UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
Pursuant to Section 12(b) or (g) of the Securities and Exchange
Act of 1934
2
MELLONCAMP, INC.
(Exact name of registrant as specified in its charter)
Amendment 1
Nevada 88-0386352
(State of organization) (I.R.S. Employer Identification No.)
2080 E. Flamingo Rd., Suite 112, Las Vegas, NV 89119
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common stock, par value $.001 per share
Preferred Stock, $.001 par value per share
ITEM 1. DESCRIPTION OF BUSINESS
Background
Melloncamp, Inc. (the "Company") is a Nevada corporation formed
on February 19, 1998. Its principal place of business is located
at 2080 E. Flamingo Rd., Suite 112, Las Vegas, NV 89119. The
Company was organized to engage in any lawful corporate business,
including but not limited to, participating in mergers with and
acquisitions of other companies. The Company has been in the
developmental stage since inception and has no operating history
other than organizational matters.
On February 23, 1998, the company issued 3,000,000 shares of its
common stock to 36 shareholders in transactions exempt from
registration pursuant to section 4(2) of the Securities Act of
1933, as amended (the "Securities Act"). These shares were
issued as follows: 2,950,000 shares were issued to 7
shareholders for consideration of maintaining the entity and for
consulting or other professional services rendered by each to the
Corporation, and an additional 50,000 shares were issued to 29
shareholders for consideration of reviewing potential business
opportunities and maintaining the entity.
The primary activity of the Company currently involves seeking a
company or companies that it can acquire or with whom it can
merge. The Company has not selected any company as an acquisition
target or merger partner and does not intend to limit potential
candidates to any particular field or industry, but does retain
the right to limit candidates, if it so chooses, to a particular
field or industry. The Company's plans are in the conceptual
stage only.
The Board of Directors has elected to begin implementing the
Company's principal business purpose, described below under "Item
2, Plan of Operation". As such, the Company can be defined as a
"shell" company, whose sole purpose at this time is to locate and
consummate a merger or acquisition with a private entity.
The proposed business activities described herein classify the
Company as a "blank check" company. Many states have enacted
statutes, rules, and regulations limiting the sale of securities
of "blank check" companies in their respective jurisdictions.
Management does not intend to undertake any efforts to cause a
market to develop in the Company's securities until such time as
the Company has successfully implemented its business plan.
The Company is filing this registration statement on a voluntary
basis, pursuant to section 12(g) of the Securities Exchange Act
of 1934 (the "Exchange Act"), in order to ensure that public
information is readily accessible to all shareholders and
potential investors, and to increase the Company's access to
financial markets, and to permit the company to qualify to have
its common quoted on the OTC-Bulletin Board (the "OTC-BB"). The
company intends to have its common stock traded on the OTC-BB as
soon as possible, and has begun the process of applying for
inclusions. The Company's stock may be quoted on the "pink-
sheets" prior to the OTC-BB. There is no guarantee that the
stock will be quoted on either service, however.
Risk Factors
The Company's business is subject to numerous risk factors,
including the following:
NO OPERATING HISTORY OR REVENUE AND MINIMAL ASSETS. The Company
has had no operating history and has received no revenues or
earnings from operations. The Company has no significant assets
or financial resources. The Company will, in all likelihood,
sustain operating expenses without corresponding revenues, at
least until it completes a business combination. This may result
in the Company incurring a net operating loss which will increase
continuously until the Company completes a business combination
with a profitable business opportunity. There is no assurance
that the Company will identify a business opportunity or complete
a business combination.
SPECULATIVE NATURE OF COMPANY'S PROPOSED OPERATIONS. The success
of the Company's proposed plan of operation will depend to a
great extent on the operations, financial condition, and
management of the identified business opportunity. While
management intends to seek business combinations with entities
having established operating histories, it cannot assure that the
Company will successfully locate candidates meeting such
criteria. In the event the Company completes a business
combination, the success of the Company's operations may be
dependent upon management of the successor firm or venture
partner firm together with numerous other factors beyond the
Company's control.
SCARCITY OF AND COMPETITION FOR BUSINESS OPPORTUNITIES AND
COMBINATIONS. The Company is, and will continue to be, an
insignificant participant in the business of seeking mergers and
joint ventures with, and acquisitions of small private entities.
A large number of established and well-financed entities,
including venture capital firms, are active in mergers and
acquisitions of companies which may also be desirable target
candidates for the Company. Nearly all such entities have
significantly greater financial resources, technical expertise,
and managerial capabilities than the Company. The Company is,
consequently, at a competitive disadvantage in identifying
possible business opportunities and successfully completing a
business combination. Moreover, the Company will also compete
with numerous other small public companies in seeking merger or
acquisition candidates.
NO AGREEMENT FOR BUSINESS COMBINATION OR OTHER TRANSACTION - NO
STANDARDS FOR BUSINESS COMBINATION. The Company has no
arrangement, agreement, or understanding with respect to engaging
in a business combination with any private entity. There can be
no assurance the Company will successfully identify and evaluate
suitable business opportunities or conclude a business
combination. Management has not identified any particular
industry or specific business within an industry for evaluations.
The Company has been in the developmental stage since inception
and has no operations to date. Other than issuing shares to its
original shareholders, the Company never commenced any
operational activities. There is no assurance the Company will be
able to negotiate a business combination on terms favorable to
the Company. The Company has not established a specific length of
operating history or a specified level of earnings, assets, net
worth or other criteria which it will require a target business
opportunity to have achieved, and without which the Company would
not consider a business combination in any form with such
business opportunity. Accordingly, the Company may enter into a
business combination with a business opportunity having no
significant operating history, losses, limited or no potential
for earnings, limited assets, negative net worth, or other
negative characteristics.
CONTINUED MANAGEMENT CONTROL, LIMITED TIME AVAILABILITY. While
seeking a business combination, management anticipates devoting
up to twenty hours per month to the business of the Company. The
Company's officers have not entered into written employment
agreements with the Company and are not expected to do so in the
foreseeable future. The Company has not obtained key man life
insurance on its officers or directors. Notwithstanding the
combined limited experience and time commitment of management,
loss of the services of any of these individuals would adversely
affect development of the Company's business and its likelihood
of continuing operations. See "MANAGEMENT."
CONFLICTS OF INTEREST - GENERAL. The Company's officers and
directors participate in other business ventures which compete
directly with the Company. Additional conflicts of interest and
non "arms-length" transactions may also arise in the event the
Company's officers or directors are involved in the management of
any firm with which the Company transacts business. See "ITEM 5.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS -
CONFLICTS OF INTEREST."
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION.
Companies subject to Section 13 of the Securities Exchange Act of
1934 (the "Exchange Act") must provide certain information about
significant acquisitions, including certified financial
statements for the company acquired, covering one or two years,
depending on the relative size of the acquisition. The time and
additional costs that may be incurred by some target entities to
prepare such statements may significantly delay or even preclude
the Company from completing an otherwise desirable acquisition.
Acquisition prospects that do not have or are unable to obtain
the required audited statements may not be appropriate for
acquisition so long as the reporting requirements of the 1934 Act
are applicable.
LACK OF MARKET RESEARCH OR MARKETING ORGANIZATION. The Company
has not conducted or received results of market research
indicating that market demand exists for the transactions
contemplated by the Company. Moreover, the Company does not have,
and does not plan to establish, a marketing organization. If
there is demand for a business combination as contemplated by the
Company, there is no assurance the Company will successfully
complete such transaction.
LACK OF DIVERSIFICATION. In all likelihood, the Company's
proposed operations, even if successful, will result in a
business combination with only one entity. Consequently, the
resulting activities will be limited to that entity's business.
The Company's inability to diversify its activities into a number
of areas may subject the Company to economic fluctuations within
a particular business or industry, thereby increasing the risks
associated with the Company's operations.
REGULATION. Although the Company will be subject to regulation
under the Securities Exchange Act of 1934, management believes
the Company will not be subject to regulation under the
Investment Company Act of 1940, insofar as the Company will not
be engaged in the business of investing or trading in securities.
In the event the Company engages in business combinations which
result in the Company holding passive investment interests in a
number of entities, the Company could be subject to regulation
under the Investment Company Act of 1940. In such event, the
Company would be required to register as an investment company
and could be expected to incur significant registration and
compliance costs. The Company has obtained no formal
determination from the Securities and Exchange Commission as to
the status of the Company under the Investment Company Act of
1940 and, consequently, any violation of such Act would subject
the Company to material adverse consequences.
PROBABLE CHANGE IN CONTROL AND MANAGEMENT. A business combination
involving the issuance of the Company's common stock will, in all
likelihood, result in shareholders of a private company obtaining
a controlling interest in the Company. Any such business
combination may require management of the Company to sell or
transfer all or a portion of the Company's common stock held by
them, or resign as members of the Board of Directors of the
Company. The resulting change in control of the Company could
result in removal of one or more present officers and directors
of the Company and a corresponding reduction in or elimination of
their participation in the future affairs of the Company.
REDUCTION OF PERCENTAGE SHARE OWNERSHIP FOLLOWING BUSINESS
COMBINATION. The Company's primary plan of operation is based
upon a business combination with a private concern which, in all
likelihood, would result in the Company issuing securities to
shareholders of such private company. Issuing previously
authorized and unissued common stock of the Company will reduce
the percentage of shares owned by present and prospective
shareholders, and a change in the Company's control and/or
management.
DISADVANTAGES OF BLANK CHECK OFFERING. The Company may enter into
a business combination with an entity that desires to establish a
public trading market for its shares. A target company may
attempt to avoid what it deems to be adverse consequences of
undertaking its own public offering by seeking a business
combination with the Company. The perceived adverse consequences
may include, but are not limited to, time delays of the
registration process, significant expenses to be incurred in such
an offering, loss of voting control to public shareholders, and
the inability or unwillingness to comply with various federal and
state securities laws enacted for the protection of investors.
These securities laws primarily relate to registering securities
and full disclosure of the Company's business, management, and
financial statements.
TAXATION. Federal and state tax consequences will, in all
likelihood, be major considerations in any business combination
the Company may undertake. Typically, these transactions may be
structured to result in tax-free treatment to both companies,
pursuant to various federal and state tax provisions. The Company
intends to structure any business combination so as to minimize
the federal and state tax consequences to both the Company and
the target entity. Management cannot assure that a business
combination will meet the statutory requirements for a tax-free
reorganization, or that the parties will obtain the intended tax-
free treatment upon a transfer of stock or assets. A non-
qualifying reorganization could result in the imposition of both
federal and state taxes, which may have an adverse effect on both
parties to the transaction.
REQUIREMENT OF AUDITED FINANCIAL STATEMENTS MAY DISQUALIFY
BUSINESS OPPORTUNITIES. Management believes that any potential
target company must provide audited financial statements for
review, and for the protection of all parties to the business
combination. One or more attractive business opportunities may
forego a business combination with the Company, rather than incur
the expenses associated with preparing audited financial
statements.
BLUE SKY CONSIDERATIONS. Because the securities registered
hereunder have not been registered for resale under the blue sky
laws of any state, and the Company has no current plans to
register or qualify its shares in any state, holders of these
shares and persons who desire to purchase them in any trading
market that might develop in the future, should be aware that
there may be significant state blue sky restrictions upon the
ability of new investors to purchase the securities. These
restrictions could reduce the size of any potential market. As a
result of recent changes in federal law, non-issuer trading or
resale of the Company's securities is exempt from state
registration or qualification requirements in most states.
However, some states may continue to restrict the trading or
resale of blind-pool or "blank-check" securities. Accordingly,
investors should consider any potential secondary market for the
Company's securities to be a limited one.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATION
NOTE REGARDING PROJECTIONS AND FORWARD LOOKING STATEMENTS
This statement includes projections of future results and
"forward-looking statements" as that term is defined in Section
27A of the Securities Act of 1933 as amended (the "Securities
Act"), and Section 21E of the Securities Exchange Act of 1934 as
amended (the "Exchange Act"). All statements that are included in
this Registration Statement, other than statements of historical
fact, are forward-looking statements. Although Management
believes that the expectations reflected in these forward-looking
statements are reasonable, it can give no assurance that such
expectations will prove to have been correct. Important factors
that could cause actual results to differ materially from the
expectations are disclosed in this Statement, including, without
limitation, in conjunction with those forward-looking statements
contained in this Statement.
Plan of Operation - General
The Company's plan is to seek, investigate, and if such
investigation warrants, acquire an interest in one or more
business opportunities presented to it by persons or firms
desiring the perceived advantages of a publicly held corporation.
At this time, the Company has no plan, proposal, agreement,
understanding, or arrangement to acquire or merge with any
specific business or company, and the Company has not identified
any specific business or company for investigation and
evaluation. No member of Management or any promoter of the
Company, or an affiliate of either, has had any material
discussions with any other company with respect to any
acquisition of that company. The Company will not restrict its
search to any specific business, industry, or geographical
location, and may participate in business ventures of virtually
any kind or nature. Discussion of the proposed business under
this caption and throughout this Registration Statement is
purposefully general and is not meant to restrict the Company's
virtually unlimited discretion to search for and enter into a
business combination.
The Company may seek a combination with a firm which only
recently commenced operations, or a developing company in need of
additional funds to expand into new products or markets or
seeking to develop a new product or service, or an established
business which may be experiencing financial or operating
difficulties and needs additional capital which is perceived to
be easier to raise by a public company. In some instances, a
business opportunity may involve acquiring or merging with a
corporation which does not need substantial additional cash but
which desires to establish a public trading market for its common
stock. The Company may purchase assets and establish wholly-owned
subsidiaries in various businesses or purchase existing
businesses as subsidiaries.
Selecting a business opportunity will be complex and extremely
risky. Because of general economic conditions, rapid
technological advances being made in some industries, and
shortages of available capital, management believes that there
are numerous firms seeking the benefits of a publicly-traded
corporation. Such perceived benefits of a publicly traded
corporation may include facilitating or improving the terms on
which additional equity financing may be sought, providing
liquidity for the principals of a business, creating a means for
providing incentive stock options or similar benefits to key
employees, providing liquidity (subject to restrictions of
applicable statutes) for all shareholders, and other items.
Potentially available business opportunities may occur in many
different industries and at various stages of development, all of
which will make the task of comparative investigation and
analysis of such business opportunities extremely difficult and
complex.
Management believes that the Company may be able to benefit from
the use of "leverage" to acquire a target company. Leveraging a
transaction involves acquiring a business while incurring
significant indebtedness for a large percentage of the purchase
price of that business. Through leveraged transactions, the
Company would be required to use less of its available funds to
acquire a target company and, therefore, could commit those funds
to the operations of the business, to combinations with other
target companies, or to other activities. The borrowing involved
in a leveraged transaction will ordinarily be secured by the
assets of the acquired business. If that business is not able to
generate sufficient revenues to make payments on the debt
incurred by the Company to acquire that business, the lender
would be able to exercise the remedies provided by law or by
contract. These leveraging techniques, while reducing the amount
of funds that the Company must commit to acquire a business, may
correspondingly increase the risk of loss to the Company. No
assurance can be given as to the terms or availability of
financing for any acquisition by the Company. During periods when
interest rates are relatively high, the benefits of leveraging
are not as great as during periods of lower interest rates,
because the investment in the business held on a leveraged basis
will only be profitable if it generates sufficient revenues to
cover the related debt and other costs of the financing. Lenders
from which the Company may obtain funds for purposes of a
leveraged buy-out may impose restrictions on the future
borrowing, distribution, and operating policies of the Company.
It is not possible at this time to predict the restrictions, if
any, which lenders may impose, or the impact thereof on the
Company.
The Company has insufficient capital with which to provide the
owners of businesses significant cash or other assets. Management
believes the Company will offer owners of businesses the
opportunity to acquire a controlling ownership interest in a
public company at substantially less cost than is required to
conduct an initial public offering. The owners of the businesses
will, however, incur significant post-merger or acquisition
registration costs in the event they wish to register a portion
of their shares for subsequent sale. The Company will also incur
significant legal and accounting costs in connection with the
acquisition of a business opportunity, including the costs of
preparing post-effective amendments, Forms 8-K, agreements, and
related reports and documents. Nevertheless, the officers and
directors of the Company have not conducted market research and
are not aware of statistical data which would support the
perceived benefits of a merger or acquisition transaction for the
owners of a businesses. The Company does not intend to make any
loans to any prospective merger or acquisition candidates or to
unaffiliated third parties.
The Company will not restrict its search for any specific kind of
firms, but may acquire a venture which is in its preliminary or
development stage, which is already in operation, or in
essentially any stage of its corporate life. It is impossible to
predict at this time the status of any business in which the
Company may become engaged, in that such business may need to
seek additional capital, may desire to have its shares publicly
traded, or may seek other perceived advantages which the Company
may offer. However, the Company does not intend to obtain funds
in one or more private placements to finance the operation of any
acquired business opportunity until such time as the Company has
successfully consummated such a merger or acquisition. The
Company also has no plans to conduct any offerings under
Regulation S.
Sources of Opportunities
The Company will seek a potential business opportunity from all
known sources, but will rely principally on personal contacts of
its officers and directors as well as indirect associations
between them and other business and professional people. It is
not presently anticipated that the Company will engage
professional firms specializing in business acquisitions or
reorganizations.
Management, while not especially experienced in matters relating
to the new business of the Company, will rely upon their own
efforts and, to a much lesser extent, the efforts of the
Company's shareholders, in accomplishing the business purposes of
the Company. It is not anticipated that any outside consultants
or advisors, other than the Company's legal counsel and
accountants, will be utilized by the Company to effectuate its
business purposes described herein. However, if the Company does
retain such an outside consultant or advisor, any cash fee earned
by such party will need to be paid by the prospective
merger/acquisition candidate, as the Company has no cash assets
with which to pay such obligation. There have been no
discussions, understandings, contracts or agreements with any
outside consultants and none are anticipated in the future. In
the past, the Company's management has never used outside
consultants or advisors in connection with a merger or
acquisition.
As is customary in the industry, the Company may pay a finder's
fee for locating an acquisition prospect. If any such fee is
paid, it will be approved by the Company's Board of Directors and
will be in accordance with the industry standards. Such fees are
customarily between 1% and 5% of the size of the transaction,
based upon a sliding scale of the amount involved. Such fees are
typically in the range of 5% on a $1,000,000 transaction ratably
down to 1% in a $4,000,000 transaction. Management has adopted a
policy that such a finder's fee or real estate brokerage fee
could, in certain circumstances, be paid to any employee,
officer, director or 5% shareholder of the Company, if such
person plays a material role in bringing a transaction to the
Company.
The Company will not have sufficient funds to undertake any
significant development, marketing, and manufacturing of any
products which may be acquired. Accordingly, if it acquires the
rights to a product, rather than entering into a merger or
acquisition, it most likely would need to seek debt or equity
financing or obtain funding from third parties, in exchange for
which the Company would probably be required to give up a
substantial portion of its interest in any acquired product.
There is no assurance that the Company will be able either to
obtain additional financing or to interest third parties in
providing funding for the further development, marketing and
manufacturing of any products acquired.
Evaluation of Opportunities
The analysis of new business opportunities will be undertaken by
or under the supervision of the officers and directors of the
Company (see "Item 5"). Management intends to concentrate on
identifying prospective business opportunities which may be
brought to its attention through present associations with
management. In analyzing prospective business opportunities,
management will consider, among other factors, such matters as;
1. the available technical, financial and managerial resources
2. working capital and other financial requirements
3. history of operation, if any
4. prospects for the future
5. present and expected competition
6. the quality and experience of management services which may
be available and the depth of that management
7. the potential for further research, development or
exploration
8. specific risk factors not now foreseeable but which then may
be anticipated to impact the proposed activities of the Company
9. the potential for growth or expansion
10. the potential for profit
11. the perceived public recognition or acceptance of products,
services or trades
12. name identification
Management will meet personally with management and key personnel
of the firm sponsoring the business opportunity as part of their
investigation. To the extent possible, the Company intends to
utilize written reports and personal investigation to evaluate
the above factors. The Company will not acquire or merge with any
company for which audited financial statements cannot be
obtained.
Opportunities in which the Company participates will present
certain risks, many of which cannot be identified adequately
prior to selecting a specific opportunity. The Company's
shareholders must, therefore, depend on Management to identify
and evaluate such risks. Promoters of some opportunities may have
been unable to develop a going concern or may present a business
in its development stage (in that it has not generated
significant revenues from its principal business activities prior
to the Company's participation.) Even after the Company's
participation, there is a risk that the combined enterprise may
not become a going concern or advance beyond the development
stage. Other opportunities may involve new and untested products,
processes, or market strategies which may not succeed. Such risks
will be assumed by the Company and, therefore, its shareholders.
The investigation of specific business opportunities and the
negotiation, drafting, and execution of relevant agreements,
disclosure documents, and other instruments will require
substantial management time and attention as well as substantial
costs for accountants, attorneys, and others. If a decision is
made not to participate in a specific business opportunity the
costs incurred in the related investigation would not be
recoverable. Furthermore, even if an agreement is reached for the
participation in a specific business opportunity, the failure to
consummate that transaction may result in the loss by the Company
of the related costs incurred.
There is the additional risk that the Company will not find a
suitable target. Management does not believe the Company will
generate revenue without finding and completing a transaction
with a suitable target company. If no such target is found,
therefore, no return on an investment in the Company will be
realized, and there will not, most likely, be a market for the
Company's stock.
Acquisition of Opportunities
In implementing a structure for a particular business
acquisition, the Company may become a party to a merger,
consolidation, reorganization, joint venture, franchise, or
licensing agreement with another corporation or entity. It may
also purchase stock or assets of an existing business. Once a
transaction is complete, it is possible that the present
management and shareholders of the Company will not be in control
of the Company. In addition, a majority or all of the Company's
officers and directors may, as part of the terms of the
transaction, resign and be replaced by new officers and directors
without a vote of the Company's shareholders.
It is anticipated that securities issued in any such
reorganization would be issued in reliance on exemptions from
registration under applicable Federal and state securities laws.
In some circumstances, however, as a negotiated element of this
transaction, the Company may agree to register such securities
either at the time the transaction is consummated, under certain
conditions, or at specified time thereafter. The issuance of
substantial additional securities and their potential sale into
any trading market which may develop in the Company's Common
Stock may have a depressive effect on such market.
While the actual terms of a transaction to which the Company may
be a party cannot be predicted, it may be expected that the
parties to the business transaction will find it desirable to
avoid the creation of a taxable event and thereby structure the
acquisition in a so called "tax free" reorganization under
Sections 368(a)(1) or 351 of the Internal Revenue Code of 1986,
as amended (the "Code"). In order to obtain tax free treatment
under the Code, it may be necessary for the owners of the
acquired business to own 80% or more of the voting stock of the
surviving entity. In such event, the shareholders of the Company,
including investors in this offering, would retain less than 20%
of the issued and outstanding shares of the surviving entity,
which could result in significant dilution in the equity of such
shareholders.
As part of the Company's investigation, officers and directors of
the Company will meet personally with management and key
personnel, may visit and inspect material facilities, obtain
independent analysis or verification of certain information
provided, check references of management and key personnel, and
take other reasonable investigative measures, to the extent of
the Company's limited financial resources and management
expertise.
The manner in which the Company participates in an opportunity
with a target company will depend on the nature of the
opportunity, the respective needs and desires of the Company and
other parties, the management of the opportunity, and the
relative negotiating strength of the Company and such other
management.
With respect to any mergers or acquisitions, negotiations with
target company management will be expected to focus on the
percentage of the Company which the target company's shareholders
would acquire in exchange for their shareholdings in the target
company. Depending upon, among other things, the target company's
assets and liabilities, the Company's shareholders will, in all
likelihood, hold a lesser percentage ownership interest in the
Company following any merger or acquisition. The percentage
ownership may be subject to significant reduction in the event
the Company acquires a target company with substantial assets.
Any merger or acquisition effected by the Company can be expected
to have a significant dilutive effect on the percentage of shares
held by the Company's then shareholders.
Management has advanced, and will continue to advance, funds
which shall be used by the Company in identifying and pursuing
agreements with target companies. Management anticipates that
these funds will be repaid from the proceeds of any agreement
with the target company, and that any such agreement may, in
fact, be contingent upon the repayment of those funds.
Competition
The Company is an insignificant participant among firms which
engage in business combinations with, or financing of,
development-stage enterprises. There are many established
management and financial consulting companies and venture capital
firms which have significantly greater financial and personal
resources, technical expertise and experience than the Company.
In view of the Company's limited financial resources and
management availability, the Company will continue to be at
significant competitive disadvantage vis-a-vis the Company's
competitors.
Year 2000 Compliance
The Company is aware of the issues associated with the
programming code in existing computer systems concerning the year
2000. The Company has assessed these issues as they relate to the
Company, and since the Company currently has no operating
business and does not use any computers, and since it has no
customers, suppliers or other constituents, it does not believe
that there are any material year 2000 issues to disclose in this
Form 10-SB.
Regulation and Taxation
The Investment Company Act of 1940 defines an "investment
company" as an issuer which is or holds itself out as being
engaged primarily in the business of investing, reinvesting or
trading securities. While the Company does not intend to engage
in such activities, the Company may obtain and hold a minority
interest in a number of development stage enterprises. The
Company could be expected to incur significant registration and
compliance costs if required to register under the Investment
Company Act of 1940. Accordingly, management will continue to
review the Company's activities from time to time with a view
toward reducing the likelihood the Company could be classified as
an "investment company".
The Company intends to structure a merger or acquisition in such
manner as to minimize Federal and state tax consequences to the
Company and to any target company.
Employees
The Company's only employees at the present time are its officers
and directors, who will devote as much time as the Board of
Directors determine is necessary to carry out the affairs of the
Company. (See "Item 5").
ITEM 3. DESCRIPTION OF PROPERTY.
The Company neither owns nor leases any real property at this
time. The Company does have the use of a limited amount of office
space from the resident agent, Chapman & Flanagan, Ltd., at no
cost to the Company, and Management expects this arrangement to
continue. The Company pays its own charges for long distance
telephone calls and other miscellaneous secretarial,
photocopying, and similar expenses. This is a verbal agreement
between the Resident Agent and the Board of Directors.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
The following table sets forth each person known to the Company,
as of January 19, 2000, to be a beneficial owner of five percent
(5%) or more of the Company's common stock, by the Company's
directors individually, and by all of the Company's directors and
executive officers as a group. Except as noted, each person has
sole voting and investment power with respect to the shares
shown.
<TABLE>
<S> <C> <C> <C>
Title of Name/Address Shares Percentage
Class of Owner Beneficially Ownership
Owned
Common Kenneth D. Greble 1,225,000 40.83%
10 Canterclub Ct.
DeBary, FL 32713
Common Earl P. Gilbrech 1,225,000 40.83%
503 E. Belmont
Phoenix, AZ 85068
Common All Officers and 2,450,000 81.67%
Directors
(2 individuals)
</TABLE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS, AND CONTROL
PERSONS
The members of the Board of Directors of the Company serve until
the next annual meeting of the stockholders, or until their
successors have been elected. The officers serve at the pleasure
of the Board of Directors.
There are no agreements for any officer or director to resign at
the request of any other person, and none of the officers or
directors named below are acting on behalf of, or at the
direction of, any other person.
The Company's officers and directors will devote their time to
the business on an "as-needed" basis, which is expected to
require 5-10 hours per month.
Information as to the directors and executive officers of the
Company is as follows:
<TABLE>
<S> <C> <C>
Name/Address Age Position
Kenneth D. Greble 39 President/Direc
4335 S. Industrial Rd. tor
Las Vegas, NV 89103
Earl P. Gilbrech 55 Secretary/Treasurer/Director
4335 S. Industrial Rd.
Las Vegas, NV 89103
</TABLE>
Kenneth D. Greble; President
Mr. Kenneth D. Greble has been a Director and President of the
Company since January, 1999.
From 1999 until present, Mr. Greble has been employed by Ticker
Profiles, an internet financial destination site. He was in
charge of operations, marketing, and sales.
From August 1997 until September 1998, Mr. Greble was employed by
A.M.F. Recreational Centers in San Antonio, Texas as a Cluster
Manager. He was responsible for the operation of 8 locations
with gross annual revenue of $7 million dollars. He was
accountable for 230 employees in various locations, including
those in food and beverage operations, producing $2 million
dollars annually, supervised equipment and facilities maintenance
with budgets of $750,000 annually. He also developed local store
sales efforts and ensured adherence to national product sales
programs.
From January 1995 until July 1997, Mr. Greble was employed by
A.M.F. Recreational Centers in Orlando, Florida as a General
Manager. He was responsible for the overall locations, customer
service and retention programs, seasonal sales/marketing
campaigns, new business development through outside sales
efforts, and year-round key account service for recreation center
for a location with over $1 million dollars in sales revenue
annually.
From December 1992 until January 1995, Mr. Greble was employed by
Fair Lanes, Inc., in Orlando, Florida as a Managing Partner. He
was responsible for the overall operations of three locations
with full P & L accountabilities. He supervised, trained and
developed fifteen managers with responsibilities in the following
areas: Food and beverage operations, technical services,
facilities maintenance, administrative procedures. He also did
personnel training/development, sales, and marketing.
From November 1990 until November 1992, Mr. Greble was employed
by Fair Lanes Deltona in Orange City, Florida as a General
Manager. He was responsible for the overall locations, customer
service and retention programs, seasonal sales/marketing
campaigns, new business development through outside sales
efforts, and for year-round key account service for recreation
center for a location with over $1 million dollars in sales
revenue annually.
Earl P. Gilbrech; Secretary/Treasurer
Mr. Gilbrech has been a Director, Secretary, and Treasurer of the
Company since February 23, 1998. He currently holds a number of
other positions with other companies to which he devotes a
portion of his time.
From 1999 until present, Mr. Gilbrech has been employed by
Powerclick as a Director. Powerclick is an Internet Marketing
company that sells traffic advertising. He is responsible for
writing company policies and guidelines, hiring key personnel,
and establishing operating budgets.
From 1999 until present, Mr. Gilbrech has been employed by
National Mortgage Executives, Inc. as a Director and Vice
President of Marketing; Real Estate; Commercial Loans. He is
responsible for marketing of the company, finding real estate for
potential clients and setting up commercial loans.
From 1999 until present, Mr. Gilbrech has been employed by
American Tobacco & Liquor as a Director of marketing and sales
for the southwest United States and Caribbean. AT&L is an
import/export company. He is responsible for writing company
policies and guidelines, hiring key personnel, and establishing
operating budgets.
From 1998 until present, Mr. Gilbrech was a Director and the
Secretary of Bennett & Reed, Inc. a blank check company.
From 1997 until 1999, Mr. Gilbrech was employed as a consultant
to National Mortgage Executives, a mortgage brokerage company.
He served as a real estate locator and head of advertising. He
was responsible for locating land to suit the clients needs and
was in charge of the advertising for the company.
From 1997 until 1999, Mr. Gilbrech served as consultant to Texas
T. Ltd., an oil and mineral company. He was contracted to
negotiate lease contracts for precious metals exploration between
the firm and the government of Belize.
From 1997 until 1999, Mr. Gilbrech was employed by John Burks
Real Estate as a consultant. John Burks Real Estate is a real
estate company. He worked with potential clients interested in
purchasing land in Belize.
From 1997 until Jan. 2000, Mr. Gilbrech served as Secretary,
Treasurer and Director of Caribbean Ventures, Inc., a blank check
company. He was responsible for writing company policies and
guidelines, hiring key personnel, and establishing operating
budgets.
From 1996 until present, Mr. Gilbrech was employed by Caribbean
Casinos as a Director of the Company. Caribbean Casinos is a
casino consulting company. He was responsible for the advance in
Internet set-up, costs, personnel, and daily general
administration duties.
From 1996 until 1998, Mr. Gilbrech was employed by Fenton Gray as
a Director and President. Fenton Gray was a wholesale phone card
company. He was responsible for the initial setup of the
corporation, writing company policies and guidelines, hiring key
personnel and establishing operating budgets.
From 1990 until present, Mr. Gilbrech was employed by American
International Investors as a Director in the North American
Region and as head of operations and investments. AII is a
consulting company in the hotel and motel management business.
He was responsible for writing company policies and guidelines,
hiring key personnel, and establishing operating budgets.
Blank Check Experience
In addition to the experience described above, Mr. Earl Gilbrech
is or has been an officer and/or director of two blank check
companies.
<TABLE>
<S> <C> <C> <C> <C>
Incorporation Name Form Type File Date of Status
Number Filing (3) (1)
Caribbean Ventures 10SB12G/A 1-14849 8/11/99 No
Bennett & Reed, N/A N/A N/A No
Inc. (2)
</TABLE>
(1) Under Merger Status "Merged" represents either a merger or
an acquisition has occurred and "No" represents that the company
is currently seeking a merger or acquisition candidate.
(2) This non-reporting company is included for information
purposes only.
(3) On the 61st day after filing of Form 10SB, each company
becomes subject to the reporting requirements under the
Securities Exchange Act of 1934.
There is no family relationship between any of the officers and
directors of the Company. The Company's Board of Directors has
not established any committees.
Conflicts of Interest
Insofar as the officers and directors are engaged in other
business activities, management anticipates it will devote only a
minor amount of time to the Company's affairs. The officers and
directors of the Company may in the future become shareholders,
officers or directors of other companies which may be formed for
the purpose of engaging in business activities similar to those
conducted by the Company. The Company does not currently have a
right of first refusal pertaining to opportunities that come to
management's attention insofar as such opportunities may relate
to the Company's proposed business operations.
The officers and directors are, so long as they are officers or
directors of the Company, subject to the restriction that all
opportunities contemplated by the Company's plan of operation
which come to their attention, either in the performance of their
duties or in any other manner, will be considered opportunities
of, and be made available to the Company and the companies that
they are affiliated with on an equal basis. A breach of this
requirement will be a breach of the fiduciary duties of the
officer or director. If a situation arises in which more than one
company desires to merge with or acquire that target company and
the principals of the proposed target company have no preference
as to which company will merge or acquire such target company,
the company of which the President first became an officer and
director will be entitled to proceed with the transaction. Except
as set forth above, the Company has not adopted any other
conflict of interest policy with respect to such transactions.
Investment Company Act of 1940
Although the Company will be subject to regulation under the
Securities Act of 1933 and the Securities Exchange Act of 1934,
management believes the Company will not be subject to regulation
under the Investment Company Act of 1940 insofar as the Company
will not be engaged in the business of investing or trading in
securities. In the event the Company engages in business
combinations which result in the Company holding passive
investment interests in a number of entities, the Company could
be subject to regulation under the Investment Company Act of
1940. In such event, the Company would be required to register as
an investment company and could be expected to incur significant
registration and compliance costs. The Company has obtained no
formal determination from the Securities and Exchange Commission
as to the status of the Company under the Investment Company Act
of 1940 and, consequently, any violation of such Act would
subject the Company to material adverse consequences.
ITEM 6. EXECUTIVE COMPENSATION
None of the Company's officers and/or directors receive any
compensation for their respective services rendered to the
Company, nor have they received such compensation in the past.
They both have agreed to act without compensation until
authorized by the Board of Directors, which is not expected to
occur until the Registrant has generated revenues from operations
after consummation of a merger or acquisition. As of the date of
this registration statement, the Company has no funds available
to pay directors. Further, none of the directors are accruing any
compensation pursuant to any agreement with the Company.
It is possible that, after the Company successfully consummates a
merger or acquisition with an unaffiliated entity, that entity
may desire to employ or retain one or more members of the
Company's management for the purposes of providing services to
the surviving entity, or otherwise provide other compensation to
such persons. However, the Company has adopted a policy whereby
the offer of any post-transaction remuneration to members of
management will not be a consideration in the Company's decision
to undertake any proposed transaction. Each member of management
has agreed to disclose to the Company's Board of Directors any
discussions concerning possible compensation to be paid to them
by any entity which proposes to undertake a transaction with the
Company and further, to abstain from voting on such transaction.
Therefore, as a practical matter, if each member of the Company's
Board of Directors is offered compensation in any form from any
prospective merger or acquisition candidate, the proposed
transaction will not be approved by the Company's Board of
Directors as a result of the inability of the Board to
affirmatively approve such a transaction.
It is possible that persons associated with management may refer
a prospective merger or acquisition candidate to the Company. In
the event the Company consummates a transaction with any entity
referred by associates of management, it is possible that such an
associate will be compensated for their referral in the form of a
finder's fee. It is anticipated that this fee will be either in
the form of common stock issued by the Company as part of the
terms of the proposed transaction, or will be in the form of cash
consideration. However, if such compensation is in the form of
cash, such payment will be tendered by the acquisition or merger
candidate, because the Company has insufficient cash available.
The amount of such finder's fee cannot be determined as of the
date of this registration statement, but is expected to be
comparable to consideration normally paid in like transactions.
No member of management of the Company will receive any finders
fee, either directly or indirectly, as a result of their
respective efforts to implement the Company's business plan
outlined herein. Persons "associated" with management is meant to
refer to persons with whom management may have had other business
dealings, but who are not affiliated with or relatives of
management.
No retirement, pension, profit sharing, stock option or insurance
programs or other similar programs have been adopted by the
Registrant for the benefit of its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Board of Directors has passed a resolution which contains a
policy that the Company will not seek an acquisition or merger
with any entity in which any of the Company's Officers,
Directors, principal shareholders or their affiliates or
associates serve as officer or director or hold any ownership
interest. Management is not aware of any circumstances under
which this policy may be changed through their own initiative.
The proposed business activities described herein classify the
Company as a "blank check" company. Many states have enacted
statutes, rules and regulations limiting the sale of securities
of "blank check" companies in their respective jurisdictions.
Management does not intend to undertake any efforts to cause a
market to develop in the Company's securities until such time as
the Company has successfully implemented its business plan
described herein.
ITEM 8. LEGAL PROCEEDINGS
The Company is not a party to any material pending legal
proceedings and, to the best of its knowledge, no such action by
or against the Company has been threatened.
ITEM 9. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
There is no current market for the Company. Management has not
undertaken any discussions, preliminary or otherwise, with any
prospective market maker concerning the participation of such
market maker in the after-market for the Company's securities,
but will do so when it submits its stock for quotation on the
pink-sheets or the OTC-BB. There is no assurance that a trading
market will ever develop or, if such a market does develop, that
it will continue.
After a merger or acquisition has been completed, one or both of
the Company's officers and directors will most likely be the
persons to contact prospective market makers. It is also possible
that persons associated with the entity that merges with or is
acquired by the Company will contact prospective market makers.
The Company does not intend to use consultants to contact market
makers.
Market Price
The Registrant's Common Stock is not quoted at the present time.
Effective August 11, 1993, the Securities and Exchange Commission
adopted Rule 15g-9, which established the definition of a "penny
stock," for purposes relevant to the Company, as any equity
security that has a market price of less than $5.00 per share or
with an exercise price of less than $5.00 per share, subject to
certain exceptions. For any transaction involving a penny stock,
unless exempt, the rules require: (i) that a broker or dealer
approve a person's account for transactions in penny stocks; and
(ii) the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and
quantity of the penny stock to be purchased. In order to approve
a person's account for transactions in penny stocks, the broker
or dealer must (i) obtain financial information and investment
experience and objectives of the person; and (ii) make a
reasonable determination that the transactions in penny stocks
are suitable for that person and that person has sufficient
knowledge and experience in financial matters to be capable of
evaluating the risks of transactions in penny stocks. The broker
or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prepared by the Commission relating
to the penny stock market, which, in highlight form, (i) sets
forth the basis on which the broker or dealer made the
suitability determination; and (ii) that the broker or dealer
received a signed, written agreement from the investor prior to
the transaction. Disclosure also has to be made about the risks
of investing in penny stocks in both public offerings and in
secondary trading, and about commissions payable to both the
broker-dealer and the registered representative, current
quotations for the securities and the rights and remedies
available to an investor in cases of fraud in penny stock
transactions. Finally, monthly statements have to be sent
disclosing recent price information for the penny stock held in
the account and information on the limited market in penny
stocks.
The National Association of Securities Dealers, Inc. (the
"NASD"), which administers NASDAQ, has recently made changes in
the criteria for initial listing on the NASDAQ Small Cap market
and for continued listing. For initial listing, a company must
have net tangible assets of $4 million, market capitalization of
$50 million or net income of $750,000 in the most recently
completed fiscal year or in two of the last three fiscal years.
For initial listing, the common stock must also have a minimum
bid price of $4 per share. In order to continue to be included on
NASDAQ, a company must maintain $2,000,000 in net tangible assets
and a $1,000,000 market value of its publicly-traded securities.
In addition, continued inclusion requires two market-makers and a
minimum bid price of $1.00 per share.
Management intends to strongly consider undertaking a transaction
with any merger or acquisition candidate which will allow the
Company's securities to be traded without the aforesaid
limitations. However, there can be no assurances that, upon a
successful merger or acquisition, the Company will qualify its
securities for listing on NASDAQ or some other national exchange,
or be able to maintain the maintenance criteria necessary to
insure continued listing. The failure of the Company to qualify
its securities or to meet the relevant maintenance criteria after
such qualification in the future may result in the discontinuance
of the inclusion of the Company's securities on a national
exchange. In such events, trading, if any, in the Company's
securities may then continue in the non-NASDAQ over-the-counter
market. As a result, a shareholder may find it more difficult to
dispose of, or to obtain accurate quotations as to the market
value of, the Company's securities.
Holders
As of February 3, 2000, there were 36 holders of the Company's
Common Stock. On February 23, 1998, the Company issued 3,000,000
shares of its common stock. All of the issued and outstanding
shares of the Company's common stock were issued in accordance
with the exemption from registration afforded by Section 4(2) of
the Securities Act.
Dividends
The Registrant has not paid any dividends to date, and has no
plans to do so in the immediate future.
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES.
With respect to the issuances made in 1998, the Registrant relied
on Section 4(2) of the Securities Act. No advertising or general
solicitation was employed in offering the shares. The securities
were offered for investment only and not for the purpose of
resale or distribution, and the transfer thereof was
appropriately restricted.
In general, under Rule 144, promulgated under the Securities Act,
a person (or persons whose shares are aggregated) who has
satisfied a one year holding period, under certain circumstances,
may sell within any three-month period a number of shares which
does not exceed the greater of one percent of the then
outstanding Common Stock or the average weekly trading volume
during the four calendar weeks prior to such sale. Rule 144 also
permits, under certain circumstances, the sale of shares without
any quantity limitation by a person who has satisfied a two-year
holding period and who is not, and has not been for the preceding
three months, an affiliate of the Company.
ITEM 11. DESCRIPTION OF SECURITIES.
Common Stock
The Company's Articles of Incorporation authorizes the issuance
of 20,000,000 shares of Common stock, par value $.001 per share,
of which 3,000,000 are issued and outstanding. The shares are non-
assessable, without pre-emptive rights, and do not carry
cumulative voting rights. Holders of common shares are entitled
to one vote for each share on all matters to be voted on by the
stockholders. The shares are fully paid, non-assessable, without
pre-emptive rights, and do not carry cumulative voting rights.
Holders of common shares are entitled to share ratably in
dividends, if any, as may be declared by the Company from time-to-
time, from funds legally available. In the event of a
liquidation, dissolution, or winding up of the Company, the
holders of shares of common stock are entitled to share on a pro-
rata basis all assets remaining after payment in full of all
liabilities.
Management is not aware of any circumstances in which additional
shares of any class or series of the Company's stock would be
issued to management or promoters, or affiliates or associates of
either.
Preferred Stock
The Company's Articles of Incorporation authorizes the issuance
of 5,000,000 shares of preferred stock, $.001 par value per
share, none of which have been issued. The Company currently has
no plans to issue any preferred stock. The Company's Board of
Directors has the authority, without action by the shareholders,
to issue all or any portion of the authorized but unissued
preferred stock in one or more series and to determine the voting
rights, preferences as to dividends and liquidation, conversion
rights, and other rights of such series. The preferred stock, if
and when issued, may carry rights superior to those of common
stock; however no preferred stock may be issued with rights equal
or senior to the preferred stock without the consent of a
majority of the holders of then-outstanding preferred stock.
The Company considers it desirable to have preferred stock
available to provide increased flexibility in structuring
possible future acquisitions and financings, and in meeting
corporate needs which may arise. If opportunities arise that
would make the issuance of preferred stock desirable, either
through public offering or private placements, the provisions for
preferred stock in the Company's Certificate of Incorporation
would avoid the possible delay and expense of a shareholder's
meeting, except as may be required by law or regulatory
authorities. Issuance of the preferred stock could result,
however, in a series of securities outstanding that will have
certain preferences with respect to dividends and liquidation
over the common stock which would result in dilution of the
income per share and net book value of the common stock. Issuance
of additional common stock pursuant to any conversion right which
may be attached to the terms of any series of preferred stock may
also result in dilution of the net income per share and the net
book value of the common stock. The specific terms of any series
of preferred stock will depend primarily on market conditions,
terms of a proposed acquisition or financing, and other factor
existing at the time of issuance. Therefore it is not possible at
this time to determine in what respect a particular series of
preferred stock will be superior to the Company's common stock or
any other series of preferred stock which the Company may issue.
The Board of Directors does not have any specific plan for the
issuance of preferred stock at the present time, and does not
intend to issue any preferred stock at any time except on terms
which it deems to be in the best interest of the Company and its
shareholders.
The issuance of preferred stock could have the effect of making
it more difficult for a third party to acquire a majority of the
outstanding voting stock of the Company. Further, certain
provisions of Nevada law could delay or make more difficult a
merger, tender offer, or proxy contest involving the Company.
While such provisions are intended to enable the Board of
Directors to maximize shareholder value, they may have the effect
of discouraging takeovers which could be in the best interests of
certain shareholders. There is no assurance that such provisions
will not have an adverse effect on the market value of the
Company's stock in the future.
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company and its affiliates may not be liable to its
shareholders for errors in judgment or other acts or omissions
not amounting to intentional misconduct, fraud, or a knowing
violation of the law, since provisions have been made in the
Articles of incorporation and By-laws limiting such liability.
The Articles of Incorporation and By-laws also provide for
indemnification of the officers and directors of the Company in
most cases for any liability suffered by them or arising from
their activities as officers and directors of the Company if they
were not engaged in intentional misconduct, fraud, or a knowing
violation of the law. Therefore, purchasers of these securities
may have a more limited right of action than they would have
except for this limitation in the Articles of Incorporation and
By-laws.
The officers and directors of the Company are accountable to the
Company as fiduciaries, which means such officers and directors
are required to exercise good faith and integrity in handling the
Company's affairs. A shareholder may be able to institute legal
action on behalf of himself and all others similarly stated
shareholders to recover damages where the Company has failed or
refused to observe the law.
Shareholders may, subject to applicable rules of civil procedure,
be able to bring a class action or derivative suit to enforce
their rights, including rights under certain federal and state
securities laws and regulations. Shareholders who have suffered
losses in connection with the purchase or sale of their interest
in the Company in connection with such sale or purchase,
including the misapplication by any such officer or director of
the proceeds from the sale of these securities, may be able to
recover such losses from the Company.
ITEM 13. FINANCIAL STATEMENTS.
The financial statements and supplemental data required by this
Item 13 follow the index of financial statements appearing at
Item 15 of this Form 10-SB.
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
The Registrant has not changed accountants since its formation,
and Management has had no disagreements with the findings of its
accountants.
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS.
FINANCIAL STATEMENTS
Report of Independent Auditors, dated January 21, 2000;
Balance Sheet as of Dec. 31, 1998 and Dec. 31, 1999
Statement of Operation for the years ended 1998 and
1999
Statement of Stockholders' Equity as of 1999
Statement of Cash Flows for the years ended 1998 and
1999
Notes to Financial Statements
INDEPENDENT AUDITORS' REPORT
Board of Directors January
21, 2000
Melloncamp, Inc.
Las Vegas, Nevada
We have audited the accompanying balance sheets of Melloncamp,
Inc., a corporation, as of December 31, 1999 and December 31,
1998 and the related statements of income, stockholders' equity,
and cash flows for the years then ended. 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 from 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 basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Melloncamp, Inc. as of December 31, 1999 and December 31,
1998 and its results of operations, and cash flows for the years
then ended, in conformity with Generally Accepted Accounting
Principles.
As discussed in Note 1, the Company has been in the development
stage since its inception on February 19, 1998. Realization of
the major portion of its assets is dependent upon the Company's
ability to meet its future financing requirements, and the
success of future operations. The accompanying financial
statements have been prepared assuming that the Company will
continue as a going concern.
Michael L. Stuck, Certified Public Accountant
Scottsdale, Arizona
MELLONCAMP, INC.
(A Development Stage enterprise)
BALANCE SHEET
<TABLE>
<S> <C> <C>
Dec. 31, 1999 Dec. 31, 1998
ASSETS
CURRENT ASSETS: -0- -0-
CASH -0- -0-
PROPERTY AND EQUIPMENT -0- -0-
TOTAL ASSETS -0- -0-
LIABILITIES AND
STOCKHOLDERS' EQUITY
CURRENT LIABILITIES; -0- -0-
Loan Payable -0- -0-
TOTAL CURRENT LIABILITIES -0- -0-
STOCKHOLDERS' EQUITY;
Common stock, $0.001 par 3,000 3,000
value, 25,000,000 shares
authorized 3,000,000 shares
issued and outstanding
Preferred stock, $.001 par -0- -0-
value, 5,000,000 shares
authorized, no shares issed
and outstanding
Deficit accumulated during (3,000) (3,000)
development stage
</TABLE>
MELLONCAMP, INC.
(A Development Stage Enterprise)
STATEMENT OF OPERATION
<TABLE>
<S> <C> <C> <C>
12/31/99 12/31/98 2/19/98 to
12/31/99
INCOME:
Revenue -0- -0- -0-
OPERATING EXPENSES: -0- 300 300
Filing Fees -0- -0- -0-
Professional Fees -0- 2,700 2,700
Total Expenses -0- 3,000 3,000
Net income (Loss) (-0-) 3,000 3,000
before income Taxes
Income Taxes -0- -0- -0-
Net Income (Loss) (-0-) (3,000) (3,000)
Earnings per share of -0- -0- -0-
Common Stock
Weighted average 3,000,000 3,000,000
Number of common
Shares outstanding
</TABLE>
See accompanying notes to financial statements & audit report
MELLONCAMP, INC.
(A Development Stage enterprise)
STATEMENT OF STOCKHOLDERS' EQUITY
<TABLE>
<S> <C> <C> <C> <C>
Preferred Stock Amount Common Stock
Stock Stock Amount
Balance Feb. 19, -0- -0- -0- -
1998 0-
Stock Issued -0- -0- 3,000,000 3,000
Retained Earnings -0- -0- -0- -0-
(Loss)
Balance December -0- -0- 3,000,000 3,000
31, 1998
Retained Earnings -0- -0- -0- -0-
(Loss)
Balance December -0- -0- 3,000,000 3,000
31, 1999
</TABLE>
See accompanying notes to financial statements & audit report.
MELLONCAMP, INC.
(A Development Stage enterprise)
STATEMENT OF STOCKHOLDERS' EQUITY (continued)
<TABLE>
<S> <C> <C> <C>
Paid in Capital Deficit Total
Amount Accumulated
During
Development
Stage
Balance Feb. 19, -0- -0- -0-
1998
Stock Issued -0- -0- 3,000
Retained Earnings -0- (3,000) (3,000)
(Loss)
Balance December -0- (3,000) -0-
31, 1998
Retained Earnings -0- -0- -0-
(Loss)
Balance December -0- (3,000) -0-
31, 1999
</TABLE>
MELLONCAMP, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
<TABLE>
<S> <C> <C> <C>
Yr. End 12/31/99 Yr. End 12/31/98 2/19/98
(inception) to
12/31/99
Net Loss -0- $(3,000) $(3,000)
Adjustment to -0- -0-
Reconcile net income
to net cash provided
by operating
activities:
Cash From Operations -0- (3,000) (3,000)
Cash From Investing -0- -0- -0-
Activities:
Cash From Financing -0- 3,000 3,000
Activities
Stock Issued: -0- -0- -0-
Net Increase in Cash -0- -0- -0-
Beginning Cash -0- -0- -0-
Balance
Ending Cash Balance -0- -0- -0-
</TABLE>
See accompanying notes to financial statements & audit report
MELLONCAMP, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
December 31, 1998 and December 31, 1999
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Description of Operations
The Company was organized under the laws of the state of
Nevada in 1998 and is authorized to do business in the
United States. The Company has no revenue from operations
during the period covered by this financial statement.
Method of Accounting
These financial statements are prepared on the accrual basis
of accounting in accordance with generally accepted
accounting principles. Consequently, revenues are
recognized when earned and expenses are recognized when the
obligation is actually incurred.
Income Taxes and Cash Flows
The Company accounts for income taxes and the statement of
cash flows in accordance with Financial Accounting Standards
Board Statement No. 109 and No. 95.
Cash and Cash Equivalents
Cash and cash equivalents include all highly liquid
investments with a maturity of three months or less when
purchased.
NOTE 2: CASH
The Company has no bank accounts at this time.
NOTE 3: EARNINGS PER SHARE
Earnings per share has been computed by dividng net
income/(loss) by the weighted average number of common
shares outstanding for the period. There are no items which
are deemed to be common stock equivalents during the audit
period.
NOTE 4: COMMON STOCK
As of December 31, 1999 and December 31, 1998, the Company
had 3,000,000 shares of common stock, par vale $0.001,
issued and outstanding.
NOTE 5: LEASE COMMITMENTS
The Company currently has no commitments for leases or
contingencies.
NOTE 6: USE OF 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 difer from these estimates.
EXHIBITS
3.1 Articles of Incorporation
3.2 By-Laws
ARTICLES OF INCORPORATION
OF
MELLONCAMP, INC.
The undersigned, a natural person, over the age of twenty-one
(21) years, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the
laws of the State of Nevada, does hereby certify as follows:
ARTICLE I
NAME
The name of the Corporation, hereinafter called the "Corporation"
is:
MELLONCAMP, INC.
ARTICLE II
EXISTENCE
The Corporation shall have perpetual existence.
ARTICLE III
OBJECTS AND PURPOSES
The purpose for which this Corporation is created is to conduct
any lawful business or businesses for which corporations may be
incorporated pursuant to the Nevada Corporation Code.
ARTICLE IV
CAPITAL STOCK
1. Number of Shares.
The aggregate number of capital stock shares which the
Corporation shall have authority to issue is twenty-five million
(25,000,000) shares, of which twenty million (25,000,000) shares
shall be common stock, $.001 par value, and five million
(5,000,000) shares shall be preferred stock, $.001 par value.
2. Voting Rights of Shareholders.
Each voting shareholder of record shall have one vote for each
share of stock standing in his name on the books of the
Corporation and entitled to vote. Cumulative voting shall not be
allowed in the election of directors or for any other purpose.
3. Quorum.
At all meetings of shareholders, one-half of the shares entitled
to vote at such meeting, represented in person or by proxy, shall
constitute a quorum. Except as otherwise provided by these
Articles of Incorporation or the Nevada Corporation Code, if a
quorum is present, the affirmative vote of a majority of the
shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders. When, with
respect to any action to be taken by shareholders of this
Corporation, the laws of Nevada require the vote or concurrence
of the holders of two-thirds of the outstanding shares, of the
shares entitled to vote thereon, or of any class or series, such
action may be taken by the vote or concurrence of a majority of
such shares or class or series thereof.
4. No Preemptive Rights.
No shareholder of the Corporation shall have any preemptive or
other rights to subscribe for any additional shares of stock, or
for other securities of any class, or for rights, warrants or
options to purchase stock or for scrip, or for securities of any
kind convertible into stock or carrying stock purchase warrants
or privileges.
5. Shareholder Distributions.
The Board of Directors may from time to time distribute to the
shareholders in partial liquidation, out of stated capital or
capital surplus of the Corporation, a portion of its assets, in
cash or property, subject to the limitations contained in the
statutes of the State of Nevada.
6. Preferred Stock Rights.
The Board of Directors shall have the authority to divide the
preferred shares into series and to fix by resolution the voting
powers, designation, preference, and relative participating,
option or other special rights, and the qualifications,
limitations or restrictions of the shares of any series so
established.
ARTICLE V
DIRECTORS AND OFFICERS
1. Number of Directors.
The Board of Directors shall consist of between one (1) and
thirteen (13) members as the By-Laws shall prescribe, but in no
event shall the number of directors be more than thirteen (13) or
less than one (1).
2. Initial Board of Directors.
The Names of those persons who shall constitute the Board of
Directors of the Corporation for the first year of its existence
or until their successors are duly appointed or elected and
qualified is/are:
Name Address
Robert E. Nicholson 10044 N. 58th Pl
Paradise Valley, AZ 85253
ARTICLE VI
RESIDENT AGENT AND PRINCIPAL OFFICE
The address of the initial principal office of the Corporation is
850 S. Boulder Hwy., Suite #134, Henderson, NV 89015. The name
of its initial resident agent at such address is American
International Investors, Ltd.
The Corporation may conduct all or part of its business in any
other part of the State of Nevada, or any other State in the
United States.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS
1. Action, Suites or Proceedings Other than by or in the Right
of the Corporation.
The Corporation shall indemnify any person who was or is party or
is threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or
was a Director, Officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good
faith and, in the case of conduct in his official capacity with
the Corporation, in a manner he reasonably believed to be in the
best interest of the Corporation, or, in all other cases, that
his conduct was at least not opposed to the Corporation's best
interests. In the case of any criminal proceeding, he must have
had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment,
order settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, or itself, determine that the
individual did not meet the standard of conduct set forth in this
paragraph.
2. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgement in its favor by reason of the fact that he is
or was a Director, Officer, employee or agent of the Corporation
or is or was serving at the request of the Company as a Director,
Officer, employee or agent of another corporation, partnership
joint venture, trust or other enterprise against
expenses(including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and, in the case of
conduct in his official capacity with the Corporation, in a
manner he reasonably believed to be in the best interests of the
Corporation and, in all other cases, that his conduct was at
least not opposed to the Corporation's best interests; but no
indemnification shall be made in respect of any claim, issue or
matter to which such person has been adjudged to be liable for
negligence or misconduct in the performance of this duty to the
Corporation or where such person was adjudged liable on the basis
that personal benefit was improperly received by him, unless and
only to the extent that the court in which such action or suit
was brought determines upon application that, despite the
adjudication of liability, but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which such court deems proper.
3. Indemnification of Successful Party.
To the extent that a Director, Officer, employee or agent of the
Corporation has been successful on the merits or otherwise
(including, without limitation, dismissal without prejudice) in
defense of any action, suit, or proceeding referred to in this
Article VII or in defense of any claim, issue, or matter therein,
he shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
4. Determination of Right to Indemnification.
Any indemnification under (1) or (2) of this Article VII
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the Director, Officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (1) or (2) of this
Article VII. Such determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or, if
such a quorum is not obtainable and a quorum of disinterested
Directors so directs, by independent legal counsel in a written
opinion, or by the shareholders.
5. Advance of Costs, Charges and Expenses.
Cost, charges and expenses (including attorney's fees) incurred
in defending a civil or criminal action, suit, or proceeding may
be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of
Directors as provided in paragraph (4) of this Article VII upon
receipt of a written affirmation by the Director, Officer,
employee or agent of his good faith belief that he has met the
standard of conduct described in paragraphs (1) or (2) of this
Article VII, and an undertaking by or on behalf of the Director,
Officer, employee or agent to repay such amount unless it is
ultimately determined that he is entitled to be indemnified by
the Corporation as authorized in this Article VII. The majority
of the Directors may, in the manner set forth above, and upon
approval of such Director, Officer, employee or agent of the
Corporation, authorize the Corporation's counsel to represent
such person in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
6. Settlement.
If in any action, suit or proceeding, including any appeal,
within the scope of (1) or (2) of this Article VII, the person to
be indemnified shall have unreasonably failed to enter into a
settlement thereof, then, notwithstanding any other provision
hereof, the indemnification obligation of the Corporation to such
person in connection with such action, suit or proceeding shall
not exceed the total of the amount at which settlement could have
been made and the expenses by such person prior to the time such
settlement could reasonably have been effected.
7. Other Rights; Continuation of Right to Indemnification.
The indemnification provided by this Article VII shall not be
deemed exclusive of any other rights to which those indemnified
may be entitled under these Articles of Incorporation, any bylaw,
agreement, vote of shareholders or disinterested Directors, or
otherwise, and any procedure provided for by any of the
foregoing, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to person who has ceased to be a Director, Officer,
employee or agent and shall inure to the benefit of heirs,
executors, and administrators of such a person. All rights to
indemnification under this Article VII shall be deemed to be a
contract between the Corporation and each director or officer of
the Corporation who serves or served in such capacity at any time
while this Article VII is in effect. Any repeal or modification
of this Article VII or any repeal or modification of relevant
provisions of the Nevada Corporation Code or any other applicable
laws shall not in any way diminish any rights to indemnification
of such Director, Officer, employee or agent or the obligations
of the Corporation arising hereunder. This Article VII shall be
binding upon any successor corporation to this Corporation,
whether by way of acquisition, merger, consolidation or
otherwise.
8. Insurance.
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 or was serving at the request of the
Corporation as Director, Officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status
as such, whether or not the Corporation would have
the power to indemnify him against such liability under the
provision of this Article VII: provided, however, that such
insurance is available on acceptable terms, which determination
shall be made by a vote of the majority of the Directors.
9. Saving Clause.
If this Article VII or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director, Officer,
employee and agent of the Corporation as to any cost, charge and
expense (including attorney's fees), judgment fine and amount
paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
Corporation, to the full extent permitted by an applicable
portion of this Article VII that shall not have been invalidated
and to the full extent permitted by applicable law.
10. Amendment.
The affirmative vote of at least two-thirds of the total votes
eligible to be cast shall be required to amend, repeal, or adopt
any provision inconsistent with, this Article VII. No amendment,
termination or repeal of this Article VII shall affect or impair
in any way the rights of any Director, Officer, employee or agent
of the Corporation to indemnification under the provisions hereof
with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior
to the final adoption of such amendment, termination or appeal.
11. Subsequent Legislation.
If the Nevada Corporation Code is amended after adoption of these
Articles to further expand the indemnification permitted to
Directors, Officers, employees or agents of the Corporation, then
the Corporation shall indemnify such persons to the fullest
extent permitted by the Nevada Corporation Code, as so amended.
ARTICLE VIII
INCORPORATOR
The name and address of the Incorporator is:
Robert E. Nicholson 10044 N. 58th Pl.
Paradise Valley, AZ 85253
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of
February 1998.
/s/ Robert Nicholson
Robert E. Nicholson
BYLAWS OF MELLONCAMP, INC.
ARTICLE I
OFFICES
1.1. Registered Office and Agent. The principal office and
resident agent of Sirius Exploration, Inc., (the "Corporation")
in Nevada shall be as designated by the Board of Directors from
time to time.
1.2. Other Offices. The Corporation may establish and
maintain such other offices at such other places of business both
within and without the State of Nevada as the Board of Directors
may from time to time determine.
ARTICLE II
STOCKHOLDERS
2.1. Annual Meetings. The annual stockholders' meeting for
electing Directors and transacting other business shall be held
at such time and place within or without the State of Nevada as
may be designated by the Board of Directors in a Resolution and
set forth in the notice of the meeting. Failure to hold any
annual stockholders' meeting at the designated time shall not
work a forfeiture or dissolution of the Corporation.
2.2. Special Meetings. Special meetings of the stockholders
may be called by the Board of Directors or by the Chairman of the
Board, if one be elected, or by the President, and shall be
called by the President or Secretary at the request in writing of
stockholders owning not less a majority of all the shares
entitled to vote at the proposed meeting. Such request shall
state the purpose or purposes of the proposed meeting. Business
transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice thereof.
2.3. Place of Meeting. All stockholders' meetings shall be
held at such place, within or without the State of Nevada as
shall be fixed from time to time by resolution of the Board of
Directors.
2.4. Notice of Meetings. Written or printed notice stating
the place, day and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten or more than fifty days
before the date of the meeting, either personally or by mail, by
or at the direction of the President, the Secretary or the
officer or persons calling the meeting, to each stockholder of
record entitled to vote at such meeting, except that if the
authorized shares are to be increased, at least thirty days
notice shall be given. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail addressed
to the stockholder at his address as it appears on the stock
transfer books of the Corporation, with postage thereon prepaid.
2.5. Waiver of Notice. Whenever any notice is required to be
given to any stockholder of the Corporation under the provisions
of any statute or the Articles of Incorporation or these Bylaws,
a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before, at or after the time
stated therein, shall be equivalent to the giving of such notice.
Attendance of a stockholder at a meeting shall constitute a
waiver of notice of such meeting, except when such stockholder
attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
2.6. Organization. Meetings of the stockholders shall be
presided over by the Chairman of the Board, or if he is not
present or one has not been elected, by the President, or if
nether the Chairman of the Board nor the President is present, by
a temporary chairman to be chosen by a majority of the
stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in
his absence, an Assistant Secretary, shall act as secretary of
every meeting, or if neither the Secretary nor any Assistant
Secretary is present, by a temporary secretary to be chosen by a
majority of the stockholders entitled to vote who are present in
person or by proxy at the meeting.
2.7. Voting. Except as otherwise specifically provided by the
Articles of Incorporation or by these Bylaws or by statute, all
matters coming before any meeting of stockholders shall be
decided by a vote of the majority of the votes cast. The vote
upon any question shall be by ballot whenever requested by any
person entitled to vote, but, unless such a request is made,
voting may be conducted in any way approved at the meeting.
2.8. Stockholders Entitled to Vote. Each stockholder of the
Corporation shall be entitled to vote, in person or by proxy,
each share of stock standing in his name on the books of the
Corporation on the record date fixed or determined pursuant to
Section 6.06 hereof.
2.9. Proxies. The right to vote by proxy shall exist only if
the instrument authorizing such proxy to act shall have been
executed in writing by the stockholder himself or by his attorney-
in-fact duly authorized in writing. Such proxy shall be filed
with the Secretary of the Corporation before or at the time of
the meeting. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the
proxy.
2.10. Quorum. The presence at any stockholders' meeting, in
person or by proxy, of the record holders of shares aggregating
at least fifty one percent (51%) the number of shares entitled to
vote at the meeting as indicated in the Articles of Incorporation
shall be necessary and sufficient to constitute a quorum for the
transaction of business. The stockholders present at the
stockholders meeting, for which a quorum exists, may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.11. Absence of Quorum. In the absence of a quorum at any
stockholders' meeting, a majority of the total number of shares
entitled to vote at the meeting and present there at, in person
or by proxy, may adjourn the meeting for a period not to exceed
sixty days at any one adjournment. Any business that might have
been transacted at the meeting originally called may be
transacted at any such adjourned meetings at which a quorum is
present.
2.12. List of Stockholders. The officer or agent having
charge of the stock transfer books for shares of the Corporation
shall make, at least ten days before each meeting of
stockholders, a complete current list of the stockholders
entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the
number of shares held by each, which list, for a period of ten
days prior to such meeting, shall be kept on file at the
principal office of the Corporation, whether within or without
the State of Nevada, and shall be subject to the inspection of
any stockholder during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to
who are the stockholders entitled to examine such list or
transfer books or to vote at any meeting of stockholders.
Failure to comply with the requirements of this Section 2.12
shall not affect the validity of any action taken at such meeting
of stockholders.
2.13. Action by Stockholders Without a Meeting. Any action
required to be taken at a meeting of the stockholders of the
Corporation or any action which may be taken at such a meeting,
may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by a majority of the
stockholders entitled to vote with respect to the subject matter
thereof, except that if a different proportion of voting power is
required for such action at a meeting, then that proportion of
written consents is required. Such consents shall have the same
force and effect as a vote in person of the stockholders of the
Corporation. A consent shall be sufficient for this Section 2.13
if it is executed in counterparts, in which event all of such
counterparts, when taken together, shall constitute one and the
same consent.
ARTICLE III
BOARD OF DIRECTORS
3.1. Number and Term of Office. The Board of Directors of the
Corporation shall consist of not less than one nor more than
thirteen (13) Directors, as determined by the Board of Directors
of the Corporation. Each Director (whenever elected) shall hold
office until his successor shall have been elected and qualified
unless he shall resign or his office shall become vacant by his
death or removal. Directors need not be residents of the State
of Nevada or stockholders of the Corporation.
3.2. Election of Directors. Except as otherwise provided in
Sections 3.03 and 3.04 hereof and except as otherwise provided in
the Articles of Incorporation, the Directors shall be elected
annually at the annual stockholders' meeting for the election of
Directors. The persons elected as Directors shall be those
nominees, equal to the number then constituting the Board of
Directors, who shall receive the largest number of affirmative
votes validly cast at such election by the holders of shares
entitled to vote therefor. Failure to annually re-elect
Directors of the Corporation shall not affect the validity of any
action taken by a Director who shall have been duly elected and
qualified and who shall not, at the time of such action, have
resigned, died, or been removed from his position as a Director
of the Corporation.
3.3. Removal of Directors. At a meeting called expressly for
that purpose, the entire Board of Directors or any lesser number
may be removed, with or without cause, by a vote of the holders
of the majority of the shares then entitled to vote at an
election of Directors.
3.4. Vacancies and Newly Created Directorships. Any vacancy
occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining Directors though
less than a quorum of the Board of Directors. A Director elected
to fill a vacancy shall be elected for the unexpired term of his
predecessor in office and until his successor shall have been
elected and qualified. Any number of Directors shall be filled
by the affirmative vote of a majority of the Directors then in
office or by an election at an annual meeting of a special
meeting of the stockholders called for that purpose. A Director
chosen to fill a position resulting from an increase in the
number of directors shall hold such position until the next
annual meeting of stockholders and until his successor shall have
been elected and qualified.
3.5. Resignations. Any Director may resign at any time by
mailing or delivering or by transmitting by telegram or cable
written notice of his resignation to the Board of Directors of
the Corporation at the Corporation's principal office or its
registered office in the State of Nevada or to the President, the
Secretary, or any Assistant Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein
or if no time be specified, then at the time of receipt thereof.
3.6. General Powers. The business of the Corporation shall be
managed by the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things
that are not by statute or by the Articles of Incorporation or by
these Bylaws directed or required to be exercised or done by the
stockholders.
3.7. Annual Meetings. The annual meeting of the Board of
Directors for electing officers and transacting other business
shall be held immediately after the annual stockholders' meeting
at the place of such meeting. Failure to hold any annual meeting
of the Board of Directors of the Corporation at the designated
time shall not work a forfeiture or dissolution of the
Corporation.
3.8. Regular Meetings. The Board of Directors from time to
time may provide by resolution for the holding of regular
meetings and fix the time and place of such meetings. Regular
meetings may be held within or without the State of Nevada.
Notice of regular meetings need not be given, provided that
notice of any change in the time or place of such meetings shall
be sent promptly to each Director not present at the meeting at
which such change was made.
3.9. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one be
elected, or by the President on two days' notice to each Director
specifying the time and place (within or without the State of
Nevada) of the meeting, and shall be called by the President or
Secretary in like manner and on like notice on the written
request of two or more Directors.
3.10. Notice. All notices to a Director required by Sections
3.07 or 3.09 hereof shall be addressed to him at his residence or
usual place of business and may be given by mail, telegram,
radiogram, cable or by personal delivery. No notice need be
given of any adjourned meeting.
3.11. Waiver of Notice. Whenever any notice is required to be
given to any Director of the Corporation under the provisions of
any statute or under the provisions of the Articles of
Incorporation or these Bylaws, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before,
at or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a Director at a meeting of
the Board of Directors shall constitute a waiver of notice of
such meeting, except where a Director attends such a meeting for
the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
annual, regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice of such meeting.
3.12. Quorum. At all meetings of the Board of Directors a
majority of the whole Board of Directors shall constitute a
quorum for the transaction of business and, except as may be
otherwise specifically provided by statute or by the Articles of
Incorporation or these Bylaws, the act of a majority of the
Directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors. In the absence of a quorum
the Directors present there may adjourn the meeting from time to
time without notice other than announcement at the meeting, until
a quorum be present.
3.13. Action by Directors or Committee Without Meeting. Any
action required to be taken at a meeting of the Directors of the
Corporation or any committee thereof or any action which may be
taken at such a meeting, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be
signed by all of the Directors or members of the committee, as
the case may be, entitled to vote with respect to the subject
matter thereof. Such consent shall have the same force and
effect as a unanimous vote of the Board of Directors or of the
committee, as the case may be, of the Corporation. A consent
shall be sufficient for this Section 3.13 if it is executed in
counterparts, in which event all of such counterparts, when taken
together, shall constitute one and the same consent.
3.14. Telephone / Electronic Meetings. Any Director or any
member of a committee may participate in a meeting of the Board
of Directors or a committee, as the case may be, by means of a
conference telephone, e-mail or other communications equipment by
means of which all persons participating in such meeting can
communicate with each other on a real-time basis, and such
participation shall constitute the presence of such person at
such meeting.
3.15. Compensation. By resolution of the Board of Directors,
any Director may be paid any one or more of the following: his
expenses, if any, of attendance at meetings; a fixed sum for
attendance at meetings; or a stated salary as Director. Nothing
herein contained shall be construed to preclude any Director from
serving the Corporation in any capacity as an officer, employee,
agent or otherwise, and receiving compensation therefor.
3.16. Reliance on Accounts and Reports, etc. A Director, or a
member of any committee designated by the Board of Directors, in
the performance of his duties, shall be fully protected in
relying in good faith upon the books of account or reports made
to the Corporation by any of its officers, or by an independent
certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such
committee, or in relying in good faith upon other records of the
Corporation.
3.17. Presumption of Assent. A Director of the Corporation
who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered
in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof, or shall forward such
dissent by registered or certified mail to the Secretary of the
Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in
favor of such action.
ARTICLE IV
COMMITTEES
4.1. How Constituted. By resolution adopted by a majority of
the whole Board of Directors, the Board may designate one or more
committees, including an Executive Committee, each consisting of
two or more Directors. The Board of Directors may designate one
or more Directors as alternate members of any such committee, who
may replace any absent or disqualified member at any meeting of
such committee. Any such committee, to the extent provided in
the resolution and except as may otherwise be provided by
statute, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but the designation
of such committee and the delegation thereto of the authority
shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed upon it or him by
law. In the absence or disqualification of any member of any
such committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
4.2. Proceedings, Quorum and Manner of Acting. Except as
otherwise prescribed by the Board of Directors, each committee
may adopt such rules and regulations governing its proceedings,
quorum, and manner of acting as it shall deem proper and
desirable, provided that the quorum shall not be less than two
members.
ARTICLE V
OFFICERS AND AGENTS
5.1. Officers. The officers of the Corporation shall consist
of a President, one or more Vice-Presidents, a Secretary and a
Treasurer, each of whom shall be elected by the Board of
Directors. The Board of Directors may elect and appoint a
Chairman of the Board and may elect and appoint such other
officers, assistant officers, and agents as may be deemed
necessary and may delegate to one or more officers or agents the
power to appoint such other officers, assistant officers and
agents and to prescribe their respective rights, terms of office,
authorities and duties. The same person may hold any two or more
offices of the Corporation. An officer of the Corporation need
not be a Director of the Corporation nor a resident of the State
of Nevada.
5.2. Term of Office. Except as provided in Sections 5.03,
5.04 and 5.05 hereof, each officer appointed by the Board of
Directors shall hold office until his successor shall have been
appointed and qualified.
5.3. Resignation. Any officer or agent of the Corporation may
resign at any time by mailing or delivering or by transmitting by
telegram or cable written notice of his resignation to the Board
of Directors of the Corporation at the Corporation's principal
office or its registered office in the State of Nevada or to the
President, the Secretary or any Assistant Secretary of the
Corporation. Any such resignation shall take effect at the time
specified therein or if no time be specified, then at the time of
receipt thereof.
5.4. Removal. Any officer or agent may be removed by the
Board of Directors, or by the Executive Committee, if any, either
with or without cause, whenever in its judgment, the best
interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an
officer or agent shall not of itself create contract rights. In
addition, any other officer, assistant officer or agent appointed
in accordance with the delegation provisions of Section 5.01
hereof may be removed, either with or without cause, by any such
officer or agent upon whom such power of delegation shall have
been conferred by the Board of Directors.
5.5. Vacancies and Newly Created Offices. If any vacancy
shall occur in any office by reason of death, resignation,
removal, disqualification or other cause, or if any new office
shall be created, such vacancies or newly created offices may be
filled by the Board of Directors at any regular or special
meeting or may be filled by any officer or agent to whom the
power is delegated in accordance with the delegation provisions
of Section 5.01 hereof.
5.6. President. The President shall be the chief operating
officer of the Corporation and shall, in the absence of the
Chairman of the Board, preside at all stockholders' meetings and
at all meetings of the Board of Directors. Subject to the
supervision of the Board of Directors and such direction and
control as the Chairman of the Board, if one be elected, may
exercise on matters of general policy, he shall have general
supervision over its operating officers, employees and agents.
He shall sign (unless a Vice-President shall have signed)
certificates representing the stock of the Corporation authorized
for issuance by the Board of Directors, and except as the Board
of Directors may otherwise order, he may sign in the name and on
behalf of the Corporation all deeds, bonds, contracts or
agreements. He shall exercise such other powers and perform such
other duties as from time to time may be assigned to him by the
Board of Directors.
5.7. Executive Vice-President and Vice-Presidents. The
Executive Vice-President, if one be elected, and any Vice-
Presidents, if one or more be elected, shall have such powers and
perform such duties as may be assigned to them by the Board of
Directors or by the President. At the request of or in the
absence or disability of the President, the Executive Vice-
President (or the Vice-President, if there is no duly appointed
Executive Vice-President, and if there are two or more Vice-
Presidents, then the senior of the Vice-Presidents present are
able to act) may perform all the duties of the President and,
when so acting, shall have the powers of and be subject to all
the restrictions upon the President. The Executive Vice-
President or any Vice-President may sign (unless the President or
another Vice-President shall have signed) certificates
representing stock of the Corporation authorized for issuance by
the Board of Directors.
5.8. Treasurer and Assistant Treasurers. The Treasurer shall
have general charge of, and general responsibility for, all
funds, securities and receipts of the Corporation, and shall
deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks,
trust companies, or other depositories as shall from time to time
be designed by the Board of Directors. He shall have all powers
and perform all duties incident to the office of a treasurer of a
corporation and as are provided for him in these Bylaws, and
shall exercise such other powers and perform such other duties as
may be assigned to him by the Board of Directors. Any Assistant
Treasurer may perform such duties of the Treasurer as the
Treasurer or the Board of Directors may assign, and, in the
absence of the Treasurer, any Assistant Treasurer may perform all
the duties of the Treasurer.
5.9. Secretary and Assistant Secretaries. The Secretary shall
attend to the giving and serving of all notice of the Corporation
and shall record all the proceedings of all meetings of the
stockholders and of the Board of Directors in a book to be kept
for that purpose. He shall keep in safe custody the seal of the
Corporation, and shall have charge of the records of the
Corporation, including the stock books and such other books,
reports, certificates and other documents required by law to be
kept, all of which shall at all reasonable times be open to
inspection by any Director. He shall sign (unless an Assistant
Secretary shall have signed) certificates representing stock of
the Corporation authorized for issuance by the Board of
Directors. He shall perform such duties as pertain to his office
or as may be required by the Board of Directors. Any Assistant
Secretary may perform such duties of the Secretary as the
Secretary or the Board of Directors may assign, and, in the
absence of the Secretary, Assistant Secretary may perform all the
duties of the Secretary.
5.10. Comptroller. The Comptroller, if one be elected, shall
have general charge and supervision of financial reports. He
shall maintain adequate records of all assets, liabilities and
transactions of the Corporation and shall keep the books and
accounts and cause adequate audits thereof to be made regularly
and shall exercise a general check upon the disbursements of
funds of the Corporation. In general, he shall perform all
duties incident to the office of a comptroller of a corporation,
and shall exercise such other powers and perform such other
duties as may be assigned to him by the Board of Directors.
5.11. Remuneration. The salaries or other compensation of the
officers of the Corporation shall be determined by the Board of
Directors, except that the Board of Directors may by resolution
delegate to any officer or agent the power to fix salaries or
other compensation of any other officer, assistant officer or
agent appointed in accordance with the delegation provisions of
Section 5.01 hereof.
5.12. Surety Bonds. The Board of Directors may require any
officer or agent of the Corporation to execute a bond to the
Corporation in such sum and with such surety or sureties as the
Board of Directors may determine, conditioned upon the faithful
performance of his duties to the Corporation, including
responsibility for negligence and for the accounting of any of
the Corporation's property, funds or securities that may come
into his hands.
ARTICLE VI
CAPITAL STOCK
6.1. Signatures. The shares of the Corporation's capital
stock shall be represented by certificates signed by the
President or a Vice-President and the Secretary or an Assistant
Secretary of the Corporation; any may be sealed with the seal of
the Corporation, or a facsimile thereof. The signatures of the
President or a Vice-President and of the Secretary or an
Assistant Secretary upon certificates may be facsimiles if the
certificate if countersigned by a transfer agent, or registered
by a registrar, other than the Corporation itself or an employee
of the Corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued,
it may be issued by the Corporation with the same effect as if he
were such officer at the date of its issue.
6.2. Certificates. Each certificate representing shares of
the Corporation shall state upon the face thereof. (a) that the
Corporation is organized under the laws of the State of Nevada;
(b) the name of the person to whom such certificate is issue; (c)
the number and class of shares which such certificate represents;
and (d) the par value of each share represented by such
certificate, or a statement that the shares are without par
value. Each certificate shall also set forth conspicuously on
the face or back hereof such restrictions upon transfer, or a
reference thereto, as shall be adopted by the Board of Directors
and stockholders. No certificate shall be issued for any shares
until such share is fully paid.
6.3. Classes of Stock. If the Corporation is or shall become
authorized to issue shares of more than one class, then, in
addition to the provisions of Section 6.02 hereof, every
certificate representing shares issued by the Corporation shall
also set forth upon the face or back of the certificate, or shall
state that the Corporation will furnish to any stockholder upon
request and without charge, a full statement of the designations,
preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the Corporation is or
shall become authorized to issue any preferred or special class
in series, the variations in the relative rights and preferences
between the shares of each such series so far as the same have
been fixed and determined and the authority of the Board of
Directors to fix and determine the relative rights and
preferences of subsequent series.
6.4. Consideration for Shares. Shares having a par value may
be issued for such consideration expressed in dollars, not less
than the par value thereof, as shall be fixed from time to time
by the Board of Directors. Shares without par value may be
issued for such consideration expressed in dollars as may be
fixed from time to time by the Board of Directors. The
Corporation may dispose of treasury shares for such consideration
expressed in dollars as may be fixed from time to time by the
Board of Directors. The consideration for the issuance of shares
may be paid, in whole or in part, in money, in other property,
tangible or intangible, or in labor or services actually
performed for the Corporation. Neither promissory notes nor
future services shall constitute payment or part payment for
shares of the Corporation.
6.5. Transfer of Capital Stock. Transfers of shares of stock of
the Corporation shall be made on the books of the Corporation
upon surrender of the certificate or certificates, properly
endorsed or accompanies by proper instruments of transfer,
representing such shares, subject to the terms of any agreements
among the Corporation and shareholders.
6.6. Registered Stockholders. Prior to due presentment for
registration of transfer of shares of stock, the Corporation may
treat the person registered on its books as the absolute owner of
such shares of stock for all purposes, and accordingly shall not
be bound to recognize any legal, equitable or other claim or
interest in such shares on the part of any other person, whether
or not it shall have the express or other notice thereof, except
as otherwise expressly provided by statute; provided, however,
that whenever any transfer of shares shall be made for collateral
security and not absolute, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee
request the Corporation to do so.
6.7. Transfer Agents and Registrars. The Board of Directors
may, from time to time, appoint or remove one or more transfer
agents or one or more registrars of transfers of shares of stock
of the Corporation, and it may appoint the same person as both
transfer agent and registrar. Upon any such appointment being
made all certificates representing shares of capital stock
thereafter issued shall be countersigned by one of such transfer
agents or one of such registrars of transfers and shall not be
valid unless so countersigned. If the same person shall be both
transfer agent and registrar, only one countersignature by such
person shall be required.
6.8. Fixing or Determination of Record Date. The Board of
Directors may fix, in advance, a date as a record date for the
determination of the stockholders entitled to notice of, and to
vote at, any meeting of stockholders and any adjournment thereof,
or entitled to receive payment of any dividend or any other
distribution, allotment of rights, or entitled to exercise rights
in respect of any change, conversion, or exchange of capital
stock, or entitled to give any consent for any purpose, or in
order to make a determination of stockholders for any other
proper purpose; provided, however, that such record date shall be
a date not more than fifty days nor less than ten days before the
date of such meeting of stockholders or the date of such other
action. If no record date is so fixed, the record date for
determining stockholders entitled to notice of or to vote at any
stockholders' meeting shall be at the close of the business on
the date next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. The record date
for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day
on which the first written consent is expressed. The record date
for determining stockholders for any other purpose shall, unless
otherwise specified by the Board of Directors, be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting,
provided, however that the Board of Directors may fix a new
record date for the adjourned meeting. Only such stockholders as
shall be stockholders of record on the record date so fixed shall
be entitled to such notice of, and to vote at, such meetings and
any adjournments thereof, or to receive payment of such dividend,
or other distribution, or to receive such consent, as the case
may be, notwithstanding any transfer of any shares on the books
of the Corporation after any such record date.
6.9. Lost or Destroyed Certificates. The Board of Directors
may direct that a new certificate or certificates of stock be
issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the
person claiming the certificate or certificates to be lost,
stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, at its
discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to advertise the
same in such manner as it shall require and to give the
Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with
respect to the certificate or certificates alleged to have been
lost, stolen or destroyed.
ARTICLE VII
FINANCE
7.1. Checks, Drafts, etc. All checks, drafts or order for the
payment of money shall be signed by one or more of officers or
other persons as may be designated by resolution of the Board of
Directors.
7.2. Fiscal Year. The fiscal year of the Corporation shall be
such as may from time to time be established by the Board of
Directors.
ARTICLE VIII
INDEMNIFICATION
8.1. Action, Suites or Proceedings Other than by or in the
Right of the Corporation. The Corporation shall indemnify any
Directors, Officer, Employee or Agent of the Corporation who was
or is party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Corporation) by reason
of the fact that he is or was a Director, Officer, employee or
agent of the Corporation or is or was serving at the request of
the Corporation as a Director, Officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and, in the case of
conduct in his official capacity with the Corporation, in a
manner he reasonably believed to be in the best interest of the
Corporation, or, in all other cases, that his conduct was at
least not opposed to the Corporation's best interests. In the
case of any criminal proceeding, he must have had no reasonable
cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment,
order settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, or itself, determine that the
individual did not meet the standard of conduct set forth in this
paragraph.
8.2. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgement in its favor by reason of the fact that he is
or was a Director, Officer, employee or agent of the Corporation
or is or was serving at the request of the Company as a Director,
Officer, employee or agent of another corporation, partnership
joint venture, trust or other enterprise against
expenses(including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and, in the case of
conduct in his official capacity with the Corporation, in a
manner he reasonably believed to be in the best interests of the
Corporation and, in all other cases, that his conduct was at
least not opposed to the Corporation's best interests; but no
indemnification shall be made in respect of any claim, issue or
matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of this duty to the
Corporation or where such person was adjudged liable on the basis
that personal benefit was improperly received by him, unless and
only to the extent that the court in which such action or suit
was brought determines upon application that, despite the
adjudication of liability, but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which such court deems proper.
8.3. Indemnification of Successful Party. To the extent that
a Director, Officer, employee or agent of the Corporation has
been successful on the merits or otherwise (including, without
limitation, dismissal without prejudice) in defense of any
action, suit, or proceeding referred to in this Article VIII or
in defense of any claim, issue, or matter therein, he shall be
indemnified against all expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
8.4. Determination of Right to Indemnification. Any
indemnification under (1) or (2) of this Article VIII (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the Director, Officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (1) or (2) of this
Article VII. Such determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or, if
such a quorum is not obtainable and a quorum of disinterested
Directors so directs, by independent legal counsel in a written
opinion, or by the shareholders.
8.5. Advance of Costs, Charges and Expenses. Cost, charges
and expenses (including attorney's fees) incurred in defending a
civil or criminal action, suit, or proceeding may be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board of Directors as
provided in paragraph (4) of this Article VIII upon receipt of a
written affirmation by the Director, Officer, employee or agent
of his good faith belief that he has met the standard of conduct
described in paragraphs (1) or (2) of this Article VIII, and an
undertaking by or on behalf of the Director, Officer, employee or
agent to repay such amount unless it is ultimately determined
that he is entitled to be indemnified by the Corporation as
authorized in this Article VIII. The majority of the Directors
may, in the manner set forth above, and upon approval of such
Director, Officer, employee or agent of the Corporation,
authorize the Corporation's counsel to represent such person in
any action, suit or proceeding, whether or not the Corporation is
a party to such action, suit or proceeding.
8.6. Settlement. If in any action, suit or proceeding,
including any appeal, within the scope of (1) or (2) of this
Article VIII, the person to be indemnified shall have
unreasonably failed to enter into a settlement thereof, then,
notwithstanding any other provision hereof, the indemnification
obligation of the Corporation to such person in connection with
such action, suit or proceeding shall not exceed the total of the
amount at which settlement could have been made and the expenses
by such person prior to the time such settlement could reasonably
have been effected.
8.7. Other Rights; Continuation of Right to Indemnification.
The indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which those indemnified
may be entitled under these Articles of Incorporation, any bylaw,
agreement, vote of shareholders or disinterested Directors, or
otherwise, and any procedure provided for by any of the
foregoing, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall
continue as to person who has ceased to be a Director, Officer,
employee or agent and shall inure to the benefit of heirs,
executors, and administrators of such a person. All rights to
indemnification under this Article VIII shall be deemed to be a
contract between the Corporation and each director or officer of
the Corporation who serves or served in such capacity at any time
while this Article VIII is in effect. Any repeal or modification
of this Article VIII or any repeal or modification of relevant
provisions of the Nevada Corporation Code or any other applicable
laws shall not in any way diminish any rights to indemnification
of such Director, Officer, employee or agent or the obligations
of the Corporation arising hereunder. This Article VIII shall be
binding upon any successor corporation to this Corporation,
whether by way of acquisition, merger, consolidation or
otherwise.
8.8. Insurance. 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 or was
serving at the request of the Corporation as Director, Officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity or arising
out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the
provision of this Article VIII: provided, however, that such
insurance is available on acceptable terms, which determination
shall be made by a vote of the majority of the Directors.
8.9. Saving Clause. If this Article VIII or any portion
hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each Director, Officer, employee and agent of the
Corporation as to any cost, charge and expense (including
attorney's fees), judgment fine and amount paid in settlement
with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by
or in the right of the Corporation, to the full extent permitted
by an applicable portion of this Article VII that shall not have
been invalidated and to the full extent permitted by applicable
law.
8.10. Amendment. The affirmative vote of at least two-thirds
of the total votes eligible to be cast shall be required to
amend, repeal, or adopt any provision inconsistent with, this
Article VIII. No amendment, termination or repeal of this
Article VIII shall affect or impair in any way the rights of any
Director, Officer, employee or agent of the Corporation to
indemnification under the provisions hereof with respect to any
action, suit or proceeding arising out of, or relating to, any
actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or appeal.
8.11. Subsequent Legislation. If the Nevada Corporation Code
is amended after adoption of these Articles to further expand the
indemnification permitted to Directors, Officers, employees or
agents of the Corporation, then the Corporation shall indemnify
such persons to the fullest extent permitted by the Nevada
Revised Statutes, as so amended.
ARTICLE IX
MISCELLANEOUS
9.1. Seal. The corporate seal of the Corporation shall be
circular in form and shall bear the name of the Corporation. The
form of seal shall be subject to alteration by the Board of
Directors and the seal may be used by causing it or a facsimile
to be impressed or affixed or printed or otherwise reproduced.
Any Officer or Director of the Corporation shall have the
authority to affix the corporate seal of the Corporation to any
document requiring the same.
9.2. Books and Records. The Board of Directors shall have
power from time to time to determine whether and to what extent,
and at what times and places and under what conditions and
regulations, the accounts and books of the Corporation (other
than stock ledger), or any of them, shall be open to the
inspection of the stockholders. No stockholder shall have any
right to inspect any account, book or document of the Corporation
except at a time conferred by statute, unless authorized by a
resolution of the stockholders or the Board of Directors.
9.3. Waivers of Notice. Whenever any notice is required to be
given by law, or under the provisions of the Articles of
Incorporation or of these Bylaws, a waiver thereof in writing,
signed by the person or person entitled to such notice, whether
before, at or after the time stated therein, shall be deemed
equivalent of notice.
9.4. Amendments. The Board of Directors shall have the power
to make, alter or repeal these Bylaws, in whole or in part, at
any time and from time to time. These Bylaws may be altered or
repealed, and new Bylaws made, by the stockholders at any annual
or special meeting if notice of the proposed alteration or repeal
or new Bylaws is included in the notice or waiver of notice of
such meeting.
APPROVED AND ADOPTED as of this 23rd day of February, 1998.
/s/ Robert E. Nicholson
Robert E. Nicholson,
President
SIGNATURES
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, thereunto duly authorized.
Melloncamp, Inc.
By: /s/ Kenneth D. Greble
Kenneth D. Greble
