<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS UNDER SECTION 12(b)
OR 12(g) OF THE SECURITIES ACT OF 1934
WHISTLER, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
DELAWARE 52-2209378
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
12740 Vigilante Road, Lakeside, CA 92040
- ---------------------------------- -----
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(619) 692-2176
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(ISSUER'S TELEPHONE NUMBER)
SECURITIES TO BE REGISTERED UNDER SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
- -------------------------------- -----------------------------------
- -------------------------------- -----------------------------------
SECURITIES TO BE REGISTERED UNDER SECTION 12(g) OF THE ACT:
Common Stock - .001 Par Value
(TITLE OF CLASS)
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PART 1
ITEM 1
DESCRIPTION OF THE BUSINESS
BUSINESS DEVELOPMENT
ORGANIZATION
Whistler, Inc. was incorporated in Delaware on May 31, 1994 for the purpose of
developing and marketing a grease and food waste recycling process designed to
increase the output and value of recoverable products for the grease and food
waste recycling-processing ("reprocessing") industry. In August 1999, Management
completed development and testing of its grease and food waste reprocessing
system. From November 1997 through January 1998, the Company received its
initial funding through the sale of common stock to investors. From inception
until December 1999, the Company had no material operating activities. In
February 2000 Management decided to seek additional capital in order to advance
the Company's business plan.
BANKRUPTCY OR SIMILAR PROCEEDINGS
There have been no bankruptcy, receivership or similar proceedings.
REORGANIZATIONS, PURCHASE OR SALE OF ASSETS
There have been no material reclassifications, mergers, consolidations, or
purchase or sale of a significant amount of assets not in the ordinary course of
business.
BUSINESS OF THE COMPANY
PRINCIPAL SERVICES AND MARKETS
The Company intends to become a major supplier of its proprietary grease and
food waste reprocessing system to the food by-products and grease reprocessing
industry in the United States. The Company's target market includes 1,252 U.S.
reprocessing companies. (infoUSA SIC codes - March 2000) The Company's grease
and food waste recycling process is a unique reprocessing system and a trade
secret design for grease and food waste treatment, sterilization, and component
separation that is designed to increase usable liquid yellow grease retrieval,
increase usable solid brown grease retrieval for conversion into commercial
grade oil products, and salvage ninety percent of food waste for commercial
recycling by the grease and food by-products reprocessing industry. National
average wholesale selling prices for reprocessed liquid grease are $.08 to $.15
per pound, with mean average prices at $.11 per pound (ams.usda.gov/mnreports -
March 2000). National average wholesale selling prices for reprocessed solid
grease average $.05 per pound, and for reprocessed food waste, $.25 per pound.
In the United States, approximately 2.5 billion pounds of grease and 43 billion
pounds
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of animal by-products are recycled by reprocessors each year. The United States
Department of Agriculture, and state agriculture and health departments set
standards for the reprocessing industry. All grease and animal by-products must
be recycled, as federal and state laws prohibit disposal of these items in
landfills or waste water treatment facilities. Reprocessors recycle grease and
animal by-products into a variety of products including oils and grease for
chemical and plastic industrial use, pet food, fertilizers, soap, candles, and
animal feed. (cbpresources.com - April 2000). In addition to the United States
market, Management is aware of, and has participated in the product sales of
California reprocessed oils and grease to Mexico and Japan. It is the intention
of the Company to also supply a highly refined oil from its reprocessing system
to the emerging biodiesel fuel market. This engine fuel market is supported by
the Energy Policy Act of 1992 and amendments in 1998 that allow federal and
state government fleet users to use biodiesel fuel in order to meet alternative
fuel vehicle use requirements. (dieselnet.com - April 2000, nopec.com - April
2000)
Danny Stonesifer and James Whitley developed the grease and food waste
reprocessing system from 1994 through August 1997. On August 15, 1994, Mr.
Stonesifer accepted the positions of President and Secretary of the Company, and
Mr. Whitley accepted the position of Treasurer. On August 25, 1997, the Company
signed an exclusive license agreement with Mr. Stonesifer and Mr. Whitley for
use of their grease and food waste reprocessing system in exchange for 88,000
restricted shares of the Company's common stock. The number of shares issued was
based upon an estimate of the total costs incurred by Mr. Stonesifer and Mr.
Whitley for product development and testing.
Based upon Management's experience in the grease and food waste recycling
industry, the Company's grease and food waste recycling system will offer grease
and food waste reprocessers the following advantages:
Through Management's experience in the reprocessing industry, this will
be the first commercially available grease and food waste reprocessing
system for sale to the grease and food waste reprocessing industry. The
current grease and food waste recycling systems currently in use by
reprocessors are self-constructed systems.
The target price of the Company's proprietary new grease and food waste
reprocessing system is estimated by Management to be between $1,500,000
and $2,000,000, which is equal to the cost of a self-constructed
reprocessing system.
The Company's grease and food waste recycling system is designed to
approximately double usable liquid grease output, quadruple usable solid
grease output, and recover 90% of food waste recycling products.
The Company's grease and food waste reprocessing system consists of a
proprietary trade secret design for treatment, sterilization, and
component separation that allows a more refined recycled product
suitable for additional markets approved by the USDA.
One of the new products from the Company's grease and food waste
reprocessing system is a highly refined oil from fat and grease suitable
for lower cost transesterification (chemical processing) used by
biodiesel fuel suppliers such as Ag Environmental Products, Biodiesel
Development Corporation, and Griffin Industries.
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The Company has a current business plan which proposes to utilize its founders'
backgrounds to develop its business from the current design stage into a
marketable grease and food waste recycling system.
The business plan requires the Company during the first two quarters to raise
capital of $10,000,000 through the sale of common stock in a private placement.
During the fourth quarter, after raising capital, the Company intends to utilize
subcontract manufacturers in California to begin production of its proprietary
grease and food waste recycling system for sale in California. The Company
intends to expend $2,500,000 for subcontractor production of its proprietary
grease and food waste recycling system, $100,000 for a marketing manager,
$90,000 for two salesmen, $30,000 for two office clerical employees, $20,000 for
set-up and maintenance of the Company's web site, $500,000 for advertising,
$50,000 for purchase of computers and fixed assets, and $75,000 for rent and
other operating expenses.
DISTRIBUTION METHODS OF PRODUCTS OR SERVICES
For the first two years of its business plan, the Company will promote its
reprocessing system through direct mailings and in-house sales representatives
to all major grease and food waste recycling companies in the United States. In
addition, the Company will advertise monthly in reprocesser trade journals
throughout the United States. The Company intends to offer information on its
product to prospective grease and food waste reprocessors on its web site,
"greaserecycle.com" which will feature product information and benefits to
users.
Based upon Management's experience in the grease and food waste recycling
business, the Company will sell its complete grease and food waste reprocessing
system in a range of approximately $1,500,000 to $2,000,000 depending upon plant
size . This compares to the cost of self-constructed grease and food waste
reprocessing systems.
PLANNED NEW PRODUCT OR SERVICE
The Company has no new product or service planned or announced to the public.
COMPETITION AND COMPETITIVE POSITION
Management has determined, through information provided by the National
Renderers Association, that the size and financial strength of current grease
and food waste recycling reprocessors such as Darling International, Inc.,
National By-Products, Inc., and CBP Resources, Inc. are substantially greater
than those of the Company. However, Management intends to sell its proprietary
grease and food waste recycling equipment to these reprocessors and charge
annual license fees for its trade secret processing system. Exact license fees
have not yet been determined, but the Company is considering a range of
approximately .3 to .5 percent of user gross sales as a base. Management is
aware that there are currently no commercial manufacturers of grease and food
waste recycling systems and no food waste reprocessors currently offer a grease
and food waste processing system for sale. The current grease and food waste
recycling systems in use by these reprocessors are self-constructed and
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do not incorporate the Company's trade secret features designed to increase the
volume and variety of usable recoverable products. The Company's competitors
have longer operating histories, larger customer bases, and greater brand
recognition than the Company. Management is not aware of any significant
barriers to the Company's entry into the grease and food waste recycling systems
manufacturing market, however, the Company at this time has no market share of
this market.
SUPPLIERS AND SOURCES OF RAW MATERIALS
Management will rely on their combined experience and knowledge in the grease
and food waste recycling business to arrange for the manufacture of its trade
secret grease and food waste recycling system. The Company will utilize existing
metal component fabricators to produce and assemble its grease and food waste
recycling systems product. While the Company has no current contracts with metal
component fabricators, Management is aware of fabricators such as Pacific Coast
Welding, Inc., CVB Plumbing Fabrication, Inc. , and Altemp Alloys, Inc.
Management is aware that general manufacturing costs for its grease and food
waste recycling system product currently average approximately fifty percent of
its projected selling price. The Company will enter into agreements with metal
component fabricators per its business plan after raising capital during the
first six months of its plan.
DEPENDENCE ON ONE OR A FEW MAJOR CUSTOMERS
The Company will not depend on any one or a few major customers. The Company's
target market for the first two years of its business plan will be the grease
and food waste recycling companies in the United States. This market is served
by one thousand two hundred fifty two companies, located throughout the United
States.
PATENTS, TRADEMARKS, FRANCHISES, CONCESSIONS, ROYALTY AGREEMENTS, LABOR
CONTRACTS
The Company has setup its first web page "greaserecycle.com", and will expand
its web site in the fourth quarter of 2000. The Company has no current plans for
any additional registrations such as patents, trademarks, copyrights,
franchises, concessions, royalty agreements or labor contracts at this time. The
Company will assess the need for any additional copyright, trademark or patent
applications on an ongoing basis. The Company's grease and food waste recycling
system consists of a proprietary design that will, compared to existing
self-constructed systems, double usable liquid grease output, quadruple usable
solid grease output, and recover 90% of food waste recyclables. The design is an
integral part of the recycling system. The recycling design is an important
intellectual property of the company and is protected by trade secret laws.
On August 25, 1997, the Company signed an exclusive license agreement with its
two officers for use of their trade secret grease and food waste recycling
design in exchange for 44,000 restricted shares each of the Company's common
stock. The Company issued a total of 88,000 shares of its common stock in
exchange for a ten year exclusive right to development, manufacturing,
marketing, sale, sublicensing, and any and all usages of the grease and food
waste recycling design in the United States and throughout the world. After ten
years the
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license is subject to automatic renewal each year thereafter, subject to written
notification, sixty days in advance to the renewal, by both parties of the
license agreement.
REQUIREMENTS FOR GOVERNMENT APPROVAL OF PRINCIPAL PRODUCTS OR SERVICES
The Company is not required to apply for or have any government approval for its
products or services.
EFFECT OF GOVERNMENTAL REGULATIONS ON THE COMPANY'S BUSINESS
The Company's business is subject to material regulation by the United States
Department of Agriculture. The Company will be required to meet all federal and
state governmental agriculture and health codes and standards applicable to the
grease and food waste reprocessing industry. Management personnel are familiar
with United States and individual states' food and agriculture rules, codes, and
licensing requirements.
RESEARCH AND DEVELOPMENT FUNDING DURING THE LAST TWO YEARS
The Company has not expended funds for research and development costs since
inception.
COSTS AND EFFECTS OF COMPLIANCE WITH ENVIRONMENTAL LAWS
Environmental regulations have had no materially adverse effect on the Company's
operations to date, but no assurance can be given that environmental regulations
will not, in the future, result in a curtailment of service or otherwise have a
materially adverse effect on the Company's business, financial condition or
results of operation. Public interest in the protection of the environment has
increased dramatically in recent years. The trend of more expansive and stricter
environmental legislation and regulations could continue. To the extent that
laws are enacted or other governmental action is taken that imposes
environmental protection requirements that result in increased costs, the
business and prospects of the Company could be adversely affected.
The Company's business plan allows for maintaining insurance coverage against
certain environmental liabilities, but there can be no assurance that such
insurance will continue to be available or carried by the Company or, if
available and carried, will be adequate to cover the Company's liability in the
event of a catastrophic occurrence.
NUMBER OF EMPLOYEES
The Company's only current employees are its two officers who will devote as
much time as the board of directors determines is necessary to manage the
affairs of the Company. The officers intend to work on a full time basis when
the Company raises capital per its business plan. The Company intends to hire
five new full time employees during the first twelve months of its business
plan.
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REPORTS TO SECURITY HOLDERS
The Company's bylaws do not require the Company to deliver an annual report to
its shareholders and the Company has not in the past provided an annual report
to its shareholders. The Company is voluntarily filing this Form 10-SB in order
to make its financial information equally available to any interested parties or
investors. The Company will be subject to the disclosure rules of Regulation S-B
for a small business issuer under the Securities Exchange Act of 1934. The
Company anticipates it will become subject to disclosure filing requirements
effective sixty days after the date the Securities and Exchange Commission
accepts its original Form 10-SB filing, and, after that date, will be required
to file Form 10-KSB annually and Form 10-QSB quarterly. In addition, the Company
will be required to file Form 8 and other proxy and information statements from
time to time as required.
The public may read and copy any materials the Company files with the Securities
and Exchange Commission, ("SEC"), at the SEC's Public Reference Room at 450
Fifth Street NW, Washington D. C. 20549. The public may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC maintains an Internet site (http://www.sec.gov) that contains reports,
proxy and information statements, and other information regarding issuers that
file electronically with the SEC.
RISKS
While Management believes its estimates of projected occurrences and events are
within the timetable of its business plan, there can be no guarantees or
assurances that the results anticipated will occur.
The Company's long-term viability is substantially dependent upon the widespread
acceptance of its trade secret design for grease and food waste treatment,
sterilization, and component separation that is designed to increase usable
liquid yellow grease retrieval, increase usable solid brown grease retrieval for
conversion into commercial grade oil products, and salvage ninety percent of
food waste for commercial recycling by the grease and food by-products
reprocessing industry. There is no historic evidence that this type of new
product will be accepted by the Company's intended market, the grease and food
by-products reprocessing industry. The potential lack of acceptance by
purchasers of the Company's grease and food waste reprocessing system could have
a material adverse effect upon the Company's business, financial condition,
operating results and cash flows.
The Company's performance and future operating results are substantially
dependent on the continued service and performance of its current Management.
The Company intends to hire a relatively small number of additional office staff
and marketing personnel in the next year.
Competition for such personnel is intense, and there can be no assurance that
the Company will be able to retain its essential employees or that it will be
able to attract or retain highly-qualified technical and managerial personnel in
the future. The loss of the services of any of the Company's current Management
or other key employees or the inability to attract and retain the necessary
technical, and marketing personnel could have a material adverse effect upon the
Company's business, financial condition, operating results and cash flows.
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The current officers, Mr. Stonesifer and Mr. Whitley, are the sole officers and
directors of the company and have control in directing the activities of the
company. Both officers are involved in other business activities and may, in the
future, become involved in additional business opportunities. If a specific
business opportunity becomes available, the officers and directors of the
company may face a conflict of interest. The Company has not formulated a plan
to resolve any conflicts that may arise. While the Company and its sole officers
and directors have not formally adopted a plan to resolve any potential or
actual conflicts of interest that exist or that may arise, they have verbally
agreed to limit their roles in all other business activities to roles of passive
investors and devote full time services to the Company after the Company raises
capital of $10,000,000 through the sale of securities through a private
placement and is able to provide officers' salaries per its business plan.
While Management believes its estimates of projected occurrences and events are
within the timetable of its business plan, there can be no guarantees or
assurances that the results anticipated will occur. Investors in the Company
should be particularly aware of the inherent risks associated with the Company's
planned business. These risks include a lack of a proven market for the
Company's grease and food by-products reprocessing system, lack of equity
funding, and the size of the Company compared to the size of its competitors.
Although Management intends to implement its business plan through the
foreseeable future and will do its best to mitigate the risks associated with
its business plan, there can be no assurance that such efforts will be
successful. Management has no liquidation plans should the Company be unable to
receive funding. Should the Company be unable to implement its business plan,
Management would investigate all options available to retain value for the
shareholders. Among the options that would be considered are: acquisition of
another product or technology, or a merger or acquisition of another business
entity that has revenue and/or long-term growth potential. However, there are no
pending or anticipated arrangements, understandings or agreements with outside
parties for acquisitions, mergers or any other material transactions.
YEAR 2000 DISCLOSURE
For several years, users of computers in business applications were concerned
that time-sensitive software might cause their computer systems to recognize a
date using "00" as the year 1900 rather than the year 2000. This date error
problem was expected to cause computer system errors adversely affecting normal
business activities in the first weeks of 2000.
The Company's business plan directs the purchase of computer equipment and
software during the second half of 2000. The Company's Management has hands-on
familiarity with all of the software that will be utilized in its business plan
and has experienced no Year 2000 related systems problems as of the date of this
filing. Management has discussed Year 2000 computer systems issues with proposed
goods and services suppliers for the Company's business plan and they have
confirmed their computer related systems are already Year 2000 compatible.
Management's sole Year 2000 compliance plan is to purchase computer systems and
software which are already Year 2000 compatible. Other than the aforementioned
plan, Management has no current or contemplated Year 2000 contingency plans
related to Year 2000 compliance problems.
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ITEM 2
PLAN OF OPERATION
The Company's current cash balance is $8,400.00. Management believes the current
cash balance is sufficient to fund the current minimum level of operations
through the third quarter of 2000, however, in order to advance the Company's
business plan the Company must raise capital through the sale of equity
securities. To date, the Company has sold $8,400.00 in equity securities. Sales
of the Company's equity securities have allowed the Company to maintain a
positive cash flow balance.
Management has made initial progress in implementing its business plan by
obtaining an exclusive licence for the use of the grease and food by-products
reprocessing system proprietary design, registering its Internet domain name on
the Internet, and opening its own web page on the Internet. The Company will
only be able to continue to advance its business plan after it receives capital
funding through the sale of equity securities. After raising capital, Management
intends to hire employees, rent commercial space in Lakeside, California, and
begin production and marketing of its trade secret grease and food waste
reprocessing product. The Company intends to use its equity capital to fund the
Company's business plan during the next twelve months as cash flow from sales is
not estimated to begin until year two of its business plan. The Company will
face considerable risk in each of its business plan steps, such as difficulty of
hiring competent personnel within its budget, longer than anticipated time for
subcontractors to manufacture its trade secret grease and food waste
reprocessing product, and a shortfall of funding due to the Company's inability
to raise capital in the equity securities market. If no funding is received
during the next twelve months, the Company will be forced to rely on its
existing cash in the bank and funds loaned by the directors and officers. The
Company's officers and directors have no formal commitments or arrangements to
advance or loan funds to the Company. In such a restricted cash flow scenario,
the Company would be unable to complete its business plan steps, and would,
instead, delay all cash intensive activities. Without necessary cash flow, the
Company may be dormant during the next twelve months, or until such time as
necessary funds could be raised in the equity securities market.
There are no current plans for additional product research and development. The
Company plans to purchase approximately $50,000 in furniture, computers, and
software during the next twelve months from proceeds of its equity security
sales. The Company's business plan provides for an increase of five employees
during the next twelve months.
ITEM 3
DESCRIPTION OF PROPERTY
The Company's principal executive office address is 12740 Vigilante Road,
Lakeside, CA 92040. The principal executive office and telephone number are
provided by an officer of the corporation. The costs associated with the use of
the telephone and mailing address were deemed by management to be immaterial as
the telephone and mailing address were almost exclusively used by the officer
for other business purposes. Management considers the Company's current
principal office space arrangement adequate until such time as the Company
achieves its business plan goal of raising capital of $10,000,000 and then
begins hiring new employees per its business plan.
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ITEM 4
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets forth information on the ownership of the Company's
voting securities by Officers, Directors and major shareholders as well as those
who own beneficially more than five percent of the Company's common stock
through the most current date - March 31, 2000:
<TABLE>
<CAPTION>
Title Of Name & Amount & Percent
Class Address Nature of owner Owned
<S> <C> <C> <C>
Common Daniel Stonesifer 2,295,000 (a) 26%
12740 Vigilante Road
Lakeside, CA 92040
Common James Whitley 2,295,000 (a) 26%
12740 Vigilante Road
Lakeside, CA 92040
Total Shares Owned by Officers & Directors
As a Group
4,590,000 52%
</TABLE>
(a) Mr. Stonesifer received 1,000 shares of the Company's common stock for
services related to the start-up of the corporation. He received 44,000 shares
of the Company's common stock on August 25, 1997 for a license agreement related
to the Company's business plan. 2,250,000 shares of the Company's common stock
were issued to him per a 51 for 1 stock split on February 1, 2000.
(b) Mr. Whitley received 1,000 shares of the Company's common stock for services
related to the start-up of the corporation. He received 44,000 shares of the
Company's common stock on August 25, 1997 for a license agreement related to the
Company's business plan. 2,250,000 shares of the Company's common stock were
issued to him per a 51 for 1 stock split on February 1, 2000.
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ITEM 5
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS,
AND CONTROL PERSONS
The Directors and Officers of the Company, all of those whose one year terms
will expire 3/31/01, or at such a time as their successors shall be elected and
qualified are as follows:
<TABLE>
<CAPTION>
Name & Address Age Position Date First Elected Term Expires
<S> <C> <C> <C> <C>
Daniel Stonesifer 41 President, 8/15/94 3/31/01
12740 Vigilante Road Secretary
Lakeside, CA 92040 Director
James Whitley 49 Treasurer, 8/15/94 3/31/01
12740 Vigilante Road Director
Lakeside, CA 92040
</TABLE>
Each of the foregoing persons may be deemed a "promoter" of the Company, as that
term is defined in the rules and regulations promulgated under the securities
and Exchange Act of 1933.
Directors are elected to serve until the next annual meeting of stockholders and
until their successors have been elected and qualified. Officers are appointed
to serve until the meeting of the Board of Directors following the next annual
meeting of stockholders and until their successors have been elected and
qualified.
No Executive Officer or Director of the Corporation has been the subject of any
Order, Judgement, or Decree of any Court of competent jurisdiction, or any
regulatory agency permanently or temporarily enjoining, barring suspending or
otherwise limiting him from acting as an investment advisor, underwriter, broker
or dealer in the securities industry, or as an affiliated person, director or
employee of an investment company, bank, savings and loan association, or
insurance company or from engaging in or continuing any conduct or practice in
connection with any such activity or in connection with the purchase or sale of
any securities.
No Executive Officer or Director of the Corporation has been convicted in any
criminal proceeding (excluding traffic violations) or is the subject of a
criminal proceeding which is currently pending.
No Executive Officer or Director of the Corporation is the subject of any
pending legal proceedings.
RESUMES
Daniel Stonesifer, President, Secretary & Director
1995 - Current President, Treasurer, Atlas Portable Services, Inc., Lakeside,
California. Responsible for operations, personnel management and
planning for a major Southern California recycling company
specializing in waste
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collection and transportation, and grease and food waste
reprocessing. The Company holds an exclusive San Diego
County collection and rendering plant license.
James Whitley, Treasurer & Director
1995 - Current Secretary, Atlas Portable Services, Inc., Lakeside, California.
Responsible for reprocessing systems research, design,
fabrication, and maintenance for a major Southern California
recycling company specializing in waste collection and
transportation, and grease and food waste reprocessing. The
Company holds an exclusive San Diego County collection and
rendering plant license.
ITEM 6
EXECUTIVE COMPENSATION
The company's current officers receive no compensation.
Summary Compensation Table
<TABLE>
<CAPTION>
Other
Name & Year Salary Bonus annual Restricted Options LTIP All other
principle ($) ($) compen- stock SARs Payouts compen-
position sation ($) awards ($) ($) sation ($) sation ($)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
D Stonesifer 1997 -0- -0- -0- -0- -0- -0- -0-
President 1998 -0- -0- -0- 4,400 -0- -0- -0-
1999 -0- -0- -0- -0- -0- -0- -0-
J Whitley 1997 -0- -0- -0- -0- -0- -0- -0-
Treasurer 1998 -0- -0- -0- 4,400 -0- -0- -0-
1999 -0- -0- -0- -0- -0- -0- -0-
</TABLE>
There are no current employment agreements between the Company and its executive
officers.
The Board agreed to pay Mr. Stonesifer 1,000 shares of common stock for services
related to the start-up of the corporation in August 1994. 44,000 shares of
common stock were issue to him for an exclusive license agreement on August 25,
1997. The stock was valued at the price unaffiliated investors paid for stock
sold by the Company, $.10 per share. On February 1, 2000, 2,250,000 shares of
the Company's common stock were issued to him per a 51 for 1 stock split.
The Board agreed to pay Mr. Whitley 1,000 shares of common stock for services
related to the start-up of the corporation in August 1994. 44,000 shares of
common stock were issue to him for an exclusive license agreement on August 25,
1997. The stock was valued at the price
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unaffiliated investors paid for stock sold by the Company, $.10 per share. On
February 1, 2000, 2,250,000 shares of the Company's common stock were issued to
him per a 51 for 1 stock split.
The terms of these stock issuances were as fair to the Company, in the Board's
opinion, as could have been made with an unaffiliated third party.
The officers currently devote an immaterial amount of time to manage the affairs
of the Company. The Directors and Principal Officers have agreed to work with no
remuneration until such time as the Company receives sufficient revenues
necessary to provide proper salaries to all Officers and compensation for
Directors' participation. The Officers and the Board of Directors have the
responsibility to determine the timing of remuneration for key personnel based
upon such factors as positive cash flow to include stock sales, product sales,
estimated cash expenditures, accounts receivable, accounts payable, notes
payable, and a cash balance of not less than $20,000 at each month end. When
positive cash flow reaches $20,000 at each month end and appears sustainable the
board of directors will readdress compensation for key personnel and enact a
plan at that time which will benefit the Company as a whole. At this time,
management cannot accurately estimate when sufficient revenues will occur to
implement this compensation, or the exact amount of compensation.
There are no annuity, pension or retirement benefits proposed to be paid to
officers, directors or employees of the Corporation in the event of retirement
at normal retirement date pursuant to any presently existing plan provided or
contributed to by the Corporation or any of its subsidiaries, if any.
ITEM 7
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The principal executive office and telephone number are provided by Mr.
Stonesifer, an officer of the corporation. The costs associated with the use of
the telephone and mailing address were deemed by management to be immaterial as
the telephone and mailing address were almost exclusively used by the officer
for other business purposes.
ITEM 8
DESCRIPTION OF SECURITIES
The Company's Certificate of Incorporation authorizes the issuance of 20,000,000
Shares of Common Stock, .001 par value per share. There is no preferred stock
authorized. Holders of shares of Common Stock are entitled to one vote for each
share on all matters to be voted on by the stockholders. Holders of Common Stock
have cumulative voting rights. Holders of shares of Common Stock are entitled to
share ratably in dividends, if any, as may be declared, from time to time by the
Board of Directors in its discretion, from funds legally available therefor.
In the event of a liquidation, dissolution, or winding up of the Company, the
holders of shares of Common Stock are entitled to share pro rata all assets
remaining after payment in full of all liabilities. Holders of Common Stock have
no preemptive or other subscription rights, and there are no conversion rights
or redemption or sinking fund provisions with respect to such shares. All of the
outstanding Common Stock is, and the shares offered by the Company pursuant to
-13-
<PAGE> 14
this offering will be, when issued and delivered, fully paid and non-assessable.
The Securities and Exchange Commission has adopted Rule 15g-9 which established
the definition of a "penny stock", for the purposes relevant to the Company, as
any equity security that has a market price of less than $5.00 per share or with
an exercise price of less than $5.00 per share, subject to certain exceptions.
For any transaction involving a penny stock, unless exempt, the rules require:
(i) that a broker or dealer approve a person's account for transactions in penny
stocks; and (ii) the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and quantity of the
penny stock to be purchased. In order to approve a person's account for
transactions in penny stocks, the broker or dealer must (i) obtain financial
information and investment experience objectives of the person; and (ii) make a
reasonable determination that the transactions in penny stocks are suitable for
that person and the person has sufficient knowledge and experience in financial
matters to be capable of evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prepared by the Commission relating to the penny
stock market, which, in highlight form, (i) sets forth the basis on which the
broker or dealer made the suitability determination; and (ii) that the broker or
dealer received a signed, written agreement from the investor prior to the
transaction. Disclosure also has to be made about the risks of investing in
penny stocks in both public offerings and in secondary trading and about the
commissions payable to both the broker-dealer and the registered representative,
current quotations for the securities and the rights and remedies available to
an investor in cases of fraud in penny stock transactions. Finally, monthly
statements have to be sent disclosing recent price information for the penny
stock held in the account and information on the limited market in penny stocks.
PART II
ITEM 1
MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
The Company plans to file for trading on the OTC Electronic Bulletin Board which
is sponsored by the National Association of Securities Dealers (NASD). The OTC
Electronic Bulletin Board is a network of security dealers who buy and sell
stock. The dealers are connected by a computer network which provides
information on current "bids" and "asks" as well as volume information.
As of the date of this filing, there is no public market for the Company's
securities. As of March 31, 2000, the Company had 66 shareholders of record. The
Company has paid no cash dividends. The Company has no outstanding options. The
Company has no plans to register any of its securities under the Securities Act
for sale by security holders. There is no public offering of equity and there is
no proposed public offering of equity.
-14-
<PAGE> 15
ITEM 2
LEGAL PROCEEDINGS
The Company is not currently involved in any legal proceedings and is not aware
of any pending or potential legal actions.
ITEM 3
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
CONTROL AND FINANCIAL DISCLOSURE
None.
ITEM 4
RECENT SALES OF UNREGISTERED SECURITIES
The Board agreed to pay Mr. Stonesifer 1,000 shares of common stock for services
related to the start-up of the corporation in August 1994. 44,000 shares of
common stock were issue to him for an exclusive license agreement on August 25,
1997. The Board agreed to pay Mr. Whitley 1,000 shares of common stock for
services related to the start-up of the corporation in August 1994. 44,000
shares of common stock were issue to him for an exclusive license agreement on
August 25, 1997, for a total of 90,000 Rule 144 shares. The Company relied upon
Section 4(2) of Securities Act of 1993, as amended (the "Act"). The Company
issued the shares in satisfaction of management services rendered to officers
and directors, which does not constitute a public offering.
From the period of approximately December 1, 1997 until January 31, 1998, the
Company offered and sold 84,000 shares at $0.10 per share to non-affiliated
private investors. The Company relied upon Section 4(2) of the Securities Act of
1993, as amended (the "Act"). Each prospective investor was given a private
placement memorandum designed to disclose all material aspects of an investment
in the Company, including the business, management, offering details, risk
factors and financial statements. Each investor also completed a subscription
confirmation letter and private placement subscription agreement whereby the
investors certified that they were purchasing the shares for their own accounts,
with investment intent and that each investor was either "accredited", or were
"sophisticated" purchasers, having prior investment experience or education, and
having adequate and reasonable opportunity and access to any corporate
information necessary to make an informed investment decision. This offering was
not accompanied by general advertisement or general solicitation and the shares
were issued with a Rule 144 restrictive legend.
Under the Securities Act of 1933 , all sales of an issuers' securities or by a
shareholder, must either be made (i) pursuant to an effective registration
statement filed with the SEC, or (ii) pursuant to an exemption from the
registration requirements under the 1933 Act.
Rule 144 under the 1933 Act sets forth conditions which if satisfied, permit
persons holding control securities (affiliated shareholders, i.e., officers,
directors or holders of at least ten percent of the outstanding shares) or
restricted securities (non-affiliated shareholders) to sell such securities
publicly without registration. Rule 144 sets forth a holding period for
restricted
-15-
<PAGE> 16
securities to establish that the holder did not purchase such securities with a
view to distribute. Under Rule 144, several provisions must be met with respect
to the sales of control securities at any time and sales of restricted
securities held between one and two years. The following is a summary of the
provisions of Rule 144: (a) Rule 144 is available only if the issuer is current
in its filings under the Securities an Exchange Act of 1934. Such filings
include, but are not limited to, the issuer's quarterly reports and annual
reports; (b) Rule 144 allows resale of restricted and control securities after a
one year hold period, subjected to certain volume limitations, and resales by
non-affiliates holders without limitations after two years; (c) The sales of
securities made under Rule 144 during any three-month period are limited to the
greater of: (i) 1% of the outstanding common stock of the issuer; or (ii) the
average weekly reported trading volume in the outstanding common stock reported
on all securities exchanges during the four calendar weeks preceding the filing
of the required notice of the sale under Rule 144 with the SEC.
On February 1, 2000, the Board of Directors authorized a forward stock split of
51 for 1 resulting in a total of 8,872,000 shares of common stock issued and
outstanding.
ITEM 5
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws allow for the indemnification of Company Officers and
Directors in regard to their carrying out the duties of their offices. The
By-Laws also allow for reimbursement of certain legal defenses. As to
indemnification for liabilities arising under the Securities Act of 1933 for
directors, officers or persons controlling the Company, the Company has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy and unenforceable.
PART F/S
The audited financial statements of the Company for the years ended March 31,
2000 and 1999, and related notes which are included in this offering have been
examined by Barry Friedman, CPA, and have been so included in reliance upon the
opinion of such accountants given upon their authority as an expert in auditing
and accounting.
-16-
<PAGE> 17
WHISTLER, INC.
(A Development Stage Company)
FINANCIAL STATEMENTS
MARCH 31, 2000
MARCH 31, 1999
MARCH 31, 1998
<PAGE> 18
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE #
<S> <C> <C>
INDEPENDENT AUDITORS REPORT F-1
----------------------------------------------------------------------------------------------
ASSETS F-2
----------------------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY F-3
----------------------------------------------------------------------------------------------
STATEMENT OF OPERATIONS F-4
----------------------------------------------------------------------------------------------
STATEMENT OF STOCKHOLDERS' EQUITY F-5
----------------------------------------------------------------------------------------------
STATEMENT OF CASH FLOWS F-6
----------------------------------------------------------------------------------------------
NOTES TO FINANCIAL STATEMENTS F-7-11
---------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 19
INDEPENDENT AUDITORS' REPORT
Board of Directors April 5, 2000
Whistler, Inc.
Lakeside, California
I have audited the accompanying Balance Sheets of Whistler, Inc. (A
Development Stage Company), as of March 31, 2000, March 31, 1999, and March 31,
1998, and the related statements of operations, stockholders' equity and cash
flows for the three years ended March 31, 2000, March 31, 1999, and March 31,
1998. These financial statements are the responsibility of the Company's
management. My responsibility is to express an opinion on these financial
statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit provides a reasonable basis for my opinion.
In my opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Whistler, Inc. (A
Development Stage Company), as of March 31, 2000, March 31, 1999, and March 31,
1998, and the related statements of operations, stockholders' equity and cash
flows for the three years ended March 31, 2000, March 31, 1999, and March 31,
1998, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming the
Company will continue as a going concern. As discussed in Note #5 to the
financial statements, the Company has suffered recurring losses from operations
and has no established source of revenue. This raises substantial doubt about
its ability to continue as a going concern. Management's plan in regard to these
matters is described in Note #5. These financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
- ---------------------------
Barry L. Friedman
Certified Public Accountant
1582 Tulita Drive
Las Vegas, NV 89123
(702) 361-8414
F-1
<PAGE> 20
WHISTLER, INC.
(A Development Stage Company)
BALANCE SHEET
ASSETS
<TABLE>
<CAPTION>
MARCH MARCH MARCH
31, 2000 31, 1999 31, 1998
--------- --------- ---------
<S> <C> <C> <C>
CURRENT ASSETS
CASH $ 8,400 $ 8,400 $ 8,400
--------- --------- ---------
TOTAL CURRENT ASSETS $ 8,400 $ 8,400 $ 8,400
--------- --------- ---------
OTHER ASSETS $ 0 $ 0 $ 0
--------- --------- ---------
TOTAL OTHER ASSETS $ 0 $ 0 $ 0
--------- --------- ---------
TOTAL ASSETS $ 8,400 $8,40 0 $ 8,400
--------- --------- ---------
</TABLE>
The accompanying notes are an integral part of these financial statements
F-2
<PAGE> 21
WHISTLER, INC.
(A Development Stage Company)
BALANCE SHEET
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
MARCH MARCH MARCH
31, 2000 31, 1999 31, 1998
----------- ----------- -----------
<S> <C> <C> <C>
CURRENT LIABILITIES $ 0 $ 0 $ 0
----------- ----------- -----------
TOTAL CURRENT LIABILITIES $ 0 $ 0 $ 0
----------- ----------- -----------
STOCKHOLDERS' EQUITY (Note #4)
Common stock
Par value $0.00001
Authorized 20,000,000 shares
Issued and outstanding at
March 31, 1998 -
174,000 shares $ 2
March 31, 1999 -
174,000 shares
$ 2
Common stock
Par value $0.001
Authorized 20,000,000 shares
Issued and outstanding at
March 31, 2000 -
8,874,000 shares $ 8,874
Additional Paid-In Capital +8,526 +17,398 +17,398
Deficit accumulated during
Development stage -9,000 -9,000 -9,000
----------- ----------- -----------
TOTAL STOCKHOLDERS' EQUITY $ 8,400 $ 8,400 $ 8,400
----------- ----------- -----------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 8,400 $ 8,400 $ 8,400
----------- ----------- -----------
</TABLE>
The accompanying notes are an integral part of these financial statements
F-3
<PAGE> 22
WHISTLER, INC.
(A Development Stage Company)
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
Year Year Year May 31,1994
Ended Ended Ended (Inception)
Mar. 31, Mar. 31, Mar. 31, to Mar. 31,
2000 1999 1998 2000
---------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
INCOME
Revenue $ 0 $ 0 $ 0 $ 0
---------- ---------- ---------- -----------
EXPENSES
General, Selling and
Administrative $ 0 $ 0 $ -8,800 $ 9,000
---------- ---------- ---------- -----------
TOTAL EXPENSES $ 0 $ 0 $ -8,800 $ 9,000
---------- ---------- ---------- -----------
NET PROFIT/LOSS (-) $ 0 $ 0 $ -8,800 $ -9,000
---------- ---------- ---------- -----------
Net Profit/Loss(-)
per weighted share
(Note #1) $ NIL $ NIL $ -.001 $ -.001
---------- ---------- ---------- -----------
Weighted average
Number of common
shares outstanding 8,874,000 8,874,000 8,874,000 8,874,000
---------- ---------- ---------- -----------
</TABLE>
The accompanying notes are an integral part of these financial statements
F-4
<PAGE> 23
WHISTLER, INC.
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Additional Accumu-
Common Stock paid-in lated
Shares Amount Capital Deficit
--------- --------- ---------- ---------
<S> <C> <C> <C> <C>
Balance,
March 31, 1997 2,000 $ 0 $ 200 $ -200
August 25, 1997
Issued for License
Agreement 88,000 $ 1 $ 8,799
January 31, 1998
Issued For Cash 84,000 1 8,399
Net loss year ended
March 31, 1998 -8,800
--------- --------- ---------- ---------
Balance,
March 31, 1998 174,000 $ 2 $ 17,398 $ -9,000
Net loss year ended
March 31, 1999 0
--------- --------- ---------- ---------
Balance,
March 31, 1999 174,000 $ 2 $ 17,398 $ -9,000
October 28, 1999
Changed Par Value
From $0.00001
To $0.001 +172 -172
February 1, 2000
Forward Stock Split
51 for 1 8,700,000 +8,700 -8,700
Net Loss
April 1, 1999 to
March 31, 2000 0
--------- --------- ---------- ---------
Balance,
March 31, 2000 8,874,000 $ 8,874 $ 8,526 $ -9,000
--------- --------- ---------- ---------
</TABLE>
The accompanying notes are an integral part of these financial statements
F-5
<PAGE> 24
WHISTLER, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
Year Year Year May 31,1994
Ended Ended Ended (Inception)
Mar. 31, Mar. 31, Mar. 31, to Mar. 31,
2000 1999 1998 2000
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES
Net Loss $ 0 $ 0 $ -8,800 $ -9,000
Adjustment to
Reconcile net loss
To net cash provided
by operating
Activities
Issue Common Stock
For Services 0 0 8,800 +9,000
Changes in assets and
Liabilities 0 0 0 0
---------- ---------- ---------- ----------
NET CASH USED IN
OPERATING ACTIVITIES $ 0 $ 0 $ 0 $ 0
CASH FLOWS FROM
INVESTING ACTIVITIES 0 0 0 0
CASH FLOWS FROM
FINANCING ACTIVITIES
Issuance of Common
Stock for Cash 0 0 +8,400 +8,400
---------- ---------- ---------- ----------
Net Increase (decrease) $ 0 $ 0 $ +8,400 +8,400
Cash,
Beginning of period +8,400 +8,400 0 0
---------- ---------- ---------- ----------
Cash, End of Period $ 8,400 $ 8,400 $ 8,400 $ 8,400
---------- ---------- ---------- ----------
</TABLE>
The accompanying notes are an integral part of these financial statements
F-6
<PAGE> 25
WHISTLER, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 2000, MARCH 31, 1999, and MARCH 31, 1998
NOTE 1 - HISTORY AND ORGANIZATION OF THE COMPANY
The Company was organized MAY 31, 1994, under the laws of the State of
Delaware as WHISTLER, INC. The Company currently has no operations and
in accordance with SFAS #7, is considered a development company.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Method
The Company records income and expenses on the accrual method.
Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements
and the reported amounts of revenue and expenses during the
reporting period. Actual results could differ from those
estimates.
Cash and equivalents
The Company maintains a cash balance in a non-interest-bearing
bank that currently does not exceed federally insured limits.
For the purpose of the statements of cash flows, all highly
liquid investments with the maturity of three months or less
are considered to be cash equivalents.
F-7
<PAGE> 26
WHISTLER, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
MARCH 31, 2000, MARCH 31, 1999, and MARCH 31, 1998
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Income Taxes
Income taxes are provided for using the liability method of
accounting in accordance with Statement of Financial
Accounting Standards No. 109 (SFAS #109) "Accounting for
Income Taxes". A deferred tax asset or liability is recorded
for all temporary difference between financial and tax
reporting. Deferred tax expense (benefit) results from the net
change during the year of deferred tax assets and liabilities.
Reporting on Costs of Start-Up Activities
Statement of Position 98-5 ("SOP 98-5"), "Reporting on the
Costs of Start-Up Activities" which provides guidance on the
financial reporting of start-up costs and organization costs.
It requires most costs of start-up activities and organization
costs to be expensed as incurred. SOP 98-5 is effective for
fiscal years beginning after December 15, 1998. With the
adoption of SOP 98-5, there has been little or no effect on
the company's financial statements.
Loss Per Share
Net loss per share is provided in accordance with Statement of
Financial Accounting Standards No. 128 (SFAS #128) "Earnings
Per Share". Basic loss per share is computed by dividing
losses available to common stockholders by the weighted
average number of common shares outstanding during the period.
Diluted loss per share reflects per share amounts that would
have resulted if dilative common stock equivalents had been
converted to common stock. As of March 31, 2000, the Company
had no dilative common stock equivalents such as stock
options.
F-8
<PAGE> 27
WHISTLER, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
MARCH 31, 2000, MARCH 31, 1999, and MARCH 31, 1998
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Year End
The Company has selected March 31st as its fiscal year-end.
NOTE 3 - INCOME TAXES
There is no provision for income taxes for the period ended March 31,
2000, due to the net loss and no state income tax in Delaware, the
state of the Company's domicile and operations. The Company's total
deferred tax asset as of March 31, 2000 is as follows:
Net operation loss carry forward $9,000
Valuation allowance $9,000
Net deferred tax asset $ 0
The federal net operating loss carry forward will expire between 2015
and 2018.
This carry forward may be limited upon the consummation of a business
combination under IRC Section 381.
F-9
<PAGE> 28
WHISTLER, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
MARCH 31, 2000, MARCH 31, 1999, and MARCH 31, 1998
NOTE 4 - STOCKHOLDERS' EQUITY
Common Stock
The authorized common stock of the corporation consists of 20,000,000
shares with a par value $0.001 per share.
Preferred Stock
Whistler, Inc. has no preferred stock.
On August 15, 1994, the Company issued 2,000 shares of its $0.00001 par
value common stock in consideration of $0.10 per-share ($200.00) to its
directors.
On August 25, 1997 the Company issued 88,000 shares of its $0.00001 par
value common stock, at $0.10 per-share ($8,800.00) to its two directors
for a license agreement.
On January 31, 1998, the Company issued 84,000 shares of its $0.00001
par value common stock for cash of $8,400.
On October 28, 1999, the State of Delaware approved the Company's
restated Articles of Incorporation, which changed the par value from
$0.00001 to $0.001.
On February 1, 2000, the Company approved a forward stock split on the
basis of 51 for 1, thus increasing the common stock from 174,000 shares
8,874,000 shares.
NOTE 5 - GOING CONCERN
The Company's financial statements are prepared using generally
accepted accounting principles applicable to a going concern which
contemplates the realization of assets and liquidation of liabilities
in the normal course of business. However, the Company does not have
significant cash or other material assets, nor does it have an
established source of revenues sufficient to cover its operating costs
and to allow it to continue as a going concern. The
stockholders/officers and/or directors have informally committed to
advancing the operating costs of the Company interest free.
F-10
<PAGE> 29
WHISTLER, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
MARCH 31, 2000, MARCH 31, 1999, and MARCH 31, 1998
NOTE 6 - WARRANTS AND OPTIONS
There are no warrants or options outstanding to acquire any additional
share of common stock.
NOTE 7 - RELATED PARTY TRANSACTIONS
The Company neither owns nor leases any real or personal property. An
officer of the corporation provides office services without charge.
Such costs are immaterial to the financial statements and accordingly,
have not been reflected therein. The officers and directors of the
Company are involved in other business activities and may in the
future, become involved in other business opportunities. If a specific
business opportunity becomes available, such persons may face a
conflict in selecting between the Company and their other business
interests. The Company has not formulated a policy for the resolution
of such conflicts.
F-11
<PAGE> 30
PART III
EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit 2 Plan of acquisition, reorganization or liquidation None
Exhibit 3(i) Articles of Incorporation Included
Exhibit 3(ii) Bylaws Included
Exhibit 4 Instruments defining the rights of holders None
Exhibit 9 Voting Trust Agreement None
Exhibit 10 Licensing Agreement Included
Exhibit 11 Statement re: computation of per share earnings See Financial Stmts.
Exhibit 16 Letter on change of certifying accountant None
Exhibit 21 Subsidiaries of the registrant None
Exhibit 23 Consent of experts and counsel Included
Exhibit 24 Power of Attorney None
Exhibit 27 Financial Data Schedule Included
</TABLE>
SIGNATURES
In accordance with Section 12 of the Securities and Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Whistler, Inc.
Date 5/8/00 By /S/ DANIEL STONESIFER
------------ ------------------------------------------
Daniel Stonesifer, President, Secretary &
Director
Date 5/8/00 By /S/ JAMES WHITLEY
------------ ------------------------------------------
James Whitley, Treasurer & Director
-17-
<PAGE> 1
PAGE 1
EXHIBIT 3(i)
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "WHISTLER, INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY
OF MAY, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
[SEAL]
/s/ WILLIAM T. QUILLEN
--------------------------------------
William T. Quillen, Secretary of State
2406816 8100 AUTHENTICATION: 7135135
944096948 DATE: 05-31-94
<PAGE> 2
CERTIFICATION OF INCORPORATION
OF
WHISTLER, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is called Whistler, Inc.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address is
The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is Twenty Million (20,000,000), all of which are of a
par value of $.00001 dollars each. All such shares are of one class and are
shares of Common stock.
FIFTH: The name and the mailing address of the incorporator are as follows:
NAME: ADDRESS
J. Klein 18200 Von Karman
Suite 100C
Irvine, California 92715
SIXTH: The corporation is to have perpetual existence.
<PAGE> 3
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal
<PAGE> 4
the Bylaws of the corporation may be exercised by the Board of Directors
of the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial
Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the
corporation unless provisions for such classification shall be set forth
in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one class of
stock, each outstanding share shall entitle the holder thereof to notice
of, and the right to vote at, any meeting of stockholders. Whenever the
corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under
the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of Section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of Section 102 of the General Corporation Law
of the State of Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or
<PAGE> 5
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
ELEVENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article ELEVENTH.
DATED: May 27, 1994
/s/ J. KLEIN
-------------------------------
J. Klein, Incorporator
<PAGE> 6
PAGE 1
State of Delaware
Office of the Secretary of State
------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "WHISTLER, INC.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF OCTOBER,
A.D. 1999, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL]
/s/ EDWARD J. FREEL
-------------------------------------
Edward J. Freel, Secretary of State
2406816 8100 AUTHENTICATION: 0053065
991459395 DATE: 10-29-99
<PAGE> 7
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/28/1999
991459395 - 2406816
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WHISTLER, INC.
----------------------------
WHISTLER, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation at a meeting duly
convened and held, adopted the following resolution:
RESOLVED: that the Board of Directors hereby declares it advisable and in
the best interest of the Company that Article Fourth of the Certificate of
Incorporation be amended to read as follows:
FOURTH: The total number of shares of stock which this corporation is
authorized to issue is Twenty Million shares (20,000,000) of common stock
with a par value of $.001 amounting to Twenty Thousand dollars
($20,000.00).
SECOND: That the said amendment has been consented to and authorized by the
holders of a majority of the issued and outstanding stock entitled to vote by
written consent given in accordance with the provisions of Section 228 of the
General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be signed
by Daniel Stonesifer, this 28th day of October, 1999.
/s/ DANIEL STONESIFER
---------------------------------
Daniel Stonesifer, President
<PAGE> 1
EXHIBIT 3(ii)
BY-LAWS
OF
WHISTLER, INC.
-----------------------------
ARTICLE I
OFFICES
1.1 Registered Office: The registered office shall be established and
maintained at and shall be the registered agent of the Corporation in charge
hereof.
1.2 Other Offices: The corporation may have other offices, either within
or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the corporation may
require, provided, however, that the corporation's books and records shall be
maintained at such place within the continental United States as the Board of
Directors shall from time to time designate.
ARTICLE II
STOCKHOLDERS
2.1 Place of Stockholders' Meetings: All meetings of the stockholders of
the corporation shall be held at such place or places, within or outside the
State of Delaware as may be fixed by the Board of Directors from time to time
or as shall be specified in the respective notices thereof.
2.2 Date and Hour of Annual Meetings of Stockholders: An annual meeting of
stockholders shall be held each year within five months after the close of the
fiscal year of the Corporation.
2.3 Purpose of Annual Meetings: At each annual meeting, the stockholders
shall elect the members of the Board of Directors for the succeeding year. At
any such annual meeting any further proper business may be transacted.
2.4 Special Meetings of Stockholders: Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called
by the President or by the Chairman of the Board of Directors, or at the
request in writing by stockholders of record owning at least fifty (50%)
percent of the issued and outstanding voting shares of common stock of the
corporation.
By - Laws - 1
<PAGE> 2
2.5 Notice of Meetings of Stockholders: Except as otherwise
expressly required or permitted by law, not less than ten days nor more than
sixty days before the date of every stockholders' meeting the Secretary shall
give to each stockholder of record entitled to vote at such meeting, written
notice, served personally by mail or by telegram, stating the place, date and
hour of the meeting and, in the case of a special meeting, the purpose of
purposes for which the meeting is called. Such notice, if mailed shall be deemed
to be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it appears
on the records of the corporation.
2.6 Quorum of Stockholders: (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
the votes thereat shall constitute a quorum. The withdrawal of any shareholder
after the commencement of a meeting shall have no effect on the existence of a
quorum, after a quorum has been established at such meeting.
(b) At any meeting of the stockholders at which a quorum
shall be present, a majority of voting stockholders, present in person or by
proxy, may adjourn the meeting from time to time without notice other than
announcement at the meeting. In the absence of a quorum, the officer presiding
thereat shall have power to adjourn the meeting from time to time until a quorum
shall be present. Notice of any adjourned meeting, other than announcement at
the meeting, shall not be required to be given except as provided in paragraph
(d) below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an adjournment is for more than thirty 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.
2.7 Chairman and Secretary of Meeting: The President, shall
preside at meetings of the stockholders. The Secretary shall act as secretary of
the meeting or if he is not present, then the presiding officer may appoint a
person to act as secretary of the meeting.
2.8 Voting by Stockholders: Expect as may be otherwise provided by
the Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
voting stock standing in his name on the books of the corporation on the record
date for the meeting. Except as otherwise provided by these by-laws, all
elections and questions shall be decided by the vote of a majority of interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting.
By-Laws-2
<PAGE> 3
2.9 Proxies: Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged.
2.10 Inspectors: The election of directors and any other vote by ballot at
any meeting of the stockholders shall be supervised by at least two inspectors.
Such inspectors may be appointed by the presiding officer before or at the
meeting; or if one or both inspectors so appointed shall refuse to serve or
shall not be present, such appointment shall be made by the officer presiding
at the meeting.
2.11 List of Stockholders: (a) At least ten days before every meeting of
stockholders, the Secretary shall prepare and make a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder.
(b) During ordinary business hours, for a period of at least ten days
prior to the meeting, such list shall be open to examination by any stockholder
for any purpose germane to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
(c) The list shall also be produced and kept at the time and place of
the meeting during the whole time of the meeting, and it may be inspected by
any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.12 Procedure at Stockholders' Meeting: Except as otherwise provided by
these by-laws or any resolutions adopted by the stockholders or Board of
Directors, the order of business and all other matters of procedure at every
meeting of stockholders shall be determined by the presiding officer.
2.13 Action By Consent Without Meeting: Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
By - Law - 3
<PAGE> 4
ARTICLE III
DIRECTORS
3.1 Powers of Directors: The property, business and affairs of the
corporation shall be managed by its Board of Directors which may exercise all
the powers of the corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2 Number, Method of Election, Terms of Office of Directors: The
number of directors which shall constitute the Board of Directors shall be (1)
unless and until otherwise determined by a vote of a majority of the entire
Board of Directors. Each Director shall hold office until the next annual
meeting of stockholders and until his successor is elected and qualified,
provided, however, that a director may resign at any time. Directors need not
be stockholders.
3.3 Vacancies on Board of Directors; Removal: (a) Any director may
resign his office at any time by delivering his resignation in writing to the
Chairman of the Board or to the President. It will take effect at the time
specified therein or, if no time is specified, it will be effective at the time
of its receipt by the corporation. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
(b) Any vacancy in the authorized number of directors may be
filled by majority vote of the stockholders and any director so chosen shall
hold office until the next annual election of directors by the stockholders and
until his successor is duly elected and qualified or until his earlier
resignation or removal.
(c) Any director may be removed with or without cause at any time
by the majority vote of the stockholders given at a special meeting of the
stockholders called for that purpose.
3.4 Meetings of the Board of Directors: (a) The Board of Directors may
hold their meetings, both regular and special, either within or outside the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required.
If the date designated for any regular meeting be a legal holiday, then the
meeting shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of the stockholders for
the election of officers and the transaction of such other business as may come
before it. If such meeting is held at the place of the stockholders' meeting,
no notice thereof shall be required.
By-Laws-4
<PAGE> 5
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board or the President or
at the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same
not later than the date before the meeting.
Unless required by law, such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting. Any
and all business may be transacted at any meeting of the Board of Directors. No
notice of any adjourned meeting need be given. No notice to or waiver by any
director shall be required with respect to any meeting at which the director is
present.
3.5 Quorum and Action: Unless provided otherwise by law or by the
Certificate of Incorporation or these by-laws, a majority of the Directors
shall constitute a quorum for the transaction of business; but if there shall
be less than a quorum at any meeting of the Board, a majority of those present
may adjourn the meeting from time to time. The vote of a majority of the
Directors present at any meeting at which a quorum is present shall be
necessary to constitute the act of the Board of Directors.
3.6 Presiding Officer and Secretary of the Meeting: The President,
or, in his absence a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officer may appoint
a secretary of the meeting.
3.7 Action by Consent Without Meeting: 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 or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes or proceedings of the Board or committee.
3.8 Action by Telephonic Conference: Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
3.9 Committees: The Board of Directors shall, by resolution or
resolutions passed by a majority of Directors designate one or more committees,
each of such committees to consist of one or more Directors of the Corporation,
for such purposes as the Board shall determine. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of such committee.
By-Laws-5
<PAGE> 6
3.10 Compensation of Directors: Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
ARTICLE IV
OFFICERS
4.1 Officers, Title, Elections, Terms: (a) The elected officers of
the corporation shall be a President, a Treasurer and a Secretary, and such
other officers as the Board of Directors shall deem advisable. The officers
shall be elected by the Board of Directors at its annual meeting following the
annual meeting of the stockholders, to serve at the pleasure of the Board or
otherwise as shall be specified by the Board at the time of such election and
until their successors are elected and qualified.
(b) The Board of Directors may elect or appoint at any time, and
from time to time, additional officers or agents with such duties as it may deem
necessary or desirable. Such additional officers shall serve at the pleasure of
the Board or otherwise as shall be specified by the Board at the time of such
election or appointment. Two or more offices may be held by the same person.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein or, if no time has been specified, at the time of its receipt by the
corporation. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
(e) The salaries of all officers of the corporation shall be
fixed by the Board of Directors.
4.2 Removal of Elected Officers: Any elected officer may be removed
at any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the Directors then
in office.
4.3 Duties: (a) President: The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall supervise and control all the business and affairs of the
corporation. He shall, when present, preside at all meetings of the stockholders
and of the Board of Directors. He shall see that all orders and resolutions of
the Board of Directors are carried into effect (unless any such order or
resolution shall provide otherwise), and in general shall perform all duties
incident to the office
By-Laws - 6
<PAGE> 7
of president and such other duties as may be prescribed by the Board of
Directors from time to time.
(b) Treasurer: The Treasurer shall (1) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(2) receive and give receipts for moneys due and payable to the corporation
from any source whatsoever; (3) deposit all such moneys in the name of the
corporation in such banks, trust companies, or other depositories as shall be
selected by resolution of the Board of Directors; and (4) in general perform
all duties incident to the office of treasurer and such other duties as from
time to time may be assigned to him by the President or by the Board of
Directors. He shall, if required by the Board of Directors, give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties
as the Board of Directors shall determine.
(c) Secretary: The Secretary shall (1) keep the minutes of
the meetings of the stockholders, the Board of Directors, and all committees,
if any, of which a secretary shall not have been appointed, in one or more
books provided for that purpose; (2) see that all notices are duly given in
accordance with the provisions of these by-laws and as required by law; (3) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents, the execution of
which on behalf of the corporation under its seal, is duly authorized; (4) keep
a register of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (5) have general charge of
stock transfer books of the Corporation; and (6) in general perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1 Stock Certificates: (a) 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 President and by the Treasurer or the Secretary,
certifying the number of shares owned by him.
(b) If such certificate is countersigned by a transfer
agent other than the corporation or its employee, or by a registrar other than
the corporation or its employee, the signatures of the officers of the
corporation may be facsimiles, and, if permitted by law, any other signature
may be a facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of issue.
By - Laws - 7
<PAGE> 8
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors, and shall be numbered and registered in the order in which
they were issued.
(e) All certificates surrendered to the corporation shall be
canceled with the date of cancellation, and shall be retained by the Secretary,
together with the powers of attorney to transfer and the assignments of the
shares represented by such certificates, for such period of time as shall be
prescribed from time to time by resolution of the Board of Directors.
5.2 Record Ownership: A record of the name and address of the holder
of such certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the corporation's books. The corporation shall
be entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership: Transfers of stock shall be made
on the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the corporation for
transfer, both the transferor and the transferee request the corporation to do
so.
5.4 Lost, Stolen or Destroyed Certificates: Certificates
representing shares of the stock of the corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time
may authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The
corporation may maintain one or more transfer offices or agencies where stock
of the corporation shall be transferable. The corporation may also maintain one
or more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record:
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in
any case shall be not more than sixty days nor less than ten days before the
date of a meeting of the stockholders, nor more than sixty days prior to any
other action requiring such determination of the stockholders. A determination
of stockholders of record entitled to notice or to vote at a meeting of
stockholders shall apply to any adjournment
By-Laws - 8
<PAGE> 9
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
5.7 Dividends: Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart 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 discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1 Voting: Unless the Board of Directors shall otherwise order, the
President, the Secretary or the Treasurer shall have full power and authority,
on behalf of the corporation, to attend, act and vote at any meeting of the
stockholders of any corporation in which the corporation may hold stock, and at
such meeting to exercise any or all rights and powers incident to the ownership
of such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. The Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2 General Authorization to Transfer Securities Held by the Corporation
(a) Any of the following officers, to wit: the President and the
Treasurer shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidence of indebtedness, or other securities now or hereafter standing in the
name of or owned by the corporation, and to make, execute and deliver, under
the seal of the corporation, any and all written instruments of assignment and
transfer necessary or proper to effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment
and transfer executed pursuant to and in accordance with the foregoing
paragraph (a), a certificate of the Secretary of the corporation in office at
the date of such certificate setting forth the provisions of this Section 6.2
and stating that they are in full force and effect and setting forth the names
of persons who are then officers of the corporation, then all persons to whom
such instrument and annexed certificates shall come, shall be entitled, without
further inquiry or investigation and regardless of the date of such certificate,
to assume and to act in reliance upon the assumption that the shares of stock
or other securities named in such instrument were theretofore duly and properly
transferred, endorsed, sold, assigned, set over and delivered by the
corporation, and that with respect to such securities the authority of these
provisions of the by-laws and of such officers is still in full force and
effect.
By-Laws - 9
<PAGE> 10
ARTICLE VII
MISCELLANEOUS
7.1 Signatories: All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
7.2 Seal: The seal of the corporation shall be in such form and
shall have such content as the Board of Directors shall from time to time
determine.
7.3 Notice and Waiver of Notice: Whenever any notice of the time,
place or purpose of any meeting of the stockholders, directors or a committee
is required to be given under the law of the State of Delaware, the Certificate
of Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the holding
thereof, or actual attendance at the meeting in person or, in the case of any
stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving
of such notice to such persons.
7.4 Indemnity: The corporation shall indemnify its directors,
officers and employees to the fullest extent allowed by law, provided, however,
that it shall be within the discretion of the Board of Directors whether to
advance any funds in advance of disposition of any action, suit or proceeding,
and provided further that nothing in this section 7.4 shall be deemed to
obviate the necessity of the Board of Directors to make any determination that
indemnification of the director, officer or employee is proper under the
circumstances because he has met the applicable standard of conduct set forth
in subsections (a) and (b) of Section 145 of the Delaware General Corporation
Law.
7.5 Fiscal Year: Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the corporation shall end on ____.
By-Laws - 10
<PAGE> 1
EXHIBIT 10
MANUFACTURING AND MARKETING
EXCLUSIVE LICENSE AGREEMENT
This Agreement made the 25th day of August, 1997,
BETWEEN:
DANIEL STONESIFER
an individual
JAMES WHITLEY
an individual
(The "Licensor")
AND:
WHISTLER, INC.
a Corporation incorporated in the
State of Delaware
(The "Licensee")
WHEREAS:
A. The Licensor is the sole owner of proprietary technologies and "Know-how"
related to the Products hereinafter referred to as the "Properties;" and
B. The Licensor warranties that the Trade Secrets related to the Properties,
have been maintained as Trade Secrets and are afforded the protections under
trade secret laws; and
C. The Licensor further warranties that the Properties and the related
Products are free of any lien, encumbrance, joint-ownership, or prior commitment
to a third party;
D. The Licensor wishes to grant and the Licensee desires the exclusive
rights to the Products, including but not limited to the development,
manufacturing, marketing, sale, sublicensing, and any and all usages of the
Products, in the United States and throughout the world;
E. The Licensor wishes to grant and the Licensee desires the exclusive rights
to use the Properties, as well as Licensor's "Know-how", related to the
development, manufacturing, marketing, sale, sublicensing, and usage of the
Products, and any future products derived from the Properties, in the United
States and throughout the world;
<PAGE> 2
NOW THEREFORE, in consideration of the premises and mutual promises, terms and
conditions and other good and valuable considerations, the parties do hereby
agree as follows:
1. DEFINITIONS
For the purposes of the Agreement:
1.1 "Products" shall mean all licensed proprietary property, specified in
Exhibit A1;
1.2 "Properties" shall mean all proprietary intellectual properties,
encompassed in the Trust Secret, set forth in Exhibit A1;
1.3 "Know-how" shall mean secret processes, formulas, trade secrets,
engineering, design, process and operating information, inventions,
developments, technical data and other scientific and technical information
relating to any process or method now owned or controlled by the licensor or
its Affiliate relating in any way to the Products;
1.4 "Confidential Information": shall mean that part of the Technical
Information, whether written or oral which is:
1.41 not publicly known, and
1.42 annotated as "confidential" or "proprietary." Any information
which is not annotated as "confidential" or "proprietary" shall be deemed to be
in the public domain. In addition, "Confidential Information" shall include
information disclosed by either party to the other party in accordance with
(Modifications and/or Improvements of Products):
1.5 "Affiliate" whether of the Licensee or the Licensor, shall mean any
corporation, firm, association or other business owned or controlled
beneficially or directly or indirectly by the Licensee or the Licensor, by its
principal officers, directors, supervisory employees or members of their
families. Ownership of 50% or more of such business by any one of such persons
shall constitute beneficial ownership or control;
1.6 "Manufacturing Cost" shall mean the cost of the "Products" F.O.B. the
Licensee's manufacturing plant at point of shipment;
1.7 "Effective Date" shall mean the later of:
1.72 the date on which Licensor executes this Agreement;
1.73 the date on which Licensee executes this Agreement.
<PAGE> 3
2. Grant of Rights
The Licensor grants the following rights to Licensee:
2.1 Licensed Territory
Exclusive Worldwide Rights: The Licensor grants the Licensee the
exclusive rights to the Products and the Properties in the United States and
throughout the world:
2.2 Grants Related to Licensor's Products, Properties and "Know-how"
2.21 Grants Related to Products. The Licensor grants the Licensee
the exclusive right to the Products, specified in Exhibit A1, including but not
limited to, the Licensee's rights to the development, manufacturing, marketing,
sale, sublicensing, and any and all usages of the Products, in the United States
and throughout the World.
2.22 Grants Related to Properties. The Licensor grants the Licensee
the exclusive right to use the Licensor's Properties, specified in Exhibit A1,
including but not limited to, the Licensee's rights to develop, manufacture,
market, sell and sublicense any and all products, having derived and to be
derived from the Properties, in the United States and throughout the world;
2.23 Grants Related to "Know-how". The Licensor grants the Licensee
the exclusive right to the Licensor's "know-how" trade secrets, and other
technical information, related to the Products and the Properties, to be
conveyed to Licensee in confidence, upon the consummation of this Agreement.
3. Considerations to Licensor
As considerations for the Grants, the Licensee agrees to provide the
Licensor with the following payments:
3.1 Equity Consideration
(i) 88,000 fully paid and non assessable shares of the Licensees'
Common stock with restrictions on sale.
4. Terms and Conditions
4.1 Terms and Conditions Related to the Grants to Licensee
4.11 Development of Technology. The Licensor agrees to assist the
Licensee to conclude the negotiations on technologies under consideration as set
out in Exhibit A1, "Properties."
<PAGE> 4
4.12 Marketing and Manufacturing Perimeters. The Licensee, at its
own costs, shall manufacture and market the Products to potential client firms.
4.13 Best Effort by Licensee. The Licensee agrees to use its best
efforts and all due diligence to promote the sale of the product and other
products derived from the Properties, in all licensed territories;
4.14 Training and Technical Assistance. To assist Licensee in
exercising it rights hereunder, Licensor agrees to provide appropriate training
and technical assistance to Licensee, its employees and its permitted
sublicensee, in order for the Licensee to utilize the licensed technology
appropriately to their full potential. Such training and assistance shall be
provided by Licensor from time to time, for training purposes of Licensee's
facilities. Travel costs, lodging and all related expenses incurred by one
party, in connection with sending its employees or permitted sublicensees to the
other party's location, shall be paid in full by the party requesting the
training or technical assistance. However, the Licensee acknowledges hereunder
that said training obligation of the Licensor may be limited by the availability
of its training and technical personnel;
4.15 When to Disclose "Know-how" by Licensor. Commencing ten (10)
days after the execution of this Agreement, the Licensor agrees to make full
disclosure of its "know-how" to the Licensee's technical personnel, designated
by the Licensee. In addition, the Licensor agrees to promptly inform the
Licensee of any newly developed technical and trade "know-how", which the
Licensee is entitled to record confidentially with any available medium;
4.16 Terms for "Know-how" Disclosure. All disclosures and
instructions shall be made or given at the Licensor's locations, without cost to
the Licensee, provided, however, that at the Licensee's request, the Licensor
may from time to time send one of its qualified personnel for the purpose of
"know-how" disclosure, to the Licensee's location, at the request of the
Licensee, for not more than 15 days, the related costs of which shall be assumed
by the Licensee;
4.17 Confidentiality Maintained by Licensee. All disclosures of the
Licensor's "know-how" shall be confidential and shall be held confidentially by
the Licensee, without disclosure to a third party, and shall remain confidential
for a period of five years. This obligation of non-disclosure shall not apply to
any information, which is already known to the Licensee, at the time of
disclosure, or which is rightfully obtained from a third party without
obligation of confidence, or which is freely available in the public domain.
Licensee agrees that the Licensor has a proprietary interest in its Confidential
Information, provided to the Licensee. During the term of the Agreement and for
five years thereafter, all proprietary disclosures to the Licensee, its agents,
and employees shall be held in strict confidence by Licensee. Licensee shall
disclose the Confidential Information only to its agents and employees, to whom
the dissemination of confidential information is deemed necessary, in order to
properly carry out their duties designated by the Licensee, in its exception of
the License. During the term of this Agreement and for five years thereafter,
Licensee shall not use the Confidential Information, except for the purposes of
exercising its rights and carrying out its duties hereunder. This provision of
the Agreement shall also apply to any consultants or subcontractors of the
Licensee,
<PAGE> 5
that Licensee may engage in connection with its execution of the License.
4.18 Product Quality Maintained by Licensee. In order to comply with
the Licensor's quality control standards, Licensee agrees to maintain the
quality of the Product, adhering to specific quality control standards, in all
aspects of manufacturing, that the Licensor may from time to time communicate
to the Licensee, with respect to certain product;
4.2 Terms and Conditions Related to the Considerations to Licensor
Interim Funding to Licensor. Licensee shall advance funds to the
Licensor, subject to written approval by the Licensee for services required of
the Licensor by the Licensee.
4.3 Other Terms and Conditions
4.31 Ownership of New Product Development. The undersigned mutually
agree to the following ownership rights to new product development:
(a) Joint Ownership. Any invention, protectable by patent,
copyright or other legal proprietary protection, made or conceived during the
term of this Agreement, by one or more employees or consultants of the Licensor
jointly with one or more employees or consultants of the Licensee, shall be
jointly owned, of which the parties agree to grant the license of the related
invention(s) to each other without any payment, royalty or consideration. Title
to all related patents issued shall be jointly owned. All expenses incurred in
obtaining and maintaining such patents, shall be jointly shared. In the event
one of the parties declines to apply for a patent, or alternatively fails to
pay their portion of the patent costs, then the ownership of the patent shall
be held by that party, who wishes to file the patent and assumes the related
expenditures;
(b) Sole Ownership. Any invention, protectable by patent,
copyright or other legal proprietary protection made or conceived solely by the
employees or consultants of either party of the undersigned, shall become the
sole property of such party.
4.32 Right to Assign License Agreement. The Licensor and the Licensee
mutually agree not to assign the explicit rights of the Licensor or the
Licensee, as defined by this Agreement, in whole or part, to a third party,
whether by operation of law or otherwise, without the prior written consent of
the other party, except that either party may assign its rights hereunder to a
successor, subsidiary or affiliated corporation, without releasing the assignor
and the assignee, from the contractual responsibilities, stipulated hereunder.
Any assignment contrary to the terms hereof shall be null and void and of no
force or effect.
4.33 Non-Competition. The Licensor, during the term of this Agreement
agrees not to compete with the Licensee on the Licensed Products;
<PAGE> 6
5. WARRANTIES
5.1 LICENSOR'S WARRANTIES
5.11 Patents Maintained. The Licensor warranties that the
Patents and Patent Applications, related to the Properties, are current,
updated, and properly maintained with respective patent agencies, with
jurisdiction over the Patent and Patent Applications; and
5.12 Properties Without Other Commitment. The Licensor
further warranties that the properties and the related Products are free of any
lien, encumbrance, joint-ownership, or prior commitment to a third party.
5.13 No Knowledge of Third Party Claims. Licensor represents
and warrants to Licensee that Licensor knows of no claim by any third party of
infringement by Licensor on such party's trademark, copyright, trade secret or
any other intellectual property rights in the Territory of the Licensee.
5.2 LICENSEE'S WARRANTIES
5.21 Lawful Corporation. The Licensee is a lawful U.S.
Corporation incorporated in the State of Delaware.
6. DEFENSE OF LICENSED INTELLECTUAL PROPERTIES
Pertaining to the infringement of patented licensed technology by a
third party, the Licensor of the technology and the Licensee shall together
determine whether to take any and all actions, legal or otherwise, which are
necessary to:
6.1 terminate infringements of any part of the Licensed
Products; or
6.2 terminate any attempt of imitation of any of the
Licensed Products, including without limitation, obtaining damages, injunction
and all other appropriate relief.
The legal costs of said intellectual property defense shall be
the responsibility of the Licensee and said Licensor. In addition, if the
defense is successful and damages are awarded by the court related to the
infringement, such damage award shall be shared equally between the Licensor
and the Licensee. However, if for any reason or for no reason, a party of the
undersigned elects not to incur the expenditure of the legal defense, and the
other party elects to carry solely said expenditure, then accordingly, the
damage award, if any, shall be received by the party which has incurred the
expenditure of the defense.
<PAGE> 7
7. INDEMNITY
7.1 Indemnity by Licensor
7.11 Except as provided in subsection 7.12 below, Licensor of the
technology shall defend and indemnify Licensee from and against any damages,
liabilities, costs and expenses, including reasonable attorney's fees and court
costs, arising out of any claim, involving Licensee's usages of the Licensed
Products, or manufacturing of the products, which infringe a valid intellectual
property right, or which represent a misappropriation of a trade secret of a
third party; provided, however, that:
7.11a Licensee shall have promptly submitted to said Licensor
the related written notice of infringement, along with reasonable cooperation,
information and assistance from the Licensee, in connection with the case; and
7.11b The said Licensor shall have sole control and authority
with respect to the defense settlement, or compromise thereof;
7.12 The said Licensor shall have no liability or obligation to
Licensee under this Article with respect to any claim based upon:
7.12a Use of Products by Licensee, its sublicensees or its
customers in an application or environment for which such Products were not
designed or contemplated; or
7.12b Modifications and/or improvements of the Products
introduced by Licensee, its permitted sublicensees or its customers.
7.13 In the event a claim is based partially on an indemnified claim,
described in subsection 7.11, and partially on an non-indemnified claim
described in subsection 7.12, any payments and reasonable legal fees incurred in
connection with such claim are to be apportioned between the parties in
accordance with the degree of cause attributable to each party.
7.2 Indemnity by Licensee
7.21 Indemnity for Products. Licensee shall defend and indemnify
Licensor of the technology from and against any damages, liabilities, costs and
expenses, including any reasonable legal fee and court cost, arising out of
injuries or damages caused by the Product, which are not attributable to faulty
materials or workmanship in the manufacture, or the assembly of the Products by
the said Licensor and by the Licensee;
7.22 Offering Related Indemnity. The Licensee hereunder agrees to
indemnify and hold harmless the said Licensor, against any and all losses,
claims, damages, liabilities and expenses, including any litigation arising
from the Licensee's Offering, or involving the subject matter hereof, including
but not limited to litigation by the shareholders of the Licensee, upon the
fulfillment of the Licensor's contractual duties, except for willful default
<PAGE> 8
of negligence perpetrated by the Licensor, involving this Agreement. The
Licensee agrees to assume the sole responsibility toward its involvement in all
matters relating to the Offering.
8. DURATION AND TERMINATION
8.1 TERMS OF AGREEMENT
The Licensor shall offer the Grants to the Licensee, for a period of
ten (10) years, with automatic renewal each year thereafter, subject to written
notification, sixty (60) days in advance to the renewal, by both parties of the
undersigned.
8.2 TERMINATION FOR CAUSE
This Agreement may be terminated by a party of the undersigned, by
serving written notice of termination to the other party, which shall become
immediately effective upon the documented receipt of such notice of termination,
after the occurrence of any of the following events, unless a mutual remedy is
reached, by both parties of the undersigned in writing, to obviate the
termination, within ninety (90) days from the date of receipt of the notice by a
served party:
8.21 a material breach or default as to any obligation, specified
hereunder, by the Licensee or the Licensor, and the failure of the notified
party to promptly pursue a reasonable remedy to cure such material breach or
default; or
8.22 the filing of a petition in bankruptcy, insolvency or
reorganization by the Licensee or the Licensor, or the Licensee or Licensor
becoming the subject to a competition for creditors, whether by law or
agreement, or the Licensee or the Licensor going into receivership or otherwise
becoming insolvent; or
8.23 in the event of liquidation, caused by insolvency, the Licensor
and the Licensee hereunder agree to give the first right of refusal to acquire
the liquidation properties of the other, subject to the rulings of the court on
this matter.
8.3 AFTER TERMINATION OR EXPIRY
The parties hereto agree to the following conditions, once this
Agreement is terminated or expires:
8.31 Terminate Usage of Products and Properties by Licensee. Licensee
shall cease any use or practice of the Licensed Products and other products
involving the Properties; and upon termination or expiration of this Agreement,
all sublicenses granted by Licensee during the term of this Agreement shall
terminate. Licensee shall, at its own expense, return to Licensor all
Confidential Information as soon as practicable after the date of such
termination, including original documents, drawings, computer diskettes, models,
samples, notes, reports, notebooks, letters, manuals, prints, memoranda and any
copies which have been received by Licensee. All such Confidential Information
shall remain the exclusive property of Licensor
<PAGE> 9
during the term of this Agreement and for five (5) years thereafter.
8.22 Payment Obligations for Unpaid Consideration to Licensor. Upon
termination of this Agreement, nothing shall be construed to release Licensee
from its obligations to pay Licensor any and all royalties or other accrued
but unpaid considerations due Licensor, incurred prior to the date of such
termination or expiration.
9. DISPUTE RESOLUTION
The Licensor and the Licensee agree mutually hereunder to submit any and
all unresolved disputes, related to this Agreement, firstly, to the American
Arbitration Board (or to a licensed arbitrator mutually agreed on by both
parties) and abide by the binding resolution of said arbitration. The venue, if
any, of said arbitration board shall reside in the State of Delaware. Since the
offices of the Licensor and the Licensee are situated at a considerable distance
from each other, to conserve time and costs, the Licensor and the Licensee agree
herein to conduct said arbitration by video conferencing, if permitted by the
arbitrator. The non-prevailing party in said arbitration shall be responsible
for the costs directly incurred by the arbitration, including but not limited to
the arbitrator's fees and telecommunication fees. In addition, the Licensor and
the Licensee agree mutually herein that any dispute arising from the Agreement
is limited to the compensatory (not punitive) considerations of this Agreement,
unless the disputes arise from some anticipated factors based on criminal
negligence or criminal act committed by a party, or malicious and egregious
refusal to participate in the dispute arbitration by a party, in which case the
ruling of a competent court with jurisdiction over the matter shall be binding.
In the unlikely eventuality of the requirement of a court ruling, the venue of
said court action shall reside in the state of Delaware or alternatively, in the
city where the Licensee has its primary business. In said case, the ruling of a
competent court, in said venue, with jurisdiction over the matter shall be
binding.
10. SEVERABILITY
If any provision of this Agreement is held in whole or in part to be
unenforceable for any reason, the Licensor and the Licensee agree hereunder to
notify the other party immediately of said unenforceable provision(s) in the
Agreement, and to modify this Agreement accordingly to the benefit and consent
of both parties. Furthermore, if any provision of this Agreement is declared
invalid or unenforceable by a court having competent jurisdiction, it is
mutually agreed that this Agreement shall endure except for the part declared
invalid or unenforceable by order of such court. The parties shall consult and
use their best efforts to agree upon a valid and enforceable provision which
shall be a reasonable substitute for such invalid or unenforceable provision in
light of the intent of this Agreement.
11. FORCE MAJEURE
11.1 Either the Licensee or the Licensor shall be released from its
obligations, hereunder to the extent that performance thereof is delayed,
hindered or prevented by Force Majeure as defined below, provided that the
party claiming hereunder shall notify the other with
<PAGE> 10
all possible speed specifying the cause and probable duration of the delay or
non-performance and shall minimize the effects of such delay or non-performance.
11.2 Force Majeure means any circumstances beyond the reasonable control
of the affected party;
11.3 Without prejudice to the generality of Section 10.12? and without
being thereby limited, force majeure includes any one or more of the following:
acts of restraints of governments or public authorities; wars, revolutions,
riot or civil commotion, strikes, lockouts or other industrial action; failure
of supplies of power or fuel; damage to the premises or storage facilities by
explosion, fire, corrosion, ionizing radiation, radio-active contamination,
flood, natural disaster, malicious or negligent act of accident; and breakdown
or failure of equipment whether of the affected party or others.
12. ENTIRE AGREEMENT, NO OTHER RELATION, COUNTERPARTS
This Agreement contains the entire Agreement between the Licensor and the
Licensee. No other agreement, or promise made or before the effective date of
the Agreement will be binding on the parties. No modification or addendum
to this Agreement is valid, unless mutually endorsed and dated by both parties.
Nothing contained herein shall be deemed to create a joint venture, agency or
partnership relationship between the parties hereto. Neither party shall have
any power to enter into any contracts or commitments in the name of or on
behalf of the other party, or to bind the other party in any respect
whatsoever, in business outside of this Agreement. This Agreement may be
executed in any number of counterparts and by a different party hereto on
separate counterparts, each of which, when so executed, shall be deemed to be
original and all of which, when taken together, shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, the Licensor and the Licensee have executed this Agreement
on the day the year first above-written.
BY: /s/ DANIEL STONESIFER Dated 8/25/97
----------------------------------- ------------------
Daniel Stonesifer, an Individual
BY: /s/ JAMES WHITLEY Dated 8/25/97
----------------------------------- ------------------
James Whitley, and Individual
BY: /s/ DANIEL STONESIFER Dated 8/25/97
----------------------------------- ------------------
Whistler, Inc.
Daniel Stonesifer, President,
Director
BY: /s/ JAMES WHITLEY Dated 8/25/97
----------------------------------- ------------------
Whistler, Inc.
James Whitley, Treasurer, Director
<PAGE> 11
LIST OF EXHIBITS
EXHIBIT A1 Description
<PAGE> 12
EXHIBIT. A1
Description of Properties
Grease and food waste recycling process combining a unique processing and
reprocessing system for grease and food waste treatment, sterilization, and
component separation. The final reprocessing phase incorporates a trade secret
design.
The Licensor's grease and food waste recycling processes, formula,
engineering, design, operating procedures, developments, technical data and
other scientific, engineering and technical information relating to any process
or method shall remain a trade secret.
<PAGE> 1
EXHIBIT 23
[BARRY L. FRIEDMAN, P.C. LETTERHEAD]
Certified Public Accountant
To Whom It May Concern:
April 9, 2000
1582 Tulita Dr. OFFICE (702) 361-8414
Las Vegas, NEVADA 89123 FAX NO. (702) 896-0278
The firm of Barry L. Friedman, P.C., Certified Public Accountant consents
to the inclusion of their report of April 5, 2000, on the Financial Statements
of Whistler, Inc., as of March 31, 2000, in any filings that are necessary now
or in the near future with the U.S. Securities and Exchange Commission.
Very truly yours,
/s/ BARRY L. FRIEDMAN
- -------------------------------
Barry L. Friedman
Certified Public Accountant
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AUDITED
FINANCIAL STATEMENTS FOR YEAR ENDING MARCH 31, 2000, 1999, AND 1998 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH WHISTLER, INC. 10-SB.
</LEGEND>
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR YEAR YEAR
<FISCAL-YEAR-END> MAR-31-2000 MAR-31-1999 MAR-31-1998
<PERIOD-START> APR-01-1999 APR-01-1998 APR-01-1997
<PERIOD-END> MAR-31-2000 MAR-31-1999 MAR-31-1998
<CASH> 8,400 8,400 8,400
<SECURITIES> 0 0 0
<RECEIVABLES> 0 0 0
<ALLOWANCES> 0 0 0
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 8,400 8,400 8,400
<PP&E> 0 0 0
<DEPRECIATION> 0 0 0
<TOTAL-ASSETS> 8,400 8,400 8,400
<CURRENT-LIABILITIES> 0 0 0
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 8,874 2 2
<OTHER-SE> (474) 8,398 8,398
<TOTAL-LIABILITY-AND-EQUITY> 8,400 8,400 8,400
<SALES> 0 0 0
<TOTAL-REVENUES> 0 0 0
<CGS> 0 0 0
<TOTAL-COSTS> 0 0 0
<OTHER-EXPENSES> 0 0 (8,800)
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 0 0 0
<INCOME-PRETAX> 0 0 (8,800)
<INCOME-TAX> 0 0 0
<INCOME-CONTINUING> 0 0 (8,800)
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 0 0 (8,800)
<EPS-BASIC> .00 .00 .001
<EPS-DILUTED> .00 .00 .001
</TABLE>
