U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
General Form for Registration of Securities
of Small Business Issuers
Under Section 12(b) or (g) of
the Securities Exchange Act of 1934
INDEPENDENT ACQUISITION CORPORATION
-----------------------------
(Name of Small Business Issuer)
Delaware 52-2201500
(State or Other Jurisdiction of I.R.S. Employer Identification Number
Incorporation or Organization)
1504 R Street, N.W., Washington, D.C. 20009
------------------------------------------------------------
(Address of Principal Executive Offices including Zip Code)
202/387-5400
_____________
(Issuer's Telephone Number)
Securities to be Registered Under Section 12(b) of the Act: None
Securities to be Registered Under Section 12(g) of the Act: Common Stock
$.0001 Par Value
(Title of Class)
PART I
ITEM 1. BUSINESS.
Independent Acquisition Corporation (the "Company") was incorporated
on March 24, 1999 under the laws of the State of Delaware to engage
in any lawful corporate undertaking, including, but not limited to,
selected mergers and acquisitions. The Company has been in the
developmental stage since inception and has no operations to date
other than issuing shares to its original shareholder.
The Company will attempt to locate and negotiate with a
business entity for the combination of that target company with the
Company. The combination will normally take the form of a merger,
stock-for-stock exchange or stock-for-assets exchange. In most
instances the target company will wish to structure the business
combination to be within the definition of a tax-free reorganization
under Section 351 or Section 368 of the Internal Revenue Code of
1986, as amended.
No assurances can be given that the Company will be successful
in locating or negotiating with any target company.
The Company has been formed to provide a method for a foreign
or domestic private company to become a reporting ("public") company
with a class of registered securities.
ASPECTS OF A REPORTING COMPANY
There are certain perceived benefits to being a reporting
company. These are commonly thought to include the following:
* increased visibility in the financial community;
* provision of information required under Rule 144 for
trading of eligible securities;
* compliance with a requirement for admission to quotation
on the OTC Bulletin Board maintained by Nasdaq or on the
Nasdaq SmallCap Market;
* the facilitation of borrowing from financial institutions;
* improved trading efficiency;
* shareholder liquidity;
* greater ease in subsequently raising of capital;
* compensation of key employees through stock options for
which there may be a market valuation;
* enhanced corporate image.
There are also certain perceived disadvantages to being a
reporting company. These are commonly thought to include the
following:
* requirement for audited financial statements;
* required publication of corporate information;
* required filings of periodic and episodic reports with
the Securities and Exchange Commission;
* increased rules and regulations governing management,
corporate activities and shareholder relations.
COMPARISON WITH INITIAL PUBLIC OFFERING
Certain private companies may find a business combination more
attractive than an initial public offering of their securities.
Reasons for this may include the following:
* inability to obtain underwriter;
* possible larger costs, fees and expenses;
* possible delays in the public offering process;
* greater dilution of their outstanding securities.
Certain private companies may find a business combination less
attractive than an initial public offering of their securities.
Reasons for this may include the following:
* no investment capital raised through a business combination;
* no underwriter support of after-market trading.
POTENTIAL TARGET COMPANIES
A business entity, if any, which may be interested in a
business combination with the Company may include the following:
* a company for which a primary purpose of becoming public
is the use of its securities for the acquisition of
assets or businesses;
* a company which is unable to find an underwriter of its
securities or is unable to find an underwriter of
securities on terms acceptable to it;
* a company which wishes to become public with less
dilution of its common stock than would occur upon an
underwriting;
* a company which believes that it will be able to obtain
investment capital on more favorable terms after it has
become public;
* a foreign company which may wish an initial entry into
the United States securities market;
* a special situation company, such as a company seeking a
public market to satisfy redemption requirements under a
qualified Employee Stock Option Plan;
* a company seeking one or more of the other perceived
benefits of becoming a public company.
A business combination with a target company will normally
involve the transfer to the target company of the majority of the
issued and outstanding common stock of the Company, and the
substitution by the target company of its own management and board
of directors.
No assurances can be given that the Company will be able to
enter into a business combination, as to the terms of a business
combination, or as to the nature of the target company.
The proposed business activities described herein classify the
Company as a "blank check" company. The Securities and Exchange
Commission and certain states have enacted statutes, rules and
regulations limiting the sale of securities of blank check
companies. The Company will not issue or sell additional shares or
take any efforts to cause a market to develop in the Company's
securities until such time as the Company has successfully
implemented its business plan and it is no longer classified as a
blank check company.
The sole shareholder of the Company has executed and delivered
an agreement affirming that it will not sell or otherwise
transfer its shares except in connection with or following a
business combination.
The Company is voluntarily filing this Registration Statement
with the Securities and Exchange Commission and is under no
obligation to do so under the Securities Exchange Act of 1934. The
Company will continue to file all reports required of it under the
Exchange Act until a business combination has occurred. A business
combination will normally result in a change in control and
management of the Company. Since a benefit of a business
combination with the Company would normally be considered its status
as a reporting company, it is anticipated that the Company will
continue to file reports under the Exchange Act following a business
combination. No assurance can be given that this will occur or, if
it does, for how long.
James M. Cassidy is the sole officer and director of the
Company and the controlling shareholder of the Company's sole
shareholder, TPG Capital Corporation. The Company has no employees
nor are there any other persons than Mr. Cassidy who devote any of
their time to its affairs. Mr. Cassidy will not begin any services
on behalf of the Company until after the effective date of the
registration statement. All references herein to management of the
Company are to Mr. Cassidy. The inability at any time of Mr.
Cassidy to devote sufficient attention to the Company could have a
material adverse impact on its operations.
GLOSSARY
"Blank Check" Company As used herein, a "blank check" company is a
development stage company that has no
specific business plan or purpose or has
indicated that its business plan is to
engage in a merger or acquisition with an
unidentified company or companies.
Business Combination Normally a merger, stock-for-stock exchange
or stock-for-assets exchange between a
target company and the Registrant or the
shareholders of the Registrant.
The Company or The corporation whose common stock is the
subject of this Registration Statement.
the Registrant
Exchange Act The Securities Exchange Act of 1934, as
amended.
Securities Act The Securities Act of 1933, as amended.
RISK FACTORS
The Company's business is subject to numerous risk factors,
including the following:
THE COMPANY HAS NO OPERATING HISTORY NOR REVENUE AND MINIMAL
ASSETS AND OPERATES AT A LOSS. The Company has had no operating
history nor any revenues or earnings from operations. The Company
has no significant assets or financial resources. The Company has
operated at a loss to date and will, in all likelihood, continue to
sustain operating expenses without corresponding revenues, at least
until the consummation of a business combination. See PART F/S:
"FINANCIAL STATEMENTS". TPG Capital Corporation has agreed to pay
all expenses incurred by the Company until a business combination
without repayment by the Company. TPG Capital Corporation is the
sole shareholder of the Company. There is no assurance that the
Company will ever be profitable.
COMPANY HAS ONLY ONE DIRECTOR AND ONE OFFICER. The Company's
president, its sole officer, is James M. Cassidy who is also its
sole director and the controlling shareholder of its sole
shareholder. Because management consists of only one person, the
Company does not benefit from multiple judgments that a greater
number of directors or officers would provide and the Company will
rely completely on the judgment of its sole officer and director
when selecting a target company. Mr. Cassidy anticipates devoting
only a limited amount of time per month to the business of the
Company and does not anticipate commencing any services until after
the effective date of the registration statement. Mr. Cassidy has
not entered into a written employment agreement with the Company and
he is not expected to do so. The Company has not obtained key man
life insurance on Mr. Cassidy. The loss of the services of Mr.
Cassidy would adversely affect development of the Company's business
and its likelihood of continuing operations.
CONFLICTS OF INTEREST. Mr. Cassidy, the Company's president,
participates in other business ventures which may compete directly
with the Company. Additional conflicts of interest and non-arms
length transactions may also arise in the future. The Company has
adopted a policy that it will not enter into a business combination
with any entity in which any member of management serves as an
officer, director or partner, or in which such person or such
person's affiliates or associates hold any ownership interest. The
terms of business combination may include such terms as Mr. Cassidy
remaining a director or officer of the Company and/or the continuing
securities or other legal work of the Company being handled by the
law firm of which Mr. Cassidy is the principal. The terms of a
business combination may provide for a payment by cash or otherwise
to TPG Capital Corporation for the purchase or retirement of all or
part of its common stock of the Company by a target company or for
services rendered incident to or following a business combination.
Mr. Cassidy would directly benefit from such employment or payment.
Such benefits may influence Mr. Cassidy's choice of a target
company. The Certificate of Incorporation of the Company provides
that the Company may indemnify officers and/or directors of the
Company for liabilities, which can include liabilities arising under
the securities laws. Therefore, assets of the Company could be used
or attached to satisfy any liabilities subject to such
indemnification. See "ITEM 5. DIRECTORS, EXECUTIVE OFFICERS,
PROMOTERS AND CONTROL PERSONS--Conflicts of Interest."
THE PROPOSED OPERATIONS OF THE COMPANY ARE SPECULATIVE. The
success of the Company's proposed plan of operation will depend to a
great extent on the operations, financial condition and management
of the identified target company. While business combinations with
entities having established operating histories are preferred, there
can be no assurance that the Company will be successful in locating
candidates meeting such criteria. The decision to enter into a
business combination will likely be made without detailed
feasibility studies, independent analysis, market surveys or similar
information which, if the Company had more funds available to it,
would be desirable. In the event the Company completes a business
combination the success of the Company's operations will be
dependent upon management of the target company and numerous other
factors beyond the Company's control. There is no assurance that
the Company can identify a target company and consummate a business
combination.
PURCHASE OF PENNY STOCKS CAN BE RISKY. In the event that a
public market develops for the Company's securities following a
business combination, such securities may be classified as a penny
stock depending upon their market price and the manner in which they
are traded. The Securities and Exchange Commission has adopted Rule
15g-9 which establishes the definition of a "penny stock," for
purposes relevant to the Company, as any equity security that has a
market price of less than $5.00 per share or with an exercise price
of less than $5.00 per share whose securities are admitted to
quotation but do not trade on the Nasdaq SmallCap Market or on a
national securities exchange. For any transaction involving a penny
stock, unless exempt, the rules require delivery by the broker of a
document to investors stating the risks of investment in penny
stocks, the possible lack of liquidity, commissions to be paid,
current quotation and investors' rights and remedies, a special
suitability inquiry, regular reporting to the investor and other
requirements. Prices for penny stocks are often not available and
investors are often unable to sell such stock. Thus an investor may
lose his investment in a penny stock and consequently should be
cautious of any purchase of penny stocks.
THERE IS A SCARCITY OF AND COMPETITION FOR BUSINESS
OPPORTUNITIES AND COMBINATIONS. The Company is and will continue to
be an insignificant participant in the business of seeking mergers
with and acquisitions of business entities. A large number of
established and well-financed entities, including venture capital
firms, are active in mergers and acquisitions of companies which may
be merger or acquisition target candidates for the Company. Nearly
all such entities have significantly greater financial resources,
technical expertise and managerial capabilities than the Company
and, consequently, the Company will be at a competitive disadvantage
in identifying possible business opportunities and successfully
completing a business combination. Moreover, the Company will also
compete with numerous other small public companies in seeking merger
or acquisition candidates.
THERE IS NO AGREEMENT FOR A BUSINESS COMBINATION AND NO
MINIMUM REQUIREMENTS FOR BUSINESS COMBINATION. The Company has no
current arrangement, agreement or understanding with respect to
engaging in a business combination with a specific entity. There
can be no assurance that the Company will be successful in
identifying and evaluating suitable business opportunities or in
concluding a business combination. No particular industry or
specific business within an industry has been selected for a target
company. The Company has not established a specific length of
operating history or a specified level of earnings, assets, net
worth or other criteria which it will require a target company to
have achieved, or without which the Company would not consider a
business combination with such business entity. Accordingly, the
Company may enter into a business combination with a business entity
having no significant operating history, losses, limited or no
potential for immediate earnings, limited assets, negative net worth
or other negative characteristics. There is no assurance that the
Company will be able to negotiate a business combination on terms
favorable to the Company.
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION.
Pursuant to the requirements of Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act"), the Company is required
to provide certain information about significant acquisitions
including audited financial statements of the acquired company.
These audited financial statements must be furnished within 75 days
following the effective date of a business combination. Obtaining
audited financial statements are the economic responsibility of the
target company. The additional time and costs that may be incurred
by some potential target companies to prepare such financial
statements may significantly delay or essentially preclude
consummation of an otherwise desirable acquisition by the Company.
Acquisition prospects that do not have or are unable to obtain the
required audited statements may not be appropriate for acquisition
so long as the reporting requirements of the Exchange Act are
applicable. Notwithstanding a target company's agreement to obtain
audited financial statements within the required time frame, such
audited financials may not be available to the Company at the time
of effecting a business combination. In cases where audited
financials are unavailable, the Company will have to rely upon
unaudited information that has not been verified by outside auditors
in making its decision to engage in a transaction with the business
entity. This risk increases the prospect that a business
combination with such a business entity might prove to be an
unfavorable one for the Company.
LACK OF MARKET RESEARCH OR MARKETING ORGANIZATION. The
Company has neither conducted, nor have others made available to it,
market research indicating that demand exists for the transactions
contemplated by the Company. Even in the event demand exists for a
transaction of the type contemplated by the Company, there is no
assurance the Company will be successful in completing any such
business combination.
REGULATION UNDER INVESTMENT COMPANY ACT. In the event the
Company engages in business combinations which result in the Company
holding passive investment interests in a number of entities, the
Company could be subject to regulation under the Investment Company
Act of 1940. Passive investment interests, as used in the
Investment Company Act, essentially means investments held by
entities which do not provide management or consulting
services or are not involved in the business whose securities are
held. In such event, the Company would be required to register as
an investment company and could be expected to incur significant
registration and compliance costs. The Company has obtained no
formal determination from the Securities and Exchange Commission as
to the status of the Company under the Investment Company Act of
1940. Any violation of such Act could subject the
Company to material adverse consequences.
PROBABLE CHANGE IN CONTROL AND MANAGEMENT. A business
combination involving the issuance of the Company's common stock
will, in all likelihood, result in shareholders of a target company
obtaining a controlling interest in the Company. As a condition of
the business combination agreement, TPG Capital Corporation, the
sole shareholder of the Company, may agree to sell or transfer all
or a portion of its Company's common stock so to provide the target
company with all or majority control. The resulting change in
control of the Company will likely result in removal of the present
officer and director of the Company and a corresponding reduction in
or elimination of his participation in the future affairs of the
Company.
POSSIBLE DILUTION OF VALUE OF SHARES UPON BUSINESS
COMBINATION. A business combination normally will involve the
issuance of a significant number of additional shares. Depending
upon the value of the assets acquired in such business combination,
the per share value of the Company's common stock may increase or
decrease, perhaps significantly.
TAXATION. Federal and state tax consequences will, in all
likelihood, be major considerations in any business combination the
Company may undertake. Currently, such transactions may be
structured so as to result in tax-free treatment to both companies,
pursuant to various federal and state tax provisions. The Company
intends to structure any business combination so as to minimize the
federal and state tax consequences to both the Company and the
target company; however, there can be no assurance that such
business combination will meet the statutory requirements of a
tax-free reorganization or that the parties will obtain the intended
tax-free treatment upon a transfer of stock or assets. A
non-qualifying reorganization could result in the imposition of both
federal and state taxes which may have an adverse effect on both
parties to the transaction.
COMPUTER SYSTEMS REDESIGNED FOR YEAR 2000. Many existing
computer programs use only two digits to identify a year in such
program's date field. These programs were designed and developed
without consideration of the impact of the change in the century for
which four digits will be required to accurately report the date.
If not corrected, many computer applications could fail or create
erroneous results by or following the year 2000 ("Year 2000
Problem"). Many of the computer programs containing such date
language problems have not been corrected by the companies or
governments operating such programs. It is impossible to predict
what computer programs will be affected, the impact any such
computer disruption will have on other industries or commerce or the
severity or duration of a computer disruption.
YEAR 2000 PROBLEM MAY ADVERSELY AFFECT THE COMPANY. The
Company does not have operations and does not maintain computer
systems. Before the Company enters into any business combination,
it may inquire as to the status of any target company's Year 2000
Problem, the steps such target company has taken or intends to take
to correct any such problem and the probable impact on such target
company of any computer disruption. However, there can be no
assurance that the Company will not enter into a business
combination with a target company that has an uncorrected Year 2000
Problem or that any planned Year 2000 Problem corrections will be
sufficient. The extent of the Year 2000 Problem of a target company
may be impossible to ascertain and any impact on the Company will
likely be impossible to predict. If the Company does not determine
the Year 2000 Problem readiness of a target company, or if that
target company is unsure of its own readiness or vulnerability, then
the Company may suffer severe consequences if the disruptions
predicted by the Year 2000 Problem materialize. In addition to the
those disruptions that may be suffered by region, such erratic
distribution of electricity, gas, food, water, telephone and
transportation systems, the Company may be specifically harmed by
computer hardware or software failure on which the target company
may have been dependent.
ITEM 2. PLAN OF OPERATION
SEARCH FOR TARGET COMPANY
The Company has entered into an agreement with TPG Capital
Corporation, the sole shareholder of the Company, to supervise the
search for target companies as potential candidates for a business
combination. The agreement will continue until such time as the
Company has effected a business combination. TPG Capital
Corporation has agreed to pay all expenses of the Company without
repayment until such time as a business combination is effected,
without repayment. James M. Cassidy, who is the sole officer and
director of the Company, is the sole officer and director and
controlling shareholder of TPG Capital Corporation.
TPG Capital Corporation may only locate potential target
companies for the Company and is not authorized to enter into any
agreement with a potential target company binding the Company. The
Company's agreement with TPG Capital Corporation is not exclusive
and TPG Capital Corporation has entered into agreements with other
companies similar to the Company on similar terms. TPG Capital
Corporation may provide assistance to target companies incident to
and following a business combination, and receive payment for such
assistance from target companies.
TPG Capital Corporation owns 5,000,000 shares of the Company's
common stock for which it paid $500, or $.0001, par value, per
share.
TPG Capital Corporation has entered, and anticipates that it
will enter, into agreements with other consultants to assist it in
locating a target company and may share its stock in the Company
with or grant options on such stock to such referring consultants
and may make payment to such consultants from its own resources.
There is no minimum or maximum amount of stock, options, or cash
that TPG Capital Corporation may grant or pay to such consultants.
TPG Capital Corporation is solely responsible for the costs and
expenses of its activities in seeking a potential target company,
including any agreements with consultants, and the Company has no
obligation to pay any costs incurred or negotiated by TPG Capital
Corporation.
TPG Capital Corporation may seek to locate a target company
through solicitation. Such solicitation may include newspaper or
magazine advertisements, mailings and other distributions to law
firms, accounting firms, investment bankers, financial advisors and
similar persons, the use of one or more World Wide Web sites and
similar methods. If TPG Capital Corporation engages in
solicitation, no estimate can be made as to the number of persons
who may be contacted or solicited. To date TPG Capital Corporation
has not utilized solicitation and expects to rely on consultants in
the business and financial communities for referrals of potential
target companies.
James M. Cassidy is the sole officer of TPG Capital
Corporation and is also the principal of Cassidy & Associates, a
Washington, D.C. law firm specializing in securities and corporate
law, and as such, is regularly in communication with numerous
persons, including corporate officers, attorneys, accountants,
financial advisors, brokers, dealers, investment counselors,
financial advisors and others. Some of these individuals may be
interested in utilizing the services of the law firm for their
companies or clients in regard to a wide variety of possible
securities-related work including mergers, acquisitions, initial
public offerings, stock distributions, incorporations, or other
activities. It is possible over time that certain of the companies
or clients represented by these persons may develop into possible
target companies. In addition, TPG Capital Corporation has contact
with many consultants, accountants, attorneys, brokers, investment
bankers, businessmen, financial advisors and others who work with
businesses which may desire to go public. From time to time such
contacts may refer their contacts, clients, acquaintances and others
to TPG Capital Corporation.
MANAGEMENT OF THE COMPANY
The Company has no full time employees. James M. Cassidy is
the sole officer of the Company and its sole director. Mr. Cassidy
is also the controlling shareholder of TPG Capital Corporation, the
Company's sole shareholder. Mr. Cassidy, as president of the
Company, has agreed to allocate a limitd portion of his time to the
activities of the Company after the effective date of the registration
statement without compensation. Potential conflicts
may arise with respect to the limited time commitment by Mr. Cassidy
and the potential demands of the Company's activities.
The amount of time spent by Mr. Cassidy on the activities of
the Company is not predictable. Such time may vary widely from an
extensive amount when reviewing a target company and effecting a
business combination to an essentially quiet time when activities of
management focus elsewhere, or some amount in between. It is
impossible to predict the amount of time Mr. Cassidy will actually
be required to spend to locate a suitable target company. Mr.
Cassidy estimates that the business plan of the Company can be
implemented by devoting approximately 10 to 25 hours per month over
the course of several months but such figure cannot be stated with
precision. Mr. Cassidy does not anticipate performing any services
on behalf of the Company until after the effective date of the
registration statement.
GENERAL BUSINESS PLAN
The Company's purpose is to seek, investigate and, if such
investigation warrants, acquire an interest in a business entity
which desires to seek the perceived advantages of a corporation
which has a class of securities registered under the Exchange Act.
The Company will not restrict its search to any specific business,
industry, or geographical location and the Company may participate
in a business venture of virtually any kind or nature. Management
anticipates that it will be able to participate in only one
potential business venture because the Company has nominal assets
and limited financial resources. See PART F/S, "FINANCIAL
STATEMENTS." This lack of diversification should be considered a
substantial risk to the shareholders of the Company because it will
not permit the Company to offset potential losses from one venture
against gains from another.
The Company may seek a business opportunity with entities
which have recently commenced operations, or which wish to utilize
the public marketplace in order to raise additional capital in order
to expand into new products or markets, to develop a new product or
service, or for other corporate purposes.
The Company anticipates that the selection of a business
opportunity in which to participate will be complex and extremely
risky. Management believes (but has not conducted any research to
confirm) that there are business entities seeking the perceived
benefits of a reporting corporation. Such perceived benefits may
include facilitating or improving the terms on which additional
equity financing may be sought, providing liquidity for incentive
stock options or similar benefits to key employees, increasing the
opportunity to use securities for acquisitions, providing liquidity
for shareholders and other factors. Business opportunities may be
available in many different industries and at various stages of
development, all of which will make the task of comparative
investigation and analysis of such business opportunities difficult
and complex.
The Company has, and will continue to have, no capital with
which to provide the owners of business entities with any cash or
other assets. However, management believes the Company will be able
to offer owners of acquisition candidates the opportunity to acquire
a controlling ownership interest in a reporting company without
incurring the cost and time required to conduct an initial public
offering. Management has not conducted market research and is not
aware of statistical data to support the perceived benefits of a
business combination for the owners of a target company.
The analysis of new business opportunities will be undertaken
by, or under the supervision of, the officer and director of the
Company, who is not a professional business analyst. In analyzing
prospective business opportunities, management may consider such
matters as the available technical, financial and managerial
resources; working capital and other financial requirements; history
of operations, if any; prospects for the future; nature of present
and expected competition; the quality and experience of management
services which may be available and the depth of that management;
the potential for further research, development, or exploration;
specific risk factors not now foreseeable but which then may be
anticipated to impact the proposed activities of the Company; the
potential for growth or expansion; the potential for profit; the
perceived public recognition or acceptance of products, services, or
trades; name identification; and other relevant factors. This
discussion of the proposed criteria is not meant to be restrictive
of the Company's virtually unlimited discretion to search for and
enter into potential business opportunities.
The Company is subject to all of the reporting requirements
included in the Exchange Act. Included in these requirements is the
duty of the Company to file audited financial statements as part of
or within 60 days following the due date for filing its Current
Report on Form 8-K which is required to be filed with the Securities
and Exchange Commission within 15 days following the completion of a
business combination. The Company intends to acquire or merge with
a company for which audited financial statements are available or
for which it believes audited financial statements can be obtained
within the required period of time. The Company may reserve the
right in the documents for the business combination to void the
transaction if the audited financial statements are not timely
available or if the audited financial statements provided do not
conform to the representations made by the target company.
The Company will not restrict its search for any specific kind
of business entities, but may acquire a venture which is in its
preliminary or development stage, which is already in operation, or
in essentially any stage of its business life. It is impossible to
predict at this time the status of any business in which the Company
may become engaged, in that such business may need to seek
additional capital, may desire to have its shares publicly traded,
or may seek other perceived advantages which the Company may offer.
Following a business combination the Company may benefit from
the services of others in regard to accounting, legal services,
underwritings and corporate public relations. If requested by a
target company, management may recommend one or more underwriters,
financial advisors, accountants, public relations firms or other
consultants to provide such services.
A potential target company may have an agreement with a
consultant or advisor providing that services of the consultant or
advisor be continued after any business combination. Additionally,
a target company may be presented to the Company only on the
condition that the services of a consultant or advisor be continued
after a merger or acquisition. Such preexisting agreements of
target companies for the continuation of the services of attorneys,
accountants, advisors or consultants could be a factor in the
selection of a target company.
TERMS OF A BUSINESS COMBINATION
In implementing a structure for a particular business
acquisition, the Company may become a party to a merger,
consolidation, reorganization, joint venture, or licensing agreement
with another corporation or entity. On the consummation of a
transaction, it is likely that the present management and
shareholders of the Company will no longer be in control of the
Company. In addition, it is likely that the Company's officer and
director will, as part of the terms of the business combination,
resign and be replaced by one or more new officers and directors.
It is anticipated that any securities issued in any such
business combination would be issued in reliance upon exemption from
registration under applicable federal and state securities laws. In
some circumstances, however, as a negotiated element of its
transaction, the Company may agree to register all or a part of such
securities immediately after the transaction is consummated or at
specified times thereafter. If such registration occurs, it will be
undertaken by the surviving entity after the Company has entered
into an agreement for a business combination or has consummated a
business combination and the Company is no longer considered a blank
check company. The issuance of additional securities and their
potential sale into any trading market which may develop in the
Company's securities may depress the market value of the Company's
securities in the future if such a market develops, of which there
is no assurance.
While the terms of a business transaction to which the Company
may be a party cannot be predicted, it is expected that the parties
to the business transaction will desire to avoid the creation of a
taxable event and thereby structure the acquisition in a tax-free
reorganization under Sections 351 or 368 of the Internal Revenue
Code of 1986, as amended.
With respect to negotiations with a target company, management
expects to focus on the percentage of the Company which target
company shareholders would acquire in exchange for their
shareholdings in the target company. Depending upon, among other
things, the target company's assets and liabilities, the Company's
shareholders will in all likelihood hold a substantially lesser
percentage ownership interest in the Company following any merger or
acquisition. The percentage of ownership may be subject to
significant reduction in the event the Company acquires a target
company with substantial assets. Any merger or acquisition effected
by the Company can be expected to have a significant dilutive effect
on the percentage of shares held by the Company's shareholders at
such time.
The Company will participate in a business combination only
after the negotiation and execution of appropriate agreements.
Although the terms of such agreements cannot be predicted, generally
such agreements will require certain representations and warranties
of the parties thereto, will specify certain events of default, will
detail the terms of closing and the conditions which must be
satisfied by the parties prior to and after such closing and will
include miscellaneous other terms.
TPG Capital Corporation will pay all expenses in regard to its
search for a suitable target company. The Company does not
anticipate expending funds itself for locating a target company.
James M. Cassidy, the officer and director of the Company, will
provide his services without charge or repayment by the Company after
the effective date of the registration statement. The
Company will not borrow any funds to make any payments to the
Company's management, its affiliates or associates. If TPG Capital
Corporation stops or becomes unable to continue to pay the Company's
operating expenses, the Company may not be able to timely make its
periodic reports required under the Securities Exchange Act of 1934
nor to continue to search for an acquisition target. In such event,
the Company would seek alternative sources of funds or services,
primarily through the issuance of its securities.
The Board of Directors has passed a resolution which contains
a policy that the Company will not seek a business combination with
any entity in which the Company's officer, director, shareholders or
any affiliate or associate serves as an officer or director or holds
any ownership interest.
UNDERTAKINGS AND UNDERSTANDINGS REQUIRED OF TARGET COMPANIES
As part of a business combination agreement, the Company
intends to obtain certain representations and warranties from a
target company as to its conduct following the business combination.
Such representations and warranties may include (i) the agreement
of the target company to make all necessary filings and to take all
other steps necessary to remain a reporting company under the
Exchange Act (ii) imposing certain restrictions on the timing and
amount of the issuance of additional free-trading stock, including
stock registered on Form S-8 or issued pursuant to Regulation S and
(iii) giving assurances of ongoing compliance with the Securities
Act, the Exchange Act, the General Rules and Regulations of the
Securities and Exchange Commission, and other applicable laws, rules
and regulations.
A prospective target company should be aware that the market
price and trading volume of the Company's securities, when and if
listed for secondary trading, may depend in great measure upon the
willingness and efforts of successor management to encourage
interest in the Company within the United States financial
community. The Company does not have the market support of an
underwriter that would normally follow a public offering of its
securities. Initial market makers are likely to simply post bid and
asked prices and are unlikely to take positions in the Company's
securities for their own account or customers without active
encouragement and a basis for doing so. In addition, certain market
makers may take short positions in the Company's securities, which
may result in a significant pressure on their market price. The
Company may consider the ability and commitment of a target company
to actively encourage interest in the Company's securities following
a business combination in deciding whether to enter into a
transaction with such company.
A business combination with the Company separates the
process of becoming a public company from the raising of investment
capital. As a result, a business combination with Company normally
will not be a beneficial transaction for a target company whose
primary reason for becoming a public company is the immediate
infusion of capital. The Company may require assurances from the
target company that it has or that it has a reasonable belief that
it will have sufficient sources of capital to continue operations
following the business combination. However, it is possible that a
target company may give such assurances in error, or that the basis
for such belief may change as a result of circumstances beyond the
control of the target company.
Prior to completion of a business combination, the Company
may require that it be provided with written materials regarding the
target company containing such items as a description of products,
services and company history; management resumes; financial
information; available projections, with related assumptions upon
which they are based; an explanation of proprietary products and
services; evidence of existing patents, trademarks, or service
marks, or rights thereto; present and proposed forms of compensation
to management; a description of transactions between such company
and its affiliates during relevant periods; a description of present
and required facilities; an analysis of risks and competitive
conditions; a financial plan of operation and estimated capital
requirements; audited financial statements, or if they are not
available, unaudited financial statements, together with reasonable
assurances that audited financial statements would be able to be
produced within a reasonable period of time not to exceed 75 days
following completion of a business combination; and other
information deemed relevant.
COMPETITION
The Company will remain an insignificant participant among the
firms which engage in the acquisition of business opportunities.
There are many established venture capital and financial concerns
which have significantly greater financial and personnel resources
and technical expertise than the Company. In view of the Company's
combined extremely limited financial resources and limited
management availability, the Company will continue to be at a
significant competitive disadvantage compared to the Company's
competitors.
ITEM 3. DESCRIPTION OF PROPERTY
The Company has no properties and at this time has no
agreements to acquire any properties. The Company currently uses
the offices of TPG Capital Corporation at no cost to the Company.
TPG Capital Corporation has agreed to continue this arrangement
until the Company completes a business combination.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth each person known by the
Company to be the beneficial owner of five percent or more of the
Company's Common Stock, all directors individually and all directors
and officers of the Company as a group. Except as noted, each
person has sole voting and investment power with respect to the
shares shown.
Amount of
Name and Address Beneficial Percentage
of Beneficial Owner Ownership of Class
-------------------
TPG Capital Corporation (1) 5,000,000 100%
1504 R Street, N.W.
Washington, D.C. 20009
James M. Cassidy (2) 5,000,000 100%
1504 R Street, N.W.
Washington, D.C. 20009
All Executive Officers and
Directors as a Group (1 Person) 5,000,000 100%
(1) Mr. Cassidy is the controlling shareholder and sole
director and officer of TPG Capital Corporation. TPG Capital
Corporation serves as a marketing and consulting company for Cassidy
& Associates and its affiliated companies. TPG Capital Corporation
has agreed to provide certain assistance to the Company in locating
potential target companies, and to pay all costs of the Company
until a business combination, without reimbursement. See "PLAN OF
OPERATION General Business Plan".
(2) As the controlling shareholder, sole director and officer
of TPG Capital Corporation, Mr. Cassidy is deemed to be the
beneficial owner of the common stock of the Company owned by TPG
Capital Corporation.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Company has one Director and Officer as follows:
Name Age Positions and Offices Held
-------------------------------
James M. Cassidy 64 President, Secretary, Director
There are no agreements or understandings for the officer or
director to resign at the request of another person and the
above-named officer and director is not acting on behalf of nor will
act at the direction of any other person.
Set forth below is the name of the director and officer of the
Company, all positions and offices with the Company held, the period
during which he has served as such, and the business experience
during at least the last five years:
James Michael Cassidy, Esq., LL.B., LL.M., received a Bachelor
of Science in Languages and Linguistics from Georgetown University
in 1960, a Bachelor of Laws from The Catholic University School of
Law in 1963, and a Master of Laws in Taxation from The Georgetown
University School of Law in 1968. From 1963-1964, Mr. Cassidy was
law clerk to the Honorable Inzer B. Wyatt of the United States
District Court for the Southern District of New York. From
1964-1965, Mr. Cassidy was law clerk to the Honorable Wilbur K.
Miller of the United States Court of Appeals for the District of
Columbia. From 1969-1975, Mr. Cassidy was an associate of the law
firm of Kieffer & Moroney and a principal in the law firm of Kieffer
& Cassidy, Washington, D.C. From 1975 to date, Mr. Cassidy has been
a principal in the law firm of Cassidy & Associates, Washington,
D.C. and its predecessors, specializing in securities law and
related corporate and federal taxation matters. Mr. Cassidy is a
member of the bars of the District of Columbia and the State of New
York, and is admitted to practice before the United States Tax Court
and the United States Supreme Court.
PREVIOUS BLANK CHECK COMPANIES
In 1988, management was involved in two blank check offerings.
Mr. Cassidy was vice president, a director and a shareholder of
First Agate Capital Corporation and Consolidated Financial
Corporation. In August, 1988, First Agate Capital Corporation
offered 50,000 units at $10.00 for an aggregate of $500,000 in an
underwritten offering of its common stock and warrants. First Agate
Capital is no longer a public company and has had no activity since
1991. In November, 1988, Consolidated Financial Corporation offered
50,000 units at $10.00 for an aggregate of $500,000 in an
underwritten offering of its common stock and warrants. In 1990, in
connection with the change in control of Consolidated Financial
Corporation, Mr. Cassidy transferred all his shares of Consolidated
Financial Corporation common stock and resigned as an officer and
director of that company. Mr. Cassidy has had no further
relationship or transactions with Consolidated Financial Corporation
since 1990. In June, 1991, the new management of Consolidated
Financial Corporation effected its merger with A.B.E Industrial
Holdings.
CURRENT BLANK CHECK COMPANIES
James M. Cassidy, the president of the Company, is currently
involved with other blank check companies, and is involved in
creating additional companies similar to this one. The initial
business purpose of each of these companies was or is to engage in a
business combination with an unidentified company or companies and
each were or will be classified as a blank check company until
completion of a business combination.
Generally target companies will be located for the Company and
other identical blank check companies in chronological order of the
date of formation of such blank check companies or, in the case of
blank check companies formed on the same date, alphabetically.
However, certain blank check companies may differ from the Company
in certain items such as place of incorporation, number of shares
and shareholders, working capital, types of authorized securities,
preference of a certain blank check company name by management of
the target company, or other items. It may be that a target company
may be more suitable for or may prefer a certain blank check company
formed after the Company. In such case, a business combination
might be negotiated on behalf of the more suitable or preferred
blank check company regardless of date of formation.
The following chart summarizes certain information concerning
recent blank check companies with which Mr. Cassidy is or has been
involved which filed a registration statement on Form 10-SB. In
most instances that a business combination is transacted with one of
these companies, it is required to file a Current Report on Form 8-K
describing the transaction. Reference is made to the Form 8-K filed
for any company listed below for detailed information concerning the
business combination entered into by that company.
<TABLE>
<S> <C> <C> <C>
Registration Form
Automatic* Date
Effective Date Cleared
Corporation File Number by SEC(6) Status
Tunlaw International Form 10-SB 3/16/98 Acquisition of outstanding
Corporation (2) 8/31/97; 0-22785 stock effected December 3, 1999
Form 8-K filed December 10, 1999
Corcoran Technologies Form 10-SB 12/29/97 Merger effected December 30, 1997
Corporation (2) 9/30/97; 0-22919 Form 8-K filed January 13, 1998
Aberdeen Acquisition Form 10-SB 5/26/98 Acquisition of outstanding stock
Corporation (2) 4/11/98; 0-23761 effected January 14, 2000. Form
8-K filed January 14, 2000.
Barhill Acquisition Form 10-SB (4) Merger effected August 31, 1999
Corporation (2) 10/12/98; 0-24801 Form 8-K filed September 1, 1999
Sunderland Acquisition Form 10-SB (4) Stock exchange and asset
Corporation (3) 10/12/98; 0-24803 acquisition effected April 27,
1999. Form 8-K filed
May 4, 1999.
Registration Statement
on Form SB-2 filed
October 1, 1999.
Westford Acquisition Form 10-SB (4) Stock exchange effected June
Corporation (2) 10/27/98; 0-24839 15, 1999. Merger effected
July 30, 1999. Form 8-K
filed August 13, 1999.
Chatsworth Acquisition Form 10-SB 5/26/98 Merger effected December 4, 1998
Corporation (2) 4/12/98; 0-23769 Form 8-K filed December 18, 1998.
Blencathia Acquisition Form 10-SB 7/27/99 Merger effected November 2, 1999.
Corporation (2) 4/8/99; 0-25367 Form 8-K filed November 4, 1999.
Warwick Acquisition Form 10-SB 7/27/99 Stock-for-stock exchange of
Corporation (2) 4/18/99; 0-25419 subsidiary effected May 27,
1999. Form 8-K filed
May 27, 1999.
Registration statement on
Form SB-2 filed July 23, 1999.
Torbay Acquisition Form 10-SB (4) Merger effected October 26, 1999
Corporation (2) 4/18/99; 0-25417 Form 8-K filed November 12,
1999. SB-2 to be filed.
Abbacy Corporation(2) Form 10-SB 12/2/99 Merger effected October 18, 1999
8/16/99; 0-26405 Form 8-K filed October 21, 1999.
Aterian Form 10-SB 11/22/99 Acquisition of outstanding
Corporation (2) 8/16/99; 0-26409 stock effected November 29,
1999. Form 8-K filed
November 29, 1999.
Baroque Form 10-SB (5) Has not entered into an agreement
Corporation (1) 8/16/99; 0-26407 for a business combination
Borough Form 10-SB (5) Has not entered into an agreement
Corporation (1) 8/16/99; 0-26411 for a business combination
Canticle Form 10-SB (5) Has not entered into an agreement
Corporation (1) 8/16/99; 0-26413 for a business combination
Caprock Form 10-SB 11/24/99 Acquisition of outstanding
Corporation (2) 8/16/99; 0-26415 stock effected November 26,
1999. Form 8-K filed
December 3, 1999.
Decurion Form 10-SB 12/2/99 Acquisition of outstanding
Corporation (2) 8/16/99; 0-26417 stock effected December 13,
1999. Form 8-K filed
December 14, 1999.
Epilogue Form 10-SB 12/10/99 Merger effected November 12,
Corporation (2) 8/16/99; 0-26425 1999. Form 8-K filed November
12, 1999.
Erebus Form 10-SB (5) Has not entered into an agreement
Corporation (1) 8/16/99; 0-26419 for a business combination
Forestay Form 10-SB 12/2/99 Acquisition of outstanding stock
Corporation (2) 8/16/99; 0-26421 effected December 9, 1999.
Form 8-K to be filed.
Ivory Acquisition (2) Form 10-SB 12/23/99 Acquisition of outstanding stock
Corporation 0-28377 effectived January 5, 2000.
Form 8-K filed January 7, 2000.
Emerald Acquisition(1) Form 10-SB 12/23/99 Has not entered into an agreement
Corporation 0-28375 for a business combination
Echelon Acquisition(1) Form 10-SB 1/10/00 Has not entered into an agreement
Corporation 0-28521 for a busines combination
Keynote Acquisition(1) Form 10-SB 1/10/00 Has not entered into an agreement
Corporation 0-28523 for a business combination
Wellstone Acquisition(1) Form 10-SB 1/10/00 Has not entered into an agreement
Corporation 0-28527 for a business combination
Juniper Acquisition(1) Form 10-SB 1/10/00 Has not entered into an agreement
Corporation 0-28541 for a business combination
Luminary Acquisition(1) Form 10-SB (5) Has not entered into an agreement
Corporation 0-28609 for a business combination
Mayford Acquisition (1) Form 10-SB (5) Has not entered into an agreement
Corporation 0-28681 for a business combination
</TABLE>
* The Form 10-SB is automatically effective 60 days after filing with
the Securities and Exchange Commission.
(1) Mr. Cassidy is the sole officer, director and beneficial shareholder.
(2) Mr. Cassidy was but is no longer the sole officer and director and
remains a beneficial shareholder of less than 5% of the outstanding
shares unless otherwise indicated.
(3) Mr. Cassidy was but is no longer the sole officer and director and
was but is no longer a beneficial shareholder.
(4) Date not available at time of filing.
(5) Securities and Exchange Commission is reviewing the registration
statement and may have additional comments so clearance date not
yet available.
(6) The date cleared by the Securities and Exchange Commission is the
date that the Commission determined it had no further comments on the
registration statement.
RECENT TRANSACTIONS BY BLANK CHECK COMPANIES
On December 30, 1997, Prime Management, Inc., a California
corporation, merged with and into Corcoran Technologies Corporation.
Corcoran Technologies Corporation was formed on March 27, 1997 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to the
Company, including identical management and beneficial shareholders.
At the time of the merger, Prime Management, Inc. was an operating
transportation company with two wholly-owned subsidiaries, Mid-Cal
Express, a long-haul trucking company hauling shipments of general
commodities, including temperature-sensitive goods, in both
intrastate and interstate commerce and Mid-Cal Logistics, a freight
brokerage company. Pursuant to the merger, Corcoran Technologies
Corporation changed its name to Prime Companies, Inc. and Corcoran
Technologies Corporation filed a Form 8-K on January 13, 1998 with
the Securities and Exchange Commission describing the merger. The
common stock of Prime Companies, Inc. trades on the NASD OTC
Bulletin Board under the symbol PRMC. Detailed information
concerning Prime Companies, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found the EDGAR archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On December 4, 1998, AmeriCom USA, Inc., a Delaware
corporation, merged with and into Chatsworth Acquisition
Corporation. Chatsworth Acquisition Corporation was formed on
December 3, 1997 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to the Company, including identical management and
beneficial shareholders. AmeriCom USA, Inc. is an operating
Internet advertising company with a wholly-owned subsidiary,
Diversified Associates International, a California company.
Pursuant to the merger, Chatsworth Acquisition Corporation changed
its name to AmeriCom USA, Inc. and Chatsworth Acquisition
Corporation filed a Form 8-K on December 18, 1998, with the
Securities and Exchange Commission describing the merger. On
January 24, 1999, AmeriCom USA, Inc. entered into an agreement to
acquire, through a subsidiary, Kiosk Software, Inc., a company
specializing in kiosk design and multimedia software development.
On February 26, 1999, AmeriCom USA, Inc. entered into an agreement
to acquire, through a subsidiary, all the assets of Jim and John
Tech, a California company. Detailed information concerning
AmeriCom USA, Inc. may be obtained from its filings under the
Exchange Act which are found the EDGAR archives page of the
Securities and Exchange Commission's Website at www.sec.gov.
On April 27, 1999, Capsource, Inc., a Nevada company, Del Mar
Mortgage, Inc., a Nevada company, and Del Mar Holdings, Inc. a
Nevada company, entered into a stock exchange agreement and asset
acquisition agreements, respectively, with Sunderland Acquisition
Corporation. Sunderland Acquisition Corporation was formed on June
2, 1998 to engage in a merger or acquisition with an unidentified
company or companies and was structured substantially identically to
the Company, including identical management and beneficial
shareholders. Capsource, Inc. and Del Mar Mortgage, Inc. are
operating loan origination companies and Del Mar Holdings, Inc.
serves as a holding company. Pursuant to the transactions,
Sunderland Acquisition Corporation changed its name to Sunderland
Corporation and filed a Form 8-K on May 4, 1999 with the Securities
and Exchange Commission describing the transactions. On October 1,
1999, Sunderland Corporation filed a registration statement on Form
SB-2. Detailed information concerning Sunderland Corporation
subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found the EDGAR archives
page of the Securities and Exchange Commission's Website at
www.sec.gov.
On May 27, 1999, ThinWeb Software Incorporated, a Nova Scotia
corporation, entered into a stock exchange agreement with
Thinweb.com Inc., the wholly-owned Nova Scotia subsidiary of Warwick
Acquisition Corporation.
Warwick Acquisition Corporation was formed on June 2, 1998 to engage
in a merger or acquisition with an unidentified company or companies
and was structured substantially identically to the Company,
including identical management and beneficial shareholders. ThinWeb
Software Incorporated is a development-stage computer software
company. Pursuant to the transaction, Warwick Acquisition
Corporation changed its name to thinWEB.com, Inc. and filed a Form
8-K on May 27, 1999 with the Securities and Exchange Commission
describing the transaction. On July 23, 1999, thinWEB.com
Corporation filed a registration statement on Form SB-2. Detailed
information concerning thinWEB.com, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found the EDGAR archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On July 30, 1999, Westford Acquisition Corporation merged with
and into South Beach Concepts, Inc., a Florida corporation.
Westford Acquisition Corporation was formed on June 2, 1998 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to the
Company, including identical management and beneficial shareholders.
South Beach Concepts, Inc. develops, operates and franchises
take-out and eat-in restaurants with specific and consistent themes,
logos, and menus (i.e. "chains") and roasts, produces and markets
coffee beans and teas. It has two theme restaurant chains, Pizza
World Gourmet Pizza and South Beach Cafe. Pursuant to the
transaction, South Beach Concepts, Inc. was the surviving
corporation and the successor issuer to Westford Acquisition
Corporation and filed a Form 8-K on August 13, 1999. Detailed
information concerning South Beach Concepts, Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found the EDGAR archives page of the
Securities and Exchange Commission's Website at www.sec.gov.
On August 31, 1999, Barhill Acquisition Corporation merged
with and into Aqua Vie Beverage Corporation, a Delaware corporation.
Barhill Acquisition Corporation was formed June 2, 1998 to engage
in a merger or acquisition with an unidentified company or companies
and was structured substantially identically to the Company,
including identical management and beneficial shareholders. Aqua
Vie Beverage Corporation develops, bottles and distributes naturally
flavored bottled spring water offering such flavors as Avalanche
(pear and guava flavored spring water), Bamboo (cherry flavored
spring water), Paradise (orange and peach flavored spring water),
Harvest (strawberry flavored spring water) and other flavors.
Pursuant to the transaction, Aqua Vie Beverage Corporation was the
surviving corporation and the successor issuer to Barhill
Acquisition Corporation and filed a Form 8-K on September 1, 1999.
The common stock of Aqua Vie Beverage Corporation trades on the OTC
Bulletin Board under the symbol AVBC. Detailed information
concerning Aqua Vie Beverage Corporation subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found the EDGAR archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On October 18, 1999, Abbacy Corporation merged with and into
CBCom, Inc., a Delaware corporation. Abbacy Corporation was formed
June 4, 1999, to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to the Company, including identical management and
beneficial shareholders. CBCom is a development stage company formed
to develop telecommunications projects and Internet-related
information services in the People's Republic of China by
establishing joint venture partnerships with Chinese companies
having data networking technologies or installed bases of
telecommunications. CBCom, Inc. has entered into a memorandum of
understanding with a Chinese joint venture to form a Sino-foreign
joint venture to develop a financial data network in China called
"China Financial Network". Pursuant to the transaction, CBCom, Inc.
was the surviving corporation and the successor issuer to Abbacy
Corporation and filed a Form 8-K on October 21, 1999. Detailed
information concerning CBCom, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found the EDGAR archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On October 26, 1999, Torbay Acquisition Corporation merged
with and into Torbay Holdings, Inc., a Delaware corporation. Torbay
Acquisition was formed June 2, 1998, to engage in a merger or
acquisition with an unidentified company or companies and was
structured substantially identically to the Company, including
identical management and beneficial shareholders. Torbay Holdings,
Inc. is a development stage company that, through its subsidiary
Designer Appliances, Ltd., is developing and beginning marketing of
household appliances designed to be attractive to a premium, upscale
market. The Company will operate directly in the United Kingdom
through a network of distributors. Pursuant to the transaction,
Torbay Holdings, Inc. was the surviving corporation and the
successor issuer to Torbay Acquisition Corporation. The Current
Report on Form 8-K was filed November 12, 1999. Detailed
information concerning Torbay Holdings, Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found the EDGAR archives page of the
Securities and Exchange Commission's Website at www.sec.gov.
On November 2, 1999, Blencathia Acquisition Corporation merged
with and into International Fuel Technology, Inc., a Nevada
corporation. Blencathia Acquisition was formed December 3, 1997, to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to the
Company, including identical management and beneficial shareholders.
International Fuel is a development stage company that has
developed a process that reformulates various refined fuels,
including #2 diesel fuel, home heating oil, #6 (Bunker) fuel, jet
engine fuel and gasoline to improve combustion efficiency and reduce
the amounts of harmful exhaust emissions from internal combustion
engines. The resulting reprocessed fuels are known as PEERfuels.
PEERdiesel is in final testing phases to obtain its diploma
certification form the California Air Resources Board. Pursuant to
the transaction, International Fuel Technology, Inc. was the
surviving corporation and the successor issuer to Blencathia
Acquisition Corporation. The Current Report on Form 8-K was filed
November 4, 1999. The common stock of International Fuel
Technology, Inc. trades on the OTC Bulletin Board under the symbol
IFUE. Detailed information concerning International Fuel Technology,
Inc. subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found the EDGAR archives
page of the Securities and Exchange Commission's Website at
www.sec.gov.
On November 10, 1999, Epilogue Corporation merged with and
into Nextpath Technologies, Inc., a Nevada corporation. Epilogue
was formed June 7, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to the Company, including identical management and
beneficial shareholders. Nextpath Technologies, Inc. is a
development stage company formed to serve as a holding company that
identifies, acquires, operates and manages state-of-the-art
technology companies which have the potential to capture specific
market niches. Pursuant to the transaction, Nextpath Technologies,
Inc. was the surviving corporation and the successor issuer to
Epilogue Corporation and filed a Form 8-K on November 12, 1999. The
common stock of Nextpath Technologies, Inc. trades on the OTC
Bulletin Board under the symbol NPTK. Detailed information
concerning Nextpath Technologies, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On November 26, 1999, all the outstanding shares of Caprock
Corporation were acquired by International Internet, Inc., a
Delaware corporation. Caprock was formed June 7, 1999 to engage in a
merger or acquisition with an unidentified company or companies and
was structured substantially identically to the Company, including
identical management and beneficial shareholders. International
Internet, Inc. develops and operates Internet and direct retail
marketing companies. Pursuant to the transaction, Caprock
Corporation became a wholly-owned subsidiary of International
Internet, Inc. A Current Report on Form 8-K was filed December 3,
1999. The common stock of International Internet, Inc. trades on the
OTC Bulletin Board under the symbol IINN. Detailed information
concerning International Internet, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
On November 29, 1999, all the outstanding shares of Aterian
Corporation were acquired by Gourmet's Choice Coffee Co., Inc., a
Nevada corporation. Aterian was formed June 7, 1999 to engage in a
merger or acquisition with an unidentified company or companies and
was structured substantially identically to the Company, including
identical management and beneficial shareholders. Gourmet's Choice
Coffee Co. is a development stage company that sells premium blended
coffees from its Web site on the Internet and to serve as a holding
company for domestic and international companies to be acquired,
including its first acquisition of a Vietnamese mineral water
company. Pursuant to the transaction, Aterian Corporation became a
wholly-owned subsidiary of Gourmet's Choice Coffee Co., Inc. The
Current Report on Form 8-K was filed on November 29, 1999. The
common stock of Gourmet's Choice Coffee, Inc. trades on the OTC
Bulletin Board under the symbol GMCH.. Detailed information
concerning Gourmet's Choice Coffee Co., Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at www.sec.gov.
On December 3, 1999, all the outstanding shares of Tunlaw
International Corporation were acquired by American Career Centers, Inc.,
a Nevada corporation. Tunlaw was formed March 27, 1997 to engage in
a merger or acquisition with an unidentified company or companies
and was structured substantially identically to the Company, including
identical management and beneficial shareholders. American Career Centers,
Inc. is a holding company for a number of related career colleges and
training centers. Pursuant to the transaction, Tunlaw International
Corporation became a wholly-owned subsidiary of American Career Centers,
Inc. The Current Report on Form 8-K was filed December 10, 1999.
Detailed information concerning American Career Centers, Inc.
subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archives
page of the Securities and Exchange Commission's Website at www.sec.gov.
On December 9, 1999, all the outstanding shares of Forestay Corporation
were acquired by Milinx Business Group, Inc., a Delaware corporation.
Forestay was formed June 7, 1999 to engage in a merger or acquisition
with an unidentified company or companies and was structured substantially
identically to the Company, including identical management and beneficial
shareholders. Milinx Busines Group, Inc. is a development stage company
specializing in automated digital business services with a primary
product that delivers integrated, next generation e-business services
to subscribers. Pursuant to the transaction, Forestay Corporation
became a wholly-owned subsidiary of Milinx Business Group, Inc.
Detailed information concerning Milinx
Business Group, Inc. subsequent to the business combination may be
obtained from its filings under the Exchange Act which are found on the
Edgar archives page of the Securities and Exchange Commission's Website
at www.sec.gov.
On December 13, 1999, all the outstanding shares of Decurion
Corporation were acquired by Hydrogiene Corporation, a Florida corporation.
Decurion was formed June 7, 1999 to engage in a merger or acquisition
with an unidentified company or companies and was structured substantially
identically to the Company, including identical management and beneficial
shareholders. Hydrogiene Corporation is a development stage company that
manufactures and markets personal care systems that convert tank-type
and flush-type valve toilets into personal multi-functional cleansing,
water therapy and sitz bath systems. Pursuant to the transaction,
Decurion Corporation became a wholly-owned subsidiary of Hydrogiene
Corporation. The Current Report on Form 8-K was filed on December 14,
1999. The common stock of Hydrogiene Corporation trades on the OTC
Bulletin Board under the symbol HICS. Detailed information concerning
Hydrogiene Corporation subsequent to the business combination may be
obtained from its filings under the Exchange Act which are found on the
Edgar archives page of the Securities and Exchange Commission's
Website at www.sec.gov.
On January 5, 2000, all the outstanding share of Ivory Acquisition
Corporation were acquired by Cosmoz.com, Inc., a Delaware corporation.
Ivory Acquisition was formed March 24, 1999 to engage in a merger or
acquisition with an unidentified company or companies and was structured
substantially identically to the Company, including identical management
and benefcial shareholders. Cosmoz.com, Inc. is a development stage company
that intends to be an Internet portal and venture capital provider
focusing on the development, investment and acquisition of high traffic,
niche and unique technology-based Web properties. Through the World Wide
Web, the Company offers a network of branded, technology and community-
driven Web sites focused on personal finance, investing, Internet search,
business-to-business commerce and games. Pursuant to the transactions,
Ivory Acqusition Corporation became a wholly-owned subsidiary of
Cosmoz.com, Inc. The Current Report on Form 8-K was filed on January
7, 2000. The common stock of Cosmoz.com, Inc. trades on the OTC Bulletin
Board unde the Symbol CMOZ. Detailed information concerning Cosmoz.com,
Inc. subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archieves
page of the Securities and Exchange Commission's Website at www.sec.gov.
On January 14, 2000, all the outstanding shares of Aberdeen
Acquisition Corporation were acquired by Kurchatov Research Holdings, Ltd.,
a Delaware coproration. Aberdeen Acquisition was formed December 3, 1997
to engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to the Company,
including identical management and beneficial shareholders. Kurchatov
Research is a development stage company organized to identify, assess,
acquire and capitalize on innovative technologies introduced and
developed by scientists throughout the world with particular emphasis on
technologies originating in Israel, Russia and Germany. Pursuant to the
transaction, Aberdeen Acqusition Corporation became a wholly-owned
subsidiary of Kurchatov Research. The Current Report on Form 8-K was
filed on January 14, 2000. The common stock of Kurchatov Research
trades on the OTC Bulletin Board under the symbol KRHL. Detailed
information concerning Kurchatov Research subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at www.sec.gov.
CONFLICTS OF INTEREST
James M. Cassidy, the Company's sole officer and director, has
organized and expects to organize other companies of a similar
nature and with a similar purpose as the Company. Consequently,
there are potential inherent conflicts of interest in acting as an
officer and director of the Company. In addition, insofar as Mr.
Cassidy is engaged in other business activities, he may devote only
a portion of his time to the Company's affairs.
A conflict may arise in the event that another blank check
company with which Mr. Cassidy is affiliated also actively seeks a
target company. It is anticipated that target companies will be
located for the Company and other blank check companies in
chronological order of the date of formation of such blank check
companies or, in the case of blank check companies formed on the
same date, alphabetically. However, other blank check companies may
differ from the Company in certain items such as place of
incorporation, number of shares and shareholders, working capital,
types of authorized securities, or other items. It may be that a
target company may be more suitable for or may prefer a certain
blank check company formed after the Company. In such case, a
business combination might be negotiated on behalf of the more
suitable or preferred blank check company regardless of date of
formation. However, Mr. Cassidy's beneficial and economic interest
in all blank check companies with which he is currently involved is
identical.
Mr. Cassidy is the principal of Cassidy & Associates, a
securities law firm located in Washington, D.C. As such, demands
may be placed on the time of Mr. Cassidy which will detract from the
amount of time he is able to devote to the Company. Mr. Cassidy
intends to devote as much time to the activities of the Company as
required. However, should such a conflict arise, there is no
assurance that Mr. Cassidy would not attend to other matters prior
to those of the Company. Mr. Cassidy estimates that the business
plan of the Company can be implemented in theory by devoting
approximately 10 to 25 hours per month over the course of several
months but such figure cannot be stated with precision.
Mr. Cassidy is the president, director and controlling
shareholder of TPG Capital Corporation, a Delaware corporation,
which is the sole shareholder of the Company. At the time of a
business combination, some or all of the shares of common stock
owned by TPG Capital Corporation may be purchased by the target
company or retired by the Company. The amount of common stock sold
or continued to be owned by TPG Capital Corporation cannot be
determined at this time.
The terms of business combination may include such terms as
Mr. Cassidy remaining a director or officer of the Company and/or
the continuing securities or other legal work of the Company being
handled by the law firm of which Mr. Cassidy is the principal. The
terms of a business combination may provide for a payment by cash or
otherwise to TPG Capital Corporation for the purchase or retirement
of all or part of its common stock of the Company by a target
company or for services rendered incident to or following a business
combination. Mr. Cassidy would directly benefit from such
employment or payment. Such benefits may influence Mr. Cassidy's
choice of a target company.
The Company will not enter into a business combination, or
acquire any assets of any kind for its securities, in which
management of the Company or any affiliates or associates have any
interest, direct or indirect.
There are no binding guidelines or procedures for resolving
potential conflicts of interest. Failure by management to resolve
conflicts of interest in favor of the Company could result in
liability of management to the Company.
INVESTMENT COMPANY ACT OF 1940
Although the Company will be subject to regulation under the
Securities Act of 1933 and the Securities Exchange Act of 1934,
management believes the Company will not be subject to regulation
under the Investment Company Act of 1940 insofar as the Company will
not be engaged in the business of investing or trading in
securities. In the event the Company engages in business
combinations which result in the Company holding passive investment
interests in a number of entities the Company could be subject to
regulation under the Investment Company Act of 1940. In such event,
the Company would be required to register as an investment company
and could be expected to incur significant registration and
compliance costs. The Company has obtained no formal determination
from the Securities and Exchange Commission as to the status of the
Company under the Investment Company Act of 1940. Any violation of
such Act would subject the Company to material adverse consequences.
ITEM 6. EXECUTIVE COMPENSATION.
The Company's officer and director does not receive any
compensation for his services rendered to the Company, has not
received such compensation in the past, and is not accruing any
compensation pursuant to any agreement with the Company. However,
the officer and director of the Company anticipates receiving
benefits as a beneficial shareholder of the Company, as the officer
and director and controlling shareholder of TPG Capital Corporation
and, possibly, as principal of Cassidy & Associates, which may
perform legal services for the Company after the business
combination. See "ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS
AND CONTROL PERSONS Conflicts of Interest".
No retirement, pension, profit sharing, stock option or
insurance programs or other similar programs have been adopted by
the Company for the benefit of its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company has issued a total of 5,000,000 shares of Common
Stock to the following persons for a total of $500 in cash:
Name Number of Total Shares Consideration
TPG Capital Corporation 5,000,000 $500
Mr. Cassidy is the sole director, controlling shareholder
and president of TPG Capital Corporation. With respect to the
sales made to TPG Capital Corporation, the Company relied upon
Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act") and Rule 506 promulgated thereunder.
ITEM 8. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Company consists of
100,000,000 shares of common stock, par value $.0001 per share, of
which there are 5,000,000 issued and outstanding and 20,000,000
shares of preferred stock, par value $.0001 per share, of which none
have been designated or issued. The following statements relating
to the capital stock set forth the material terms of the Company's
securities; however, reference is made to the more detailed
provisions of, and such statements are qualified in their entirety
by reference to, the Certificate of Incorporation and the By-laws,
copies of which are filed as exhibits to this registration statement.
COMMON STOCK
Holders of shares of common stock are entitled to one vote for
each share on all matters to be voted on by the stockholders.
Holders of common stock do not have cumulative voting rights.
Holders of common stock are entitled to share ratably in dividends,
if any, as may be declared from time to time by the Board of
Directors in its discretion from funds legally available therefor.
In the event of a liquidation, dissolution or winding up of the
Company, the holders of common stock are entitled to share pro rata
all assets remaining after payment in full of all liabilities. All
of the outstanding shares of common stock are fully paid and
non-assessable.
Holders of common stock have no preemptive rights to purchase
the Company's common stock. There are no conversion or redemption
rights or sinking fund provisions with respect to the common stock.
PREFERRED STOCK
The Board of Directors is authorized to provide for the
issuance of shares of preferred stock in series and, by filing a
certificate pursuant to the applicable law of Delaware, to establish
from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights
of the shares of each such series and the qualifications,
limitations or restrictions thereof without any further vote or
action by the shareholders. Any shares of preferred stock so issued
would have priority over the common stock with respect to dividend
or liquidation rights. Any future issuance of preferred stock may
have the effect of delaying, deferring or preventing a change in
control of the Company without further action by the shareholders
and may adversely affect the voting and other rights of the holders
of common stock. At present, the Company has no plans to issue any
preferred stock nor adopt any series, preferences or other
classification of preferred stock.
The issuance of shares of preferred stock, or the issuance of
rights to purchase such shares, could be used to discourage an
unsolicited acquisition proposal. For instance, the issuance of a
series of preferred stock might impede a business combination by
including class voting rights that would enable the holder to block
such a transaction, or facilitate a business combination by
including voting rights that would provide a required percentage
vote of the stockholders. In addition, under certain circumstances,
the issuance of preferred stock could adversely affect the voting
power of the holders of the common stock. Although the Board of
Directors is required to make any determination to issue such stock
based on its judgment as to the best interests of the stockholders
of the Company, the Board of Directors could act in a manner that
would discourage an acquisition attempt or other transaction that
some, or a majority, of the stockholders might believe to be in
their best interests or in which stockholders might receive a
premium for their stock over the then market price of such stock.
The Board of Directors does not at present intend to seek
stockholder approval prior to any issuance of currently authorized
stock, unless otherwise required by law or stock exchange rules.
The Company has no present plans to issue any preferred stock.
DIVIDENDS
Dividends, if any, will be contingent upon the Company's
revenues and earnings, if any, capital requirements and financial
conditions. The payment of dividends, if any, will be within the
discretion of the Company's Board of Directors. The Company
presently intends to retain all earnings, if any, for use in its
business operations and accordingly, the Board of Directors does not
anticipate declaring any dividends prior to a business combination.
TRADING OF SECURITIES IN SECONDARY MARKET
The National Securities Market Improvement Act of 1996 limited
the authority of states to impose restrictions upon sales of
securities made pursuant to Sections 4(1) and 4(3) of the Securities
Act of companies which file reports under Sections 13 or 15(d) of
the Exchange Act. Upon effectiveness of this registration
statement, the Company will be required to, and will, file reports
under Section 13 of the Exchange Act. As a result, sales of the
Company's common stock in the secondary market by the holders
thereof may then be made pursuant to Section 4(1) of the Securities
Act (sales other than by an issuer, underwriter or broker) without
qualification under state securities acts.
Following a business combination, a target company will
normally wish to cause the Company's common stock to trade in one or
more United States securities markets. The target company may elect
to take the steps required for such admission to quotation following
the business combination or at some later time.
In order to qualify for listing on the Nasdaq SmallCap Market,
a company must have at least (i) net tangible assets of $4,000,000
or market capitalization of $50,000,000 or net income for two of the
last three years of $750,000; (ii) public float of 1,000,000 shares
with a market value of $5,000,000; (iii) a bid price of $4.00; (iv)
three market makers; (v) 300 shareholders and (vi) an operating
history of one year or, if less than one year, $50,000,000 in market
capitalization. For continued listing on the Nasdaq SmallCap
Market, a company must have at least (i) net tangible assets of
$2,000,000 or market capitalization of $35,000,000 or net income for
two of the last three years of $500,000; (ii) a public float of
500,000 shares with a market value of $1,000,000; (iii) a bid price
of $1.00; (iv) two market makers; and (v) 300 shareholders.
If, after a business combination, the Company does not meet
the qualifications for listing on the Nasdaq SmallCap Market, the
Company may apply for quotation of its securities on the OTC
Bulletin Board. In certain cases the Company may elect to have its
securities initially quoted in the "pink sheets" published by the
National Quotation Bureau, Inc.
To have its securities quoted on the OTC Bulletin Board a
company must:
(1) be a company that reports its current financial
information to the Securities and Exchange Commission, banking
regulators or insurance regulators;
(2) has at least one market maker who completes and files a
Form 211 with NASD Regulation, Inc.
The OTC Bulletin Board is a dealer-driven quotation service.
Unlike the Nasdaq Stock Market, companies cannot directly apply to
be quoted on the OTC Bulletin Board, only market makers can initiate
quotes, and quoted companies do not have to meet any quantitative
financial requirements. Any equity security of a reporting company
not listed on the Nasdaq Stock Market or on a national securities
exchange is eligible.
In general there is greatest liquidity for traded securities
on the Nasdaq SmallCap Market, less on the NASD OTC Bulletin Board,
and least through quotation by the National Quotation Bureau, Inc.
on the "pink sheets". It is not possible to predict where, if at
all, the securities of the Company will be traded following a
business combination.
TRANSFER AGENT
It is anticipated that StockTrans, Inc., Ardmore, Pennsylvania
will act as transfer agent for the common stock of the Company.
PART II
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
(A) MARKET PRICE. There is no trading market for the
Company's Common Stock at present and there has been no trading
market to date. There is no assurance that a trading market will
ever develop or, if such a market does develop, that it will
continue.
The Securities and Exchange Commission has adopted Rule 15g-9
which establishes the definition of a "penny stock," for purposes
relevant to the Company, as any equity security that has a market
price of less than $5.00 per share or with an exercise price of less
than $5.00 per share, subject to certain exceptions. For any
transaction involving a penny stock, unless exempt, the rules
require:
(i) that a broker or dealer approve a person's account for
transactions in penny stocks and
(ii) the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and
quantity of the penny stock to be purchased.
In order to approve a person's account for transactions in
penny stocks, the broker or dealer must
(i) obtain financial information and investment experience and
objectives of the person; and
(ii) make a reasonable determination that the transactions in
penny stocks are suitable for that person and that person has
sufficient knowledge and experience in financial matters to be
capable of evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any
transaction in a penny stock, a disclosure schedule prepared by the
Commission relating to the penny stock market, which, in highlight
form,
(i) sets forth the basis on which the broker or dealer made
the suitability determination and
(ii) that the broker or dealer received a signed, written
agreement from the investor prior to the transaction. Disclosure
also has to be made about the risks of investing in penny stocks in
both public offerings and in secondary trading, and about
commissions payable to both the broker-dealer and the registered
representative, current quotations for the securities and the rights
and remedies available to an investor in cases of fraud in penny
stock transactions.
Finally, monthly statements have to be sent disclosing recent
price information for the penny stock held in the account and
information on the limited market in penny stocks.
(B) HOLDERS. There is one holder of the Company's Common
Stock. The issued and outstanding shares of the Company's Common
Stock were issued in accordance with the exemptions from
registration afforded by Section 4(2) of the Securities Act of 1933
and Rule 506 promulgated thereunder.
(C) DIVIDENDS. The Company has not paid any dividends to
date, and has no plans to do so in the immediate future.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
The Company has not changed accountants since its formation
and there are no disagreements with the findings of its accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Company has sold securities
which were not registered as follows:
Number of
Date Name Shares Consideration
March 25, 1999 TPG Capital Corporation 5,000,000 $500
________
Mr. Cassidy is the sole director, controlling shareholder and
president of TPG Capital Corporation. With respect to the sales
made to TPG Capital Corporation, the Company relied upon Section
4(2) of the Securities Act of 1933, as amended and Rule 506
promulgated thereunder.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a
provision eliminating the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 (relating to liability for unauthorized
acquisitions or redemptions of, or dividends on, capital stock) of
the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal
benefit. The Company's Certificate of Incorporation contains such a
provision.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS,
OFFICERS OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE
FOREGOING PROVISIONS, IT IS THE OPINION OF THE SECURITIES AND
EXCHANGE COMMISSION THAT SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
PART F/S
FINANCIAL STATEMENTS.
Set forth below are the audited financial statements for the
Company for the period ended October 31, 1999. The following
financial statements are attached to this report and filed as a part
thereof.
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF OCTOBER 31, 1999
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF OCTOBER 31, 1999
PAGE 3 - STATEMENT OF OPERATIONS FOR THE PERIOD
FROM MARCH 24, 1999 (INCEPTION) TO OCTOBER 31, 1999
PAGE 4 - STATEMENT OF CHANGES IN STOCKHOLDER'S
EQUITY FOR THE PERIOD FROM MARCH 24, 1999
(INCEPTION) TO OCTOBER 31, 1999
PAGE 5 - STATEMENT OF CASH FLOWS FOR THE PERIOD FROM
MARCH 24, 1999 (INCEPTION) TO OCTOBER 31, 1999
PAGES 6 -8 - NOTES TO FINANCIAL STATEMENTS AS OF
OCTOBER 31, 1999
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Independent Acquisition Corporation
(A Development Stage Company)
We have audited the accompanying balance sheet of Independent Acquisition
Corporation (a development stage company) as of October 31, 1999 and
the related statements of operations, changes in stockholder's
equity and cash flows for the period from March 24, 1999 (inception)
to October 31, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is
to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly in all material respects, the financial position of Independent
Acquisition Corporation (a development stage company) as of October
31, 1999, and the results of its operations and its cash flows for
the period from March 24, 1999 (inception) to October 31, 1999 in
conformity with generally accepted accounting principles.
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF OCTOBER 31, 1999
ASSETS
Cash $ 500
TOTAL ASSETS $ 500
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES $ -
STOCKHOLDER'S EQUITY
Preferred Stock, $.0001 par value, 20 million
shares authorized, zero issued and outstanding -
Common Stock, $.0001 par value, 100 million
shares authorized, 5,000,000 issued
and outstanding 500
Additional paid-in capital 1,330
Deficit accumulated during development stage (1,330)
Total Stockholder's Equity 500
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 500
See accompanying notes to financial statements.
2
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIOD FROM MARCH 24, 1999
(INCEPTION) TO OCTOBER 31, 1999
Income $ -
Expenses
Organization expense 580
Professional fees 750
Total expenses 1,330
NET LOSS $ (1,330)
See accompanying notes to financial statements.
3
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDER'S EQUITY
FOR THE PERIOD FROM MARCH 24, 1999
(INCEPTION) TO OCTOBER 31, 1999
Deficit
Additional Accumulated
Common Paid-In During Devel-
Stock Capital opment Stage Total
Common stock issuance $ 500 $ - $ - $ 500
Fair value of
expenses contributed - 1,330 - 1,330
Net loss for the period
ended October 31, 1999 - - (1,330) (1,330)
BALANCE AT OCTOBER 31, 1999 $ 500 $ 1,330 $ (1,330) $ 500
See accompanying notes to financial statements.
4
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM MARCH 24, 1999
(INCEPTION) TO OCTOBER 31, 1999
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ (1,330)
Adjustment to reconcile net loss
to net cash used by operating activities:
Capitalized expenses 1,330
Net cash used in operating activities -
CASH FLOWS FROM INVESTING ACTIVITIES -
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 500
Net cash provided by financing activities 500
INCREASE IN CASH AND CASH EQUIVALENTS 500
CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD -
CASH AND CASH EQUIVALENTS - END OF PERIOD $ 500
See accompanying notes to financial statements.
5
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF OCTOBER 31, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
Independent Acquisition Corporation (a development stage
company) ("the Company") was incorporated in Delaware on
March 24, 1999 to serve as a vehicle to effect a merger,
exchange of capital stock, asset acquisition or other
business combination with a domestic or foreign private
business. At October 31, 1999, the Company had not yet
commenced any formal business operations, and all activity
to date relates to the Company's formation and proposed
fund raising. The Company's fiscal year end is December 31.
The Company's ability to commence operations is contingent
upon its ability to identify a prospective target business
and raise the capital it will require through the issuance
of equity securities, debt securities, bank borrowings or
a combination thereof.
B. Use of Estimates
The preparation of the financial statements in conformity
with generally accepted accounting principles requires
management to make estimates and assumptions that affect
the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts
of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
C. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company
considers all highly liquid investments purchased with an
original maturity of three months or less to be cash
equivalents.
6
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF OCTOBER 31, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - (CONT'D)
D. Income Taxes
The Company accounts for income taxes under the Financial
Accounting Standards Board of Financial Accounting
Standards No. 109, "Accounting for Income Taxes"
("Statement 109"). Under Statement 109, deferred tax
assets and liabilities are recognized for the future tax
consequences attributable to differences between the
financial statement carrying amounts of existing assets
and liabilities and their respective tax basis. Deferred
tax assets and liabilities are measured using enacted tax
rates expected to apply to taxable income in the years in
which those temporary differences are expected to be
recovered or settled. Under Statement 109, the effect on
deferred tax assets and liabilities of a change in tax
rates is recognized in income in the period that includes
the enactment date. There were no current or deferred
income tax expense or benefits due to the Company not
having any material operations for the period ending
October 31, 1999.
NOTE 2 - STOCKHOLDER'S EQUITY
A. Preferred Stock
The Company is authorized to issue 20,000,000 shares of
preferred stock at $.0001 par value, with such
designations, voting and other rights and preferences as
may be determined from time to time by the Board of
Directors.
B. Common Stock
The Company is authorized to issue 100,000,000 shares of
common stock at $.0001 par value. The Company issued
5,000,000 shares of its common stock to TPG Capital
Corporation ("TPG") pursuant to Rule 506 for an aggregate
consideration of $500.
7
INDEPENDENT ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF OCTOBER 31, 1999
NOTE 2 - STOCKHOLDER'S EQUITY - (CONT'D)
C. Additional Paid-In Capital
Additional paid-in capital at October 31, 1999 represents
the fair value of the amount of organization and
professional costs incurred by TPG on behalf of the
Company. (See Note 3)
NOTE 3 - AGREEMENT
On March 24, 1999, the Company signed an agreement with
TPG, a related entity (See Note 4). The Agreement calls
for TPG to provide the following services, without
reimbursement from the Company, until the Company enters
into a business combination as described in Note 1A:
1. Preparation and filing of required documents with the
Securities and Exchange Commission.
2. Location and review of potential target companies.
3. Payment of all corporate, organizational, and other
costs incurred by the Company.
NOTE 4 - RELATED PARTIES
Legal counsel to the Company is a firm owned by a director
of the Company who also owns a controlling interest in the
outstanding stock of TPG. (See Note 3)
8
PART III
ITEM 1. INDEX TO EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
3.1 Certificate of Incorporation
3.2 By-Laws
3.3 Specimen stock certificate
10.1 Agreement with TPG Capital Corporation
10.2 Shareholder agreement
23.1 Consent of Accountants
27 Financial Data Schedule
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act
of 1934, the Registrant caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized.
INDEPENENT ACQUISITION CORPORATION
By: /s/ James M. Cassidy
James M. Cassidy, President
January 18, 2000
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
INDEPENDENT ACQUISITION CORPORATION
ARTICLE ONE
Name
The name of the Corporation is Independent Acquisition Corporation.
ARTICLE TWO
Duration
The Corporation shall have perpetual existence.
ARTICLE THREE
Purpose
The purpose for which this Corporation is organized is to engage in
any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE FOUR
Shares
The total number of shares of stock which the Corporation
shall have authority to issue is 120,000,000 shares, consisting of
100,000,000 shares of Common Stock having a par value of $.0001 per
share and 20,000,000 shares of Preferred Stock having a par value of
$.0001 per share.
The Board of Directors is authorized to provide for the
issuance of the shares of Preferred Stock in series and, by filing a
certificate pursuant to the applicable law of the State of Delaware,
to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof.
The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to,
determination of the following:
A. The number of shares constituting that series and the
distinctive designation of that series;
B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends
on share of that series;
C. Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such
voting rights;
D. Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as
the Board of Directors shall determine;
E. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
F. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
G. The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
H. Any other relative rights, preferences and limitations of
that series.
ARTICLE FIVE
Commencement of Business
The Corporation is authorized to commence business as soon as its
certificate of incorporation has been filed.
ARTICLE SIX
Principal Office and Registered Agent
The post office address of the initial registered office of the
Corporation and the name of its initial registered agent and its
business address is
Inc. Plan (USA)
Trolley Square
Suite 26 C
Wilmington, Delaware 19806 (County of New Castle)
The initial registered agent is a resident of the State of Delaware.
ARTICLE SEVEN
Incorporator
Lee W. Cassidy, 1504 R Street, N.W., Washington, D.C. 20009.
ARTICLE EIGHT
Pre-Emptive Rights
No Shareholder or other person shall have any pre-emptive rights
whatsoever.
ARTICLE NINE
By-Laws
The initial by-laws shall be adopted by the Shareholders or the
Board of Directors. The power to alter, amend, or repeal the
by-laws or adopt new by-laws is vested in the Board of Directors,
subject to repeal or change by action of the Shareholders.
ARTICLE TEN
Number of Votes
Each share of Common Stock has one vote on each matter on
which the share is entitled to vote.
ARTICLE ELEVEN
Majority Votes
A majority vote of a quorum of Shareholders (consisting of the
holders of a majority of the shares entitled to vote, represented in
person or by proxy) is sufficient for any action which requires the
vote or concurrence of Shareholders, unless otherwise required or
permitted by law or the by-laws of the Corporation.
ARTICLE TWELVE
Non-Cumulative Voting
Directors shall be elected by majority vote. Cumulative voting
shall not be permitted.
ARTICLE THIRTEEN
Interested Directors, Officers and Securityholders
A. Validity. If Paragraph (B) is satisfied, no contract or other
transaction between the Corporation and any of its directors,
officers or securityholders, or any corporation or firm in which any
of them are directly or indirectly interested, shall be invalid
solely because of this relationship or because of the presence of
the director, officer or securityholder at the meeting of the Board
of Directors or committee authorizing the contract or transaction,
or his participation or vote in the meeting or authorization.
B. Disclosure, Approval, Fairness. Paragraph (A) shall apply only
if:
(1) The material facts of the relationship or interest of each
such director, officer or securityholder are known or disclosed:
(a) to the Board of Directors or the committee and it nevertheless
authorizes or ratifies the contract or transaction by a majority of
the directors present, each such interested director to be counted
in determining whether a quorum is present but not in calculating
the majority necessary to carry the vote; or
(b) to the Shareholders and they nevertheless authorize or ratify
the contract or transaction by a majority of the shares present,
each such interested person to be counted for quorum and voting
purposes; or
(2) the contract or transaction is fair to the Corporation as of
the time it is authorized or ratified by the Board of Directors, the
committee or the Shareholders.
ARTICLE FOURTEEN
Indemnification and Insurance
A. Persons. The Corporation shall indemnify, to the extent
provided in Paragraphs (B), (D) or (F) and to the extent permitted
from time to time by law:
(1) any person who is or was director, officer, agent or employee
of the Corporation, and
(2) any person who serves or served at the Corporation's request
as a director, officer, agent, employee, partner or trustee of
another corporation or of a partnership, joint venture, trust or
other enterprise.
B. Extent--Derivative Suits. In case of a suit by or in the
right of the Corporation against a person named in Paragraph (A) by
reason of his holding a position named in Paragraph (A), the
Corporation shall indemnify him, if he satisfies the standard in
Paragraph (C), for expenses (including attorney's fees but excluding
amounts paid in settlement) actually and reasonably incurred by him
in connection with the defense or settlement of the suit.
C. Standard--Derivative Suits. In case of a suit by or in the
right of the Corporation, a person named in Paragraph (A) shall be
indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject
of the suit, and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation. However, he
shall not be indemnified in respect of any claim, issue or matter as
to which he has been adjudged 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 the suit was brought shall
determine, upon application, that despite the adjudication but in
view of all the circumstances, he is fairly and reasonably entitled
to indemnity for such expenses as the court shall deem proper.
D. Extent--Nonderivative Suits. In case of a suit, action or
proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the
Corporation against a person named in Paragraph (A) by reason of his
holding a position named in Paragraph (A), the Corporation shall
indemnify him, if he satisfies the standard in Paragraph (E), for
amounts actually and reasonably incurred by him in connection with
the defense or settlement of the suit as
(1) expenses (including attorneys' fees),
(2) amounts paid in settlement
(3) judgments, and
(4) fines.
E. Standard--Nonderivative Suits. In case of a nonderivative
suit, a person named in Paragraph (A) shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject
of the nonderivative suit, 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, he had no
reason to believe his conduct was unlawful. The termination of a
nonderivative suit by judgement, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person failed to satisfy this
Paragraph (E) (2).
F. Determination That Standard Has Been Met. A determination that
the standard of Paragraph (C) or (E) has been satisfied may be made
by a court of law or equity or the determination may be made by:
(1) a majority of the directors of the Corporation (whether
or not a quorum) who were not parties to the action, suit or
proceeding, or
(2) independent legal counsel (appointed by a majority of
the directors of the Corporation, whether or not a quorum, or
elected by the Shareholders of the Corporation) in a written
opinion, or
(3) the Shareholders of the Corporation.
G. Proration. Anyone making a determination under Paragraph (F)
may determine that a person has met the standard as to some matters
but not as to others, and may reasonably prorate amounts to be
indemnified.
H. Advance Payment. The Corporation may pay in advance any
expenses (including attorney's fees) which may become subject to
indemnification under paragraphs (A) - (G) if:
(1) the Board of Directors authorizes the specific payment and
(2) the person receiving the payment undertakes in writing to
repay unless it is ultimately determined that he is entitled to
indemnification by the Corporation under Paragraphs (A) - (G).
I. Nonexclusive. The indemnification provided by Paragraphs (A) -
(G) shall not be exclusive of any other rights to which a person may
be entitled by law or by by-law, agreement, vote of Shareholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification and advance payment provided
by Paragraphs (A) - (H) shall continue as to a person who has ceased
to hold a position named in paragraph (A) and shall inure to his
heirs, executors and administrators.
K. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who holds or who has held any position named
in Paragraph (A) against any liability incurred by him in any such
positions or arising out of this status as such, whether or not the
Corporation would have power to indemnify him against such liability
under Paragraphs (A) - (H).
L. Reports. Indemnification payments, advance payments, and
insurance purchases and payments made under Paragraphs (A) - (K)
shall be reported in writing to the Shareholders of the Corporation
with the next notice of annual meeting, or within six months,
whichever is sooner.
M. Amendment of Article. Any changes in the General
Corporation Law of Delaware increasing, decreasing, amending,
changing or otherwise effecting the indemnification of directors,
officers, agents, or employees of the Corporation shall be
incorporated by reference in this Article as of the date of such
changes without further action by the Corporation, its Board of
Directors, of Shareholders, it being the intention of this Article
that directors, officers, agents and employees of the Corporation
shall be indemnified to the maximum degree allowed by the General
Corporation Law of the State of Delaware at all times.
ARTICLE FIFTEEN
Limitation On Director Liability
A. Scope of Limitation. No person, by virtue of being or having
been a director of the Corporation, shall have any personal
liability for monetary damages to the Corporation or any of its
Shareholders for any breach of fiduciary duty except as to the
extent provided in Paragraph (B).
B. Extent of Limitation. The limitation provided for in this
Article shall not eliminate or limit the liability of a director to
the Corporation or its Shareholders (i) for any breach of the
director's duty of loyalty to the Corporation or its Shareholders
(ii) for any acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law (iii) for any
unlawful payment of dividends or unlawful stock purchases or
redemptions in violation of Section 174 of the General Corporation
Law of Delaware or (iv) for any transaction for which the director
derived an improper personal benefit.
IN WITNESS WHEREOF, the incorporator hereunto has executed this
certificate of incorporation on this 22nd day of March, 1999.
Lee W. Cassidy, Incorporator
EXHIBIT 3.2
INDEPENDENT ACQUISITION CORPORATION
BY-LAWS
ARTICLE I
The Stockholders
SECTION 1.1. ANNUAL MEETING. The annual meeting of the
stockholders of Independent Acquisition Corporation (the "Corporation")
shall be held on the third Thursday in May of each year at 10:30
a.m. local time, or at such other date or time as shall be
designated from time to time by the Board of Directors and stated in
the notice of the meeting, for the election of directors and for the
transaction of such other business as may come before the meeting.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of the
stockholders may be called at any time by the written resolution or
request of two-thirds or more of the members of the Board of
Directors, the president, or any executive vice president and shall
be called upon the written request of the holders of two-thirds or
more in amount, of each class or series of the capital stock of the
Corporation entitled to vote at such meeting on the matters(s) that
are the subject of the proposed meeting, such written request in
each case to specify the purpose or purposes for which such meeting
shall be called, and with respect to stockholder proposals, shall
further comply with the requirements of this Article.
SECTION 1.3. NOTICE OF MEETINGS. Written notice of each meeting
of stockholders, whether annual or special, stating the date, hour
and place where it is to be held, shall be served either personally
or by mail, not less than fifteen nor more than sixty days before
the meeting, upon each stockholder of record entitled to vote at
such meeting, and to any other stockholder to whom the giving of
notice may be required by law. Notice of a special meeting shall
also state the purpose or purposes for which the meeting is called
and shall indicate that it is being issued by, or at the direction
of, the person or persons calling the meeting. If, at any meeting,
action is proposed to be taken that would, if taken, entitle
stockholders to receive payment for their stock, the notice of such
meeting shall include a statement of that purpose and to that
effect. If mailed, notice shall be deemed to be delivered when
deposited in the United States mail or with any private express mail
service, postage or delivery fee prepaid, and shall be directed to
each such stockholder at his address, as it appears on the records
of the stockholders of the Corporation, unless he shall have
previously filed with the secretary of the Corporation a written
request that notices intended for him be mailed to some other
address, in which case, it shall be mailed to the address designated
in such request.
SECTION 1.4. FIXING DATE OF RECORD. (a) In order that the
Corporation may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders, or any adjournment thereof,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to
notice of, or to vote at, a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of, or to
vote at, a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting (to the extent that such action by written consent
is permitted by law, the Certificate of Incorporation or these
By-Laws), the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date
shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by law, shall be
the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in its state of incorporation,
its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board
of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior
action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled
to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than
sixty days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
SECTION 1.5. INSPECTORS. At each meeting of the stockholders, the
polls shall be opened and closed and the proxies and ballots shall
be received and be taken in charge. All questions touching on the
qualification of voters and the validity of proxies and the
acceptance or rejection of votes, shall be decided by one or more
inspectors. Such inspectors shall be appointed by the Board of
Directors before or at the meeting, or, if no such appointment shall
have been made, then by the presiding officer at the meeting. If
for any reason any of the inspectors previously appointed shall fail
to attend or refuse or be unable to serve, inspectors in place of
any so failing to attend or refusing or unable to serve shall be
appointed in like manner.
SECTION 1.6. QUORUM. At any meeting of the stockholders, the
holders of a majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum of the stockholders
for all purposes, unless the representation of a larger number shall
be required by law, and, in that case, the representation of the
number so required shall constitute a quorum.
If the holders of the amount of stock necessary to constitute a
quorum shall fail to attend in person or by proxy at the time and
place fixed in accordance with these By-Laws for an annual or
special meeting, a majority in interest of the stockholders present
in person or by proxy may adjourn, from time to time, without notice
other than by announcement at the meeting, until holders of the
amount of stock requisite to constitute a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally notified.
SECTION 1.7. BUSINESS. The chairman of the Board, if any, the
president, or in his absence the vice-chairman, if any, or an
executive vice president, in the order named, shall call meetings of
the stockholders to order, and shall act as chairman of such
meeting; provided, however, that the Board of Directors or executive
committee may appoint any stockholder to act as chairman of any
meeting in the absence of the chairman of the Board. The secretary
of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the secretary at any meeting of
the stockholders, the presiding officer may appoint any person to
act as secretary of the meeting.
SECTION 1.8. STOCKHOLDER PROPOSALS. No proposal by a stockholder
shall be presented for vote at a special or annual meeting of
stockholders unless such stockholder shall, not later than the close
of business on the fifth day following the date on which notice of
the meeting is first given to stockholders, provide the Board of
Directors or the secretary of the Corporation with written notice of
intention to present a proposal for action at the forthcoming
meeting of stockholders, which notice shall include the name and
address of such stockholder, the number of voting securities that he
holds of record and that he holds beneficially, the text of the
proposal to be presented to the meeting and a statement in support
of the proposal.
Any stockholder who was a stockholder of record on the applicable
record date may make any other proposal at an annual meeting or
special meeting of stockholders and the same may be discussed and
considered, but unless stated in writing and filed with the Board of
Directors or the secretary prior to the date set forth herein above,
such proposal shall be laid over for action at an adjourned,
special, or annual meeting of the stockholders taking place sixty
days or more thereafter. This provision shall not prevent the
consideration and approval or disapproval at the annual meeting of
reports of officers, directors, and committees, but in connection
with such reports, no new business proposed by a stockholder, qua
stockholder, shall be acted upon at such annual meeting unless
stated and filed as herein provided.
Notwithstanding any other provision of these By-Laws, the
Corporation shall be under no obligation to include any stockholder
proposal in its proxy statement materials or otherwise present any
such proposal to stockholders at a special or annual meeting of
stockholders if the Board of Directors reasonably believes the
proponents thereof have not complied with Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder; nor shall the Corporation be required to
include any stockholder proposal not required to be included in its
proxy materials to stockholders in accordance with any such section,
rule or regulation.
SECTION 1.9. PROXIES. At all meetings of stockholders, a
stockholder entitled to vote may vote either in person or by proxy
executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary
before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise
provided in the proxy.
SECTION 1.10. VOTING BY BALLOT. The votes for directors,
and upon the demand of any stockholder or when required by law, the
votes upon any question before the meeting, shall be by ballot.
SECTION 1.11. VOTING LISTS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares of stock registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.12. PLACE OF MEETING. The Board of Directors may
designate any place, either within or without the state of
incorporation, as the place of meeting for any annual meeting or any
special meeting called by the Board of Directors. If no designation
is made or if a special meeting is otherwise called, the place of
meeting shall be the principal office of the Corporation.
SECTION 1.13. VOTING OF STOCK OF CERTAIN HOLDERS. Shares of
capital stock of the Corporation standing in the name of another
corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or
in the absence of such provision, as the board of directors of such
corporation may determine.
Shares of capital stock of the Corporation standing in the name of
a deceased person, a minor ward or an incompetent person may be
voted by his administrator, executor, court-appointed guardian or
conservator, either in person or by proxy, without a transfer of
such stock into the name of such administrator, executor,
court-appointed guardian or conservator. Shares of capital stock of
the Corporation standing in the name of a trustee may be voted by
him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the name of
a receiver may be voted, either in person or by proxy, by such
receiver, and stock held by or under the control of a receiver may
be voted by such receiver without the transfer thereof into his name
if authority to do so is contained in any appropriate order of the
court by which such receiver was appointed.
A stockholder whose stock is pledged shall be entitled to vote such
stock, either in person or by proxy, until the stock has been
transferred into the name of the pledgee, and thereafter the pledgee
shall be entitled to vote, either in person or by proxy, the stock
so transferred.
Shares of its own capital stock belonging to this Corporation shall
not be voted, directly or indirectly, at any meeting and shall not
be counted in determining the total number of outstanding stock at
any given time, but shares of its own stock held by it in a
fiduciary capacity may be voted and shall be counted in determining
the total number of outstanding stock at any given time.
ARTICLE II
Board of Directors
SECTION 2.1. GENERAL POWERS. The business, affairs, and the
property of the Corporation shall be managed and controlled by the
Board of Directors (the "Board"), and, except as otherwise expressly
provided by law, the Certificate of Incorporation or these By-Laws,
all of the powers of the Corporation shall be vested in the Board.
SECTION 2.2. NUMBER OF DIRECTORS. The number of directors
which shall constitute the whole Board shall be not fewer than one
nor more than five. Within the limits above specified, the number
of directors shall be determined by the Board of Directors pursuant
to a resolution adopted by a majority of the directors then in
office.
SECTION 2.3. ELECTION, TERM AND REMOVAL. Directors shall be
elected at the annual meeting of stockholders to succeed those
directors whose terms have expired. Each director shall hold office
for the term for which elected and until his or her successor shall
be elected and qualified. Directors need not be stockholders. A
director may be removed from office at a meeting expressly called
for that purpose by the vote of not less than a majority of the
outstanding capital stock entitled to vote at an election of directors.
SECTION 2.4. VACANCIES. Vacancies in the Board of Directors,
including vacancies resulting from an increase in the number of
directors, may be filled by the affirmative vote of a majority of
the remaining directors then in office, though less than a quorum;
except that vacancies resulting from removal from office by a vote
of the stockholders may be filled by the stockholders at the same
meeting at which such removal occurs provided that the holders of
not less than a majority of the outstanding capital stock of the
Corporation (assessed upon the basis of votes and not on the basis
of number of shares) entitled to vote for the election of directors,
voting together as a single class, shall vote for each replacement
director. All directors elected to fill vacancies shall hold office
for a term expiring at the time of the next annual meeting of
stockholders and upon election and qualification of his successor.
No decrease in the number of directors constituting the Board of
Directors shall shorten the term of an incumbent director.
SECTION 2.5. RESIGNATIONS. Any director of the Corporation
may resign at any time by giving written notice to the president or
to the secretary of the Corporation. The resignation of any
director shall take effect at the time specified therein and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 2.6. PLACE OF MEETINGS, ETC. The Board of Directors may
hold its meetings, and may have an office and keep the books of the
Corporation (except as otherwise may be provided for by law), in
such place or places in or outside the state of incorporation as the
Board from time to time may determine.
SECTION 2.7. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held as soon as practicable after adjournment of
the annual meeting of stockholders at such time and place as the
Board of Directors may fix. No notice shall be required for any
such regular meeting of the Board.
SECTION 2.8. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held at places and times fixed by resolution of
the Board of Directors, or upon call of the chairman of the Board,
if any, or vice-chairman of the Board, if any, the president, an
executive vice president or two-thirds of the directors then in office.
The secretary or officer performing the secretary's duties shall
give not less than twenty-four hours' notice by letter, telegraph or
telephone (or in person) of all special meetings of the Board of
Directors, provided that notice need not given of the annual meeting
or of regular meetings held at times and places fixed by resolution
of the Board. Meetings may be held at any time without notice if
all of the directors are present, or if those not present waive
notice in writing either before or after the meeting. The notice of
meetings of the Board need not state the purpose of the meeting.
SECTION 2.9. PARTICIPATION BY CONFERENCE TELEPHONE. Members of
the Board of Directors of the Corporation, or any committee thereof,
may participate in a regular or special or any other meeting of the
Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 2.10. ACTION BY WRITTEN CONSENT. Any action
required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a
meeting if prior or subsequent to such action all the members of the
Board or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
the proceedings of the Board or committee.
SECTION 2.11. QUORUM. A majority of the total number of
directors then in office shall constitute a quorum for the
transaction of business; but if at any meeting of the Board there be
less than a quorum present, a majority of those present may adjourn
the meeting from time to time.
SECTION 2.12. BUSINESS. Business shall be transacted at meetings
of the Board of Directors in such order as the Board may determine.
At all meetings of the Board of Directors, the chairman of the
Board, if any, the president, or in his absence the vice-chairman,
if any, or an executive vice president, in the order named, shall
preside.
SECTION 2.13. INTEREST OF DIRECTORS IN CONTRACTS. (a) No
contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of the Corporation's directors or officers, are
directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board
or committee which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee,
and the Board or committee in good faith authorizes
the contract or transaction by the affirmative votes
of a majority of the disinterested directors, even
though the disinterested directors be less than a
quorum; or
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote
thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified, by the Board of Directors, a committee of
the Board of Directors or the stockholders.
(b) Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
SECTION 2.14. COMPENSATION OF DIRECTORS. Each director of the
Corporation who is not a salaried officer or employee of the
Corporation, or of a subsidiary of the Corporation, shall receive
such allowances for serving as a director and such fees for
attendance at meetings of the Board of Directors or the executive
committee or any other committee appointed by the Board as the Board
may from time to time determine.
SECTION 2.15. LOANS TO OFFICERS OR EMPLOYEES. The Board of
Directors may lend money to, guarantee any obligation of, or
otherwise assist, any officer or other employee of the Corporation
or of any subsidiary, whether or not such officer or employee is
also a director of the Corporation, whenever, in the judgment of the
directors, such loan, guarantee, or assistance may reasonably be
expected to benefit the Corporation; provided, however, that any
such loan, guarantee, or other assistance given to an officer or
employee who is also a director of the Corporation must be
authorized by a majority of the entire Board of Directors. Any such
loan, guarantee, or other assistance may be made with or without
interest and may be unsecured or secured in such manner as the Board
of Directors shall approve, including, but not limited to, a pledge
of shares of the Corporation, and may be made upon such other terms
and conditions as the Board of Directors may determine.
SECTION 2.16. NOMINATION. Subject to the rights of holders of any
class or series of stock having a preference over the common stock
as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally.
However, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's
intent to make such nomination or nominations has been given, either
by personal delivery or by United States mail, postage prepaid, to
the secretary of the Corporation not later than (i) with respect to
an election to be held at an annual meeting of stockholders, the
close of business on the last day of the eighth month after the
immediately preceding annual meeting of stockholders, and (ii) with
respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on
the fifth day following the date on which notice of such meeting is
first given to stockholders. Each such notice shall set forth: (a)
the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock
of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each
nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of
the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors,
and; (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer at the meeting may
refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
ARTICLE III
Committees
SECTION 3.1. COMMITTEES. The Board of Directors, by
resolution adopted by a majority of the number of directors then
fixed by these By-Laws or resolution thereto, may establish such
standing or special committees of the Board as it may deem
advisable, and the members, terms, and authority of such committees
shall be set forth in the resolutions establishing such committee.
SECTION 3.2. EXECUTIVE COMMITTEE NUMBER AND TERM OF OFFICE. The
Board of Directors may, at any meeting, by majority vote of the
Board of Directors, elect from the directors an executive committee.
The executive committee shall consist of such number of members as
may be fixed from time to time by resolution of the Board of
Directors. The Board of Directors may designate a chairman of the
committee who shall preside at all meetings thereof, and the
committee shall designate a member thereof to preside in the absence
of the chairman.
SECTION 3.3. EXECUTIVE COMMITTEE POWERS. The executive committee
may, while the Board of Directors is not in session, exercise all or
any of the powers of the Board of Directors in all cases in which
specific directions shall not have been given by the Board of
Directors; except that the executive committee shall not have the
power or authority of the Board of Directors to (i) amend the
Certificate of Incorporation or the By-Laws of the Corporation, (ii)
fill vacancies on the Board of Directors, (iii) adopt an agreement
or certification of ownership, merger or consolidation, (iv)
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, or a
dissolution of the Corporation or a revocation of a dissolution, (v)
declare a dividend, or (vi) authorize the issuance of stock.
SECTION 3.4. EXECUTIVE COMMITTEE MEETINGS. Regular and special
meetings of the executive committee may be called and held subject
to the same requirements with respect to time, place and notice as
are specified in these By-Laws for regular and special meetings of
the Board of Directors. Special meetings of the executive committee
may be called by any member thereof. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a
special or regular meeting of the executive meeting if a quorum is
present. At any meeting at which every member of the executive
committee shall be present, in person or by telephone, even though
without any notice, any business may be transacted. All action by
the executive committee shall be reported to the Board of Directors
at its meeting next succeeding such action.
The executive committee shall fix its own rules of procedure, and
shall meet where and as provided by such rules or by resolution of
the Board of Directors, but in every case the presence of a majority
of the total number of members of the executive committee shall be
necessary to constitute a quorum. In every case, the affirmative
vote of a quorum shall be necessary for the adoption of any resolution.
SECTION 3.5. EXECUTIVE COMMITTEE VACANCIES. The Board of
Directors, by majority vote of the Board of Directors then in
office, shall fill vacancies in the executive committee by election
from the directors.
ARTICLE IV
The Officers
SECTION 4.1. NUMBER AND TERM OF OFFICE. The officers of the
Corporation shall consist of, as the Board of Directors may
determine and appoint from time to time, a chief executive officer,
a president, one or more executive vice-presidents, a secretary, a
treasurer, a controller, and/or such other officers as may from time
to time be elected or appointed by the Board of Directors, including
such additional vice-presidents with such designations, if any, as
may be determined by the Board of Directors and such assistant
secretaries and assistant treasurers. In addition, the Board of
Directors may elect a chairman of the Board and may also elect a
vice-chairman as officers of the Corporation. Any two or more
offices may be held by the same person. In its discretion, the
Board of Directors may leave unfilled any office except as may be
required by law.
The officers of the Corporation shall be elected or appointed from
time to time by the Board of Directors. Each officer shall hold
office until his successor shall have been duly elected or appointed
or until his death or until he shall resign or shall have been
removed by the Board of Directors.
Each of the salaried officers of the Corporation shall devote his
entire time, skill and energy to the business of the Corporation,
unless the contrary is expressly consented to by the Board of
Directors or the executive committee.
SECTION 4.2. REMOVAL. Any officer may be removed by the Board of
Directors whenever, in its judgment, the best interests of the
Corporation would be served thereby.
SECTION 4.3. THE CHAIRMAN OF THE BOARD. The chairman of the
Board, if any, shall preside at all meetings of stockholders and of
the Board of Directors and shall have such other authority and
perform such other duties as are prescribed by law, by these By-Laws
and by the Board of Directors. The Board of Directors may designate
the chairman of the Board as chief executive officer, in which case
he shall have such authority and perform such duties as are
prescribed by these By-Laws and the Board of Directors for the chief
executive officer.
SECTION 4.4. THE VICE-CHAIRMAN. The vice-chairman, if any, shall
have such authority and perform such other duties as are prescribed
by these By-Laws and by the Board of Directors. In the absence or
inability to act of the chairman of the Board and the president, he
shall preside at the meetings of the stockholders and of the Board
of Directors and shall have and exercise all of the powers and
duties of the chairman of the Board. The Board of Directors may
designate the vice-chairman as chief executive officer, in which
case he shall have such authority and perform such duties as are
prescribed by these By-Laws and the Board of Directors for the chief
executive officer.
SECTION 4.5. THE PRESIDENT. The president shall have such
authority and perform such duties as are prescribed by law, by these
By-Laws, by the Board of Directors and by the chief executive
officer (if the president is not the chief executive officer). The
president, if there is no chairman of the Board, or in the absence
or the inability to act of the chairman of the Board, shall preside
at all meetings of stockholders and of the Board of Directors.
Unless the Board of Directors designates the chairman of the Board
or the vice-chairman as chief executive officer, the president shall
be the chief executive officer, in which case he shall have such
authority and perform such duties as are prescribed by these By-Laws
and the Board of Directors for the chief executive officer.
SECTION 4.6. THE CHIEF EXECUTIVE OFFICER. Unless the Board of
Directors designates the chairman of the Board or the vice-chairman
as chief executive officer, the president shall be the chief
executive officer. The chief executive officer of the Corporation
shall have, subject to the supervision and direction of the Board of
Directors, general supervision of the business, property and affairs
of the Corporation, including the power to appoint and discharge
agents and employees, and the powers vested in him by the Board of
Directors, by law or by these By-Laws or which usually attach or
pertain to such office.
SECTION 4.7. THE EXECUTIVE VICE-PRESIDENTS. In the absence of the
chairman of the Board, if any, the president and the vice-chairman,
if any, or in the event of their inability or refusal to act, the
executive vice-president (or in the event there is more than one
executive vice-president, the executive vice-presidents in the order
designated, or in the absence of any designation, then in the order
of their election) shall perform the duties of the chairman of the
Board, of the president and of the vice-chairman, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the chairman of the Board, the president and the
vice-chairman. Any executive vice-president may sign, with the
secretary or an authorized assistant secretary, certificates for
stock of the Corporation and shall perform such other duties as from
time to time may be assigned to him by the chairman of the Board,
the president, the vice-chairman, the Board of Directors or these
By-Laws.
SECTION 4.8. THE VICE-PRESIDENTS. The vice-presidents, if any,
shall perform such duties as may be assigned to them from time to
time by the chairman of the Board, the president, the vice-chairman,
the Board of Directors, or these By-Laws.
SECTION 4.9. THE TREASURER. Subject to the direction of chief
executive officer and the Board of Directors, the treasurer shall
have charge and custody of all the funds and securities of the
Corporation; when necessary or proper he shall endorse for
collection, or cause to be endorsed, on behalf of the Corporation,
checks, notes and other obligations, and shall cause the deposit of
the same to the credit of the Corporation in such bank or banks or
depositary as the Board of Directors may designate or as the Board
of Directors by resolution may authorize; he shall sign all receipts
and vouchers for payments made to the Corporation other than routine
receipts and vouchers, the signing of which he may delegate; he
shall sign all checks made by the Corporation (provided, however,
that the Board of Directors may authorize and prescribe by
resolution the manner in which checks drawn on banks or depositories
shall be signed, including the use of facsimile signatures, and the
manner in which officers, agents or employees shall be authorized to
sign); unless otherwise provided by resolution of the Board of
Directors, he shall sign with an officer-director all bills of
exchange and promissory notes of the Corporation; whenever required
by the Board of Directors, he shall render a statement of his cash
account; he shall enter regularly full and accurate account of the
Corporation in books of the Corporation to be kept by him for that
purpose; he shall, at all reasonable times, exhibit his books and
accounts to any director of the Corporation upon application at his
office during business hours; and he shall perform all acts incident
to the position of treasurer. If required by the Board of
Directors, the treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such sure ties as the
Board of Directors may require.
SECTION 4.10. THE SECRETARY. The secretary shall keep the minutes
of all meetings of the Board of Directors, the minutes of all
meetings of the stockholders and (unless otherwise directed by the
Board of Directors) the minutes of all committees, in books provided
for that purpose; he shall attend to the giving and serving of all
notices of the Corporation; he may sign with an officer-director or
any other duly authorized person, in the name of the Corporation,
all contracts authorized by the Board of Directors or by the
executive committee, and, when so ordered by the Board of Directors
or the executive committee, he shall affix the seal of the
Corporation thereto; he may sign with the president or an executive
vice-president all certificates of shares of the capital stock; he
shall have charge of the certificate books, transfer books and stock
ledgers, and such other books and papers as the Board of Directors
or the executive committee may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon
application at the secretary's office during business hours; and he
shall in general perform all the duties incident to the office of
the secretary, subject to the control of the chief executive officer
and the Board of Directors.
SECTION 4.11. THE CONTROLLER. The controller shall be the chief
accounting officer of the Corporation. Subject to the supervision
of the Board of Directors, the chief executive officer and the
treasurer, the controller shall provide for and maintain adequate
records of all assets, liabilities and transactions of the
Corporation, shall see that accurate audits of the Corporation's
affairs are currently and adequately made and shall perform such
other duties as from time to time may be assigned to him.
SECTION 4.12. THE ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
The assistant treasurers shall respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their
duties in such sums and with such sureties as the Board of Directors
may determine. The assistant secretaries as thereunto authorized by
the Board of Directors may sign with the chairman of the Board, the
president, the vice-chairman or an executive vice-president,
certificates for stock of the Corporation, the issue of which shall
have been authorized by a resolution of the Board of Directors. The
assistant treasurers and assistant secretaries, in general, shall
perform such duties as shall be assigned to them by the treasurer or
the secretary, respectively, or chief executive officer, the Board
of Directors, or these By-Laws.
SECTION 4.13. SALARIES. The salaries of the officers shall be
fixed from time to time by the Board of Directors, and no officer
shall be prevented from receiving such salary by reason of the fact
that he is also a director of the Corporation.
SECTION 4.14. VOTING UPON STOCKS. Unless otherwise ordered by the
Board of Directors or by the executive committee, any officer,
director or any person or persons appointed in writing by any of
them, shall have full power and authority in behalf of the
Corporation to attend and to act and to vote at any meetings of
stockholders of any corporation in which the Corporation may hold
stock, and at any such meeting shall possess and may exercise any
and all the rights and powers incident to the ownership of such
stock, and which, as the owner thereof, the Corporation might have
possessed and exercised if present. The Board of Directors may
confer like powers upon any other person or persons.
ARTICLE V
Contracts and Loans
SECTION 5.1. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to
specific instances.
SECTION 5.2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
ARTICLE VI
Certificates for Stock and Their Transfer
SECTION 6.1. CERTIFICATES FOR STOCK. Certificates representing
stock of the Corporation shall be in such form as may be determined
by the Board of Directors. Such certificates shall be signed by the
chairman of the Board, the president, the vice-chairman or an
executive vice-president and/or by the secretary or an authorized
assistant secretary and shall be sealed with the seal of the
Corporation. The seal may be a facsimile. If a stock certificate
is countersigned (i) by a transfer agent other than the Corporation
or its employee, or (ii) by a registrar other than the Corporation
or its employee, any other signature on the certificate may be a
facsimile. In the event that any officer, transfer agent or
registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. All
certificates for stock shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares of stock
represented thereby are issued, with the number of shares of stock
and date of issue, shall be entered on the books of the Corporation.
All certificates surrendered to the Corporation for transfer shall
be canceled and no new certificates shall be issued until the former
certificate for a like number of shares of stock shall have been
surrendered and canceled, except that, in the event of a lost,
destroyed or mutilated certificate, a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
SECTION 6.2. TRANSFERS OF STOCK. Transfers of stock of the
Corporation shall be made only on the books of the Corporation by
the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his
attorney thereunto authorized by power of attorney duly executed and
filed with the secretary of the Corporation, and on surrender for
cancellation of the certificate for such stock. The person in whose
name stock stands on the books of the Corporation shall be deemed
the owner thereof for all purposes as regards the Corporation.
ARTICLE VII
Fiscal Year
SECTION 7.1. FISCAL YEAR. The fiscal year of the Corporation
shall begin on the first day of January in each year and end on the
last day of December in each year.
ARTICLE VIII
Seal
SECTION 8.1. SEAL. The Board of Directors shall approve a
corporate seal which shall be in the form of a circle and shall have
inscribed thereon the name of the Corporation.
ARTICLE IX
Waiver of Notice
SECTION 9.1. WAIVER OF NOTICE. Whenever any notice is required to
be given under the provisions of these By-Laws or under the
provisions of the Certificate of Incorporation or under the
provisions of the corporation law of the state of incorporation,
waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Attendance
of any person at a meeting for which any notice is required to be
given under the provisions of these By-Laws, the Certificate of
Incorporation or the corporation law of the state of incorporation
shall constitute a waiver of notice of such meeting except when the
person attends for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
ARTICLE X
Amendments
SECTION 10.1. AMENDMENTS. These By-Laws may be altered,
amended or repealed and new By-Laws may be adopted at any
meeting of the Board of Directors of the Corporation by the
affirmative vote of a majority of the members of the Board,
or by the affirmative vote of a majority of the outstanding
capital stock of the Corporation (assessed upon the basis of
votes and not on the basis of number of shares) entitled to
vote generally in the election of directors, voting together
as a single class.
ARTICLE XI
Indemnification
SECTION 11.1. INDEMNIFICATION. The Corporation shall
indemnify its officers, directors, employees and agents to
the fullest extent permitted by the General Corporation Law
of Delaware, as amended from time to time.
[END]
EXHIBIT 3.4
Number Shares
Incorporated under the laws of the state of Delaware
INDEPENDENT ACQUISITION CORPORATION
Authorized to issue 120,000,000 shares
100,000,000 common shares 20,000,000 preferred shares
par value $.0001 each par value $.0001 each
This certifies that _______________________________ is the
owner of
_____________________ fully paid and non-assessable Shares
of the Common Shares of INDEPENDENT ACQUISITION CORPORATION
transferrable only on the books of the Corporation by the
holder hereof in person or by duly authorized Attorney upon
surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused
this Certificate to be signed by its duly authorized officers
and to be sealed with the Seal of the Corporation
this ________ day of ____________A.D. _____
_____________________________________
President
[SEAL]
(Reverse side of 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. Additional abbreviations
may also be used though not in the list.
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
_________(Minor)
under Uniform Gifts to Minors Act
_______________(State)
For value received, the undersigned hereby sells,
assigns and transfers unto _____________________________
(please insert social security or other identifying number of
assignee) _________________________________________
____________________________________________________________________
(please print or typewrite name and address of assignee)
_____________________________ Shares represented by the
within Certificate, and hereby irrevocably constitutes and
appoints ____________________ Attorney to transfer the said
shares on the books of the within-named Corporation with full
power of substitution in the premises.
Dated, _______________________________
___________________________________
In presence of
_______________________________________
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 any
change whatever.
EXHIBIT 10.1
AGREEMENT between TPG CAPITAL CORPORATION ("TPG") and
INDEPENDENT ACQUISITION CORPORATION (the "Company").
WHEREAS The Company is a development stage company
that has no specific business plan and intends to merge,
acquire or otherwise combine with an unidentified company
(the "Business Combination");
WHEREAS TPG is a shareholder of the Company and
desires that the Company locate a suitable target company for
a Business Combination;
WHEREAS the Company desires that TPG assist it in
locating a suitable target company for a Business Combination;
NOW THEREFORE, it is agreed:
1.00 ACTIONS BY TPG. TPG agrees to assist in:
1.01 The preparation and filing with the Securities
and Exchange Commission of a registration statement on Form
10-SB for the common stock of the Company;
1.02 The location and review of potential target
companies for a business combination and the introduction of
potential candidates to the Company;
1.03 The preparation and filing with the Securities
and Exchange Commission of all required filings under the
Securities Exchange Act of 1934 until the Company enters into
a business combination;
2.00 PAYMENT OF THE COMPANY EXPENSES. TPG agrees to
pay on behalf of the Company all corporate, organizational
and other costs incurred or accrued by the Company until
effectiveness of a business combination. TPG understands and
agrees that it will not be reimbursed for any payments made
by it on behalf of the Company.
3.00 INDEPENDENT CONSULTANT. TPG is not now, and
shall not be, authorized to enter into any agreements,
contracts or understandings on behalf of the Company and TPG
is not, and shall not be deemed to be, an agent of the Company.
4.00 USE OF OTHER CONSULTANTS. The Company
understands and agrees that TPG intends to work with
consultants, brokers, bankers, or others to assist it in
locating business entities suitable for a business
combination and that TPG may share with such consultants or
others, in its sole discretion, all or any portion of its
stock in the Company and may make payments to such
consultants from its own resources for their services. The
Company shall have no responsibility for all or any portion
of such payments.
5.00 TPG EXPENSES. TPG will bear its own expenses
incurred in regard to its actions under this agreement.
6.00 ARBITRATION. The parties hereby agree that any
and all claims (except only for requests for injunctive or
other equitable relief) whether existing now, in the past or
in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement
or from any other cause, will be resolved by arbitration
before the American Arbitration Association within the
District of Columbia.
7.00 COVENANT OF FURTHER ASSURANCES. The parties
agree to take any further actions and to execute any further
documents which may from time to time be necessary or
appropriate to carry out the purposes of this agreement.
8.00 EFFECTIVE DATE. The effective date of this
agreement is as of March 24, 1999.
IN WITNESS WHEREOF, the parties have approved and
executed this agreement.
TPG CAPITAL CORPORATION
_____________________________________
President
INDEPENDENT ACQUISITION CORPORATION
__________________________________
President
EXHIBIT 10.2
TPG CAPITAL CORPORATION
1504 R Street, NW
Washington, D.C.
Independent Acquisition Corporation
1504 R Street, N.W.
Washington, D.C. 20009
Re: Shareholder Agreement with Independent Acquisition Corporation
Gentlemen:
In consideration of the sale of the shares of Common Stock of
Independent Acquisition Corporation (the "Company") to the
undersigned (the "Holder"), the Holder hereby represents,
warrants, covenants and agrees, for the benefit of the
Company and any holders of record (the "third party
beneficiaries") of the Company's outstanding securities,
including the Company's Common Stock, $.0001 par value (the
"Stock") at the date hereof and during the pendency of this
letter agreement, that the Holder will not transfer, sell,
contract to sell, devise, gift, assign, pledge, hypothecate,
distribute or grant any option to purchase or otherwise
dispose of, directly or indirectly, its shares of Stock of
the Company owned beneficially or otherwise by the Holder
except in connection with or following completion of a
merger, acquisition or other transaction of or by the
Company meeting the definition of a business combination as
defined in the Company's registration statement on Form 10-SB
or otherwise complying with the purposes of the Company as
set out in the registration statement.
Any attempted sale, transfer or other disposition in
violation of this letter agreement shall be null and void.
The Holder further agrees that the Company (i) may instruct
its transfer agent not to transfer such securities (ii) may
provide a copy of this letter agreement to the Company's
transfer agent for the purpose of instructing the Company's
transfer agent to place a legend on the certificate(s)
evidencing the securities subject hereto and disclosing that
any transfer, sale, contract for sale, devise, gift,
assignment, pledge or hypothecation of such securities is
subject to the terms of this letter agreement and (iii) may
issue stop-transfer instructions to its transfer agent for
the period contemplated by this letter agreement for such
securities.
This letter agreement shall be binding upon the Holder, its
agents, heirs, successors, assigns and beneficiaries.
Any waiver by the Company of any of the terms and conditions
of this letter agreement in any instance shall be in writing
and shall be duly executed by the Company and the Holder and
shall not be deemed or construed to be a waiver of such term
or condition for the future, or of any subsequent breach
thereof.
Agreed and accepted this 25th day of March, 1999.
THE HOLDER
By: _____________________________
President
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration
Statement, of Independent Acquisition Corporation our report as of
and for the period ended October 31, 1999 dated November 18,
1999 relating to the financial statements of Independent
Acquisition Corporation which appears in such Form 10-SB.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
December 6, 1999
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<ARTICLE> 5
<CIK> 0001102340
<NAME> INDEPENDENT ACQUISITION CORPORATION
<S> <C>
<PERIOD-TYPE> 7-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> OCT-31-1998
<CASH> 500
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 500
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 5000000
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 500
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-BASIC> 0.0
<EPS-DILUTED> 0.0
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