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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRST CYPRESS TECHNOLOGIES, INC.
(Name of small business issuer in its charter)
NEVADA 98-0218688
- ------------------------- ---------------------
(State or jurisdiction of I.R.S. Employer
incorporation or organization) Identification Number)
Robert Rosner, President
#3362 - 349 West Georgia Street
Vancouver, British Columbia V6B 3Y3 SEC File No.:
- ---------------------------------------- ---------
(Name and address of principal executive
offices, principal place of business and
agent for service of process)
Registrant's telephone number, including area code: (604) 817-1441
Approximate date of proposed sale to the public: As soon as practicable
after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
|__|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |__|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |__|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. |__|
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------
TITLE OF EACH PROPOSED PROPOSED
CLASS OF MAXIMUM MAXIMUM
SECURITIES OFFERING AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED UNIT (1) PRICE (2) FEE (2)
- --------------------------------------------------------------------------
Common Stock 2,057,500 shares $0.10 $205,750 $54.94
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(1) Based on last sales price on December 31, 1999
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
COPIES OF COMMUNICATIONS TO:
Michael A. Cane, Esq.
101 Convention Center Dr., Suite 1200
Las Vegas, NV 89109
(702) 312-6255
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SUBJECT TO COMPLETION, Dated May 9, 2000
PROSPECTUS
FIRST CYPRESS TECHNOLOGIES, INC.
2,057,500 SHARES
COMMON STOCK
----------------
The selling shareholders named in this prospectus are offering all of
our shares of common stock offered through this prospectus. See the
section entitled "Selling Shareholders." The shares were acquired by
the selling shareholders directly from us in two private offerings
that were exempt from registration under the US securities laws. See
the section entitled "Description of Securities."
Our common stock is presently not traded on any market or securities
exchange.
----------------
The purchase of the securities offered through this prospectus
involves a high degree of risk. See section entitled "Risk Factors"
on pages 4 - 8.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
----------------
The Date Of This Prospectus Is: May 9, 2000
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TABLE OF CONTENTS
PAGE
----
Summary ........................................................... 3
Risk Factors ...................................................... 4
Use of Proceeds ................................................... 8
Determination of Offering Price ................................... 8
Dilution .......................................................... 8
Selling Shareholders .............................................. 9
Plan of Distribution .............................................. 13
Legal Proceedings ................................................. 14
Directors, Executive Officers, Promoters and Control Persons ...... 14
Security Ownership of Certain Beneficial Owners and Management .... 15
Description of Securities ......................................... 16
Interest of Named Experts and Counsel ............................. 16
Disclosure of Commission Position of Indemnification for
Securities Act Liabilities ...................................... 17
Organization Within Last Five Years ............................... 17
Description of Business ........................................... 17
Plan of Operations ................................................ 22
Description of Property ........................................... 23
Certain Relationships and Related Transactions .................... 23
Market for Common Equity and Related Stockholder Matters .......... 23
Executive Compensation ............................................ 25
Financial Statements .............................................. 26
Changes in and Disagreements with Accountants ..................... 27
Available Information ............................................. 27
Until ______, all dealers that effect transactions in these
securities whether or not participating in this offering, may be
required to deliver a prospectus. This is in addition to the dealer'
obligation to deliver a prospectus when acting as underwriters and
with respect to their unsold allotments or subscriptions.
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SUMMARY
The following summary is only a shortened version of the more
detailed information, exhibits and financial statements appearing
elsewhere in this prospectus. Prospective investors are urged to
read this prospectus in its entirety.
First Cypress Technologies, Inc.
We were incorporated on September 14, 1999 under the laws of the
state of Nevada.
Our business plan is to develop and market an Internet computer
software program known as EngineMax through our www.enginemax.com
Internet web site. The EngineMax computer software program will be
designed to automate the process of submission of Internet web page
information to major Internet search engines. Upon completion of
the development process, we plan to market our EngineMax software to
Internet web page owners and designers who are trying to maximize
their visibility to Internet users on major Internet search engines.
Our plan is to earn revenue from sales of EngineMax software licenses
once development of this software is complete.
We acquired the rights to develop our EngineMax software and the
www.EngineMax.com web site address on October 5, 1999 from Mr. Lance
Morgan.
We have only recently commenced the development of the EngineMax
software and we have yet to earn any revenues. The EngineMax
software is still in the conceptual stage of development and is not
ready for commercial use or sale. We have also not started
operations of our web site. Accordingly, our business operations are
in the start-up phase.
Securities Being Offered Up to 2,057,500 shares of common stock. See
section entitled Description of Securities.
Securities Issued
And to be Issued 7,057,500 shares of common stock are issued
and outstanding as of the date of this
prospectus. All of the common stock to be
sold under this prospectus will be sold by
existing shareholders. See section entitled
Description of Securities.
Use of Proceeds We will not receive any proceeds from the
sale of the common stock by the selling
shareholders. See section entitled Use of
Proceeds.
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RISK FACTORS
An investment in our common stock involves a high degree of risk.
You should carefully consider the risks described below and the other
information in this prospectus and any other filings we may make with
the United States Securities and Exchange Commission in the future
before investing in our common stock. If any of the following risks
occur, our business, operating results and financial condition could
be seriously harmed. The trading price of our common stock could
decline due to any of these risks, and you could lose all or part of
your investment.
Risks Related To Our Financial Condition And Business Model
- -----------------------------------------------------------
If We Do Not Obtain Additional Financing, Our Business Will Fail
As of December 31, 1999, we had cash in the amount of $15,352. Our
business plan calls for significant expenses in connection with the
development of our EngineMax software. In addition, we anticipate
that revenues from operations will not be realized until sometime
after development of our EngineMax software is complete.
Accordingly, we will require additional financing in order to finance
this development expense. We do not have any arrangements for
financing and we can provide no assurance that we will be able to
obtain the required financing when needed. Obtaining additional
financing will be subject to a number of factors, including:
* market conditions;
* investor acceptance of our business plan; and
* investor sentiment.
These factors may make the timing, amount, terms and conditions of
additional financing unattractive or unavailable to us. If we are not
successful in achieving financing in the amount necessary to develop
and market our EngineMax software, then we will not be able to
achieve revenues and our business will fail.
Because We Have Only Recently Commenced Business Operations, We Face
A High Risk of Business Failure
We were incorporated in September, 1999. We acquired the rights to
develop our EngineMax software and the www.EngineMax.com web site
address in October 1999. We are presently in the process of
commencing development of our EngineMax software product. We have
not yet earned any revenues. Accordingly, we have no operating
history from which investors can evaluate our business. An investor
should consider the risks, expenses and uncertainties that an early
stage company like ours faces. These risks include our ability to:
* develop a functioning and marketable software product;
* develop a web site to market our EngineMax software once
development is complete;
* successfully market our EngineMax software once
development is complete;
* convince potential customers to purchase licenses of our
EngineMax software;
* respond effectively to competitive pressures;
* continue to develop and upgrade our EngineMax software once
development is complete.
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If we are unsuccessful in addressing these risks, our business will
most likely fail.
Because We Have Only Recently Commenced Business Operations, We
Expect to Incur Operating Losses For The Foreseeable Future
We have never been profitable or made any income whatsoever. As of
December 31, 1999, we had an accumulated deficit of approximately
$33,298. Prior to completion of our EngineMax software, we anticipate
that we will incur increased operating expenses without realizing any
revenues from sales. We therefore expect to incur significant losses
into the foreseeable future and recognize that if we are unable to
generate significant revenues from sales of licenses for our
EngineMax software, we will not be able to achieve profitability or
continue operations.
Because We Are A Development Stage Company, Our Business Has A High
Risk Of Failure
As noted in our financial statements which are included with this
prospectus, we are a development stage company that is currently
developing a computer software product. These conditions, as
indicated in the audit report of BDO Dunwoody, LLP, Chartered
Accountants, raise substantial doubt as to our continuance as a going
concern. To date, we have not completed the development of a viable
software product and we can provide no assurance that the product we
are currently developing will have a commercial application. The
success of our business operations will depend upon our ability to
obtain further financing to complete successful development of the
program and to attain profitable operations. It is not possible at
this time for us to predict with assurance the outcome of these
matters. If we are not able to complete successful development of
the program and attain profitable operations, then our business will
fail.
Risks Related To Our Markets And Strategy
- -----------------------------------------
If The Internet Is Not Widely Accepted As A Medium For Electronic
Commerce, Our Business May Fail
We expect to derive most of our revenue from customers engaged in
electronic commerce on the Internet. Electronic commerce is a new
and rapidly evolving market. If the Internet is not accepted as a
medium for electronic commerce, we may not be able to successfully
develop our business due to a lack of demand for our EngineMax
software product.
If We Are Unable To Develop A Marketable Product, Then Our Business
Will Fail
The EngineMax software is in the development stage. If we are unable
to develop a final product that is capable of commercial sale and
market acceptance, we will not be able to make any money. Our
failure to earn a sufficient amount of revenues will most likely
cause our business to fail.
If Major Search Engines Change Their Search Format, Then Our
EngineMax Software May Not Be Able Operate Properly and Our Business
May Fail
Our business plan is based on our ability to develop a computer
software program that is able to access major search engines and
directly submit web pages. If these major search engines restrict
this access or change the manner in which they gather information on
Internet web sites, then our EngineMax software product could be
redundant or may not work properly, and we may not be able to produce
a viable product. In such a case, our business will most likely
fail.
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If We Are Unable To Hire And Retain Key Personnel, We May Not Be Able
To Develop Our Software And Our Business Will Fail
Our success will be largely dependent on our ability to hire highly
qualified computer programmers, sales and technical personnel who can
develop the EngineMax software as a marketable product. These
individuals are in high demand and we may not be able to attract the
staff we need. In addition, we may not be able to afford the high
salaries and fees demanded by qualified personnel or may lose such
employees after they are hired. Currently, we have hired the
following key personnel, the loss of any of which would have a
significant negative effect on our business:
Our officers and directors, Mr. Robert Rosner and Mr. Carl Chow,
presently devote only a portion of their business time to the
management of our business. We can provide no assurance that either
Mr. Rosner or Mr. Chow will be able to devote sufficient amounts of
their business time to enable us to implement our business plan. If
Mr. Rosner and Mr. Chow do not devote a sufficient amount of their
business time to the management of our business, then our business
may fail.
If We Are Not Able To Effectively Respond To Competition, Our
Business May Fail
We have competitors who sell software products that perform similar
functions to our proposed EngineMax software. Competition for
customers, including web page owners and web page designers, is
intense and is expected to increase significantly in the future
because of the growth of the Internet. Increased competition could
result in:
* lower than projected license fees from sales of our
EngineMax software;
* price reductions and lower profit margins;
* our inability to sell licenses for our EngineMax
software;
* our inability to develop or maintain the EngineMax software
with features and usability sought by potential customers.
Any one of these results could adversely affect our business,
financial condition and results of operations. In addition, our
competitors may develop competing products that achieve greater
market acceptance. It is also possible that new competitors may
emerge and acquire significant market share. Our inability to achieve
sales and revenue due to competition will have an adverse effect on
our business, financial condition and results of operations.
Risks Related To Legal Uncertainty
- ----------------------------------
If Our Business Becomes Subject To Burdensome Government Regulation
Or Other Legal Uncertainties, Our Business Will Be Negatively
Effected
To date, governmental regulations have not materially restricted the
use of the Internet. However, the legal and regulatory environment
that pertains to the Internet is uncertain and may change.
Uncertainty and new regulations could increase our costs of doing
business and prevent us from delivering or selling our products to
web site owners and developers. The growth of the Internet may also
be significantly slowed. This could delay growth in potential demand
for our product and limit the growth of our revenues. In addition to
new laws and regulations being adopted, existing laws may be applied
to the Internet that have not as yet been applied. New and existing
laws may cover issues which include:
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* sales and other taxes;
* user privacy;
* pricing controls;
* characteristics and quality of products and services;
* consumer protection;
* cross-border commerce;
* libel and defamation;
* copyright, trademark and patent infringement; and
* other claims based on the nature and content of Internet
materials.
If We Are Required To Qualify To Do Business In Multiple
Jurisdictions, Our Business May Be Harmed
Because we may sell our EngineMax computer software product in a
number of states and foreign countries, we may be subject to the laws
and court systems of multiple jurisdictions. These jurisdictions may
claim that we are required to qualify to do business as a foreign
company. This process of qualifying to do business can be costly and
time consuming and will generally have a negative effect on our
ability to show a profit from operations. Failure to qualify as a
foreign company in a jurisdiction where required to do so could
subject us to taxes and penalties.
Because We Will Be Developing and Selling a New Product in a New
Market, We May Be Subject To Legal Claims Based On Our Engine Max
Software
If we are successful in developing and marketing our EngineMax
software, we may become subject to claims from our customers.
Although we plan to carry general liability insurance when we
commence marketing our EngineMax software product, our insurance may
not cover all potential claims to which we are exposed or may not be
adequate to indemnify us for all liability that may be imposed. Any
imposition of liability that is not covered by insurance or is in
excess of insurance coverage could have an adverse effect on our
business, financial condition and results of operations.
Risks Related To This Offering
- ------------------------------
Because A Small Group Of Existing Stockholders Own a Majority of Our
Outstanding Common Stock, Investors May Find That Future Corporate
Decisions Are Controlled By This Group
Our directors, executive officers and affiliates beneficially own
approximately 70.8% of the outstanding shares of our common stock.
Accordingly, they will have significant influence in determining the
outcome of all corporate transactions, including mergers,
consolidations and the sale of all or substantially all of our
assets, and also the power to prevent or cause a change in control.
The interests of these stockholders may differ from the interests of
the other stockholders.
If A Market For Our Common Stock Is Developed, Our Stock Price May Be
Volatile
There is currently no market for our common stock and there is no
assurance that a market will develop. If a market develops, we
anticipate that the market price of our common stock will be subject
to wide fluctuations in response to several factors, including:
* actual or anticipated variations in our results of
operations;
* our ability or inability to generate new revenues;
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* increased competition; and
* conditions and trends in the Internet and electronic
commerce industries.
Further, if our common stock is traded on the Nasdaq over the counter
bulletin board, our stock price may be adversely impacted by factors
that are unrelated or disproportionate to our operating performance.
These market fluctuations, as well as general economic, political and
market conditions, such as recessions, interest rates or
international currency fluctuations may adversely affect the market
price of our common stock.
We can provide no assurance that our common stock will be traded on
the bulletin board.
If Our Stock Price Drops Significantly, We May Become Subject To
Securities Litigation That Would Result In A Harmful Diversion Of Our
Resources
In the past, following periods of volatility in the market price of a
particular company's securities, securities class action litigation
has been brought against that company. Any litigation arising from
the volatility in the price of our common stock could have a material
adverse effect on our business, financial condition and results of
operations.
Forward-Looking Statements
- --------------------------
This prospectus contains forward-looking statements that involve
risks and uncertainties. We use words such as "anticipate,"
"believe," "plan," "expect," "future," "intend" and similar
expressions to identify such forward-looking statements. You should
not place too much reliance on these forward-looking statements. Our
actual results are most likely to differ materially from those
anticipated in these forward-looking statements for many reasons,
including the risks faced by us described in the this Risk Factors
section and elsewhere in this prospectus.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock
offered through this prospectus by the selling shareholders.
DETERMINATION OF OFFERING PRICE
We will not determine the offering price of the common stock. The
offering price will be determined by market factors and the
independent decisions of the selling shareholders. See section
entitled Selling Shareholders.
DILUTION
The common stock to be sold by the selling shareholders is common
stock that is currently issued and outstanding. Accordingly, there
will be no dilution to our existing shareholders.
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SELLING SHAREHOLDERS
The selling shareholders named in this prospectus are offering all of
the 2,057,500 shares of common stock offered through this prospectus.
The shares include the following:
1. 1,990,000 shares of our common stock that the selling
shareholders acquired from us in an offering that was exempt
from registration under Regulation S of the Securities Act of
1933 and completed on November 15, 1999;
2. 67,500 shares of our common stock that the selling shareholders
acquired from us in an offering that was exempt from
registration under Regulation S of the Securities Act of 1933
and completed on December 31, 1999;
The following table provides as of March 31, 2000, information
regarding the beneficial ownership of our common stock held by each
of the selling shareholders, including:
1. the number of shares owned by each prior to this offering;
2. the total number of shares that are to be offered for each;
3. the total number of shares that will be owned by each upon
completion of the offering;
4. the percentage owned by each; and
5. the identity of the beneficial holder of any entity that owns
the shares.
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Total
Shares Total Number Shares To
Owned Of Shares To Be Owned Percent
Prior Be Offered Upon Com- Owned Upon
Name Of To This For Selling Pletion Of Completion
Selling Offer- Shareholders This Of This
Stockholder Ing Account Offering Offering
- -------------------- -------- ------------- ---------- --------------
Abbey Investment
Management Ltd. 175,000 175,000 NIL NIL
P.O. Box 2973,
11 Old Parham Road
St. John's, Antigua
Beneficial owner: Ian Woods
Mike Arnott 1,000 1,000 NIL NIL
242 Mobrae Ave.
Salt Spring Island, BC
Mary Arnott 500 500 NIL NIL
242 Mobrae Ave.
Salt Spring Island, BC
Bruno Benedet, Jr. 1,000 1,000 NIL NIL
414 N. Boundary Rd.
Burnaby, BC
Victor Benedet 1,000 1,000 NIL NIL
414 N. Boundary Rd.
Burnaby, BC
J. Boguski 5,000 5,000 NIL NIL
107 Skeena St.
Kitimat, BC
Wally Boguski 6,000 6,000 NIL NIL
3887 Cartier St.
Vancouver, BC
Rhonda Canaday 4,500 4,500 NIL NIL
167 Kirkpatrick Ave.
Penticton, BC
William Chang 1,000 1,000 NIL NIL
4275 Lancelot Dr.
Richmond, BC
Albert Charron 7,500 7,500 NIL NIL
13-23387 - 70A Ave.
Langley, BC
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(TABLE CONTINUED FROM PAGE 10)
Total
Shares Total Number Shares To
Owned Of Shares To Be Owned Percent
Prior Be Offered Upon Com- Owned Upon
Name Of To This For Selling Pletion Of Completion
Selling Offer- Shareholders This Of This
Stockholder Ing Account Offering Offering
- -------------------- -------- ------------- ---------- --------------
Brian Cole 200,000 200,000 NIL NIL
405-1680 Balsam St.
Vancouver, BC
Edward Dowse 200,000 200,000 NIL NIL
109-1770 128th St.
Surrey, BC
Francois MacKay 5,000 5,000 NIL NIL
3636 W. 14th Ave.
Vancouver, BC
Mampr, Minci 305,000 305,000 NIL NIL
3520 River Road
Richmond, BC
Bill C. Robertson 1,000 1,000 NIL NIL
828 W. 7th Ave.
Vancouver, BC
Graeme Rowland 275,000 275,000 NIL NIL
Orchard Barn
1 Peaches Farm
Crackstone Minchimhanston
Glos., England
Michael Soloniuk 6,500 6,500 NIL NIL
3248 Adanac St.
Vancouver, BC
Laurence Sookochoff 5,000 5,000 NIL NIL
4463 W. 1st Avenue
Vancouver, BC
Barb St. Eloi 7,500 7,500 NIL NIL
3887 Cartier St.
Vancouver, BC
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TABLE CONTINUED FROM PAGE 11
Total
Shares Total Number Shares To
Owned Of Shares To Be Owned Percent
Prior Be Offered Upon Com- Owned Upon
Name Of To This For Selling Pletion Of Completion
Selling Offer- Shareholders This Of This
Stockholder Ing Account Offering Offering
- -------------------- -------- ------------- ---------- --------------
Carey Swales 6,000 6,000 NIL NIL
3-2880 W. 33rd Ave.
Vancouver, BC
Dawana Taylor 300,000 300,000 NIL NIL
1250 Saturna Dr.
Parksville, BC
Torcastle
Investments Inc. 285,000 285,000 NIL NIL
5 Columbus Centre
Pelican Drive
Road Town, BVI
Beneficial Owner: Janice Wehner
Gino Varnier 1,000 1,000 NIL NIL
5470 Meadfeild Lane
W. Vancouver, BC
Sandra Varnier 1,000 1,000 NIL NIL
5470 Meadfeild Lane
W. Vancouver, BC
Raul Verzosa 7,000 7,000 NIL NIL
23064-50th Ave.
Langley, BC
Woodcrest
Enterprises S.A. 250,000 250,000 NIL NIL
P.O. Box HM 2006
Hamilton, Bermuda
Beneficial owner: Peter Leighton
- ----------------------------------------------------------------------
Except as otherwise noted in the above list, the named party beneficially
owns and has sole voting and investment power over all shares or rights
to these shares. The numbers in this table assume that none of the
selling shareholders sells shares of common stock not being offered in
this prospectus or purchases additional shares of common stock, and
assumes that all shares offered are sold. The percentages are based
on 7,057,500 shares of common stock outstanding on March 31, 2000.
None of the selling shareholders or their beneficial owners:
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* has had a material relationship with the company other than
as a shareholder at any time within the past three years; or
* has ever been an officer or directors of the company or any
of its predecessors or affiliates.
PLAN OF DISTRIBUTION
The selling shareholders have not informed us of how they plan to
sell their shares. However, they may sell some or all of their
common stock in one or more transactions, including block
transactions:
1. on such public markets or exchanges as the common stock may
from time to time be trading;
2. in privately negotiated transactions;
3. through the writing of options on the common stock;
4. in short sales; or
5. in any combination of these methods of distribution.
The sales price to the public may be:
1. the market price prevailing at the time of sale;
2. a price related to such prevailing market price; or
3. such other price as the selling shareholders determine from
time to time.
The shares may also be sold in compliance with the Securities and
Exchange Commission's Rule 144.
The selling shareholders may also sell their shares directly to
market makers acting as principals or brokers or dealers, who may act
as agent or acquire the common stock as a principal. Any broker or
dealer participating in such transactions as agent may receive a
commission from the selling shareholders, or, if they act as agent
for the purchaser of such common stock, from such purchaser. The
selling shareholders will likely pay the usual and customary
brokerage fees for such services. Brokers or dealers may agree with
the selling shareholders to sell a specified number of shares at a
stipulated price per share and, to the extent such broker or dealer
is unable to do so acting as agent for the selling shareholders, to
purchase, as principal, any unsold shares at the price required to
fulfill the respective broker's or dealer's commitment to the selling
shareholders. Brokers or dealers who acquire shares as principals may
thereafter resell such shares from time to time in transactions in a
market or on an exchange, in negotiated transactions or otherwise, at
market prices prevailing at the time of sale or at negotiated prices,
and in connection with such re-sales may pay or receive commissions
to or from the purchasers of such shares. These transactions may
involve cross and block transactions that may involve sales to and
through other brokers or dealers. If applicable, the selling
shareholders also may have distributed, or may distribute, shares to
one or more of their partners who are unaffiliated with us. Such
partners may, in turn, distribute such shares as described above. We
can provide no assurance that all or any of the common stock offered
will be sold by the selling shareholders.
We are bearing all costs relating to the registration of the common
stock. Any commissions or other fees payable to brokers or dealers
in connection with any sale of the common stock, however, will be
paid by the selling shareholders or other party selling such common
stock.
The selling shareholders must comply with the requirements of the
Securities Act and the Securities Exchange Act in the offer and sale
of the common stock. In particular, during such times as the selling
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shareholders may be deemed to be engaged in a distribution of the
common stock, and therefore be considered to be an underwriter, they
must comply with applicable law and may, among other things:
1. not engage in any stabilization activities in connection with
our common stock;
2. furnish each broker or dealer through which common stock may be
offered, such copies of this prospectus, as amended from time to
time, as may be required by such broker or dealer; and
3. not bid for or purchase any of our securities or attempt to
induce any person to purchase any of our securities other than
as permitted under the Securities Exchange Act.
LEGAL PROCEEDINGS
We are not currently a party to any legal proceedings.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
Our executive officers and directors and their respective ages as of
March 31, 2000 are as follows:
Directors:
Name of Director Age
- ---------------------- -----
Robert Rosner 35
Carl Chow 30
Executive Officers:
Name of Officer Age Office
- -------------------- ----- -------
Robert Rosner 35 President and Chief Executive Officer
Carl Chow 30 Secretary, Treasurer and
Chief Financial Officer
Set forth below is a brief description of the background and business
experience of each of our executive officers and directors for the
past five years.
Mr. Robert Rosner is our president and chief executive officer and is
a member of our board of directors. Mr. Rosner was appointed to our
board of directors on September 15, 1999. Mr. Rosner was appointed
as our president on September 15, 1999. Mr. Rosner has been the
owner and the president of Rosner Communications Inc. since July
1985. Rosner Communications Inc. provides consulting services to
public companies. Mr. Rosner has been the president and a director
of Moreno Ventures Inc., a company listed on the Canadian Venture
Exchange, since July 1994. Mr. Rosner has been the president and a
director of Fortuna Ventures Inc., a company listed on the Canadian
Venture Exchange, since June 1996. Mr. Rosner was a director of
Global Tree Technologies, Inc., a company currently listed on the
Canadian Venture Exchange, from May 1993 to February 1998. Mr.
Rosner has been a member of the Independent Order of Foresters since
1989, and a member of its executive committee since 1994. Mr. Rosner
spends approximately 10% of his time on our business.
14
<PAGE>
Mr. Carl Chow is our secretary, treasurer and chief financial officer
and a member of our board of directors. Mr. Chow was appointed to
our board of directors on September 15, 1999. Mr. Chow was appointed
our secretary and treasurer on September 15, 1999. Mr. Chow is the
general manager of Viva Club, a restaurant located in Richmond,
British Columbia, Canada. Mr. Chow has been the general manager of
Viva Club from 1999 to present. Mr. Chow is also presently an
assistant manager with Rogers Cable Systems. Mr. Chow joined Rogers
Cable Systems in 1995. Mr. Chow was the general manager of Neway
Holding and Trading, a company in the automotive parts and
accessories business, from 1994 to 1995. Mr. Chow was a special
events coordinator for Equity Magazine from 1991 to 1993. Mr. Chow
received his diploma in business education from the British Columbia
Institute of Technology in 1991. Mr. Chow spends approximately 5% of
his time on our business.
Term of Office
Our Directors are appointed for a one year term to hold office until
the next annual general meeting of our shareholders or until removed
from office in accordance with our bylaws. Our officers are
appointed by our board of directors and hold office until removed by
the board.
Significant Employees
We have no significant employees other than the officers and
directors described above.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table provides the names and addresses of each person
known to us to own more than 5% of our outstanding common stock as of
March 31, 2000, and by the officers and directors, individually and
as a group. Except as otherwise indicated, all shares are owned
directly.
Name and address Amount of Percent
Title of class of beneficial owner beneficial ownership of class(1)
- ---------------- ------------------- -------------------- -----------
Common Stock Robert Rosner 2,500,000 shares 35.4%
Director, President &
Chief Executive Officer
349 West Georgia St., #3362
Vancouver, BC V6B 3Y3
Common Stock Carl Chow 2,500,000 shares 35.4%
Director, Secretary, Treasurer
& Chief Financial Officer
6142 Beatrice St.
Vancouver, BC V5P 3R2
Common Stock All Officers and
Directors as a Group 5,000,000 shares 70.8%
(2 persons)
- ------------------------------------------------------------------------
The percent of class is based on 7,057,500 shares of common stock issued
and outstanding as of March 31, 2000.
15
<PAGE>
DESCRIPTION OF SECURITIES
General
Our authorized capital stock consists of 25,000,000 shares of common
stock at a par value of $0.001 per share.
Common Stock
As of March 31, 2000, there were 7,057,500 shares of our common stock
issued and outstanding that were held by approximately 28
stockholders of record.
Holders of our common stock are entitled to one vote for each share
on all matters submitted to a stockholder vote. Holders of common
stock do not have cumulative voting rights. Therefore, holders of a
majority of the shares of common stock voting for the election of
directors can elect all of the directors. Holders of our common
stock representing a majority of the voting power of our capital
stock issued and outstanding and entitled to vote, represented in
person or by proxy, are necessary to constitute a quorum at any
meeting of our stockholders. A vote by the holders of a majority of
our outstanding shares is required to effectuate certain fundamental
corporate changes such as a liquidation, merger or an amendment to
our Articles of Incorporation.
Holders of common stock are entitled to share in all dividends that
the board of directors, in its discretion, declares from legally
available funds. In the event of a liquidation, dissolution or
winding up, each outstanding share entitles its holder to participate
pro rata in all assets that remain after payment of liabilities and
after providing for each class of stock, if any, having preference
over the common stock. Holders of our common stock have no pre-
emptive rights, no conversion rights and there are no redemption
provisions applicable to our common stock.
INTERESTS OF NAMED EXPERTS AND COUNSEL
No expert or counsel named in this prospectus as having prepared or
certified any part of this prospectus or having given an opinion upon
the validity of the securities being registered or upon other legal
matters in connection with the registration or offering of the common
stock was employed on a contingency basis, or had, or is to receive,
in connection with the offering, a substantial interest, direct or
indirect, in the registrant or any of its parents or subsidiaries.
Nor was any such person connected with the registrant or any of its
parents or subsidiaries as a promoter, managing or principal
underwriter, voting trustee, director, officer, or employee.
Michael A. Cane of Cane & Company, LLC, our independent legal
counsel, has provided an opinion on the validity of our common stock.
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<PAGE>
DISCLOSURE OF COMMISSION POSITION OF INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Our directors and officers are indemnified as provided by the Nevada
Revised Statutes (the "NRS") and our Bylaws. We have been advised
that in the opinion of the Securities and Exchange Commission
indemnification for liabilities arising under the Securities Act is
against public policy as expressed in the Securities Act, and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities is asserted by one of our
directors, officers, or controlling persons in connection with the
securities being registered, we will, unless in the opinion of our
legal counsel the matter has been settled by controlling precedent,
submit the question of whether such indemnification is against public
policy to a court of appropriate jurisdiction. We will then be
governed by the court's decision.
ORGANIZATION WITHIN LAST FIVE YEARS
We were incorporated on September 14, 1999 under the laws of the
state of Nevada. We acquired the rights to develop our EngineMax
software and the www.EngineMax.com web site on October 5, 1999 from
Mr. Lance Morgan in consideration for a purchase price of $15,000.
Mr. Morgan is not, and has never been one of our officers, directors
or shareholders.
Our president, Robert Rosner, was also the company's sole promoter
upon its inception. Other than the purchase of his stock, Mr. Rosner
has not entered into any agreement with the company in which he is to
receive from the company or provide to the company any thing of
value.
DESCRIPTION OF BUSINESS
Our Business Plan is to develop and market an Internet computer
software program known as EngineMax through our www.enginemax.com
Internet web site. The EngineMax computer software program will be
designed to automate the process of submission of Internet web page
information to major Internet search engines. Upon completion, we
plan to market this software to Internet web page owners and
designers who are trying to maximize their visibility to Internet
users. Our plan is to earn revenue from sales of licenses from our
EngineMax software once development of this software is complete.
We have only recently commenced the development of the EngineMax
software and we have yet to earn any revenues. The EngineMax
software is still in its conceptual stage of development and is not
ready for commercial use or sale. We have also not started
operations of our web site.
Industry Background
1. Growth of the Internet and the World Wide Web
The Internet and the World Wide Web are experiencing dramatic growth
in terms of the number of users. The growth in the number of web
users and the amount of time users spend on the web is being driven
by the increasing importance of the Internet as a communications
medium and an information resource and a sales and distribution
channel. As Internet usage continues to grow, advertisers and
17
<PAGE>
electronic commerce marketers are increasingly using the web to
locate customers, advertise and facilitate transactions.
2. Locating Information on the Internet
The proliferation of content is making it increasingly difficult and
time-consuming for users to navigate the Internet and to locate
useful and relevant information. One of the principal methods of
finding information on the Internet is through Internet search
engines. Internet search engines capture, store and index web site
information in order to retrieve web site listings in response to a
user's query. These search engines have a limited ability to
determine quality or relevance of the web site they retrieve.
Further, as the nature of the available content has become more
difficult to classify, many companies who offer search engines are
being forced to employ significant editorial staff to ensure that
responses to queries are satisfactory. Search engines based on
natural language have the added difficulty of accurately determining
sentence syntax and nuances.
3. Marketing Web Sites on the Internet
The explosive growth of Internet web pages and the reliance by
Internet users on Internet search engines creates a marketing
difficulty for businesses that are promoting their web sites on the
Internet. A component of a successful marketing campaign of a web
site is to design a web page such that the web page is recognized by
major search engines when applicable key word searches are performed.
The ability of a business to ensure that its web page appears on
major search engines when appropriate keyword searches are performed
can have a material impact on the visibility of the company's web
site and the Internet traffic that the web site receives.
Accordingly, there is a demand from Internet-based businesses to
ensure that their web pages are appropriately positioned in the
databases of major search engines such that the web pages are
frequently cited when keyword searches are performed.
Development Of The EngineMax Software
Our business plan is to develop the EngineMax software as an Internet
software package that will be designed to enable users to
automatically submit web pages to major search engines. We are
planning to design the EngineMax software to access links that are
currently incorporated into major search engines. These access links
enable users to submit web pages directly to the search engine. The
EngineMax software will be designed with the objective of automating
this submission process and maximizing the ability of the user to
have their web page cited by major search engines when appropriate
key words are entered by Internet users.
Our plan is to design the EngineMax software with the following
capabilities:
(A) The EngineMax software will operate on both Windows 95 and
Windows 98 operating systems.
(B) The EngineMax software will be designed to submit domain names
directly to major search engines through a comprehensive
submission program.
(C) The EngineMax software will be designed for the submission of
initial web pages as well as the submission of web page updates.
(D) The EngineMax software will be designed to configure submissions
to major search engines in order to maximize exposure of
customer's web sites on major search engines.
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<PAGE>
We also plan to develop our EngineMax web site at "www.enginemax.com"
in order to market our EngineMax software. We will design our web
site to provide our customers with useful tips and strategies for
positioning their web sites for maximum recognition by major search
engines.
We anticipate that upon development, we will have to continually
upgrade and refine the EngineMax software in order that the software:
* remains compliant with any modifications to the web page
submission requirements of major search engines;
* is able to operate on upgraded operating systems, such as
Windows 2000;
* is competitive with products introduced by competitors.
Market for the EngineMax Software
Our objective is to earn revenues from sales of licenses for the use
of the EngineMax software.
We believe that the customers for our software will consist of web
page owners and web page developers who are trying to maximize the
visibility of their web sites on major Internet search engines.
Visibility on major search engines is a principal component of the
business plans of many companies who are trying to conduct electronic
commerce or other business via the Internet. We anticipate that our
software may be purchased by web page businesses and designers in the
following areas:
* Internet marketing;
* Electronic commerce;
* Generating web traffic;
* Customer support services;
* Special events;
* Corporate web pages;
* Personal web pages;
* Online identity and development.
Marketing
Our objective will be to commence marketing of the EngineMax software
upon completion of it's development. Our marketing strategy is
proposed to include the following elements:
(A) A banner advertising program in which we would pay for
advertising of the EngineMax software on Internet web sites
where we feel exposure would help to increase sales of the
EngineMax software.
(B) An e-mail program whereby advertisements for our EngineMax
software would be delivered to potential customers, including
Internet service providers, advertising companies, web site
development firms and computer programmers.
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<PAGE>
Operations
The development of our EngineMax software is currently in the
conceptual stage of its development. We have not commenced
operations or development in any form. We plan to commence
development of the EngineMax software once financing is obtained.
See section entitled Plan of Operations.
We have not completed the development of our www.EngineMax.com web
site which will be used to market our EngineMax software. Our plan
is to complete development of our web site once the development of
the EngineMax software has been completed and we are ready to market
the EngineMax software.
Competition
We will compete with other software developed by competitors, which
includes:
* A software product known as Submit-it marketed by
Software Design;
* A software product known as Web Position Gold marketed
by First Place Software;
* A software product known as Submission Wizard marketed
by GRP Main Agencies.
We will compete with existing competitors both on the basis of price
and brand recognition. Existing competitors who have already
completed development of their software products may be able to
market their competing products at lower prices than we are able to
market the EngineMax software. In addition, existing competitors may
have developed brand recognition with consumers, thereby making it
more difficult for our product to gain consumer acceptance. The
presence of these and other established competitors could adversely
affect our ability to successfully implement our business plan and
achieve sales of our software. If we are not successful in
implementing our business plan, then our business will fail.
We have limited financial, marketing, technical and other resources
that are necessary to implement our business plan. Many of our
current and potential competitors have significantly greater
financial, marketing, technical and other resources than we do. Our
competitors may be able to devote greater resources to the
development, promotion and sale of competing software and web sites.
In addition, our competitors may be able to offer the software we are
planning to develop at prices that are below the prices offered by us
or which may even be free.
Government Regulation
Due to the increasing popularity and use of the Internet, it is
possible that a number of laws and regulations may be adopted with
respect to the Internet generally, covering issues such as user
privacy, pricing, and characteristics and quality of products and
services. Similarly, the growth and development of the market for
Internet commerce may prompt calls for more stringent consumer
protection laws that may impose additional burdens on those companies
conducting business over the Internet. The adoption of any such laws
or regulations may decrease the growth of commerce over the Internet,
increase our cost of doing business or otherwise have a harmful
effect on our business.
20
<PAGE>
To date, governmental regulations have not materially restricted the
use or expansion of the Internet. However, the legal and regulatory
environment that pertains to the Internet is uncertain and may
change. New and existing laws may cover issues that include:
* sales and other taxes;
* user privacy;
* pricing controls;
* characteristics and quality of products and services;
* consumer protection;
* cross-border commerce;
* libel and defamation;
* copyright, trademark and patent infringement; and
* other claims based on the nature and content of Internet
materials.
These new laws may impact our ability to market and sell EngineMax
software in accordance with our business plans.
We may have to qualify to do business in other jurisdictions. If we
make sales of our EngineMax software, we anticipate that sales and
our customers will be in multiple states and foreign countries. As
our customers may be resident in such states and foreign countries,
such jurisdictions may claim that we are required to qualify to do
business as a foreign company in each such state and foreign country.
Failure to qualify as a foreign company in a jurisdiction where
required to do so could subject us to taxes and penalties.
We are not aware of any environmental laws that will be applicable to
the operation of our business.
Research and Development Expenditures
We have not expended any money on research and development. We have
spent $15,000 on expenses associated with the acquisition of the
rights to develop our EngineMax software and the www.EngineMax.com
web site address.
Employees
We have no full-time employees and two part-time employees. Our
part-time employees include Mr. Robert Rosner, our president and
chief executive officer, and Mr. Carl Chow, our secretary, treasurer
and chief financial officer. We plan to conduct our business
primarily through agreements with consultants and arms-length third
parties.
21
<PAGE>
PLAN OF OPERATIONS
Our plan of operations for the twelve months following the date of
this Registration Statement is to complete the following objectives
within the time period specified, subject to our obtaining financing
for the development and marketing of our EngineMax software:
(A) Complete development of the EngineMax software. We anticipate
that this development will be completed by September 2000. We
anticipate that the development costs will be approximately
$250,000 and will consist primarily of payments to consultants
for programming and software development services.
(B) We plan to commence development of our web site upon completion
of the development of our EngineMax software. We anticipate
that our web site will be fully operational by December 2000.
We anticipate that the development expenses for this web site
will be approximately $50,000.
(C) We plan to undertake an advertising and marketing campaign once
the development of our EngineMax software is complete. We
anticipate that initial marketing expenses for the first year
will be approximately $100,000.
(D) We also anticipate spending approximately $100,000 on the
purchase of necessary equipment and supplies for the business.
We thus anticipate that we will be spending approximately $500,000
over the next twelve month period in pursuing this plan of
operations. Of these expenditures, we anticipate that $250,000 will
be spent in the next six months. Our cash position as of December
31, 1999 was $15,352. Accordingly, we will require additional
financing in order to pursue this business plan. We anticipate that
if we are successful in completing a financing, that the financing
would be an equity financing raised through the sale of our common
stock. We do not have any arrangement in place for any debt or
equity financing. If we are successful in completing an equity
financing, existing shareholders will experience dilution of their
interest in our company.
We anticipate that we will not hire any additional employees over the
next twelve month period in implementing this plan of operations.
Instead, we plan to use third party consultants to provide the
software programming and development services required for the
development of our EngineMax software, our web site development and
our marketing efforts. All research and development will thus be
conducted by such independent third party consultants.
Our actual expenditures and business plan may differ from this plan
of operations. Our board of directors may decide not to pursue this
plan, or may decide to modify it based on new information or limits
in the amount of available financing.
In the event we are not successful in raising additional financing,
we anticipate that we will not be able to proceed with our business
plan for the development and marketing of the EngineMax software.
Due to our lack of operating history and present inability to
generate revenues, there currently exits substantial doubt about our
ability to continue as a going concern.
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<PAGE>
We anticipate incurring continuing operating losses for the
foreseeable future. We base this expectation, in part, on the fact
that we will incur substantial operating expenses in completing the
development of our software and website and do not anticipate earning
any revenues until sometime next year. Our future financial results
are also uncertain due to a number of factors, some of which are
outside our control. These factors include, but are not limited to:
* our ability to develop a commercially marketable computer
software program with the features and functionality sought
by potential customers;
* our ability to successfully market our EngineMax computer
software to potential customers;
* our ability to charge customers a license fee that will
enable us to generate revenues exceeding operating costs;
* the introduction and availability of competing products by
competitors.
We believe the above discussion contains a number of forward-looking
statements. Our actual results and our actual plan of operations may
differ materially from what is stated above. Factors which may cause
our actual results or our actual plan of operations to vary include,
among other things, decisions of our board of directors not to pursue
a specific course of action based on its re-assessment of the facts
or new facts, changes in the Internet business or general economic
conditions and those other factors identified in this prospectus.
DESCRIPTION OF PROPERTY
We do not own any real property. Our principal executive offices are
located in rental property at Unit #3362 - 349 West Georgia Street,
Vancouver, British Columbia V6B 3Y3. Our telephone number is (604)
817-1441.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None of the following parties has, since our date of incorporation,
had any material interest, direct or indirect, in any transaction
with us or in any presently proposed transaction that has or will
materially affect us:
* Any of our directors or officers;
* Any person proposed as a nominee for election as a director;
* Any person who beneficially owns, directly or indirectly, shares
carrying more than 10% of the voting rights attached to our
outstanding shares of common stock;
* Any of our promoters;
* Any relative or spouse of any of the foregoing persons who has
the same house as such person.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
No Public Market for Common Stock
There is presently no public market for our common stock. We
anticipate applying for trading of our common stock on the over the
counter bulletin board upon the effectiveness of the registration
23
<PAGE>
statement of which this prospectus forms a part. However, we can
provide no assurance that our shares will be traded on the bulletin
board or, if traded, that a public market will materialize.
Holders of Our Common Stock
As of the date of this registration statement, we had 28 registered
shareholders.
Rule 144 Shares
A total of 5,000,000 shares of our common stock will be available for
resale to the public after September 24, 2000 in accordance with the
volume and trading limitations of Rule 144 of the Act. In general,
under Rule 144 as currently in effect, a person who has beneficially
owned shares of a company's common stock for at least one year is
entitled to sell within any three month period a number of shares
that does not exceed the greater of:
1. 1% of the number of shares of the company's common stock then
outstanding which, in our case, will equal approximately 70,575
shares as of the date of this prospectus; or
2. the average weekly trading volume of the company's common stock
during the four calendar weeks preceding the filing of a notice on
form 144 with respect to the sale.
Sales under Rule 144 are also subject to manner of sale provisions
and notice requirements and to the availability of current public
information about the company.
Under Rule 144(k), a person who is not one of the company's
affiliates at any time during the three months preceding a sale, and
who has beneficially owned the shares proposed to be sold for at
least 2
years, is entitled to sell shares without complying with the manner
of sale, public information, volume limitation or notice provisions
of Rule 144.
As of the date of this prospectus, all of the 5,000,000 shares which
may be sold pursuant to Rule 144 after September 24, 2000 are held by
persons who are our affiliates.
Stock Option Grants
To date, we have not granted any stock options.
Registration Rights
We have not granted registration rights to the selling shareholders
or to any other persons.
Dividends
There are no restrictions in our articles of incorporation or bylaws
that prevent us from declaring dividends. The Nevada Revised
Statutes, however, do prohibit us from declaring dividends where,
after giving effect to the distribution of the dividend:
(A) we would not be able to pay our debts as they become due in
the usual course of business; or
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<PAGE>
(B) our total assets would be less than the sum of our total
liabilities plus the amount that would be needed to satisfy
the rights of shareholders who have preferential rights
superior to those receiving the distribution.
We have not declared any dividends, and we do not plan to declare any
dividends in the foreseeable future.
EXECUTIVE COMPENSATION
Summary Compensation Table
The table below summarizes the compensation earned for services
rendered for the fiscal year ended December 31, 1999 by our chief
executive officer and our CFO who are our most highly compensated
executive officers. Note that these are also our only two executive
officers.
Annual Compensation Long Term Compensation
------------------- ----------------------
Other All
Annual Other
Com- Com-
pen- Restricted pen-
sa- Stock Options/* LTIP sa-
Name Title Year Salary Bonus tion Awarded SARs (#)payouts($)tion
- ---- ----- ---- ------ ----- ------ ------- ------- --------- ----
Robert President, 1999 $0 0 0 0 0 0 0
Rosner CEO and
Director
Carl Secretary, 1999 $0 0 0 0 0 0 0
Chow Treasurer,
CFO and
Director
Stock Option Grants
We did not grant any stock options to the executive officers during
our most recent fiscal year ended December 31,1999. We have also not
granted any stock options to the executive officers since December
31, 1999.
Employment Agreements
We do not have an employment or consultant agreement with Mr. Robert
Rosner, our president and a director. Mr. Rosner provides his
services to us on a part-time basis. We do not pay any salary or
consulting fees to Mr. Rosner. For more information on Mr. Rosner,
see the section entitled Directors, Executive Officers and
Significant Employees.
We do not have an employment or consultant agreement with Mr. Carl
Chow, our secretary, treasurer and chief financial officer and a
director. We do not pay any salary or consulting fees to Mr. Chow.
For more information on Mr. Chow, see the section entitled Directors,
Executive Officers and Significant Employees.
25
<PAGE>
FINANCIAL STATEMENTS
Index to Financial Statements:
1. Auditors' Report;
2. Comments by Auditors for US Readers;
3. Audited Financial Statements for the period ending December 31,
1999, including:
a. Balance Sheet
b. Statement of Changes in Shareholder Deficiency
c. Statement of Operations
d. Statement of Cash Flow
e. Summary of Significant Accounting Policies
f. Notes to Financial Statements
26
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FIRST CYPRESS TECHNOLOGIES, INC.
(A Development Stage Company)
Financial Statements
For the period from September 14, 1999 (inception) to
December 31, 1999
Contents
___________________________________________________________________
Auditors' Report 1
Comments by Auditors for U.S. Readers on Canada-U.S.
Reporting Differences 2
Financial Statements
Balance Sheet 3
Statement of Changes in Shareholder's Deficiency 4
Statement of Operations 5
Statement of Cash Flow 6
Summary of Significant Accounting Policies 7 - 8
Notes to Financial Statements 9 - 10
<PAGE>
BDO BDO Dunwoody LLP 102 - 100 Front Street
Chartered Accountants Penticton, B.C. V2A 1H1
Phone: (250) 492-6020
Fax: (250) 492-8110
___________________________________________________________________
Auditors' Report
___________________________________________________________________
To the Directors and Stockholders of
First Cypress Technologies, Inc.
(A Development Stage Company)
We have audited the balance sheet of First Cypress Technologies,
Inc. (a development stage company) as at December 31, 1999 and
the statement of changes in shareholders' deficiency, the
statements of operations and cash flows for the period from
September 14, 1999 (inception) to December 31, 1999. These
financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with auditing standards
generally accepted in the Canada. Those standards require that we
plan and perform an audit to obtain reasonable assurance whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation.
In our opinion, these financial statements present fairly, in all
material respects, the financial position of the Company as at
December 31, 1999 and the results of its operations and its cash
flows for the period from September 14, 1999 (inception) to
December 31, 1999 in accordance with accounting principles
generally accepted in the United States.
/s/ BDO Dunwoody LLP
Chartered Accountants
Penticton, British Columbia
January 21, 2000
1
<PAGE>
BDO BDO Dunwoody LLP 102 - 100 Front Street
Chartered Accountants Penticton, B.C. V2A 1H1
Phone: (250) 492-6020
Fax: (250) 492-8110
___________________________________________________________________
Comments by Auditors for U.S. Readers
On Canada-U.S. Reporting Differences
___________________________________________________________________
To the Directors and Stockholders of
First Cypress Technologies, Inc.
(A Development Stage Company)
In the United States, reporting standards for auditors require
the addition of an explanatory paragraph (following the opinion
paragraph) when the financial statements are affected by
conditions and events that cast substantial doubt on the
Company's ability to continue as a going concern, such as those
described in Note 1 to the financial statements. Our report to
the stockholders dated January 21, 2000 is expressed in
accordance with Canadian reporting standards which do not permit
a reference to such events and conditions in the auditors' report
when these are adequately disclosed in the financial statements.
/s/ BDO Dunwoody LLP
Chartered Accountants
Penticton, British Columbia
January 21, 2000
2
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Balance Sheet
December 31 1999
(U.S. Dollars)
_______________________________________________________________________
Assets
Current
Cash $ 15,352
------------
$ 15,352
=======================================================================
Liabilities and Shareholders' Deficiency
Current
Accounts payable and accrued liabilities $ 17,000
------------
Shareholders' deficiency
Share capital (Note 2)
Authorized - 25,000,000 common shares
with par value $0.001
Issued and fully paid - 7,057,500 common shares 7,058
Additional paid-in capital 24,592
Deficit accumulated during the development stage (33,298)
------------
(1,648)
------------
$ 15,352
=======================================================================
The accompanying summary of significant accounting policies and
notes form an integral part of these financial statements
3
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Statement of Changes in Shareholders' Deficiency
For the period from September 14, 1999 (inception)
to December 31, 1999
_________________________________________________________________________
Additional Total Share-
Number Per Carrying Paid in Accumulated holder's
of Common share Value Capital Deficit Deficiency
Shares price (U.S. (U.S. (U.S. (U.S.
Dollars) Dollars) Dollars) Dollars)
_________________________________________________________________________
Incorporation,
September 24,
1999 5,000,000 $0.001 $5,000 $ - $ - $ 5,000
Sale of common
shares,
November 15,
1999 1,990,000 $0.010 1,990 17,910 - 19,900
Sale of common
shares,
December 31,
1999 67,500 $0.100 68 6,682 - 6,750
Net loss to
December 31,
1999 - - - (33,298) (33,298)
___________________________________________________________
Balance,
December 31,
1999 7,057,500 $7,058 $24,592 $ (33,298) $ (1,648)
===========================================================
The accompanying summary of significant accounting policies and
notes form an integral part of these financial statements
4
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Statement of Operations
For the period from September 14, 1999 (inception) 1999
To December 31 (U.S. Dollars)
_______________________________________________________________________
Expenses
Office and administration $ 71
Professional fees 18,227
Software development 15,000
-------------
Net loss for the period $ (33,298)
_______________________________________________________________________
Basic loss per share $ (0.006)
_______________________________________________________________________
Weighted average shares outstanding 5,858,693
_______________________________________________________________________
The accompanying summary of significant accounting policies and
notes form an integral part of these financial statements
5
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Statement of Cash Flow
For the period from September 14, 1999 (inception) 1999
To December 31, 1999 (U.S. Dollars)
_______________________________________________________________________
Cash provided by (used in)
Cash flows from operating activities
Net loss for the year $ (33,298)
Changes in assets and liabilities
Accounts payable and accrued liabilities 17,000
-------------
(16,298)
-------------
Cash flows from financing activities
Proceeds from issuance of share capital 31,650
-------------
Increase in cash during the period and cash,
end of period $ 15,352
=======================================================================
The accompanying summary of significant accounting policies and
notes form an integral part of these financial statements
6
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Summary of Significant Accounting Policies
December 31, 1999
- -----------------------------------------------------------------------
Software Development Costs
Under the provisions of Statement of Financial
Accounting Standards No. 86, "Accounting for the
Costs of Computer Software to be Sold, Leased or
Otherwise Marketed", issued by the Financial
Accounting Standards Board, certain costs
incurred in the internal development of computer
software which is to be licensed to customers
are capitalized. Amortization of capitalized
software costs is provided upon commercial
release of the products at the greater of the
amount using (i) the ratio that current gross
revenues for a product bear to the total of
current and anticipated future gross revenues of
that product or, (ii) the straight-line method
over the remaining estimated economic life of
the product including the period being reported
on. Costs that are capitalized as part of
internally developed software primarily include
direct and indirect costs associated with
payroll, computer time and allocable
depreciation and other direct allocable costs,
among others. All costs incurred prior to the
establishment of technological feasibility are
expensed as research and development costs
during the periods in which they were incurred.
Capitalization stops when the product is
available for general release. The amount by
which unamortized software costs exceeds the net
realizable value, if any, is recognized as
expense in the period it is determined. The
Company will evaluate the net realizable value
of capitalized computer software costs and
intangible assets on an ongoing basis relying on
a number of factors including operating results,
business plans, budgets and economic
projections.
Physical assets that are acquired for
development activities that have an alternate
future use will be capitalized.
Use of Estimates
The preparation of financial statements in
accordance with generally accepted accounting
principles requires management to make estimates
and assumptions that affect the reported amounts
of assets and liabilities and disclosure of
contingent assets and liabilities at the date of
the financial statements, and the reported
amounts of revenues and expenses during the
reporting period. Actual results could differ
from management's best estimates as additional
information becomes available in the future.
Income Taxes
The Company follows the provisions of Statement
of Financial Accounting Standards ("SFAS") No.
109, "Accounting for Income Taxes", which
requires the Company to recognize deferred tax
liabilities and assets for the expected future
tax consequences of events that have been
recognized in the Company's financial statements
or tax returns using the liability method. Under
this method, deferred tax liabilities and assets
are determined based on the temporary
differences between the financial statement
carrying amounts and tax bases of assets and
liabilities using enacted rates in effect in the
years in which the differences are expected to
reverse.
7
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Summary of Significant Accounting Policies
December 31, 1999
- -----------------------------------------------------------------------
Revenue Recognition
Since inception the Company has not generated
any revenues and has not completed development
of its software to the stage of determining how
revenues will be generated from the software.
The Company will recognize revenue related to
software licenses and software maintenance in
compliance with the American Institute of
Certified Public Accountants Statement of
Position No. 97-2, "Software Revenue
Recognition".
It is anticipated that the Company will license
software under noncancellable license agreements
and provide maintenance services, consisting of
product support services and periodic updates.
License fee revenues will generally be
recognized when a noncancellable license
agreement has been signed, the software product
has been shipped, there are no uncertainties
surrounding product acceptance, there are no
significant vendor obligations, the fees are
fixed and determinable, and collection is
considered probably. Revenues from maintenance
agreements will be recognized ratably over the
maintenance period.
Financial Instruments
The Company's financial instruments consist of
cash and accounts payable and accrued
liabilities. Unless otherwise noted, it is
management's opinion that the Company is not
exposed to significant interest, currency or
credit risks arising from these financial
instruments. The fair value of these financial
instruments approximate their carrying values,
unless otherwise noted.
New Accounting Pronouncements
In June 1998, SFAS No. 133, "Accounting for
Derivative Instruments and Hedging Activities",
was issued. SFAS No. 133 requires companies to
recognize all derivative contracts as either
assets or liabilities on the balance sheet and
to measure them at fair value. If certain
conditions are met, a derivative may be
specifically designated as a hedge, the
objective of which is to match the timing of
gain or loss recognition on the hedging
derivative with the recognition of (i) the
changes in the fair value of the hedged asset or
liability that are attributable to the hedged
risk or (ii) the earnings effect of the hedged
forecasted transaction. For a derivative not
designated as a hedging instrument, the gain or
loss is recognized in income in the period of
change. SFAS No. 133 is effective for all fiscal
quarters of fiscal years beginning after June
15, 2000.
Historically, the Company has not entered into
derivative contracts either to hedge existing
risks or for speculative purposes. Accordingly,
the Company does not expect adoption of the new
standards on January 1, 2000 to affect its
financial statements.
Loss Per Share
Loss per share is computed in accordance with
SFAS No. 128, "Earnings Per Share". Basic loss
per share is calculated by dividing the net loss
available to common stockholders by the weighted
average number of common shares outstanding for
the period. There is no diluted loss per share
because there are no common stock equivalents.
8
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Notes to Financial Statements
December 31, 1999
- -----------------------------------------------------------------------
1. Nature of Business and Continued Operations
All financial information presented in these financial
statements is expressed in U.S. dollars and prepared in
accordance with accounting principles generally accepted in
the United States.
First Cypress Technologies, Inc. was incorporated on
September 14, 1999 under the laws of the State of Nevada. The
Company is a development stage company that is currently
developing an Internet computer software program known as
EngineMax. The EngineMax computer software program will be
designed to automate the process of submission of Internet
web page information to major Internet search engines.
These accompanying financial statements have been prepared on
a going concern basis, which contemplates the realization of
assets and the satisfaction of liabilities and commitments in
the normal course of business. As at December 31, 1999, the
Company has recognized no revenue and has accumulated
operating losses of $33,298 since its inception, has a
working capital deficiency of $1,648 and has a shareholders'
deficiency of $1,648. The continuation of the Company is
dependent upon the continuing financial support of creditors
and stockholders and obtaining long-term financing as well as
achieving a profitable level of operations. Management plans
to raise equity capital to finance the operations and capital
requirements of the Company. It is management's intention to
raise new equity financing of approximately $500,000 within
the upcoming year. Amounts raised will be used to complete
the development of the EngineMax software, commence
development of the Company's web site, undertake an
advertising and marketing campaign and purchase of necessary
equipment and supplies for the operation of the business.
While the Company is expending its best efforts to achieve
the above plans, there is no assurance that any such activity
will generate funds that will be available for operations.
These conditions raise substantial doubt about the Company's
ability to continue as a going concern. These financial
statements do not include any adjustments relating to the
recoverability and classification of recorded asset amounts
or amounts and classification of liabilities that might arise
from this uncertainty.
_______________________________________________________________________
2. Share Capital
Authorized
25,000,000 common shares with par value of $0.001 per share
1999
-----------------------------
Number
of
Shares Amount
-----------------------------
Issued and fully paid
Balance, beginning of year - $ -
Issued for cash
Founders shares 5,000,000 5,000
Private placements, for details see
Statement of Changes in
Shareholders' Deficiency 2,057,500 2,058
----------------------------
Balance, end of year 7,057,500 $ 7,058
============================
9
<PAGE>
=======================================================================
First Cypress Technologies, Inc.
(A Development Stage Company)
Notes to Financial Statements
December 31, 1999
- -----------------------------------------------------------------------
3. Income Taxes
The tax effects of temporary differences that give rise to
the Company's deferred tax assets are as follows:
1999
(U.S. Dollars)
--------------------
Tax loss carry-forwards $ 11,300
Valuation allowance (11,300)
--------------------
$ -
====================
The provision for income taxes differs from the amount
computed using the federal statutory income tax rate as
follows:
1999
(U.S. Dollars)
--------------------
Benefit at federal statutory rate $ 11,300
Increase in valuation allowance (11,300)
--------------------
$ -
====================
The Company evaluates its valuation allowance requirements
based on projected future operations. Management has
recorded a valuation allowance because it believes it is more
likely than not that the future income tax benefits of the
current loss will not be realized. When circumstances change
and this causes a change in management's judgement about the
recoverability of deferred tax assets, the impact of the
change on the valuation allowance will be reflected in
current income.
At December 31, 1999, the Company had losses available for
income tax purposes of approximately $33,300, which will
expire in 2019.
10
<PAGE>
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
We have had no changes in or disagreements with our accountants.
AVAILABLE INFORMATION
We have filed a registration statement on form SB-2 under the
Securities Act of 1933 with the Securities and Exchange Commission
with respect to the shares of our common stock offered through this
prospectus. This prospectus is filed as a part of that registration
statement and does not contain all of the information contained in
the registration statement and exhibits. Statements made in the
registration statement are summaries of the material terms of
the referenced contracts, agreements or documents
of the company and are not necessarily
complete. We refer you to our registration statement and each exhibit
attached to it for a more complete description of matters involving
the company, and the statements we have made in this prospectus are
qualified in their entirety by reference to these additional
materials. You may inspect the registration statement and exhibits
and schedules filed with the Securities and Exchange Commission at
the Commission's principle office in Washington, D.C. Copies of all
or any part of the registration statement may be obtained from the
Public Reference Section of the Securities and Exchange Commission,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the Commission located at Seven World Trade Center, 13th
Floor, New York, NY 10048 and 500 West Madison Street, Suite 1400,
Chicago, IL 60661. Please call the Commission at 1-800-SEC-0330 for
further information on the operation of the public reference rooms.
The Securities and Exchange Commission also maintains a web site
(http://www.sec.gov) that contains reports, proxy statements and
information regarding registrants that file electronically with the
Commission. Our registration statement and the referenced exhibits
can also be found on this site.
27
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our officers and directors are indemnified as provided by the Nevada
Revised Statutes and our bylaws.
Under the NRS, director immunity from liability to a company or its
shareholders for monetary liabilities applies automatically unless it
is specifically limited by a company's Articles of Incorporation
(which is not the case with our Articles of Incorporation). Excepted
from that immunity are: (i) a willful failure to deal fairly with the
company or its shareholders in connection with a matter in which the
director has a material conflict of interest; (ii) a violation of
criminal law (unless the director had reasonable cause to believe
that his or her conduct was lawful or no reasonable cause to believe
that his or her conduct was unlawful); (iii) a transaction from which
the director derived an improper personal profit; and (iv) willful
misconduct.
Our bylaws provide that we will indemnify our directors and officers
to the fullest extent not prohibited by Nevada law; provided,
however, that we may modify the extent of such indemnification by
individual contracts with our directors and officers; and, provided,
further, that we shall not be required to indemnify any director or
officer in connection with any proceeding (or part thereof) initiated
by such person unless such indemnification: (i) is expressly required
to be made by law, (ii) the proceeding was authorized by our board of
directors, (iii) is provided by us, in our sole discretion, pursuant
to the powers vested us under Nevada law or (iv) is required to be
made pursuant to the bylaws.
Our bylaws provide that we will advance to any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or
was a director or officer, of the company, or is or was serving at
the request of the company as a director or executive officer of
another company, partnership, joint venture, trust or other
enterprise, prior to the final disposition of the proceeding,
promptly following request therefor, all expenses incurred by any
director or officer in connection with such proceeding upon receipt
of an undertaking by or on behalf of such person to repay said
amounts if it should be determined ultimately that such person is not
entitled to be indemnified under our bylaws or otherwise.
Our bylaws provide that no advance shall be made by us to an officer
of the company (except by reason of the fact that such officer is or
was a director of the company in which event this paragraph shall not
apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and
promptly made: (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that the facts known
to the decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the company.
28
<PAGE>
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated costs of this offering are as follows:
Securities and Exchange Commission registration fee $ 55
Federal Taxes $ NIL
State Taxes and Fees $ NIL
Transfer Agent Fees $ 1,000
Accounting fees and expenses $ 2,000
Legal fees and expenses $ 13,000
Blue Sky fees and expenses $ 2,000
Miscellaneous $ NIL
--------------
Total $18,055
========
- --------------------------------------------------------------------------
All amounts are estimates other than the Commission's registration fee.
We are paying all expenses of the offering listed above. No portion
of these expenses will be borne by the selling shareholders. The
selling shareholders, however, will pay any other expenses incurred
in selling their common stock, including any brokerage commissions or
costs of sale.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
We issued 5,000,000 shares of common stock on September 24, 1999 to
Mr. Robert Rosner and Mr. Carl Chow. Mr. Rosner and Mr. Chow are
both directors of our company. Mr. Rosner is our president and chief
executive officer. Mr. Chow is our secretary, treasurer. These
shares were issued pursuant to Section 4(2) of the Securities Act of
1933 at a price of $0.001 per share, for total proceeds of $5,000.
The 5,000,000 shares of common stock are restricted shares as defined
in the Securities Act.
We completed an offering of 1,990,000 shares of our common stock at a
price of $0.01 per share to a total of eight (8) purchasers on
November 15, 1999. The total amount received from this offering was
$19,900. We completed the offering pursuant to Regulation S of the
Securities Act. Each purchaser represented to us that he was a Non-
U.S. Person as defined in Regulation S. We did not engage in a
distribution of this offering in the United States. Each purchaser
represented his intention to acquire the securities for investment
only and not with a view toward distribution. Appropriate legends
were affixed to the stock certificate issued to each purchaser in
accordance with Regulation S. Each investor was given adequate
access to sufficient information about us to make an informed
investment decision. None of the securities were sold through an
underwriter and accordingly, there were no underwriting discounts or
commissions involved. No registration rights were granted to any of
the purchasers.
We completed an offering of 67,500 common shares at a price of $0.10
per share to a total of eighteen (18) purchasers pursuant to
Regulation S of the Securities Act on December 31, 1999. The total
proceeds realized from this offering were $6,750. Each purchaser
represented that he was a Non-U.S. Person as defined in Regulation S.
We did not engage in a distribution of this offering in the United
States. Each purchaser represented their intention to acquire the
securities for investment only and not with a view toward
distribution. Appropriate legends were affixed to the stock
certificates issued in accordance with Regulation S. All purchasers
were given adequate access to sufficient information about us to make
an informed investment decision. None of the securities were sold
through an
29
<PAGE>
underwriter and accordingly, there were no underwriting
discounts or commissions involved. No registration rights were
granted to any of the purchasers.
ITEM 27. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------------ --------------------
3.1 Articles of Incorporation
3.2 By-Laws
4.1 Share Certificate
5.1 Opinion of Cane & Company, LLC, with consent to use
10.1 Acquisition Agreement dated October 5, 1999
between the Company and Mr. Lance Morginn
23.1 Consent of BDO Dunwoody, LLP
27.1 Financial Data Schedule
ITEM 28. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement, or
most recent post-effective amendment, which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this registration statement; and
(c) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold
at the termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the provisions above, or otherwise,
we have been
30
<PAGE>
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities, other than the payment by us of expenses incurred or
paid by one of our directors, officers, or controlling persons in the
successful defense of any action, suit or proceeding, is asserted by
one of our directors, officers, or controlling person sin connection
with the securities being registered, we will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification is against public policy as expressed in the
Securities Act, and we will be governed by the final adjudication of
such issue.
31
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form SB-2 and
authorized this registration statement to be signed on its behalf by
the undersigned, in the City of Vancouver, Province of British
Columbia on May 9, 2000.
FIRST CYPRESS TECHNOLOGIES, INC.
By: /s/ Robert Rosner
----------------------------
Robert Rosner, President
POWER OF ATTORNEY
ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert Rosner, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all pre- or post-effective amendments
to this Registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any one of them, or
their or his substitutes, may lawfully do or cause to be done by
virtue hereof.
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in
the capacities and on the dates stated.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
/s/ Robert Rosner President and Chief Executive May 9, 2000
- ------------------ Officer (Principal Executive
Robert Rosner Officer) and Director
/s/ Carl Chow Chief Financial Officer (Principal May 9, 2000
- ------------------ Financial/Accounting Officer),
Carl Chow Secretary, Treasurer and Director
32
<PAGE>
FILED Filing Fee:
IN THE OFFICE OF THE Receipt #:
SECRETARY OF STATE OF THE Articles of Incorporation
STATE OF NEVADA (PURSUANT TO NRS 78)
STATE OF NEVADA
SEP 14 1999 Secretary of State
No. C22565-99
Dean Heller
DEAN HELLER, SECRETARY OF STATE
(For filing office use) (For filing office use)
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
IMPORTANT: Read instructions on reverse side before completing this form.
TYPE OR PRINT (BLACK INK ONLY)
1. NAME OF CORPORATION: First Cypress Technologies, Inc.
2. RESIDENT AGENT: (designated resident agent and his STREET
ADDRESS in Nevada where process may be served)
Name of Resident Agent: Michael A. Cane
Street Address: 101 Convention Center Dr., Suite 1200, Las Vegas, NV 89109
----------------------------------------------------------
Street No. Street Name City Zip
3. SHARES: (number of shares the corporation is authorized to issue)
Number of shares with par value: 25 Million Par value: $ .001
No. without par value: _________
4. GOVERNING BOARD: shall be styled as (check one):
X Directors ______ Trustees
The FIRST BOARD OF DIRECTORS shall consist of 1 member(s) and
the names and addresses are as follows:
Robert Rosner 349 W. Georgia St.#3362, Vancouver BC V6B3Y3 Canada
- -------------- ---------------------------------------------------
Name Address City/State/Zip
- -------------- ---------------------------------------------------
Name Address City/State/Zip
5. PURPOSE: (optional) : The purpose of the corporation shall be:
6. OTHER MATTERS: This form includes the minimal statutory
requirements to incorporate under NRS 78. You may attach
additional information pursuant to NRS 78.037 or any other
information you deem appropriate. If any of the additional
information is contradictory to this form it cannot be filed and
will be returned to you for correction. Number of pages attached 0.
7. SIGNATURES OF INCORPORATORS: The names and addresses of each of
the incorporators signing the articles.
Michael A. Cane
- -----------------
Name (print)
101 Convention Ctr. Dr Suite 1200 Las Vegas, NV 89109
- -----------------------------------------------------
Address City/State/Zip
/S/ Michael A. Cane
- -------------------
Signature
State of Nevada, Country of United States
------ -------------
This instrument was acknowledged before me on
September 13, 1999 by
- ---------- -
Michael A. Cane
- -------------------
Name of Person
as incorporator of First Cypress Technologies, Inc.
-----------------------
- -----------------
Name (print)
- -----------------------------------
Address City/State/Zip
- -------------------
Signature
State of , County of
------ -----
This instrument was acknowledged before me on
, 199 by
- ----------- -
- -------------------
Name of Person
as incorporator of
-----------------------------
/S/ Carolyne S. Johnson
- -----------------------------------
Notary Public Signature
(affix notary stamp or seal)
/s/ NOTARY PUBLIC
STATE OF NEVADA
COUNTY OF CLARK
CAROLYNE S. JOHNSON
Not 97-4746-1
My Appointment Expires Nov. 5, 2001
8. CERTIFICATE OF ACCEPTANCE OF APPOINTMENT OF RESIDENT AGENT:
I, Michael A. Cane hereby accept appointment as Resident
Agent for the above named corporation.
/S/ Michael A. Cane September 13, 1999
- --------------------------- ------------------
Signature of Resident Agent Date
<PAGE>
BYLAWS
OF
FIRST CYPRESS TECHNOLOGIES, INC.
(A NEVADA CORPORATION)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
corporation in the State of Nevada shall be in the City of Las
Vegas, State of Nevada.
Section 2. Other Offices. The corporation shall also have
and maintain an office or principal place of business at such place
as may be fixed by the Board of Directors, and may also have
offices at such other places, both within and without the State of
Nevada as the Board of Directors may from time to time determine or
the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The corporate seal shall consist
of a die bearing the name of the corporation and the inscription,
"Corporate Seal-Nevada." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 4. Place of Meetings. Meetings of the stockholders
of the corporation shall be held at such place, either within or
without the State of Nevada, as may be designated from time to time
by the Board of Directors, or, if not so designated, then at the
office of the corporation required to be maintained pursuant to
Section 2 hereof.
Section 5. Annual Meeting.
(a) The annual meeting of the stockholders of the
corporation, for the purpose of election of directors and for such
other business as may lawfully come before it, shall be held on
such date and at such time as may be designated from time to time
by the Board of Directors.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before an annual
meeting, business must be: (A) specified in the notice of meeting
(or any supplement thereto) given
<PAGE>
by or at the direction of the
Board of Directors, (B) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (C)
otherwise properly brought before the meeting by a stockholder.
For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not later than
the close of business on the sixtieth (60th) day nor earlier than
the close of business on the ninetieth (90th) day prior to the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that no annual meeting was held in the
previous year or the date of the annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time
of the previous year's proxy statement, notice by the stockholder
to be timely must be so received not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting
and not later than the close of business on the later of the
sixtieth (60th) day prior to such annual meeting or, in the event
public announcement of the date of such annual meeting is first
made by the corporation fewer than seventy (70) days prior to the
date of such annual meeting, the close of business on the tenth
(10th) day following the day on which public announcement of the
date of such meeting is first made by the corporation. A
stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting:
(i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they
appear on the corporation's books, of the stockholder proposing
such business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder, (iv)
any material interest of the stockholder in such business and (v)
any other information that is required to be provided by the
stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in his capacity
as a proponent to a stockholder proposal. Notwithstanding the
foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required
by the regulations promulgated under the 1934 Act. Notwithstanding
anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph (b). The chairman of the
annual meeting shall, if the facts warrant, determine and declare
at the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this paragraph
(b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the
meeting shall not be transacted.
(c) Only persons who are confirmed in accordance with the
procedures set forth in this paragraph (c) shall be eligible for
election as directors. Nominations of persons for election to the
Board of Directors of the corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors or by
any stockholder of the corporation entitled to vote in the election
of directors at the meeting who complies with the notice procedures
set forth in this paragraph (c). Such nominations, other than
those made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary of
the corporation in accordance with the provisions of paragraph (b)
of this Section 5. Such stockholder's notice shall set forth (i)
as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director: (A) the name,
age, business address and residence address of such person, (B)
the principal occupation or employment of such person, (c) the class
and number of shares of the
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corporation which are beneficially
owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nominations are to be made by the stockholder, and (E)
any other information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A
under the 1934 Act (including without limitation such person's
written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected); and (ii) as to
such stockholder giving notice, the information required to be
provided pursuant to paragraph (b) of this Section 5. At the
request of the Board of Directors, any person nominated by a
stockholder for election as a director shall furnish to the
Secretary of the corporation that information required to be set
forth in the stockholder's notice of nomination which pertains to
the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the
procedures set forth in this paragraph (c). The chairman of the
meeting shall, if the facts warrant, determine and declare at the
meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
(d) For purposes of this Section 5, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service
or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation
may be called, for any purpose or purposes, by (i) the Chairman of
the Board of Directors, (ii) the Chief Executive Officer, or (iii)
the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the
Board of Directors for adoption), and shall be held at such place,
on such date, and at such time as the Board of Directors, shall
determine.
(b) If a special meeting is called by any person or persons
other than the Board of Directors, the request shall be in writing,
specifying the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered
mail or by telegraphic or other facsimile transmission to the
Chairman of the Board of Directors, the Chief Executive Officer, or
the Secretary of the corporation. No business may be transacted at
such special meeting otherwise than specified in such notice. The
Board of Directors shall determine the time and place of such
special meeting, which shall be held not less than thirty-five (35)
nor more than one hundred twenty (120) days after the date of the
receipt of the request. Upon determination of the time and place
of the meeting, the officer receiving the request shall cause
notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 7 of these Bylaws. If
the notice is not given within sixty (60) days after the receipt of
the request, the person or persons requesting the meeting may set
the time and place of the meeting and give the notice. Nothing
contained in this paragraph(b) shall be construed as limiting,
fixing, or affecting the time
when a meeting of stockholders called by action of the Board of
Directors may be held.
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Section 7. Notice of Meetings. Except as otherwise provided
by law or the Articles of Incorporation, written notice of each
meeting of stockholders shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, such notice to
specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, signed by the person
entitled to notice thereof, either before or after such meeting,
and will be waived by any stockholder by his attendance thereat in
person or by proxy, except when the 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. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such
meeting in all respects as if due notice thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except
where otherwise provided by statute or by the Articles of
Incorporation, or by these Bylaws, the presence, in person or by
proxy duly authorized, of the holder or holders of not less than
one percent (1%) of the outstanding shares of stock entitled to
vote shall constitute a quorum for the transaction of business. In
the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, either by the chairman of the meeting
or by vote of the holders of a majority of the shares represented
thereat, but no other business shall be transacted at such meeting.
The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Except as otherwise provided by law,
the Articles of Incorporation or these Bylaws, all action taken by
the holders of a majority of the votes cast, excluding abstentions,
at any meeting at which a quorum is present shall be valid and
binding upon the corporation; provided, however, that directors
shall be elected by a plurality of the votes of the shares present
in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Where a separate vote by a
class or classes or series is required, except where otherwise
provided by the statute or by the Articles of Incorporation or
these Bylaws, a majority of the outstanding shares of such class or
classes or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that
vote on that matter and, except where otherwise provided by the
statute or by the Articles of Incorporation or these Bylaws, the
affirmative vote of the majority (plurality, in the case of the
election of directors) of the votes cast, including abstentions, by
the holders of shares of such class or classes or series shall be
the act of such class or classes or series.
Section 9. Adjournment and Notice of Adjourned Meetings. Any
meeting of stockholders, whether annual or special, may be
adjourned from time to time either by the chairman of the meeting
or by the vote of a majority of the shares casting votes, excluding
abstentions. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting, the corporation may transact
any business which might have been transacted at the original
meeting. If the adjournment is for more than thirty (30) days or
if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
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Section 10. Voting Rights. For the purpose of
determining those stockholders entitled to vote at any meeting of
the stockholders, except as otherwise provided by law, only persons
in whose names shares stand on the stock records of the corporation
on the record date, as provided in Section 12 of these Bylaws,
shall be entitled to vote at any meeting of stockholders. Every
person entitled to vote shall have the right to do so either in
person or by an agent or agents authorized by a proxy granted in
accordance with Nevada law. An agent so appointed need not be a
stockholder. No proxy shall be voted after three (3) years from
its date of creation unless the proxy provides for a longer period.
Section 11. Joint Owners of Stock. If shares or other
securities having voting power stand of record in the names of two
(2) or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety, or
otherwise, or if two (2) or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is
given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to
voting shall have the following effect: (a) if only one (1) votes,
his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (c) if more than one (1) votes, but
the vote is evenly split on any particular matter, each faction may
vote the securities in question proportionally, or may apply to the
Nevada Court of Chancery for relief as provided in the General
Corporation Law of Nevada, Section 217(b). If the instrument filed
with the Secretary shows that any such tenancy is held in unequal
interests, a majority or even-split for the purpose of subsection
(c) shall be a majority or even-split in interest.
Section 12. List of Stockholders. The Secretary shall
prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at said meeting, arranged in alphabetical order, showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not specified, at
the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole
time thereof and may be inspected by any stockholder who is
present.
Section 13. Action Without Meeting. No action shall be
taken by the stockholders except at an annual or special meeting of
stockholders called in accordance with these Bylaws, or by the
written consent of all stockholders.
Section 14. Organization.
(a) At every meeting of stockholders, the Chairman of the
Board of Directors, or, if a Chairman has not been appointed or is
absent, the President, or, if the President is absent, a chairman
of the meeting chosen by a majority in interest of the stockholders
entitled to vote, present in person or by proxy, shall act as chairman.
The Secretary, or, in his
absence, an Assistant Secretary directed to do so by the President,
shall act as secretary of the meeting.
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(b) The Board of Directors of the corporation shall be
entitled to make such rules or regulations for the conduct of
meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of
Directors, if any, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are
necessary, appropriate or convenient for the proper conduct of the
meeting, including, without limitation, establishing an agenda or
order of business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of
record of the corporation and their duly authorized and constituted
proxies and such other persons as the chairman shall permit,
restrictions on entry to the meeting after the time fixed for the
commencement thereof, limitations on the time allotted to questions
or comments by participants and regulation of the opening and
closing of the polls for balloting on matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with rules of
parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. Number and Qualification. The authorized
number of directors of the corporation shall be not less than one
(1) nor more than twelve (12) as fixed from time to time by
resolution of the Board of Directors; provided that no decrease in
the number of directors shall shorten the term of any incumbent
directors. Directors need not be stockholders unless so required
by the Articles of Incorporation. If for any cause, the directors
shall not have been elected at an annual meeting, they may be
elected as soon thereafter as convenient at a special meeting of
the stockholders called for that purpose in the manner provided in
these Bylaws.
Section 16. Powers. The powers of the corporation shall
be exercised, its business conducted and its property controlled by
the Board of Directors, except as may be otherwise provided by
statute or by the Articles of Incorporation.
Section 17. Election and Term of Office of Directors.
Members of the Board of Directors shall hold office for the terms
specified in the Articles of Incorporation, as it may be amended
from time to time, and until their successors have been elected as
provided in the Articles of Incorporation.
Section 18. Vacancies. Unless otherwise provided in the
Articles of Incorporation, any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or
other causes and any newly created directorships resulting from any
increase in the number of directors, shall unless the Board of
Directors determines by resolution that any such vacancies or newly
created directorships shall be filled by stockholder vote, be
filled only by the affirmative vote of a majority of the directors
then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for
the remainder of the full term of the director for which the vacancy
was created or occurred and until such director's successor shall
have been elected and qualified. A vacancy in the Board of Directors
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shall be deemed to exist under this Bylaw in the case of the death,
removal or resignation of any director.
Section 19. Resignation. Any director may resign at any
time by delivering his written resignation to the Secretary, such
resignation to specify whether it will be effective at a particular
time, upon receipt by the Secretary or at the pleasure of the Board
of Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. When one or
more directors shall resign from the Board of Directors, effective
at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each
director so chosen shall hold office for the unexpired portion of
the term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
Section 20. Removal. Subject to the Articles of
Incorporation, any director may be removed by:
(a) the affirmative vote of the holders of a majority of the
outstanding shares of the Corporation then entitled to vote, with
or without cause; or
(b) the affirmative and unanimous vote of a majority of the
directors of the Corporation, with the exception of the vote of the
directors to be removed, with or without cause.
Section 21. Meetings.
(a) Annual Meetings. The annual meeting of the Board of
Directors shall be held immediately after the annual meeting of
stockholders and at the place where such meeting is held. No
notice of an annual meeting of the Board of Directors shall be
necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may
lawfully come before it.
(b) Regular Meetings. Except as hereinafter otherwise
provided, regular meetings of the Board of Directors shall be held
in the office of the corporation required to be maintained pursuant
to Section 2 hereof. Unless otherwise restricted by the Articles
of Incorporation, regular meetings of the Board of Directors may
also be held at any place within or without the state of Nevada
which has been designated by resolution of the Board of Directors
or the written consent of all directors.
(c) Special Meetings. Unless otherwise restricted by the
Articles of Incorporation, special meetings of the Board of
Directors may be held at any time and place within or without the
State of Nevada whenever called by the Chairman of the Board, the
President or any two of the directors.
(d) Telephone Meetings. Any member of the Board of
Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or similar communications
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equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such
means shall constitute presence in person at such meeting.
(e) Notice of Meetings. Notice of the time and place of all
special meetings of the Board of Directors shall be orally or in
writing, by telephone, facsimile, telegraph or telex, during normal
business hours, at least twenty-four (24) hours before the date and
time of the meeting, or sent in writing to each director by first
class mail, charges prepaid, at least three (3) days before the
date of the meeting. Notice of any meeting may be waived in
writing at any time before or after the meeting and will be waived
by any director by attendance thereat, except when the director
attends the 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.
(f) Waiver of Notice. The transaction of all business at any
meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if
a quorum be present and if, either before or after the meeting,
each of the directors not present shall sign a written waiver of
notice. All such waivers shall be filed with the corporate records
or made a part of the minutes of the meeting.
Section 22. Quorum and Voting.
(a) Unless the Articles of Incorporation requires a greater
number and except with respect to indemnification questions arising
under Section 43 hereof, for which a quorum shall be one-third of
the exact number of directors fixed from time to time in accordance
with the Articles of Incorporation, a quorum of the Board of
Directors shall consist of a majority of the exact number of
directors fixed from time to time by the Board of Directors in
accordance with the Articles of Incorporation provided, however, at
any meeting whether a quorum be present or otherwise, a majority of
the directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a
quorum is present, all questions and business shall be determined
by the affirmative vote of a majority of the directors present,
unless a different vote be required by law, the Articles of
Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without
a meeting, if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 24. Fees and Compensation. Directors shall be
entitled to such compensation for their services as may be approved
by the Board of Directors, including, if so approved, by resolution
of the Board of Directors, a fixed sum and expenses of attendance,
if any, for attendance
at each regular or special meeting of the Board of Directors and at
any meeting of a committee of
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the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee, or
otherwise and receiving compensation therefor.
Section 25. Committees.
(a) Executive Committee. The Board of Directors may by
resolution passed by a majority of the whole Board of Directors
appoint an Executive Committee to consist of one (1) or more
members of the Board of Directors. The Executive Committee, to the
extent permitted by law and provided in the resolution of the Board
of Directors shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation, including without
limitation the power or authority to declare a dividend, to
authorize the issuance of stock and to adopt a certificate of
ownership and merger, and may authorize the seal of the corporation
to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to
amending the Articles of Incorporation (except that a committee
may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board
of Directors fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any
other class or classes or any other series of the same or any other
class or classes of stock of the corporation or fix the number of
shares of any series of stock or authorize the increase or decrease
of the shares of any series), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property
and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the
bylaws of the corporation.
(b) Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors,
from time to time appoint such other committees as may be permitted
by law. Such other committees appointed by the Board of Directors
shall consist of one (1) or more members of the Board of Directors
and shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such
committees, but in no event shall such committee have the powers
denied to the Executive Committee in these Bylaws.
(c) Term. Each member of a committee of the Board of
Directors shall serve a term on the committee coexistent with such
member's term on the Board of Directors. The Board of Directors,
subject to the provisions of subsections (a) or (b) of this Bylaw
may at any time increase or decrease the number of members of a
committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his
death or voluntary resignation from the committee or from the Board
of Directors. The Board of Directors may at any time for any
reason remove any individual committee member and the Board of
Directors may fill any committee vacancy created by death,
resignation, removal or increase in the number of members of the
committee. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee,
and, in addition, in the absence or disqualification of any member
of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not
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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.
(d) Meetings. Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other
committee appointed pursuant to this Section 25 shall be held at
such times and places as are determined by the Board of Directors,
or by any such committee, and when notice thereof has been given to
each member of such committee, no further notice of such regular
meetings need be given thereafter. Special meetings of any such
committee may be held at any place which has been determined from
time to time by such committee, and may be called by any director
who is a member of such committee, upon written notice to the
members of such committee of the time and place of such special
meeting given in the manner provided for the giving of written
notice to members of the Board of Directors of the time and place
of special meetings of the Board of Directors. Notice of any
special meeting of any committee may be waived in writing at any
time before or after the meeting and will be waived by any director
by attendance thereat, except when the director attends such
special 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. A majority
of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of
a majority of those present at any meeting at which a quorum is
present shall be the act of such committee.
Section 26. Organization. At every meeting of the
directors, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or if
the President is absent, the most senior Vice President, or, in the
absence of any such officer, a chairman of the meeting chosen by a
majority of the directors present, shall preside over the meeting.
The Secretary, or in his absence, an Assistant Secretary directed
to do so by the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. Officers Designated. The officers of the
corporation shall include, if and when designated by the Board of
Directors, the Chairman of the Board of Directors, the Chief
Executive Officer, the President, one or more Vice Presidents, the
Secretary, the Chief Financial Officer, the Treasurer, the
Controller, all of whom shall be elected at the annual
organizational meeting of the Board of Direction. The Board of
Directors may also appoint one or more Assistant Secretaries,
Assistant Treasurers, Assistant Controllers and such other officers
and agents with such powers and duties as it shall deem necessary.
The Board of Directors may assign such additional titles to one or
more of the officers as it shall deem appropriate. Any one person
may hold any number of offices of the corporation at any one time
unless specifically prohibited therefrom by law. The salaries and
other compensation of the officers of the corporation shall be
fixed by or in the manner designated by the Board of Directors.
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Section 28. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure
of the Board of Directors and until their successors shall have
been duly elected and qualified, unless sooner removed. Any
officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of
any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The
Chairman of the Board of Directors, when present, shall preside at
all meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform other duties
commonly incident to his office and shall also perform such other
duties and have such other powers as the Board of Directors shall
designate from time to time. If there is no President, then the
Chairman of the Board of Directors shall also serve as the Chief
Executive Officer of the corporation and shall have the powers and
duties prescribed in paragraph (c) of this Section 28.
(c) Duties of President. The President shall preside at all
meetings of the stockholders and at all meetings of the Board of
Directors, unless the Chairman of the Board of Directors has been
appointed and is present. Unless some other officer has been
elected Chief Executive Officer of the corporation, the President
shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of
the corporation. The President shall perform other duties commonly
incident to his office and shall also perform such other duties and
have such other powers as the Board of Directors shall designate
from time to time.
(d) Duties of Vice Presidents. The Vice Presidents may
assume and perform the duties of the President in the absence or
disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly
incident to their office and shall also perform such other duties
and have such other powers as the Board of Directors or the
President shall designate from time to time.
(e) Duties of Secretary. The Secretary shall attend all
meetings of the stockholders and of the Board of Directors and
shall record all acts and proceedings thereof in the minute book of
the corporation. The Secretary shall give notice in conformity
with these Bylaws of all meetings of the stockholders and of all
meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties
given him in these Bylaws and other duties commonly incident to his
office and shall also perform such other duties and have such other
powers as the Board of Directors shall designate from time to time.
The President may direct any Assistant Secretary to assume and
perform the duties of the Secretary in the absence or disability of
the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
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(f) Duties of Chief Financial Officer. The Chief Financial
Officer shall keep or cause to be kept the books of account of the
corporation in a thorough and proper manner and shall render
statements of the financial affairs of the corporation in such form
and as often as required by the Board of Directors or the
President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and
securities of the corporation. The Chief Financial Officer shall
perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time.
The President may direct the Treasurer or any Assistant Treasurer,
or the Controller or any Assistant Controller to assume and perform
the duties of the Chief Financial Officer in the absence or
disability of the Chief Financial Officer, and each Treasurer and
Assistant Treasurer and each Controller and Assistant Controller
shall perform other duties commonly incident to his office and
shall also perform such other duties and have such other powers as
the Board of Directors or the President shall designate from time
to time.
Section 29. Delegation of Authority. The Board of
Directors may from time to time delegate the powers or duties of
any officer to any other officer or agent, notwithstanding any
provision hereof.
Section 30. Resignations. Any officer may resign at any
time by giving written notice to the Board of Directors or to the
President or to the Secretary. Any such resignation shall be
effective when received by the person or persons to whom such
notice is given, unless a later time is specified therein, in which
event the resignation shall become effective at such later time.
Unless otherwise specified in such notice, the acceptance of any
such resignation shall not be necessary to make it effective. Any
resignation shall be without prejudice to the rights, if any, of
the corporation under any contract with the resigning officer.
Section 31. Removal. Any officer may be removed from
office at any time, either with or without cause, by the
affirmative vote of a majority of the directors in office at the
time, or by the unanimous written consent of the directors in
office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 32. Execution of Corporate Instrument. The Board
of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or
persons, to execute on behalf of the corporation any corporate
instrument or document, or to sign on behalf of the corporation the
corporate name without limitation, or to enter into contracts on
behalf of the corporation, except where otherwise provided by law
or these Bylaws, and such execution or signature shall be binding
upon the corporation.
Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, promissory notes, deeds of
trust, mortgages and other evidences of indebtedness of the
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corporation, and other corporate instruments or documents requiring
the corporate seal, and certificates of shares of stock owned by
the corporation, shall be executed, signed or endorsed by the
Chairman of the Board of Directors, or the President or any Vice
President, and by the Secretary or Treasurer or any Assistant
Secretary or Assistant Treasurer. All other instruments and
documents requiting the corporate signature, but not requiring the
corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
All checks and drafts drawn on banks or other depositaries on
funds to the credit of the corporation or in special accounts of
the corporation shall be signed by such person .or persons as the
Board of Directors shall authorize so to do.
Unless authorized or ratified by the Board of Directors or
within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the corporation
by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
Section 33. Voting of Securities Owned by the
Corporation. All stock and other securities of other corporations
owned or held by the corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the Chief
Executive Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 34. Form and Execution of Certificates.
Certificates for the shares of stock of the corporation shall be in
such form as is consistent with the Articles of Incorporation and
applicable law. Every holder of stock in the corporation shall be
entitled to have a certificate signed by or in the name of the
corporation by the Chairman of the Board of Directors, or the
President or any Vice President and by the Treasurer or Assistant
Treasurer or the Secretary or Assistant Secretary, certifying the
number of shares owned by him in the corporation. Any or all of
the signatures on the certificate may be facsimiles. In case any
officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent, or registrar at the date of
issue. Each certificate shall state upon the face or back thereof,
in full or in summary, all of the powers, designations,
preferences, and rights, and the limitations or restrictions of the
shares authorized to be issued or shall, except as otherwise
required by law, set forth on the face or back a statement that the
corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Within a
reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a
written notice containing the information required to be
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set forth
or stated on certificates pursuant to this section or otherwise
required by law or with respect to this section a statement that
the corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Except as
otherwise expressly provided by law, the rights and obligations of
the holders of certificates representing stock of the same class
and series shall be identical.
Section 35. Lost Certificates. A new certificate or
certificates shall 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
that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or
certificates, 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 or to give
the corporation a surety bond in such form and amount as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been
lost, stolen, or destroyed.
Section 36. Transfers.
(a) Transfers of record of shares of stock of the corporation
shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized, and upon the surrender of a
properly endorsed certificate or certificates for a like number of
shares.
(b) The corporation shall have power to enter into and
perform any agreement with any number of stockholders of any one or
more classes of stock of the corporation to restrict the transfer
of shares of stock of the corporation of any one or more classes
owned by such stockholders in any manner not prohibited by the
General Corporation Law of Nevada.
Section 37. Fixing Record Dates.
(a) In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may
fix, in advance, a record date, which record date shall not precede
the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not
be more than sixty (60) nor less than ten (10) days before the date
of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
(b) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose
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of any other
lawful action, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date
shall be not more than sixty (60) days prior to such action. If no
record date is filed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto.
Section 38. Registered Stockholders. The corporation shall
be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends, and to
vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on
the part of any other person whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws
of Nevada.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39. Execution of Other Securities. All bonds,
debentures and other corporate securities of the corporation, other
than stock certificates (covered in Section 34), may be signed by
the Chairman of the Board of Directors, the President or any Vice
President, or such other person as may be authorized by the Board
of Directors, and the corporate seal impressed thereon or a
facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Chief
Financial Officer or Treasurer or an Assistant Treasurer; provided,
however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature, or where
permissible facsimile signature, of a trustee under an indenture
pursuant to which such bond, debenture or other corporate security
shall be issued, the signatures of the persons signing and
attesting the corporate seal on such bond, debenture or other
corporate security may be the imprinted facsimile of the signatures
of such persons. Interest coupons appertaining to any such
bond, debenture or other corporate security, authenticated by a
trustee as aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the corporation or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall
have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or on
any such interest coupon, shall have ceased to be such officer
before the bond, debenture or other corporate security so signed or
attested shall have been delivered, such bond, debenture or other
corporate security nevertheless may be adopted by the corporation
and issued and delivered as though the person who signed the same
or whose facsimile signature shall have been used thereon had not
ceased to be such officer of the corporation.
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ARTICLE IX
DIVIDENDS
Section 40. Declaration of Dividends. Dividends upon the
capital stock of the corporation, subject to the provisions of the
Articles of Incorporation, if any, may be declared by the Board of
Directors pursuant to law at any regular or special meeting.
Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Articles of
Incorporation.
Section 41. Dividend Reserve. Before payment of any
dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board
of Directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the corporation, or for such other purpose as the Board of
Directors shall think conducive to the interests of the
corporation, and the Board of Directors may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 42. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. Indemnification of Directors, Executive Officers,
Other Officers, Employees and Other Agents.
(a) Directors Officers. The corporation shall indemnify its
directors and officers to the fullest extent not prohibited by the
Nevada General Corporation Law; provided, however, that the
corporation may modify the extent of such indemnification by
individual contracts with its directors and officers; and,
provided, further, that the corporation shall not be required to
indemnify any director or officer in connection with any proceeding
(or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the
corporation, (iii) such indemnification is provided by the
corporation, in its sole discretion, pursuant to the powers vested
in the corporation under the Nevada General Corporation Law or (iv)
such indemnification is required to be made under subsection (d).
(b) Employees and Other Agents. The corporation shall have
power to indemnify its employees and other agents as set forth in
the Nevada General Corporation Law.
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(c) Expense. The corporation shall advance to any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer, of the
corporation, or is or was serving at the request of the corporation
as a director or executive officer of another corporation,
partnership, joint venture, trust or other enterprise, prior to the
final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in
connection with such proceeding upon receipt of an undertaking by
or on behalf of such person to repay said mounts if it should be
determined ultimately that such person is not entitled to be
indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined
pursuant to paragraph (e) of this Bylaw, no advance shall be made
by the corporation to an officer of the corporation (except by
reason of the fact that such officer is or was a director of the
corporation in which event this paragraph shall not apply) in any
action, suit or proceeding, whether civil, criminal, administrative
or investigative, if a determination is reasonably and promptly
made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or
(ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, that the facts known to the decision-
making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in
a manner that such person did not believe to be in or not opposed
to the best interests of the corporation.
(d) Enforcement. Without the necessity of entering into an
express contract, all rights to indemnification and advances to
directors and officers under this Bylaw shall be deemed to be
contractual rights and be effective to the same extent and as if
provided for in a contract between the
corporation and the director or officer. Any right to indemnification
or advances granted by this Bylaw to a director or officer shall be
enforceable by or on behalf of the person holding such right in any
court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such
claim is made within ninety (90) days of request therefor. The claimant
in such enforcement action, if successful in whole or in part,
shall be entitled to be paid also the expense of prosecuting his
claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such
action that the claimant has not met the standard of conduct that
make it permissible under the Nevada General Corporation Law for
the corporation to indemnify the claimant for the amount claimed.
In connection with any claim by an officer of the corporation
(except in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such
officer is or was a director of the corporation) for advances, the
corporation shall be entitled to raise a defense as to any such
action clear and convincing evidence that such person acted in bad
faith or in a manner that such person did not believe to be in or
not opposed in the best interests of the corporation, or with
respect to any criminal action or proceeding that such person acted
without reasonable cause to believe that his conduct was lawful.
Neither the failure of the corporation (including its
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Board of
Directors, independent legal counsel or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in
the Nevada General Corporation Law, nor an actual determination by
the corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the
applicable standard of conduct. In any suit brought by a director
or officer to enforce a right to indemnification or to an
advancement of expenses hereunder, the burden of proving that the
director or officer is not entitled to be indemnified, or to such
advancement of expenses, under this Article XI or otherwise shall
be on the corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any
person by this Bylaw shall not be exclusive of any other right
which such person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, Bylaws, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited
by the Nevada General Corporation Law.
(f) Survival of Rights. The rights conferred on any person
by this Bylaw shall continue as to a person who has ceased to be a
director, officer, employee or other agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(g) Insurance. To the fullest extent permitted by the Nevada
General Corporation Law, the corporation, upon approval by the
Board of Directors, may purchase insurance on behalf of any person
required or permitted to be indemnified pursuant to this Bylaw.
(h) Amendments. Any repeal or modification of this Bylaw
shall only be prospective and shall not affect the rights under
this Bylaw in effect at the time of the alleged occurrence of any
action or omission to act that is the cause of any proceeding
against any agent of the corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall
be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify
each director and officer to the full extent not prohibited by any
applicable portion of this Bylaw that shall not have been
invalidated, or by any other applicable law.
(j) Certain Definitions. For the purposes of this Bylaw, the
following definitions shall apply:
(i) The term "proceeding" shall be broadly construed and
shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement, arbitration and
appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative.
(ii) The term "expenses" shall be broadly construed and
shall include, without limitation, court costs, attorneys'
fees, witness fees, fines, amounts paid in settlement or
judgment and any other costs and expenses of any nature or
kind incurred in connection with any proceeding.
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(iii) The term the "corporation" shall include, in
addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
officer, employee or agent or another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Bylaw
with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
(iv) References to a "director," "executive officer,"
"officer," "employee," or "agent" of the corporation shall
include, without limitation, situations where such person is
serving at the request of the corporation as, respectively, a
director, executive officer, officer, employee, trustee or
agent of another corporation, partnership, joint venture,
trust or other enterprise.
(v) References to "other enterprises" shall include
employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person
who acted
in good faith and in a manner he reasonably believed
to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation"
as referred to in this Bylaw.
ARTICLE XII
NOTICES
Section 44. Notices.
(a) Notice to Stockholders. Whenever, under any provisions
of these Bylaws, notice is required to be given to any stockholder,
it shall be given in writing, timely and duly deposited in the
United States mail, postage prepaid, and addressed to his last
known post office address as shown by the stock record of the
corporation or its transfer agent.
(b) Notice to directors. Any notice required to be given to
any director may be given by the method stated in subsection (a),
or by facsimile, telex or telegram, except that such notice other
than one which is delivered personally shall be sent to such
address as such director shall have filed in writing with the
Secretary, or, in the absence of such filing, to the last known
post office address of such director.
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(c) Affidavit of Mailing. An affidavit of mailing, executed
by a duly authorized and competent employee of the corporation or
its transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall in the absence of
fraud, be prima facie evidence of the facts therein contained.
(d) Time Notices Deemed Given. All notices given by mail, as
above provided, shall be deemed to have been given as at the time
of mailing, and all notices given by facsimile, telex or telegram
shall be deemed to have been given as of the sending time recorded
at time of transmission.
(e) Methods of Notice. It shall not be necessary that the
same method of giving notice be employed in respect of all
directors, but one permissible method may be employed in respect of
any one or more, and any other permissible method or methods may be
employed in respect of any other or others.
(f) Failure to Receive Notice. The period or limitation of
time within which any stockholder may exercise any option or right,
or enjoy any privilege or benefit, or be required to act, or within
which any director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him ill the manner above
provided, shall not be affected or extended in any manner by the
failure of such stockholder or such director to receive such
notice.
(g) Notice to Person with Whom Communication Is Unlawful.
Whenever notice is required to be given, under any provision of law
or of the Articles of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the
giving of such notice to such person shall not be require and there
shall be no duty to apply to any governmental authority or agency for
a license or permit to give such notice to such person. Any action
or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In the
event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the
Nevada General Corporation Law, the certificate shall state, if
such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with
whom communication is unlawful.
(h) Notice to Person with Undeliverable Address. Whenever
notice is required to be given, under any provision of law or the
Articles of Incorporation or Bylaws of the corporation, to any
stockholder to whom (i) notice of two consecutive annual meetings,
and all notices of meetings or of the taking of action by written
consent without a meeting to such person during the period between
such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first class mail) of dividends or
interest on securities during a twelve-month period, have been
mailed addressed to such person at his address as shown on the
records of the corporation and have been returned undeliverable,
the giving of such notice to such person shall not be required.
Any action or meeting which shall be taken or held without notice
to such person shall have the same force and effect as if such
notice had been duly given. If any such person shall deliver to
the corporation a written notice setting forth his then current
address, the requirement that notice be given to such
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person shall
be reinstated. In the event that the action taken by the
corporation is such as to require the filing of a certificate under
any provision of the Nevada General Corporation Law, the
certificate need not state that notice was not given to persons to
whom notice was not required to be given pursuant to this
paragraph.
ARTICLE XII
AMENDMENTS
Section 45. Amendments.
The Board of Directors shall have the power to adopt, amend,
or repeal Bylaws as set forth in the Articles of Incorporation.
ARTICLE XIV
LOANS TO OFFICERS
Section 46. Loans to Officers. The corporation may lend
money to, or guarantee any obligation of, or otherwise assist any
officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director
of the corporation or its subsidiaries, whenever, in the judgment
of the Board of Directors, such loan, guarantee or assistance may
reasonably be expected to benefit the corporation. The loan,
guarantee or other assistance may be with or without interest and
may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation. Nothing in these Bylaws shall
be deemed to deny, limit or restrict the powers of guaranty or
warranty of the corporation at common law or under any statute.
Declared as the By-Laws, as amended, of First Cypress Technologies,
Inc. as of the 20th day of April, 2000.
/s/ Robert Rosner
Signature of Officer: ________________________
Name of Officer: ROBERT ROSNER
Position of Officer: PRESIDENT AND DIRECTOR
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FIRST CYPRESS TECHNOLOGIES, INC.
NUMBER SHARES
[ ] INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA [ ]
25,000,000 SHARES COMMON STOCK AUTHORIZED
This
certifies
that [NAME OF SHAREHOLDER] CUSIP
SEE REVERSE FOR
CERTAIN DEFINITIONS
Is the owner of [NUMBER OF SHARES]
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
FIRST CYPRESS TECHNOLOGIES, INC.
transferable on the books of the corporation in person or by duly
authorized attorney upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are
subject to the laws of the State of Nevada, and to the Certificate of
Incorporation and Bylaws of the Corporation, as now or hereafter amended.
This certificate is not valid unless countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the signature of its duly
authorized officers.
DATED [DATE]
/s/ Robert Rosner /s/ Carl Chow
PRESIDENT CORPORATE SEAL SECRETARY
<PAGE>
Cane & Company, LLC
Affiliated with O'Neill Ritchie Taylor Law Corporation
of Vancouver, British Columbia, Canada
Michael A. Cane* Stephen F.X. O'Neill**
Leslie L. Kapusianyk** Michael H. Taylor**
Telephone: (702) 312-6255
Facsimile: (702) 312-6249
E-mail: [email protected]
101 Convention Center Drive
Suite 1200
Las Vegas, NV 89109
April 19, 2000
First Cypress Technologies, Inc.
#3362 - 349 West Georgia Street
Vancouver, British Columbia V6B 3Y3
Attention: Robert Rosner, President
Re: First Cypress Technologies, Inc. Registration Statement on
Form SB-2
Ladies and Gentlemen:
We have acted as counsel for First Cypress Technologies, Inc., a
Nevada corporation (the "Company"), in connection with the
preparation of the registration statement on Form SB-2 (the
"Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Act"), relating to the offering of certain
shares of the Company's common stock.
In rendering the opinion set forth below, we have reviewed: (a)
the Registration Statement and the exhibits attached thereto; (b)
the Company's Articles of Incorporation; (c) the Company's
Bylaws; (d) certain records of the Company's corporate
proceedings as reflected in its minute books; and (e) such
statutes, records and other documents as we have deemed relevant.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, and conformity with the originals of all documents
submitted to us as copies thereof. In addition, we have made such
other examinations of law and fact as we have deemed relevant in
order to form a basis for the opinion hereinafter expressed.
Based upon the foregoing, we are of the opinion that the common
stock to be sold by the selling shareholders is validly issued,
fully paid and nonassessable.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael A. Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
*Licensed Nevada, California, Washington and Hawaii State Bars
** British Columbia Bar only
<PAGE>
First Cypress Technologies, Inc.
April 19, 2000
Page 2
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to all references to this Firm under
the caption "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael A. Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
2
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FIRST CYPRESS TECHNOLOGIES, INC.
A Nevada Corporation
- ---------------------------------------------------------------------
October 5, 1999
MR. LANCE MORGAN
Lance Morginn /s/ LM 3245 East 16th Ave
Vancouver BC
V5M 2M8
Dear Sir:
Re: FIRST CYPRESS TECHNOLOGIES, INC. (the "Company")
- - Offer by the Company to Lance Morgan (the "Seller") to
acquire Engine Max Lance Morginn /s/ LM
- ---------------------------------------------------------------------
We write to set out the offer of the Company to acquire all of the
assets, technology, property and undertaking comprising the "Engine
Max" computer software and Internet business carried on by the Seller
(the "Business").
This offer is on the terms and is subject to the conditions set forth
in this letter. If this offer is acceptable, we ask that you indicate
your agreement by signing this letter where indicated below and
returning an executed copy to us. This offer is open for acceptance
until 4:00 p.m. (Pacific Time) on October 8, 1999 (the "Expiry
Time"), at which time this offer will terminate unless accepted in
writing.
The Company's offer is as follows:
1. Offer to Purchase
The Company offers to purchase from the Sellers all of the assets,
property and undertaking of the Business as a going concern,
including the "Engine Max" software in its current stage of
development and all of the assets, technology, property and rights
comprising and used in the conduct and operation of the "Engine Max"
software and the Business (together, the "Assets") on the terms and
subject to the conditions set forth in this offer. It is agreed that
the Assets will include, without limitation:
(A) all data, source code, object code, drawings, and software
comprising the "Engine Max" software in its current stage
of development and the Business and all copyright, patents,
trademarks, proprietary information, trade secrets and
intellectual property relating to the Assets and the
Business;
(B) the goodwill of the Business, together with the exclusive
right to the Companh to represent itself as carrying on the
Business in continuation of and in succession to the Seller
and the right to use any word indicating that the
<PAGE>
-2-
Business is so carried on, including the right to use the name
"Engine Max", or any variation thereof as part of the name
of or in connection with the Business or any part thereof
carried on or to be carried on by the Company;
(C) the "enginemax.com" URL Internet address and web site;
(D) the benefit of all contracts, engagements or commitments to
which the Seller is entitled in connection with the
Business provided that the contracts, leases, engagements
or commitments were entered into by the Seller in the usual
and ordinary course of business;
(E) all licences, consents, permits, authorities, certificates
and registrations which are required, necessary of
desirable for the operation of the Business;
(F) all intangible property of the Seller used in connection
with the Business and comprising the Assets, including all
trademarks, trade names, moral rights and copyrights;
(G) all confidential information and trade secrets of the
Seller used in connection with the Business, including all
programming code, source code, data, information, drawings,
and know-how.
The Company will purchase and the Seller will sell the Business and
the Assets free and clear of all mortgages, liens, charges, security
interests and encumbrances of every kind and nature whatsoever.
2. Payment for the Assets
The Company will pay to the Seller a purchase price of $15,000 US
(the "Purchase Price") in consideration for the transfer of the
Assets and the Business by the Seller to the Company, subject to the
terms and conditions of this Agreement.
3. Closing Date
The closing of the purchase and sale of the Business and the Assets
will complete forthwith upon acceptance of this offer by the Seller
(the "Closing").
4. Representations and Warranties of the Seller
The Company's purchase will be based on the representations and
warranties by the Seller, each of which will survive closing, that:
(A) The Seller owns, possesses and has good and marketable
title to the Business and the Assets free and clear of any
and all mortgages, liens, pledges, charges, security
interests, encumbrances, actions, claims or demands of any
nature whatsoever or howsoever arising;
<PAGE>
-3-
(B) The Seller is the registered owner of the "enginemax.com"
URL internet location (the "Web Site") and has not received
notice from any other party claiming an interest in the Web
Site or claiming that the Seller has no right to use the
Web Site;
(C) The Seller has in place all agreements necessary for the
conduct of the Business in the manner carried on as of the
date of this Agreement and the hosting of the Web Site;
(D) No person, firm or corporation has any agreement or option
or any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for
the purchase of the Business and the Assets or any interest
in the Business and the Assets;
(E) No other person, firm or corporation other than the Seller
owns or has any legal or beneficial interest in any of the
Business and the Assets or has any rights, including any
moral rights, copyright, trademark or any other
intellectual property rights, in the Business or any of the
Assets;
(F) The Seller does not have any outstanding material
agreements (including employment agreements) contracts or
commitment, whether written or oral, of any nature or kind
whatsoever, with respect to the ownership of the Assets or
the conduct of the Business, except material agreements
which are in the ordinary course of the Business;
(G) there are no actions, suits or proceedings pending or
threatened against or affecting the Assets or the Business
and teh Seller is not aware of any existing ground on which
any such action, suit or proceeding might be commenced with
any reasonable likelihood of success;
(H) the Seller is the owner all intellectual property,
including patents, trademarks, copyrights and confidential
information, comprising the Assets and as required for the
conduct of the Business. The Seller is not aware of any
infringement or claimed infringement of the intellectual
property comprising the Assets and used in connection with
the Business by any other person, firm or corporation.
5. Conditions Precedent to Closing
The Company's obligation to complete the purchase of the Business and
the Assets is subject to each of the following conditions:
(A) all representations and warranties of the Seller will be
true and correct in all material respects on Closing;
(B) the Seller will have made the deliveries contemplated in
this offer on the Closing;
<PAGE>
-4-
Each of the above conditions precedent is for the sole benefit of the
Company and may be waived by the Company. In the event that any of
the above conditions has not been satisfied at the Closing, the
Company may elect to terminate this Agreement and will have no
further liability to the Seller.
6,. Closing Deliveries
On Closing, the Seller will deliver to the Company:
(A) a general conveyance of the Assets and the Business and all
other deeds of conveyance, bills of sale, transfer and
assignments, duly executed, in form and content
satisfactory to the Company's solicitors, appropriate to
effectively vest good and marketable title to the Assets
and the Business free and clear of all encumbrances and
immediately registerable in all places where registration
of such instruments is necessary or desirable duly executed
transfers of the Business and the Assets to the Company,
duly endorsed for transfer to the Company;
(B) duly executed documents of transfer and waivers of moral
rights by any developer or programmer of the Business
reasonably required, in the opinion of the Company's
solicitors, to transfer title to the Business and the
Assets to the Company.
On Closing, the Company will deliver to the Seller payment in full of
the Purchase Price.
7. Acceptance
If the Seller wishes to accept this offer, the Seller must execute
this offer where indicated below and deliver a copy of the acceptance
to the Company by no later than 4:00 p.m. (Pacific Time) on October
8, 1999.
Yours truly,
FIRST CYPRESS TECHNOLOGIES, INC.
/s/ Robert Rosner
Per: ________________________
Robert Rosner, President
5
This offer is accepted and agreed to this ____ day of October, 1999.
/s/Lance Morginn
________________________________
LANCE MORGAN
Lance Morginn /s/ LM
<PAGE>
BDO BDO DUNWOODY 102 - 100 Front Street
Chartered Accountants Penticton, B.C. V2A 1H1
Phone: (250) 492-6020
Fax: (250) 492-8110
CONSENT OF CHARTERED ACCOUNTANTS
First Cypress Technologies, Inc.
910 - 510 Burrard Street
Vancouver, B.C.
V6C 3A8
We hereby consent to the use in the Prospectus constituting part of
this Registration Statement of our report dated January 21, 2000,
relating to the financial statements of First Cypress Technologies,
Inc., which is contained in that Prospectus.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
/s/ BDO Dunwoody LLP
BDO Dunwoody LLP
Chartered Accountants
Penticton, British Columbia
May 4, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS CONTAINED IN
THE COMPANY'S REGISTRATION STATEMENT ON FORM SB-2 FOR THE YEAR ENDED
DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
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<S> <C>
<PERIOD-TYPE> 4-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> SEP-14-1999
<PERIOD-END> DEC-31-1999
<CASH> 15352
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 15352
<CURRENT-LIABILITIES> 17000
<BONDS> 0
0
0
<COMMON> 31650
<OTHER-SE> (33298)
<TOTAL-LIABILITY-AND-EQUITY> 15352
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 33298
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (33298)
<INCOME-TAX> 0
<INCOME-CONTINUING> (33298)
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<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (33298)
<EPS-BASIC> (0.006)
<EPS-DILUTED> (0.006)
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