Code and Telephone Number____________________________________
Taxpayer Identification or Social Security Number____________________
(See Substitute Form W-9)
Dated:________________, 2000
(Must be signed by registered holder(s) exactly as name(s) appear(s)
on stock certificate(s) or on a security position listing or by the person(s)
authorized to become registered holder(s) by certificates and documents
trnasmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, agent, officer or a corporation or other person
acting in a fiduciary or representative capacity, please set forth full title
and see Instruction 5).
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN
SPACE BELOW.
Authorized signature(s)___________________________________________________
Name(s)___________________________________________________________________
__________________________________________________________________________
Name of Firm______________________________________________________________
(Please Print)
__________________________________________________________________________
(Zip Code)
Area Code and Telephone Number____________________________________________
Dated:__________________, 2000
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below,
signatures on this Letter of Transmittal must be guaranteed by a member in
good standing of the Securities Transfer Agent's Medallion Program, or by any
other bank, broker, dealer, credit union, savings association or other entity
that is an "eligible guarantor institution", as such term is defined in Rule
17Ad-15 under the
<PAGE 186>
Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
of the foregoing constituting an "Eligible Institution"), unless the Shares
tendered hereby are tendered (i) by the registered holder (which term, for
purposes of this document, shall include any participant in a Book-Entry
Transfer Facility whose name appears on a security position listing as the owner
of Shares) of such Shares who has completed neither the box entitled "Special
Payment Instructions" nor the box entitled "Special Delivery Instructions"
hereby or (ii) for the account of an Eligible Institution. See Instruction 5. If
the Certificates are registered in the name of a person other than the signer
of this Letter of Transmittal, or if the Units are to be made or delivered
to, or Certificates evidencing unexchanged Shares are to be issued or
returned to, a person other than the registered owner, then the tendered
Certificates must be endorsed or accompanied by duly executed stock powers,
in either case signed exactly as the name or names of the registered owner or
owners appear on the Certificates, with the signatures on the Certificates or
stock powers guaranteed by an Eligible Institution as provided herein. See
Instruction 5.
2. Requirement of Tender. This Letter of Transmittal is to be completed by
Stockholders if Certificates evidencing Shares are to be forwarded herewith
or, unless an Agent's Message is utilized, if delivery of Shares is to be made
pursuant to the procedures for book-entry transfer set forth in Section 3 of
the Exchange Offer. For a Stockholder to validly tender Shares pursuant to
the Offer, either
* a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof), with any required
signature guarantees or an Agent's Message (in connection with
book-entry transfer of shares of Common Stock) and any other
required documents, must be received by the Depositary at one
of its addresses set forth herein prior to the Expiration Date
(as defined in Section 1 of the Exchange Offer) and either (i)
Certificates for tendered Shares must be received by the
Depositary at one of such addresses prior to the Expiration
Date or (ii) Shares must be delivered pursuant to the
procedures for book-entry transfer set forth in Section 3 of
the Exchange Offer and a Book-Entry Confirmation must be
received by the Depositary on or prior to the Expiration Date or
* the tendering stockholder must comply with the guaranteed delivery
procedures set forth herein and in Section 3 of the Exchange Offer.
Stockholders whose certificates for securities are not immediately available
or who cannot deliver their certificates and all other required documents to the
Depositary prior to the expiration Date or who cannot comply with the book entry
procedures on a timely basis may tender their securities by properly
completing and duly executing the Notice of Guaranteed Delivery pursuant to
the guaranteed delivery procedures set forth herein and in Section 3 of the
Exchange Offer.
Pursuant to such guaranteed delivery procedures,
* such tender must be made by or through an Eligible Institution,
* a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Offeror, must
be received by the Depositary prior to the Expiration Date and
* the certificates of all tendered securities, in proper form
for transfer (or a book-entry Confirmation with respect to all
tendered securities), together with a properly completed and
duly executed Letter of Transmittal (or a manually signed
facsimile thereof), with any required signature guarantees, or,
in the case of a book-entry transfer, an Agent's Message, and any
<PAGE 187>
other required documents must be received by the Depositary
within three trading days after the date of execution of such
Notice of Guaranteed Deliver. A "trading day" is any day on
which the Nasdaq National Market is open for business.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and form a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the shares of Common Stock, that such participant
has received and agrees to be bound by such terms of the Letter of
Transmittal and that Offeror may enforce such agreement against the participant.
The signatures on this Letter of Transmittal cover the securities tendered
hereby.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE
TENDERING STOCKHOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and
no fractional Shares will be exchanged. All tendering Stockholders, by execution
of this Letter of Transmittal (or a facsimile thereof), waive any right to
receive any notice of the acceptance of their Shares for exchange.
3. Inadequate Space. If the space provided herein is inadequate, the
information required under "Description of Shares Tendered" should be listed
on a separate signed schedule attached hereto.
4. Partial Tenders. If fewer than all of the Shares represented by any
Certificates delivered to the Depositary herewith are to be tendered hereby,
fill in the number of Shares which are to be tendered in the box entitled
"Number of Shares Tendered." In such case, if Offeror accepts the tendered
Shares for exchange, a new Certificate for the remainder of the Shares that
were evidenced by your old certificate(s) will be sent, without expense, to
the person(s) signing this Letter of Transmittal, unless otherwise provided in
the box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" on this Letter of Transmittal, as soon as practicable
after the Expiration Date. All Shares represented by Certificate(s) delivered to
the Depositary will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal, , Instruments of Transfer and
Endorsements. If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
<PAGE 188>
If any of the tendered Shares are registered in different names on
several Certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
Certificates.
If this Letter of Transmittal or any Certificates or instruments of
transfer are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing, and proper evidence satisfactory to Offeror of such person's
authority to so act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of
the Shares listed and transmitted hereby, no endorsements of Certificates or
separate instruments of transfer are required unless payment is to be made, or
Certificates not tendered or not exchanged are to be issued or returned, to
a person other than the registered holder(s). Signatures on such Certificates
or instruments of transfer must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by the Certificate(s) listed and
transmitted hereby, the Certificate(s) must be endorsed or accompanied by
appropriate instruments of transfer, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Certificate(s). Signatures
on such Certificate(s) or instruments of transfer must be guaranteed by an
Eligible Institution.
6. Transfer Taxes. Offeror will not pay or cause to be paid any
transfer taxes with respect to the transfer and sale of Shares to it or its
order pursuant to the Offer and such transfer taxes will be charged to the
tendering stockholder.
7. Special Payment and Delivery Instructions. If Certificates for
unexchanged Shares are to be issued in the name of a person other than the
signer of this Letter of Transmittal or such Certificates are to be returned
to someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. If any tendered Shares are not exchanged for
any reason and such Shares are delivered by Book-Entry Transfer Facility,
such Shares will be credited to an account maintained at the appropriate Book
- -Entry Transfer Facility.
8. Waiver of Conditions. The conditions of the Offer may be waived by
Offeror, in whole or in part, at any time or from time to time, in Offeror's
sole discretion subject to the conditions described in the Exchange Offer.
9. Backup Withholding Tax. Each tendering Stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN")
on Substitute Form W-9, which is provided under "Important Tax Information"
below and to certify that the stockholder is not subject to backup
withholding.
FAILURE TO PROVIDE THE INFORMATION ON THE SUBSTITUTE FORM W-9 MAY SUBJECT THE
TENDERING STOCKHOLDER TO 31% FEDERAL INCOME TAX BACKUP WITHHOLDING ON THE
PAYMENT OF THE PURCHASE PRICE FOR THE SHARES.
<PAGE 189>
The tendering Stockholder should indicate in the box in Part III of the
Substitute Form W-9 if the tendering Stockholder has not been issued a TIN
and has applied for a TIN or intends to apply for a TIN in the near future.
If the Stockholder has indicated in the box in Part III that a TIN has been
applied for and the Depositary is not provided with a TIN by the time
of payment, the Depositary will withhold 31% of all Units, if any, made
thereafter pursuant to the Offer until a TIN is provided to the Depositary.
10. Lost or Destroyed Certificates. If any Certificate(s) representing
Shares has been lost or destroyed, the holders should promptly notify the
Company's transfer agent, Bank of New York. The holders will then be
instructed as to the procedure to be followed in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed Certificates have
been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
THEREOF) TOGETHER WITH ANY REQUIRED SIGNNATURE GUARANTEES, OR, IN THE CASE OF
ABOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS,
MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER
CERTIFICATES FOR TENDERED SECURITIES MUST BE RECEIVED BY THE DEPOSITARY OR
SECURITIES MUST BE DLEIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY
TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING
STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Stockholder whose tendered Shares are
accepted for exchange is required to provide the Depositary (as payor) with
such Stockholder's correct TIN on Substitute Form W-9 below. If such
Stockholder is an individual, the TIN is his or her social security number. If
the tendering Stockholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, such Stockholder
should so indicate on the Substitute Form W-9. See Instruction 10. If the
Depositary is not provided with the correct TIN, the Stockholder may be
subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such Stockholders with respect to Shares
purchased pursuant to the Offer may be subject to backup federal income tax
withholding.
Certain Stockholders (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, such Stockholder must submit a statement, signed under
penalties of perjury, attesting to that individual's exempt status. Forms for
such statements can be obtained from the Depositary. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold
31% of any payments made to the Stockholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the
Internal Revenue Service.
<PAGE 190>
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding with respect to payment
of the purchase price for Shares purchased pursuant to the Offer, a
Stockholder must provide the Depositary with his correct TIN by completing the
Substitute Form W-9 below, certifying that the TIN provided on Substitute Form
W-9 is correct (or that such Stockholder is awaiting a TIN) and that (1) such
Stockholder has not been notified by the Internal Revenue Service that he is
subject to backup withholding as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has notified the Stockholder
that he is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are registered in more than one name or are not
in the name of the actual owner, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
______________________________, 2000
Signature
Date
Name (Please Print)
- ------------------------------------------------------------
<PAGE 191>
PAYOR'S NAME: HACKNEY & MILLER, P.A.
- -----------------------------------------------------------------------------
SUBSTITUTE
Form W-9
Department of Treasury
Internal Revenue Service
Payor's Request for
Taxpayer Identification
Number ("TIN") and
Certification
Part 1. Please provide your TIN in the box at right and certify by signing and
Dating below.
Social Security Number OR Employer Identification Number
_______________________________
Part 2. Check the box if you are NOT subject to backup withholding under
the Provisions of Section 3408(a)(1)(C) of the Internal Revenue Code of 1986
because (1) you have not been notified that you are subject to backup
withholding as a result of failure to report all interest or dividends or
(2) the Internal Revenue Service has notified you that you are no longer
subject to backup withholding
- ----------------------------------------------------------------------------
Part 3 - Certification - Under the penalties of perjury, I certify that the
information Provided on this form is true, correct and complete.
- -----------------------------------------------------------------------------
Print your name: ___________________________
Address: __________________________________
__________________________________________
__________________________________________
Signature: _________________________________
Date: ____________________________
- -----------------------------------------------------------------------------
Awaiting TIN
- ----------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3
OF SUBSTITUTE FORM W-9.
- ----------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number within 60 days, 31%
of all reportable payments made to me thereafter will be withheld until I
provide a number.
____________________________________________
____________________________________________________
Signature Date
- -----------------------------------------------------------------------------
<PAGE 192>
Exhibit 28.1
Notice of Guaranteed Delivery
For
Tender of Shares of Common Stock
Of
Autonation, Inc.
Or
HealthSouth, Inc.
To
Moore Solutions, Inc.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or a form substantially equivalent
hereto, must be used to accept the Offer (as defined below) (i) if certificates
for Securities (as defined below) are not immediately available, (ii) if the
procedure for book-entry transfer cannot be completed prior to the Expiration
Date (as defined in Section 1 of the Offer to Purchase described below) or
(iii) if time will not permit all required documents to reach the Depositary
prior to the Expiration Date. Such form may be delivered by hand,
transmitted by facsimile transmission or mailed to the Depositary.
The Depositary for the Offer is:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Telephone: (302) 651-1000
(for eligible institutions only)
Confirm Facsimile by Telephone Only:
<PAGE 193>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE
INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST
APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF
TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Moore Solutions, Inc., a Florida
corporation ("Offeror") upon the terms and subject to the conditions set
forth in the Offeror's Exchange Offer dated __________, 2000 (the "Exchange
Offer") and the related Letter of Transmittal (which, together with any
amendments or supplements thereto, constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the number of shares set forth below of
common stock, (the "Securities"), of the Company, pursuant to the guaranteed
delivery procedures set forth in the Exchange Offer.
Signature(s)_____________________ Address(es)_________________________
_______________________________ ___________________________________
Zip Code
Name(s) of Record Holder(s)________ Area Code and Tel.No.(s)______________
________________________________ Taxpayer Identification or
Please Print or Type Social Security Number________________
Number of shares of Common Stock Check box if shares of Common Stock will
_________________ be tendered by book-entry transfer: [___]
Certificate No.(s) (If Available) Account Number_____________________
_______________________________
_______________________________
Dated ________________, 2000
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
-----------------------------------------------
BELOW
(Not to be used for signature guarantee)
<PAGE 194>
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program, the
Stock Exchange Medallion Program or an "eligible guarantor institution" as such
term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, hereby guarantees to deliver to the Depositary either certificates
representing the shares of Common Stock and shares of Preferred Stock tendered
hereby, in proper form for transfer, or, in the case of shares of Common
Stock, confirmation of book-entry transfer of such shares of Common Stock
into the Depositary's accounts at The Depositary Trust Company, in each case
with delivery of a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof), with any required signature
guarantees, or an Agent's Message (as defined in the Offer to Purchase), and
any other required documents, within three trading days (as defined in the Offer
to Purchase) after the date hereof.
_________________________________ ____________________________________
Name of Firm Authorized Signature
_________________________________ Name_______________________________
Address Please Print or Type
_________________________________ Title________________________________
Zip Code
Date___________________________,2000
Area Code and Tel. No.______________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OF COMMON STOCK WITH THISNOTICE.
CERTIFICATES SHOULD BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
<PAGE 195>
Exhibit 28.3
Reminder: Electronic Shareholder Communications
You must consent to electronic delivery of shareholder documents via posting
on this Moore Solutions, Inc., web site with notice to your internet e-mail
address in order to invest in Moore Solutions, Inc.. Shareholder documents
will be provided only by accessing Moore Solutions' web site. It is
your sole responsibility to visit the Company's web site on a regular basis
to get time-sensitive information. , Moore Solutions, Inc., Crown Capital
Advisors and all their affiliates are not liable for undelivered electronic
communications.
You will be required to consent to this method of information delivery before
any shares of Moore Solutions, Inc., may be acquired, and if you liquidate
your holdings and subsequently reinvest in the Company. You may inform us of
your decision to revoke consent by sending notice of your decision to consent
via first class U.S. mail to: Moore Solutions, Inc., c/o Crown Capital
Advisors, 4400 PGA Boulevard, Palm Beach Gardens, FL 33410. Upon receipt of
your letter, we will send notice to you that we have received your revocation.
You will be able to print and download shareholder documents, which you may
wish to do in case the web site may become temporarily unavailable to you for
any reason. This process for delivery of Company documents is not infallible
and you will be notified of alternative methods of delivery including the use
of your internet e-mail address.
The consent to receive shareholder documents electronically applies to all
Company documents, including but not limited to, prospectuses, semi-annual
and annual shareholder reports, transaction confirmations, periodic
statements and proxy solicitations. We reserve the right, however, to send you
paper documents. You may not limit the breadth your consent to electronic
delivery to exclude certain documents. You may incur costs for on-line
access and time in accessing shareholder documents.
Information transmitted over the internet, which may include personal
information sent by you or to you, may not be entirely secure, and Moore
Solutions, Inc. and Crown Capital and all of their affiliates are not liable
for misused information.
You hereby consent to the conditions outlined above concerning delivery of
documents and redemption of shares. In addition, you represent that you have
and will maintain internet access.
I hereby consent to receive delivery of future preliminary prospectuses and
the final prospectus relating to the Moore Solutions, Inc. exchange offer, in
addition to any proxy statements, annual reports, quarterly reports and other
filings under the Securities and Exchange Act of 1934, as amended, which you
are required to deliver to me, by viewing or downloading such documents on
or from your World Wide Web site. I understand that you will transmit an
email message to me notifying me when you have posted any such document on your
website, together with a hyperlink directly to documents or such filing. I
acknowledge that I may incur costs from third parties in access such filings,
such as online time.
<PAGE 196>
O I consent.
O I do not consent.
For Prospectus Review:
Investors must represent that they have reviewed the most current version of
Moore Solutions' prospectus before the Company will permit an exchange of
shares. Prospectus & Reports
----------------------
Please confirm that you have read the Company's prospectus:
O I have reviewed the most current version of the prospectus.
O I have not reviewed the most current version of the prospectus.
A registration statement relating to these securities has been filed with the
Securities and Exchange Commission but has not yet become effective. These
securities may not be exchanged nor may offers to exchange be accepted prior
to the time the registration statement becomes effective. This communication
shall not constitute an offer to sell, solicitation of an offer to buy nor
shall there be any sale or these securities in any State in which such offer,
solicitation, exchange or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
No offer to exchange the securities can be accepted until the registration
statement has become effective, and any such offer may be withdrawn or
revoked, without obligation or commitment of any kind, at any time prior to
notice of its acceptance given after the effective date. An indication of
interest in response to this advertisement will involve no obligation or
commitment of any kind.
SEABREEZE PROFESSIONAL BUILDING LEASE
THIS LEASE is made and effective on August 1st, 1998, by and between
AMERICAN SEABREEZE, INC., with its principal office located in the
Seabreeze Professional Building, Port St. Lucie, Florida, Lessor, and Moore
Solutions, Inc., hereinafter referred to as Lessee.
SECTION ONE: DEMISE AND DESCRIPTION OF PREMISES
Lessor leases to Lessee hires and takes from Lessor that certain office space
known as Unit 101, located on the 1st floor of a three story office building
known as the Seabreeze Professional Building, which is herein referred to as
the demised premises, situated in the City of Port St. Lucie, St. Lucie County,
Florida, together with all easements, rights improvements, and appurtenances
in connection therewith. The demised premises consists of approximately One
Thousand Thirty (1,030) square feet within the office building, all of which
is a part of an office building which contains other spaces for rent, a parking
area, and common facilities for the use and benefit of all tenants of such
office building.
The term "common facilities" as used herein shall be construed to include
those facilities within the office building for the non-exclusive use of Lessee
in common with other authorized users, and shall include, but not be limited to,
sidewalks, planting areas, open means of ingress and egress, and the structure
advertising of the common name given to the office building.
SECTION TWO: COMMON FACILITIES
a. MAINTENANCE. Lessor, throughout the term of this Lease shall
maintain and keep the common facilities of the office building in good
order, condition, and repair, including adequate lighting, painting,
supervision, and the like.
b. Cost of maintenance. In addition to the rent as hereinafter
specified to be paid by the Lessee to the Lessor, Lessee agrees that the same
shall be increased by the amount of the Lessor's actual per square foot cost
of operating and maintaining said building (as hereinafter defined) have been
incurred for each lease year.
The words "actual per square foot cost of maintaining and operating
said building" as used in this section shall mean the total of all
amounts actually expended in a lease year by the Lessor in operating
and maintaining said building (including, but not by way of limitation,
the amounts expended for electricity, property taxes, insurance premiums,
cleaning, garbage removal, water and sewage, repairs, but excluding
depreciation) divided by the total number of square feet of rental space
in the office building.
Lessee shall pay on a per square foot basis equal only to its area
of occupancy therein of approximately 1,030 square feet equaling its
percentage of the total square footage of the building of approximately
20,000 square feet as its prorata share within fourteen (14) days after
receipt of a statement therefore. Such charges shall be passed along to the
tenant on a monthly basis.
c. Use. Lessee and all those having business with it will, in common
with the other tenants and their customers and others having business
with them, have the right to use and enjoy the common facilities for their
intended purposes.
d. Governing Regulations. Lessee will comply and cause its employees
and agents to comply with all rules and regulations adopted by Lessor
in connection with the use of the common facilities, and with all
supplements thereto and amendments thereof which Lessor may hereafter
adopt. All such rules and regulations shall pertain to the safety, care,
use and cleanliness of the common facilities and the preservation of good
order therein and thereon. No rules or regulations now in effect or
hereafter adopted shall be inconsistent with any provisions of this Lease
or unreasonably interfere with Lessee's use and enjoyment of the demised
premises.
All rules and regulations and supplements thereto and amendments
thereof which Lessor may adopt shall be in writing, and a copy thereof
shall be delivered to Lessee.
<PAGE 2>
e. Violation of Regulations. If Lessee shall fail within seventy-two
(72) hours after receipt of written notice of any violation by Lessee or its
employees or agents of any such rules or regulations, to cure such violation,
such failure shall constitute a default under this Lease.
f. Employee Parking. Lessee shall enforce among its employees those
restrictions as established by the Lessor as relating to parking spaces for such
employees.
SECTION THREE: RENTAL AND RELATED CHARGES
a. Basic Rent. Lessee shall pay the Lessor at the Seabreeze Professional
Building, Port St. Lucie, Florida 34952, or such place as Lessor may from
time to time designate, the sum of $12,360.00 payable in equal monthly
installments of $1,030.00, this sum being equal to a sum equal to $12.00 per
square foot for each year of the lease period, payable in regular monthly
installments, plus any applicable state and local sales tax. Such square
footage shall be as measured as set forth in Exhibit "A" attached hereto and
made a part hereof. In this connection, Lessor acknowledges the receipt of
the first month's rent, last month's rent and a security deposit equal to
one month's rent.
In addition to the rental as herein set forth, Lessee shall pay as a part
thereof all applicable sales taxes as may be levied or charged on such
rentals. Said sums shall be payable on the first day of each month
during the term as specified.
This Lease and the rental payments required hereunder shall commence on the
first day of occupancy for business of the demised premises and will so
continue until the termination of this lease in such amounts as hereinabove set
forth.
SECTION FOUR: LATE CHARGES
This lease made upon the following further terms, conditions and covenants:
In addition to all other payments provided for in this lease, Lessee shall be
assessed with and shall pay a late charge of ten (10%) percent of each rental
installment which is delinquent for ten (10) days or more.
SECTION FIVE: TERM
a. The term of this Lease shall be for a period of 3 years and shall commence
on August 1, 1998.
b. RENT SCHEDULE
*Base Rent *C.A.M. Taxes Insurance
- ----------------------------------------------------------------------------
3 year initial 12.00 plus pro-rata plus pro-rata plus pro-rata
term share share share
the first term only, a $4.00 cap applies
*Plus applicable sales tax
c. Option to Renew: The tenant shall have 2 options (s) to renew for a 3
year period.
d. This right to an additional period of lease term shall be exercised
in writing by the lessee by giving to the lessor sixty (60) days notice of its
intention to exercise the same prior to the termination of the then existing
term.
e. On the first day of each option Lease period and at the commencement
of each lease option period thereafter, the basic rent set forth herein
shall be increased for the ensuing option period in the same proportion that the
Use Index for the last month of the just expired Lease year shall have
increased in the aggregate over the said index figure for the month
immediately proceeding. However in no event shall the monthly rent ever
increase by more then 5% per year or be less than the basic monthly rent. In
the event that Index shall be discontinued or no longer published, Lessor shall
substitute a comparable price index or formula and such substitute price index
or formula shall have the same effect as if originally designated herein as
the index.
<PAGE 3>
SECTION SIX: OCCUPANCY AND ACCEPTANCE OF PREMISES
By entering into and occupying the demised premises, Lessee shall be deemed
to acknowledge that the demised premises are in good order and repair. The
entering on the demised premises by Lessee for the purpose of the installation
of trade fixtures, furnishings, and equipment or the storage of merchandise
shall be construed as an acceptance of the demised premises.
SECTION SEVEN: USE OF PREMISES
a. Purposes. Lessee shall use the demised premises for the purpose of
conducting Computer Sales and Service and no part of the demised premises
shall be used for any other purpose without the prior written consent of
Lessor.
b. Business Name. The name of Lessee's business will be Moore Solutions,
Inc..
c. Public Auctions. No sale or auction by Lessee or other shall be made in or
from the demised premises.
d. Maintenance of Premises. Lessee shall at all times maintain the demised
premises in a clean, neat and orderly condition. Lessee shall not use the
demised premises or any part thereof, or permit any part of the demised
premises to be used, or permit any act whatsoever to be done on the demised
premises, in a manner that will violate or make void or inoperative any policy
of insurance held by the Lessor.
e. Storage of Inflammable Materials. Lessee shall not keep or permit to be
kept at, in, or about the demised premises any gasoline, distillate, or other
petroleum product, or any other substance or material of an explosive or
inflammable nature in such quantities as may endanger any part of the
demised premises without the written consent of all insurance companies
carrying fire or rent insurance on all of the office building or any part
thereof, or do any act or engage in any conduct which shall cause an increase
in the fire insurance rates covering the office building over those charged by
reason of the use thereof of the character permitted to Lessee.
f. Use Impairing Structural Strength. Lessee shall not permit the demised
premises or any part thereof to be used in any manner that will impair the
structural strength thereof or permit the installation of any machinery or
apparatus the weight or vibration of which may tend to injure or impair the
foundations or structural strength thereof.
g. Garbage Disposal. Lessee shall not burn or incinerate any rubbish,
garbage, or debris at, in, or about the demised premises, and shall cause all
containers, rubbish, garbage, and debris accumulated therein to be stored
within the demised premises, to be hauled away therefrom for disposal prior to
the accumulation of any substantial quantity.
h. Public Regulations. In the conduct of its business in and about the
demised premises, Lessee shall observe and comply with all laws, ordinances,
and regulations of public authorities.
SECTION EIGHT: INSTALLATION AND MAINTENANCE OF
FIXTURES
Lessee shall be responsible for any improvements it desires on said premises
including the installation of public or private bathrooms on the premises.
Such improvements shall be completed within thirty (30) days from the date of
issuance to the issuance to the Lessor of a Certificate of Occupancy for the
building or leased premises or the Charter, whichever shall last occur, and the
Lease term hereof shall then commence. Lessor acknowledges that the Lessee
is only utilizing said 1,030 square feet of the 1st floor. Any alterations,
additions, or improvements made by either of the parties hereto upon the
premises, except movable office furniture and unattached trade fixtures put in
at the expense of the Lessee, shall be the property of the Lessor, and shall
remain upon and be surrendered with the premises at the termination
of this Lease, without molestation or injury.
Any merchandise, fixtures, furniture or furnishings and equipment owned by
the Lessee and left in or on the premises when the Lessee vacates shall be
deemed to have been abandoned by Lessee, and by such abandonment Lessee
automatically relinquish any right or interest therein and does hereby
specifically authorize the Lessor to sell, dispose of or destroy the same.
<PAGE 4>
SECTION NINE: SIDEWALK AND HALL ENCUMBRANCES
Lessee shall neither encumber nor obstruct the sidewalk in front of, or any
entrance to, the building on the leased premises. Lessee shall neither
encumber nor obstruct hallways or any entrance to another Lessee's entrance
on the leased premises.
SECTION TEN: SIGNS: EXTERIOR LIGHTING AND FIXTURES
a. Exterior Signs. Lessor shall provide all exterior and/or interior lobby
signs as it alone deems necessary to identify the tenants of the entire
building and Lessee shall not erect any such signs without prior written
consent of the Lessor. All cost of installation of such signage shall be
the Lessee's responsibility.
SECTION ELEVEN: ALTERATIONS, CHANGES AND ADDITIONS
No structural changes, alterations, or additions shall be made by Lessee to the
demised premises except as set forth in Exhibit "A", without the written
consent of Lessor, and any such structural change, alteration, or addition to or
on the demised premises made with the aforesaid written consent of Lessor
shall remain for the benefit of and become the property of Lessor, unless
otherwise provided in the written consent.
SECTION TWELVE: DEFECTS: DEFECTIVE CONDITION, WIND, ACTS OF THIRD
PERSONS
a. Lessor's Liability. Lessor shall not be liable to Lessee for any damage
or injury to Lessee or Lessee's property occasioned by any defect of
plumbing, heating, air cooling, air conditioning, equipment and ducts,
electrical wiring or insulation thereof, or from broken steps, or from
the backing up of any sewer pipe, or from the bursting, leaking, or
running of any tank, tub, washstand, toilet, or waste pipe, drain, or any
other pipe or tank in, on, or about the demised premises, or for any
such damage or injury occasioned by water from being on or coming
through the roof, stairs, walks, or any other place on or near the
demised premises unless Lessor neglects or fails to make necessary
repairs required of it to be made under the terms of this Lease after
receipt of written notice thereof from Lessee, or for any such damage
or injury done or occasioned by the falling of any fixture, plaster, or
stucco, or for any such damage or injury caused by wind or by the act,
omission, or negligence of co-tenants or of other persons, occupants of
the same building or of adjacent buildings or contiguous property.
b. Waiver of Claims Against Lessor. All claims against Lessor for any
damage or injury as provided in Paragraph a of this section, are hereby
expressly waived by Lessee, except those claims occasioned by
Lessor's neglect or failure to make repairs for which Lessor is
responsible under this Lease, after due written notice thereof by
Lessee.
SECTION THIRTEEN: CASUALTY DAMAGE, REPAIR, ABATEMENT OF RENT
a. Use of Partially Damaged Premises. In the event of partial damage or
destruction of the demised premises, Lessee shall continue to utilize
the premises for the operation of its business to the extent that it may
be practicable to do so from the standpoint of good business.
b. Right to Terminate on Destruction of Premises Where Damage
Exceeds Two Thirds of Reconstruction Cost. Either party hereto shall
have the right to terminate this Lease, if during the last six (6) months
of the term hereof the demised premises are damaged to an extent
exceeding two-thirds (2/3) of the then reconstruction cost of such
building as a whole; provided that, in such an event, such termination
of this Lease shall be effected by written notice to that effect to the
other party delivered within thirty (30) days of the happening of such
casualty causing the damage.
c. Repairs by Lessor. If the demised premises shall, either prior to the
beginning of or during the term hereof, be damaged or destroyed by
fire or by any other cause whatsoever beyond Lessee's control, Lessor,
except as hereinafter otherwise provided, shall immediately on receipt
of insurance proceeds paid in connection with such casualty insurance,
but in no event later than sixty (60) days after such
<PAGE 5>
damage has occurred, proceed to repair or rebuild the same, including
any additions or improvements made by Lessor or by Lessee with Lessor's
consent, on the same plan and design as existed immediately before such
damage or destruction occurred, subject to such delays as may be reasonably
attributable to governmental restrictions or failure to obtain materials
or labor, or other causes whether similar or dissimilar, beyond the control
of Lessor. Materials used in repair shall be as nearly like original
materials as may then be reasonably procured in regular channels of supply.
Whenever a strike, act of God, or cause beyond the power of the party
affected to control causes delay, the period of such delay so caused shall
be added to the period limited in this Lease for the completion of such
work, reconstruction, or replacement.
d. Reduction of Rent During Repairs. In the event Lessee continues to
conduct its business during the making of repairs, the monthly rental
will equitably reduced in the proportion that the unusable part of the
demised premises bears to the whole thereof.
No rental shall be payable while the demised premises are wholly
unoccupied pending the repair of casualty damage.
e. Repair or Replacement of Fixtures. Lessee shall, as soon as reasonably
possible, replace or repair all fixtures in the demised premises which
may be damaged or destroyed by fire or any other cause whatsoever.
SECTION FOURTEEN: REPAIRS GENERALLY
Lessee shall, at its own expense, keep and maintain all of the demised
premises, including but not limited to air conditioning equipment, pumps,
wells, interior of building, sewage system, storefronts, bulkheads, exterior
entry and exit doors, ornamental facing, plate glass, and glazing in or on the
demised premises, in good order, condition, and repair, and in compliance
with all laws and regulations applicable thereto, during the entire term of this
Lease, except for those repairs required of the Lessor to be made and damage
occasioned by fire, earthquake, or other cause or causes as provided.
SECTION FIFTEEN: UTILITIES
Lessee shall pay before delinquency all charges for water, gas, heat,
electricity, power, telephone service, janitorial collection, and other
similar charges incurred by Lessee with respect to and during its occupancy of
the demised premises. Electricity exterior lighting will be a position of
common maintenance and expense.
SECTION SIXTEEN: TAXES
Commencing with the calendar year of occupancy and continuing thereafter
during the term of this Lease, Lessee shall pay before delinquency any and all
taxes levied or assessed on Lessee's fixtures, equipment, and personal
property in and on the demised premises, whether or not affixed to the real
property.
If at any time after any tax or assessment has become due or payable, Lessee,
or its legal representative, neglects to pay such tax or assessment, Lessor
shall be entitled to pay the same at any time thereafter and such amount so
paid by Lessor shall be collectible in the same manner as rent for the Leased
premises.
SECTION SEVENTEEN: INSURANCE
a. Insurance Companies. All policies of insurance shall be kept and
maintained in force by Lessee and shall be obtained from good and
solvent insurance company. All insurance policies as herein required
shall name the Lessor as co-insured, as its interest shall appear.
b. Lessee to Obtain Liability Insurance. Lessee shall, at its own expense,
at all times during the term of this lease, maintain in force a policy or
policies of insurance, written by one or more responsible insurance
carriers approved by Lessor, which will insure Lessor against liability
for injury to or death of persons or loss or damage to property
occurring in or about the demised premises. The liability under such
insurance shall not be less than ONE HUNDRED THOUSAND AND
NO/100 DOLLARS ($100,000.00) for any one person killed or
injured. THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) for
any one accident, and ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00)
for property damage.
<PAGE 6>
c. Lessee to Obtain Plate Glass Insurance. Lessee shall maintain and
keep in force adequate plate glass insurance on all plate glass on the
demised premises.
d. Lessee to Obtain Workmen's Compensation Insurance. Lessee shall
maintain and keep in force all employees' compensation insurance
required under the laws of the State of florida, and such other
insurance as may be necessary to protect Lessor against any other
liability to persons or property arising hereunder by operation of law,
whether such law is now in force or is adopted subsequent to the
execution hereof.
e. Lessee to Obtain All Risk Insurance. Lessee shall maintain in force, at
all times during the term of this lease, fire, hazard and all risk
insurance and an umbrella liability policy in at least the amount of
ONE HUNDRED THOUSAND AND NO/100 ($100,000) DOLLARS which includes a full
replacement cost revision and a thirty (30) day non-renewal notice
provision providing for said notice to be sent to Lessor. All of such
policies shall name Lessor as a beneficiary thereof.
f. Lessee's Waiver of Casualty Insurance Proceeds. In the event the
demised premises shall be damaged or destroyed by fire, or other
casualty so insured against, Lessee shall claim no interest in any
insurance settlement arising out of any such loss where premiums are
paid by Lessee, or where Lessor is named as the sole beneficiary, and
shall execute any and all documents required by Lessoror the insurance
company or companies that may be necessary for use in connection
with settlement of any such loss.
g. Control of Insurance Proceed to Avoid Taxable Gain.
Notwithstanding any provision hereof inconsistent herewith, it is
particularly understood and agreed by the parties that in the even the
demised premises, including any improvements, addictions, or
betterments, shall be damaged or destroyed in whole or in part, in any
manner, and the receipt of any insurance proceeds or other
reimbursements for such damage would result in the realization of
taxable gain for federal and state purposes, the party hereto to whom
such gain would be taxed shall have the right to the any and all action
respecting such proceeds or reimbursements as may be necessary to
enable such party to comply with any laws or regulations of the
appropriate taxing authorities, to the end that such gain will not be
recognized for tax purposes. Nothing herein contained shall be
construed to entitle Lessor to delay the making of any repairs to or
restoration of all or any part of the building or improvements in the
event of damage or destruction.
h. Lessee's Failure to Insure. Should Lessee fail to keep in effect and pay
for such insurance as it is in this section required to maintain, Lessor
may do so, in which event the insurance premiums paid by Lessor shall
become due and payable forthwith and failure of Lessee to pay same
on demand shall constitute a breach of this lease.
SECTION EIGHTEEN: TRANSFER OR PLEDGE OF LEASEHOLD INTEREST
Lessee shall not assign this Lease or any interest therein, or sublet the
demised premises or any part thereof, or license the use of all or any portion
of the demised premises or business conducted thereon or therein, or encumber of
hypothecate this Lease, without first obtaining the written consent of Lessor;
and any assignment, subletting, licensing, encumbering, or hypothecating or
this Lease without such prior written consent shall, at the option of Lessor,
terminate this Lease.
SECTION NINETEEN: SURRENDER OF PREMISES
Lessee shall, at the termination of this Lease, vacate the demised premises in
as good condition as they were at the time of entry thereon by Lessee, except
for reasonable use and wear thereof, acts of God, or damage by casualty
beyond the control of Lessee, and on vacating shall leave the demised
premises free and clear of all rubbish and debris.
SECTION TWENTY: INDEMNIFICATION OF LESSOR
a. Lessee's Notice of Work to be Performed. Lessee shall serve a written
notice on Lessor at least ten (10) days prior to permitting any work
involving repairs, improvements, construction, and the like to be
commenced in or on the demised premises.
<PAGE 7>
b. Liens and Encumbrances. Lessee shall indemnify Lessor and the
premises herein demised and all improvements, placed thereon against
all claims, liens, claims of lien, demands, charges, encumbrances, or
litigation arising directly or indirectly out of or by reason of any work
or activity of Lessee on the demised premises, and shall forthwith and
within ten (10) days after the filing of any lien for record fully pay and
satisfy the same, and shall reimburse Lessor for all loss, damage, and
expense, including reasonable attorney's fees, which it may suffer or
be put to by reason of any such claims of lien, demands, charges,
encumbrances, or litigation.
In the event Lessee shall fail to pay and fully discharge any claim, lien,
claims of lien, demand, charge, encumbrance, or litigation, or should
proceedings be instituted for the foreclosure of any lien or
encumbrance. Lessor shall have the right, at its option, at any time
after the expiration of such ten (10) day period, to pay the same or any
portion thereof, with or without the costs and expenses claimed by
such claimant, and in making such payment Lessor shall be the sole
judge of the legality thereof. All amounts so paid by Lessor shall be
repaid by Lessee to Lessor on demand, together with interest thereon at
the rate of eighteen percent (18%) per annum from the date of payment
by Lessor until repayment is fully made.
c. Personal Injuries: Violation of Law. Lessee shall indemnify Lessor and
the demised premises against any cost, liability, or expense arising out
of any claims of any person or persons whatsoever by reason of the use
or misuse of the demised premises, parking area, or common facilities
by Lessee or any person or persons holding under Lessee, and shall
indemnify Lessor against any penalty, damage, or charge incurred or
imposed by reason of any violation of law or ordinance by Lessee or
any person or persons holding under Lessee, against any costs,
damage, or expense arising out of the death of or injury to any person
or persons holding under Lessee.
SECTION TWENTY-ONE: SUBORDINATION OF LEASE
Lessee shall execute any instrument permitting a first or subsequent mortgage
or mortgages to be placed on the demised premises or any part thereof as
security for any indebtedness, and subordinating this Lease to such mortgage
or mortgages, if required to do so by the secured party.
SECTION TWENTY-TWO: LESSOR'S RIGHT OF INSPECTION
Lessor shall have access to the demised premises, and each part thereof,
during Lessee's regular business hours for the purpose of inspecting the same,
making repairs and posting notices which Lessor may deem to be for the
protection of Lessor or the demised property.
SECTION TWENTY-THREE: DEFAULT
a. Lessor's Right to Repossess, Operate, or Relet. If the rental reserved
by this Lease or any other charges to be paid hereunder by Lessee, or
any part thereof, are not paid when due and shall remain unpaid for a
period of fifteen (15) days after notice thereof in writing, or if the
Lessee shall fail to promptly perform any other covenant, condition, or
provision by it to be performed hereunder and such failure shall
continue for a period of five (5) days after notice in writing specifying
the nature of such failure, or if Lessee abandons the demised premises,
or if Lessee breaches any obligation under this Lease by it to be
performed which cannot be cured, then, and in any such event, Lessee
shall be deemed to be in default and Lessor, without further notice may
at its option re-enter and take possession of the demised premises,
including all improvements thereon and fixtures and equipment
located at, in, or about the same, and take, operate, or relet the same in
whole or in part for the account of Lessee at such rental and on such
agreement and conditions and to such tenant or tenants as Lessor in
good faith may deem proper for a term not exceeding the unexpired
period of the full term of this Lease. Lessor shall receive all proceeds
and rent accruing from such operation or reletting of the demised
premises or fixtures and equipment and shall apply the same first to the
payment of all costs and expenses incurred by Lessor in obtaining
possession and in the operation or reletting of the demised premises or
fixtures and equipment, including reasonable attorney fees,
commissions, and collection fees, and any alterations or repairs
reasonably necessary to enable Lessor to operate or relet the premises
or fixtures and equipment
<PAGE 8>
and to the payment of all such amounts as may be due or become payable
under the provisions of this Lease, and the balance remaining, if any, at
the expiration of the full term of this Lease or on the sooner termination
thereof by written notice of termination given by Lessor to Lessee shall be
paid over to Lessee.
b. Repossession or Reletting Not a Termination: Lessor's Right to
Terminate Not Forfeited. No re-entry, repossession, operation, or
reletting of the demised premises or of fixtures and equipment shall be
construed as an election by Lessor to terminate this Lease unless a
written notice of such intention is given by Lessor to Lessee, and
notwithstanding any such operation or reletting without terminating
this Lease. Lessor may at any time thereafter elect to terminate this
Lease in the event at such time Lessee remains at default hereunder.
c. Lessee's Obligation to Pay Deficiencies. In the event the proceeds or
rentals received by Lessor under the provisions of this section are
insufficient to pay all costs and expenses and all amounts due and
becoming due hereunder, Lessee shall pay to Lessor on demand such
deficiency as may from time to time occur or exist.
SECTION TWENTY-FOUR: EXPENSES OF ENFORCEMENT
Should either party incur any expense in enforcing any provision of this Lease,
the party in default shall pay to the other all expenses so incurred, including
reasonable attorney's fees and costs of appeal, if necessary.
If at any time during the term of this Lease there shall be filed by or against
Lessee in any court, pursuant to any statute either of the United States or any
state, petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Lessee's property,
or if Lessee makes an assignment for the benefit of creditors, Lessee shall have
breached this Lease, and this Lease, at the option of Lessor exercised after
expiration of the period provide below, may be canceled and terminated. In
such event neither Lessee nor any person claiming through or under Lessee by
virtue of any statute or of an order of any court shall be entitled to
possession or to remain in possession of the demised premises, but shall
forthwith quit and surrender the premises.
SECTION TWENTY-FIVE: EMINENT DOMAIN
a. Over Certain Percentage Taken. In the event thirty percent (30%) or
more of the area of the demised premises shall be taken for a public or
quasi-public use, this Lease shall terminate as of the date of the actual
physical taking, and the parties shall thereupon be released from any
and all further liability hereunder.
b. Less Than a Certain Percentage Taken. In the event of a partial taking
of less than thirty percent (30%) of the area of the demised premises,
Lessor shall, with reasonable diligence, proceed at its own expense to
reconstruct or repair the demised premises and place the same in a
rentable condition within sixty (60) days after the date of the actual
physical taking; provided, however, that if thirty percent (30%) or
more of the area of the building as a whole is taken. Lessor
alternatively may elect to terminate this Lease notwithstanding that
less than thirty percent (30%) of the area of the demised premises were
taken. In the event of such termination the parties hereto shall be
released from any and all further liability under this Lease.
c. Abatement of Rent. During any reconstruction or repairing as herein
above provided, Lessee shall be required to pay only that portion of the
monthly rental herein provided as the area of the demised premises
remaining in a tenantable condition during such reconstruction or
repairing bears to the entire area herein leased. On completion of such
reconstruction or repairing, the fixed rental herein provided shall be
adjusted in the proportion that the reconstructed demised premises bear
to the original demised premises, and thereafter Lessee shall be
required to pay such adjusted rental in accordance with the provisions
of this Lease.
There shall be no abatement of any rental due until such time as there
shall be an actual physical possession of that portion of the demised
premises taken.
d. Right to condemnation Award. Any award made in any condemnation
proceeding for the taking of any part or all of the demised premises
shall be the sole property of and be paid to Lessor.
<PAGE 9>
SECTION TWENTY-SIX: GOVERNMENTAL INTERFERENCE WITH POSSESSION
Lessee shall not be released from its obligation hereunder should its
possession of the demised premises be interfered with or affected by reason of
the passage or adoption of any law, ordinance, resolution, regulation, or act of
any legal or governmental authority, or any order of abatement or judgement
preventing the use of the demised premises made on the ground that the
demised premises or the business operated therefrom constitute a nuisance.
SECTION TWENTY-SEVEN: QUIET ENJOYMENT
Lessor hereby covenants and warrants that, subject to any trust deeds or
mortgages now of record or hereafter placed on record, it is the owner of the
demised premises and that Lessee, on payment of rents herein provided for
and performance of the provisions hereof on its part to be performed, shall and
may peacefully possess and enjoy the demised premises during the term hereof
without any interruption or disturbance.
SECTION TWENTY-EIGHT: WAIVER OF BREACH
No waiver of any breach or breaches of any prevision of this Lease shall be
construed to be a waiver of any preceding or succeeding breach of such
provision or of any other provision hereof.
SECTION TWENTY-NINE: TIME OF THE ESSENCE
Time is of the essence of each and every provision hereof.
SECTION THIRTY: HEADINGS FOR CONVENIENCE ONLY
The headings used herein are for convenience and shall not be resorted to for
purposes of interpretation or construction hereon.
SECTION THIRTY-ONE: PRONOUNS
Feminine or neuter pronouns shall be substituted for those of masculine for or
vice versa, and the plural shall be substituted for the singular number or vice
versa in any place or places in which the context may require such substitution
or substitutions.
SECTION THIRTY-TWO: AMENDMENTS TO BE IN WRITING
This Lease may be modified or amended only by a writing duly authorized and
executed by both Lessor and Lessee. It may not be amended or modified by
oral agreements or understandings between the parties unless the same shall be
reduced to writing duly authorized and executed by both Lessor and Lessee.
SECTION THIRTY-THREE: PARTIES BOUND
Each and every provision of this Lease shall bind and shall inure to the benefit
of the parties hereto and their legal representatives. The term "legal
representatives" is used in this Lease in its broadest possible meaning and
includes, in addition to executors and administrators, every person,
partnership, corporation, or association succeeding to the interest or to any
part of the interest in or to this Lease or in or to the leased premises, or
either Lessor or Lessee herein, whether such succession results from the act of
a party in interest, occurs by operation of the law, or is the effect of the
operation of law together with the act of such party. Each and every
agreement and condition of this Lease by Lessee to be performed shall be
binding on all assignees, subtenants, concessionaires, and/or licensees of
Lessee.
SECTION THIRTY-FOUR: RULES
Lessor reserves the right to make and promulgate such reasonable rules
regarding use and occupancy of the premises and common areas as it may
deem necessary. Lessor may amend such rules from time to time as it sees fit.
Lessee agrees to abide by such rules and any amendments thereto.
SECTION THIRTY-FIVE: NOTICES
All notices or demands of any kind which Lessor may be required or may
desire to serve on Lessee under the terms of this Lease may be served on
Lessee (as an alternative to personal service) by leaving a copy of such
demand or notice , or by mailing a copy thereof by registered or certified mail,
postage prepaid, addressed Lessee at the demised premises or at such other
address or addresses as may from time to time be designated by Lessee in
writing to Lessor. Service shall be deemed complete at the time of the leaving
of such notice as aforesaid or within two (2) days within mailing of same. All
notices and demands from Lessee to Lessor may be similarly served on Lessor
at Seabreeze Professional Building, Port St. Lucie, Florida 34952, or at such
other address as Lessor my in writing designate to Lessee.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above mentioned.
AMERICAN SEABREEZE INC.
By:/s/ Nicholas Elliot
_______________________ ------------------------
WITNESS Nicholas Elliot
Dated: August 1, 1998
MOORE SOLUTIONS, INC.
By:/s/ Terrance Moore
________________________ ______________________________
WITNESS Terrance Moore
Dated: August 1, 1998
SEABREEZE PROFESSIONAL BUILDING LEASE
THIS LEASE is made and effective on August 1, 1998, by and between
AMERICAN SEABREEZE, INC., with its principal office located in the
Seabreeze Professional Building, Port St. Lucie, Florida, Lessor, and Moore
Solutions, Inc., hereinafter referred to as Lessee.
SECTION ONE: DEMISE AND DESCRIPTION OF PREMISES
Lessor leases to Lessee hires and takes from Lessor that certain office space
known as Unit 301, located on the 3rd floor of a three story office building
known as the Seabreeze Professional Building, which is herein referred to as
the demised premises, situated in the City of Port St. Lucie, St. Lucie
County, Florida, together with all easements, rights improvements, and
appurtenances in connection therewith. The demised premises consists of
approximately One Thousand Three Hundred Sixteen (1,316) square feet within
the office building, all of which is a part of an office building which contains
other spaces for rent, a parking area, and common facilities for the use and
benefit of all tenants of such office building.
The term "common facilities" as used herein shall be construed to include
those facilities within the office building for the non-exclusive use of Lessee
in common with other authorized users, and shall include, but not be limited to,
sidewalks, planting areas, open means of ingress and egress, and the structure
advertising of the common name given to the office building.
SECTION TWO: COMMON FACILITIES
a. MAINTENANCE. Lessor, throughout the term of this Lease shall
maintain and keep the common facilities of the office building in good
order, condition, and repair, including adequate lighting, painting,
supervision, and the like.
b. Cost of maintenance. In addition to the rent as hereinafter
specified to be paid by the Lessee to the Lessor, Lessee agrees that the same
shall be increased by the amount of the Lessor's actual per square foot cost
of operating and maintaining said building (as hereinafter defined) have been
incurred for each lease year.
The words "actual per square foot cost of maintaining and operating
said building" as used in this section shall mean the total of all
amounts actually expended in a lease year by the Lessor in operating
and maintaining said building (including, but not by way of limitation,
the amounts expended for electricity, property taxes, insurance premiums,
cleaning, garbage removal, water and sewage, repairs, but excluding
depreciation) divided by the total number of square feet of rental space
in the office building.
Lessee shall pay on a per square foot basis equal only to its area
of occupancy therein of approximately 1,316 square feet equaling its
percentage of the total square footage of the building of approximately
20,000 square feet as its prorata share within fourteen (14) days after
receipt of a statement therefore. Such charges shall be passed along to the
tenant on a monthly basis.
c. Use. Lessee and all those having business with it will, in common
with the other tenants and their customers and others having business
with them, have the right to use and enjoy the common facilities for their
intended purposes.
d. Governing Regulations. Lessee will comply and cause its employees
and agents to comply with all rules and regulations adopted by Lessor
in connection with the use of the common facilities, and with all
supplements thereto and amendments thereof which Lessor may hereafter
adopt. All such rules and regulations shall pertain to the safety, care,
use and cleanliness of the common facilities and the preservation of good
order therein and thereon. No rules or regulations now in effect or
hereafter adopted shall be inconsistent with any provisions of this Lease
or unreasonably interfere with Lessee's use and enjoyment of the demised
premises. All rules and regulations and supplements thereto and amendments
thereof which Lessor may adopt shall be in writing, and a copy thereof
shall be delivered to Lessee.
<PAGE 2>
e. Violation of Regulations. If Lessee shall fail within seventy-two
(72) hours after receipt of written notice of any violation by Lessee or its
employees or agents of any such rules or regulations, to cure such violation,
such failure shall constitute a default under this Lease.
f. Employee Parking. Lessee shall enforce among its employees those
restrictions as established by the Lessor as relating to parking spaces for such
employees.
SECTION THREE: RENTAL AND RELATED CHARGES
a. Basic Rent. Lessee shall pay the Lessor at the Seabreeze Professional
Building, Port St. Lucie, Florida 34952, or such place as Lessor may from
time to time designate, the sum of ______________ payable in equal monthly
installments of $___________, this sum being equal to a sum equal to $13.00
per square foot for each year of the lease period, payable in regular monthly
installments, plus any applicable state and local sales tax. Such square
footage shall be as measured as set forth in Exhibit "A" attached hereto and
made a part hereof. In this connection, Lessor acknowledges the receipt of
the first month's rent, last month's rent and a security deposit equal to
one month's rent.
In addition to the rental as herein set forth, Lessee shall pay as a part
thereof all applicable sales taxes as may be levied or charged on such
rentals. Said sums shall be payable on the first day of each month
during the term as specified.
This Lease and the rental payments required hereunder shall commence on the
first day of occupancy for business of the demised premises and will so
continue until the termination of this lease in such amounts as hereinabove set
forth.
SECTION FOUR: LATE CHARGES
This lease made upon the following further terms, conditions and covenants:
In addition to all other payments provided for in this lease, Lessee shall be
assessed with and shall pay a late charge of ten (10%) percent of each rental
installment which is delinquent for ten (10) days or more.
SECTION FIVE: TERM
a. The term of this Lease shall be for a period of 3 years and shall commence
on August 1, 1998.
b. RENT SCHEDULE
*Base Rent *C.A.M. Taxes Insurance
- ----------------------------------------------------------------------------
3 year initial 13.00 plus pro-rata plus pro-rata plus pro-rata
term share share share
*Plus applicable sales tax
c. Option to Renew: The tenant shall have 2 options (s) to renew for a 3
year period. --- ---
d. This right to an additional period of lease term shall be exercised
in writing by the lessee by giving to the lessor sixty (60) days notice of its
intention to exercise the same prior to the termination of the then existing
term.
e. On the first day of each option Lease period and at the commencement
of each lease option period thereafter, the basic rent set forth herein
shall be increased for the ensuing option period in the same proportion that the
Use Index for the last month of the just expired Lease year shall have
increased in the aggregate over the said index figure for the month
immediately proceeding. However in no event shall the monthly rent ever
increase by more then 5% per year or be less than the basic monthly rent. In
the event that Index shall be discontinued or no longer published, Lessor shall
substitute a comparable price index or formula and such substitute price index
or formula shall have the same effect as if originally designated herein as
the index.
<PAGE 3>
SECTION SIX: OCCUPANCY AND ACCEPTANCE OF PREMISES
By entering into and occupying the demised premises, Lessee shall be deemed
to acknowledge that the demised premises are in good order and repair. The
entering on the demised premises by Lessee for the purpose of the installation
of trade fixtures, furnishings, and equipment or the storage of merchandise
shall be construed as an acceptance of the demised premises.
SECTION SEVEN: USE OF PREMISES
a. Purposes. Lessee shall use the demised premises for the purpose of
conducting Computer Sales and Service and no part of the demised premises
shall be used for any other purpose without the prior written consent of
Lessor.
b. Business Name. The name of Lessee's business will be Moore Solutions,
Inc.. ---------------
- -----
c. Public Auctions. No sale or auction by Lessee or other shall be made in or
from the demised premises.
d. Maintenance of Premises. Lessee shall at all times maintain the demised
premises in a clean, neat and orderly condition. Lessee shall not use the
demised premises or any part thereof, or permit any part of the demised
premises to be used, or permit any act whatsoever to be done on the demised
premises, in a manner that will violate or make void or inoperative any policy
of insurance held by the Lessor.
e. Storage of Inflammable Materials. Lessee shall not keep or permit to be
kept at, in, or about the demised premises any gasoline, distillate, or other
petroleum product, or any other substance or material of an explosive or
inflammable nature in such quantities as may endanger any part of the
demised premises without the written consent of all insurance companies
carrying fire or rent insurance on all of the office building or any part
thereof, or do any act or engage in any conduct which shall cause an increase
in the fire insurance rates covering the office building over those charged by
reason of the use thereof of the character permitted to Lessee.
f. Use Impairing Structural Strength. Lessee shall not permit the demised
premises or any part thereof to be used in any manner that will impair the
structural strength thereof or permit the installation of any machinery or
apparatus the weight or vibration of which may tend to injure or impair the
foundations or structural strength thereof.
g. Garbage Disposal. Lessee shall not burn or incinerate any rubbish,
garbage, or debris at, in, or about the demised premises, and shall cause all
containers, rubbish, garbage, and debris accumulated therein to be stored
within the demised premises, to be hauled away therefrom for disposal prior to
the accumulation of any substantial quantity.
h. Public Regulations. In the conduct of its business in and about the
demised premises, Lessee shall observe and comply with all laws, ordinances,
and regulations of public authorities.
SECTION EIGHT: INSTALLATION AND MAINTENANCE OF FIXTURES
Lessee shall be responsible for any improvements it desires on said premises
including the installation of public or private bathrooms on the premises.
Such improvements shall be completed within thirty (30) days from the date of
issuance to the issuance to the Lessor of a Certificate of Occupancy for the
building or leased premises or the Charter, whichever shall last occur, and the
Lease term hereof shall then commence. Lessor acknowledges that the Lessee
is only utilizing said 1,316 square feet of the 3rd floor. Any alterations,
additions, or improvements made by either of the parties hereto upon the
premises, except movable office furniture and unattached trade fixtures put in
at the expense of the Lessee, shall be the property of the Lessor, and shall
remain upon and be surrendered with the premises at the termination
of this Lease, without molestation or injury.
Any merchandise, fixtures, furniture or furnishings and equipment owned by
the Lessee and left in or on the premises when the Lessee vacates shall be
deemed to have been abandoned by Lessee, and by such abandonment Lessee
automatically relinquish any right or interest therein and does hereby
specifically authorize the Lessor to sell, dispose of or destroy the same.
<PAGE 4>
SECTION NINE: SIDEWALK AND HALL ENCUMBRANCES
Lessee shall neither encumber nor obstruct the sidewalk in front of, or any
entrance to, the building on the leased premises. Lessee shall neither
encumber nor obstruct hallways or any entrance to another Lessee's entrance
on the leased premises.
SECTION TEN: SIGNS: EXTERIOR LIGHTING AND FIXTURES
a. Exterior Signs. Lessor shall provide all exterior and/or interior lobby
signs as it alone deems necessary to identify the tenants of the entire
building and Lessee shall not erect any such signs without prior written
consent of the Lessor. All cost of installation of such signage shall be
the Lessee's responsibility.
SECTION ELEVEN: ALTERATIONS, CHANGES AND ADDITIONS
No structural changes, alterations, or additions shall be made by Lessee to the
demised premises except as set forth in Exhibit "A", without the written
consent of Lessor, and any such structural change, alteration, or addition to or
on the demised premises made with the aforesaid written consent of Lessor
shall remain for the benefit of and become the property of Lessor, unless
otherwise provided in the written consent.
SECTION TWELVE: DEFECTS: DEFECTIVE CONDITION, WIND, ACTS OF THIRD PERSONS
a. Lessor's Liability. Lessor shall not be liable to Lessee for any damage
or injury to Lessee or Lessee's property occasioned by any defect of
plumbing, heating, air cooling, air conditioning, equipment and ducts,
electrical wiring or insulation thereof, or from broken steps, or from
the backing up of any sewer pipe, or from the bursting, leaking, or
running of any tank, tub, washstand, toilet, or waste pipe, drain, or any
other pipe or tank in, on, or about the demised premises, or for any
such damage or injury occasioned by water from being on or coming
through the roof, stairs, walks, or any other place on or near the
demised premises unless Lessor neglects or fails to make necessary
repairs required of it to be made under the terms of this Lease after
receipt of written notice thereof from Lessee, or for any such damage
or injury done or occasioned by the falling of any fixture, plaster, or
stucco, or for any such damage or injury caused by wind or by the act,
omission, or negligence of co-tenants or of other persons, occupants of
the same building or of adjacent buildings or contiguous property.
b. Waiver of Claims Against Lessor. All claims against Lessor for any
damage or injury as provided in Paragraph a of this section, are hereby
expressly waived by Lessee, except those claims occasioned by
Lessor's neglect or failure to make repairs for which Lessor is
responsible under this Lease, after due written notice thereof by
Lessee.
SECTION THIRTEEN: CASUALTY DAMAGE, REPAIR, ABATEMENT OF RENT
a. Use of Partially Damaged Premises. In the event of partial damage or
destruction of the demised premises, Lessee shall continue to utilize
the premises for the operation of its business to the extent that it may
be practicable to do so from the standpoint of good business.
b. Right to Terminate on Destruction of Premises Where Damage
Exceeds Two Thirds of Reconstruction Cost. Either party hereto shall
have the right to terminate this Lease, if during the last six (6) months
of the term hereof the demised premises are damaged to an extent
exceeding two-thirds (2/3) of the then reconstruction cost of such
building as a whole; provided that, in such an event, such termination
of this Lease shall be effected by written notice to that effect to the
other party delivered within thirty (30) days of the happening of such
casualty causing the damage.
c. Repairs by Lessor. If the demised premises shall, either prior to the
beginning of or during the term hereof, be damaged or destroyed by
fire or by any other cause whatsoever beyond Lessee's control, Lessor,
except as hereinafter otherwise provided, shall immediately on receipt
of insurance proceeds paid in connection with such casualty insurance,
but in no event later than sixty (60) days after such
<PAGE 5>
damage has occurred, proceed to repair or rebuild the same, including
any additions or improvements made by Lessor or by Lessee with Lessor's
consent, on the same plan and design as existed immediately before such
damage or destruction occurred, subject to such delays as may be reasonably
attributable to governmental restrictions or failure to obtain materials
or labor, or other causes whether similar or dissimilar, beyond the control
of Lessor. Materials used in repair shall be as nearly like original
materials as may then be reasonably procured in regular channels of supply.
Whenever a strike, act of God, or cause beyond the power of the party
affected to control causes delay, the period of such delay so caused shall
be added to the period limited in this Lease for the completion of such
work, reconstruction, or replacement.
d. Reduction of Rent During Repairs. In the event Lessee continues to
conduct its business during the making of repairs, the monthly rental
will equitably reduced in the proportion that the unusable part of the
demised premises bears to the whole thereof.
No rental shall be payable while the demised premises are wholly
unoccupied pending the repair of casualty damage.
e. Repair or Replacement of Fixtures. Lessee shall, as soon as reasonably
possible, replace or repair all fixtures in the demised premises which
may be damaged or destroyed by fire or any other cause whatsoever.
SECTION FOURTEEN: REPAIRS GENERALLY
Lessee shall, at its own expense, keep and maintain all of the demised
premises, including but not limited to air conditioning equipment, pumps,
wells, interior of building, sewage system, storefronts, bulkheads, exterior
entry and exit doors, ornamental facing, plate glass, and glazing in or on the
demised premises, in good order, condition, and repair, and in compliance
with all laws and regulations applicable thereto, during the entire term of this
Lease, except for those repairs required of the Lessor to be made and damage
occasioned by fire, earthquake, or other cause or causes as provided.
SECTION FIFTEEN: UTILITIES
Lessee shall pay before delinquency all charges for water, gas, heat,
electricity, power, telephone service, janitorial collection, and other
similar charges incurred by Lessee with respect to and during its occupancy of
the demised premises. Electricity exterior lighting will be a position of
common maintenance and expense.
SECTION SIXTEEN: TAXES
Commencing with the calendar year of occupancy and continuing thereafter
during the term of this Lease, Lessee shall pay before delinquency any and all
taxes levied or assessed on Lessee's fixtures, equipment, and personal
property in and on the demised premises, whether or not affixed to the real
property.
If at any time after any tax or assessment has become due or payable, Lessee,
or its legal representative, neglects to pay such tax or assessment, Lessor
shall be entitled to pay the same at any time thereafter and such amount so
paid by Lessor shall be collectible in the same manner as rent for the Leased
premises.
SECTION SEVENTEEN: INSURANCE
a. Insurance Companies. All policies of insurance shall be kept and
maintained in force by Lessee and shall be obtained from good and
solvent insurance company. All insurance policies as herein required
shall name the Lessor as co-insured, as its interest shall appear.
b. Lessee to Obtain Liability Insurance. Lessee shall, at its own expense,
at all times during the term of this lease, maintain in force a policy or
policies of insurance, written by one or more responsible insurance
carriers approved by Lessor, which will insure Lessor against liability
for injury to or death of persons or loss or damage to property
occurring in or about the demised premises. The liability under such
insurance shall not be less than ONE HUNDRED THOUSAND AND
NO/100 DOLLARS ($100,000.00) for any one person killed or
injured. THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) for
any one accident, and ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00)
for property damage.
<PAGE 6>
c. Lessee to Obtain Plate Glass Insurance. Lessee shall maintain and
keep in force adequate plate glass insurance on all plate glass on the
demised premises.
d. Lessee to Obtain Workmen's Compensation Insurance. Lessee shall
maintain and keep in force all employees' compensation insurance
required under the laws of the State of florida, and such other
insurance as may be necessary to protect Lessor against any other
liability to persons or property arising hereunder by operation of law,
whether such law is now in force or is adopted subsequent to the
execution hereof.
e. Lessee to Obtain All Risk Insurance. Lessee shall maintain in force, at
all times during the term of this lease, fire, hazard and all risk
insurance and an umbrella liability policy in at least the amount of
ONE HUNDRED THOUSAND AND NO/100 ($100,000) DOLLARS which includes a full
replacement cost revision and a thirty (30) day non-renewal notice
provision providing for said notice to be sent to Lessor. All of such
policies shall name Lessor as a beneficiary thereof.
f. Lessee's Waiver of Casualty Insurance Proceeds. In the event the
demised premises shall be damaged or destroyed by fire, or other
casualty so insured against, Lessee shall claim no interest in any
insurance settlement arising out of any such loss where premiums are
paid by Lessee, or where Lessor is named as the sole beneficiary, and
shall execute any and all documents required by Lessoror the insurance
company or companies that may be necessary for use in connection
with settlement of any such loss.
g. Control of Insurance Proceed to Avoid Taxable Gain.
Notwithstanding any provision hereof inconsistent herewith, it is
particularly understood and agreed by the parties that in the even the
demised premises, including any improvements, addictions, or
betterments, shall be damaged or destroyed in whole or in part, in any
manner, and the receipt of any insurance proceeds or other
reimbursements for such damage would result in the realization of
taxable gain for federal and state purposes, the party hereto to whom
such gain would be taxed shall have the right to the any and all action
respecting such proceeds or reimbursements as may be necessary to
enable such party to comply with any laws or regulations of the
appropriate taxing authorities, to the end that such gain will not be
recognized for tax purposes. Nothing herein contained shall be
construed to entitle Lessor to delay the making of any repairs to or
restoration of all or any part of the building or improvements in the
event of damage or destruction.
h. Lessee's Failure to Insure. Should Lessee fail to keep in effect and pay
for such insurance as it is in this section required to maintain, Lessor
may do so, in which event the insurance premiums paid by Lessor shall
become due and payable forthwith and failure of Lessee to pay same
on demand shall constitute a breach of this lease.
SECTION EIGHTEEN: TRANSFER OR PLEDGE OF LEASEHOLD INTEREST
Lessee shall not assign this Lease or any interest therein, or sublet the
demised premises or any part thereof, or license the use of all or any portion
of the demised premises or business conducted thereon or therein, or encumber of
hypothecate this Lease, without first obtaining the written consent of Lessor;
and any assignment, subletting, licensing, encumbering, or hypothecating or
this Lease without such prior written consent shall, at the option of Lessor,
terminate this Lease.
SECTION NINETEEN: SURRENDER OF PREMISES
Lessee shall, at the termination of this Lease, vacate the demised premises in
as good condition as they were at the time of entry thereon by Lessee, except
for reasonable use and wear thereof, acts of God, or damage by casualty
beyond the control of Lessee, and on vacating shall leave the demised
premises free and clear of all rubbish and debris.
SECTION TWENTY: INDEMNIFICATION OF LESSOR
a. Lessee's Notice of Work to be Performed. Lessee shall serve a written
notice on Lessor at least ten (10) days prior to permitting any work
involving repairs, improvements, construction, and the like to be
commenced in or on the demised premises.
<PAGE 7>
b. Liens and Encumbrances. Lessee shall indemnify Lessor and the
premises herein demised and all improvements, placed thereon against
all claims, liens, claims of lien, demands, charges, encumbrances, or
litigation arising directly or indirectly out of or by reason of any work
or activity of Lessee on the demised premises, and shall forthwith and
within ten (10) days after the filing of any lien for record fully pay and
satisfy the same, and shall reimburse Lessor for all loss, damage, and
expense, including reasonable attorney's fees, which it may suffer or
be put to by reason of any such claims of lien, demands, charges,
encumbrances, or litigation.
In the event Lessee shall fail to pay and fully discharge any claim, lien,
claims of lien, demand, charge, encumbrance, or litigation, or should
proceedings be instituted for the foreclosure of any lien or
encumbrance. Lessor shall have the right, at its option, at any time
after the expiration of such ten (10) day period, to pay the same or any
portion thereof, with or without the costs and expenses claimed by
such claimant, and in making such payment Lessor shall be the sole
judge of the legality thereof. All amounts so paid by Lessor shall be
repaid by Lessee to Lessor on demand, together with interest thereon at
the rate of eighteen percent (18%) per annum from the date of payment
by Lessor until repayment is fully made.
c. Personal Injuries: Violation of Law. Lessee shall indemnify Lessor and
the demised premises against any cost, liability, or expense arising out
of any claims of any person or persons whatsoever by reason of the use
or misuse of the demised premises, parking area, or common facilities
by Lessee or any person or persons holding under Lessee, and shall
indemnify Lessor against any penalty, damage, or charge incurred or
imposed by reason of any violation of law or ordinance by Lessee or
any person or persons holding under Lessee, against any costs,
damage, or expense arising out of the death of or injury to any person
or persons holding under Lessee.
SECTION TWENTY-ONE: SUBORDINATION OF LEASE
Lessee shall execute any instrument permitting a first or subsequent mortgage
or mortgages to be placed on the demised premises or any part thereof as
security for any indebtedness, and subordinating this Lease to such mortgage
or mortgages, if required to do so by the secured party.
SECTION TWENTY-TWO: LESSOR'S RIGHT OF INSPECTION
Lessor shall have access to the demised premises, and each part thereof,
during Lessee's regular business hours for the purpose of inspecting the same,
making repairs and posting notices which Lessor may deem to be for the
protection of Lessor or the demised property.
SECTION TWENTY-THREE: DEFAULT
a. Lessor's Right to Repossess, Operate, or Relet. If the rental reserved
by this Lease or any other charges to be paid hereunder by Lessee, or
any part thereof, are not paid when due and shall remain unpaid for a
period of fifteen (15) days after notice thereof in writing, or if the
Lessee shall fail to promptly perform any other covenant, condition, or
provision by it to be performed hereunder and such failure shall
continue for a period of five (5) days after notice in writing specifying
the nature of such failure, or if Lessee abandons the demised premises,
or if Lessee breaches any obligation under this Lease by it to be
performed which cannot be cured, then, and in any such event, Lessee
shall be deemed to be in default and Lessor, without further notice may
at its option re-enter and take possession of the demised premises,
including all improvements thereon and fixtures and equipment
located at, in, or about the same, and take, operate, or relet the same in
whole or in part for the account of Lessee at such rental and on such
agreement and conditions and to such tenant or tenants as Lessor in
good faith may deem proper for a term not exceeding the unexpired
period of the full term of this Lease. Lessor shall receive all proceeds
and rent accruing from such operation or reletting of the demised
premises or fixtures and equipment and shall apply the same first to the
payment of all costs and expenses incurred by Lessor in obtaining
possession and in the operation or reletting of the demised premises or
fixtures and equipment, including reasonable attorney fees,
commissions, and collection fees, and any alterations or repairs
reasonably necessary to enable Lessor to operate or relet the premises
or fixtures and equipment
<PAGE 8>
and to the payment of all such amounts as may be due or become payable
under the provisions of this Lease, and the balance remaining, if any, at
the expiration of the full term of this Lease or on the sooner termination
thereof by written notice of termination given by Lessor to Lessee shall be
paid over to Lessee.
b. Repossession or Reletting Not a Termination: Lessor's Right to
Terminate Not Forfeited. No re-entry, repossession, operation, or
reletting of the demised premises or of fixtures and equipment shall be
construed as an election by Lessor to terminate this Lease unless a
written notice of such intention is given by Lessor to Lessee, and
notwithstanding any such operation or reletting without terminating
this Lease. Lessor may at any time thereafter elect to terminate this
Lease in the event at such time Lessee remains at default hereunder.
c. Lessee's Obligation to Pay Deficiencies. In the event the proceeds or
rentals received by Lessor under the provisions of this section are
insufficient to pay all costs and expenses and all amounts due and
becoming due hereunder, Lessee shall pay to Lessor on demand such
deficiency as may from time to time occur or exist.
SECTION TWENTY-FOUR: EXPENSES OF ENFORCEMENT
Should either party incur any expense in enforcing any provision of this Lease,
the party in default shall pay to the other all expenses so incurred, including
reasonable attorney's fees and costs of appeal, if necessary.
If at any time during the term of this Lease there shall be filed by or against
Lessee in any court, pursuant to any statute either of the United States or any
state, petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Lessee's property,
or if Lessee makes an assignment for the benefit of creditors, Lessee shall have
breached this Lease, and this Lease, at the option of Lessor exercised after
expiration of the period provide below, may be canceled and terminated. In
such event neither Lessee nor any person claiming through or under Lessee by
virtue of any statute or of an order of any court shall be entitled to
possession or to remain in possession of the demised premises, but shall
forthwith quit and surrender the premises.
SECTION TWENTY-FIVE: EMINENT DOMAIN
a. Over Certain Percentage Taken. In the event thirty percent (30%) or
more of the area of the demised premises shall be taken for a public or
quasi-public use, this Lease shall terminate as of the date of the actual
physical taking, and the parties shall thereupon be released from any
and all further liability hereunder.
b. Less Than a Certain Percentage Taken. In the event of a partial taking
of less than thirty percent (30%) of the area of the demised premises,
Lessor shall, with reasonable diligence, proceed at its own expense to
reconstruct or repair the demised premises and place the same in a
rentable condition within sixty (60) days after the date of the actual
physical taking; provided, however, that if thirty percent (30%) or
more of the area of the building as a whole is taken. Lessor
alternatively may elect to terminate this Lease notwithstanding that
less than thirty percent (30%) of the area of the demised premises were
taken. In the event of such termination the parties hereto shall be
released from any and all further liability under this Lease.
c. Abatement of Rent. During any reconstruction or repairing as herein
above provided, Lessee shall be required to pay only that portion of the
monthly rental herein provided as the area of the demised premises
remaining in a tenantable condition during such reconstruction or
repairing bears to the entire area herein leased. On completion of such
reconstruction or repairing, the fixed rental herein provided shall be
adjusted in the proportion that the reconstructed demised premises bear
to the original demised premises, and thereafter Lessee shall be
required to pay such adjusted rental in accordance with the provisions
of this Lease.
There shall be no abatement of any rental due until such time as there
shall be an actual physical possession of that portion of the demised
premises taken.
d. Right to condemnation Award. Any award made in any condemnation
proceeding for the taking of any part or all of the demised premises
shall be the sole property of and be paid to Lessor.
<PAGE 9>
SECTION TWENTY-SIX: GOVERNMENTAL INTERFERENCE WITH POSSESSION
Lessee shall not be released from its obligation hereunder should its
possession of the demised premises be interfered with or affected by reason of
the passage or adoption of any law, ordinance, resolution, regulation, or act of
any legal or governmental authority, or any order of abatement or judgement
preventing the use of the demised premises made on the ground that the
demised premises or the business operated therefrom constitute a nuisance.
SECTION TWENTY-SEVEN: QUIET ENJOYMENT
Lessor hereby covenants and warrants that, subject to any trust deeds or
mortgages now of record or hereafter placed on record, it is the owner of the
demised premises and that Lessee, on payment of rents herein provided for
and performance of the provisions hereof on its part to be performed, shall and
may peacefully possess and enjoy the demised premises during the term hereof
without any interruption or disturbance.
SECTION TWENTY-EIGHT: WAIVER OF BREACH
No waiver of any breach or breaches of any prevision of this Lease shall be
construed to be a waiver of any preceding or succeeding breach of such
provision or of any other provision hereof.
SECTION TWENTY-NINE: TIME OF THE ESSENCE
Time is of the essence of each and every provision hereof.
SECTION THIRTY: HEADINGS FOR CONVENIENCE ONLY
The headings used herein are for convenience and shall not be resorted to for
purposes of interpretation or construction hereon.
SECTION THIRTY-ONE: PRONOUNS
Feminine or neuter pronouns shall be substituted for those of masculine for or
vice versa, and the plural shall be substituted for the singular number or vice
versa in any place or places in which the context may require such substitution
or substitutions.
SECTION THIRTY-TWO: AMENDMENTS TO BE IN WRITING
This Lease may be modified or amended only by a writing duly authorized and
executed by both Lessor and Lessee. It may not be amended or modified by
oral agreements or understandings between the parties unless the same shall be
reduced to writing duly authorized and executed by both Lessor and Lessee.
SECTION THIRTY-THREE: PARTIES BOUND
Each and every provision of this Lease shall bind and shall inure to the benefit
of the parties hereto and their legal representatives. The term "legal
representatives" is used in this Lease in its broadest possible meaning and
includes, in addition to executors and administrators, every person,
partnership, corporation, or association succeeding to the interest or to any
part of the interest in or to this Lease or in or to the leased premises, or
either Lessor or Lessee herein, whether such succession results from the act of
a party in interest, occurs by operation of the law, or is the effect of the
operation of law together with the act of such party. Each and every
agreement and condition of this Lease by Lessee to be performed shall be
binding on all assignees, subtenants, concessionaires, and/or licensees of
Lessee.
SECTION THIRTY-FOUR: RULES
Lessor reserves the right to make and promulgate such reasonable rules
regarding use and occupancy of the premises and common areas as it may
deem necessary. Lessor may amend such rules from time to time as it sees fit.
Lessee agrees to abide by such rules and any amendments thereto.
SECTION THIRTY-FIVE: NOTICES
All notices or demands of any kind which Lessor may be required or may
desire to serve on Lessee under the terms of this Lease may be served on
Lessee (as an alternative to personal service) by leaving a copy of such
demand or notice , or by mailing a copy thereof by registered or certified mail,
postage prepaid, addressed Lessee at the demised premises or at such other
address or addresses as may from time to time be designated by Lessee in
writing to Lessor. Service shall be deemed complete at the time of the leaving
of such notice as aforesaid or within two (2) days within mailing of same. All
notices and demands from Lessee to Lessor may be similarly served on Lessor
at Seabreeze Professional Building, Port St. Lucie, Florida 34952, or at such
other address as Lessor my in writing designate to Lessee.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above mentioned.
AMERICAN SEABREEZE INC.
By: /s/Nicholas Elliot
_______________________ ---------------------
WITNESS Nicholas Elliot
Dated: August 1, 1998
MOORE SOLUTIONS, INC.
By: /s/Terrance Moore
_______________________ -----------------------
WITNESS Terrance Moore
Dated: August 1, 1998
