U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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FORM 10-SB
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GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS
Under Section 12(g) of
The Securities Exchange Act of 1934
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LANDIS & PARTNERS, INC.
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(Name of Small Business Issuer in its charter)
Nevada 88-0386345
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
16810 E. Avenue of the Fountains, #200
Fountain Hills, Arizona 85268
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(Address of principal executive offices) (Zip code)
Issuer's telephone number: (602) 837-0017
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:
$.001 Common Stock
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(Title of Class)
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TABLE OF CONTENTS
Page
PART I
Item 1. Description of Business............................................ 3
Item 2. Plan of Operation.................................................. 8
Item 3. Description of Property............................................ 14
Item 4. Security Ownership of Certain Beneficial Owners and Management..... 14
Item 5. Directors, Executive Officers, Promoters and Control Persons....... 15
Item 6. Executive Compensation............................................. 18
Item 7. Certain Relationships and Related Transactions..................... 19
Item 8. Description of Securities.......................................... 19
PART II
Item 1. Market for Common Equities and Related Stockholder Matters......... 19
Item 2. Legal Proceedings.................................................. 22
Item 3. Changes in and Disagreements with Accountants...................... 22
Item 4. Recent Sales of Unregistered Securities............................ 22
Item 5. Indemnification of Directors and Officers.......................... 23
PART F/S
Financial Statements............................................... 24
PART III
Item 1. Index to Exhibits.................................................. 33
Signatures......................................................... 34
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
Landis & Partners, Inc. (the "Company") was incorporated on February 19,
1998 under the laws of the State of Nevada to engage in any lawful corporate
activity, including, but not limited to, selected mergers and acquisitions. The
Company has been in the developmental stage since inception and has no
operations to date. Other than issuing shares to its original shareholders, the
Company never commenced any operational activities. 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 Board of Directors
of the Company has elected to commence implementation of the Company's principal
business purpose described below under "Item 2 - Plan of Operation." The
proposed business activities described herein may classify the Company as a
"blank check" company.
The Company is filing this registration statement on a voluntary basis
because the primary attraction of the Company as a merger partner or acquisition
vehicle will be its status as a public company. Any business combination or
transaction will likely result in a significant issuance of shares and
substantial dilution to present stockholders of the Company.
In addition, the Company is filing this registration statement to enhance
investor protection and to provide information if a trading market commences. On
December 11, 1997, the National Association of Securities Dealers, Inc. (NASD)
announced that its Board of Governors had approved a series of proposed changes
for the Over The Counter ("OTC") Bulletin Board and the OTC market. The
principal changes, which was approved by the Securities and Exchange Commission
on January 5, 1999 allows only those companies that report their current
financial information to the Securities and Exchange Commission, banking, or
insurance regulators to be quoted on the OTC Bulletin Board. The rule provides
for a phase-in period for those securities already quoted on the OTC Bulletin
Board.
RISK FACTORS
The Company's business is subject to numerous risk factors, including the
following:
1. Lack of History. The Company has had no operating history nor any
revenues or earnings from operations. The Company has no significant assets or
financial resources. The Company will, in all likelihood, sustain operating
expenses without corresponding revenues, at least until the consummation of a
business combination. This may result in the Company incurring a net operating
loss which will increase continuously until the Company can consummate a
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business combination with a profitable business opportunity. There is no
assurance that the Company can identify such a business opportunity and
consummate such a business combination.
2. The Company's Proposed Operations is Speculative. The success of the
Company's proposed plan of operation will depend to a great extent on the
operations, financial condition and management of the identified business
opportunity. While management intends to seek business combination(s) with
entities having established operating histories, there can be no assurance that
the Company will be successful in locating candidates meeting such criteria. In
the event the Company completes a business combination, of which there can be no
assurance, the success of the Company's operations may be dependent upon
management of the successor firm or venture partner firm and numerous other
factors beyond the Company's control.
3. Scarcity of and Competition for Business Opportunities and Combinations.
The Company is and will continue to be an insignificant participant in the
business of seeking mergers with, joint ventures with and acquisitions of small
private and public entities. A large number of established and well-financed
entities, including venture capital firms, are active in mergers and
acquisitions of companies which may be desirable target candidates for the
Company. Nearly all such entities have significantly greater financial
resources, technical expertise and managerial capabilities than the Company and,
consequently, the Company will be at a competitive disadvantage in identifying
possible business opportunities and successfully completing a business
combination. Moreover, the Company will also compete in seeking merger or
acquisition candidates with numerous other small public companies.
4. The Company has No Agreement for a Business Combination or Other
Transaction - No Standards for Business Combination. The Company has no
arrangement, agreement or understanding with respect to engaging in a merger
with, joint venture with or acquisition of, a private or public entity. There
can be no assurance the Company will be successful in identifying and evaluating
suitable business opportunities or in concluding a business combination.
Management has not identified any particular industry or specific business
within an industry for evaluation by the Company. 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.
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5. Continued Management Control, Limited Time Availability. While seeking a
business combination, management anticipates devoting up to ten hours per month
to the business of the Company. None of the Company's officers has entered into
a written employment agreement with the Company and none is expected to do so in
the foreseeable future. The Company has not obtained key man life insurance on
any of 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 "Item 5 - Directors, Executive
Officers, Promoters and Control Persons."
6. There May be Conflicts of Interest. Officers and directors of the
Company may in the future participate in business ventures which could be deemed
to compete directly with the Company. Additional conflicts of interest and
non-arms length transactions may also arise in the future in the event the
Company's officers or directors are involved in the management of any firm with
which the Company transacts business. Management has adopted a policy that the
Company will not seek a merger with, or acquisition of, any entity in which
management serve as officers, directors or partners, or in which they or their
family members own or hold any ownership interest.
7. Reporting Requirements May Delay or Preclude Acquisitions. Sections 13
and 5(d) of the Securities Exchange Act of 1934 (the "1934 Act"), require
companies subject thereto to provide certain information about significant
acquisitions, including certified financial statements for the company acquired,
covering one, two, or three 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 essentially
preclude consummation of an otherwise desirable acquisition by the Company.
Acquisition prospects that do not have or are unable to obtain the required
audited statements may not be appropriate for acquisition so long as the
reporting requirements of the 1934 Act are applicable.
8. Lack of Market Research or Marketing Organization. The Company has
neither conducted, nor have others made available to it, 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. Even in the event demand is identified for
a merger or acquisition contemplated by the Company, there is no assurance the
Company will be successful in completing any such business combination.
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9. Lack of Diversification. The Company's proposed operations, even if
successful, will in all likelihood result in the Company engaging in a business
combination with a business opportunity. Consequently, the Company's activities
may be limited to those engaged in by business opportunities which the Company
merges with or acquires. 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 and therefore increase the risks associated with
the Company's operations.
10. Regulation. Although the Company will be subject to regulation under
the 1934 Act, 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.
11. Probable Change in Control and Management. A business combination
involving the issuance of the Company's Common Shares 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 Shares 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.
12. 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 any such private company. The issuance of
previously authorized and unissued Common Shares of the Company would result in
reduction in percentage of shares owned by present and prospective shareholders
of the Company and may result in a change in control or management of the
Company.
13. 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 business opportunity may attempt to avoid what it deems
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to be adverse consequences of undertaking its own public offering by seeking a
business combination with the Company. Such 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 laws
enacted for the protection of investors.
14. Taxation. Federal and state tax consequences will, in all likelihood,
be major considerations in any business combination the Company may undertake.
Currently, such transactions may be structured so as to result in tax-free
treatment to both companies, pursuant to various federal and state tax
provisions. The Company intends to structure any business combination so as to
minimize the federal and state tax consequences to both the Company and the
target entity; however, there can be no assurance that such business combination
will meet the statutory requirements of a tax-free reorganization or that the
parties will obtain the intended tax-free treatment upon a transfer of stock or
assets. A non-qualifying reorganization could result in the imposition of both
federal and state taxes which may have an adverse effect on both parties to the
transaction.
15. Requirement of Audited Financial Statements May Disqualify Business
Opportunities. Management of the Company believes that any potential business
opportunity must provide audited financial statements for review, for the
protection of all parties to the business combination. One or more attractive
business opportunities may choose to forego the possibility of a business
combination with the Company, rather than incur the expenses associated with
preparing audited financial statements.
16. Dilution. 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.
17. No Trading Market. There is no trading market for the Company's common
stock at present, and there has been no trading market to date. There is no
assurance that a trading market will ever develop or, if such market does
develop, that it will continue. The Company intends to request a broker-dealer
to make application to the NASD Regulation, Inc. to have the Company's
securities traded on the OTC Bulletin Board or published in print and electronic
media, or either, in the National Quotation Bureau LLC "Pink Sheet."
18. Required Year 2000 Compliance After January 1, 2000. The Year 2000
issue affected virtually all companies and organiza tions. A business
combination may result in the Company disclosing certain Year 2000 matters. Many
existing computer programs used only two digits to identify a year in the date
field. These programs were designed and developed without considering the impact
of the change in the century.
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19. Disclosure by Public Companies Regarding the Year 2000 Issue After
January 1, 2000. Any business combination may require special Year 2000
disclosures. Management of the Company believes that any potential business
opportunity may require a disclosure that the target company must undertake
remedial action to address the Year 2000 issue. The disclosure of the potential
costs and uncertainties will depend on a number of factors, including its
software and hardware and the nature of its industry. The Company may be
required to review whether it needs to disclose future anticipated costs,
problems and uncertainties associates with any remedial Year 2000 consequences,
particularly in its filings with the Securities and Exchange Commission. The
Company may have to disclose this information in the Securities and Exchange
Commission filings because (i) the form or report may require the disclosure, or
(ii) in addition to the information that the Company is specifically required to
disclose, the disclosure rules require disclosure of any additional material
information necessary to make the required disclosure not misleading.
If the Company determines that it is required to make a Year 2000
disclosure, applicable rules or regulations must be followed. As part of this
disclosure, the following topics will be addressed:
* the target company's general plans to address any Year 2000 remedial
action issues relating to its business, its operations (including
operating systems) and, if material, its relationships with customers,
suppliers, and other constituents; and its timetable for carrying out
those plans; and
* the total dollar amount that the target company estimates will be
spent to remediate its Year 2000 problems, if such amount is expected
to be material to the target company's business, operations or
financial condition, and any material impact these expenditures are
expected to have on the target company's results of operations,
liquidity and capital resources.
ITEM 2. PLAN OF OPERATION
The Company intends to seek to acquire assets or shares of an entity
actively engaged in business which generates revenues in exchange for its
securities. The Company has no particular acquisitions in mind and has not
entered into any negotiations regarding such an acquisition. None of the
Company's officers, directors, promoters or affiliates have engaged in any
preliminary contact or discussions with any representative of any other company
regarding the possibility of an acquisition or merger between the Company and
such other company as of the date of this registration statement.
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The Company has no full time or part-time employees. None of the officers
and directors anticipates devoting more than ten (10%) percent of his or her
time to Company activities. The Company's President and Secretary have agreed to
allocate a portion of said time to the activities of the Company, without
compensation. These officers anticipate that the business plan of the Company
can be implemented by their devoting minimal time per month to the business
affairs of the Company and, consequently, conflicts of interest may arise with
respect to the limited time commitment by such officers. See "Item 5 -
Directors, Executive Officers, Promoters and Control Persons - Resumes."
GENERAL BUSINESS PLAN
The Company's purpose is to seek, investigate and, if such investigation
warrants, acquire an interest in business opportunities presented to it by
persons or firms who or which desire to seek the advantages of an Issuer who has
complied with the 1934 Act. The Company will not restrict its search to any
specific business, industry, or geographical location and the Company may
participate in a business venture of virtually any kind or nature. This
discussion of the proposed business is purposefully general and is not meant to
be restrictive of the Company's virtually unlimited discretion to search for and
enter into potential business opportunities. Management anticipates that it may
be able to participate in only one potential business venture because the
Company has nominal assets and limited financial resources. See Item F/S,
"Financial Statements." This lack of diversification should be considered a
substantial risk to shareholders of the Company because it will not permit the
Company to offset potential losses from one venture against gains from another.
The Company may seek a business opportunity with entities which have
recently commenced operations, or which wish to utilize the public marketplace
in order to raise additional capital in order to expand into new products or
markets, to develop a new product or service, or for other corporate purposes.
The Company may acquire assets and establish wholly owned subsidiaries in
various businesses or acquire existing businesses as subsidiaries.
The Company anticipates that the selection of a business opportunity in
which to participate will be complex and extremely risky. Due to 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 an Issuer who has complied with the 1934 Act. Such
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benefits may include facilitating or improving the terms on which additional
equity financing may be sought, providing liquidity for incentive stock options
or similar benefits to key employees, providing liquidity (subject to
restrictions of applicable statutes), for all shareholders and other factors.
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.
The Company has, and will continue to have, no capital with which to
provide the owners of business opportunities with any significant cash or other
assets. However, management believes the Company will be able to offer owners of
acquisition candidates the opportunity to acquire a controlling ownership
interest in an Issuer who has complied with the 1934 Act without incurring the
cost and time required to conduct an initial public offering. The owners of the
business opportunities will, however, incur significant legal and accounting
costs in connection with acquisition of a business opportunity, including the
costs of preparing Form 8-K's, 10-K's or 10-KSB's, agreements and related
reports and documents. The 1934 Act, specifically requires that any merger or
acquisition candidate comply with all applicable reporting requirements, which
include providing audited financial statements to be included within the
numerous filings relevant to complying with the 1934 Act. Nevertheless, the
officers and directors of the Company have not conducted market research and are
not aware of statistical data which would support the benefits of a merger or
acquisition transaction for the owners of a business opportunity.
The Company has made no determination as to whether or not it will file
periodic reports in the event its obligation to file such reports is suspended
under the 1934 Act. Mark Nielsen, an officer and director of the Company, has
agreed to provide the necessary funds, without interest, for the Company to
comply with the 1934 Act reporting requirements, provided that she is an officer
and director of the Company when the obligation is incurred.
The analysis of new business opportunities will be undertaken by, or under
the supervision of, the officers and directors of the Company, none of whom is a
professional business analyst. Management intends to concentrate on identifying
preliminary prospective business opportunities which may be brought to its
attention through present associations of the Company's officers and directors,
or by the Company's shareholders. In analyzing prospective business
opportunities, management will consider such matters as the available technical,
financial and managerial resources; working capital and other financial
requirements; history of operations, if any; prospects for the future; nature of
present and expected competition; the quality and experience of management
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services which may be available and the depth of that management; the potential
for further research, development, or exploration; specific risk factors not now
foreseeable but which then may be anticipated to impact the proposed activities
of the Company; the potential for growth or expansion; the potential for profit;
the public recognition of acceptance of products, services, or trades; name
identification; and other relevant factors. Officers and directors of the
Company expect to meet personally with management and key personnel of 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 within a
reasonable period of time after closing of the proposed transaction.
Management of the Company, while not especially experienced in matters
relating to the new business of the Company, will rely upon their own efforts in
accomplishing the business purposes of the Company. It is not anticipated that
any outside consultants or advisors 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 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
contracts or agreements with any outside consultants and none are anticipated in
the future.
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 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.
It is anticipated that the Company will incur nominal expenses in the
implementation of its business plan described herein. Because the Company has no
capital with which to pay these anticipated expenses, present management of the
Company will pay these charges with their personal funds, as interest free loans
to the Company or as capital contributions. However, if loans, the only
opportunity which management has to have these loans repaid will be from a
prospective merger or acquisition candidate. Management has agreed among
themselves that the repayment of any loans made on behalf of the Company will
not impede, or be made conditional in any manner, to consummation of a proposed
transaction.
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The Company has no plans, proposals, arrangements or understandings with
respect to the sale or issuance of additional securities prior to the location
of an acquisition or merger candidate.
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, or licensing agreement with another corporation or entity. It may also
acquire stock or assets of an existing business. On the consummation of a
transaction, it is probable that the present management and shareholders of the
Company will no longer be in control of the Company. In addition, the Company's
directors may, as part of the terms of the acquisition transaction, resign and
be replaced by new directors without a vote of the Company's shareholders or may
sell their stock in the Company. Any terms of sale of the shares presently held
by officers and/or directors of the Company will be also afforded to all other
shareholders of the Company on similar terms and conditions. Any and all such
sales will only be made in compliance with the securities laws of the United
States and any applicable state.
It is anticipated that any securities issued in any such reorganization
would be issued in reliance upon exemption from registration under applicable
federal and state securities laws. In some circumstances, however, as a
negotiated element of its transaction, the Company may agree to register all or
a part of such securities immediately after the transaction is consummated or at
specified times thereafter. If such registration occurs, of which there can be
no assurance, it will be undertaken by the surviving entity after the Company
has successfully consummated a merger or acquisition and the Company is no
longer considered a "shell" company. The issuance of substantial additional
securities and their potential sale into any trading market which may develop in
the Company's securities may have a depressive effect on the value of the
Company's securities in the future, if such a market develops, of which there is
no assurance.
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 (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
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entity. In such event, the shareholders of the Company, would retain less than
20% of the issued and outstanding shares of the surviving entity, which would
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 of 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 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 negotiation strength of the
Company and such other management.
With respect to any merger or acquisition, negotiations with target company
management is expected to focus on the percentage of the Company which the
target company shareholders would acquire in exchange for all of their
shareholdings in the target company. Depending upon, among other things, the
target company's assets and liabilities, the Company's shareholders will in all
likelihood hold a substantially lesser percentage ownership interest in the
Company following any merger or acquisition. The percentage 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.
The Company will participate in a business opportunity only after the
negotiation and execution of appropriate written agreements. Although the terms
of such agreements cannot be predicted, generally such agreements will require
some specific representations and warranties by all of the parties thereto, will
specify certain events of default, will detail the terms of closing and the
conditions which must be satisfied by each of the parties prior to and after
such closing, will outline the manner of bearing costs, including costs
associated with the Company's attorneys and accountants, will set forth remedies
on default and will include miscellaneous other terms.
The Company will not acquire or merge with any entity which cannot provide
independent audited financial statements within a reasonable period of time
after closing of the proposed transaction. The Company is subject to all of the
reporting requirements included in the 1934 Act. Included in these requirements
is the affirmative duty of the Company to file independent audited financial
statements as part of its Form 8-K to be filed with the Securities and Exchange
Commission upon consummation of a merger or acquisition, as well as the
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Company's audited financial statements included in its annual report on Form
10-K (or 10-KSB, as applicable). If such audited financial statements are not
available at closing, or within time parameters necessary to insure the
Company's compliance with the requirements of the 1934 Act, or if the audited
financial statements provided do not conform to the representations made by the
candidate to be acquired in the closing documents, the closing documents will
provide that the proposed transaction will be voidable, at the discretion of the
present management of the Company. If such transaction is voided, the agreement
will also contain a provision providing for the acquisition entity to reimburse
the Company for all costs associated with the proposed transaction.
COMPETITION
The Company will remain an insignificant participant among the firms which
engage in the acquisition of business opportunities. There are many established
venture capital and financial concerns which have significantly greater
financial and personnel resources and technical expertise than the Company. In
view of the Company's combined extremely limited financial resources and limited
management availability, the Company will continue to be at a significant
competitive disadvantage compared to the Company's competitors.
INVESTMENT COMPANY ACT OF 1940
Although the Company will be subject to regulation under the Securities Act
of 1933, as amended, and the 1934 Act, 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. The Company's Board
of Directors unanimously approved a resolution stating that it is the Company's
desire to be exempt from the Investment Company Act of 1940 under Regulation
3a-2 thereto.
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LOCK-UP AGREEMENT
Each of the officers and directors of the Company have executed and
delivered a "lock-up" letter agreement affirming that they shall not sell their
respective shares of the Company's common stock until such time as the Company
has entered into a merger or acquisition agreement, or the Company is no longer
classified as a "blank check" company, whichever first occurs.
ITEM 3. DESCRIPTION OF PROPERTY
The Company has no properties and at this time has no agreements to acquire
any properties.
The Company presently occupies office space at 16810 E. Avenue of the
Fountains, #200, Fountain Hills, Arizona 85268. This space is provided to the
Company on a rent free basis, and it is anticipated that this arrangement will
remain until such time as the Company successfully consummates a merger or
acquisition. Management believes that this arrangement will meet the Company's
needs for the foreseeable future.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(a) Security Ownership of Certain Beneficial Owners.
The following table sets forth the security and beneficial ownership for
each class of equity securities of the Company for any person who is known to be
the beneficial owner of more than five percent of the Company.
Name and Amount and
Address of Nature of
Beneficial Beneficial Percent
Title of Class Owner Owner of Class
- --------------------------------------------------------------------------------
Common Mark Nielsen 1,225,000 40.9%
2215 E. Calvary Road
Prescott, AZ 86301
Common John C. Mueller, III 1,225,000 40.9%
111 Broadway
Costa Mesa, CA 92627
Common All Officers and 2,450,000 81.8%
Directors as a Group
(two [2] individuals)
The total of the Company's outstanding Common Shares are held by 36
persons.
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(b) Security Ownership of Management.
The following table sets forth the ownership for each class of equity
securities of the Company owned beneficially and of record by all directors and
officers of the Company.
Common Mark Nielsen 1,225,000 40.9%
2215 E. Calvary Road
Prescott, AZ 86301
Common John C. Mueller, III 1,225,000 40.9%
111 Broadway
Costa Mesa, CA 92627
Common All Officers and 2,450,000 81.8%
Directors as a Group
(two [2] individuals)
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The directors and officers of the Company are as follows:
Name Age Position
---- --- --------
Mark Nielsen 47 President/Director
John C. Mueller, III 36 Secretary/Treasurer/Director
The above listed officers and directors will serve until the next annual
meeting of the shareholders or until their death, resignation, retirement,
removal, or disqualification, or until their successors have been duly elected
and qualified. Vacancies in the existing Board of Directors are filled by
majority vote of the remaining Directors. Officers of the Company serve at the
will of the Board of Directors. There are no agreements or understandings for
any officer or director to resign at the request of another person and no
officer or director is acting on behalf of or will act at the direction of any
other person. There is no family relationship between any executive officer and
director of the Company.
RESUMES
MARK NIELSEN
Mark Nielsen is the President and a Director of the Company. From 1986 to
the present he has been self-employed as a real estate and investment
businessman.
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JOHN C. MUELLER, III
John C. Mueller, III is the Secretary, Treasurer and a Director of the
Company. From 1994 to the present he has been the Owner and Operator of
United Vending, one of southern California's largest and most respected
vending machine service companies.
PREVIOUS BLANK CHECK COMPANIES - CURRENT BLANK CHECK COMPANIES
The officers and directors of the Company have not been officers and
directors in any other blank check offerings. The officers and directors,
however, do anticipate becoming involved with additional blank check companies
who may file under the Securities Act of 1933, as amended, or the 1934 Act, or
either. In addition, the officers and directors of the Company may become
involved in additional blank check companies which may request a broker-dealer
to request clearance from the NASD Regulation, Inc. for trading clearance in the
applicable quotation medium.
CONFLICTS OF INTEREST
Members of the Company's management are associated with other firms
involved in a range of business activities. Consequently, there are potential
inherent conflicts of interest in their acting as officers and directors of the
Company. 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 are now and may in the future
become shareholders, officers or directors of other companies which may be
engaged in business activities similar to those conducted by the Company.
Accordingly, additional direct conflicts of interest may arise in the future
with respect to such individuals acting on behalf of the Company or other
entities. Moreover, additional conflicts of interest may arise with respect to
opportunities which come to the attention of such individuals in the performance
of their duties or otherwise. 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
17
<PAGE>
a breach of the fiduciary duties of the officer or director. If the Company or
the companies in which the officers and directors are affiliated with both
desire to take advantage of an opportunity, then said officers and directors
would abstain from negotiating and voting upon the opportunity. However, all
directors may still individually take advantage of opportunities if the Company
should decline to do so. Except as set forth above, the Company has not adopted
any other conflict of interest policy with respect to such transactions.
ITEM 6. EXECUTIVE COMPENSATION.
None of the Company's officers and/or directors receive any compensation
for their respective services rendered unto the Company, nor have they received
such compensation in the past. They all have agreed to act without compensation
until authorized by the Board of Directors, which is not expected to occur until
the Company 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 a number of 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 restricted common stock issued by the Company as part of
the terms of the proposed transaction, or will be in the form of cash
18
<PAGE>
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.
No retirement, pension, profit sharing, stock option or insurance programs
or other similar programs have been adopted by the Company for the benefit of
its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
There have been no related party transactions, or any other transactions or
relationships required to be disclosed pursuant to Item 404 of Regulation S-B.
Mark Nielsen agreed to advanced to the Company the funds to pay for the
current accounting costs applicable to this Form 10SB12G and all amendments
applicable to this filing, and has agreed to provide the necessary funds,
without interest, for the Company to comply with the 1934 Act provided that she
is an officer and director of the Company when the obligation is incurred. All
advances are interest-free.
ITEM 8. DESCRIPTION OF SECURITIES.
The Company's authorized capital stock consists of 20,000,000 shares, par
value $.001 per share. There are 2,996,000 Common Shares issued and outstanding
as of the date of this filing.
All shares of Common Stock have equal voting rights and, when validly
issued and outstanding, are entitled to one vote per share in all matters to be
voted upon by shareholders. The shares of Common Stock have no preemptive,
subscription, conversion or redemption rights and may be issued only as
fully-paid and nonassessable shares. Cumulative voting in the election of
directors is not permitted, which means that the holders of a majority of the
issued and outstanding shares of Common Stock represented at any meeting at
which a quorum is present will be able to elect the entire Board of Directors if
they so choose and, in such event, the holders of the remaining shares of Common
Stock will not be able to elect any directors. In the event of liquidation of
the Company, each shareholder is entitled to receive a proportionate share of
the Company's assets available for distribution to shareholders after the
payment of liabilities and after distribution in full of preferential amounts,
if any. All shares of the Company's Common Stock issued and outstanding are
19
<PAGE>
fully-paid and nonassessable. Holders of the Common Stock are entitled to share
pro rata in dividends and distributions with respect to the Common Stock, as may
be declared by the Board of Directors out of funds legally available therefor.
PART II
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
There is no trading market for the Company's Common Stock at present and
there has been no trading market to date. There is no assurance that a trading
market will ever develop or, if such a market does develop, that it will
continue. The Company intends to request a broker-dealer to make application to
the NASD Regulation, Inc. to have the Company's securities traded on the OTC
Bulletin Board System or published, in print and electronic media, or either, in
the National Quotation Bureau LLC "Pink Sheets."
(a) Market Price.
The Company's Common Stock is not quoted at the present time.
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 stock in both public offering and in
secondary trading, and about commissions payable to both the broker-dealer and
20
<PAGE>
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.
For the initial listing in the NASDAQ SmallCap market, a company must have
net tangible assets of $4 million or market capitalization of $50 million or a
net income (in the latest fiscal year or two of the last fiscal years) of
$750,000, a public float of 1,000,000 shares with a market value of $5 million.
The minimum bid price must be $4.00 and there must be 3 market makers. In
addition, there must be 300 shareholders holding 100 shares or more, and the
company must have an operating history of at least one year or a market
capitalization of $50 million.
For continued listing in the NASDAQ SmallCap market, a company must have
net tangible assets of $2 million or market capitalization of $35 million or a
net income (in the latest fiscal year or two of the last fiscal years) of
$500,000, a public float of 500,000 shares with a market value of $1 million.
The minimum bid price must be $1.00 and there must be 2 market makers. In
addition, there must be 300 shareholders holding 100 shares or more.
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.
The Company intends to request a broker-dealer to make application to the
NASD Regulation, Inc. to have the Company's securities traded on the OTC
Bulletin Board Systems or published, in print and electronic media, or either,
in the National Quotation Bureau LLC "Pink Sheets," or either.
21
<PAGE>
(b) Holders.
There are thirty-six (36) holders of the Company's Common Stock. In 1998,
the Company issued 2,996,000 of its Common Shares for cash. 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 of 1933, as amended.
As of the date of this registration statement, all of the shares of the
Company's Common Stock are eligible for sale under Rule 144 promulgated under
the Securities Act of 1933, as amended, subject to certain limitations included
in said Rule. In general, under Rule 144, 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.
(c) Dividends.
The Company has not paid any dividends to date, and has no plans to do so
in the immediate future.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
The Company has no change of accountants since its formation and there are
no disagreements with the findings of said accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
(a) Securities sold.
The Company has sold and issued its securities during the three year period
preceding the date of this registration statement. On or about February 24,
1998, the Company authorized the sale and issuance for cash of all of the shares
that are outstanding. The Treasurer of the Company acknowledged receipt of the
full consideration for the shares on or about February 24, 1998 and the
22
<PAGE>
certificates evidencing said shares were executed and delivered on or about said
dated. Each of said shareholders have owned the shares of common stock since
February 24, 1998. No additional shares have been sold or issued. All of the
shares of Common Stock of the Company have been issued for investment purposes
in a "private transaction" and are "restricted" shares as defined in Rule 144
under the Securities Act of 1933, as amended. These shares may not be offered
for public sale except under Rule 144, or otherwise, pursuant to said Action.
In summary, Rule 144 applies to affiliates (that is, control persons) and
nonaffiliates when they resell restricted securities (those purchased from the
issuer or an affiliate of the issuer in nonpublic transactions). Nonaffiliates
reselling restricted securities, as well as affiliates selling restricted or
nonrestricted securities, are not considered to be engaged in a distribution
and, therefore, are not deemed to be underwriters as defined in Section 2(11) of
the Securities Act of 1933, as amended, if six conditions are met:
(1) Current public information must be available about the issuer unless
sales are limited to those made by nonaffiliates after two years.
(2) When restricted securities are sold, generally there must be a
one-year holding period.
(3) When either restricted or nonrestricted securities are sold by an
affiliate after one year, there are limitations on the amount of
securities that may be sold; when restricted securities are sold by
non- affiliates between the first and second years, there are
identical limitations; after two years, there are no volume
limitations for resales by non- affiliates.
(4) Except for sales of restricted securities made by nonaffiliates after
two years, all sales must be made in brokers' transactions as defined
in Section 4(4) of the Securities Act of 1933, as amended, or a
transaction directly with a "market maker" as that term is defined in
Section 3(a)(38) of the 1934 Act.
(5) Except for sales of restricted securities made by nonaffiliates after
two years, a notice of proposed sale must be filed for all sales in
excess of 500 shares or with an aggregate sales price in excess of
$10,000.
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<PAGE>
(6) There must be a bona fide intention to sell within a reasonable time
after the filing of the notice referred to in (5) above.
(b) Underwriters and other purchasers.
There was no underwriters in connection with the sale and issuance of any
securities.
All of the shareholders have had a pre-existing personal or business
relationship with the Company or its officers and directors, by reason of a time
commitment in business projects with the officers of the Company. Further, each
of the shareholders have established a pre-existing personal relationship with
the officers and directors of the Company. The following are the names of 36
original issuees and the number of shares purchased by each of them.
Name Number of Shares
---- ----------------
Robert E. Nicholson 1,225,000
Earl P. Gilbrech 1,225,000
John E. Bauer 100,000
John C. Mueller 100,000
Dennis Reissig 100,000
Melisa Morris 100,000
Elisa Velez 100,000
Juan Velez 2,000
Eva Velez 2,000
Sherry Reissig 2,000
George Sphorer 2,000
Eli Friedlich 2,000
Curtis Batson 2,000
Mack H. Graham 2,000
Lydia Friedlich 2,000
Sandra Downing 2,000
Donna Gilbrech 2,000
James Butler 2,000
Joann Pannullo 2,000
Scott Butler 2,000
Marc Reyna 2,000
John B. Velez 2,000
Mike Morris 2,000
Kelly J. Mueller 2,000
Scott McGovern 2,000
M.D. Nicholson 2,000
Toni Bukowki 1,500
Tobi Draper 1,500
Lisa Lamberto-Milstead 1,500
Tisa Kosbab 1,500
Jeanne McDonald 1,000
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<PAGE>
Geraldine Graham 1,000
Jeff Jorgensen 1,000
Alice Butler 1,000
Sylvia Orman 1,000
Barbara Gant 1,000
---------
2,996,000
As of the date hereof, there are 36 shareholders. Mark Nielsen acquired
1,225,000 shares of stock from Robert E. Nicholson and John C. Mueller, III
acquired 1,225,000 shares of stock from Earl P. Gilbrech. Robert Nicholson and
Earl P. Gilbrech are no longer shareholder of the Company. The transfer of the
shares of stock was an exempt transaction under the Securities Act of 1933, as
amended, by virtue of section 4(1).
Mack and Geraldine Graham, Earl and Donna Gilbrech, Mike and Melissa Morris
and Dennis and Sherry Reissig are husbands and wives. Scott Butler and James
Butler are brothers and the sons of Alice Butler. Kelly J. Mueller is the son of
John C. Mueller. Robert Nicholson is the son of M.D. Nicholson. Juan Velez and
Elisa Velez are brother and sister.
(c) Consideration.
Each of the shares of stock were originally sold for cash. Each shareholder
paid $.01 per share for the shares, the Company sold and issued 2,996,000
shares, and the aggregate consideration received by the Company was $2,996.00.
(d) Exemption from Registration Relied Upon.
The sale and issuance of the shares of stock was exempt from registration
under the Securities Act of 1933, as amended, by virtue of section 4(2) as a
transaction not involving a public offering. Each of the shareholders had
acquired the shares for investment and not with a view to distribution to the
public.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Except for acts or omissions which involve intentional misconduct, fraud or
known violation of law or for the payment of dividends in violation of Nevada
Revised Statutes, there shall be no personal liability of a director or officer
to the Company, or its stockholders for damages for breach of fiduciary duty as
a director or officer. The Company may indemnify any person for expenses
incurred, including attorneys fees, in connection with their good faith acts if
they reasonably believe such acts are in and not opposed to the best interests
of the Company and for acts for which the person had no reason to believe his or
her conduct was unlawful. The Company may indemnify the officers and directors
25
<PAGE>
for expenses incurred in defending a civil or criminal action, suit or
proceeding as they are incurred in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount of such expenses if it is ultimately
determined by a court of competent jurisdiction in which the action or suit is
brought determined that such person is fairly and reasonably entitled to
indemnification for such expenses which the court deems proper.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to officers, directors or persons
controlling the Company pursuant to the foregoing, the Company has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is therefore unenforceable.
PART F/S
FINANCIAL STATEMENTS.
The following financial statements are attached to this report and filed as
a part thereof.
1) Table of Contents
2) Independent Auditors' Report
3) Assets
4) Liabilities and Stockholders' Equity
5) Statement of Operations
6) Statement of Shareholders' Equity
7) Statement of Cash Flows
8) Notes to Financial Statements
26
<PAGE>
INDEPENDENT AUDITOR'S REPORT
Board of Directors and Stockholders
Landis and Partners, Inc.
Fountain Hills, Arizona
We have audited the accompanying balance sheets of Landis and Partners, 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 Landis and Partners, 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 20, 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
January 4, 2000
Scottsdale, Arizona
27
<PAGE>
LANDIS AND PARTNERS, INC.
(a development stage enterprise)
Statements of Income
For the Years Ended December 31, 1999
and December 31, 1998
and the Period February 20, 1998 (inception) to December 31, 1999
Year Year February 20, 1998
Ended Ended (inception) to
12/31/99 12/31/98 December 31, 1999
-------- -------- -----------------
REVENUE $ -0- $ -0- $ -0-
COST OF SALES -0- -0- -0-
--------- --------- ---------
GROSS PROFIT -0- -0- -0-
OPERATING EXPENSES
Filing Fees -0- 300 300
Professional Fees -0- 2,696 2,696
--------- --------- ---------
-0- 2,996 2,996
--------- --------- ---------
NET INCOME (LOSS) BEFORE
INCOME TAXES (-0-) (2,996) (2,996)
INCOME TAXES -0- -0- -0-
--------- --------- ---------
NET INCOME (LOSS) $ (-0-) $ (2,996) $ (2,996)
========= ========= =========
EARNINGS PER SHARE OF
COMMON STOCK $ -0- $ -0-
WEIGHTED AVERAGE NUMBERS
OF SHARES OUTSTANDING 2,996,000 2,996,000
The accompanying notes are an integral part of these financial statements
28
<PAGE>
LANDIS AND PARTNERS, INC
(a development stage enterprise)
Balance Sheets
December 31, 1999 and December 31, 1998
ASSETS
December 31, 1999 December 31, 1998
CURRENT ASSETS
Cash $ -0- $ -0-
PROPERTY AND EQUIPMENT -0- -0-
$ -0- $ -0-
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Loan payable $ -0- $ -0-
TOTAL CURRENT LIABILITIES -0- -0-
STOCKHOLDERS' EQUITY
Common stock, $.001 par value,
20,000,000, shares authorized,
2,996,000 shares issued
and outstanding 2,996 2,996
Preferred stock, $.001 par value, -0- -0-
5,000,000 shares authorized,
no shares issued and outstanding (2,996) (2.996)
Deficit accumulated during
development stage -0- -0-
Total stockholders' equity $ -0- $ -0-
The accompanying notes are an integral part of these financial statements
29
<PAGE>
LANDIS AND PARTNERS, INC.
(a development stage enterprise)
Statements of Cash Flows
For the Years Ended December 31, 1999
and December 31, 1998
and the Period February 20, 1998 (inception) to December 31, 1999
Year Year February 20, 1998
Ended Ended (inception) to
12/31/99 12/31/98 December 31, 1999
-------- -------- -----------------
Net Income/(Loss) $ -0- $ (2,996) $ (2,996)
Adjustments to reconcile not
income to net cash provided
by operating activities: $ -0- $ -0- $ -0-
-------- -------- --------
Cash From Operations $ -0- $ (2,996) $ (2,996)
-------- -------- --------
Cash From Investing Activities $ -0- $ -0- $ -0-
-------- -------- --------
Cash From Financing Activities
Stock issued $ -0- $ 2,996 $ 2,996
-------- -------- --------
Net Increase in Cash $ -0- $ -0- $ -0-
Beginning Cash Balance $ -0- $ -0- $ -0-
-------- -------- --------
Ending Cash Balance $ -0- $ -0- $ -0-
======== ======== ========
The accompanying notes are an integral part of these financial statements.
30
<PAGE>
LANDIS AND PARTNERS, INC.
(a development stage enterprise)
Statement of Stockholders' Equity
December 31, 1999
<TABLE>
<CAPTION>
Deficit
Accumulated
Paid in During
Preferred Stock Common Stock Capital Development
Stock Amount Stock Amount Amount Stage Total
----- ------ ----- ------ ------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Balance February 20, 1998 -0- $ -0- -0- $ -0- $ -0- $ -0- $ -0-
Stock issued -0- -0- 2,996,000 2,996 -0- -0- 2,996
Retained Earnings (Loss) -0- -0- -0- -0- -0- (2,996) (2,996)
--- ------ --------- ------- ----- -------- -------
Balance December 31, 1998 -0- -0- 2,996,000 2,996 -0- (2,996) -0-
Retained Earnings (Loss) -0- -0- -0- -0- -0- -0- -0-
--- ------ --------- ------- ----- -------- -------
Balance December 31, 1999 -0- $ -0- 2,996,000 $ 2,996 $ -0- $ (2,996) $ -0-
=== ====== ========= ======= ===== ======== =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
31
<PAGE>
LANDIS AND PARTNERS, INC.
(a development stage enterprise)
Notes to Financial Statements
December 31, 1999 and December 31, 1998
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 dividing 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 2,996,000
shares of common stock, par value $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 differ from these estimates.
32
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PART III
ITEM 1. EXHIBIT INDEX
No.
(3) Articles of Incorporation and Bylaws
3.1 Articles of Incorporation
3.2 Bylaws
(12) Lock-Up Agreements
12.1 Mark Nielsen
12.2 John C. Mueller, III
(23) Consents - Experts
23.1 Consent of Michael L. Stuck
(27) Financial Data Schedule
27.1 Financial Data Schedule
33
<PAGE>
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.
Date: March 22, 2000 LANDIS & PARTNERS, INC.
By: /s/ Mark Nielsen
------------------------------------
Mark Nielsen
President
34
ARTICLES 0F INCORPORATION
OF
LANDIS & PARTNERS, 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:
LANDIS & PARTNERS. 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.
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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 (20,000,000) 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.
2
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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 elected and qualified 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.
3
<PAGE>
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 as to which such person has been
4
<PAGE>
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.
5
<PAGE>
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.
6
<PAGE>
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:
Name Address
---- -------
Robert E. Nicholson 10044 N. 58th P1.
Paradise Valley, AZ 85253
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<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of February, 1998.
/s/ Robert E. Nicholson
---------------------------------------------
Robert E. Nicholson
VERIFICATION
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
I, Fay Gridley, a Notary Public, hereby certify that on the 18th day of
February, 1998, personally appeared before me William E. Lane who, being by me
first duly sworn, declared that he was the person who signed the foregoing
document as incorporator and that the statements therein contained are true.
My commission expires: Jan. 24, 2001
Witness my hand and official seal.
(SEAL)
/s/ Fay Gridley
--------------------------------
Notary Public
Certificate of Acceptance
The undersigned, upon execution hereof, does hereby accept appointment as the
Resident Agent for Landis & Partners, Inc., in the State of Nevada. The address
of American International Investors, Ltd., 850 S. Boulder Hwy., Suite 134,
Henderson, NV 89015.
/s/ Earl P. Gilbrech 2/18/98
----------------------------------------
Earl P. Gilbrech - President
American International Investors, Ltd.
8
BYLAWS OF LANDIS & PARTNERS, INC.
ARTICLE I
OFFICES
1.1. REGISTERED OFFICE AND AGENT. The principal office and resident agent of
Landis & Partners, 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. Tf 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.
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<PAGE>
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
<PAGE>
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.
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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.
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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.
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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.
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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.
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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 an
a book to be kept for that purpose. He shall keep in sate 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.
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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.
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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.
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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
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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,
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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.
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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 24th day of February, 1998.
/s/ Robert E. Nicholson
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Robert E. Nicholson, President
14
EXHIBIT 12.1
December 30, 1999
Landis & Partners, Inc.
16810 E. Avenue of the Fountains, #200
Fountain Hills, Arizona 85268
Re: Landis & Partners, Inc.
Gentlemen:
The undersigned is the record owner of 1,225,000 shares of the common stock of
Landis & Partners, Inc., par value $.001 per share (the "Shares), such Shares
are eligible for sale under Rule 144 promulgated under the Securities Act of
1933, as amended, subject to certain limitations included in said Rule.
The Company intends to file a Form 10SB12G with the Securities and Exchange
Commission. Thereafter, during the pendency of said filing, the undersigned,
together with the other majority shareholders, and each of them, agreed as
follows:
1. The undersigned will not sell, contract to sell, or make any other
disposition of, or grant any purchase option for the sale of, any of the
shares of the common stock owned by the undersigned, directly or
indirectly, until such time as the Company has entered into a merger or
acquisition or the Company is no longer classified as a "blank check"
company, as that term is defined in the Form 10SB12G on file with the
Securities and Exchange Commission, whichever first occurs.
2. The undersigned acknowledges that Executive Registrar & Transfer Agency,
Inc., 3145 West Lewis, Suite 2, Phoenix, Arizona 85009, the transfer agent
for the Company, has been advised of the restrictions described herein and
that any attempts by the undersigned to violate said restriction may result
in legal action(s) by the Company. The undersigned further agrees, upon the
request of the Company, that in addition to any other restrictions
reflecting that the Shares have not been registered under the Securities
Act of 1933, as amended, may be placed on individual certificates issued.
Very truly yours,
/s/ MARK NIELSEN
- ----------------------------
MARK NIELSEN
cc: Executive Registrar & Transfer Company
EXHIBIT 12.2
December 30, 1999
Landis & Partners, Inc.
16810 E. Avenue of the Fountains, #200
Fountain Hills, Arizona 85268
Re: Landis & Partners, Inc.
Gentlemen:
The undersigned is the record owner of 1,225,000 shares of the common stock of
Landis & Partners, Inc., par value $.001 per share (the "Shares), such Shares
are eligible for sale under Rule 144 promulgated under the Securities Act of
1933, as amended, subject to certain limitations included in said Rule.
The Company intends to file a Form 10SB12G with the Securities and Exchange
Commission. Thereafter, during the pendency of said filing, the undersigned,
together with the other majority shareholders, and each of them, agreed as
follows:
1. The undersigned will not sell, contract to sell, or make any other
disposition of, or grant any purchase option for the sale of, any of the
shares of the common stock owned by the undersigned, directly or
indirectly, until such time as the Company has entered into a merger or
acquisition or the Company is no longer classified as a "blank check"
company, as that term is defined in the Form 10SB12G on file with the
Securities and Exchange Commission, whichever first occurs.
2. The undersigned acknowledges that Executive Registrar & Transfer Agency,
Inc., 3145 West Lewis, Suite 2, Phoenix, Arizona 85009, the transfer agent
for the Company, has been advised of the restrictions described herein and
that any attempts by the undersigned to violate said restriction may result
in legal action(s) by the Company. The undersigned further agrees, upon the
request of the Company, that in addition to any other restrictions
reflecting that the Shares have not been registered under the Securities
Act of 1933, as amended, may be placed on individual certificates issued.
Very truly yours,
/s/ JOHN C. MUELLER, III
- ----------------------------
JOHN C. MUELLER
cc: Executive Registrar & Transfer Company
[MICHAEL L. STUCK LETTERHEAD]
To Whom It May Concern January 4, 2000
The firm of Michael L. Stuck, Certified Public Accountant consents to the
inclusion of their report of January 4, 2000, on the Financial Statements of
Landis and Partners, Inc. as of December 31, 1999, in any filings that are
necessary now or in the near future with the U.S. Securities and Exchange
Commission.
Very truly yours,
/s/ Michael L. Stuck
- -------------------------------
Michael L. Stuck
Certified Public Accountant
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE AUDITED
FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 2,996,000
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> (2,996)
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> (2,996)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,996)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,996)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,996)
<EPS-BASIC> (.001)
<EPS-DILUTED> (.001)
</TABLE>
