<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERCARE.COM, INC.
(Name of small business issuer in its charter)
California 7374 95-4304537
(State Or Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation Classification Code Number) Identification No.)
or Organization)
900 Wilshire Blvd., Suite 500
Los Angeles, CA 90017
(213) 627-8878
(Address and Telephone Number of Principal Executive Offices
and Principal Place of Business)
---------------------------
Anthony C. Dike, Chairman/CEO
900 Wilshire Blvd, Suite 500
Los Angeles, California 90017
(213) 627-8878
(Name, Address and Telephone Number of Agent For Service)
---------------------------
Copy To:
Randolph W. Katz, Esq
Bryan Cave, LLP
18881 Von Karman, Suite 1500
Irvine, California 92612-7000
(949)223-7000
---------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
market conditions and other factors.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Each Class Amount to be Price Per Offering Registration
of Securities Registered Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, (1) 2,500,000 $10.00(2) $25,000,000 $6500
No par value
<FN>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(g) under the Securities Act of 1933.
(2) Our estimated price per share is $10
</TABLE>
------------------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART I - INFORMATION REQUIRED IN PROSPECTUS
INTERCARE.COM, INC.
Cross-Reference Sheet
Showing Location in the Prospectus of
Information Required by Items of Form SB-2
Form SB-2 Item Number and Caption Location In Prospectus
1. Front of Registration Statement and
Outside Front Cover of Prospectus Outside Front Cover
2. Inside Front and Outside Back Cover
Pages of Prospectus Inside Front Cover Page
3. Summary Information and Risk Factors Summary; Risk Factors
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Determination of Offering
Price
6. Dilution Dilution
7. Selling Security Holders
8. Plan of Distribution Plan of Distribution
9. Legal Proceedings Business - Legal
Proceedings
10. Directors, Executive Officers,
Promoters and Control Persons Management
11. Security Ownership of Certain
Beneficial Owners and Management Principal Security Holders
12. Description of Securities Description of Securities
13. Interest of Named Experts and Counsel Legal Matters, Experts
14. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities Management -
Indemnification
15. Organization Within Last Five Years Certain Transactions
16. Description of Business Business
17. Management's Discussion and Analysis
or Plan of Operation Management's Discussion
and an Analysis of
Financial Condition and
Results of Operations.
18. Description of Property Business - Facilities
19. Certain Relationships and Related
Transactions Certain Transactions
20. Market for Common Equity and Related
Stockholder Matters Description of Securities
21. Executive Compensation Management - Executive
Compensation
22. Financial Statements Financial Statements
23. Changes in and Disagreements with
Accountants on Accounting and Financial
Disclosure*_________
(*) None or Not Applicable
The information in this Prospectus is not complete and may be changed. We
may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
Prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
<PAGE>
SUBJECT TO COMPLETION, DATED -------, 2000
PRELIMINARY PROSPECTUS
2,500,000 Shares
of Common Stock
[LOGO]
This is our initial public offering of up to 2,500,000 shares of our common
stock.
We will be selling a minimum of 100,000 and a maximum of 2,500,000 of our shares
in this offering. Until we have sold at least 100,000 shares, we will not
accept subscriptions for any shares. All proceeds of this offering will be
deposited in a non-interest bearing escrow account. If we are unable to sell at
least 100,000 shares before the offering ends, we will return all funds, without
interest, to subscribers as soon as practicable after the ending of this
offering. The offering will remain open until all shares offered are sold or 9
months after the date of this prospectus, except that we will have only 180 days
to sell at least the first 100,000 shares. We may decide to cease selling
efforts prior to such date.
No public market currently exists for our shares. The offering price may not
reflect the market price of our share after the offering. It is
currently estimated that the initial public offering price will be $10 per
share. Application will be made for quotation of our common stock on the
Nasdaq SmallCap Market under the following proposed symbol "ICCO".
We have retained the services of Corporate Stock Transfer of Denver Colorado
as our Escrow Agent.
Investing in our common stock involves risks. You should not purchase our
common stock unless you can afford to lose your entire investment. See "RISK
FACTORS" beginning on page XX of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of the prospectus. Any representation to the contrary is
a criminal offense.
Offering
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<CAPTION>
Price to Public (1) Discount (2) Proceeds to Company (3)
Per Share
<S> <C> <C> <C>
$10.00 $1 $9.00
Maximum Shares
2,500,000 $25,000,000 $2,500,000 $22,500,000
<FN>
Minimum Shares
100,000 $1,000,000 $100,000 $900,000
(Notes on following page.)
</TABLE>
<PAGE>
The date of this prospectus is ______, 2000
INTERCARE.COM, INC.
You should rely only on the information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
Dealer Prospectus Delivery Obligation
Until , 2000 (90 days after the commencement of this offering), all dealers
effecting transactions in the these securities, whether or not participating in
this offering, may be required to deliver a prospectus. This is in addition to
the obligation of dealers to deliver a prospectus when acting as underwriters to
their unsold allotments or subscriptions.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Page
Summary
Risk Factors
Use of Proceeds
Determination of Offering Price
Dilution
Plan of Operation
Business
Management
Certain Transactions
Principal Security Holders
Description of Securities
Selling Stockholders
Plan of Distribution
Legal Matters
Experts
Where You Can Find Additional Information
Index to Financial Statements. for period ended December 31, 1999F-1
</TABLE>
<PAGE>
SUMMARY
This summary highlights information we present more fully elsewhere in this
prospectus. You should read this entire prospectus carefully.
About Us
InterCare.com formerly known as Inter-Care Diagnostics, Inc., is organized in
the State of California to pursue bio-medical software development, as well as
Internet based healthcare transactions and tele-medicine contents and programs
development.
We have created, published and marketed multimedia software products that
provide biofeedback relaxation and self-regulation training, neuro-muscular
re-education, and stress management. We have also developed Internet-ready
applications for healthcare transactions management, medical and health-related
contents and information targeted towards the education, general consumer
and healthcare industry markets.
The key elements of our business strategy include the following:
- Fully exploit the expanding Tele-medicine Internet market
- Expand into related healthcare consumer market with our biofeedback
relaxation, self-regulation and stress management software program.
- Convert all our existing software programs to an Internet based
applications, in order to attract a larger user and install base.
- Penetrate the National and International markets for large customers
such as corporations, correctional facilities, military, hospitals,
universities and government with our Internet based applications and
tele-medicine technologies.
Corporate Information
We are incorporated under the laws of the State of California in January 1991,
and changed our name from Monet Medical Testing, Inc., to Inter-Care
Diagnostics, Inc., in April 25th, 1991. On December 18, 1999, in keeping with
our new strategy to become an Internet-based company, the Company changed its
name to InterCare.com Inc. Our principal executive offices are located at 900
Wilshire Blvd, Suite 500 Los Angeles, California. Our telephone number at that
address is (213) 627-8878.
This Offering
Securities offered Common Stock, No par value,
2,500,000 share
Price per Share $10.00
Common stock outstanding 10,000,000 shares
prior to the offering
Common stock to be 12,500,000 shares
outstanding after the offering
Summary Financial And Operating Information
This summary financial information below is from and should be read with the
financial statements, and the notes to the financial statements, elsewhere in
this Prospectus. All numbers are in thousands, except for share and per share
amounts.
Statement of Operations Data:
<TABLE>
<CAPTION>
Year Ended December 31
1999 1998
<S> <C> <C>
Revenues 6,629 13,795
Gross Profit 6,377 13,506
Loss before income taxes (114,423) (62,827)
Net Loss (114,423) (62,827)
Basic and diluted
loss per share: (1) (0.010) (0.010)
Basic and Diluted
Weighted average (1) (0.010) (0.010)
Number of shares
outstanding: 10,000,000 10,000,000
Balance Sheet Data:
Working capital (deficiency) 22,503 76,677
Total assets 22,756 98,652
Total liabilities - 513,700
Stockholders equity (deficit) 22,756 (415,048)
<FN>
(1) Net Loss per Common Share: Stock options and warrants outstanding are
not considered common stock equivalents, as the affect on net loss per share
would be anti-dilutive.
</TABLE>
RISK FACTORS
Investments in our securities are highly speculative, involve a high degree of
risk, and should be purchased only by you if you can afford to lose your entire
investment. See "Risk Factors" for special risks concerning us and "Dilution"
for information concerning dilution of the book value of your shares from the
public offering.
USE OF PROCEEDS
All proceeds from this offering less approximately $2,500,000 offering costs,
will be used for new products research and development, marketing, working
capital and general corporate purposes. (See "USE OF PROCEEDS").
RISK FACTORS
An investment in our common stock involves a high degree of risk and should
only be made by investors who can afford to lose their entire investment.
You should carefully consider the risks and uncertainties described below and
other information in this Prospectus before deciding to invest in our common
Stock. The risks described herein are intended to highlight risks that are
specific to us and are not the only ones we face. Additional risks and
uncertainties, such as those that apply to the business we acquire may also
impair our business operations. Risks and uncertainties, in addition to those we
describe below, that are presently not known to us or that we currently believe
are not material, may subsequently become material and may also impair our
financial condition.
If any of the following risks actually occur, our business, results of
operations and financial condition could be materially, adversely affected. This
could cause the trading price of our common stock to decline and a loss of part
or all of any investment in our common stock.
CAPITAL CONSTRAINTS MAY AFFECT OUR RESOURCES.
The Company has minimal capital resources presently available to meet
obligations that normally can be expected to be incurred by similar companies,
and with which to carry out its planned activities. These factors raise
substantial doubt about the Company's ability to continue as a going concern.
Since inception we have funded operations with debt and equity capital. Our
ability to operate profitably under our current business plan is largely
contingent upon success in obtaining additional sources of capital. Assuming the
sale of all the shares in this offering, we will receive net proceeds of
approximately $22,500,000. Such an amount will be sufficient as a working
capital and general corporate expenses for the next two years. Without
sufficient capital we may not be able to fully implement our business, operating
and development plans. There can be no assurance that any such financing,
if obtained, will be adequate to meet our ultimate capital needs. If adequate
capital can not be obtained or obtained on satisfactory terms, our operations
could be negatively impacted.
NO UNDERWRITER
We are selling the shares through our directors and officers without the use of
a professional securities underwriting firm. Consequently, there may be less due
diligence performed in conjunction with this offering than would be performed in
an underwritten offering. We have retained Corporate Stock Transfer of Denver
Colorado as our Escrow Agent.
WE OPERATE IN A NEW AND RAPIDLY EVOLVING AND UNTESTED MARKET.
We operate in a new and rapidly evolving market and must, among other things:
- respond to competitive developments;
- continue to upgrade and expand our content and healthcare information
services offerings; and
- continue to attract, retain and motivate our employees.
- demand for our products;
- size and timing of sales and installations of our products;
- product and price competition;
- our unpredictable sales cycle;
- our ability to develop and market new and enhanced products on a timely
basis;
- deferral of customer orders in anticipation of product enhancements or new
products;
- continued purchases by our existing customers, including additional
licenses and maintenance contracts;
- software defects;
- our ability to establish and maintain relationships with our third-party
implementation partners;
- expansion of our international sales organization and increase in
international sales;
- the loss of any key employees and timing of our new hires; and general
economic factors.
We cannot be certain that we will be successful.
[/R]
WE FACE RAPID TECHNOLOGICAL CHANGE IN OUR INDUSTRY.
Rapid changes in technology pose significant risks to us. To remain
successful, we must continue to change, adapt and improve our content and
delivery mediums in response to changes in technology. Our future success hinges
on our ability to both continue to enhance our current content and to
successfully market this content. We cannot be sure that we will successfully
develop and market new content. Any failure by us to timely develop and
disseminate new or to update and enhance our current content could adversely
affect our business, operating results and financial condition.
DEPENDENT ON LICENSED TECHNOLOGY FROM A THIRD PARTY
We license technology on a non-exclusive basis from several businesses for use
with our products, including licenses from Microsoft Corporation for our servers
and Macromedia Corporation for our multimedia development tools, from RSA Data
Security, Inc. for security and encryption technology software, and from Adobe
Systems Inc. for our graphic software tools. We anticipate that we will continue
to license technology from third parties in the future. Some of the software we
license from third parties would be difficult to replace. This software may not
continue to be available on commercially reasonable terms, if at all. The loss
or inability to maintain any of these technology licenses could result in delays
in the licensing of our products until equivalent technology, if available, is
identified, licensed and integrated. In addition, the effective implementation
of our products depends upon the successful operation of third-party licensed
products in conjunction with our products, and therefore any undetected errors
in these licensed products may prevent the implementation or impair the
functionality of products, delay new product introductions and/or injure our
reputation. The increased use of third-party software could require us to enter
into license agreements with third parties, which could result in higher royalty
payments and a loss of product differentiation.
RISK RELATED TO INTERNET BUSINESS AND PROSPECTS
If use of the Internet does not grow, our business would be harmed. Our success
depends upon continued growth in the use of the Internet as a medium of
commerce. Although the Internet is experiencing rapid growth in the number of
users, this growth is a recent phenomenon and may not continue. Furthermore,
despite this growth in usage, the use of the Internet for commerce is relatively
new. As a result, a sufficiently broad base of enterprises and their supply
chain partners may not adopt or continue to use the Internet as a medium of
commerce. Our business would be seriously harmed if:
- use of the Internet does not continue to increase or increases more slowly
than expected;
- the infrastructure for the Internet does not effectively support
enterprises and their supply chain partners;
- the Internet does not create a viable commercial marketplace, inhibiting
the development of electronic commerce and reducing the demand for our products;
or
- concerns over the secure transmission of confidential information over
public networks inhibit the growth of the Internet as a means of conducting
commercial transactions.
- Capacity Restraints May Restrict the Use of the Internet as a Commercial
Marketplace. The Internet infrastructure may not be able to support the demands
placed on it by increased usage and bandwidth requirements.
Other risks associated with commercial use of the Internet could slow its
growth, including:
- inadequate reliability of the network infrastructure;
- slow development of enabling technologies and complementary products; and
- limited availability of cost-effective, high-speed access.
- Delays in the development or adoption of new equipment standards or
protocols required to handle increased levels of Internet activity, or increased
governmental regulation, could cause the Internet to lose its viability as a
means of communication between enterprises and their supply claim partners.
<PAGE>
If these or any other factors cause use of the Internet for commerce to
slow or decline, our business could be harmed.
LIMITED PROTECTION OF OUR INTELLECTUAL PROPERTY
Our success and ability to compete depend upon our proprietary technology.
Despite our efforts to protect our intellectual property, a third party could
copy or otherwise obtain our software or other proprietary information without
authorization, or could develop software competitive to ours. Our means of
protecting our proprietary rights may not be adequate and our competitors may
independently develop similar technology, duplicate our products or design
around patents that may be issued to us or our other intellectual property. In
addition, the laws of some foreign countries do not protect our proprietary
rights to as great an extent as do the laws of the United States, and we expect
that it will become more difficult to monitor the use of our products if we
increase our international presence.
We may have to resort to litigation to enforce our intellectual property rights,
to protect our trade secrets or know-how or to determine their scope, validity
or enforceability. Enforcing or defending our proprietary technology is
expensive, could cause the diversion of our resources, and may not prove
successful. Our protective measures may prove inadequate to protect our
proprietary rights, and any failure to enforce or protect our rights could cause
us to lose a valuable asset. Our competitors may independently develop similar
technology, duplicate our products or design around any patents that may be
issued to us or our other intellectual property.
SUBJECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
There has been a substantial amount of litigation in the software and Internet
industries regarding intellectual property rights. It is possible that, in the
future, third parties may claim that we or our current or potential future
products infringe their intellectual property. We expect that software product
developers and providers of electronic commerce solutions will increasingly be
subject to infringement claims as the number of products and competitors in our
industry segment grows and the functionality of products in industry segments
overlaps. Any claims, with or without merit, could be time-consuming, result in
costly litigation, cause product shipment delays or require us to enter into
royalty or licensing agreements. If our products were found to infringe a third
party's proprietary rights, we could be required to enter into royalty or
licensing agreements in order to continue to be able to sell our products.
Royalty or licensing agreements, if required, may not be available on terms
acceptable to us or at all, which could seriously harm our business.
We integrate third-party software into our products. This third-party software
may not continue to be available on commercially reasonable terms. We depend on
third party licenses, including licenses for our servers, encryption and
security software. If we cannot maintain licenses to this third-party software
at an acceptable cost, shipments of our products could be delayed until
equivalent software could be developed or licensed and integrated into our
products, which could substantially harm our business, operating results and
financial condition.
RISK FACTORS RELATED TO OUR OPERATIONS
We are still in the early stages of development of our Tele-medicine products
and services, so evaluating our business operations and our prospects is
difficult. The revenues and income potential of our Tele-medicine and Healthcare
transaction management business and market are unproven. We will encounter
risks and difficulties frequently encountered by early-stage companies in new
and rapidly evolving markets. These risks include our:
- need to sell additional licenses and software products to our existing
customers;
- need to expand our sales and marketing, customer support and professional
services organizations;
- need to build strategic partnerships and relationships;
- need to effectively manage growth;
- need to expand our international operations and customer base; and
- need to attract and retain key personnel.
We may not be able to successfully address these risks, and the failure to do so
could seriously harm our business and operating results. In addition, because of
our limited operating history, we have limited insight into trends that may
emerge and affect our business.
RISK RELATED TO THIS OFFERING
The capital required by the Company to continue the implementation of the
business plans to further develop the Company is being sought entirely from the
proceeds of this offering. Therefore, investors will bear most of the risk of
the Company's operations until such a time the Company attains profitability, if
ever. Furthermore, if management is successful in attaining its goals for
utilization of the proceeds of this offering, the Company may need additional
working capital, of which there is no assurance of its ability to raise such
funds upon terms and conditions favorable to Company.
(See "FINANCIAL STATEMENTS")
VOLATILE STOCK PRICE WHICH MAY LEAD TO LOSSES BY INVESTORS AND TO SECURITIES
LITIGATION
Prior to this offering, you could not buy or sell our common stock publicly. An
active public market for our common stock may not develop or be sustained after
the offering. We will negotiate and determine the initial public offering price
with the representatives of the Market Makers based on several factors. This
price may vary from the market price of the common stock after the offering.
The stock market has experienced significant price and volume fluctuations
and the market prices of securities of technology companies, particularly
Internet-related companies, have been highly volatile. Investors may not be able
to resell their shares at or above the initial public offering price. See "Plan
of Distribution."
In the past, securities class action litigation has often been instituted
against a company following periods of volatility in the company's stock price.
This type of litigation could result in substantial costs and could divert our
management's attention and resources.
WE FACE RISKS REGARDING OUR POTENTIAL FUTURE ACQUISITIONS OR INVESTMENTS.
As part of our growth strategy, we may acquire or make investments in,
companies with products, technologies or professional services capabilities
complementary to ours. In acquiring companies in the future, we could encounter
difficulties in assimilating their personnel and operations into our Company.
These difficulties could disrupt our ongoing business, distract our management
and employees, increase our expenses and adversely affect our results of
operations. These difficulties could also include accounting requirements, such
as amortization of goodwill or in-process research and development expense. We
cannot be certain that we will successfully overcome these risks with respect to
any future acquisitions or that we will not encounter other problems in
connection with our prior or any future acquisitions. In addition, any future
acquisitions may require us to incur debt or issue equity securities. The
issuance of equity securities could dilute the investment of our existing
shareholders.
RISK FACTORS ASSOCIATED WITH INTERNATIONAL EXPANSION
We believe that expansion of our international operations will be necessary for
our future success. Therefore, we believe that we will need to commit
significant resources to expand our international operations. A key aspect to
our strategy is to expand our sales and support organizations internationally.
We employ sales professionals in Europe and are in the early stages of expanding
into the Asia Pacific market. If we are unable to successfully enter into and
expand these international markets on a timely basis, our business and operating
results could be harmed. This expansion may be more difficult or take longer
than we anticipate, and we may not be able to successfully market, sell, deliver
and support our products internationally.
If successful in our international expansion, we will be subject to a number of
risks associated with international business activities. These risks include:
- difficulty in providing customer support in multiple time zones;
- need to develop software in multiple foreign languages;
- laws and business practices favoring local competition;
- currency fluctuations;
- longer sales cycles;
- greater difficulty in collecting accounts receivable;
- political and economic instability, particularly in Asia;
- difficulties in enforcing agreements through foreign legal systems;
- unexpected changes in regulatory requirements;
- import or export licensing requirements;
- reduced protection of our intellectual property rights in some countries;
and
- multiple conflicting tax laws and regulations.
To date, most of our revenues have been denominated in United States dollars. If
we experience an increase in the portion of our revenues denominated in foreign
currencies, we may incur greater risks in currency fluctuations, particularly
since we translate our foreign currency revenues once at the end of each
quarter. In the future, our international revenues could be denominated in the
Euro, the currency of the European Union. The Euro is an untested currency and
may be subject to economic risks that are not currently contemplated. We
currently do not engage in foreign exchange hedging activities, and therefore
our international revenues and expenses are currently subject to the risks of
foreign currency fluctuations.
SEASONALITY OF REVENUE
We have experienced, and expect to continue to experience, seasonality in our
license revenues and results of operations, with a disproportionately greater
amount of our license revenues for any fiscal year being recognized in our
fourth fiscal quarter. As a result, our first quarter revenues can be less than
those of the preceding quarter.
If we introduce products that are sold in a manner different from how we
currently market our products, we could recognize revenue differently than under
our current accounting policies. Depending on the manner in which we sell future
products, this could have the effect of extending the length of time over which
we recognize revenues.
Furthermore, our quarterly revenues could be significantly affected based on how
applicable accounting standards are amended or interpreted over time. Due to
these and other factors, we believe that period-to-period comparisons of our
results of operations are not meaningful and should not be relied upon as
indicators of our future performance. It is possible that in some future periods
our results of operations may be below the expectations of public market
analysts and investors. If this occurs, the price of our common stock may
decline. We Will Depend on the Commercial Success of Our Product Suite, Which
Has Not Yet Been Shipped We have generated substantially all of our revenues
from licenses and services related to current and prior versions of our product
suite.
Our quarterly operating results fluctuate and are difficult to predict, and if
our future results are below the expectations of public market analysts or
investors, the Price of Our Common Stock May Decline.
License revenues in any quarter can be difficult to forecast because they depend
on orders shipped or installed in that quarter. Moreover, we typically recognize
a substantial percentage of revenues in the last month of each quarter. A high
percentage of our operating expenses are essentially fixed in the short term. As
a result, if we experience delays in recognizing revenue, we could experience
significant variations in operating results from quarter to quarter. In
addition, we expect our operating expenses to increase as we expand our
engineering and sales and marketing operations, broaden our customer support
capabilities, develop new distribution channels and strategic alliances, fund
increased levels of research and development and build our operational
infrastructure. If our revenues do not grow faster than the increase in these
expenses, our business and operating results could be harmed.
WE FACE INTENSE COMPETITION WITH OTHER ONLINE PROVIDERS OF HEALTHCARE
TECHNOLOGY.
The market for providing healthcare information online is intensely competitive,
and we expect competition to increase in the future. Our business has low
barriers to entry, and we cannot guarantee that we will compete successfully
against our current or potential competitors, especially those with
significantly greater financial resources or brand name recognition. Our current
competitors include, E-Medsoft.com, Medscape.com, Dr. Koop.com and
Healtheon/WebMD. We have yet to derive significant revenues as an online
provider of healthcare information and Tele-medicine company.
Mergers or consolidations among our competitors, or acquisitions of small
competitors by larger companies, would make such combined entities more
formidable competitors to us. Large companies may have advantages over us
because of their longer operating histories, greater name recognition, or
greater financial, technical and marketing resources. As a result, they may be
able to adapt more quickly to new or emerging technologies and changes in
customer requirements. They can also devote greater resources to the promotion
and sale of their products or services than we can.
For the above reasons, we may not be able to compete successfully against our
current and future competitors. Increased competition may result in reduced
gross margins and loss of market share.
<PAGE>
CONFLICT OF INTEREST - MANAGEMENT'S FIDUCIARY DUTIES.
Our director and Officer are or may become, in their individual capacities, an
officer, director, controlling shareholder and/or partner of other entities
engaged in a variety of businesses. Anthony C. Dike, our founder, chairman and
CEO is engaged in business activities outside of us, and the amount of time he
will devote to our business will only be about twenty (20) hours per week.
There exist potential conflicts of interest including allocation of time between
us and such other business entities.
INCREASE IN GOVERNMENTAL REGULATIONS OF MARKETING OF SOFTWARE PRODUCTS
As Internet commerce continues to evolve, we expect that federal, state and
foreign governments will adopt laws and regulations covering issues such as user
privacy, taxation of goods and services provided over the Internet, pricing,
content and quality of products and services. It is possible that legislation
could expose companies involved in electronic commerce to liability, taxation or
other increased costs, any of which could limit the growth of electronic
commerce generally. Legislation could dampen the growth in Internet usage and
decrease its acceptance as a communications and commercial medium. If enacted,
these laws and regulations could limit the market for our products.
Furthermore, there have been several legislative initiatives in United States
Congress and state assemblies, regarding Tele-medicine industry some of which
if passed into law will impact our business model.
WE DEPEND ON OUR KEY PERSONNEL.
Our future success also depends on our continuing ability to attract and retain
highly qualified personnel. The competition for employees at all levels of our
industry is increasingly intense. Furthermore, in order to promote the
development of our Web Site, we will need to identify, attract and retain
software engineers, web designers and content editors. If we do not succeed in
attracting such new employees and retaining and motivating our current
employees, our business could suffer significantly.
FUTURE SALES OF OUR COMMON STOCK COULD CAUSE OUR STOCK TO DECLINE IN PRICE.
All shares registered in this offering will be freely tradable upon
effectiveness of this registration statement. The sale of a significant amount
of shares registered in this offering at any given time could cause the trading
price of our common stock to decline and to be highly volatile.
WE HAVE ADOPTED CERTAIN ANTI-TAKEOVER PROVISIONS THAT MAY DETER A TAKEOVER.
Assuming the sale of all the shares offered to persons other than existing
shareholders, the shares of common stock purchased by the public will represent
9% of our outstanding common stock after the completion of this offering.
Therefore, our present stockholders will own 91% of us and will continue to be
able to elect our director, appoint our officer, and control our affairs and
operations. Our Articles of Incorporation do not provide for cumulative voting.
Our Articles of Incorporation and Bylaws contain the following provisions that
may deter a takeover, including a takeover on terms that many of our
shareholders might consider favorable, such as:
- the authority of our Board of Directors to issue common stock and
preferred stock and to determine the price, rights (including voting rights),
preferences, privileges and restrictions of each series of preferred stock,
without any vote or action by our shareholders;
- the existence of large amounts of authorized but un-issued common
stock and preferred stock;
- staggered, three-year terms for our Board of Directors; and
- advance notice requirements for Board of Directors nominations and for
shareholder proposals.
The rights and preferences of any series of preferred stock could include a
preference over the common stock on the distribution of our assets upon a
liquidation or sale of our Company, preferential dividends, redemption rights,
the right to elect one or more directors and other voting rights. The rights of
the holders of any series of preferred stock that may be issued in the future
may adversely affect the rights of the holders of the common stock. We have no
current plans to issue preferred stock. In addition, certain provisions of
California law and our stock option plan may also discourage, delay or prevent a
change in control of our Company or unsolicited acquisition proposals.
DILUTION
The difference between the public offering price per share and the pro forma
net tangible book value per share of our common stock after this offering
constitutes the dilution to investors in this offering. Net tangible book
value per share is determined by dividing our net tangible book value (total
tangible assets less total liabilities) by the number of our outstanding common
stock.
The following table illustrates, as of December 31, 1999, the dilution to
investors in this offering:
<TABLE>
<CAPTION>
<S> <C>
Public offering price per Share $10.00
Net tangible book value per
Share, before this offering $0.002
Increase per Share attributable
to Payment by new investors $0.494
Net tangible book value per Share,
after this offering $0.496
Dilution to new investors per Share $9.504
</TABLE>
As of the date of this preliminary prospectus, there are currently no plans,
proposals, arrangements or understandings with respect to the sale of additional
securities to any person for the period commencing with the closing of
this offering.
For the offering following table compares between existing shareholders and
investors:
the number of shares of our common stock held,
their percentage ownership of such shares,
the total consideration paid,
the percentage of total consideration paid, and
the average price per share:
<TABLE>
<CAPTION>
Shares Purchased Total Consideration Price Per
Amount Percentage Paid Percentage Share
<S> <C> <C> <C> <C> <C>
Existing
Shareholders 10,000,000 80% $577,228 10% $ 0.06
New Investors 2,500,000 20% $25,000,000 90% $ 10.00
Total 12,500,000 100% $25,577,228 100%
</TABLE>
USE OF PROCEEDS
All proceeds from this offering less approximately $2,500,000 in
offering costs,will be used for new products research and development,
marketing, working capital and general corporate purposes.
THE MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Our common stock has never been traded in any market. We will apply
for listing of our common stock on Nasdaq's SmallCap Market upon effectiveness
of this registration Statement. In order to qualify for listing on Nasdaq's
SmallCap Market:
- our common stock must continue to be registered under Section
12 (g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")
- we must initially EITHER have (i) at least $4,000,000 of net
tangible assets, (ii) net income in two of the last three years
of at least $750,000 OR (iii) a market capitalization of
$50,000,000; and
- we must initially have a minimum bid price of $4.00 per share,
at least 300 round lot shareholders, a public float of at least
1,000,000 shares and at least three active market makers for our
common stock.
If we fail to meet Nasdaq's initial listing requirements, trading in our
Shares would thereafter be conducted in the over-the-counter market on the OTC
Bulletin Board established for securities that do not meet Nasdaq's listing
Requirements. This may result in a lower market price for our common stock
HOLDERS
As of February 29, 2000, there are 150 registered share-holders of record.
DIVIDEND
On December 10, 1999, as provided in Article IV of this Company's Articles of
Incorporation, as amended, this Company has one hundred million
(100,000,000) shares of common stock authorized and as of December 7, 1999, an
aggregate of one hundred thousand (100,000) shares of common stock were issued
and outstanding. The Board of Directors by way of a written consent declared a
stock dividend of one hundred (100) shares of common stock for every one (1)
share of common stock currently issued and outstanding, to be payable to
shareholders of record as of December 30th, 1999. Meridian Holdings, Inc.,
the 51% owner of the outstanding shares of the Company's common stock
declared a dividend simultaneously to all its shareholders of record who
owns a share in Meridian Holdings, Inc., to receive five (5) shares of
common stock of InterCare.com
DETERMINATION OF OFFERING PRICE
We set the offering price of $10.00 per share arbitrarily. There is no
Relationship between the price of these shares and any standard or
accepted method of valuation. This price bears no relation to our
assets, book value, or any other customary investment criteria, including
our prior operating history.
Among factors considered by us in determining the offering price were:
Estimates of our business potential
Our limited financial resources
The amount of equity desired to be retained by present shareholders
The amount of dilution to the public
The general condition of the securities markets
BUSINESS
Overview
InterCare.com formerly known as Inter-Care Diagnostics, Inc., is organized in
the State of California to pursue bio-medical software development, as well as
Internet based healthcare transactions and tele-medicine contents and programs
development.
The Company was originally incorporated in 1991 for the purpose of operating a
medical diagnostics laboratory and engaging in various medical services to
clients. On January 17, 1994, a 6.8 magnitude earthquake centered in Northridge,
California caused wide spread damage to commercial and residential structures,
and to major freeways, causing business interruptions and disrupting the normal
flow of traffic. The Company experienced irreversible damage to all its
high-tech computers and diagnostic equipment.
Since that time, the Company has been devoting substantially all its efforts to
establishing a new business entity that develops software for the healthcare
industry and other related activities over the Internet.
We have created, published and marketed multimedia software products that
provide biofeedback relaxation and self-regulation training, neuro-muscular
re-education, and stress management. We have also developed Internet-ready
applications for healthcare transactions management, medical and health-related
contents and information targeted towards the education, general consumer
and healthcare industry markets.
The Company developed the Mirage Systems Multimedia Biofeedback software program
in 1994. This is a cross-platform program available in both Microsoft Windows
3.X including windows 95;98 and Apple Macintosh platforms. This software became
the first United States FDA approved software program for neuromuscular
re-education and biofeedback training. The Company also has four other
software products in the market including the "Body Pain Trigger Points
Program", one of our best selling software products, with over 20,000 copies
sold. The Company intends to convert all its software programs to run in all the
popular operating systems available, including but not limited to Microsoft
Windows, Macintosh and Linus or Unix operating systems.
During the fiscal year ended December 31, 1994, InterCare.com made the
the strategic decision to focus the majority of its efforts on the online
dissemination of consumer health information, resulting in the May 1997 launch
of WWW.CAPNET.COM, a consumer health destination for Capnet IPA, the later which
was acquired by Meridian Holdings, Inc., a NASDAQ OTC BB (MEHO) technology
oriented company. In connection with this redirected strategy, we also started
focusing our efforts on Tele-medicine product research and development, as
well as conversion of our existing healthcare transaction software program
into a web-enabled healthcare transaction management program.
The Company and Meridian Holdings, Inc., submitted a joint technology
commercialization plan to NASA for commercialization of NASA's state-of-the-arts
Video Image Stabilization and Registration (VISAR) technology, and Video Game
Biofeedback software technology. If our application is approved, the Company
will adapt these technologies into our existing products and services, and
bring them to the general consumer market.
Meridian Holdings, Inc., our parent company recently announced the release of
Version 5.0 of our Healthcare Transaction Management software program. This
current version jointly developed by InterCare.com, and Capnet.com a division
of Meridian Holdings, Inc., is Internet based, and is currently used by
Capnet IPA and all its affiliated health plans in Los Angeles County.
The key elements of our business strategy include the following:
- Fully exploit the expanding tele-medicine Internet market
- Expand into related healthcare consumer market with our biofeedback
relaxation, self-regulation and stress management software program
- Convert all our existing software programs to an Internet based
applications, in order to attract a larger user and install base.
- Penetrate the National and International markets for large customers
such as corporations, correctional facilities, military, hospitals,
universities and government with our Internet based applications and
tele-medicine technologies.
In this regard, Meridian Holdings, Inc., our parent company has entered into
a joint venture relationship with Frontlinesoft, LTD of India to co-develop and
market our products and services in the Continents of Africa, Asia and Europe.
FUTURE GROWTH OF OUR BUSINESS MODEL
The Internet has created new and evolving ways for conducting commerce.
According to Forrester Research, business-to-business electronic commerce is
expected to grow to $1.3 trillion in 2003, accounting for more than 90% of the
dollar value of electronic commerce in the United States. The market for
applications that enable business-to-business electronic commerce is expected to
reach $1.5 billion by 2002, according to Dataquest. Enterprises that have
successfully implemented web-enabled customer interfaces now face the challenge
of utilizing the Internet and intranets to gain the same level of increased
efficiencies in their supply chain. In the changing world of healthcare, one
trend serves the common interests of doctors, patients, and medical
administrators: to maintain and increase the quality of care through new and
more cost-effective technologies, hence the Company's interest in the emerging
healthcare transactions and tele-medicine services and software applications
development.
There are several different reports and articles discussing the
tele-medicine market. Each of them looks at tele-medicine in a slightly
different way and provides different estimates, as follows:
- Business Communications Company (BCC): A large consulting firm that
produces industry reports on many industry sectors. In February 1998 the firm
produced a report titled: Tele-medicine Opportunities for Medical and
Electronic Providers (240 pages, cost: $1,350). Ben Grimley, an industry
analyst who specializes in health and information technology issues, prepared
the report.BCC estimates that the current U.S. market for tele-medicine is
$65 million and will reach $3 billion by the year 2002 based on the high
growth rates of leading market segments and an assumption that full
reimbursement for tele-medicine services will continue to become more
common. They predict the overall growth rate for tele-medicine to be 35
percent per year over the next five years with a 42 percent increase in
public sector investments and an 89 percent growth in sites over the same
period. The report cites provider plans for predicting a 280 percent growth
in prison tele-medicine sites over five years and a doubling of military
investment over seven years. The predicted rates of growth for tele-medicine
is particularly important given the firm's prediction that the market for
overall health-care related information is expected to grow only three
percent per year.
- Feedback Research Services (FRS): A market research firm that
specializes in high-tech health care delivery systems. Overall, FRS states that
the current annual U.S. market for telepathology, teleradiology, and
videoconferencing tele-medicine systems is under $100 million. According to
FRS, tele-medicine-related videoconferencing equipment sales in Europe,
North America, and the Pacific Rim accounted for $250 million in revenues
in 1996. They estimate that worldwide sales of products and services during
the 1990s reached an estimated $520 million, cumulative, through the
year-end of 1996. They project the annual worldwide growth rate to be 15
percent. They project that Europe and the Pacific Rim combined may
represent cumulative tele-medicine expenditures of $1.4 billion by 2001.
- Frost and Sullivan (F&S): An international marketing, consulting
and training firm covering many different markets. A representative from F&S
wrote an article in the April 1998 issue of ADVANCE for Administrators in
Radiology & Radiation Oncology that provided market forecasts for PACS and
Teleradiology. According to the article, the current total PACS and
teleradiology systems market revenue for the U.S. and Europe is estimated for
1998 at $368.8 million with the United States generating 81 percent of this
market. They project a growth rate of about 28 percent over the next six years
yielding a total annual market of $1.6 billion by 2004. In a separate report on
U.S. hospital communications equipment markets, including tele-medicine
videoconferencing as well as other segments, F&S forecasts a 30 percent growth
in this market.
- Waterford Advisors: An investment firm specializing in healthcare
and information systems. The firm has developed the Waterford
Tele-medicine Index (WTI), an index of stock prices from various
tele-medicine-related companies. WTI was debuted in the April 1998 issue
of Tele-medicine and Telehealth Networks and will be a regular feature of
the magazine. The index does not attempt to predict market size. Rather, the
index is designed to be a monitor of the overall performance of the industry
and a way to estimate the economic value of tele-medicine companies. Since
the index is new, there is little information about the recent performance
of tele-medicine companies in the market. The index currently includes 38
companies.
- The Healthcare Information and Systems Society (HIMSS) recently conducted
their ninth annual survey of senior healthcare executives.
Of the 1,754 respondents, 34 percent reported that their organizations currently
use tele-medicine, ten-percent plan on using tele-medicine within the next
21 months and 28 percent are investigating its use in the future.
- Tele-medicine and Telehealth Networks Magazine: This magazine
recently completed a survey of selected tele-medicine program managers.
Ninety-three percent reported that they expect to expand their operations
in the next five years.[/R]
OUR PRODUCTS AND SERVICES
At present InterCare.com offers the full Mirage Systems Interactive Multimedia
Biofeedback Interface, the Stress Profiling and the Trigger Points programs,
originally developed in 1993. The Trigger point program is currently sold as a
downloadable product over the Internet, via the Digital River and Netsales Inc.
Internet website. A hard-copy version of the program is also available for
purchase via the Company's website. Given the rapid rate of change in both
hardware and software technology, these programs are at the outskirts of their
useful shelf lives. Our current efforts are targeted on taking advantage
of our strengths in the application of high technology in the following
areas:
- The development and/or acquisition, through licensure or purchase,
of a low-cost physiological monitoring device as the hardware
component for a PC-based, executive and consumer-level biofeedback
device.
- The development of cutting edge, modular software to interactively
display a wide variety of multimedia feedback from the hardware device
described above. The software would be highly extensible and would
optionally facilitate an Internet connection to InterCare.com and the
uploading of generated physiological data for analysis and return to
the user via email or web page.
- The development, through licensing and/or acquisition, of streaming
video technology to facilitate the delivery of high-resolution
video-based tele-medicine and other content over the Internet. The
server-side software would be marketed to Internet and intranet
providers. A basic client-side browser plug-in would be offered as a
free download from InterCare.com, while a more robust stand alone
player would be offered for sale as an upgrade.
- The development of direct reseller relationships with manufacturers of
tele-medicine hardware and software (e.g. Sony). In addition to
reselling tele-medicine equipment and software, InterCare.com will
provide tele-medicine systems design and integration, installation and
support services, with the latter entailing both face-to-face client
contact and a unique interactive multimedia Internet site devoted
to answering most questions about tele-medicine, including tutorials,
chat and forum capabilities.
- The provision of web-site design & development services, including the
production and/or acquisition and conversion of interactive multimedia
content, for all of the above areas and for the other subsidiaries of
Meridian Holdings, Inc., our parent company.
OUR PROPRIETARY PRODUCTS
- The Mirage Systems Body Pain Trigger Points Software programs
- The Mirage Systems Multimedia Biofeedback Software Programs
- The Mirage Systems Internet-based Healthcare Transaction
Management Software Program
- The Mirage Systems Stress Profiling Software Programs
- The Mirage Systems Electro-Diagnostics Scan Site Program
These products are protected under United States Copyright laws.
OUR BUSINESS STRATEGY
We intend to capitalize on the enormous public attention focused on the
Internet and healthcare transactions by increasing our telemarketing sales and
technical support staff, targeting our advertising to our core audience, and by
providing the most efficient, lowest-cost healthcare transactions management and
tele-medicine service to our prospective clients.
OUR COMPETITION
The market for providing healthcare information online is intensely competitive,
and we expect competition to increase in the future. Our business has low
barriers to entry, and we cannot guarantee that we will compete successfully
against our current or potential competitors, especially those with
significantly greater financial resources or brand name recognition. Our current
competitors include, E-Medsoft.com, Medscape.com, Dr. Koop.com and
Healtheon/WebMD. We have yet to derive significant revenues as an online
provider of healthcare information and Tele-medicine company.
Mergers or consolidations among our competitors, or acquisitions of small
competitors by larger companies, would make such combined entities more
formidable competitors to us. Large companies may have advantages over us
because of their longer operating histories, greater name recognition, or
greater financial, technical and marketing resources. As a result, they may be
able to adapt more quickly to new or emerging technologies and changes in
customer requirements. They can also devote greater resources to the promotion
and sale of their products or services than we can.
For the above reasons, we may not be able to compete successfully against our
current and future competitors. Increased competition may result in reduced
gross margins and loss of market share.
OUR COMPETITIVE ADVANTAGE
- OUR KNOWLEDGEABLE AND GROWING SALES FORCE AND TECHNICAL STAFF.
We will be making sure that the sales force is trained on the
"high-end" networking elements in which we deal so they will be able to
service the needs of their customers.
- OUR BUSINESS MODEL COST, EFFICIENCY AND FLEXIBILITY.
We have addressed the largest cost factor in the methodology for deploying
our services through an outsourcing strategy rather than a building the
human resources from the scratch strategy. This keeps start-up costs as
low as possible.
- OUR STRATEGIC PARTNER STRENGTH.
Partnerships with CGI Communications Services, Inc., our parent company
Meridian Holdings, Inc., Netsales, Inc., Ingram-Micro Inc., DigitalRiver
Corporation, Microsoft Corporation, will give us the ability to deliver
our products and solutions faster and at a lower cost than the competition
- INTEGRATION.
We can seamlessly integrate all of the different technological solutions
and custom applications development. We use different strategic partners
to tailor the optimum solution for our customer.
- AUTOMATION AND ADVANCED TELECOMMUNICATIONS TECHNOLOGY.
Our Network Management tools are automated which leads to less downtime,
and lower labor costs. We use the latest equipment, work closely with
strategic partners that are forerunners in their fields, and are not
hampered by existing legacy infrastructures.
- OUR CUSTOMIZED CUSTOMER APPROACH.
We emphasize direct relationships with our customers. These relationships
enable us to learn information from our customers about their needs
and preferences and help us expand our service offerings to include
additional value-added services based on customer demand. We believe that
these customer relationships increase customer loyalty and reduce
turnover.
In addition, our existing customers have provided customer referrals
and we believe strong relationships will result in customer referrals in
the future.
Our success depends upon careful planning and the selection of partners. We can
meet the customer's needs more efficiently with entrenched procedures. This
enables us to excel at customer service.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following discussion should be read in conjunction with our financial
<PAGE>
statements and notes, as well as the other information included elsewhere
in this prospectus. Our discussion contains forward-looking statements that
involve risks and uncertainties, including those referring to the period of
time the Company's existing capital resources will meet the Company's future
capital needs, the Company's future operating results, the market acceptance of
the services of the Company, the Company's efforts to establish and the
development of new services, and the Company's planned investment in the
marketing of its current services and research and development with regard to
future endeavors. The Company's actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including: domestic and global economic patterns and trends.
RESULTS OF OPERATIONS
We have experienced, and expect to continue to experience, seasonality in our
license revenues and results of operations, with a disproportionately greater
amount of our license revenues for any fiscal year being recognized in our
fourth fiscal quarter. As a result, our first quarter revenues can be less than
those of the preceding quarter.
If we introduce products that are sold in a manner different from how we
currently market our products, we could recognize revenue differently than under
our current accounting policies. For instance, we may enter into re-seller
relationship with some vendors whereby we are pre-paid for our products at a
substantial discount especially in third-world countries where obtaining
credit facilities may be difficult
In some cases, the products will be sld on a consignement basis, in which case,
the revenue is released after the vendors sales the product to the end user,
and not while the product is still on the shelf.
Depending on the manner in which we sell future products, this could have the
effect of extending the length of time over which we recognize revenues.
Furthermore, our quarterly revenues could be significantly affected based on how
applicable accounting standards are amended or interpreted over time. Due to
these and other factors, we believe that period-to-period comparisons of our
results of operations are not meaningful and should not be relied upon as
indicators of our future performance. It is possible that in some future periods
our results of operations may be below the expectations of public market
analysts and investors. If this occurs, the price of our common stock may
decline. We Will Depend on the Commercial Success of Our Product Suite, Which
Has Not Yet Been Shipped. We have generated substantially all of our revenues
from licenses and services related to current and prior versions of our product
suite.
REVENUES.
Total revenues decreased 52% to $6,629 in the year ending December 31, 1999
compared to $13,795 for December 31, 1998. The revenue was generated from
collections from previous years account receivables and consulting services.
No revenue has been generated from activities related to providing health
related content over the Internet, including page view-based and Internet
Healthcare Transaction software licensing.
COST OF REVENUES.
Cost of revenues decreased 13% to $252 for the year ending December 31, 1999
compared to $289 in the comparable period in 1998. This decrease in the cost
of revenue is due to our transition from hard-copy software sale to electronic
downloadable products, with resultant decrease in software product shipments.
Amortization of capitalized software development costs will continue in the
future to bring levels closer to expected future revenues to be generated, or
net realizable value. Any future reduction in net realizable value during
the next coming year will be as a result of our decision not to support
certain products moving forward and instead to focus on development and
execution of our Internet strategies.
SALES AND MARKETING.
Only minimal sales and marketing has been done by the Company, since focusing
most of its resources at the moment in our Internet strategies, and software
enhancement, testing and debugging. The Company is budgeting over $250,000
for its initial roll-out of new products sales and marketing campaign during
the second quarter of the year 2000, assuming more capital is raised from
this offering to pay for such an expense.
PRODUCT AND CONTENT DEVELOPMENT.
Software products and Internet content development expenses is anticipated to
increase significantly during the next coming year, due to website redesign and
other Internet initiative launch costs, consisting primarily of personnel and
consulting costs. The Company projects to spend over $250,000 during the next
12 months to fund project and content development. As a result of the Company's
decision in 1994 to no longer develop traditional products, capitalized
software development costs was $0.
GENERAL AND ADMINISTRATIVE.
General and administrative expenses increased 41% for the year ending December
31, 1999 to $107,295 compared to $62,829 in the comparable period in
1998 due to the additional operating costs of increased personnel requirement.
The Company anticipates future increases in general and administrative
expenses as it embarks on aggressive product development, sales and
marketing with its associated increase in personnel costs and legal and
accounting expenses.
OPERATING LOSS.
As a result of the factors described above, the operating expenses increased
from $76,333 for the year ending December 31, 1998 to $120,800 for year ending
December 31, 1999. The Company expects further increases in operating expenses
on a proforma basis up to $752,342 for the year 2000, assuming additional
funding is raised from this offering to be used in financing future operating
costs. There is no guarantee that the Company will be able to raise additional
funds to finance all the anticipated operating costs. In absence of such funds
being available, the Company may not be able to operate, and this could have a
material impact in the overall execution of the Company's business plan.
NET LOSS.
The Company had a net loss of $114,423 or $.011 per share for the year
ended December 31, 1999, compared with net loss of $62,827 or $.006 per share
for the year ended December 31, 1998.
[/R]
LIQUIDITY AND CAPITAL RESOURCES
The Company has experienced a substantial increase in expenditures since the
launch of our Internet strategy through the growth in those operations and
related staffing. Management anticipates that these increased expenditure levels
will continue for the foreseeable future. Management anticipates incurring
additional expenses to increase our marketing and sales efforts, for content
development and for technology and infrastructure development. Additionally, we
will continue to evaluate possible investments in businesses, products and
technologies and the expansion of our marketing and sales programs.
The Company uses working capital to finance ongoing operations, fund the
development and introduction of our new business strategy and acquire capital
equipment. All the operating costs of the Company is being borne by Meridian
Holdings, Inc., the parent company. After this offering, the Company will become
an independent entity, and will have to seek further funding to cover its
operating costs. There is no guarantee that the Company will be able to raise
additional funds, and if such funds becomes available, the cost incurred for
securing such funds may not be on favorable terms to the Company, and this could
have an adverse impact on the entire operation.
PLAN OF OPERATIONS
Management believes the Company has adequate capital resources to meet
anticipated needs for working capital and capital expenditures through the end
of December 1999, but the Company needs to enhance its capital resources in
order to provide it with sufficient cash to meet its current operating needs and
to address such needs through the end of March 2000. If the Company is unable to
enhance its capital resources, the Company will be forced to reduce its spending
on capital expenditures and product development until such financing is
obtained.
The Company intends to use part of the funds raised during this offering for
acquisitions of businesses or health information content to use in the Company's
website or other Internet based product offerings. If adequate funds are not
available or not available on acceptable terms, we may be unable to fund our
expansion, successfully promote our brandname, take advantage of acquisition
opportunities, develop or enhance services or respond to competitive pressures,
any of which could have a material adverse effect on our business, financial
condition and results of operations.
The Company has entered into joint marketing agreement with NetSales, Inc., and
Digital River Corporation, to market the Company's software product through
various retail channels, as well as over the Internet as a downloadable product.
As of this writing, only a minimal amount of sales has occurred.
The Company is also embarking on an advertisement campaign over the next several
months in major newspapers and consumer and healthcare journals of all its
products and services. There is no assurance that such advertisement campaign
will yield any dividend.
Employees
We presently have three full time employees and four independent contractors.
Some of our officers and directors are engaged in business activities outside
of us, and the amount of time they will devote to our business will only be
approximately 50% of their work week. Upon completion of the public offering,
it is anticipated that management will devote the time necessary each month to
our affairs. We also intend to out-source some of the personnel requirements to
Meridian Holdings, Inc.
Facilities
We are presently using the office of Meridian Holdings, Inc., our parent
<PAGE>
company, at no cost, as our office. Such arrangement is expected to continue
after completion of this offering. There is currently no written rental
agreement.
Legal Proceedings
We are not currently a party to any material legal proceedings.
MANAGEMENT
Executive Officers, Directors and Other Significant Employees
<TABLE>
<CAPTION>
Name Age Title
<S> <C> <C>
Anthony C. Dike, MD 45 Chairman, Director
Chief Executive Officer, Secretary
Treasurer
Russell Lyon, MA 52 President, Director
Chief Technology Officer,
Philip Falese, MBA, LLM 43 Chief Financial officer, Director
Edward Williams, MD 64 Director
Daniel Thornton, 39 Director
Dale W. Church, JD Director
</TABLE>
Anthony C. Dike, MD, our Chairman, Chief Executive Officer, Secretary and a
Director, will devote approximately 50% of his time to our affairs. Dr. Dike has
been the Chairman of the Board, Chief Executive Officer and President of the
Company since January, 1991. Anthony C. Dike, a physician by training and
an entrepreneur that has funded and developed various start-up high technology
businesses from inception to fruition through his private Investment Firm, MMG
Investments Inc., a California corporation. He is the founder of CGI
Communications Services, Inc., Bolingo.com-the world's largest High Technology
Online Store on the Internet, Capnet.com, Bidfair.com, and Capnet.net, all
Internet domain registered businesses. He also is the founder of Intercare
Diagnostics, Inc., a United States Food and Drug Administration (USFDA)
registered Bio-Medical Software Manufacturing Company, with over 5 Multimedia
healthcare related software programs in the market. He also pioneered the design
and development of the Mirage Systems Biofeedback Software Program, the first
United States Food and Drug Administration approved software only for
Biofeedback and Relaxation Training. He is also the founder of Capnet IPA,
Capnet Gateway On-line Services, Meridian Medical Enterprises Corporation and
Meridian Health Systems, Inc. Anthony C. Dike, MD, is also a member of the
peer-review standing panel for United States Department of Education National
Institute for Disability and Rehabilitation Research. He has served as a
consultant to United Nations Development Project-Sustainable Human Development
Program . He has given several presentations to various fortune 500 companies
including Pacific Bell, AT&T Easylink Services, Apple Computer, Smithkline
Laboratories Clinical Trial Division, UHP Health Plan, Mullikin IPA, and
Wellpoint Healthcare Network Pharmacy department, about the use of the
Internet as a facilitator of global communications, record sharing and
electronic-commerce transaction in the healthcare industry using the
"Computer Aided Provider Network" or "CAPNET" module.
-----------------------------
He most recently pioneered the design and development of "The Mirage Systems
Internet Based Healthcare Transaction Module."
Russell A. Lyon, MA, our President, Chief Technology Officer and a
Director, will devote approximately 100% of his time to our affairs. Russell
Lyon has been a designer and developer of computer-based educational and
training programs for nearly two decades. He has served as both designer and
developer on major training projects for a variety of corporate entities,
including TRW, Unocal, Union Bank and Southern California Edison. As the founder
and principal of Kinetic Media, he was a Level II Authorized Developer for
Macromedia Director and has been a featured speaker at the Macromedia
International User Conference on innovative uses of Director. He has developed
or produced over a dozen separate commercial software titles, including The
Mirage Systems Interactive Multimedia Biofeedback Interface for Intercare
Diagnostics. He holds a BA degree in Psychology from Cornell University and an
MA degree in both Educational Psychology and Instructional Technology form
California State University, Long Beach.
Philip Falase, MBA, JD, LLM, our Chief Financial Officer and a Director
received his MBA from University of Alabama, JD from Northrop University
School of Law, Los Angeles, and LLM (Tax) from Golden Gate University, San
Francisco. Mr. Falase has been working as a consultant to various
clients in the area of strategic business development, tax consultation, asset
valuations, and financial planning. He also has worked as a staff accountant
for Carter, Turner and Company (CPA firm) based in Los Angeles, California.
Edward Williams, MD, a Director, has over 30 years of experience within the
medical profession. Dr. Williams, is currently in private medical practice
specializing in Family Medicine, received his Bachelor of Arts from Allegheny
College, Meadville, PA, and his Doctor of Medicine from Temple University School
of Medicine, Philadelphia, PA. Dr. Williams has also received a Masters Degree
in Health Care Administration from the University of La Verne; La Verne, CA.
Additionally, he is currently undergoing course work in a Certificate Program in
Administrative Medicine from Tulane University.
Dr. Williams has served in the United States Air Force, Flight Surgeon, Captain
Strategic Air Command and has received numerous honors and awards for his
outstanding service in the military. Dr. Williams has served as Chief of Staff
for Hawthorne Memorial Hospital, Hawthorne CA, and Robert F. Kennedy Medical
Center, Hawthorne CA. Additionally, Dr. Williams has served on numerous civic
boards such as the Chairman of the Torrance Building and Recreation Department,
Torrance, CA, Lawndale Chamber of Commerce, Lawndale CA, a Medical Consultant
and Scholarship Sponsor for the Miss California Pageant a division of the Miss
America Scholarship Pageant, to name a few. Dr. Williams is a Founding Member of
the El Camino Community College Foundation Torrance, CA. He has served the
Lawndale, Torrance, and Hawthorne, California Communities for over 25 years.
Daniel Thornton, a Director, began his business career in
the foods industry. He was corporate liaison and District Manager for Dairy
Queen of Denver, responsible for the operations and management of 25 stores in
the Denver metro area. Under his guidance, the stores achieved an overall
increase in sales of 20% and an increase in operational efficiency of over 5%.
Mr. Thornton is also an international lecturer on medical practice management in
addition to having extensive knowledge and experience in the manufacturing and
marketing of homeopathic drugs, medical devices and nutriceuticals.
As CEO of Eclosion Corporation, Mr. Thornton helped to operationalize all
aspects of medical device manufacturing, as well as being instrumental in
establishing Ireland's first fully registered homeopathic drug manufacturing
plant. He has managed projects that encompass the development of numerous drug
products, in addition to having established international markets for those
products. Mr. Thornton has also consulted to Nevada Homeopathic medical board,
primarily on regulatory issues regarding medical technology. His experience in
all facets of nutriceutical operations and marketing makes him well qualified
for his current position as the CEO of BioSynergy Nutriceuticals.
Dale W. Church, JD, a Director, is currently the Chairman and CEO of Ventures &
Solutions LLC, a company that counsels and consults with high technology
companies. In addition, he serves as trustee of the National Defense Industry
Association, general counsel to the Munitions Industrial Base Task Force, and
member of the Board of Directors of public and private companies. Prior to such
involvement, Mr. Church has had a wide variety of government and private sector
experience in arbitration, government contracting, defense, and acquisitions
management. Mr. Church was a former law partner at McDermott Will & Emery and
was counsel to the American Electronics Association, President's Blue Ribbon
Commission on Defense Management, Egypt-U.S. Business Counsel, and ESL Inc. in
Sunnyvale, California. Mr. Church served at the Department of Defense for which
he was awarded the rank of meritorious executive and the Central Review Board of
the Central Intelligence Agency for which he received the Defense Distinguished
Service Medal. Mr. Church received his bachelors degree in business
administration from Oregon State University and law degree from George
Washington University School of Law.
Board of Directors
Our Board of Directors consists of six (6) authorized members and, with
the recent addition of Dale Church in 2000, all of the positions have
been filled. The terms of the Board of Directors is staggered over a
three year period.
Apart from Mr. Russell A. Lyons, none of the other directors have been
compensated for their activities as directors or officers of the Company. In
the future, our non-employee directors may be reimbursed for expenses incurred
in connection with attending board and committee meetings and compensated for
their services as board or committee members.
Executive Officers
Our officers are elected by the Board of Directors and hold office at the
will of the Board.
Indemnification
Our Articles of Incorporation provide that we shall indemnify, to the full
extent permitted by California law, any of our directors, officers, employees or
agents who are made, or threatened to be made, a party to a proceeding by
reason of the fact that he or she is or was one of our directors, officers,
employees or agents against judgments, penalties, fines, settlements and
reasonable expenses incurred by the person in connection with the proceeding if
specified standards are met. Although indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to our directors, officers
and controlling persons under these provisions, we have been advised that, in
the opinion of the SEC, indemnification for liabilities arising under the
Securities Act of 1933 is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
Employment Agreements
Mr. Russell A. Lyons, the President and Chief Technology Officer has entered
into an employment agreement with the parent company, Meridian Holdings, Inc.
None of the other executive officers are subject to an employment agreement at
this time. We intend to enter into employment contracts with some of our
executive officers in the near future.
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table provides information concerning the compensation of the
named executive officers for each of our last nine completed fiscal year.
<TABLE>
<CAPTION>
Annual Compensation Long Term Compensation
Awards Securities
Name Other Restricted Underlying
And Annual Stock Options/
Principal Compen- Award (s) SARs (#)
Position Year Salary ($) Bonus ($) sation($)
(a) (b) (c) (d) (e) (f) (g)
<S> <C> <C> <C> <C> <C> <C>
Anthony C Dike 1999 $0 10,000
Chairman, 1998 $0 5,000 5,000
Chief 1997 $0 5,000 5,000
Executive 1996 $0 5,000 5,000
Officer(1)(2) 1995 $0 5,000 5,000
1994 $0 5,000 5,000
1993 $0 5,000 5,000
1992 $0 5,000 5,000
1991 $0 5,000 5,000
Russell A. Lyon 1999 $16,666.66
President
Chief
Technology
Officer (3)
Philip Falase 1999 $0
Chief
Financial
Officer (4)
<FN>
Footnotes
(1) Total awards granted from 12-31-91 to 12-31-99 is 4,000,000 at $0.002
per share on a 1 for 100 post split basis.
(2) Total options granted from 1991 to 12-31-99 is 5,000,000 at $0.002
per share on a 1 for 100 post split basis.
(3) Mr. Russell Lyon started working for the Company in November 1999. His
original options and bonus awards were granted by Meridian Holdings, Inc., the
parent company.
(4) Mr. Philip Falase will commence working for the Company effective
early part of the year 2000.
</TABLE>
Options/SAR Grants in Last Fiscal year
The following table shows information regarding grants of stock options in this
last completed fiscal year to executive officers named in the summary
Compensation Table above.
<TABLE>
<CAPTION>
Individual Grants
Number of % of Total
Securities Options/SARs
Underlying Granted to Exercise
Options/SARs Employees or Base Expiration
Name Granted (#) in Fiscal Year Price ($/sh) Date
(a) (b) (c) (d) (e)
<S> <C> <C> <C> <C>
Anthony C. Dike (1) 5,000,000 100% 0.002 12-31-2008
<FN>
Footnotes
(1) Options granted in December 1999 is 1,000,000 shares, at $0.002 per share.
No stock was issued during this period.
</TABLE>
CERTAIN TRANSACTIONS
In December 1991, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1991,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2001.
In December 1992, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1992,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2002.
In December 1993, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1993,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2003.
In December 1994, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1994,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2004.
In December 1995, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1995,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2005.
In December 1996, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1996,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2006.
In December 1997, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1997,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2007.
In December 1998, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered. Also in December 1998,
the Chairman was granted options to purchase additional 5,000 shares of our
common stock, exercisable until December 2008.
In December 1999, the Chairman was granted options to purchase 1,000,000
shares of our common stock, exercisable until December 2009. The total number
of options available to be exercised by our Chairman is 5,000,000 on a
post-dividend distribution basis at $0.002 per share.
Also, in February 1991, the Board of Directors authorized the issuance of 9,000
shares of common stock to MMG Investments, Inc., in consideration for an
aggregate of $75,000 equity investment in the Company.
In September 1999, the Board Directors authorized the issuance of 51,000 shares
of common stock to Meridian Holdings, Inc., in exchange for assumption of
a $538,000 debt owed by the Company to MMG Investments, Inc.($500,000) and
United States Small Business administration ($38,000).
Total shares issued and outstanding was 100,000 as of December 7, 1999. On
December 10, 1999, the Company's authorized capital stock was increased and a
1 to 100 forward stock split was effected by an amendment of Article IV of
the Company's Articles of Incorporation approved by the Board of Directors.
Pursuant to the stock split, the outstanding shares of the common stock of the
Company was increased from 100,000 to 100,000,000 and such shares were
distributed to all the current shareholders of InterCare.com, Inc. pursuant
to a stock dividend distribution approved by the Board of Directors.
We are presently using a portion of the offices of Meridian Holding, Inc., our
parent company, at no cost, as our office space. Such arrangement is expected
to continue after completion of the offering. There is currently no written
lease agreement.
PRINCIPAL SECURITY HOLDERS
The following tables set forth information regarding the beneficial owners of
our common stock, as of December 31, 1999, by the following individuals or
groups:
Each of our executive officers;
Each of our directors;
Each person, or group of affiliated persons, whom we know beneficially
owns more than 5% of our outstanding stock; and
All of our directors and executive officers as a group.
Except as otherwise noted, and, to the best of our knowledge, the persons named
in this table have sole voting and investing power with respect to all of the
shares of common stock held by them. As of the table date we had
10,000,000 common shares outstanding.
<TABLE>
<CAPTION>
Name and Amount and Percent of Class
Address of Nature of Before After
Beneficial Beneficial the the
Owner Ownership Offering Offering (Maximum)
<S> <C> <C> <C>
Anthony C. Dike (1)(2) 4,000,000 40% 32%
4127 West 62nd Street
Los Angeles, CA 90043
Meridian Holdings, Inc.(2)(3) 5,100,000 51% 41%
900 Wilshire Blvd, #500
Los Angeles, CA 90017
MMG Investments, Inc.(2) 900,000 9% 7%
4127 West 62nd Street
Los Angeles, CA 90043
Named Officers and 4,000,000 40% 32%
Directors As a Group
<FN>
(1) Officer or Director.
(2) Anthony C. Dike, is a majority shareholder.
(3) INCLUDING THEIR SHAREHOLDERS; EXCLUDING THEIR DIRECTORS, OFFICERS, AND
AFFILIATES.
</TABLE>
DESCRIPTION OF SECURITIES
COMMON STOCK
We are authorized to issue up to 100,000,000 shares of common stock, no par
value, of which 10,000,000 shares were issued and outstanding as of December 31,
1999. All outstanding shares of our common stock are fully paid and
nonassessable and the shares of our common stock offered by this prospectus
will be, upon issuance, fully paid and nonassessable. The following is a
summary of the material rights and privileges of our common stock.
PREFERRED STOCK
We authorized 20,000,000 shares of preferred stock, with no par value.
No shares of preferred stock have been issued.
VOTING.
Holders of our common stock are entitled to cast one vote for each share held at
all shareholder meetings for all purposes, including the election of directors.
The holders of more than 50% of the voting power of our common stock issued
and outstanding and entitled to vote and present in person or by proxy, together
with any preferred stock issued and outstanding and entitled to vote and present
in person or by proxy, constitute a quorum at all meetings of our shareholders.
The vote of the holders of a majority of our common stock present and entitled
to vote at a meeting, together with any preferred stock present and entitled
to vote at a meeting, will decide any question brought before the meeting,
except when California law, our Articles of Incorporation, or our bylaws
require a greater vote and except when California law requires a vote of
any preferred stock issued and outstanding, voting as a separate class, to
approve a matter brought before the meeting. Holders of our common stock do not
have cumulative voting for the election of directors.
DIVIDENDS.
Holders of our common stock are entitled to dividends when, as and if declared
by the Board of Directors out of funds available for distribution. The payment
of any dividends may be limited or prohibited by loan agreement provisions or
priority dividends for preferred stock that may be outstanding.
On December 10, 1999, as provided in Article IV of this Company's Articles of
Incorporation, as amended, this Company has one hundred million
(100,000,000) shares of common stock authorized and as of December 7, 1999, an
aggregate of one hundred thousand (100,000) shares of common stock were issued
and outstanding. The Board of Directors by way of a written consent declared a
stock dividend of one hundred (100) shares of common stock for every one (1)
share of common stock currently issued and outstanding, to be payable to
shareholders of record as of December 30th, 1999. Meridian Holdings, Inc.,
the 51% owner of the outstanding shares of the Company's common stock
declared a dividend simultaneously to all its shareholders of record who owns
a share in Meridian Holdings, Inc., to receive five (5) shares of common
stock of InterCare.com.
PREEMPTIVE RIGHTS.
The holders of our common stock have no preemptive rights to subscribe for any
additional shares of any class of our capital stock or for any issue of bonds,
notes or other securities convertible into any class of our capital stock.
LIQUIDATION.
If we liquidate or dissolve, the holders of each outstanding share of our common
stock will be entitled to share equally in our assets legally available for
distribution to our shareholders after payment of all liabilities and after
distributions to holders of preferred stock legally entitled to be paid
distributions prior to the payment of distributions to holders of our common
stock.
TRANSFER AGENT.
Corporate Stock Transfer of Denver, Colorado will serve as our transfer agent.
Telephone number 303-282-4800.
SELLING SECURITY HOLDERS
There are no selling security holders in this offering.
PLAN OF DISTRIBUTION
We offer the right to subscribe for up to 2,500,000 shares at the offering
price of $10.00 per share, through our directors and officers, as well as
broker/dealers. Corporate Stock Transfer of Denver is our Escrow agent.
The estimated broker/dealer compensation for distributing our common stock is
$1.00 per share or $2,500,000 if the maximum shares are sold. No payment
will be made to our Directors and officers for selling the shares of our
common stock, pursuant to this offering
InterCare.com will pay all of the expenses incident to the registration,
offering and sale of the shares to the public including commissions or
discounts of broker-dealers or agents.
TERMS OF SALE OF THE SHARES
We will be selling our shares on a 100,000 share minimum 2,500,000 share maximum
basis. Until we have sold at least 100,000 shares, we will not accept
subscriptions for any shares. All proceeds of this offering will be deposited
in a non-interest bearing escrow account with Corporate Stock Transfer Inc. If
we are unable to sell at least 100,000 shares before the offering ends, we will
return all funds, without interest, to subscribers as soon as practicable after
the ending of this offering. We have the right to completely or partially
accept or reject any subscription for shares offered in this offering, for any
reason or for no reason. The offering will remain open until all shares offered
in this offering are sold or nine months after the date of this prospectus,
except that we will have only 180 days to sell at least 100,000 shares. We may
decide to cease selling efforts at any time prior to such date. If this
offering is oversubscribed, we may consider whether or not you expect to hold
the shares purchased in this offering long term in determining whether and to
what extent we will accept your subscription. We anticipate having one or more
closings of this offering, the first of which cannot be held until we are able
to sell at least 100,000 shares. After that, we could have multiple closings
whenever we receive and accept new subscriptions.
METHOD OF SUBSCRIBING
Persons may subscribe by filling in and signing the subscription agreement
And delivering it, prior to the expiration date, to us. The subscription
price of $10.00 per share must be paid in cash or by check, bank draft or
postal express money order payable in United States dollars to our order.
EXPIRATION DATE
This offering will expire 180 days from the date of this prospectus.
KEY TERMS OF ESCROW AGREEMENT
Under the terms of our escrow agreement with Corporate Stock Transfer Inc.
- proceeds from the sale of shares will be deposited into a non-interest bearing
account until the minimum offering amount is sold;
- in the event the proceeds are insufficient to meet the 100,000 share minimum
requirement, proceeds will be returned directly to investors by the escrow
agent, without interest and without any deduction for expenses including escrow
agent fees;
- the escrowed proceeds are not subject to claims by our creditors, affiliates,
associates, or underwriters until the proceeds have been released to us under
the terms of the escrow agreement; and
- the regulatory administrator of any state in which the offering is registered
has the right to inspect and make copies of the records of the escrow agent
relating to the escrowed funds in the manner described in the escrow agreement.
LEGAL MATTERS
The validity of the common stock offered hereby will be passed upon for
us by Wellman & Warren LLP, Irvine, California.
EXPERTS
The financial statements incorporated in this prospectus represents the two
consecutive year audited annual financial statements of InterCare.com, Inc.
(formerly, Inter-Care Diagnostics, Inc.)for the year ended December 31, 1998 and
1999 respectively, and have been so incorporated in reliance on the report of
Andrew M. Smith, independent accountant, given on the authority of Mr. Smith,
CPA, as an expert in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
This prospectus is a part of a registration statement on Form SB-2 filed by us
with the SEC under the Securities Act. This Prospectus omits certain
information contained in the registration statement, and we refer you to the
registration statement and to the exhibits to the registration statement for
additional information about the common stock and us.
We upon registration, will file annual, quarterly and special reports, and
other information with the SEC. You may read and copy any document we file with
the SEC at the SEC's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's public reference rooms located at it's
regional offices in New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of public
reference rooms. You can also obtain copies of this material from the SEC's
Internet web site (http://www.sec.gov) that contains reports, proxy statements
and other information regarding registrants that file electronically with the
SEC.
<PAGE>
InterCare.com, Inc.
Financial Statements
And Independent Auditor's Report
December 31, 1999
INTERCARE.COM, INC.
<TABLE>
<CAPTION>
Table of Contents
<S> <C>
Page
Independent Auditor's Report F-1
Audited Financial Statements:
Balance Sheet F-2
Statements of Operations F-3
Statements of Changes in Stockholders' Equity F-4
Statements of Cash Flows F-5
Notes to Financial Statements F-6
</TABLE>
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
InterCare.com, Inc.
We have audited the accompanying balance sheet of InterCare.com, Inc. at
December 31, 1999 and the related statements of changes in stockholders'
equity, operations, and cash flows for the years ended December 31, 1998
and 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 InterCare.com, Inc. at
December 31, 1999, and the results of its operations and its cash flows for the
Years ended December 31, 1998 and 1999, in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. However, the Company has minimal
capital resources presently available to meet obligations which normally can be
expected to be incurred by similar companies, and with which to carry out its
planned activities. These factors raise substantial doubt about the Company's
ability to continue as a going concern. Management's plans in regard to this
matter are discussed in Note 2. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
Andrew M Smith, CPA
Long Beach, California, 90807
May 16, 2000
<PAGE>
INTERCARE.COM, INC.
Balance Sheet
<TABLE>
<CAPTION>
31-Dec-98 31-Dec-99
========= =========
<S> <C> <C>
ASSETS
Current assets
Cash . . . . . . . . . . . . . . . . . . . . . . . . 36,785 864
Accounts Receivable. . . . . . . . . . . . . . . . . 47,672
Inventory. . . . . . . . . . . . . . . . . . . . . . 988 21,639
Total Current Assets . . . . . . . . . . . . . . . . . . 85,445 22,503
Fixed assets (Net) . . . . . . . . . . . . . . . . . . . 13,206 253
Deferred Public Offering Costs
-------- ---------
Total Assets . . . . . . . . . . . . . . . . . . . . . . 98,651 22,756
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accrued liabilities (3,1) . . . . . . . . . . . . . 8,768
Total Current Liabilities. . . . . . . . . . . . . . . . 8,768
Long term liabilities (3). . . . . . . . . . . . . . . . 504,932 -
--------- ---------
Total Liabilities. . . . . . . . . . . . . . . . . . . . 513,700 -
========== ========
Stockholders' equity
Common stock, no par value per share;
100,000,000 shares authorized; 10,000,000 shares
issued and outstanding . . . . . . . . . . . . . . 25,000 577,228
Additional paid-in capital
Accumulated Deficit. . . . . . . . . . . . . . . . . . . (440,049) (554,472)
--------- ---------
Total Liabilities & Equity . . . . . . . . . . . . . . . 98,651 22,756
========== =========
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>
INTERCARE.COM, INC.
Statement of Operations
Year ending on as of December 31,
<TABLE>
<CAPTION>
1998 1999
===== =====
<S> <C> <C>
Revenue 13,795 6,629
-------- -------
Cost of Goods Sold 289 252
--------- -------
Gross Profit 13,506 6,377
========= =======
Amortization & Depreciation Expense 13,504 13,505
General, Sell & Administrative 62,829 107,295
Stock issued for services - -
----------- ----------
Total Operating Expenses 76,333 120,800
----------- ----------
(Loss) Income Before Interest and
Income taxes . . . . . . . . . . . . . (62,827) (114,423)
Interest Income - -
Interest Expense - -
(Loss) Income Before Income taxes (62,827) (114,423)
----------- ----------
Net (Loss) Profit (62,827) (114,423)
----------- ----------
Weighted average number of shares 10,000,000 10,000,000
Net loss per common share (0.006) (0.011)
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>
INTERCARE.COM, INC.
Statement of Changes in Stockholders' Equity
<TABLE>
<CAPTION>
Common Stock Additional Accumulated Total
Transaction and Date Shares Amount Paid in Capital Deficit Equity
============ ======= ========== ========= =========
Inception Through December 1997 100,000 $25,000 - $(377,222) (352,222)
<S> <C> <C> <C> <C> <C>
Net Loss Year Ended 12/31/98 (62,827) (62,827)
------------ -------- -------- -------- --------
Balance December 31, 1998 100,000 25,000 - $(440,049) (415,049)
September 18, 1999 sold 51% to Meridian 1,000,000 552,228 552,228
Holdings
Net Loss Year Ended 12/31/99 (114,423) (114,423)
December 10, 1999 completed forward split
of 1 to 100 . . . . . . . . . . . . . . . 9,900,000
------------ -------- -------- -------- --------
Balance December 31, 1999 . . . . . . . . 10,000,000 25,000 552,228 (574,278) 22,756
========== ======= ======== ======== ========
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>
INTERCARE.COM, INC.
Statement of Cashflows
For the Year Ended December 31
<TABLE>
<CAPTION>
1998 1999
====== ======
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (62,826.76) $(114,423.47)
Adjustments to reconcile net loss to net cash used
in operating activities:
Depreciation 13,504 13,505
Loss on sale of equipment (551)
Changes in assets and liabilities:
Decrease in accounts receivable - 47,672
increase in inventory (988) (20,651)
Decrease in accounts payable - (6,357)
Decrease in SBA note payable (1,515) (36,526)
Increase in note payable - MMG investment 50,190 (462,358)
Increase in loan from MMG investment 2,316 (8,460)
------- -------
NET CASH USED IN OPERATING ACTIVITIES 680 (588,149)
======= ========
CASH FLOW FROM INVESTING ACTIVITIES
Purchase of equipment (759) -
------ -------
NET CASH USED IN INVESTING ACTIVITIES (759) -
====== =======
CASH FLOWS FROM FINANCING ACTIVITIES
Sold 51% interest to Meridian Holdings, Inc. - 552,228
NET CASH PROVIDED BY FINANCING ACTIVITIES - 552,228
------ -------
NET DECREASE IN CASH (79) (35,921)
======= =======
CASH AT BEGINNING OF PERIOD 36,864 36,785
CASH AT END OF PERIOD $ 36,785.30 $ 863.85
</TABLE>
The accompanying notes are an integral part of this statement.
<PAGE>
INTERCARE.COM, INC.
Notes to the Financial Statements
1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Organization. InterCare.com formerly known as Inter-Care Diagnostics, Inc., is
organized in the State of California to pursue bio-medical software development,
as well as Internet based healthcare transactions and tele-medicine contents
and programs development.
The Company was originally incorporated in 1991 for the purpose of operating a
medical diagnostics laboratory and engaging in various medical services to
clients. On January 17, 1994, a 6.8 magnitude earthquake centered in Northridge,
California caused wide spread damage to commercial and residential structures,
and to major freeways, causing business interruptions and disrupting the normal
flow of traffic. The Company experienced irreversible damage to all its
high-tech computers and diagnostic equipment.
Since that time, the Company has been devoting substantially all its efforts to
establishing a new business entity that develops software for the healthcare
industry and other related activities over the Internet.
The Company have created, published and marketed multimedia software products,
content and Internet-ready applications that provide biofeedback, healthcare
transactions, medical and health-related information for the education, consumer
and professional markets.
The Company developed the Mirage Systems Multimedia Biofeedback software program
( a cross-platform program : Windows 3.X including windows 95;98 and Apple
Macintosh platforms) in 1994, and this software became the first FDA approved
software program for neuromuscular re-education and biofeedback training. The
Company also has four other software products in the market including the "Body
Pain Trigger Points Program", one of our best selling software products, with
over 20,000 copies sold. The Company intends to convert all its software
programs to run in all the popular operating systems available, including but
not limited to Microsoft Windows, Macintosh and Linus or Unix operating
systems.
On September 27, 1999, the Company, announced that it has executed an
Electronic Commerce Agreement with Netsales, Inc., in which Netsales will
distribute InterCare's software programs through more than 140,000 loyal
reseller customers in 130 countries of Ingram Micro, the largest provider of
computer technology products and services in the world.
The Company had entered into similar agreement earlier, with DigitalRiver,
Inc., in which DigitalRiver will market the Company's software program through
major retailers such as CompUSA, Wal-Mart, and other Internet software
resellers.
Estimates. The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect certain reported amounts and disclosures
Accordingly, actual results could differ from those estimates.
Deferred Costs Related To Proposed Public Offering. Costs incurred in
connection with the proposed public offering of common stock have been deferred
and will be charged against capital if the offering is successful or against
operations if it is unsuccessful.
The estimated expenses of this offering in connection with the issuance and
distribution of the securities being registered, all of which are to be paid
by the Registrant, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $ 6,500.00
Legal Fees and Expenses 5,000.00
Accounting Fees and Expenses 2,000.00
Printing 240.00
Miscellaneous Expenses 820.80
Total $ 14,560.80
==========
</TABLE>
Shares Issued In Exchange For Services. The fair value of shares issued in
exchange for services rendered to the Company was determined by the Company's
officers and directors.
<PAGE>
Income Taxes. The Company has made no provision for income taxes because of
accumulated business and tax losses since its inception.
Net Loss Per Common Share. The net loss per common share is computed by
dividing the net loss for the period by the weighted average number of shares
outstanding. For purposes of computing the weighted average number of shares,
all stock issued with regards to the founding of the Company is considered to
be "cheap stock" as defined in SEC Staff Accounting Bulletin 4D and is
therefore counted as outstanding for the entire period.
2. GOING CONCERN CONTINGENCY
The Company has minimal capital resources presently available to meet
obligations which normally can be expected to be incurred by similar companies,
and with which to carry out its planned activities. These factors raise
substantial doubt about the Company's ability to continue as a going concern.
In order to begin any significant operations, the Company will have to pursue
other sources of capital, such as additional equity financing as discussed in
Note 4. There is no assurance that the Company will be able to obtain such
financing. The accompanying financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
3. RELATED PARTY TRANSACTIONS
The Company's majority shareholder Anthony C. Dike, is also the principal of MMG
Investments, Inc. MMG Investments Inc., made an equity investment of an
aggregate of $75,000 in exchange for 9,000 shares of common stock of the Company
in February 1991.
On September 18th, 1999, pursuant to a Stock Purchase Agreement dated
September 18th, 1999 (the "Stock Purchase Agreement") by and among the
Registrant ("Seller"), and Meridian Holdings, Inc., (a Colorado corporation)
("Buyer"), the Registrant sold 51,000 shares of common stock at 0 par
value, representing 51% of all the issued and outstanding shares to Meridian
Holdings, Inc., in exchange for "Banner" Advertisement and Promotion of
InterCare Products and Services on all high traffic websites of Meridian
Holdings, Inc., as well as assumption of current and future software
development costs and debts of InterCare.com totaling $513,700, hence
this amount was not reflected in the December 31, 1999 balance sheet.
4. PUBLIC OFFERING OF COMMON STOCK
On December 31, 1999, the Board of Directors authorized the Company to sell in a
public offering of 2,500,000 shares of common stock pursuant to an effective
registration statement on Form SB-2 filed under the Securities Act of 1933.
Each share shall have a purchase price of $10.00.
Proceeds from the public offering shall be for working capital and general
corporate purposes.
5. LEGAL FEES
The Company has agreed to pay its corporate attorney, Scott W. Wellman of
Wellman & Warren LLP, who is also a stockholder of the Company, $5000
cash for his legal services relative to the public offering upon the
registration statement for the public offering (see Note 4 above) becoming
effective. This obligation has been accrued in the accompanying balance
sheet and the costs are included in deferred public
offering costs.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
California Corporate Code allows us to indemnify our officers, directors and any
corporate agents in terms sufficiently broad to indemnify such persons under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. Our Articles of Incorporation
and our bylaws provide for indemnification of our directors, officers,
employees and other agents to the extent and under the circumstances permitted
by California law. We may enter into agreements with our directors and
executive officers that require us, among other things, to indemnify them
against certain liabilities that may arise by reason of their status or service
as directors and executive officers to the fullest extent permitted by
California law. We have also purchased directors and officers liability
insurance, which provides coverage against certain liabilities including
liabilities under the Securities Act.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of this offering in connection with the issuance and
distribution of the securities being registered, all of which are to be paid
by the Registrant, excluding underwriters discount of approximately
$2,500,000 are as follows:
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $ 6,500.00
Legal Fees and Expenses 5,000.00
Accounting Fees and Expenses 2,000.00
Printing 240.00
Miscellaneous Expenses 820.80
Total $ 14,560.80
==========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
(a) The following is a summary of our transactions during the last nine years
preceding the date hereof involving sales of our securities that were not
registered under the Securities Act.
In December 1991, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2001.
In December 1992, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2002.
In December 1993, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2003.
In December 1994, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2004.
In December 1995, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2005.
In December 1996, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2006.
In December 1997, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2007.
In December 1998, the Board of Directors authorized the issuance of 5,000 shares
to Anthony C. Dike, our Chairman for services rendered, with options to purchase
additional 5,000 shares of our common stock, exercisable until December 2008.
In December 1999, the Chairman was granted options to purchase 1,000,000
shares of our common stock, exercisable until December 2009.
The total number of options available to be exercised by our Chairman is
5,000,000 on a post-dividend distribution basis. This issuance of these
securities was made in reliance on the exemption provided by Rule 701
promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving any public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under Rule 701.
Also, in February 1991, the Board of Directors authorized the issuance of 9,000
shares of common stock to MMG Investments, Inc., in consideration for an
aggregate of $75,000 equity investment in the Company. Based upon the
Registrant's familiarity with the investor, the Registrant determined the
investor had such knowledge and experience in financial and business matters as
to enable the investor to evaluate the merits and risks of the investment. This
issuance and sale of these securities was made in reliance on the exemption
provided by Section 4(2) of the Securities Act as a transaction not involving
any public offering.
In September 1999, the Board directors authorized the issuance of 51,000 shares
of common stock to Meridian Holdings, Inc., in exchange for assumption of
$538,000 debt owed by the Company to MMG Investments, Inc.($500,000) and United
States Small Business administration ($38,000). Based upon the Registrant's
familiarity with the investor, the Registrant determined the investor had such
knowledge and experience in financial and business matters as to enable the
investor to evaluate the merits and risks of the investment. This issuance and
sale of these securities was made in reliance on the exemption provided by
Section 4(2) of the Securities Act as a transaction not involving any public
offering.
Total shares issued and outstanding was 100,000 as of December 7, 1999. On
December 10, 1999, the Company's authorized capital stock was increased and a
1 to 100 forward stock split was effected by an amendment of Article IV of
the Company's Articles of Incorporation approved by the Board of Directors.
Pursuant to the stock split, the outstanding shares of the common stock of the
Company was increased from 100,000 to 100,000,000 and such shares were
distributed to all the current shareholders of InterCare.com, Inc. pursuant
to a stock dividend distribution approved by the Board of Directors
The sales and issuances of securities in the transactions described above were
deemed to be exempt from registration under the Securities Act in reliance upon
Section 4(2) of the Securities Act, Regulation D promulgated thereunder or rule
701 promulgated under Section 3(b) of the Securities Act, as transactions by an
issuer not involving any public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under rule 701. The recipients of securities in each transaction represented
their intentions to acquire the securities for investment only and not with a
view to or for sale in connection with any distribution thereof and appropriate
<PAGE>
legends were affixed to the securities issued in such transactions. All
recipients had adequate access, through their relationship with us to
information about us.
(b) There were no underwritten offerings employed in connection with any
of the transactions set forth in Item 26(a).
ITEM 27. EXHIBITS.
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
Number Description
<S> <C>
1.0 Form 8-A (*)
3.1 Articles of Incorporation as amended(*)
3.2 Bylaws as amended (*)
4.1 Specimen Common Stock Certificate (*)
5.1 Opinion Regarding Legality(*)
23.2 Consent of Expert (*)
23.3 Power of Attorney (*)
24.2 Form of Electronic Commerce Agreement with NetSales, as amended (*)
24.3 Form of Telecom Services Agreement with CGI Communications, Services,
Inc.
24.4 Form of Stock Option Plan
24.5 Form of Stock Option Agreement
24.6 Form of Technology Commercialization Plan submitted to NASA (filed in
paper)
24.7 Form of Copyright Certificate for the Mirage Systems
Biofeedback Interface Form TX issued by the United States Copyright
Office (filed in paper)
24.8 Form of United States Food and Drug Administration 510K approval of
Mirage Systems Biofeedback Interface (software only to be used solely
for relaxation training) filed in paper.
24.9 Form of Electronic Commerce agreement between Digital River Corporation
and InterCare.com (filed in paper.)
24.10 Picture of the initial mold of the Physiological Monitoring device to
be developed by the Company (filed in paper)
24.13 Form of Escrow Agreement
24.14 Form of Escrow Fee Agreement
24.15 Form of Subscription Agreement
25.1 Written Consent of the Board of Directors of Meridian Holdings, Inc.
approving the dividend stock distribution.
25.2 Written Consent of the Board of Directors of InterCare.com, Inc.
approving the dividend stock distribution.
27.1 Financial Data Schedule (*)
------------------------------
<FN>
(*) Filed herewith.
</TABLE>
ITEM 28. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the Securities
Act;
Reflect in the prospectus any facts or events which, individually or together,
represent a fundamental change in the information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as express in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the small business issuer of expenses incurred or paid by a
<PAGE>
director officer or controlling person of the small business issuer in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the small business issuer will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication such issue.
(5) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the small business issuer under Rule 424(b)(1), or (4) or
497(h) under the Securities Act as part of this registration statement as of
the time the Commission declared it effective.
(6) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial bona
fide offering of those securities.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned in the City of Los
Angeles, State of California on the 12 of June 2000.
INTERCARE.COM, INC. (Registrant)
By:/s/ Anthony C. Dike
__________________________
Anthony C. Dike
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby appoints
Anthony C. Dike as their attorney-in-fact, with full power to act alone, to
sign in the name and in behalf of the Registrant and any such person,
individually and in each capacity stated below, any and all amendments,
including post-effective amendments, to this Registration Statement.
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in the
capacities indicated on the 12th day of June 2000:
/s/ Anthony C. Dike
_______________________________
Anthony C. Dike, Chairman, Director, Chief Executive Officer
/s/ Russell Lyons
_______________________________
Russell Lyons, President, Director, Chief Technology Officer
/s/ Philip Falase
______________________________
Philip Falase, Chief Financial Officer, Director
/s/ Edward Williams
______________________
Edward Williams, Director
/s/ Dan Thornton
__________________________
Dan Thornton, Director
/s/ Dale W. Church
__________________________
Dale Church, Director
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The information contained in "Description of Capital Stock" in the
Registrant's Registration Statement on Form SB-2/A above, is hereby
Incorporated by reference.
Item 2. Exhibits.
The following exhibits are filed as part of this Registration Statement:
1. Articles of Incorporation of InterCare.com, Inc.
a California corporation, as amended to date,
incorporated by reference to Exhibit 3.1 to the
Registrant's Form SB-2/A Registration Statement.
2. Bylaws of InterCare.com, a California corporation
incorporated by reference to Exhibit 3.3 to the
Registrant's Form SB-2/A Registration Statement
3. OPINION RE LEGALITY
4. CONSENT OF INDEPENDENT ACCOUNTANT
5. Written Consent of Board of Directors of Meridian Holdings, Inc.,
approving the dividend stock distribution.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
InterCare.com, Inc.
Date: June 12,2000
By: /s/ Anthony C. Dike
___________________________________
Anthony C. Dike, Secretary
Chairman, Chief Executive Officer
<PAGE>
EX-3.1
ARTICLES OF INCORPORATION
I
The name of this corporation is MONET MEDICAL TESTING, INC.
II
The purpose of the corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporation Code.
III
The name and address in the State of California of this Corporation's initial
agent for service of process is:
NAME: Anthony DIKE
STREET Address: 1601 Centinela Avenue Suite 5
City: Inglewood State: California ZIP 90302
IV
This corporation is authorized to issue only one class of shares of stock; and
the total number of shares of which this corporation is authorized to issue is
100,000 (ONE HUNDRED THOUSAND)
/S/ Anthony C. Dike
__________________________________
Anthony C. Dike, CEO; Secretary
AND
AMENDED ARTICLES OF INCORPORATION
OF
MONET MEDICAL TESTING, INC.
ANTHONY DIKE AND DR. RAWSON certify
1. They constitute a majority of the directors of MONET MEDICAL TESTING,
INC., a California corporation.
2. They hereby adopt the following amendment of the Articles of
Incorporation of this corporation:
Article I is amended to read as follows:
"The name of this corporation is INTER-CARE DIAGNOSTIC, INC.
3. No directors were named in the original articles of incorporation of the
above-named corporation and Two (2) have been elected.
4. The corporation has issued no shares.
Each of the undersigned declares under penalty of perjury under the laws of
the state of California that the matters set forth in this certificate are true
and correct of our own knowledge.
Executed this 19th day of April 1991, at Los Angeles, California.
/s/ Anthony C. Dike
_____________________________________
Anthony C. Dike Chairman/CEO, Director
/s/ DR RAWSON
______________________________________
DR RAWSON Director
<PAGE>
AMENDED ARTICLES OF INCORPORATION
OF
INTER-CARE DIAGNOSTICS, INC.
The undersigned certifies that:
1. He is the president and secretary, respectively, of Inter-Care
Diagnostic, Inc., a California corporation.
2. Article Four of the Articles of Incorporation of this corporation is
amended to read as follows:
The corporation is authorized to issue two classes of shares of stock
designated "Common Stock" and "Preferred Stock," respectively. The total number
of shares of stock which this corporation shall have authority to issue is one
hundred twenty million (120,000,000) shares, consisting of one hundred million
(100,000,000) shares of Common Stock, and twenty million (20,000,000) shares of
Preferred Stock.
The Preferred Stock may be divided into such number of series as the Board
of Directors may determine. The Board of Directors is authorized to fix the
number of shares of any series of Preferred Shares and to determine the
designation of any such series. The Board of Directors is also authorized to
determine or alter the powers, preferences, rights, qualifications, limitations
and restrictions granted to or imposed upon any wholly unissued series of
Preferred Shares and, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any series, to increase or decrease (but not below the
number of shares of such series then outstanding) the number of shares of any
such series subsequent to the issue of shares of that series.
3. The foregoing amendments of the Articles of Incorporation have been duly
approved by the board of directors.
4. The foregoing amendments of the Articles of Incorporation have been duly
approved by the required vote of the shareholders in accordance with Section
902, California Corporations Code. The total number of outstanding shares of
the corporation is one hundred thousand (100,000). The number of shares of
voting in favor of the amendment equaled or exceeded the vote required. The
percentage vote required was more than 50 percent.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Date: December __, 1999
/s/ Anthony C. Dike
----------------------
Anthony C. Dike, President and Secretary
AMENDED ARTICLES OF INCORPORATION
OF
Inter-Care Diagnostics, Inc.
The undersigned certifies that:
1. He is the president and secretary, respectively, of Inter-Care
Diagnostics, Inc., a California corporation.
2. Article One of the Articles of Incorporation of this corporation
is amended to read as follows:
"The name of this corporation is InterCare.com, Inc."
3. The foregoing amendments of the Articles of Incorporation have been
duly approved by the board of directors.
4. The foregoing amendments of the Articles of Incorporation have been duly
approved by the required vote of the shareholders in accordance with section
902, California Corporations Code. The total numbers of outstanding shares of
the corporation is ten million (10,000,000). The numbers of shares of voting in
favor of the amendment equaled or exceeded the vote required. The percentage of
vote required was more than 50 percent.
We further declare under the penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our knowledge.
/s/ Anthony C. Dike
DATE:______________________ __________________________
Anthony C. Dike,
Chairman, Secretary
<PAGE>
EX 3.2
Bylaws
BYLAWS
------
for the regulation, except as otherwise provided
by statute or the Articles of Incorporation,
of
Intercare Diagnostics, Inc.
GENERAL PROVISIONS
Principal Executive Office. The Board of Directors shall designate the location
--------------------------
of the principal executive office of the corporation at any place within or
without the State of California. The Board of Directors shall have the power to
change the principal executive office to another location and may designate and
locate one or more subsidiary offices within or without the State of California.
Number of Directors. The number of directors of the corporation shall be two
---------------------
(2) until changed by a bylaw amending this Section 1.2 duly adopted by the vote
or written consent of a majority of the outstanding shares entitled to vote;
provided, however, that a bylaw reducing the number of directors to a number
less than five (5) cannot be adopted if the votes cast against its adoption at a
meeting or the shares not consenting in the case of action by written consent
are equal to more than 16-2/3 percent of the outstanding shares entitled to
vote.
Name. The name of the corporation shall be "Intercare Diagnostics, Inc." The
corporation shall be authorized to do business under any fictitious business
name, or variation of its legal name, as the Board of Directors may choose from
time to time.
SHARES AND SHAREHOLDERS
Meetings of Shareholders.
--------------------------
Place of Meetings. Meetings of shareholders shall be held at any place within
-------------------
or without the State of California designated by the Board of Directors. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
Annual Meetings. An annual meeting of the shareholders of the corporation shall
----------------
be held on such date and at such time as shall be designated by the Board of
Directors. Should said day fall upon a legal holiday, the annual meeting of
shareholders shall be held at the same time on the next day thereafter ensuing
which is a full business day. At each annual meeting directs shall be
elected, and any other proper business may be transacted.
Special Meetings. Special meetings of the shareholders may be called by the
-----------------
Board of Directors, the chairman of the board, the president, or by the holders
of shares entitled to cast not less than 10 percent of the votes at the meeting.
Upon request in writing to the chairman of the board, the president, any vice
president or the secretary by any person (other than the board) entitled to call
a special meeting of shareholders, the officer forthwith shall cause notice to
be given to the shareholders entitled to vote that a meeting will be held at a
time requested by the person or persons calling the meeting, not less than 35
nor more than 60 days after the receipt of the request. If the notice is not
given within 20 days after receipt of the request, the persons entitled to call
the meeting may give the notice.
Notice of Meetings. Notice of any shareholders' meeting shall be given not less
------------------
than 10 nor more than 60 days before the date of the meeting to each shareholder
entitled to vote thereat. Such notice shall state the place, date and hour of
the meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (ii) in
the case of the annual meeting, those matters which the Board, at the time of
the giving of the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected shall include the
names of nominees intended at the time of the notice to be presented by the
board for election.
If action is proposed to be taken at any meeting, which action is within
Sections 310, 902, 1201, 1900 or 2007 of the General Corporation Law of the
State of California, the notice shall also state the general nature of that
proposal.
Notice of a shareholders' meeting shall be given either personally or by
first-class mail, or other means of written communication, charges prepaid,
addressed to the shareholder at the address of such shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice; or if no such address appears or is given, at the place where
the principal executive office of the corporation is located or by publication
at least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice shall be deemed to have been
given at the time when delivered personally or deposited in the mail or sent by
other means of written communication. An affidavit of mailing of any notice
executed by the secretary, assistant secretary or any transfer agent, shall be
<PAGE>
prima facie evidence of the giving of the notice.
Adjourned Meeting and Notice Thereof. Any meeting of shareholders may be
----------------------------------------
adjourned from time to time by the vote of a majority of the shares represented
either in person or by proxy whether or not a quorum is present. When a
shareholders' meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. However, if the adjournment is for more than 45 days or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting.
Waiver of Notice. The transactions of any meeting of shareholders, however
------------------
called and noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present either in person
or by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business
to be transacted or the purpose of any annual or special meeting of
shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of
subparagraph (d) of Section 2.1 of this Article II, the waiver of notice or
consent shall state the general nature of the proposal. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Quorum. The presence in person or by proxy of the persons entitled to vote a
------
majority of the shares entitled to vote at any meeting shall constitute a quorum
for the transaction of business. If a quorum is present, the affirmative vote
of the majority of the shares represented and voting at the meeting (which
shares voting affirmatively also constitute at least a majority of the required
quorum) shall be the act of the shareholders, unless the vote of a greater
number or voting by classes is required by law or the Articles of Incorporation
of the corporation.
The shareholders present at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, provided that any
action taken (other than adjournment) must be approved by at least a majority of
the shares required to constitute a quorum.
Action Without a Meeting. Any action which may be taken at any annual or
---------------------------
special meeting of shareholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Notwithstanding the foregoing, directors may not be elected by written consent
except by unanimous written consent of all shares entitled to vote for the
election of directors, except as provided by Section 3.4 hereof.
Where the approval of shareholders is given without a meeting by less than
unanimous written consent, unless the consents of all shareholders entitled to
vote have been solicited in writing, the secretary shall give prompt notice of
the corporate action approved by the shareholders without a meeting. In the
case of approval of transactions pursuant to Section 310, 317, 1201 or 2007 of
the General Corporation Law of the State of California, the notice shall be
given at least 10 days before the consummation of any action authorized by that
approval. Such notice shall be given in the same manner as notice of
shareholders' meeting.
Voting of Shares.
------------------
In General. Except as otherwise provided in the Articles of Incorporation and
subject to subparagraph (b) hereof, each outstanding share, regardless of class,
shall be entitled to one (1) vote on each matter submitted to a vote of
shareholders.
Cumulative Voting. At any election of directors, every shareholder complying
------------------
with this paragraph (b) and entitled to vote may cumulate his or her votes and
give one (1) candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which the shareholder's shares are
entitled, or distribute the shareholder's votes on the same principle among as
many candidates as the shareholder thinks fit. No shareholder shall be entitled
to cumulate votes (i.e., cast for any one (1) or more candidates a number of
votes greater than the number of votes which such shareholder normally is
entitled to cast) unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate the
shareholder's votes. If any one (1) shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination. In any
election of directors, the candidates receiving the highest number of
affirmative votes up to the number of directors to be elected by such shares are
elected; votes against a director and votes withheld shall have no legal effect.
Election by Ballot. Elections for directors need not be by ballot unless a
--------------------
<PAGE>
shareholder demands election by ballot at the meeting and before the voting
begins.
Proxies. Every person entitled to vote shares may authorize another person or
-------
persons to act by proxy with respect to such shares. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy continues in full force and effect until
revoked by the person executing it prior to the vote pursuant thereto, except as
otherwise herein provided. Such revocation may be effected by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting, or as to any meeting by attendance at such meeting and voting in
person by the person executing the proxy. The dates contained on the forms of
proxy presumptively determine the order of execution, regardless of the postmark
dates on the envelopes in which they are mailed. A proxy is not revoked by the
death or incapacity of the maker unless, before the vote is counted, written
notice of such death or incapacity is received by the corporation. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Sections 705(e) and 705(f) of the California
General Corporation Law.
Inspectors of Election.
------------------------
Appointment. In advance of any meeting of shareholders the Board may appoint
-----------
inspectors of election to act at the meeting and any adjournment thereof. If
inspectors of election are not so appointed, or if any persons so appointed fail
to appear or refuse to act, the chairman of any meeting of shareholders may, and
on the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse) at
the meeting. The number of inspectors shall be either one (1) or three (3). If
appointed at a meeting on the request of one (1) or more shareholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one (1) or three (3) inspectors are to be appointed.
Duties. The inspectors of election shall determine the number of shares
------
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum and the authenticity, validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders. The inspectors of election shall perform
their duties impartially, in good faith, to the best of their ability and as
expeditiously as is practical. If there are three inspectors of election, the
decision, act or certificate of a majority is effective in all respects as the
decision, act or certificate of all. Any report or certificate made by the
inspectors of election is prima facie evidence of the facts stated therein.
Record Date. In order that the corporation may determine the shareholders
------------
entitled to notice of any meeting or to vote or entitled to receive payment of
any dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
The record date for determining shareholders entitled to notice of or to vote at
a meeting of shareholders shall be at the close of business on the business day
next preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
The record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, when no prior action by the Board
has been taken, shall be the day on which the first written consent is given.
The record date for determining shareholders for any other purpose shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto, or the 60th day prior to the date of such other action,
whichever is later.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless the
board fixes a new record date for the adjourned meeting, but the board shall fix
a new record date if the meeting is adjourned for more than 45 days from the
date set for the original meeting.
Shareholders at the close of business on the record date are entitled to notice
and to vote or to receive the dividend, distribution or allotment of rights or
to exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date, except as
otherwise provided in the Articles of Incorporation or by agreement or in the
California General Corporation Law.
Share Certificates.
-------------------
In General. The corporation shall issue a certificate or certificates
representing shares of its capital stock. Each certificate so issued shall be
signed in the name of the corporation by the chairman or vice chairman of the
board or the president or a vice president and by the chief financial officer or
an assistant treasurer or the secretary or any assistant secretary, shall state
the name of the record owner thereof and shall certify the number of shares and
<PAGE>
the class or series of shares represented thereby. Any or all of the signatures
on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has 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 such person were an officer, transfer agent or registrar at the
date of issue.
Two or More Classes or Series. If the shares of the corporation are classified
------------------------------
or if any class of shares has two or more series, there shall appear on the
certificate one (1) of the following:
A statement of the rights, preferences, privileges, and restrictions granted to
or imposed upon the respective classes or series of shares authorized to be
issued and upon the holders thereof; or
A summary of such rights, preferences, privileges and restrictions with
reference to the provisions of the Articles of Incorporation and any
certificates of determination establishing the same; or
A statement setting forth the office or agency of the corporation from which
shareholders may obtain upon request and without charge, a copy of the statement
referred to in subparagraph (1).
Special Restrictions. There shall also appear on the certificate (unless stated
--------------------
or summarized under subparagraph (1) or (2) of subparagraph (b) above) the
statements required by all of the following clauses to the extent applicable:
The fact that the shares are subject to restrictions upon transfer.
If the shares are assessable, a statement that they are assessable.
If the shares are not fully paid, a statement of the total consideration to be
paid therefor and the amount paid thereon.
The fact that the shares are subject to a voting agreement or an irrevocable
proxy or restrictions upon voting rights contractually imposed by the
corporation.
The fact that the shares are redeemable.
The fact that the shares are convertible and the period for conversion.
Transfer of Certificates. Where a certificate for shares is presented to the
--------------------------
corporation or its transfer clerk or transfer agent with a request to register a
--
transfer of shares, the corporation shall register the transfer, cancel the
certificate presented, and issue a new certificate if: (a) the security is
endorsed by the appropriate person or persons; (b) reasonable assurance is given
that those endorsements are genuine and effective; (c) the corporation has no
notice of adverse claims or has discharged any duty to inquire into such adverse
claims; (d) any applicable law relating to the collection of taxes has been
complied with; (e) the transfer is not in violation of any federal or state
securities law; and (f) the transfer is in compliance with any applicable
agreement governing the transfer of the shares.
Lost Certificates. Where a certificate has been lost, destroyed or wrongfully
------------------
taken, the corporation shall issue a new certificate in place of the original if
the owner: (a) so requests before the corporation has notice that the
certificate has been acquired by a bona fide purchaser; (b) files with the
corporation a sufficient indemnity bond, if so requested by the Board of
Directors; and (c) satisfies any other reasonable requirements as may be imposed
by the Board. Except as above provided, no new certificate for shares shall be
issued in lieu of an old certificate unless the corporation is ordered to do so
by a court in the judgment in an action brought under Section 419(b) of the
California General Corporation Law.
DIRECTORS
Powers. Subject to the provisions of the California General Corporation Law and
------
the Articles of Incorporation, the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised by or under the direction
of the Board of Directors. The Board may delegate the management of the
day-to-day operations of the business of the corporation to a management company
or other person provided that the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised under the ultimate
direction of the Board.
Committees of the Board. The Board may, by resolution adopted by a majority of
------------------------
the authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board. The
Board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent member at any meeting of the committee.
The appointment of members or alternate members of a committee requires the vote
of a majority of the authorized number of directors. Any such committee, to the
extent provided in the resolution of the Board, shall have all the authority of
the Board, except with respect to:
The approval of any action which also requires, under the California General
Corporation Law, shareholders' approval or approval of the outstanding shares;
The filling of vacancies on the Board or in any committee.
The fixing of compensation of the directors for serving on the Board or on any
committee.
The amendment or repeal of bylaws or the adoption of new bylaws.
The amendment or repeal of any resolution of the Board which by its express
<PAGE>
terms is not so amendable or repealable.
A distribution (within the meaning of the California General Corporation Law) to
the shareholders of the corporation, except at a rate or in a periodic amount or
within a price range determined by the Board.
The appointment of other committees of the Board or the members thereof.
Election and Term of Office. The directors shall be elected at each annual
-------------------------------
meeting of shareholders but, if any such annual meeting is not held or the
directors are not elected thereat, the directors may be elected at any special
meeting of shareholders held for that purpose. Each director, including a
director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until a successor has been elected and qualified.
Vacancies. Except for a vacancy created by the removal of a director, vacancies
---------
on the Board may be filled by approval of the Board or, if the number of
directors then in office is less than a quorum, by (a) the unanimous written
consent of the directors then in office, (b) the affirmative vote of a majority
of the directors then in office at a meeting held pursuant to notice or waivers
of notice under the California General Corporation Law, or (c) a sole remaining
director. The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors, but any such election
by written consent requires the consent of a majority of the outstanding shares
entitled to vote.
The Board of Directors shall have the power to declare vacant the office of a
director who has been declared of unsound mind by an order of court, or
convicted of a felony.
Removal. Any or all of the directors may be removed without cause if such
-------
removal is approved by the vote of a majority of the outstanding shares entitled
to vote, except that no director may be removed (unless the entire board is
removed) when the votes cast against removal, or not consenting in writing to
such removal, would be sufficient to elect such director if voted cumulatively
at an election at which the same total number of votes were cast (or, if such
action is taken by written consent, all shares entitled to vote were voted) and
the entire number of directors authorized at the time of the director's most
recent election were then being elected.
Resignation. Any director may resign effective upon giving written notice to
-----------
the chairman of the board, the president, the secretary or the Board of
Directors of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Meetings of the Board of Directors and Committees.
--------------------------------------------------------
Regular Meetings. Regular meetings of the Board of Directors may be held
-----------------
without notice at such time and place within or without the State as may be
designated from time to time by resolution of the Board or by written consent of
all members of the Board or in these bylaws.
Organization Meeting. Immediately following each annual meeting of shareholders
--------------------
the Board of Directors shall hold a regular meeting for the purpose of
organization, election of officers, and the transaction of other business.
Notice of such meetings is hereby dispensed with.
Special Meetings. Special meetings of the Board of Directors for any purpose or
----------------
purposes may be called at any time by the chairman of the board or the president
or, by any vice president or the secretary or any two directors.
Notices; Waivers. Special meetings shall be held upon four (4) days' notice by
-----------------
mail or forty-eight (48) hours' notice delivered personally or by telephone,
including a voice messaging system or other system or technology designed to
record and communicate messages, telegraph, facsimile, electronic mail, or other
electronic means. Notice of a meeting need not be given to any director who
signs a waiver of notice or a consent to holding the meeting or an approval of
the minutes thereof, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Adjournment. A majority of the directors present, whether or not a quorum is
-----------
present, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than 24 hours, notice of such adjournment to another time and
place shall be given prior to the time of the adjourned meeting to the directors
who were not present at the time of adjournment.
Place of Meeting. Meetings of the Board may be held at any place within or
------------------
without the state which has been designated in the notice of the meeting or, if
not stated in the notice or there is no notice, then such meeting shall be held
at the principal executive office of the corporation, or such other place
designated by resolution of the Board.
<PAGE>
Presence by Conference Telephone Call. Members of the Board may participate in
--------------------------------------
a meeting through use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another. Such participation constitutes presence in person at such meeting.
Quorum. A majority of the authorized number of directors constitutes a quorum
------
of the Board for the transaction of business. Every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, unless a greater number
be required by law or by the Articles of Incorporation. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
Action Without Meeting. Any action required or permitted to be taken by the
------------------------
Board of Directors may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
Committee Meetings. The provisions of Sections 3.7 and 3.8 of these bylaws
-------------------
apply also to committees of the Board and action by such committees, mutatis
mutandis.
OFFICERS
Officers. The officers of the corporation shall consist of a chairman of the
--------
board or a president, or both, a secretary, a chief financial officer, and such
additional officers as may be elected or appointed in accordance with Section
4.3 of these bylaws and as may be necessary to enable the corporation to sign
instruments and share certificates. Any number of offices may be held by the
same person.
Elections. All officers of the corporation, except such officers as may be
---------
otherwise appointed in accordance with Section 4.3, shall be chosen by the Board
of Directors, and shall serve at the pleasure of the Board of Directors, subject
to the rights, if any, of an officer under any contract of employment.
Other Officers. The Board of Directors, the chairman of the board, or the
---------------
president at their or his discretion, may appoint one (1) or more vice
presidents, one (1) or more assistant secretaries, a treasurer, one (1) or more
assistant treasurers, or such other officers as the business of the corporation
may require, each of whom shall hold office for such period, have such authority
and perform such duties as the Board of Directors, the chairman of the board, or
the president, as the case may be, may from time to time determine.
Removal. Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
Board of Directors, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors, without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party.
Resignation. Any officer may resign at any time by giving written notice to the
-----------
Board of Directors or to the president, or to the secretary of the corporation
without prejudice to the rights, if any, of the corporation under any contract
to which the officer is a party. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Vacancies. A vacancy in any office because of death, resignation, removal,
---------
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
Chairman of the Board. The chairman of the board, if there shall be such an
------------------------
officer, shall, if present, preside at all meetings of the Board of Directors
and exercise and perform such other powers and duties as may be from time to
time assigned to him by the Board of Directors. If there is no president, the
chairman of the board shall in addition be the chief executive officer of the
corporation and shall have the powers and duties prescribed in Section 4.8
below.
President. Subject to such supervisory powers, if any, as may be given by the
---------
Board of Directors to the chairman of the board, if there be such an officer,
the president shall __ be general manager and chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and affairs of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be none, at all meetings of
the Board of Directors. He shall be ex-officio a member of all the standing
committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or these bylaws.
<PAGE>
Vice President. In the absence of the president or in the event of the
---------------
president's inability or refusal to act, the vice president, or in the event
there be more than one (1) vice president, the vice president designated by the
Board of Directors, or if no such designation is made, in order of their
election, shall perform the duties of president and when so acting, shall have
all the powers of and be subject to all the restrictions upon the president.
Any vice president shall perform such other duties as from time to time may be
assigned to such vice president by the president or the Board of Directors.
Secretary. The secretary shall keep or cause to be kept the minutes of
---------
proceedings and record of shareholders, as provided for and in accordance with
Section 5.1(a) of these bylaws.
The secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the Board of Directors required by these bylaws or by
law to be given, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors.
Chief Financial Officer. The chief financial officer shall have general
-------------------------
supervision, direction and control of the financial affairs of the corporation
and shall have such other powers and duties as may be prescribed by the Board of
Directors or these bylaws. In the absence of a named treasurer, the chief
financial officer shall also have the powers and duties of the treasurer as
hereinafter set forth and shall be authorized and empowered to sign as treasurer
in any case where such officer's signature is required.
Treasurer. The treasurer shall keep or cause to be kept the books and records
---------
of account as provided for and in accordance with Section 5.1(a) of these
bylaws. The books of account shall at all reasonable times be open to
inspection by any director.
The treasurer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositories as may be designated by
the Board of Directors. He shall disburse the funds of the corporation as may
be ordered by the Board of Directors, shall render to the president and
directors, whenever they request it, an account of all of his transactions as
treasurer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or these bylaws. In the absence of a named chief financial officer,
the treasurer shall be deemed to be the chief financial officer and shall have
the powers and duties of such office as herein above set forth.
MISCELLANEOUS
Records and Reports.
---------------------
Books of Account and Proceedings. The corporation shall keep adequate and
------------------------------------
correct books and records of account and shall keep minutes of the proceedings
of its shareholders, Board and committees of the board and shall keep at its
principal executive office, or at the office of its transfer agent or registrar,
a record of its shareholders, giving the names and addresses of all shareholders
and the number and class of shares held by each. Such minutes shall be kept in
written form. Such other books and records shall be kept either in written form
or in any other form capable of being converted into written form.
Annual Report. An annual report to shareholders referred to in Section 1501 of
--------------
the California General Corporation Law is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the Board of Directors from issuing
annual or other periodic reports to the shareholders of the corporation as they
consider appropriate.
Shareholders' Requests for Financial Reports. If no annual report for the last
---------------------------------------------
fiscal year has been sent to shareholders, the corporation shall, upon the
written request of any shareholder made more than 120 days after the close of
that fiscal year, deliver or mail to the person making the request within 30
days thereafter the financial statements for that year required by Section
1501(a) of the California General Corporation Law. Any shareholder or
shareholders holding at least five (5) percent of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
income statement of the corporation for the three-month, six-month or nine-month
period of the current fiscal year ended more than 30 days prior to the date of
the request and a balance sheet of the corporation as of the end of such period,
and the corporation shall deliver or mail the statements to the person making
the request within 30 days thereafter. A copy of the statements shall be kept
on file in the principal office of the corporation for 12 months and they shall
be exhibited at all reasonable times to any shareholder demanding an examination
of them or a copy shall be mailed to such shareholder upon demand.
Rights of Inspection.
----------------------
By Shareholders.
----------------
Record of Shareholders. Any shareholder or shareholders holding at least five
------------------------
(5) percent in the aggregate of the outstanding voting shares of the corporation
or who hold at least one (1) percent of such voting shares and have filed a
Schedule 14A with the United States Securities and Exchange Commission shall
have an absolute right to do either or both of the following: (i) inspect and
copy the record of shareholders' names and addresses and shareholdings during
<PAGE>
usual business hours upon five (5) business days' prior written demand upon the
corporation, or (ii) obtain from the transfer agent for the corporation, upon
written demand and upon the tender of its usual charges for such a list (the
amount of which charges shall be stated to the shareholder by the transfer agent
upon request), a list of the shareholders' names and addresses, who are entitled
to vote for the election of directors, and their shareholdings, as of the most
recent record date for which it has been compiled or as of a date specified by
the shareholder subsequent to the date of demand. The list shall be made
available on or before the later of five (5) business days after demand is
received or the date specified therein as the date as of which the list is to be
compiled.
The record of shareholders shall also be open to inspection and copying by
any shareholder or holder of a voting trust certificate at any time during usual
business hours upon written demand on the corporation, for a purpose reasonably
related to such holder's interests as a shareholder or holder of a voting trust
certificate.
Corporate Records. The accounting books and records and minutes of proceedings
------------------
of the shareholders and the Board and committees of the board shall be open to
inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate. This right of
inspection shall also extend to the records of any subsidiary of the
corporation.
Bylaws. The corporation shall keep at its principal executive office in this
------
state, the original or a copy of its bylaws as amended to date, which shall be
open to inspection by the shareholders at all reasonable times during office
hours.
By Directors. Every director shall have the absolute right at any reasonable
-------------
time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the corporation of which such person is a
director and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and the
right of inspection includes the right to copy and make extracts.
Checks, Drafts, Etc. All checks, drafts or other orders for payment of money,
----------------------
notes or other evidences of indebtedness, issued in the name of or payable to
the corporation, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
Board of Directors.
Representation of Shares of Other Corporations. The chairman of the board, if
------------------------------------------------
any, president or any vice president of the corporation, or any other person
authorized to do so by the chairman of the board, president or any vice
president, is authorized to vote, represent and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted to said officers to vote or represent on behalf of the corporation any
and all shares held by the corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
Indemnification and Insurance.
-------------------------------
Right to Indemnification. Each person who was or is made a party to or is
--------------------------
threatened to be made a party to or is involuntarily involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving (during such person's tenure as director
or officer) at the request of the corporation, any other corporation,
partnership, joint venture, trust or other enterprise in any capacity, whether
the basis of a Proceeding is an alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the corporation to the
fullest extent authorized by California General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final disposition;
provided, however, that, if California General Corporation Law requires, the
payment of such expenses in advance of the final disposition of a Proceeding
shall be made only upon receipt by the corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. No amendment to or repeal of this
Section 5.5 shall apply to or have any effect on any right to indemnification
<PAGE>
provided hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
Right of Claimant to Bring Suit. If a claim for indemnity under paragraph (a)
---------------------------------
of this Section is not paid in full by the corporation within 90 days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim including reasonable
attorneys' fees incurred in connection therewith. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it permissible
under California General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in California General Corporation Law,
nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Non-Exclusivity of Rights. The rights conferred in this Section shall not be
---------------------------
exclusive of any other rights which any director, officer, employee or agent may
have or hereafter acquire under any statute, provision of the Articles of
Incorporation, bylaw, agreement, vote of shareholders or disinterested directors
or otherwise, to the extent the additional rights to indemnification are
authorized in the Articles of Incorporation of the corporation.
Insurance. In furtherance and not in limitation of the powers conferred by
---------
statute:
the corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify the person against that expense,
liability or loss under the California General Corporation Law.
the corporation may create a trust fund, grant a security interest and/or use
other means (including, without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into contracts providing
indemnification to the full extent authorized or permitted by law and including
as part thereof provisions with respect to any or all of the foregoing to ensure
the payment of such amounts as may become necessary to effect indemnification as
provided therein, or elsewhere.
Indemnification of Employees and Agents of the Corporation. The corporation
--------------------------------------------------------------
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, including the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final disposition,
to any employee or agent of the corporation to the fullest extent of the
provisions of this Section or otherwise with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
Employee Stock Purchase Plans. The corporation may adopt and carry out a stock
------------------------------
purchase plan or agreement or stock option plan or agreement providing for the
issue and sale for such consideration as may be fixed of its unissued shares, or
of issued shares Acquired or to be acquired, to one (1) or more of the employees
or directors of the corporation or of a subsidiary or to a trustee on their
behalf and for the payment for such shares in installments or at one (1) time,
and may provide for aiding any such persons in paying for such shares by
compensation for services rendered, promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or agreement may
include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment, subject
to the provisions of the California General Corporation Law, restrictions upon
transfer of the shares and the time limits of and termination of the plan.
Time Notice Given or Sent. Any reference in these Bylaws to the time a notice
---------------------------
is given or sent means, unless otherwise expressly provided herein or by law,
(a) the time a written notice by mail is deposited in the United States mails,
postage prepaid; or (b) the time any other written notice, including facsimile,
telegram, or electronic mail message, is personally delivered to the recipient
or is delivered to a common carrier for transmission, or actually transmitted by
the person giving the notice by electronic means, to the recipient; or (c) the
time any oral notice is communicated, in person or by telephone, including a
voice messaging system or other system or technology designed to record and
<PAGE>
communicate messages, or wireless, to the recipient, including the recipient's
designated voice mailbox or address on such system, or to a person at the office
of the recipient who the person giving the notice has reason to believe will
promptly communicate it to the recipient.
Construction and Definitions. Unless the context otherwise requires, the
------------------------------
general provisions, rules of construction and definitions contained in the
California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of the foregoing, the masculine gender
includes the feminine and neuter, the singular number includes the plural and
the plural number includes the singular, and the term "person" includes a
corporation as well as a natural person.
AMENDMENTS
Power of Shareholders. New bylaws may be adopted or these bylaws may be amended
---------------------
or repealed by the vote of shareholders entitled to exercise a majority of the
voting power of the corporation or by the written assent of such shareholders,
except as otherwise provided by law or by the Articles of Incorporation.
Power of Directors. Subject to the right of shareholders as provided in Section
------------------
6.01 to adopt, amend or repeal bylaws, any bylaw may be adopted, amended or
repealed by the Board of Directors other than a bylaw or amendment thereof
changing the authorized number of directors, if such number is fixed, or the
maximum-minimum limits thereof, if an indefinite number.
The undersigned, as the Incorporator of _______________________, hereby adopts
the foregoing bylaws as the bylaws of said corporation.
Dated as of April 19 1991.
______________________________
, Incorporator
The undersigned, constituting the Board of Directors of __________________,
hereby adopt the foregoing bylaws as the bylaws of said corporation.
Dated as of April 19, 1991.
______________________________
,Director
______________________________
,Director
,
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of INTER-CARE
DIAGNOSTICS, INC., and that the foregoing bylaws were adopted as the bylaws of
said corporation as of the day of April 19th, 1991, by the Board of Directors
of said corporation.
Dated as of April 19th, 1991
/s/ Anthony C. Dike
----------------------
Anthony C. Dike,
Chairman/CEO and Secretary
<PAGE>
------
BYLAWS
------
for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of
INTER-CARE DIAGNOSTICS, INC.
-------------------------------
a California corporation
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
PAGE
----
ARTICLE I. GENERAL PROVISIONS 63
Section 1.1 Principal Executive Office 63
Section 1.2 Number of Directors 63
ARTICLE II. SHARES AND SHAREHOLDERS 63
Section 2.1 Meetings of Shareholders. 63
(a) Place of Meetings. 63
(b) Annual Meetings 63
(c) Special Meetings 63
(d) Notice of Meetings. 63
(e) Adjourned Meeting and Notice Thereof 64
(f) Waiver of Notice 64
(g) Quorum 64
Section 2.2 Action Without a Meeting 64
Section 2.3 Voting of Shares. 64
(a) In General 64
(b) Cumulative Voting 64
(c) Election by Ballot 65
Section 2.4 Proxies 65
Section 2.5 Inspectors of Election. 65
(a) Appointment 65
(b) Duties 65
Section 2.6 Record Date 65
Section 2.7 Share Certificates. 66
(a) In General 66
(b) Two or More Classes or Series 66
(c) Special Restrictions 66
Section 2.8 Transfer of Certificates 66
Section 2.9 Lost Certificates 66
ARTICLE III. DIRECTORS 66
Section 3.1 Powers 66
Section 3.2 Committees of the Board 67
Section 3.3 Election and Term of Office 67
Section 3.4 Vacancies 67
Section 3.5 Removal 67
Section 3.6 Resignation 67
Section 3.7 Meetings of the Board of Directors and Committees. 67
(a) Regular Meetings 67
(b) Organization Meeting 67
(c) Special Meetings 67
(d) Notices; Waivers 67
(e) Adjournment 68
(f) Place of Meeting 68
(g) Presence by Conference Telephone Call 68
(h) Quorum 68
Section 3.8 Action Without Meeting 68
Section 3.9 Committee Meetings 68
ARTICLE IV. OFFICERS 68
Section 4.1 Officers 68
Section 4.2 Elections 68
Section 4.3 Other Officers 68
Section 4.4 Removal 68
Section 4.5 Resignation 68
Section 4.6 Vacancies 68
Section 4.7 Chairman of the Board 69
Section 4.8 President 69
Section 4.9 Vice President 69
Section 4.10 Secretary 69
Section 4.11 Chief Financial Officer 69
Section 4.12 Treasurer 69
ARTICLE V. MISCELLANEOUS 69
Section 5.1 Records and Reports. 69
(a) Books of Account and Proceedings 69
(b) Annual Report 69
(c) Shareholders' Requests for Financial Reports 70
Section 5.2 Rights of Inspection. 70
(a) By Shareholders. 70
<PAGE>
(b) By Directors 70
Section 5.3 Checks, Drafts, Etc. 70
Section 5.4 Representation of Shares of Other Corporations 70
Section 5.5 Indemnification and Insurance. 71
(a) Right to Indemnification 71
(b) Right of Claimant to Bring Suit 71
(c) Non-Exclusivity of Rights 71
(d) Insurance 71
(e) Indemnification of Employees and Agents of the Corporation 72
Section 5.6 Employee Stock Purchase Plans. 72
Section 5.7 Time Notice Given or Sent 72
Section 5.8 Construction and Definitions 72
ARTICLE VI. AMENDMENTS 72
Section 6.1 Power of Shareholders 72
Section 6.2 Power of Directors 72
</TABLE>
<PAGE>
AMENDED BYLAWS
--------------
for the regulation, except as otherwise provided
by statute or the Articles of Incorporation,
of
InterCare.com, Inc.
PRINCIPAL EXECUTIVE OFFICE. THE BOARD OF DIRECTORS SHALL DESIGNATE THE LOCATION
--------------------------
OF THE principal executive office of the corporation at any place within or
without the State of California. The Board of Directors shall have the power to
change the principal executive office to another location and may designate and
locate one or more subsidiary offices within or without the State of California.
Number of Directors. The number of directors of the corporation shall be two
---------------------
(2) until changed by a bylaw amending this Section 1.2 duly adopted by the vote
or written consent of a majority of the outstanding shares entitled to vote;
provided, however, that a bylaw reducing the number of directors to a number
less than five (5) cannot be adopted if the votes cast against its adoption at a
meeting or the shares not consenting in the case of action by written consent
are equal to more than 16-2/3 percent of the outstanding shares entitled to
vote.
Name. The name of the corporation shall be "InterCare.com, Inc." The
----
corporation shall be authorized to do business under any fictitious business
name, or variation of its legal name, as the Board of Directors may choose from
time to time.
SHARES AND SHAREHOLDERS
Meetings of Shareholders.
--------------------------
Place of Meetings. Meetings of shareholders shall be held at any place within
-------------------
or without the State of California designated by the Board of Directors. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
Annual Meetings. An annual meeting of the shareholders of the corporation shall
----------------
be held on such date and at such time as shall be designated by the Board of
Directors. Should said day fall upon a legal holiday, the annual meeting of
shareholders shall be held at the same time on the next day thereafter ensuing
which is a full business day. At each annual meeting directors shall be
elected, and any other proper business may be transacted.
Special Meetings. Special meetings of the shareholders may be called by the
-----------------
Board of Directors, the chairman of the board, the president, or by the holders
of shares entitled to cast not less than 10 percent of the votes at the meeting.
Upon request in writing to the chairman of the board, the president, any vice
president or the secretary by any person (other than the board) entitled to call
a special meeting of shareholders, the officer forthwith shall cause notice to
be given to the shareholders entitled to vote that a meeting will be held at a
time requested by the person or persons calling the meeting, not less than 35
nor more than 60 days after the receipt of the request. If the notice is not
given within 20 days after receipt of the request, the persons entitled to__call
the meeting may give the notice.
Notice of Meetings. Notice of any shareholders' meeting shall be given not less
------------------
than 10 nor more than 60 days before the date of the meeting to each shareholder
entitled to vote thereat. Such notice shall state the place, date and hour of
the meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (ii) in
the case of the annual meeting, those matters which the Board, at the time of
the giving of the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected shall include the
names of nominees intended at the time of the notice to be presented by the
board for election.
If action is proposed to be taken at any meeting, which action is within
Sections 310, 902, 1201, 1900 or 2007 of the General Corporation Law of the
State of California, the notice shall also state the general nature of that
proposal.
Notice of a shareholders' meeting shall be given either personally or by
first-class mail, or other means of written communication, charges prepaid,
addressed to the shareholder at the address of such shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice; or if no such address appears or is given, at the place where
the principal executive office of the corporation is located or by publication
at least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice shall be deemed to have been
given at the time when delivered personally or deposited in the mail or sent by
other means of written communication. An affidavit of mailing of any notice
executed by the secretary, assistant secretary or any transfer agent, shall be
prima facie evidence of the giving of the notice.
Adjourned Meeting and Notice Thereof. Any meeting of shareholders may be
----------------------------------------
adjourned from time to time by the vote of a majority of the shares represented
either in person or by proxy whether or not a quorum is present. When a
<PAGE>
shareholders' meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting. However, if the adjournment is for more than 45 days or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting.
Waiver of Notice. The transactions of any meeting of shareholders, however
------------------
called and noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present either in person
or by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business
to be transacted or the purpose of any annual or special meeting of
shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of
subparagraph (d) of Section 2.1 of this Article II, the waiver of notice or
consent shall state the general nature of the proposal. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Quorum. The presence in person or by proxy of the persons entitled to vote a
------
majority of the shares entitled to vote at any meeting shall constitute a quorum
for the transaction of business. If a quorum is present, the affirmative vote
of the majority of the shares represented and voting at the meeting (which
shares voting affirmatively also constitute at least a majority of the required
quorum) shall be the act of the shareholders, unless the vote of a greater
number or voting by classes is required by law or the Articles of Incorporation
of the corporation.
The shareholders present at a duly called or held meeting at which a quorum
is present may continue to transact business until adjournment notwithstanding
the withdrawal of enough shareholders to leave less than a quorum, provided that
any action taken (other than adjournment) must be approved by at least a
majority of the shares required to constitute a quorum.
Action Without a Meeting. Any action which may be taken at any annual or
---------------------------
special meeting of shareholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Notwithstanding the foregoing, directors may not be elected by written consent
except by unanimous written consent of all shares entitled to vote for the
election of directors, except as provided by Section 3.4 hereof.
Where the approval of shareholders is given without a meeting by less than
unanimous written consent, unless the consents of all shareholders entitled to
vote have been solicited in writing, the secretary shall give prompt notice of
the corporate action approved by the shareholders without a meeting. In the
case of approval of transactions pursuant to Section 310, 317, 1201 or 2007 of
the General Corporation Law of the State of California, the notice shall be
given at least 10 days before the consummation of any action authorized by that
approval. Such notice shall be given in the same manner as notice of
shareholders' meeting.
Voting of Shares.
------------------
In General. Except as otherwise provided in the Articles of Incorporation and
subject to subparagraph (b) hereof, each outstanding share, regardless of class,
shall be entitled to one (1) vote on each matter submitted to a vote of
shareholders.
Cumulative Voting. At any election of directors, every shareholder complying
------------------
with this paragraph (b) and entitled to vote may cumulate his or her votes and
give one (1) candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which the shareholder's shares are
entitled, or distribute the shareholder's votes on the same principle among as
many candidates as the shareholder thinks fit. No shareholder shall be entitled
to cumulate votes (i.e., cast for any one (1) or more candidates a number of
votes greater than the number of votes which such shareholder normally is
entitled to cast) unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate the
shareholder's votes. If any one (1) shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination. In any
election of directors, the candidates receiving the highest number of
affirmative votes up to the number of directors to be elected by such shares are
elected; votes against a director and votes withheld shall have no legal effect.
Election by Ballot. Elections for directors need not be by ballot unless a
--------------------
shareholder demands election by ballot at the meeting and before the voting
begins.
<PAGE>
Proxies. Every person entitled to vote shares may authorize another person or
-------
persons to act by proxy with respect to such shares. No proxy shall be valid
after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy continues in full force and effect until
revoked by the person executing it prior to the vote pursuant thereto, except as
otherwise herein provided. Such revocation may be effected by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting, or as to any meeting by attendance at such meeting and voting in
person by the person executing the proxy. The dates contained on the forms of
proxy presumptively determine the order of execution, regardless of the postmark
dates on the envelopes in which they are mailed. A proxy is not revoked by the
death or incapacity of the maker unless, before the vote is counted, written
notice of such death or incapacity is received by the corporation. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Sections 705(e) and 705(f) of the California
General Corporation Law.
Inspectors of Election.
------------------------
Appointment. In advance of any meeting of shareholders the Board may appoint
-----------
inspectors of election to act at the meeting and any adjournment thereof. If
inspectors of election are not so appointed, or if any persons so appointed fail
to appear or refuse to act, the chairman of any meeting of shareholders may, and
on the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse) at
the meeting. The number of inspectors shall be either one (1) or three (3). If
appointed at a meeting on the request of one (1) or more shareholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one (1) or three (3) inspectors are to be appointed.
Duties. The inspectors of election shall determine the number of shares
------
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum and the authenticity, validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders. The inspectors of election shall perform
their duties impartially, in good faith, to the best of their ability and as
expeditiously as is practical. If there are three inspectors of election, the
decision, act or certificate of a majority is effective in all respects as the
decision, act or certificate of all. Any report or certificate made by the
inspectors of election is prima facie evidence of the facts stated therein.
Record Date. In order that the corporation may determine the shareholders
------------
entitled to notice of any meeting or to vote or entitled to receive payment of
any dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
prior to the date of such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
The record date for determining shareholders entitled to notice of or to vote at
a meeting of shareholders shall be at the close of business on the business day
next preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
The record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, when no prior action by the Board
has been taken, shall be the day on which the first written consent is given.
The record date for determining shareholders for any other purpose shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto, or the 60th day prior to the date of such other action,
whichever is later.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless the
board fixes a new record date for the adjourned meeting, but the board shall fix
a new record date if the meeting is adjourned for more than 45 days from the
date set for the original meeting.
Shareholders at the close of business on the record date are entitled to
notice and to vote or to receive the dividend, distribution or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the record date,
except as otherwise provided in the Articles of Incorporation or by agreement or
in the California General Corporation Law.
SHARE CERTIFICATES.
-------------------
In General. The corporation shall issue a certificate or certificates
-----------
representing shares of its capital stock. Each certificate so issued shall be
signed in the name of the corporation by the chairman or vice chairman of the
board or the president or a vice president and by the chief financial officer or
an assistant treasurer or the secretary or any assistant secretary, shall state
the name of the record owner thereof and shall certify the number of shares and
the class or series of shares represented thereby. Any or all of the signatures
<PAGE>
on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has 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 such person were an officer, transfer agent or registrar at the
date of issue.
Two or More Classes or Series. If the shares of the corporation are classified
------------------------------
or if any class of shares has two or more series, there shall appear on the
certificate one (1) of the following:
A statement of the rights, preferences, privileges, and restrictions granted to
or imposed upon the respective classes or series of shares authorized to be
issued and upon the holders thereof; or
A summary of such rights, preferences, privileges and restrictions with
reference to the provisions of the Articles of Incorporation and any
certificates of determination establishing the same; or
A statement setting forth the office or agency of the corporation from which
shareholders may obtain upon request and without charge, a copy of the statement
referred to in subparagraph (1).
Special Restrictions. There shall also appear on the certificate (unless stated
--------------------
or summarized under subparagraph (1) or (2) of subparagraph (b) above) the
statements required by all of the following clauses to the extent applicable:
The fact that the shares are subject to restrictions upon transfer.
If the shares are assessable, a statement that they are assessable.
If the shares are not fully paid, a statement of the total consideration to be
paid therefor and the amount paid thereon.
The fact that the shares are subject to a voting agreement or an irrevocable
proxy or restrictions upon voting rights contractually imposed by the
corporation.
The fact that __the shares are redeemable.
The fact that the shares are convertible and the period for conversion.
Transfer of Certificates. Where a certificate for shares is presented to the
--------------------------
corporation or its transfer clerk or transfer agent with a request to register a
--
transfer of shares, the corporation shall register the transfer, cancel the
certificate presented, and issue a new certificate if: (a) the security is
endorsed by the appropriate person or persons; (b) reasonable assurance is given
that those endorsements are genuine and effective; (c) the corporation has no
notice of adverse claims or has discharged any duty to inquire into such adverse
claims; (d) any applicable law relating to the collection of taxes has been
complied with; (e) the transfer is not in violation of any federal or state
securities law; and (f) the transfer is in compliance with any applicable
agreement governing the transfer of the shares.
Lost Certificates. Where a certificate has been lost, destroyed or wrongfully
------------------
taken, the corporation shall issue a new certificate in place of the original if
the owner: (a) so requests before the corporation has notice that the
certificate has been acquired by a bona fide purchaser; (b) files with the
corporation a sufficient indemnity bond, if so requested by the Board of
Directors; and (c) satisfies any other reasonable requirements as may be imposed
by the Board. Except as above provided, no new certificate for shares shall be
issued in lieu of an old certificate unless the corporation is ordered to do so
by a court in the judgment in an action brought under Section 419(b) of the
California General Corporation Law.
DIRECTORS
Powers. Subject to the provisions of the California General Corporation Law and
------
the Articles of Incorporation, the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised by or under the direction
of the Board of Directors. The Board may delegate the management of the
day-to-day operations of the business of the corporation to a management company
or other person provided that the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised under the ultimate
direction of the Board.
Committees of the Board. The Board may, by resolution adopted by a majority of
------------------------
the authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board. The
Board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent member at any meeting of the committee.
The appointment of members or alternate members of a committee requires the vote
of a majority of the authorized number of directors. Any such committee, to the
extent provided in the resolution of the Board, shall have all the authority of
the Board, except with respect to:
The approval of any action which also requires, under the California General
Corporation Law, shareholders' approval or approval of the outstanding shares;
The filling of vacancies on the Board or in any committee.
The fixing of compensation of the directors for serving on the Board or on any
committee.
The amendment or repeal of bylaws or the adoption of new bylaws.
The amendment or repeal of any resolution of the Board which by its express
terms is not so amendable or repealable.
A distribution (within the meaning of the California General Corporation Law) to
the shareholders of the corporation, except at a rate or in a periodic amount or
<PAGE>
within a price range determined by the Board.
The appointment of other committees of the Board or the members thereof.
Election and Term of Office. The directors shall be elected at each annual
-------------------------------
meeting of shareholders but, if any such annual meeting is not held or the
directors are not elected thereat, the directors may be elected at any special
meeting of shareholders held for that purpose. Each director, including a
director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until a successor has been elected and qualified.
Vacancies. Except for a vacancy created by the removal of a director, vacancies
---------
on the Board may be filled by approval of the Board or, if the number of
directors then in office is less than a quorum, by (a) the unanimous written
consent of the directors then in office, (b) the affirmative vote of a majority
of the directors then in office at a meeting held pursuant to notice or waivers
of notice under the California General Corporation Law, or (c) a sole remaining
director. The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors, but any such election
by written consent requires the consent of a majority of the outstanding shares
entitled to vote.
The Board of Directors shall have the power to declare vacant the office of
a director who has been declared of unsound mind by an order of court, or
convicted of a felony.
Removal. Any or all of the directors may be removed without cause if such
-------
removal is approved by the vote of a majority of the outstanding shares entitled
to vote, except that no director may be removed (unless the entire board is
removed) when the votes cast against removal, or not consenting in writing to
such removal, would be sufficient to elect such director if voted cumulatively
at an election at which the same total number of votes were cast (or, if such
action is taken by written consent, all shares entitled to vote were voted) and
the entire number of directors authorized at the time of the director's most
recent election were then being elected.
Resignation. Any director may resign effective upon giving written notice to
-----------
the chairman of the board, the president, the secretary or the Board of
Directors of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Meetings of the Board of Directors and Committees.
--------------------------------------------------------
Regular Meetings. Regular meetings of the Board of Directors may be held
-----------------
without notice at such time and place within or without the State as may be
designated from time to time by resolution of the Board or by written consent of
all members of the Board or in these bylaws.
Organization Meeting. Immediately following each annual meeting of shareholders
--------------------
the Board of Directors shall hold a regular meeting for the purpose of
organization, election of officers, and the transaction of other business.
Notice of such meetings is hereby dispensed with.
Special Meetings. Special meetings of the Board of Directors for any purpose or
----------------
purposes may be called at any time by the chairman of the board or the president
or, by any vice president or the secretary or any two directors.
Notices; Waivers. Special meetings shall be held upon four (4) days' notice by
-----------------
mail or forty-eight (48) hours' notice delivered personally or by telephone,
including a voice messaging system or other system or technology designed to
record and communicate messages, telegraph, facsimile, electronic mail, or other
electronic means. Notice of a meeting need not be given to any director who
signs a waiver of notice or a consent to holding the meeting or an approval of
the minutes thereof, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Adjournment. A majority of the directors present, whether or not a quorum is
-----------
present, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than 24 hours, notice of such adjournment to another time and
place shall be given prior to the time of the adjourned meeting to the directors
who were not present at the time of adjournment.
Place of Meeting. Meetings of the Board may be held at any place within or
------------------
without the state which has been designated in the notice of the meeting or, if
not stated in the notice or there is no notice, then such meeting shall be held
at the principal executive office of the corporation, or such other place
designated by resolution of the Board.
Presence by Conference Telephone Call. Members of the Board may participate in
--------------------------------------
a meeting through use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another. Such participation constitutes presence in person at such meeting.
Quorum. A majority of the authorized number of directors constitutes a quorum
------
<PAGE>
of the Board for the transaction of business. Every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, unless a greater number
be required by law or by the Articles of Incorporation. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
Action Without Meeting. Any action required or permitted to be taken by the
------------------------
Board of Directors may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
Committee Meetings. The provisions of Sections 3.7 and 3.8 of these bylaws
-------------------
apply also to committees of the Board and action by such committees, mutatis
mutandis.
OFFICERS
Officers. The officers of the corporation shall consist of a chairman of the
--------
board or a president, or both, a secretary, a chief financial officer, and such
additional officers as may be elected or appointed in accordance with Section
4.3 of these bylaws and as may be necessary to enable the corporation to sign
instruments and share certificates. Any number of offices may be held by the
same person.
Elections. All officers of the corporation, except such officers as may be
---------
otherwise appointed in accordance with Section 4.3, shall be chosen by the Board
of Directors, and shall serve at the pleasure of the Board of Directors, subject
to the rights, if any, of an officer under any contract of employment.
Other Officers. The Board of Directors, the chairman of the board, or the
---------------
president at their or his discretion, may appoint one (1) or more vice
presidents, one (1) or more assistant secretaries, a treasurer, one (1) or more
assistant treasurers, or such other officers as the business of the corporation
may require, each of whom shall hold office for such period, have such authority
and perform such duties as the Board of Directors, the chairman of the board, or
the president, as the case may be, may from time to time determine.
Removal. Subject to the rights, if any, of an officer under any contract of
-------
employment, any officer may be removed, either with or without cause, by the
Board of Directors, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors, without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party.
Resignation. Any officer may resign at any time by giving written notice to the
-----------
Board of Directors or to the president, or to the secretary of the corporation
without prejudice to the rights, if any, of the corporation under any contract
to which the officer is a party. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Vacancies. A vacancy in any office because of death, resignation, removal,
---------
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
Chairman of the Board. The chairman of the board, if there shall be such an
------------------------
officer, shall, if present, preside at all meetings of the Board of Directors
and exercise and perform such other powers and duties as may be from time to
time assigned to him by the Board of Directors. If there is no president, the
chairman of the board shall in addition be the chief executive officer of the
corporation and shall have the powers and duties prescribed in Section 4.8
below.
President. Subject to such supervisory powers, if any, as may be given by the
---------
Board of Directors to the chairman of the board, if there be such an officer,
the president shall be general manager and chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and affairs of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be none, at all meetings of
the Board of Directors. He shall be ex-officio a member of all the standing
committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or these bylaws.
Vice President. In the absence of the president or in the event of the
---------------
president's inability or refusal to act, the vice president, or in the event
there be more than one (1) vice president, the vice president designated by the
Board of Directors, or if no such designation is made, in order of their
election, shall perform the duties of president and when so acting, shall have
<PAGE>
all the powers of and be subject to all the restrictions upon the president.
Any vice president shall perform such other duties as from time to time may be
assigned to such vice president by the president or the Board of Directors.
Secretary. The secretary shall keep or cause to be kept the minutes of
---------
proceedings and record of shareholders, as provided for and in accordance with
Section 5.1(a) of these bylaws.
The secretary shall give, or cause to be given, notice of all meetings of
the shareholders and of the Board of Directors required by these bylaws or by
law to be given, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors.
Chief Financial Officer. The chief financial officer shall have general
-------------------------
supervision, direction and control of the financial affairs of the corporation
and shall have such other powers and duties as may be prescribed by the Board of
Directors or these bylaws. In __ the absence of a named treasurer, the chief
financial officer shall also have the powers and duties of the treasurer as
hereinafter set forth and shall be authorized and empowered to sign as treasurer
in any case where such officer's signature is required.
Treasurer. The treasurer shall keep or cause to be kept the books and records
---------
of account as provided for and in accordance with Section 5.1(a) of these
bylaws. The books of account shall at all reasonable times be open to
inspection by any director.
The treasurer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositories as may be designated by
the Board of Directors. He shall disburse the funds of the corporation as may
be ordered by the Board of Directors, shall render to the president and
directors, whenever they request it, an account of all of his transactions as
treasurer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or these bylaws. In the absence of a named chief financial officer,
the treasurer shall be deemed to be the chief financial officer and shall have
the powers and duties of such office herein above set forth.
MISCELLANEOUS
Records and Reports.
---------------------
Books of Account and Proceedings. The corporation shall keep adequate and
------------------------------------
correct books and records of account and shall keep minutes of the proceedings
of its shareholders, Board and committees of the board and shall keep at its
principal executive office, or at the office of its transfer agent or registrar,
a record of its shareholders, giving the names and addresses of all shareholders
and the number and class of shares held by each. Such minutes shall be kept in
written form. Such other books and records shall be kept either in written form
or in any other form capable of being converted into written form.
Annual Report. An annual report to shareholders referred to in Section 1501 of
--------------
the California General Corporation Law is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the Board of Directors from issuing
annual or other periodic reports to the shareholders of the corporation as they
consider appropriate.
Shareholders' Requests for Financial Reports. If no annual report for the last
---------------------------------------------
fiscal year has been sent to shareholders, the corporation shall, upon the
written request of any shareholder made more than 120 days after the close of
that fiscal year, deliver or mail to the person making the request within 30
days thereafter the financial statements for that year required by Section
1501(a) of the California General Corporation Law. Any shareholder or
shareholders holding at least five (5) percent of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
income statement of the corporation for the three-month, six-month or nine-month
period of the current fiscal year ended more than 30 days prior to the date of
the request and a balance sheet of the corporation as of the end of such period,
and the corporation shall deliver or mail the statements to the person making
the request within 30 days thereafter. A copy of the statements shall be kept
on file in the principal office of the corporation for 12 months and they shall
be exhibited at all reasonable times to any shareholder demanding an examination
of them or a copy shall be mailed to such shareholder upon demand.
Rights of Inspection.
----------------------
By Shareholders.
----------------
Record of Shareholders. Any shareholder or shareholders holding at least five
------------------------
(5) percent in the aggregate of the outstanding voting shares of the corporation
or who hold at least one (1) percent of such voting shares and have filed a
Schedule 14A with the United States Securities and Exchange Commission shall
have an absolute right to do either or both of the following: (i) inspect and
copy the record of shareholders' names and addresses and shareholdings during
usual business hours upon five (5) business days' prior written demand upon the
corporation, or (ii) obtain from the transfer agent for the corporation, upon
written demand and upon the tender of its usual charges for such a list (the
amount of which charges shall be stated to the shareholder by the transfer agent
upon request), a list of the shareholders' names and addresses, who are entitled
to vote for the election of directors, and their shareholdings, as of the most
<PAGE>
recent record date for which it has been compiled or as of a date specified by
the shareholder subsequent to the date of demand. The list shall be made
available on or before the later of five (5) business days after demand is
received or the date specified therein as the date as of which the list is to be
compiled. The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate at any time
during usual business hours upon written demand on the corporation, for a
purpose reasonably related to such holder's interests as a shareholder or holder
of a voting trust certificate.
Corporate Records. The accounting books and records and minutes of proceedings
------------------
of the shareholders and the Board and committees of the board shall be open to
inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate. This right of
inspection shall also extend to the records of any subsidiary of the
corporation.
Bylaws. The corporation shall keep at its principal executive office in this
------
state, the original or a copy of its bylaws as amended to date, which shall be
open to inspection by the shareholders at all reasonable times during office
hours.
By Directors. Every director shall have the absolute right at any reasonable
-------------
time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the corporation of which such person is a
director and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and the
right of inspection includes the right to copy and make extracts.
Checks, Drafts, Etc. All checks, drafts or other orders for payment of money,
----------------------
notes or other evidences of indebtedness, issued in the name of or payable to
the corporation, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
Board of Directors.
Representation of Shares of Other Corporations. The chairman of the board, if
------------------------------------------------
any, president or any vice president of the corporation, or any other person
authorized to do so by the chairman of the board, president or any vice
president, is authorized to vote, represent and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted to said officers to vote or represent on behalf of the corporation any
and all shares held by the corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
Indemnification and Insurance.
-------------------------------
Right to Indemnification. Each person who was or is made a party to or is
--------------------------
threatened to be made a party to or is involuntarily involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving (during such person's tenure as director
or officer) at the request of the corporation, any other corporation,
partnership, joint venture, trust or other enterprise in any capacity, whether
the basis of a Proceeding is an alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the corporation to the
fullest extent authorized by California General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final disposition;
provided, however, that, if California General Corporation Law requires, the
payment of such expenses in advance of the final disposition of a Proceeding
shall be made only upon receipt by the corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. No amendment to or repeal of this
Section 5.5 shall apply to or have any effect on any right to indemnification
provided hereunder with respect to any acts or omissions occurring prior to such
<PAGE>
amendment or repeal.
Right of Claimant to Bring Suit. If a claim for indemnity under paragraph (a)
---------------------------------
of this Section is not paid in full by the corporation within 90 days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim including reasonable
attorneys' fees incurred in connection therewith. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it permissible
under California General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in California General Corporation Law,
nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Non-Exclusivity of Rights. The rights conferred in this Section shall not be
---------------------------
exclusive of any other rights which any director, officer, employee or agent may
have or hereafter acquire under any statute, provision of the Articles of
Incorporation, bylaw, agreement, vote of shareholders or disinterested directors
or otherwise, to the extent the additional rights to indemnification are
authorized in the Articles of Incorporation of the corporation.
Insurance. In furtherance and not in limitation of the powers conferred by
---------
statute:
the corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify the person against that expense,
liability or loss under the California General Corporation Law.
the corporation may create a trust fund, grant a security interest and/or use
other means (including, without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into contracts providing
indemnification to the full extent authorized or permitted by law and including
as part thereof provisions with respect to any or all of the foregoing to ensure
the payment of such amounts as may become necessary to effect indemnification as
provided therein, or elsewhere.
Indemnification of Employees and Agents of the Corporation. The corporation
--------------------------------------------------------------
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, including the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final disposition,
to any employee or agent of the corporation to the fullest extent of the
provisions of this Section or otherwise with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
Employee Stock Purchase Plans. The corporation may adopt and carry out a stock
------------------------------
purchase plan or agreement or stock option plan or agreement providing for the
issue and sale for such consideration as may be fixed of its unissued shares, or
of issued shares Acquired or to be acquired, to one (1) or more of the employees
or directors of the corporation or of a subsidiary or to a trustee on their
behalf and for the payment for such shares in installments or at one (1) time,
and may provide for aiding any such persons in paying for such shares by
compensation for services rendered, promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or agreement may
include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment, subject
to the provisions of the California General Corporation Law, restrictions upon
transfer of the shares and the time limits of and termination of the plan.
Time Notice Given or Sent. Any reference in these Bylaws to the time a notice
---------------------------
is given or sent means, unless otherwise expressly provided herein or by law,
(a) the time a written notice by mail is deposited in the United States mails,
postage prepaid; or (b) the time any other written notice, including facsimile,
telegram, or electronic mail message, is personally delivered to the recipient
or is delivered to a common carrier for transmission, or actually transmitted by
the person giving the notice by electronic means, to the recipient; or (c) the
time any oral notice is communicated, in person or by telephone, including a
<PAGE>
voice messaging system or other system or technology designed to record and
communicate messages, or wireless, to the recipient, including the recipient's
designated voice mailbox or address on such system, or to a person at the office
of the recipient who the person giving the notice has reason to believe will
promptly communicate it to the recipient.
Construction and Definitions. Unless the context otherwise requires, the
------------------------------
general provisions, rules of construction and definitions contained in the
California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of the foregoing, the masculine gender
includes the feminine and neuter, the singular number includes the plural and
the plural number includes the singular, a the term "person" includes a
corporation as well as a natural person.
AMENDMENTS
Power of Shareholders. New bylaws may be adopted or these bylaws may be amended
---------------------
or repealed by the vote of shareholders entitled to exercise a majority of the
voting power of the corporation or by the written assent of such shareholders,
except as otherwise provided by law or by the Articles of Incorporation.
Power of Directors. Subject to the right of shareholders as provided in Section
------------------
6.01 to adopt, amend or repeal bylaws, any bylaw may be adopted, amended or
repealed by the Board of Directors other than a bylaw or amendment thereof
changing the authorized number of directors, if such number is fixed, or the
maximum-minimum limits thereof, if an indefinite number.
The undersigned, as the Incorporator of _______________________, hereby adopts
the foregoing bylaws as the bylaws of said corporation.
Dated as of December ___, 1999. ______________________________
, Incorporator
The undersigned, constituting the Board of Directors of __________________,
hereby adopt the foregoing bylaws as the bylaws of said corporation.
Dated as of December ___, 1999.. ______________________________
, Director
______________________________
, Director
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of INTERCARE.COM,
INC., and that the foregoing bylaws were adopted as the bylaws of said
corporation as of the day of December 31st, 1999, by the Board of Directors of
said corporation.
Dated as of December 31st, 1999.
/s/ Anthony C. Dike
----------------------
Anthony C. Dike,
Chairman/CEO and Secretary
<PAGE>
AMENDED BYLAWS
--------------
for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of
INTERCARE.COM, INC.
-------------------------------
a California corporation
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
PAGE
----
ARTICLE I. GENERAL PROVISIONS 63
Section 1.1 Principal Executive Office 63
Section 1.2 Number of Directors 63
ARTICLE II. SHARES AND SHAREHOLDERS 63
Section 2.1 Meetings of Shareholders. 63
(a) Place of Meetings. 63
(b) Annual Meetings 63
(c) Special Meetings 63
(d) Notice of Meetings. 63
(e) Adjourned Meeting and Notice Thereof 64
(f) Waiver of Notice 64
(g) Quorum 64
Section 2.2 Action Without a Meeting 64
Section 2.3 Voting of Shares. 64
(a) In General 64
(b) Cumulative Voting 64
(c) Election by Ballot 65
Section 2.4 Proxies 65
Section 2.5 Inspectors of Election. 65
(a) Appointment 65
(b) Duties 65
Section 2.6 Record Date 65
Section 2.7 Share Certificates. 66
(a) In General 66
(b) Two or More Classes or Series 66
(c) Special Restrictions 66
Section 2.8 Transfer of Certificates 66
Section 2.9 Lost Certificates 66
ARTICLE III. DIRECTORS 66
Section 3.1 Powers 66
Section 3.2 Committees of the Board 67
Section 3.3 Election and Term of Office 67
Section 3.4 Vacancies 67
Section 3.5 Removal 67
Section 3.6 Resignation 67
Section 3.7 Meetings of the Board of Directors and Committees. 67
(a) Regular Meetings 67
(b) Organization Meeting 67
(c) Special Meetings 67
(d) Notices; Waivers 67
(e) Adjournment 68
(f) Place of Meeting 68
(g) Presence by Conference Telephone Call 68
(h) Quorum 68
Section 3.8 Action Without Meeting 68
Section 3.9 Committee Meetings 68
ARTICLE IV. OFFICERS 68
Section 4.1 Officers 68
Section 4.2 Elections 68
Section 4.3 Other Officers 68
Section 4.4 Removal 68
Section 4.5 Resignation 68
Section 4.6 Vacancies 68
Section 4.7 Chairman of the Board 69
Section 4.8 President 69
Section 4.9 Vice President 69
Section 4.10 Secretary 69
Section 4.11 Chief Financial Officer 69
Section 4.12 Treasurer 69
ARTICLE V. MISCELLANEOUS 69
Section 5.1 Records and Reports. 69
(a) Books of Account and Proceedings 69
(b) Annual Report 69
(c) Shareholders' Requests for Financial Reports 70
<PAGE>
Section 5.2 Rights of Inspection. 70
(a) By Shareholders. 70
<PAGE>
(b) By Directors 70
Section 5.3 Checks, Drafts, Etc. 70
Section 5.4 Representation of Shares of Other Corporations 70
Section 5.5 Indemnification and Insurance. 71
(a) Right to Indemnification 71
(b) Right of Claimant to Bring Suit 71
(c) Non-Exclusivity of Rights 71
(d) Insurance 71
(e) Indemnification of Employees and Agents of the Corporation 72
Section 5.6 Employee Stock Purchase Plans. 72
Section 5.7 Time Notice Given or Sent 72
Section 5.8 Construction and Definitions 72
ARTICLE VI. AMENDMENTS 72
Section 6.1 Power of Shareholders 72
Section 6.2 Power of Directors 72
</TABLE>
<PAGE>
EX 4.1 Specimen Certificate
(front)
NUMBER INTERCARE.COM, INC. SHARES
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
Authorized Common Stock 100,000,000 No Par Value
This certifies that______________________________________________
Is the owner of ____________________________Shares of the Common Stock of
InterCare.com, Inc.
full paid and non-assessable, transferable only on the books of
the Corporation in person or by Attorney, upon surrender of this Certificate
properly endorsed.
In Witness Whereof, the said Corporation
has caused this Certificate to be signed its duly authorized officers, and its
Corporate Seal to be hereunto affixed
this______________________ day of______________________A.D. 19_
_____________________ _________________________
Secretary President
(back)
For Value Received,_________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFICATION NUMBER OF ASSIGNEE__________________________________
________________________________________________________________________
Shares represented by the within Certificate, and do hereby irrevocably
Constitute and appoint____________________________________ Attorney to
Transfer the said Shares on the book of the named Corporation with full power of
substitution in the premises
Dated________19______
_______________________________ ___________________________
IN PRESENCE SIGNED
NOTICE: THE SIGNATURE OF 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.
<PAGE>
Ex-5.1
OPINION RE LEGALITY
[LETTERHEAD OF WELLMAN & WARREN, LLP]
4 Venture, Suite 325, Irvine, CA 92618-3325
Phone: (949) 450-0662 Fax: (949) 450-0750
January 9, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for InterCare.com Inc., a California corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 2,500,000 shares of the
Common Stock, No par value, of the Company which may be issued pursuant to the
dividend stock distribution to all existing share holders of Meridian Holdings,
Inc., a publicly traded OTC Bulletin Board Company with the symbol: "MEHO"
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice in the State of California , we express no opinion concerning any law
other than the law of the State of California and the federal law of the United
States.
We have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State of California.
Based on such examination, we are of the opinion that the 2,500,000 shares of
Common Stock which may be issued under the current Initial Public Offering
are duly authorized shares of the Company's Common Stock, and, when issued
against receipt of the consideration therefor in accordance with the provisions
of the Prospectus respectively, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Scott W. Wellman
SCOTT W. WELLMAN, ESQ
<PAGE>
EX-23.2
CONSENT OF EXPERT
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We consent to the inclusion in this Prospectus on Form SB-2/A of our report
dated May 16th, 2000 relative to our audit of the financial statements of
InterCare.com, Inc. at December 31, 1999, and for the period from January
1st 1998 to December 31st, 1999, and to the reference to our firm under
the heading "Experts" therein.
Andrew M. Smith, CPA
Long Beach, California
May 16, 2000
<PAGE>
Exhibit 24.1 Power of Attorney
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby appoints
Anthony C. Dike as their attorney-in-fact, with full power to act alone, to
sign in the name and in behalf of the Registrant and any such person,
individually and in each capacity stated below, any and all amendments,
including post-effective amendments, to this Registration Statement.
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in the
capacities indicated on the 12 day of June 2000:
/s/ Anthony C. Dike
_______________________________
Anthony C. Dike, Chairman, Director, Chief Executive Officer
/s/ Russell Lyons
_______________________________
Russell Lyons, President, Director, Chief Technology Officer
/s/ Philip Falase
______________________________
Philip Falase, Chief Financial Officer, Director
/s/ Edward Williams
______________________
Edward Williams, Director
/s/ Dan Thornton
__________________________
Dan Thornton, Director
/s/ Dale W. Church
__________________________
Dale Church/Director
<PAGE>
Exhibit 24.2 Form of Electronic Commerce Agreement with NetSales, (as amended)
ELECTRONIC COMMERCE AGREEMENT THIS ELECTRONIC COMMERCE AGREEMENT (this
"Agreement") is made and entered into on September 23, 1999 (the "Effective
Date") by and between NETSALES, INC., a Delaware Corporation ("NetSales"),
located at 8500 West 110th Street, Overland Park, KS 66210, and INTERCARE
---------
DIAGNOSTICS, INC./WWW.INTERCARE.COM ("Vendor"), located at, 1601 Centinela
------------------------------ ---------------
Avenue Suite #5, Inglewood, CA 90302. NetSales and Vendor shall be referred to
---------------------------------
herein individually as a "Party" or collectively as the "Parties." Other
defined terms are set forth on Schedule A attached hereto.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which the
Parties acknowledge, the Parties agree as follows:
GRANT OF RIGHTS; PARTIES' OBLIGATIONS
GRANT OF RIGHTS. Vendor grants to NetSales the right to market and distribute
Products to resellers or directly to customers as reseller's agent, at NetSales'
sole expense, subject to the terms of this Agreement and as they might apply,
additional ESD provisions set forth in Schedule D and physical fulfillment
provisions set forth in Schedule E.
EXCLUSIVITY. Vendor grants to NetSales the right to serve as the exclusive
provider of services related to all online Direct Sales of Vendor's products.
This does not prevent Vendor from establishing relationships with other
distributors or resellers.
NEW AND DISCONTINUED PRODUCTS. Vendor agrees to notify NetSales of new Products
thirty (30) days prior to release of updated and/or new Products. Vendor also
agrees to notify NetSales thirty (30) days prior to the discontinuation of any
Product.
ON-LINE ORDER AND COLLECTION. NetSales shall make reasonable efforts to maintain
the availability of on-line ordering and payment. However, Vendor acknowledges
that periodic computer server and network failures are unavoidable and thus will
not hold NetSales liable for damages or losses incurred as a result of such
failures.
LINKS. Vendor agrees to maintain a Hyper-link from the sales page to the
NetSales' Web page. NetSales agrees to maintain a Hyper-link to Vendor's Web
page.
CUSTOMER LISTS. NetSales agrees to provide to Vendor a copy of the Customer list
from Product Sales. Vendor agrees to comply with all Customer-imposed
restrictions on the use of such Customer list.
EXPORT RESTRICTIONS. NetSales will use its best efforts to screen customers to
deny shipments to any countries to which exports of the Products are prohibited
by United States law and to deny shipments to parties to which sales are
prohibited by United States law, provided however, NetSales shall have no
liability to Vendor for any inadvertent violation of these prohibitions.
TERM & TERMINATION
TERM. This Agreement will continue in effect for one (1) year from the Effective
Date (the "Initial Term"). Upon expiration of the Initial Term, this Agreement
will be automatically renewed for additional one (1) year periods (each a
"Renewal Term") without action by either Party (the Initial Term and any Renewal
Term will be referred to herein collectively as the "Term").
TERMINATION FOR CAUSE OR CONVENIENCE. Either Party may terminate this Agreement
at any time for any reason upon ninety (90) days prior written notice before the
end of a Renewal Term.
EFFECT OF TERMINATION. Upon termination, NetSales will remove Products from
resale. NetSales shall have the right to hold a reserve balance (the "Reserve")
against Product Returns (as defined below) for six (6) months from the
termination date. In the event that NetSales takes returns after termination for
which there is no account balance, Vendor agrees to reimburse NetSales the total
amount of Returns within thirty (30) days after receiving written demand for
payment.
PAYMENTS & RECORDS
SETUP FEES. Vendor agrees to pay to NetSales a one-time, non-refundable payment
for setup fees as set forth on Schedule C attached hereto, to be paid upon the
execution of this Agreement.
PAYMENTS AND REPORTS. NetSales shall pay Vendor (according to Schedule C) any
amounts owed hereunder on the 30th day of each month, or the last day of
February, for sales of the prior month. NetSales shall provide Vendor a monthly
report detailing the Products sold and amounts collected. NetSales shall
provide to Vendor a real-time online electronic sales summary and customer data
gathering report.
RETURNS. If under any circumstance a payment transaction for a Product is
reversed (each a "Return"), the net amount of the reversal will be deducted from
the amount of the payment due to Vendor. If Returns exceed sales in any given
month, Vendor agrees to make payment sufficient to cover the Returns. A
defective Product may be exchanged for the same title only and, in this case,
the entire package (box, contents, and product-registration card) must be
included. NetSales can refuse payment for and distribution of Products to any
Customer that is processing a large percentage of Returns.
RESERVE. NetSales carries significant risk of excessive returns and/or
chargebacks in the event Product Vendor cancels service with NetSales, ships
defective products, discontinues products, or terminates business activity.
Accordingly, Product Vendor agrees to allow NetSales to hold in reserve an
<PAGE>
amount equal to 10% of the previous six (6) month's gross Product sales to
reduce such risk. NetSales shall remit to Product Vendor any Reserve Escrow
Amount that has been held for more than six (6) months and shall be included
with monthly sales statement.
TAXES. NetSales shall pay any applicable taxes required in connection with the
actions contemplated under Schedule C of this Agreement
RECORDS AND AUDITS. NetSales shall keep records and accounts in accordance with
generally accepted accounting principles to show the amount of proceeds payable
to Vendor. NetSales shall keep these records at NetSales' principal place of
business. Vendor shall have the right to conduct at its sole expense an audit of
such records by an independent auditor during regular business hours upon five
(5) days prior written notice once per calendar year to determine NetSales'
compliance with this Agreement.
CONFIDENTIALITY
CONFIDENTIALITY. Each Party will treat all information received or gained from
the other Party in confidence. Only by written agreement between the Parties can
information about any aspect of the agreements, relationships, products, plans
or details of the other Party's business be divulged to a third party.
Information shall not be deemed confidential for the purposes of this Agreement
that (i) is already known to the non-disclosing Party at the time of disclosure;
(ii) is or becomes publicly known through no wrongful act of the non-disclosing
Party, including by public announcement by the disclosing Party; (iii) is
received from a third Party without similar restrictions and without breach of
this Agreement; or (iv) is lawfully required to be disclosed by any governmental
agency or otherwise required to be disclosed by law.
WARRANTIES; LIABILITIES; INDEMNIFICATION
VENDOR'S REPRESENTATIONS AND WARRANTIES. Vendor represents and warrants that
(i) it owns, or has valid and current distribution licenses, to the Products and
all sub-components thereof, and that no provision of this Agreement violates any
prior agreements between Vendor and any third parties (ii) it has the power and
authority to enter into this Agreement and to perform its obligations hereunder;
(iii) this Agreement has been duly authorized, executed and delivered by Vendor
and constitutes a legal, valid and binding obligation of Vendor enforceable
against Vendor according with its terms, (iv) Vendor owns the entire right,
title and interest in and to the trademarks and intellectual property to be
provided to NetSales and included in the Products and the packaging of the
Products, (v) Vendor has obtained any applicable export licenses for the
Products which are required under United States or any other applicable law,
(vi) and Vendor hereby certifies that the Products are Y2K Compliant. For
purposes of this Agreement, "Y2K Compliant" means, the Product is designed to be
used prior to, during, and after calendar year 2000 A.D., and during each such
time period will accurately receive, provide and process data/time data
(including, but not limited to, calculating, comparing and sequencing,) from,
into and between the twentieth and twenty-first centuries, including the years
1999 and 2000, and leap year calculations and will not malfunction, cease to
function, or provide invalid or incorrect results as a result of data/time data,
to the extent that other information technology used in combination with the
Products properly exchanges data/time data with it.
NETSALES' REPRESENTATIONS AND WARRANTIES. NetSales represents and warrants that
it has the right and authority to enter into this Agreement and to perform its
obligations hereunder.
MUTUAL INDEMNIFICATION. NetSales and Vendor agree to defend, indemnify and hold
harmless each other and their affiliates, their officers, directors, employees,
representatives, agents, successors and assigns against and in respect of any
and all loss, damage, liability and expense (including attorneys' fees)
resulting from; (i) any misrepresentations or breaches of any representation,
warranty or non-fulfillment of any obligation under this Agreement; (ii) any
defects in the Products, whether such Products are sold by Vendor or NetSales
and; (iii) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses incident to any of the foregoing.
VENDOR further indemnifies; (iv) the failure of the Products to satisfy the
terms and conditions of any warranty set forth therein and; (v) the Product (in
the form supplied hereunder by Vendor and unadapted by NetSales or any third
party) infringing a U.S. patent or U.S. copyright.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING THE SERVICES AND PRODUCTS, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH
AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS,
COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING
FROM ANY SOURCE.
MISCELLANEOUS PROVISIONS
ASSIGNMENT. This Agreement may not be assigned by either Party without the
express written approval of the non-assigning Party; however, NetSales may
assign this Agreement without the approval of Vendor to any affiliate of
NetSales or to any entity that purchases all the stock or all or substantially
all of NetSales' assets.
NOTICES. All notices and demands hereunder shall be in writing and shall be
served by on the receiving Party via certified or registered mail, return
receipt requested or by nationally-recognized private express courier, and shall
be deemed complete upon receipt.
<PAGE>
GOVERNING LAW. This Agreement shall be governed by and construed according to
the substantive laws of the State of Kansas.
RELATIONSHIP OF THE PARTIES. Each Party is acting as an independent contractor
and not as an agent, partner, or joint venture with the other Party for any
purpose.
SURVIVAL OF CERTAIN PROVISIONS. The indemnification, confidentiality, and
payment obligations set forth in the Agreement shall survive the termination of
the Agreement by either Party for any reason.
ALL AMENDMENTS IN WRITING. All modifications or amendments of this Agreement
shall be effective only if they are in writing by a duly authorized
representative of each Party to this Agreement.
ENTIRE AGREEMENT. This Agreement constitutes the complete and entire agreement
of the Parties and supersedes all previous communications, oral or written, and
all other communications between them relating to the subject hereof.
SEVERABILITY. If a court of law or court of competent jurisdiction finds any
provision of this Agreement invalid, illegal or unenforceable, the remaining
portions of this Agreement shall remain in full force and effect and construed
so as to best effectuate the original intent and purpose of this Agreement.
ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and the judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. Any arbitration proceeding shall be held
within 30 miles of NetSales' headquarters.
ATTORNEYS FEES. In any legal action between the Parties hereto concerning this
Agreement, the prevailing Party shall be entitled to recover reasonable
attorneys fees and costs.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth above. It is assumed that the signer for both companies has company
authorization.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH IS BINDING ON THE
PARTIES.
NETSALES, INC. Vendor
By:__________ By: ___________
Name:_________ Name:___________
Tile:_________ Title:__________
Date: Date: _________
SCHEDULE A - DEFINITIONS
"Customer" shall mean an individual, or single user, at a home or business, who
pays for Products through NetSales.
"Direct Sale" refers to any sale that is from a Direct URL.
"Direct URL" is a URL in NetSales' web site for Product purchases, supplied to
Product Vendor by NetSales, hyper-linked to web site, and are controlled by
Product Vendor or Product Vendor's affiliates.
"Channel Sale" shall mean any sale which occurs within NetSales' channel of
online stores or any other Product sales that do not occur from a Direct URL.
"Processing Fees" shall mean the fees payable to NetSales by Vendor for Direct
Sales. Processing Fees are incurred for each Product sold in a Direct Sale.
"Products" shall mean the products identified by title and reference number in
Schedule B hereto. Any Products not listed on Schedule B, which are sent by
Vendor to NetSales, and which are accepted by NetSales, shall be deemed added to
Schedule B.
"Payment Fees" shall mean the total costs of a customer purchase transaction
charged by a bank or other financial institution. This includes but is not
limited to credit card transaction fees.
"Return" shall be payment for a Product which is initially collected by
NetSales, which is subsequently reversed for any reason.
"Reserve" shall refer to proceeds held from a sales transaction as security
against the significant risk of excessive returns and/or chargebacks.
"Piracy" shall mean the attempted use or distribution of a Product without
payment.
"Hyper-link" shall mean a direct means of accessing one World Wide Web page from
another.
"Territory" shall mean a world-wide territory.
SCHEDULE B - PRODUCT
REF # TITLE STREET PRICE
------ ----- --------------
SCHEDULE C- FEES - E COMMERCE
I. PRODUCT ENROLLMENT (SETUP) FEES
Company Setup Fee shall be WAIVED which shall cover up to fifteen (15) Products
including any additional SKU's. This fee shall cover only those Products which
are submitted at the time of initial enrollment.
<PAGE>
Setup fees shall be $25 per Product title (additional SKU's included) that
exceeds fifteen (15) at the time of initial enrollment, or for additional
Products that are added after the Agreement is executed.
DIRECT SALES FEES. For Direct Sales, NetSales shall pay Vendor proceeds from
sales, calculated as follows:
Total gross sales from Products, less the following amounts:
Distribution fees equaling fifteen percent (15%) of the gross sale price of the
Product, not to be less than $3.50 per Product;
Returns (as defined in Section III, C.), if any; and
The Reserve.
III. CHANNEL SALES FEES. For Channel Sales, NetSales shall pay Vendor proceeds
from sales, calculated as follows:
Total gross sales from Products, less the following amounts:
Distribution discount percentage equaling fifty percent (50%) of the gross sale
price of the Product;
Returns (as defined in Section III, C.) if any; and
The Reserve
V. OTHER FEES (IF APPLICABLE)
Product/SKU update $25
Page design change $50
VI. Customization Fees. Any non-standard customization beyond basic catalog
creation, pricing, and graphic treatments will be billed to Vendor at a rate of
$100 per hour and subject to change. NetSales will obtain approvals from Vendor
for such customizations prior to performing such work.
SCHEDULE D - ESD
GRANT OF RIGHTS; PARTIES' OBLIGATIONS
SOFTWARE PRODUCT DELIVERABLES. Vendor agrees to supply to NetSales master
distributable images of Products upon execution of this Agreement for any
Products that are electronic in nature (e.g. software). Vendor further agrees to
send new master distributable images of software Products within fourteen (14)
days of release of revised versions of software Products.
PROHIBITED ACTS. NetSales is prohibited from the disassembly or decompilation of
the object code or the disclosure of any other aspect of the workings of the
Products without the prior written consent of Vendor.
II. Ownership
INTELLECTUAL PROPERTY RIGHTS. NetSales agrees that the Products provided
hereunder, and any copies thereof, in whole or in part, and all intellectual
property rights, including without limitation, patent, copyright, trademark,
trade secret, and any other intellectual or industrial property rights, are and
shall remain the sole property of Vendor, and that all rights thereto are
reserved by Vendor. NetSales agrees that it will not create derivatives of any
Product, nor use, copy, disclose, sell, assign, sublicense, or otherwise
transfer any Product except as expressly authorized in the end-user license
agreement for such Product. Vendor acknowledges that NetSales owns the content
of any information developed by NetSales in exploiting the rights granted
herein.
PIRACY. Each Party agrees to take strict measures to secure the Products from
piracy, and in the event that any piracy is discovered, to notify the other
Party, and to take measures to deter further piracy. NetSales' total liability
will be limited to damages arising from negligent acts of NetSales which occur
after discovery of any piracy is made by NetSales or Vendor notifies NetSales in
writing of any piracy.
III. Returns
NetSales will request a signed letter from the customer stating that
all copies made from Product have been permanently destroyed. Vendor will accept
the Return or exchange of any normally stocked product purchased from Vendor
which is unopened for up to 30 days after the date of purchase.
IV. DEFINITIONS
A. ESD initials standing for Electronic Software Distribution and refers to
the delivery of a digital product electronically.
SCHEDULE F- PRODUCT VENDOR CHECKLIST*
______ Remit Executed Agreement. Two hard copies required.
______ Complete online enrollment form at
http://www.netsales.net/client.wcgi. You will always be required to provide your
User Name (UN) and Password (PW) to gain access to any privileged online client
area. If UN and PW are still needed please contact [email protected] for
-----------------------
assistance.
______ Complete all applicable field entries. For sales description you may
use HTML.
<PAGE>
______ Forward graphics to [email protected]. This includes box shot
product images, Logos, and available screen shots.
______ Include any special instructions and/or additional requirements.
______ ESD Product Delivery - If Product will be delivered electronically,
please forward to NetSales any and all product files in an auto-installing
format. If applicable, these files should contain any online documentation and
help files.
______ Physical Product Delivery - If NetSales is to perform physical
product fulfillment on your behalf, please contact [email protected] who
-----------------------
will provide simple instructions and assistance.
______ After you receive notification that products have been enrolled from
a NetSales engineer, thoroughly check that products have been enrolled properly.
______ Check pricing of all products.
______ Check product descriptions for accuracy.
______ Check graphics and License agreement.
______ Perform an actual order process (for ESD, download to insure that
product installs and runs properly).
______ When process is complete reply to "Delivery Verification" email to
activate products online.
______ If you have executed a direct sale agreement (NetSales performs
order process for your direct sales) then prominently display your branded buy
page link on your web home page. A NetSales engineer shall provide you with a
final order page for you to connect to after your "Delivery Verification" is
complete as outlined in step 5 above.
*This checklist is designed to help expedite your enrollment process. If more
than 24 hours passes between any of the above steps please contact your account
coordinator.
ADDENDUM TO DISTRIBUTION AGREEMENT
This Addendum is made and entered into on September 21, 1999, 1999 by and
between NetSales Inc., Located at 8500 West 110th Street, Suite 600 Overland
Park, Kansas 66210 ("Electronic Distributor"), and Intercare Diagnostics, Inc.
located at 1601 Centinela Avenue Suite #5 , Inglewood ,CA. 90302 ("Product
Vendor").
This Addendum shall be deemed added to the original signed Agreement executed on
July 16,1999. Section A shall replace any equivalent Direct Sales terms in
original agreement if it exists. This addendum supplements and is governed by
the terms of the original agreement and in all other respects the original
agreement continues on. To the extent this Addendum conflicts with the
Distribution Agreement,
the terms of this Addendum shall govern.
A. AMOUNT FOR DIRECT SALES. For Direct Sales, Electronic Distributor shall
pay Product Vendor proceeds from sales, calculated as follows: total gross sales
from Products, less the following amounts:
1. Transaction fees equaling fifteen percent (15%) of the gross sale price
of the product, not to be less than $3.00 per Product;
2. Returns, if any;
B. Y2K COMPLIANCE.
Vendor hereby certifies that the Products are Y2K Compliant. For purposes of
this Agreement, "Y2K Compliant" means, the Product is designed to be used prior
to, during, and after calendar year 2000 A.D., and during each such time period
will accurately receive, provide and process data/time data (including, but not
limited to, calculating, comparing and sequencing,) from, into and between the
twentieth and twenty-first centuries, including the years 1999 and 2000, and
leap year calculations and will not malfunction, cease to function, or provide
invalid or incorrect results as a result of data/time data, to the extent that
other information technology used in combination with the Products properly
exchanges data/time data with it.
SOFTWARE REVIEW, L.C. PRODUCT VENDOR
By:________________ By: __________________________
Name:______________ Name: __________________________
Title:__________________ Title:_________________________
Date:______________ Date: ________________________
<PAGE>
Exhibit 24.3 Form of Telecom Services Agreement of CGI Communications
Services, with Meridian Holdings, Inc. (Registrants Parent Company)
CGI Communications, Inc.
900 Wilshire Blvd., Suite 500
Los Angeles, CA 90017
Tel: 213-627-8878
General Terms and Definitions: Any individual or entity receiving any product or
service form CGI Communications, Inc. ("CGI Communications") shall hereafter be
referred to as Client. By accepting products and/or services provided by CGI
Communications, Inc., Client agrees to observe and abided by all of the
provisions, terms, and requirements specified in this document.
Billing: CGI Communications, Inc., shall bill Client for services rendered at
the published rate of such services at the time rendered. Unless otherwise
specified, recurring charges are billed monthly and are due prior to the billed
month. Monthly fee for the first month is pro-rated to the end of the month
For each month thereafter, the full monthly fee is due for any part of a month
in which services is provided. Monthly fees are non-refundable. PAST DUE
ACCOUNTS WILL BE CHARGED A LATE FEE OF 1.5% PER MONTH ON ANY UNPAID PAST DUE
BALANCE.
Disclaimer of Liability: Client acknowledges that CGI Communications, Inc.,
makes no warranty of any kind, expressed or implied, regarding the reliability
or suitability for a particular purpose of its services. CGI Communications
disclaims any warranty of merchantability or fitness of a particular purpose
Client acknowledges and understands that CGI Communications exercises no
control over the nature, content, or reliability of the information delivered
to Client from the Internet via CGI Communications. Client acknowledges that
CGI Communications is not liable for any errors or interruption in Internet
access service provided to Client, whether within or outside the control of CGI
Communications. Under no circumstances shall CGI Communications be held
responsible for damages of loss suffered by Client, including but limited to
special, incidental, consequential, or punitive damages, as a result of
Client's or CGI Communication's or a third party's negligence, fault,
misconduct, or failure to perform. Client acknowledges that Internet access
service may be temporarily unavailable for scheduled or unscheduled maintenance,
and for other reasons within and outside the control of CGI Communications.
Under no circumstances do any such errors, loss, delays, loss of information,
or interruptions in services nullify or modify this agreement or any other
agreement or contract entered into by CGI Communications and Client. CGI
Communications reserves the right to refuse or terminate service to Client at
any time.
Client Responsibility: Client is responsible for protecting all account
passwords and for any authorized or unauthorized use made of Client's account
Client agrees to comply with the rules appropriate to any network to which
Client may gain access via the services of CGI Communications.
Client acknowledges that any proprietary, confidential, or otherwise valuable
information that Client desires to keep confidential should not be transmitted
over any part of the Internet without encryption, nor reside without firewall
protection on computers connected to the Internet. Client will not transmit
nor make available to the Internet any material that is illegal, libelous,
tortuous, or likely to result in action against CGI Communications or its
clients. Client agrees that under no circumstances ill the Client use CGI
Communications' equipment and or electronic mail addresses in connection with
the sending of unsolicited electronic mail messages, commercial or otherwise,
including, but not limited to, the sending of unsolicited mass mailings from
another service which in any way implicates the use of CGI Communications'
service, equipment or any CGI Communications electronic mail address.
Service Plans and Term Commitment: Client agrees to use services purchases
from CGI Communications in the way the account is intended. All DSL accounts
have a term commitment of one (1) year. If client terminates service prior
to completion of the term commitment, client agrees to pay 50% of the remainder
of the contract.
Refunds: There are no refunds. All payments are non-refundable. Defective
hardware will be replaced within five (5) days of purchase date.
Service Termination: Service may be terminated at any time. Termination of
service must be in writing to CGI Communications.
Installation Support: CGI Communications shall provide support to the customer
to establish dedicated connectivity between the customer's router/modem supplied
and configured by CGI Communications and CGI Communications' backbone gateway
Connectivity is defined as CGI Communications' ability to send 64KB packets over
the circuit to the Customer's router without packet loss at speeds equal to 85%
of the ordering line speed. CGI Communications may supply additional IP address
space to customer, which may be used to connect other hosts and/or workstations
to the Internet or other Customer facilities connected to CGI Communications.
CGI Communications Services, Inc., my assist customer in resolving
connectivity and configuration issues among those other servers and/or
workstations as a courtesy to Customer with the understanding that the Customer
is solely responsible for the operations and configuration of all services
and/or workstations residing on the Customer's local area network (LAN). In the
event that the customer makes any configuration changes to the customer's
router/modem and loses connectivity, and then CGI Communications will at the
<PAGE>
customer's request, reconfigure the hardware at the rate of $75.00 per hour
with a minimum charge of $150.00.
I have read and understood the above terms and conditions, and I authorized
these services to be ordered.
__________________________ __________
Authorized Signature Date
__________________________
Printed Name and Title
<PAGE>
EXHIBIT 24.4
STOCK OPTION PLAN
OF
INTERCARE.COM, INC.
SECTION 1 - DESCRIPTION OF PLAN. The Stock Option Plan (the "Plan"), of
---------------------------------
InterCare.com, Inc. (the "Company"), a corporation organized under the laws
of the State of California. Under this Plan, key employees of the Company or
any
present and future subsidiaries of the Company to be selected as below set
forth, may be granted options (the "Options") to purchase shares of the Common
Stock, No par value per share, of the Company ("Common Stock"). For
purposes of this Plan, the term "subsidiary" mean any corporation 50% or more of
the voting stock of which is owned by the Company or by a subsidiary (as so
defined) of the Company. It is intended that the Options under this Plan will
either qualify for treatment as incentive stock options under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") and be designated
"Incentive Stock Options" or not qualify for such treatment and be designated
"Non-qualified Stock Options".
SECTION 2 - PURPOSE OF PLAN. The purpose of the Plan and of granting
--------------------------------
options to specified employees is to further the growth, development and
financial success of the Company and its subsidiaries by providing additional
incentives to certain key employees holding responsible positions by assisting
them to acquire shares of Common Stock and to benefit directly from the
Company's growth, development and financial success.
SECTION 3 - ELIGIBILITY. The persons who shall be eligible to receive
---------------------------
grants of Options under this Plan shall be the directors, officers, key
employees and consultants of the Company or any of its subsidiaries. A person
who holds an Option is herein referred to as an"Optionee". More than one Option
may be granted to any one Optionee, however no Optionee may be granted options
to purchase an aggregate number of shares of Common Stock amounting to thirty
percent (30%) or more of the total number of shares that may be issued pursuant
to this Plan upon the exercise of Options granted hereunder.
For Incentive Stock Options, the aggregate fair market value (determined
at the time the Option is granted) of the Common Stock with respect to which
incentive stock options are exercisable for the first time by any Optionee
during any calendar year (under all Incentive Stock Option plans of the Company
or any subsidiary which are qualified under Section 422 of the Code) shall not
exceed $5,000,000.00 .
SECTION 4 -- ADMINISTRATION. The Plan shall be administered by a
-------------------------------
committee (the "Option Committee") to be composed of at least two
"disinterested" (as such term is used in Rule 16b-3 promulgated under the
Securities Exchange Act of 1934) members of the Board of Directors of the
Company (the "Board"). Members of the Option Committee shall be appointed, both
initially and as vacancies occur, by the Board, to serve at the pleasure of the
Board. The entire Board may serve as the Option Committee, if by the terms of
this Plan all Board members are otherwise eligible to serve on the Option
Committee. No person may serve as a member of the Option Committee if such
person (a) is eligible to receive an Option under the Plan or under any other
plan of the Company entitling the participants to acquire Common Stock or stock
options of the Company or any of its affiliates (other than plans excepted by
Rule 16b-3(c)(2)), or (b) was so eligible at any time within the preceding
one-year period. The Option Committee shall meet at such times and places as it
determines and may meet through a telephone conference call. A majority of its
members shall constitute quorum, and the decision of a majority of those present
at any meeting at which a quorum is present shall constitute the decision of the
Option Committee. A memorandum signed by all of its members shall constitute
the decision of the Option Committee without necessity, in such event, for
holding an actual meeting. The Option Committee is authorized and empowered to
administer the Plan and, subject to the Plan, including the provisions of
Section 17, (i) to select the Optionees, to specify the number of shares of
Common Stock with respect to which Options are granted to each Optionee, to
specify the Option Price and the terms of the Options, and in general to grant
Options; (ii) to determine the dates upon which Options shall be granted and the
terms and conditions thereof in a manner consistent with this Plan, which terms
and conditions need not be identical as to the various Options granted; (iii) to
interpret the Plan; (iv) to prescribe, amend and rescind rules relating to the
Plan (v) to accelerate the time during which an Option may be exercised,
notwithstanding the provisions of the Option Agreement (as defined in Section
12) stating the time during which it may be exercised; (vi) to accelerate the
date by which any unexercised but vested portion of an Option terminates,
thereby requiring the Optionee to exercise the vested unexercised portion of
such Option or forfeit it, but in no event shall such date be less than two (2)
weeks later than the date the Optionee is informed of such acceleration; and
(vii) to determine the rights and obligations of participants under the Plan.
The interpretation and construction by the Option Committee of any provision of
the Plan or of any Option granted under it shall be final. No member of the
<PAGE>
Option Committee shall be liable for any action or determination made in good
faith with respect to the Plan of any Option granted under it.
SECTION 5 -- SHARES SUBJECT TO THE PLAN. The aggregate number of shares
-----------------------------------------
of Common Stock which may be purchased pursuant to the exercise of Options
(whether Incentive Stock Options or Non-qualified Stock Options) granted under
the Plan shall not exceed 2,000,000 shares. Upon the expiration or termination
for any reason of an outstanding Option which shall not have been exercised in
full or upon the repurchase by the Company of shares of Common Stock issued
pursuant to rights of repurchase, any shares of Common Stock then remaining
unissued which shall have been reserved for issuance upon such exercise or which
shall have been repurchased shall again become available for the granting of
additional Options under the Plan.
SECTION 6 -- OPTION PRICE. Expect as provided in Section 11, the purchase
--------------------------
price per share (the "Option Price") of the shares of Common Stock underlying
each Option shall be not less than the fair market value of such shares on the
date of granting of the Option. Such fair market value shall be determined by
the Option Committee on the basis of reported closing sales price on such date
or, in the absence of reported sales price on such date, on the basis of the
average of reported closing bid and asked prices on such date. In the absence
of either reported sales price or reported bid and asked prices, the Option
Committee shall determine such market value on the basis of the best available
evidence.
SECTION 7 -- EXERCISE OF OPTIONS. Subject to all other provisions of
-------------------------------------
this Plan, each Option shall be exercisable for the full number of shares of
Common Stock subject thereto, or any part thereof, in such installments and at
such intervals as the Option Committee may determine in granting such Option,
provided that (i) each Option shall become fully exercisable no later than five
(5) years from the date the Option is granted, (ii) the number of shares of
Common Stock subject to each Option shall become exercisable at the rate of at
least 20% per year each year until the Option is fully exercisable, and (iii) no
option may be exercisable subsequent to its termination date. Each Option shall
terminate and expire, and shall no longer be subject to exercise, as the Option
Committee may determine in granting such Option, but in no event later than ten
years after the date of grant thereof. The Option shall be exercised by the
Optionee by giving written notice to the Company specifying the number of shares
to be purchased and accompanied by payment of the full purchase price therefor
in cash, by check or in such other form of lawful consideration as the Board may
approve from time to time, including, without limitation and in the sole
discretion of the Board, the assignment and transfer by the Optionee to the
Company of outstanding shares of the Company's Common Stock theretofore held by
Optionee.
SECTION 8 -- ISSUANCE OF COMMON STOCK. The Company's obligation to issue
--------------------------------------
shares of its Common Stock upon exercise of an Option granted under the Plan is
expressly conditioned upon the completion by the Company of any registration or
other qualification of such shares under any state and/or federal law or ruling
or regulations or the making of such investment or other representations and
undertakings by the Optionee (or his or her legal representative, heir or
legatee, as the case may be) in order to comply with the requirements of any
exemption from any such registration or other qualification of such shares which
the Company in its sole discretion shall deem necessary or advisable. Such
required representations and undertakings may include representations and
agreements that such Optionee (or his or her legal representative, heir or
legatee): (a) is purchasing such shares for investment and not with any present
intention of selling or otherwise disposing thereof; and (b) agrees to have a
legend placed upon the face and reverse of any certificates evidencing such
shares (or, if applicable, and appropriate data entry made in the ownership
records of the Company) setting forth (i) any representations and undertaking
which such Optionee and undertaking which such Optionee has given to the Company
or a reference thereof, and (ii) that, prior to effecting any sale or other
disposition of any such shares, the Optionee must furnish to the Company an
opinion of counsel, satisfactory to the Company and its counsel, to the effect
that such sale or disposition will not violate the applicable requirements of
state and federal laws and regulatory agencies. The Company will make a
reasonable good faith effort to comply with such state and/or federal laws,
rulings or regulations as may be applicable at the time the Optionee (or his or
her legal representative, heir or legatee, as the case may be) wishes to
exercise an Option, provided that the Optionee (or his or her legal
representative, heir or legatee) also makes a reasonable good faith effort to
comply with said laws, rulings and regulations; however, there can be no
assurance that either the Company or the Optionee (or his or her legal
representative, heir or legatee), each in the respective exercise of their
reasonable good faith business judgment, will in fact comply with said laws,
ruling and regulations.
SECTION 9 -- NONTRANSFERABILITY. No Option shall be assignable or
-----------------------------------
transferable, except that an Option may be transferable by will or by the laws
of descent and distribution or pursuant to qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security Act,
or the rules thereunder, provided such Option explicitly so provides. During
the lifetime of an Optionee, any Option granted to him or her shall be
<PAGE>
exercisable only by him or her. After the death of an Optionee, the Option
granted to him (if so transferable) may be exercised, prior to its termination,
only by his or her legal representative, his legatee or a person who acquired
the right to exercise the Option by reason of the death of the Optionee.
SECTION 10 -- RECAPITALIZATION, REORGANIZATION, MERGER OR CONSOLIDATION.
--------------------------------------------------------------------------
If the outstanding shares of Common Stock of the Company are increased,
decreased, or exchanged for different securities through reorganization, merger,
consolidation, recapitalization, reclassification, stock split, stock dividend
or like capital adjustment, a proportionate adjustment shall be made (a) in the
aggregate number of shares of Common Stock which may be purchased pursuant to
the exercised of Options granted under the Plan, as provided in Section 5, and
(b) in the number, price, and kind of shares subject to any outstanding Option
granted under the Plan.
Upon the dissolution or liquidation of the Company or upon any
reorganization, merger, or consolidation in which the Company does not survive
or in which the equity ownership of the Company prior to such transaction
represents less than 50% of the equity ownership of the Company subsequent to
the transaction, the Plan and each outstanding Option shall terminate; provided
that the Company will give written notice thereof each Optionee at least thirty
(30) days prior to the date of such dissolution, liquidation, reorganization,
merger or consolidation, and in such event (a) the Company may, but shall not be
obligated to, with respect to each Optionee who is not tendered an option by the
surviving corporation in accordance with all of the terms of provision (b)
immediately below, grant the right, until ten days before the effective date of
such dissolution, liquidation, reorganization, merger or consolidation, to
exercise, in whole or in part, any unexpired Option or Options issued to him or
her, without regard to the surviving entity.
SECTION 12 -- OPTION AGREEMENT. Each Option granted under the Plan shall be
-----------------------------------
evidenced by a written stock option agreement executed by the Company and
accepted by the Optionee, which (a) shall contain each of the provisions and
agreements herein specifically required to be contained therein, (b) shall
contain terms and conditions permitting such Option to qualify for treatment as
an incentive stock option under Section 422 of the Code if the Option is
designated an Incentive Stock Option, (c) may contain the agreement of the
Optionee to resell any Common Stock issued pursuant to the exercise of Options
granted under the Plan to the Company (or its assignee) for the Option Price of
such Options to the extent any vesting restrictions apply to such Common Stock,
or for the then fair market value of such Common Stock if no such restrictions
then apply, (d) may contain the agreement of the Optionee granting a right of
first refusal to the Company (or its assignee) on transfers of Common Stock no
subject to vesting restrictions, and (e) may contain such other terms and
conditions as the Option Committee deems desirable and which are not
inconsistent with the Plan. With regard to agreements of the Optionee
contemplated by items (c) and (d) of the previous sentence, the Company's rights
pursuant to a right of first refusal and, notwithstanding any other termination
provisions, the Company's right to repurchase vested shares shall terminate upon
the closing of the first sale of the Common Stock of the Company to the public
pursuant to a registration statement filed with, and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
with gross proceeds to the Company as seller of not less than $7.5 million
before deducting underwriting commissions, or upon the liquidation or
dissolution of the Company.
SECTION 13 -- RIGHTS AS A SHAREHOLDER. An Optionee or a transferee of an
---------------------------------------
Option shall have no rights as a shareholder with respect to any shares covered
by this Option until exercise thereof, except that each Optionee shall have the
right to receive a copy of the Company's audited financial statements (if
available) no later than 120 days following the end of each fiscal year of the
Company. No adjustment shall be made for dividends (Ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
of which the record date is prior to the exercise date, except as expressly
provided in Section 10.
SECTION 14 -- TERMINATION OF OPTIONS. Each Option granted under the Plan
-------------------------------------
shall set forth a termination date thereof, which date shall be not later than
ten years from the date such Option is granted. In any event all Options shall
terminate an expire upon the first to occur of the following events:
(a) the expiration of three months from the date of an Optionee's
termination of employment (other than by reason of death), except that if an
Optionee is then disabled (within the meaning of Section 22(e)(3) of the Code),
the expiration of one year from the date of such Optionee's termination of
employment; or
(b) the expiration of one year from the date of the death of an Optionee if
his or her death occurs while he or she is, or not later than three months after
he or she has ceased to be, employed by the Company or any of its subsidiaries
in a capacity in which he or she would be eligible receive grants of Options
under the Plan; or
(C) the termination of the Option pursuant to Section 10 of the Plan.
The termination of employment of an Optionee by death or otherwise shall
<PAGE>
not accelerate or otherwise affect the number of shares to which an Option may
be exercised and such Option may only be exercised with respect to that number
of shares which could have been purchased under the Option had the Option been
exercised by the Optionee on the date of such termination.
SECTION 15 -- WITHHOLDING OF TAXES. The Company may deduct and withhold
------------------------------------
from the wages, salary, bonus and other compensation paid by the Company to the
Optionee the requisite tax upon the amount of taxable income, if any, recognized
by the Optionee in connection with the exercise in whole or in part of any
Option or the sale of Common Stock issued to the Optionee upon exercise of the
Option, all as may be required from time to time under any federal or state laws
and regulations. This withholding of tax shall be required from time to time
under any federal or state tax laws and regulations. This withholding of tax
shall be made from the Company's concurrent or next payment of wages, salary,
bonus or other income to the Optionee or by payment to the Company by the
Optionee of required withholding tax, as the Option Committee may determine.
SECTION 16 -- EFFECTIVENESS AND TERMINATION OF PLAN. The Plan shall be
------------------------------------------------------
effective on the date on which it is adopted by the Board; provided, however,
(a) the Plan shall be approved by the shareholders of the Company within 12
months of such date of adoption by the Board, (b) no Option shall be exercised
pursuant to the Plan until the Plan has been approved by the shareholders of the
Company, and (c) no Option may be granted hereunder on or after that date which
is ten years form the effective date of the Plan. The Plan shall terminate when
all Options granted hereunder either have been fully exercised, and all shares
of Common Stock which may be purchased pursuant to the exercise of such Options
have been so purchased, or have expired; provided, however, that the Board may
in its absolute discretion terminated the Plan at any time. No such
termination, other than as provided for in Section 10 hereof, shall in any way
affect any Option then outstanding.
SECTION 17 -- AMENDMENT OF PLAN. The Board may (a) make such changes in
the terms and conditions of granted Options as it deems advisable, provided each
Optionee affected by such change consents thereto, and (b) make such amendments
to the Plan as it deems advisable. Such amendments and changes shall include,
but not be limited to, acceleration of the time at which an Option may be
exercised, but may not, without the written consent or approval of the holders
of a majority of that voting stock of the Company which is represented and is
entitled to vote at a duly held shareholders meeting (a) increase the maximum
number of shares subject to Options, except pursuant to Section 10 of the Plan
(b) decrease the Option Price requirement contained in Section 6 (except as
contemplated by Section 11) of the Plan (c) change the designation of the class
of employees eligible to receive Options (d) modify the limits set forth in
Section 3 of the Plan regarding the value of Common Stock for which any Optionee
may be granted Options, unless the provisions of Section 422(d) of the Code are
likewise modified or (e) in any manner materially increased the benefits
accruing to participants under the Plan.
BE IT RESOLVED:
The terms and conditions of this Stock Option Plan are accepted by the
Corporation on this 14th day of March 2000.
/S/ Anthony C. Dike
-------------------------
Anthony C. Dike
Secretary
Chief Executive Officer SEAL
<PAGE>
EXHIBIT 24.5
STOCK OPTION AGREEMENT
AGREEMENT, made this ____ day of ______, 2000, by and between
InterCare.com, Inc., a California corporation, hereinafter referred to as the
"Company" and , an individual, hereinafter referred to as the
"Optionee".
WITNESSETH:
WHEREAS, pursuant to the resolution adopted by the Board of Directors of the
Company, the Company has entered into a Employment Agreement with the Optionee
and, pursuant to the Agreement, the Company has agreed to grant to the Optionee
an Option to purchase shares of common stock of the Company at the prices per
share hereinafter set forth, such option to be for the term and upon the terms
and conditions hereinafter stated;
NOW THEREFORE, in good consideration of the promises, the mutual covenants
herein contained and other good and valuable consideration, the parties hereto
agree as follows:
1. OPTION. The Company hereby grants to the Optionee the right and option
-------
(hereinafter referred to as the "Option") to purchase all or any part of an
aggregate of 500,000 shares of common stock of the Company (hereinafter referred
to as the "Shares") on the terms and conditions herein set forth.
2. TERM. The term of the Option shall commence on the September 1, 1999 and
-----
shall expire Sixty (60) months from such date on September 1, 2004, save and
except that upon termination of the Agreement, the Option granted herein shall
cease and expire ninety (90) days from the date of terminating the Agreement.
3. PURCHASE PRICE. The purchase price of the Option shall be
----------------
______dollars ($XXXX.) the receipt and sufficiency of which is hereby
acknowledged. The purchase prices of the Shares covered by the Option shall
increase in a range from $5 to $25.00 per share. The Optionee has the right
to purchase Shares in accordance with the following schedule, which purchase
price shall be payable in full, in cash or note, upon exercise of the Option in
accordance with the terms and conditions here provided:
A. XXXX SHARES AT A PRICE OF $5.00 PER SHARE
B. XXXX SHARES AT A PRICE OF $10.00 PER SHARE
C. XXXX SHARES AT A PRICE OF $15.00 PER SHARE
D. XXXX SHARES AT A PRICE OF $20.00 PER SHARE
E. XXXX SHARES AT A PRICE OF $25.00 PER SHARE
4. SECURITIES TO BE REGISTERED. Both the Option and the Shares covered by
the Option shall be "registered securities" as defined for the General Rules and
Regulations under the Securities Act of 1933, as amended (the "Act").
5. EXERCISE. The Option shall be exercisable in whole or in part at any
time and from time to time during the term of the Option by written notice
delivered to the Company at 900 Wilshire Boulevard, Suite 500, Los Angeles,
California 90017. The notice shall state the number of Shares with respect to
which the Option is being exercised, shall contain a representation and
agreement by the Optionee in form and substance substantially as set forth in
the Notice of Exercise, shall be signed by the Optionee and shall be accompanied
by payment. The Option shall not be exercised at any time when its exercise or
the delivery of the Shares referred to in the notice would be a violation of any
law, governmental regulation or ruling. The Option shall be exercisable only by
the Optionee. The Option can only be exercised when the underlying price of the
common shares of the Company is 125% of the exercise price of the Option for a
period of 10 days.
6. ASSIGNMENT AND TRANSFER. The Option and the rights and obligations of
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns.
7. OPTIONEE AS SHAREHOLDER. Optionee shall have all rights as a shareholder
with respect to the Shares covered by the Option on and subsequent to the date
of issuance of a stock certificate or stock certificates to it. Adjustments
will be made for dividends or other rights with respect to which the record date
is on or subsequent to the date such stock certificates were issued
8. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of a change
in the capital structure of the Company as a result of any stock dividend, stock
split, combination or reclassification of shares, recapitalization or
consolidation of, the number of shares covered by the Option shall be
appropriately adjusted to ensure the same absolute benefit to the Optionee.
9. NOTICES. All notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail to the principal office of each party.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this instrument on the day and
year first written above.
ATTEST:
INTERCARE.COM, INC.
By: /S/ ANTHONY C. DIKE
----------------------
ANTHONY C. DIKE
CHIEF EXECUTIVE OFFICER
CHAIRMAN OF OPTION COMMITTEE
<PAGE>
Exhibit 24.12 Form of Escrow Agreement
KEY BANK NATIONAL ASSOCIATION
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and executed this _____
day of _____ , 2000, by and among Intercare.com whose address is 900 Wilshire
Blvd., Suite 500 Los Angeles, California (facsimile 213-627-9183) and Corporate
Stock Transfer, Inc. a Colorado Corporation, (as Transfer Agent), whose address
is 3200 Cherry Creek South Dr. Suite 430 (facsimile no. 202-282-5800),
collectively, the "Depositors"), and Key Bank National Association, Cherry Creek
Branch ("Escrow Holder"), whose address is 1675 Broadway, Suite 200, Denver,
Colorado 80202, Attention: Denise Garcia (facsimile no. (720) 904-4241).
1. Deposits. Depositors shall deposit with Escrow Holder the items
described below (collectively, the "Deposits"), which items shall be held and
disbursed in accordance with and subject to the terms and conditions of this
Agreement. The items to be deposited with Escrow Holder pursuant to this
Agreement are as follows:
Escrow Holder shall receive payments pursuant to the Private Placement
Memorandum dated_________, a copy of which has been delivered to Escrow Holder.
Escrow Holder will hold all Monies and other property in the Escrow account free
from any lien, claim or offset, except as set forth herein, and such debts
thereof, unless and until the conditions set forth in these instructions to
disbursement of such Monies have been fully satisfied.
Escrow Holder shall be provided the name and address of each
subscriber and amounts to be deposited into the escrow by Corporate Stock
Transfer, Inc.
2. Disbursements. The Deposits are to be disbursed by Escrow Holder to
the following persons and/or entities upon the occurrence of the following
events:
The escrow account will remain open until receipt by the Escrow Holder of
subscriptions and deposits totaling a minimum $1,000,000and Escrow Holder shall
----------
provide written notice to all parties to this agreement at such time that
collected funds of $1,000,000 have been deposited.
----------
Escrow Holder will receive written instructions from Corporate Stock Transfer,
Inc., signed by Carylyn K. Bell, President that all subscribers have been
accepted and to disburse funds. These instructions must have been preceded by
instructions from Intercare.com, Inc. specifying amounts of the outgoing
disbursements. After the minimum amount has been disbursed, deposits will
continue to be sent the Escrow Holder until the termination of the offering or
$25,000,000 total has been deposited. Funds will be disbursed from time to time
based on instructions from Corporate Stock Transfer, Inc., signed by Carylyn K.
Bell, President.
3. Automatic Termination of Escrow. If any or all of the Deposits are
not disbursed by Escrow Holder pursuant to the provisions of paragraph 2 above
or otherwise withdrawn on or before__________, subsequent to a 60 day extension,
Escrow Holder may mail the same to the following Depositor(s) at their addresses
as noted below:
All funds shall be returned to the subscribers referred to in paragraph 1 at a
fee of $10.00 per check payable by_____
Upon mailing such items to the proper persons or entities pursuant to this
paragraph 3, Escrow Holder shall be relieved of and released from any and all
further obligations, duties and liability pursuant to this Agreement, and,
subject to the survival of paragraph 10 below, this Agreement immediately and
automatically shall terminate and shall be of no further force or effect.
4. Amendment. These instructions may be altered, amended, modified or
revoked by writing only, signed by all Depositors and Escrow Holder, and upon
payment of all fees, costs and expenses incident thereto.
5. Assignment. No assignment, transfer, conveyance or hypothecation of
any right, title or interest in and to any or all of the Deposits shall be
binding upon Escrow Holder unless: (a) approved in writing by all Depositors,
(b) written notice thereof shall be served upon Escrow Holder and (c) all fees,
costs and expenses incident to such assignment, conveyance or other transfer of
interest shall have been paid.
6. Notices. Any notice required or desired to be given to any party to
this Agreement may be given either by personal delivery, or by Western Union
telegram, by facsimile transmission, or by certified mail, return receipt
requested, postage prepaid; provided, however, any notice given by facsimile
transmission, to be effective, shall be followed by delivery of same by personal
delivery or by certified mail, return receipt requested. All such notices shall
be sent to a party at its address noted above, and such notice shall for all
purposes be as effectual as though served upon such party in person at the time
of personal delivery, or on the date of receipt in the case of transmission by
telegram, or on the date of receipt of the original, in the case of transmission
by facsimile, or two business days after the date of deposit in the U.S. mail,
as applicable.
7. Limitations on Duties. Escrow Holder shall hold and disburse the
Deposits in accordance with the terms and conditions of this Agreement. If at
any time in the performance of its duties as set forth in this Agreement it is
necessary for Escrow Holder to receive, accept or act upon any notice or writing
purported to have been executed or issued by or on behalf of any of the parties
hereto, it shall not be necessary for Escrow Holder to ascertain whether or not
the person or persons who have executed, signed or otherwise issued or
authenticated the writing had the authority to so execute, sign or otherwise
issue or authenticate said writing, or that they are the same persons named
therein or otherwise to pass upon any requirements of such instruments that may
be essential for their validity. Further, Escrow Holder shall have no
responsibility or liability for the sufficiency or correctness as to form,
manner, execution or validity of any instrument deposited or delivered pursuant
to this Agreement, nor as to the truth or accuracy of any information contained
therein, nor as to the identity, authority, capacity or rights of any person
executing the same, nor for the failure to comply with the provisions,
requirements or conditions of any agreement, contract or other instrument
deposited with or delivered to Escrow Holder or referred to herein. Rather, the
duties of Escrow Holder pursuant to this Agreement in all events shall be
limited to the safekeeping of the funds, documents and other items actually
received by Escrow Holder and the disposition of same in accordance with the
instructions set forth above.
8. No Liability for Actions Taken in Good Faith. Escrow Holder shall
not be personally liable for any act it may do or omit to do hereunder while
acting in good faith and in the exercise of its own subjective best judgment,
and any act done or omitted by it pursuant to the advice of its own attorney
shall be conclusive evidence of such good faith and best judgment.
9. Notices and Warnings. Escrow Holder is hereby expressly authorized
and directed to disregard any and all notices or warnings given by any of the
parties hereto, or by any other person or entity, except as otherwise expressly
set forth in this Agreement and except for orders or process of court, and
Escrow Holder is expressly authorized to comply with and obey any and all
orders, judgments or decree of any court. Escrow Holder shall not be liable to
any of the parties hereto or to any other person or entity by reason of
compliance with any order, judgment or decree of any court, even if such order,
judgment or decree is reversed, modified, annulled, set aside or vacated, or is
found to have been entered without jurisdiction.
10. Indemnity. In consideration of the acceptance of this escrow by
Escrow Holder, Depositors, jointly and severally, for themselves, their heirs,
executors, administrators, successors and assigns (collectively, "Indemnitors"),
covenant and agree to pay Escrow Holder its charges, costs and expense hereunder
and to indemnify and hold Escrow Holder harmless as to any liability by it
incurred to any person or entity by reason of its having accepted the same, or
in connection with any performance by Escrow Holder in its capacity as the
escrow holder pursuant to this Agreement. Further, Indemnitors covenant and
agree to reimburse Escrow Holder for all costs and expenses, including, among
other things, counsel fees and court costs incurred in connection with this
Agreement and/or the Deposits. In case of any suit, proceeding, cause of
action, demand or other claim to which Escrow Holder is or at any time may be a
party, Indemnitors agree to pay, promptly upon Escrow Holder's demand, any and
all costs and expenses, including without limit attorneys' fees, incurred by
Escrow Holder in connection with same. Escrow Holder shall have a first and
prior lien upon the Deposits to secure the performance of the indemnity and the
other covenants of Indemnitors pursuant to this paragraph 10, and to secure the
payment of any and all other charges, fees, costs and expenses payable to Escrow
Holder pursuant to this Agreement. Notwithstanding any contrary provision of
this Agreement, the provisions of this paragraph 10 shall survive the expiration
and/or termination of this Agreement.
11. Interpleader. If at any time a dispute shall exist as to the duty
of Escrow Holder under the terms of this Agreement, or if at any time
conflicting demands are served upon Escrow Holder, whether verbally or in
writing, concerning the possession of, title to or proceeds of any or all of the
Deposits, or if any dispute arises between or among Depositors and/or any other
person or entity relating in any way to any item deposited, held or disbursed
pursuant to or otherwise relating to this Agreement, Escrow Holder may deposit
this Agreement and the items then or thereafter held by it pursuant to this
Agreement with the Clerk of the District Court of the City and County of Denver,
State of Colorado, and may interplead the parties hereto. Upon so depositing
this Agreement and such items and filing its complaint in interpleader, Escrow
Holder shall be relieved of and released from all liability under the terms
hereof as to the items so deposited. If the Court does not provide for
reimbursement to Escrow Holder for its attorney fees, costs and expenses related
to the interpleader action out of the interplead funds, then Escrow Holder shall
have a claim enforceable by separate action in Court against the parties,
jointly and severally, for said attorney fees, costs and expenses.
12. FDIC Insurance. In consideration of the fee paid to Escrow Holder
as set forth in this Agreement and the covenants and agreements of Depositors as
set forth above, Escrow Holder agrees to hold the Deposits in accordance and
subject to the terms of this Agreement. During the period the Company is in
possession of the deposit, the money will be deposited in an FDIC-insured
depository (which depository may be Escrow Holder or any other bank owned or
controlled by Key Corp.). Under no circumstances shall Escrow Holder have
liability for loss of funds due to bank, savings and loan association or other
depository failure, suspension or cessation of business, or any action or
inaction on the part of the bank, savings and loan association or other
depositor, or any delivery service transporting funds to and from such
depository.
13. Successors; No Third Party Rights. Subject to the provisions of
paragraph 5 above, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
successors and assigns. This Agreement is only for the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns, and no other person or entity shall be entitled to rely on, receive any
benefit from or to enforce against any party hereto any provisions of this
Agreement.
14. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
15. Entire Agreement; Waiver. This Agreement constitutes the entire
understanding between the parties with respect to the escrow arrangement
contemplated herein, and all prior or contemporaneous oral agreements,
understandings, discussions, representations and statements relating to said
escrow are superseded by this Agreement. The waiver of any particular condition
precedent, provision or remedy provided by this Agreement shall not constitute
the waiver of any other.
16. Business Day. If any date herein set forth for the performance of
any obligation by Escrow Holder or any Depositor, or for the delivery of any
funds, instrument or notice as herein provided, is a Saturday, Sunday or legal
holiday, the compliance with such obligation or delivery shall be deemed
acceptable if effected on the next business day following such Saturday, Sunday
or legal holiday. As used herein, the term "legal holiday" means any state or
federal holiday for which financial institutions or post offices are generally
closed in the State of Colorado for observance thereof.
17. Construction. This Agreement shall not be construed more strictly
against one party than against any other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized
that Escrow Holder and the Depositors have contributed substantially and
materially to the preparation of this Agreement. The headings of various
paragraphs in this Agreement are for convenience only and are not to be utilized
i0 construing the content or meaning of the substantive provisions hereof.
18. Time is of the Essence. All times, wherever specified herein, are
of the essence of this Agreement.
19. Validity. If any term or provision of this Agreement shall be held
illegal and unenforceable or inoperative as a matter of law, the remaining terms
and provisions of this Agreement shall not be affected thereby, but each such
term and provision shall be valid and shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
be taken to be one and the same instrument, to the same effect as if all of the
parties hereto had signed the same signature page. Any signature page of this
Agreement may be detached from any counterpart of this Agreement without
impairing the legal effect of any signatures thereon and may be attached to
another counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
22. Escrow Fee. The parties agree that Escrow Holder's fee for its
services pursuant to this Agreement shall be $ 250.00, payable in full upon
Depositors' execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
on the date first above written.
ESCROW AGENT: KEY BANK NATIONAL ASSOCIATION
By:______________________________
Name:
Its:
DEPOSITORS: .
/s/ Anthony C. Dike
By:_______________________________
Name:
Its: Chairman/CEO
CORPORATE STOCK TRANSFER, INC.
/s/ Carylyn K Bell
By:________________________________
Name: Carylyn K. Bell
Its: President
Exhibit 24.13 Form of Escrow Fee Agreement
ESCROW FEE AGREEMENT
Corporate Stock Transfer, Inc. (hereinafter referred to as "CST") will charge
Intercare.com, Inc. the following for CST's services. These services shall
include all responsibilities entailed in acting as "Escrow Agent for the SB-2
Offering" with a $1,000,000 minimum and a $25,000,000 maximum.
Fee
---
$1,000,000= $2,500
Thereafter, each additional $1,000,000 raised will be an additional $1,000.00
(Plus out of pocket expenses)
CORPORATE STOCK TRANSFER, INC. INTERCARE.COM, INC.
/s/ Carylyn Bell /s/ Anthony C. Dike
---------------------- ----------------------
Carylyn Bell Anthony C. Dike,
President Chairman/CEO
Date:_______________________ Date:__________________
<PAGE>
Exhibit 24.14 Form of Subscription Agreement
INVESTOR SUBSCRIPTION AGREEMENT
FOR
INTERCARE.COM, INC.
Persons interested in purchasing shares in the Common Stock of InterCare.com,
Inc. (the Shares) must complete and return this Subscription Agreement along
with their check or money order made payable to InterCare.com, Inc. C/O
Corporate Stock Transfer (CST), 3200 Cherry Creek Drive South/Suite 430 Denver,
Colorado, 80209. Telephone (303) 282-4800, Fax (303) 282-5800.
If and when accepted by InterCare.com, Inc., a California Corporation (the
"Company"), the subscription Agreement shall constitute a Subscription for
shares of Common Stock, 0.00 Par Value per share, of the Company. A subscription
Agreement may only be deemed complete when payment for shares is made. The
minimum investment is $1000 (100 shares). The maximum investment, subject to
waiver by the Company is $100,000 (10,000 shares).
An accepted copy of this Subscription Agreement will be returned to you as your
receipt, and a stock certificate will be issued to you shortly thereafter.
Method of Payment: Check or money order payable to Intercare.com, Inc.
I hereby irrevocably tender this Subscription Agreement for the purchase of
__________Shares at $10.00 per share. With this Subscription Agreement, I tender
Payment in the amount of $________
($10.00 per share) for Shares subscribed.
In connection with this investment in the Company, I represent and warrant as
follows:
a). Prior to tendering payment for Shares, I receive the Company's
Offering Prospectus dated
____________, 2000.
b). I am a bona fide resident of the state of__________________________
1. Individual(s)-- if more than one owner, I am purchasing as follows:
( ) Tenants-in-Common (all parties must sign-- each joint ownership)
( ) Joint Tenants with Right Survivorship (all parties must
sign--joint ownership)
( ) Minor with adults custody under the Uniform Gift to Minors Act in
your state(the minor will have
sole beneficial ownership)
___________________________ _____________________________
Investor No. 1 (print name above) Investor No. 2(print name above)
___________________________ _____________________________
Street (residence address) Street(residence address)
___________________________ ________________________________
City State Zip City State Zip
_______________________ _______________________
Home Phone Home Phone
_____________________ _________________________
Social Security Number Social Security Number
____________________ _______________________
Date of Birth Date of Birth
_________________________ _____________________
Signature Signature
________________ __________________
Date Date
2. Entity
( ) Corporation (authorized agent of corporation must sign)
( ) Existing Partnership (at least one partner must sign)
____________________________ _____________________________
Name of Corporation or Partnership Authorized Agent (print name above)
________________________________ ____________________________
Street (business address) Title of Authorized Agent
_
__________________________________ _______________________________
City State Zip Federal Identification Number
The undersigned acknowledges under the penalties of perjury that the foregoing
information is true, accurate and complete.
Signature of Authorized Agent
______________________________
Date
3. Trust
( ) Trust (all trustees must sign)
_________________________ _________________________
Trustee (print name above) Trust (print name above)
__________________________ ________________________
Street Address Date of Trust Agreement
__________________________________ ________________________
City State Zip Social Security Number or
Federal Identification
Number
_______________________________________
Phone
The undersigned acknowledges under the penalties of perjury that the foregoing
information is true, accurate and complete.
________________________ _____________________
Signature Signature
____________ _________
Date Date
ACCEPTED BY: INTERCARE.COM, INC.
By:_________________________________ ____________
Date
<PAGE>
Exhibit 24.6 Form of Technology Commercialization Plan submitted
to NASA by the registrant and Meridian Holdings, Inc.(The Parent Company)
filed in paper.
Exhibit 24.7 Form of Copyright Certificate for the Mirage Systems
Biofeedback Interface Form TX issued by the United States Copyright
Office (filed in paper)
Exhibit 24.8 Form of United States Food and Drug Administration
510K approval of Mirage Systems Biofeedback Interface (software only
to be used solely for relaxation training) filed in paper.
Exhibit 24.9 Form of Electronic Commerce agreement between Digital
River Corporation and InterCare.com (filed in paper.)
Exhibit 24.10 Picture of the initial mold of the physiological monitoring
Device to be developed by the Company (filed in paper)
Exhibit 24.11 Copy of recent promotional material used in advertising the
Mirage Systems software programs (filed in paper)
<PAGE>
Exhibit 25.1
WRITTEN CONSENT
OF THE SOLE DIRECTOR OF
MERIDIAN HOLDINGS, INC.
----------------------
a Colorado corporation
Pursuant to the authority of Section 7-108 of the Colorado Business
Corporation Act, the undersigned, being the Sole Director of Meridian Holdings,
Inc., a Colorado corporation, does hereby adopt and consent to the following
recitals and resolution:
Approval of Dividend Distribution
WHEREAS, this corporation has purchased fifty one percent (51%) interest in
Inter-Care Diagnostic, Inc., a California corporation ("Inter-Care") and holds
five million one hundred thousand (5,100,000) shares of the outstanding Common
stock of Inter-care (the "Stock");
WHEREAS, it is proposed that this corporation declare a dividend of the Stock
to each of its shareholders with the exception of all current and past officers,
directors and affiliates, by transferring or causing to be issued five (5)
shares of the Stock for each share of this corporation's Common Stock held by
each such shareholder ("Dividends"); and
WHEREAS, it is deemed advisable and in the best interest of this corporation and
its shareholders that the Dividends be approved;
NOW THEREFORE BE IT RESOLVED, that the Dividends be, and hereby are, approved
and authorized;
RESOLVED FURTHER, that this corporation hereby declares the Dividends be payable
to the shareholders of record as of December 30, 1999; and
RESOLVED FURTHER, that the officers of this corporation, and any of them,
be, and they hereby are, authorized, empowered and directed for and on behalf of
this corporation and in its name to execute, deliver and cause the performance
of all such further documents and to take such further actions as such officer,
or any of them, may in their discretion deem necessary, appropriate or advisable
in order to carry out and perform the intent of the foregoing resolution.
This Written Consent shall be filed in the minute book of this corporation
and shall become part of the records of this corporation.
Dated as of December __, 1999.
/s/ Anthony C. Dike
______________________________________
Anthony C. Dike, M.D., Sole Director
<PAGE>
Exhibit 25.2
MINUTES OF MEETING OF DIRECTORS
OF
INTERCARE.COM
A Meeting of the Board of Directors of INTERCARE.COM was held on the 3rd
day of JANUARY 2000. A quorum constituting a majority of the Directors of the
Corporation were present and signed the Waiver of Notice which is on file
herewith:
On motion duly made and seconded it was voted:
RESOLVED, that the Company hereby authorizes the issuance of the following
stock dividend:
EACH SHAREHOLDER OF MERIDIAN HOLDINGS, INC. SHALL RECEIVE 5 SHARES OF
INTERCARE.COM., WHICH DISTRIBUTION SHALL BE REGISTERED.
ONLY THOSE SHAREHOLDERS OF MERIDIAN HOLDINGS, INC. WITH FREE TRADING SHARES
ON THE RECORD DATE SHALL BE ELIGIBLE FOR THE STOCK DIVIDEND.
THE RECORD DATE FOR THE DIVIDEND IS DECEMBER 30, 1999
THE DISTRIBUTION DATE FOR THE DIVIDEND IS JANUARY 15, 2000.
There being no further business to come before the Meeting at this time, it
was voted to adjourn.
/s/ Anthony C. Dike
_____________________
Chairman of the Board
/s/ Anthony C. Dike
________________________
Secretary
<PAGE>
EX-27.1
FINANCIAL DATA SCHEDULE
[ARTICLE] 5
[RESTATED]
[MULTIPLIER] 1
<TABLE>
<CAPTION>
<S> <C>
[PERIOD-TYPE] 12-MOS
[FISCAL-YEAR-END] DEC-31-1999
[PERIOD-START] JAN-01-1999
[PERIOD-END] DEC-31-1999
[CASH] 864
[SECURITIES] 0
[RECEIVABLES] 0
[ALLOWANCES] 47672
[INVENTORY] 21639
[CURRENT-ASSETS] 22503
[PP&E] 253
[DEPRECIATION] 13505
[TOTAL-ASSETS] 22756
[CURRENT-LIABILITIES] 0
[BONDS] 0
[PREFERRED-MANDATORY] 0
[PREFERRED] 0
[COMMON] 577228
[OTHER-SE] (554472)
[TOTAL-LIABILITY-AND-EQUITY] 22756
[SALES] 6629
[TOTAL-REVENUES] 6629
[CGS] 252
[TOTAL-COSTS] 120800
[OTHER-EXPENSES] 0
[LOSS-PROVISION] 0
[INTEREST-EXPENSE] 0
[INCOME-PRETAX] (114423)
[INCOME-TAX] 0
[INCOME-CONTINUING] 0
[DISCONTINUED] 0
[EXTRAORDINARY] 0
[CHANGES] 0
[NET-INCOME] (114423)
[EPS-BASIC] 0
[EPS-DILUTED] 0
</TABLE>
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