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 (g) of
the Securities Exchange Act of 1934
HERCULES ACQUISITION CORPORATION
-----------------------------
(Name of Small Business Issuer)
Delaware 52-2257555
----------------------------- -----------------------------------
(State or Other Jurisdiction of I.R.S. Employer Identification Number
Incorporation or Organization)
1504 R Street, N.W., Washington, D.C. 20009
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(Address of Principal Executive Offices including Zip Code)
202/387-5400
_____________
(Issuer's Telephone Number)
Securities to be Registered Under Section 12(b) of the Act: None
Securities to be Registered Under Section 12(g) of the Act: Common Stock
$.0001 Par Value
(Title of Class)
PART I
ITEM 1. BUSINESS.
Hercules Acquisition Corporation ("Hercules") was
incorporated on March 24, 1999 under the laws of the State of
Delaware to engage in any lawful corporate undertaking, including,
but not limited to, selected mergers and acquisitions. Hercules has
been in the developmental stage since inception and its operations
to date have been limited to issuing shares to its original
shareholders and filing this registration statement.
Hercules will attempt to locate and negotiate with a
business entity for the combination of that target company with
Hercules. The combination will normally take the form of a merger,
stock-for-stock exchange or stock-for-assets exchange. In most
instances the target company will wish to structure the business
combination to be within the definition of a tax-free reorganization
under Section 351 or Section 368 of the Internal Revenue Code of
1986, as amended.
No assurances can be given that Hercules will be successful
in locating or negotiating with any target company.
Hercules has been formed to provide a method for a foreign
or domestic private company to become a reporting company with a
class of securities registered under the Securities Exchange Act of
1934, as amended ("the Exchange Act")
ASPECTS OF A REPORTING COMPANY
There are certain perceived benefits to being a reporting
company. These are commonly thought to include the following:
* increased visibility in the financial community;
* provision of information required under Rule 144
for trading of eligible securities;
* compliance with a requirement for admission to
quotation on the NASD OTC Bulletin Board or on the
Nasdaq SmallCap Market;
* the facilitation of borrowing from financial
institutions;
* improved trading efficiency;
* shareholder liquidity;
* greater ease in subsequently raising capital;
* compensation of key employees through stock options
for which there may be a market valuation;
* enhanced corporate image.
There are also certain perceived disadvantages to being a
reporting company. These are commonly thought to include the
following:
* requirement for audited financial statements;
* required publication of corporate information;
* required filings of periodic and episodic reports
with the Securities and Exchange Commission;
* increased rules and regulations governing
management, corporate activities and shareholder
relations.
COMPARISON WITH INITIAL PUBLIC OFFERING
Certain private companies may find a business combination
more attractive than an initial public offering of their securities.
Reasons for this may include the following:
* inability to obtain an underwriter;
* possible larger costs, fees and expenses of a
public offering;
* possible delays in the public offering process;
* greater dilution of outstanding securities.
Certain private companies may find a business combination
less attractive than an initial public offering of their securities.
Reasons for this may include the following:
* no investment capital raised through a business
combination;
* no underwriter support of after-market trading.
POTENTIAL TARGET COMPANIES
A business entity, if any, which may be interested in a
business combination with Hercules may include the following:
* a company for which a primary purpose of becoming
public is the use of its securities for the
acquisition of assets or businesses;
* a company which is unable to find an underwriter of
its securities or is unable to find an underwriter
of securities on terms acceptable to it;
* a company which wishes to become public with less
dilution of its common stock than would occur upon
an underwriting;
* a company which believes that it will be able to
obtain investment capital on more favorable terms
after it has become public;
* a foreign company which may wish an initial entry
into the United States securities market;
* a special situation company, such as a company
seeking a public market to satisfy redemption
requirements under a qualified Employee Stock
Option Plan;
* a company seeking one or more of the other
perceived benefits of becoming a public company.
A business combination with a target company will normally
involve the transfer to the target company of the majority of the
issued and outstanding common stock of Hercules and the substitution
by the target company of its own management and board of directors.
No assurances can be given that Hercules will be able to
enter into any business combination, as to the terms of a business
combination, or as to the nature of a target company.
The proposed business activities described herein classify
Hercules as a "blank check" company. The Securities and Exchange
Commission and certain states have enacted statutes, rules and
regulations limiting the public sale of securities of blank check
companies. Hercules will not make any efforts to cause a market to
develop in its securities until such time as Hercules has
successfully implemented its business plan and it is no longer
classified as a blank check company.
Hercules is voluntarily filing this registration statement
with the Securities and Exchange Commission and is under no
obligation to do so under the Exchange Act. Hercules will continue
to file all reports required of it under the Exchange Act until a
business combination has occurred. A business combination will
normally result in a change in control and management of Hercules.
Since a principal benefit of a business combination with Hercules
would normally be considered its status as a reporting company, it
is anticipated that Hercules will continue to file reports under the
Exchange Act following a business combination. No assurance can be
given that this will occur or, if it does, for how long.
James M. Cassidy is the sole officer and director of
Hercules and the sole shareholder of Pierce Mill Associates, Inc.,
the sole shareholder of Hercules. Hercules has no employees nor are
there any other persons than Mr. Cassidy who devote any of their
time to its affairs. Mr. Cassidy will not begin any services for
Hercules until after the effective date of this registration
statement. All references herein to management of Hercules are to
Mr. Cassidy. The inability at any time of Mr. Cassidy to devote
sufficient attention to Hercules could have a material adverse
impact on its operations.
GLOSSARY
"Blank check" company As used herein, a "blank check"
company is a development stage company
that has no specific business plan or
purpose or has indicated that its
business plan is to engage in a merger
or acquisition with an unidentified
company or companies.
Business combination Normally a merger, stock-for-stock
exchange or stock-for-assets exchange
between the Registrant and the target
company or the shareholders of the
target company.
Hercules or The corporation whose common stock is
the Registrant the subject of this registration
statement.
Exchange Act The Securities Exchange Act of 1934,
as amended.
Securities Act The Securities Act of 1933, as amended.
RISK FACTORS
The business of Hercules is subject to numerous risk
factors, including the following:
HERCULES HAS NO OPERATING HISTORY NOR REVENUE AND MINIMAL
ASSETS AND OPERATES AT A LOSS. Hercules has had no operating
history nor any revenues or earnings from operations. Hercules has
no significant assets or financial resources. Hercules has
sustained losses to date and will, in all likelihood, continue to
sustain expenses without corresponding revenues, at least until the
consummation of a business combination. See PART F/S "FINANCIAL
STATEMENTS". Rock Creek Capital Corporation, a company affiliated
with management, has agreed to pay all expenses incurred by Hercules
until a business combination is effected, without repayment. There
is no assurance that Hercules will ever be profitable.
COMPANY HAS ONLY ONE DIRECTOR AND ONE OFFICER. The sole
officer of Hercules is James M. Cassidy who is also its sole
director and the sole shareholder of Pierce Mill Associates, Inc.,
the sole shareholder of Hercules. Because management consists of
only one person, Hercules does not benefit from multiple judgments
that a greater number of directors or officers would provide and
Hercules will rely completely on the judgment of its sole officer
and director when selecting a target company. Mr. Cassidy
anticipates devoting only a limited amount of time per month to the
business of Hercules and will not begin any services for Hercules
until after the effective date of the registration statement. Mr.
Cassidy has not entered into a written employment agreement with
Hercules and he is not expected to do so. Hercules has not obtained
key man life insurance on Mr. Cassidy. The loss of the services of
Mr. Cassidy would adversely affect development of the business of
Hercules and its likelihood of commencing operations.
CONFLICTS OF INTEREST. Mr. Cassidy, the president of
Hercules, participates in other business ventures which may compete
directly with Hercules. Additional conflicts of interest and
non-arms length transactions may also arise in the future. Hercules
has adopted a policy that it will not enter into a business
combination with any entity in which any member of management serves
as an officer, director or partner, or in which such person or such
person's affiliates or associates hold any ownership interest. The
terms of a business combination may include such terms as Mr.
Cassidy remaining a director or officer of Hercules and/or the
continuing securities or other legal work of Hercules being handled
by the law firm of which Mr. Cassidy is the principal. The terms of
a business combination may provide for a payment by a target company
in cash or otherwise to Pierce Mill Associates, Inc. for the
purchase or retirement of all or part of its common stock of
Hercules or to Rock Creek Capital Corporation for services rendered
incident to or following a business combination. Mr. Cassidy would
directly benefit from such employment or payment. Such benefits may
influence Mr. Cassidy's choice of a target company. The Certificate
of Incorporation of Hercules provides that Hercules may indemnify
officers and/or directors of Hercules for liabilities, which can
include liabilities arising under the securities laws. Assets of
Hercules could be used or attached to satisfy any liabilities
subject to such indemnification. See "ITEM 5. DIRECTORS,
EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS--Conflicts of
Interest."
THE PROPOSED OPERATIONS OF HERCULES ARE SPECULATIVE. The
success of the proposed business plan of Hercules will depend to a
great extent on the operations, financial condition and management
of the identified target company. While business combinations with
entities having established operating histories are preferred, there
can be no assurance that Hercules will be successful in locating
candidates meeting such criteria. The decision to enter into a
business combination will likely be made without detailed
feasibility studies, independent analysis, market surveys or similar
information which, if Hercules had more funds available to it, would
be desirable. In the event Hercules completes a business
combination the success of its operations will be dependent upon
management of the target company and numerous other factors beyond
the control of Hercules. There is no assurance that Hercules can
identify a target company and consummate a business combination.
PURCHASE OF PENNY STOCKS CAN BE RISKY. In the event that a
public market develops for the securities of Hercules following a
business combination, such securities may be classified as a penny
stock depending upon their market price and the manner in which they
are traded. The Securities and Exchange Commission has adopted Rule
15g-9 which establishes the definition of a "penny stock", for
purposes relevant to Hercules, 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 whose securities are admitted to
quotation but do not trade on the Nasdaq SmallCap Market or on a
national securities exchange. For any transaction involving a penny
stock, unless exempt, the rules require delivery by the broker of a
document to investors stating the risks of investment in penny
stocks, the possible lack of liquidity, commissions to be paid,
current quotation and investors' rights and remedies, a special
suitability inquiry, regular reporting to the investor and other
requirements. Prices for penny stocks are often not available and
investors are often unable to sell such stock.
THERE IS A SCARCITY OF AND COMPETITION FOR BUSINESS
OPPORTUNITIES AND COMBINATIONS. Hercules is and will continue to be
an insignificant participant in the business of seeking mergers with
and acquisitions of business entities. A large number of
established and well-financed entities, including venture capital
firms, are active in mergers and acquisitions of companies which may
be merger or acquisition target candidates for Hercules. Nearly all
such entities have significantly greater financial resources,
technical expertise and managerial capabilities than Hercules and,
consequently, Hercules will be at a competitive disadvantage in
identifying possible business opportunities and successfully
completing a business combination. Moreover, Hercules will also
compete with numerous other small public companies in seeking merger
or acquisition candidates.
THERE IS NO AGREEMENT FOR A BUSINESS COMBINATION AND NO
MINIMUM REQUIREMENTS FOR BUSINESS COMBINATION. As of the original
filing date of this registration statement, Hercules had no current
arrangement, agreement or understanding with respect to engaging in
a business combination with a specific entity. Hercules does not
intend to enter into a business combination until after the
effective date of this registration statement. There can be no
assurance that Hercules will be successful in identifying and
evaluating suitable business opportunities or in concluding a
business combination. No particular industry or specific business
within an industry has been selected for a target company. Hercules
has not established a specific length of operating history or a
specified level of earnings, assets, net worth or other criteria
which it will require a target company to have achieved, or without
which Hercules would not consider a business combination with such
business entity. Accordingly, Hercules may enter into a business
combination with a business entity having no significant operating
history, losses, limited or no potential for immediate earnings,
limited assets, negative net worth or other negative
characteristics. There is no assurance that Hercules will be able
to negotiate a business combination on terms favorable to Hercules.
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION.
Pursuant to the requirements of Section 13 of the Exchange Act,
Hercules is required to provide certain information about
significant acquisitions including audited financial statements of
the acquired company. These audited financial statements normally
must be furnished within 75 days following the effective date of a
business combination. Obtaining audited financial statements are
the economic responsibility of the target company. The additional
time and costs that may be incurred by some potential target
companies to prepare such financial statements may significantly
delay or essentially preclude consummation of an otherwise desirable
acquisition by Hercules. Acquisition prospects that do not have or
are unable to obtain the required audited statements may not be
appropriate for acquisition so long as the reporting requirements of
the Exchange Act are applicable. Notwithstanding a target company's
agreement to obtain audited financial statements within the required
time frame, such audited financial statements may not be available
to Hercules at the time of effecting a business combination. In
cases where audited financial statements are unavailable, Hercules
will have to rely upon information that has not been verified by
outside auditors in making its decision to engage in a transaction
with the business entity. This risk increases the prospect that a
business combination with such a target company might prove to be an
unfavorable one for Hercules.
LACK OF MARKET RESEARCH OR MARKETING ORGANIZATION. Hercules
has neither conducted, nor have others made available to it, market
research indicating that demand exists for the transactions
contemplated by Hercules. Even in the event demand exists for a
transaction of the type contemplated by Hercules, there is no
assurance Hercules will be successful in completing any such
business combination.
REGULATION UNDER INVESTMENT COMPANY ACT. In the event
Hercules engages in business combinations which result in Hercules
holding passive investment interests in a number of entities,
Hercules could be subject to regulation under the Investment Company
Act of 1940. Passive investment interests, as used in the
Investment Company Act, essentially means investments held by
entities which do not provide management or consulting services or
are not involved in the business whose securities are held. In such
event, Hercules would be required to register as an investment
company and could be expected to incur significant registration and
compliance costs. Hercules has obtained no formal determination
from the Securities and Exchange Commission as to the status of
Hercules under the Investment Company Act of 1940. Any violation of
such Act could subject Hercules to material adverse consequences.
PROBABLE CHANGE IN CONTROL AND MANAGEMENT. A business
combination involving the issuance of the common stock of Hercules
will, in all likelihood, result in shareholders of a target company
obtaining a controlling interest in Hercules. As a condition of the
business combination agreement, Pierce Mill Associates, Inc., the
sole shareholder of Hercules, may agree to sell, transfer or retire
all or a portion of its common stock of Hercules to provide the
target company with all or majority control. The resulting change
in control of Hercules will likely result in removal of the present
officer and director of Hercules and a corresponding reduction in or
elimination of his participation in the future affairs of Hercules.
POSSIBLE DILUTION OF VALUE OF SHARES UPON BUSINESS
COMBINATION. A business combination normally will involve the
issuance of a significant number of additional shares. Depending
upon the value of the assets acquired in such business combination,
the per share value of the common stock of Hercules may increase or
decrease, perhaps significantly.
TAXATION. Federal and state tax consequences will, in all
likelihood, be major considerations in any business combination
Hercules may undertake. Currently, such transactions may be
structured so as to result in tax-free treatment to both companies,
pursuant to various federal and state tax provisions. Hercules
intends to structure any business combination so as to minimize the
federal and state tax consequences to both Hercules and the target
company; however, there can be no assurance that such business
combination will meet the statutory requirements of a tax-free
reorganization or that the parties will obtain the intended tax-free
treatment upon a transfer of stock or assets. A non-qualifying
reorganization could result in the imposition of both federal and
state taxes which may have an adverse effect on both parties to the
transaction.
ITEM 2. PLAN OF OPERATION.
SEARCH FOR TARGET COMPANY
Hercules has entered into an agreement with Rock Creek
Capital Corporation to supervise the search for target companies as
potential candidates for a business combination. The agreement will
continue until such time as Hercules has effected a business
combination. Rock Creek Capital Corporation has agreed to pay all
expenses of Hercules until such time as a business combination is
effected, without repayment. James M. Cassidy, who is the sole
officer and director of Hercules, is the sole officer and director
and sole shareholder of Rock Creek Capital Corporation.
Rock Creek Capital Corporation may only locate potential
target companies for Hercules and is not authorized to enter into
any agreement with a potential target company binding Hercules. The
agreement between Hercules and Rock Creek Capital Corporation is not
exclusive and Rock Creek Capital Corporation has entered into
agreements with other companies similar to Hercules. Rock Creek
Capital Corporation may provide assistance to target companies
incident to and following a business combination, and receive
payment for such assistance from target companies.
Pierce Mill Associates, Inc. owns 1,000,000 shares of the
common stock of Hercules for which it paid $100, or $.0001 par
value, per share.
Rock Creek Capital Corporation has entered, and anticipates
that it will enter, into agreements with consultants to assist it in
locating a target company and may share stock received by it or an
affiliate in Hercules with, or grant options on such stock to, such
referring consultants and may make payment to such consultants from
its own resources. There is no minimum or maximum amount of stock,
options, or cash that Rock Creek Capital Corporation may grant or
pay to such consultants. Rock Creek Capital Corporation is solely
responsible for the costs and expenses of its activities in seeking
a potential target company, including any agreements with
consultants, and Hercules has no obligation to pay any costs
incurred or negotiated by Rock Creek Capital Corporation.
Rock Creek Capital Corporation may seek to locate a target
company through solicitation. Such solicitation may include
newspaper or magazine advertisements, mailings and other
distributions to law firms, accounting firms, investment bankers,
financial advisors and similar persons, the use of one or more World
Wide Web sites and similar methods. If Rock Creek Capital
Corporation engages in solicitation, no estimate can be made as to
the number of persons who may be contacted or solicited. Rock Creek
Capital Corporation expects to rely primarily on consultants in the
business and financial communities for referrals of potential target
companies. Rock Creek Capital Corporation regularly engages in
discussions with consultants and potential target companies.
However, there is no assurance that Rock Creek Capital Corporation
will locate a target company to recommend for a business combination.
James M. Cassidy is the principal of Cassidy & Associates, a
Washington, D.C. law firm specializing in securities and corporate
law, and as such, is regularly in communication with numerous
persons, including corporate officers, attorneys, accountants,
financial advisors, brokers, dealers, investment counselors,
financial advisors and others. Some of these individuals may be
interested in utilizing the services of the law firm for their
companies or clients in regard to a wide variety of possible
securities-related work including mergers, acquisitions, initial
public offerings, stock distributions, incorporations, or other
activities. Certain of the companies or clients represented by
these persons may develop over time into possible target companies.
In addition, Rock Creek Capital Corporation has contact with many
consultants, accountants, attorneys, brokers, investment bankers,
businessmen, financial advisors and others who work with businesses
which may desire to go public. From time to time such contacts may
refer their contacts, clients, acquaintances and others to Rock
Creek Capital Corporation as potential target companies.
MANAGEMENT OF HERCULES
Hercules has no full time employees. James M. Cassidy is
the sole officer of Hercules and its sole director. Mr. Cassidy is
also the sole shareholder of Pierce Mill Associates, Inc., the sole
shareholder of Hercules. Mr. Cassidy, as president of Hercules, has
agreed to allocate a limited portion of his time to the activities
of Hercules after the effective date of the registration statement
without compensation. Potential conflicts may arise with respect to
the limited time commitment by Mr. Cassidy and the potential demands
of the activities of Hercules.
The amount of time spent by Mr. Cassidy on the activities of
Hercules is not predictable. Such time may vary widely from an
extensive amount when reviewing a target company and effecting a
business combination to an essentially quiet time when activities of
management focus elsewhere. It is impossible to predict the amount
of time Mr. Cassidy will actually be required to spend to review a
suitable target company. Mr. Cassidy estimates that the business
plan of Hercules can be implemented by devoting approximately 10 to
25 hours per month over the course of several months but such figure
cannot be stated with precision. Mr. Cassidy will not perform any
services on behalf of Hercules until after the effective date of
this registration statement.
GENERAL BUSINESS PLAN
The purpose of Hercules is to seek, investigate and, if such
investigation warrants, acquire an interest in a business entity
which desires to seek the perceived advantages of a corporation
which has a class of securities registered under the Exchange Act.
Hercules will not restrict its search to any specific business,
industry, or geographical location and Hercules may participate in a
business venture of virtually any kind or nature. Management
anticipates that it will be able to participate in only one
potential business venture because Hercules has nominal assets and
limited financial resources. See PART F/S, "FINANCIAL STATEMENTS."
This lack of diversification should be considered a substantial
risk to the shareholders of Hercules because it will not permit
Hercules to offset potential losses from one venture against gains
from another.
Hercules may seek a business opportunity with entities which
have recently commenced operations, or which wish to utilize the
public marketplace in order to raise additional capital in order to
expand into new products or markets, to develop a new product or
service, or for other corporate purposes.
Hercules anticipates that the selection of a business
opportunity in which to participate will be complex and extremely
risky. Hercules has not conducted any research to confirm that
there are business entities seeking the perceived benefits of a
reporting corporation. Such perceived benefits may include
facilitating or improving the terms on which additional equity
financing may be sought, providing liquidity for incentive stock
options or similar benefits to key employees, increasing the
opportunity to use securities for acquisitions, providing liquidity
for shareholders and other factors. Business opportunities may be
available in many different industries and at various stages of
development, all of which will make the task of comparative
investigation and analysis of such business opportunities difficult
and complex.
Hercules has, and will continue to have, no capital with
which to provide the owners of business entities with any cash or
other assets. However, Hercules offers owners of acquisition
candidates the opportunity to acquire a controlling ownership
interest in a reporting company without the time required to become
a reporting company by other means. Hercules has not conducted
market research and is not aware of statistical data to support the
perceived benefits of a business combination for the owners of a
target company.
The analysis of new business opportunities will be
undertaken by, or under the supervision of, the officer and director
of Hercules, who is not a professional business analyst. In
analyzing prospective business opportunities, Hercules may consider
such matters as the available technical, financial and managerial
resources; working capital and other financial requirements; history
of operations, if any; prospects for the future; nature of present
and expected competition; the quality and experience of management
services which may be available and the depth of that management;
the potential for further research, development, or exploration;
specific risk factors not now foreseeable but which then may be
anticipated to impact the proposed activities of Hercules; the
potential for growth or expansion; the potential for profit; the
perceived public recognition or acceptance of products, services, or
trades; name identification; and other relevant factors. This
discussion of the proposed criteria is not meant to be restrictive
of the virtually unlimited discretion of Hercules to search for and
enter into potential business opportunities.
Hercules is subject to the reporting requirements of the
Exchange Act. Included in these requirements is the duty of
Hercules to file audited financial statements as part of or within
60 days following the due date for filing its Current Report on Form
8-K reporting a business combination which is required to be filed
with the Securities and Exchange Commission within 15 days following
the completion of a transaction. Hercules intends to acquire or
merge with a company for which audited financial statements are
available or for which it believes audited financial statements can
be obtained within the required period of time. Hercules may
reserve the right in the documents for the business combination to
void the transaction if the audited financial statements are not
timely available or if the audited financial statements provided do
not conform to the representations made by the target company.
Hercules will not restrict its search for any specific kind
of business entities, but may acquire a venture which is in its
preliminary or development stage, which is already in operation, or
in essentially any stage of its business life. It is impossible to
predict at this time the status of any business in which Hercules
may become engaged, whether such business may need to seek
additional capital, may desire to have its shares publicly traded,
or may seek other perceived advantages which Hercules may offer.
Following a business combination Hercules may benefit from
the services of others in regard to accounting, legal services,
underwritings and corporate public relations. If requested by a
target company, Rock Creek Capital Corporation may recommend one or
more underwriters, financial advisors, accountants, public relations
firms or other consultants to provide such services.
A potential target company may have an agreement with a
consultant or advisor providing that services of the consultant or
advisor be continued after any business combination. Additionally,
a target company may be presented to Hercules only on the condition
that the services of a consultant or advisor be continued after a
merger or acquisition. Such preexisting agreements of target
companies for the continuation of the services of attorneys,
accountants, advisors or consultants could be a factor in the
selection of a target company.
TERMS OF A BUSINESS COMBINATION
In implementing a structure for a particular business
acquisition, Hercules may become a party to a merger, consolidation,
reorganization, joint venture, licensing agreement or other
arrangement with another corporation or entity. On the consummation
of a transaction, it is likely that the present management and
shareholders of Hercules will no longer be in control of Hercules.
In addition, it is likely that the officer and director of Hercules
will, as part of the terms of the business combination, resign and
be replaced by one or more new officers and directors.
It is anticipated that any securities issued in any such
business combination would be issued in reliance upon exemption from
registration under applicable federal and state securities laws. In
some circumstances, however, as a negotiated element of its
transaction, Hercules may agree to register all or a part of such
securities immediately after the transaction is consummated or at
specified times thereafter. If such registration occurs, it will be
undertaken by the surviving entity after Hercules has entered into
an agreement for a business combination or has consummated a
business combination and Hercules is no longer considered a blank
check company. The issuance of additional securities and their
potential sale into any trading market which may develop in the
securities of Hercules may depress the market value of the
securities of Hercules in the future if such a market develops, of
which there is no assurance.
While the terms of a business transaction to which Hercules
may be a party cannot be predicted, it is expected that the parties
to the business transaction will desire to avoid the creation of a
taxable event and thereby structure the acquisition in a tax-free
reorganization under Sections 351 or 368 of the Internal Revenue
Code of 1986, as amended.
Depending upon, among other things, the target company's
assets and liabilities, the shareholders of Hercules will in all
likelihood hold a substantially lesser percentage ownership interest
in Hercules following any merger or acquisition. The percentage of
ownership may be subject to significant reduction in the event
Hercules acquires a target company with substantial assets. Any
merger or acquisition effected by Hercules can be expected to have a
significant dilutive effect on the percentage of shares held by the
shareholders of Hercules at such time.
Hercules will participate in a business combination only
after the negotiation and execution of appropriate agreements.
Although the terms of such agreements cannot be predicted, generally
such agreements will require certain representations and warranties
of the parties thereto, will specify certain events of default, will
detail the terms of closing and the conditions which must be
satisfied by the parties prior to and after such closing and will
include miscellaneous other terms.
Rock Creek Capital Corporation will pay all expenses in
regard to its search for a suitable target company. Hercules does
not anticipate expending funds itself for locating a target company.
James M. Cassidy, the officer and director of Hercules, will
provide his services after the effective date of this registration
statement without charge or repayment by Hercules. Hercules will not
borrow any funds to make any payments to its management, its
affiliates or associates. If Rock Creek Capital Corporation stops
or becomes unable to continue to pay the operating expenses of
Hercules, Hercules may not be able to timely make its periodic
reports required under the Exchange Act nor to continue to search
for an acquisition target.
The Board of Directors has passed a resolution which
establishes a policy that Hercules will not seek a business
combination with any entity in which an officer, director,
shareholder or any affiliate or associate of Hercules serves as an
officer or director or holds any ownership interest.
UNDERTAKINGS AND UNDERSTANDINGS REQUIRED OF TARGET COMPANIES
As part of a business combination agreement, Hercules
intends to obtain certain representations and warranties from a
target company as to its conduct following the business combination.
Such representations and warranties may include (i) the agreement
of the target company to make all necessary filings and to take all
other steps necessary to remain a reporting company under the
Exchange Act for at least a specified period of time; (ii) imposing
certain restrictions on the timing and amount of the issuance of
additional free-trading stock, including stock registered on Form
S-8 or issued pursuant to Regulation S and (iii) giving assurances
of ongoing compliance with the Securities Act, the Exchange Act, the
General Rules and Regulations of the Securities and Exchange
Commission, and other applicable laws, rules and regulations.
A potential target company should be aware that the market
price and trading volume of the securities of Hercules, when and if
listed for secondary trading, may depend in great measure upon the
willingness and efforts of successor management to encourage
interest in Hercules within the United States financial community.
Hercules does not have the market support of an underwriter that
would normally follow a public offering of its securities. Initial
market makers are likely to simply post bid and asked prices and are
unlikely to take positions in Hercules' securities for their own
account or customers without active encouragement and a basis for
doing so. In addition, certain market makers may take short
positions in Hercules' securities, which may result in a
significant pressure on their market price. Hercules may consider
the ability and commitment of a target company to actively encourage
interest in Hercules' securities following a business combination in
deciding whether to enter into a transaction with such company.
A business combination with Hercules separates the process
of becoming a public company from the raising of investment capital.
As a result, a business combination with Hercules normally will not
be a beneficial transaction for a target company whose primary
reason for becoming a public company is the immediate infusion of
capital. Hercules may require assurances from the target company
that it has or that it has a reasonable belief that it will have
sufficient sources of capital to continue operations following the
business combination. However, it is possible that a target company
may give such assurances in error, or that the basis for such belief
may change as a result of circumstances beyond the control of the
target company.
Prior to completion of a business combination, Hercules may
require that it be provided with written materials regarding the
target company containing such items as a description of products,
services and company history; management resumes; financial
information; available projections, with related assumptions upon
which they are based; an explanation of proprietary products and
services; evidence of existing patents, trademarks, or service
marks, or rights thereto; present and proposed forms of compensation
to management; a description of transactions between such company
and its affiliates during relevant periods; a description of present
and required facilities; an analysis of risks and competitive
conditions; a financial plan of operation and estimated capital
requirements; audited financial statements, or if they are not
available, unaudited financial statements, together with reasonable
assurances that audited financial statements would be able to be
produced within a reasonable period of time not to exceed 75 days
following completion of a business combination; and other
information deemed relevant.
COMPETITION
Hercules will remain an insignificant participant among the
firms which engage in the acquisition of business opportunities.
There are many established venture capital and financial concerns
which have significantly greater financial and personnel resources
and technical expertise than Hercules. In view of Hercules'
combined extremely limited financial resources and limited
management availability, Hercules will continue to be at a
significant competitive disadvantage compared to Hercules' competitors.
ITEM 3. DESCRIPTION OF PROPERTY.
Hercules has no properties and at this time has no
agreements to acquire any properties. Hercules currently uses the
offices of Pierce Mill Associates, Inc. at no cost to Hercules.
Pierce Mill Associates, Inc. has agreed to continue this arrangement
until Hercules completes a business combination.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth each person known by Hercules
to be the beneficial owner of five percent or more of the common
stock of Hercules, all directors individually and all directors and
officers of Hercules as a group. Except as noted, each person has
sole voting and investment power with respect to the shares shown.
Name and Address Amount of Beneficial Percentage of
of Beneficial Owner Ownership Class
------------------------ -------------------- -------------------
James M. Cassidy (1) 1,000,000 100%
1504 R Street, N.W.
Washington, D.C. 20009
All Executive Officers and 1,000,000 100%
Directors as a Group (1 Person)
(1) As the sole shareholder, sole director and officer of
Pierce Mill Associates, Inc., Mr. Cassidy is deemed to be the
beneficial owner of the 1,000,000 shares of common stock of Hercules
owned by Pierce Mill Associates, Inc.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
Hercules has one director and officer as follows:
Name Age Positions and Offices Held
James M. Cassidy 65 President, Secretary, Director
There are no agreements or understandings for the
above-named officer or director to resign at the request of another
person and the above-named officer and director is not acting on
behalf of nor will act at the direction of any other person.
Set forth below is the name of the director and officer of
Hercules, all positions and offices with Hercules held, the period
during which he has served as such, and the business experience
during at least the last five years:
James Michael Cassidy, Esq., LL.B., LL.M., has served as the
director, president and secretary of Hercules since its inception.
Mr. Cassidy received a Bachelor of Science in Languages and
Linguistics from Georgetown University in 1960, a Bachelor of Laws
from The Catholic University School of Law in 1963, and a Master of
Laws in Taxation from The Georgetown University School of Law in
1968. From 1963-1964, Mr. Cassidy was law clerk to the Honorable
Inzer B. Wyatt of the United States District Court for the Southern
District of New York. From 1964-1965, Mr. Cassidy was law clerk to
the Honorable Wilbur K. Miller of the United States Court of Appeals
for the District of Columbia. From 1969-1975, Mr. Cassidy was an
associate of the law firm of Kieffer & Moroney and a principal in
the law firm of Kieffer & Cassidy, Washington, D.C. From 1975 to
date, Mr. Cassidy has been a principal in the law firm of Cassidy &
Associates, Washington, D.C. and its predecessors, specializing in
securities law and related corporate and federal taxation matters.
Mr. Cassidy is a member of the bars of the District of Columbia and
the State of New York, and is admitted to practice before the United
States Tax Court and the United States Supreme Court.
PREVIOUS BLANK CHECK COMPANIES
In 1988, management was involved in two blank check
offerings. Mr. Cassidy was vice president, a director and a
shareholder of First Agate Capital Corporation and Consolidated
Financial Corporation. In August, 1988, First Agate Capital
Corporation offered 50,000 units at $10.00 per unit for an aggregate
of $500,000 in an underwritten offering of its common stock and
warrants. First Agate Capital is no longer a public company and has
had no activity since 1991. In November, 1988, Consolidated
Financial Corporation offered 50,000 units at $10.00 per unit for an
aggregate of $500,000 in an underwritten offering of its common
stock and warrants. In 1990, in connection with the change in
control of Consolidated Financial Corporation, Mr. Cassidy
transferred all his shares of Consolidated Financial Corporation
common stock and resigned as an officer and director of that
company. Mr. Cassidy has had no further relationship or
transactions with Consolidated Financial Corporation since 1990. In
June, 1991, the new management of Consolidated Financial Corporation
effected its merger with A.B.E Industrial Holdings.
RECENT BLANK CHECK COMPANIES
James M. Cassidy, the president of Hercules, is currently
involved with other existing blank check companies, and in creating
additional similar companies. The initial business purpose of each
of these companies was or is to engage in a business combination
with an unidentified company or companies and each were or will be
classified as a blank check company until completion of a business
combination.
Generally target companies will be located for Hercules and
other identical blank check companies in chronological order of the
date of formation of such blank check companies or, in the case of
blank check companies formed on the same date, alphabetically.
However, certain blank check companies may differ from Hercules in
certain items such as place of incorporation, number of shares and
shareholders, working capital, types of authorized securities,
preference of a certain blank check company name by management of
the target company, or other items. It may be that a target company
may be more suitable for or may prefer a certain blank check company
formed after Hercules. In such case, a business combination might
be negotiated on behalf of the more suitable or preferred blank
check company regardless of date of formation.
The following chart summarizes certain information
concerning recent blank check companies with which Mr. Cassidy is or
has been involved which filed a registration statement on Form
10-SB. In most instances that a business combination is transacted
with one of these companies, it is required to file a Current Report
on Form 8-K describing the transaction. Reference is made to the
Current Report on Form 8-K filed for any company listed below for
detailed information concerning the business combination entered
into by that company.
<TABLE>
<CAPTION>
Registration Form/
Automatic
Effective Date*/
Corporation File Number Status
<S> <C> <C>
Corcoran Technologies Form 10-SB Merger effected December 30, 1997.
Corporation (2) 9/30/97; 0-22919 Form 8-K filed January 13, 1998.
Chatsworth Acquisition Form 10-SB Merger effected December 4, 1998.
Corporation (2) 4/12/98; 0-23769 Form 8-K filed December 18, 1998.
Sunderland Acquisition Form 10-SB Stock exchange and asset acquisition effected
Corporation (3) 10/12/98; 0-24803 April 27, 1999. Form 8-K filed
May 4, 1999.
Warwick Acquisition Form 10-SB Stock-for-stock exchange of subsidiary effected
Corporation (2) 4/18/99; 0-25419 May 27, 1999. For, 8-K filed
May 27, 1999.
Westford Acquisition Form 10-SB Stock exchange effected June 15, 1999. Form
Corporation (2) 10/27/98; 0-24839 8-K filed June 18, 1999. Merger
effected July 30, 1999. Form 8-K
filed August 13, 1999.
Barhill Acquisition Form 10-SB Merger effected August 31, 1999.
Corporation (2) 10/12/98; 0-24801 Form 8-K filed September 1, 1999.
Abbacy Corporation (2) Form 10-SB Merger effected October 18, 1999.
8/16/99; 0-26405 Form 8-K filed October 21, 1999.
Torbay Acquisition Form 10-SB Merger effected October 26, 1999.
Corporation (2) 4/18/99; 0-25417 Form 8-K filed November 12, 1999.
Blencathia Acquisition Form 10-SB Merger effected November 2, 1999.
Corporation (2) 4/8/99; 0-25367 Form 8-K filed November 4, 1999.
Epilogue Corporation (2) Form 10-SB Merger effected November 10, 1999.
8/16/99; 0-26425 Form 8-K filed November 12, 1999.
Caprock Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26415 November 26, 1999. Form 8-K filed
December 3, 1999.
Aterian Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26409 November 29, 1999. Form 8-K filed
November 29, 1999.
Tunlaw International Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 8/31/97; 0-22785 December 3, 1999. Form 8-K filed
December 13, 1999.
Forestay Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26421 December 9, 1999. Form 8-K filed
January 14, 2000.
Decurion Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26417 December 13, 1999. Form 8-K filed
December 14, 1999.
Ivory Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 12/23/99; 0-28377 January 5, 2000. Form 8-K filed
January 7, 2000.
Aberdeen Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 4/11/98; 0-23761 January 14, 2000. Form 8-K filed
January 14, 2000.
Emerald Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 12/23/99; 0-28375 January 20, 2000. Form 8-K filed
January 21, 2000.
Echelon Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 1/10/00; 0-28521 February 4, 2000. Form 8-K filed
February 4, 2000.
Canticle Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26413 February 18, 2000. Form 8-K filed
February 22, 2000.
Keynote Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 2/14/00; 0-28523 February 23, 2000. Form 8-K filed
March 10, 2000.
Juniper Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 2/15/00; 0-28541 February 24, 2000. Form 8-K filed
February 25, 2000.
Wellstone Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 2/14/00; 0-28527 March 6, 2000. Form 8-K filed
March 7, 2000.
Baroque Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26407 March 22, 2000. Form 8-K filed
March 22, 2000.
Erebus Corporation (2) Form 10-SB Acquisition of outstanding stock effected
8/16/99; 0-26419 April 17, 2000. Form 8-K filed
April 19, 2000.
Mayford Acquisition Form 10-SB Acquisition of outstanding stock effected
Corporation (2) 2/26/00; 0-28681 June 13, 2000. Form 8-K filed
filed June 28, 2000. Merger effected July
14, 2000. Form 8-K filed
July 19, 2000.
Borough Corporation (1) Form 10-SB Has not entered into an agreemenet for a
8/16/99; 0-26411 business combination.
Luminary Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 2/20/00; 0-28609 business combination.
Guardian Acquisition Form 10-SB Anticipates acquisition of a specific company
Corporation (1) 3/17/00; 0-28955 Form 8-K will be filed if business combination
occurs.
Independent Acquisition Form 10-SB Anticipates accquisition of a specific company
Corporation (1) 03/17/00; 0-28951 Form 8-K will be filed if a business combination
occurs.
Caravan Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29697 business combination.
Caliper Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29695 business combination.
Eastward Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29693 business combination.
Galena Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29699 business combination.
Generation Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29701 business combination.
Jubilee Acquisition Form 10-SB Has not entered into an agreement for a
Corporation (1) 04/24/00; 0-29703 business combination
combination.
</TABLE>
* Form 10-SB is automatically effective 60 days after filing with
the Securities and Exchange Commission.
(1) Mr. Cassidy is the sole officer, director and a beneficial
shareholder.
(2) Mr. Cassidy was but is no longer the sole officer and
director and remains a beneficial shareholder of less than
5% of the outstanding shares.
(3) Mr. Cassidy was but is no longer the sole officer and
director and was but is no longer a beneficial shareholder.
TRANSACTIONS BY RECENT BLANK CHECK COMPANIES
On December 30, 1997, Prime Management, Inc., a California
corporation, merged with and into Corcoran Technologies Corporation.
Corcoran Technologies Corporation was formed on March 27, 1997 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, Prime Management, Inc. was an
operating transportation company with two wholly-owned subsidiaries,
Mid-Cal Express, a long-haul trucking company hauling shipments of
general commodities, including temperature-sensitive goods, in both
intrastate and interstate commerce and Mid-Cal Logistics, a freight
brokerage company. Pursuant to the merger, Corcoran Technologies
Corporation changed its name to Prime Companies, Inc. The Current
Report on Form 8-K was filed on January 13, 1998. The common stock
of Prime Companies, Inc. trades on the NASD OTC Bulletin Board under
the symbol PRMC. Detailed information concerning Prime Companies,
Inc. subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archives
page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On December 4, 1998, AmeriCom USA, Inc., a Delaware
corporation, merged with and into Chatsworth Acquisition
Corporation. Chatsworth Acquisition Corporation was formed on
December 3, 1997 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
AmeriCom USA, Inc. was an operating Internet advertising company
with a wholly-owned subsidiary, Diversified Associates
International, a California company. Pursuant to the merger,
Chatsworth Acquisition Corporation changed its name to AmeriCom USA,
Inc. The Current Report on Form 8-K was filed on December 18, 1998.
Detailed information concerning AmeriCom USA, Inc. may be obtained
from its filings under the Exchange Act which are found on the Edgar
archives page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On April 27, 1999, Capsource, Inc., a Nevada company, Del
Mar Mortgage, Inc., a Nevada company, and Del Mar Holdings, Inc. a
Nevada company, entered into a stock exchange agreement and asset
acquisition agreements, respectively, with Sunderland Acquisition
Corporation. Sunderland Acquisition Corporation was formed on June
2, 1998 to engage in a merger or acquisition with an unidentified
company or companies and was structured substantially identically to
Hercules, including identical management and beneficial
shareholders. At the time of the business combination, Capsource,
Inc. and Del Mar Mortgage, Inc. were operating loan origination
companies and Del Mar Holdings, Inc. served as a holding company.
Pursuant to the transactions, Sunderland Acquisition Corporation
changed its name to Sunderland Corporation. The Current Report on
Form 8-K was filed on May 4, 1999. On October 1, 1999, Sunderland
Corporation filed a registration statement on Form SB-2 which was
declared effective on October 20, 1999. The common stock of
Sunderland Corporation trades on the NASD OTC Bulletin Board under
the symbol DLMA. Detailed information concerning Sunderland
Corporation subsequent to the business combination may be obtained
from its filings under the Exchange Act which are found on the Edgar
archives page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On May 27, 1999, ThinWeb Software Incorporated, a Nova
Scotia corporation, entered into a stock exchange agreement with
Thinweb.com Inc., the wholly-owned Nova Scotia subsidiary of Warwick
Acquisition Corporation. Warwick Acquisition Corporation was formed
on June 2, 1998 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
ThinWeb Software Incorporated was a development-stage computer
software company. Pursuant to the transaction, Warwick Acquisition
Corporation changed its name to thinWEB.com, Inc. The Current
Report on Form 8-K was filed on May 27, 1999. On July 23, 1999,
thinWEB.com Corporation filed a registration statement on Form SB-2.
Detailed information concerning thinWEB.com, Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On June 15, 1999, Westford Acquisition Corporation acquired
all the outstanding shares of Baja Foods Concepts, Inc., a Florida
corporation, resulting in Baja Foods Concepts, Inc. becoming a
wholly-owned subsidiary of Westford Acquisition Corporation.
Westford Acquisition Corporation was formed on June 2, 1998 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. The
Current Report on Form 8-K was filed on June 18, 1999. On July 30,
1999, Westford Acquisition Corporation merged with and into South
Beach Concepts, Inc., a Florida corporation affiliated with Baja
Foods Concepts, Inc. At the time of the business combination, South
Beach Concepts, Inc. developed, operated and franchised take-out and
eat-in restaurants with specific and consistent themes, logos, and
menus and roasts, produces and markets coffee beans and teas and had
two theme restaurant chains, Pizza World Gourmet Pizza and South
Beach Cafe. Pursuant to the transaction, South Beach Concepts, Inc.
was the surviving corporation and the successor issuer to Westford
Acquisition Corporation. The Current Report on Form 8-K was filed on
August 13, 1999. Detailed information concerning South Beach
Concepts, Inc. subsequent to the business combination may be
obtained from its filings under the Exchange Act which are found on
the Edgar archives page of the Securities and Exchange Commission's
Website at http://www.sec.gov.
On August 31, 1999, Barhill Acquisition Corporation merged
with and into Aqua Vie Beverage Corporation, a Delaware corporation.
Barhill Acquisition Corporation was formed June 2, 1998 to engage
in a merger or acquisition with an unidentified company or companies
and was structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Aqua Vie Beverage Corporation developed,
bottled and distributed naturally flavored bottled spring water.
Pursuant to the transaction, Aqua Vie Beverage Corporation was the
surviving corporation and the successor issuer to Barhill
Acquisition Corporation. The Current Report on Form 8-K was filed
on September 1, 1999. The common stock of Aqua Vie Beverage
Corporation trades on the NASD OTC Bulletin Board under the symbol
AVBC. Detailed information concerning Aqua Vie Beverage Corporation
subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archives
page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On October 18, 1999, Abbacy Corporation merged with and into
CBCom, Inc., a Delaware corporation. Abbacy Corporation was formed
June 4, 1999, to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
CBCom was a development stage company formed to develop
telecommunications projects and Internet-related information
services in the People's Republic of China by establishing joint
venture partnerships with Chinese companies having data networking
technologies or installed bases of telecommunications. Pursuant to
the transaction, CBCom, Inc. was the surviving corporation and the
successor issuer to Abbacy Corporation. The Current Report on Form
8-K was filed on October 21, 1999. Detailed information concerning
CBCom, Inc. subsequent to the business combination may be obtained
from its filings under the Exchange Act which are found on the Edgar
archives page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On October 26, 1999, Torbay Acquisition Corporation merged
with and into Torbay Holdings, Inc., a Delaware corporation. Torbay
Acquisition was formed June 2, 1998, to engage in a merger or
acquisition with an unidentified company or companies and was
structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Torbay Holdings, Inc. was a development
stage company that, through its subsidiary Designer Appliances,
Ltd., was developing and beginning marketing of household appliances
designed to be attractive to a premium, upscale market. Pursuant to
the transaction, Torbay Holdings, Inc. was the surviving corporation
and the successor issuer to Torbay Acquisition Corporation. The
Current Report on Form 8-K was filed November 12, 1999. On December
30, 1999 Torbay Holdings, Inc. filed a registration statement on
Form SB-2 which was declared effective on January 26, 2000.
Detailed information concerning Torbay Holdings, Inc. subsequent to
the business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On November 2, 1999, Blencathia Acquisition Corporation
merged with and into International Fuel Technology, Inc., a Nevada
corporation. Blencathia Acquisition was formed December 3, 1997, to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, International Fuel was a
development stage company that had developed a process that
reformulates various refined fuels. Pursuant to the transaction,
International Fuel Technology, Inc. was the surviving corporation
and the successor issuer to Blencathia Acquisition Corporation. The
Current Report on Form 8-K was filed November 4, 1999. The common
stock of International Fuel Technology, Inc. trades on the NASD OTC
Bulletin Board under the symbol IFUE. Detailed information
concerning International Fuel Technology, Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On November 10, 1999, Epilogue Corporation merged with and
into Nextpath Technologies, Inc., a Nevada corporation. Epilogue
was formed June 7, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
NextPath Technologies, Inc. was a development stage company formed
to serve as a holding company that identifies, acquires, operates
and manages state-of-the-art technology companies which have the
potential to capture specific market niches. Pursuant to the
transaction, NextPath Technologies, Inc. was the surviving
corporation and the successor issuer to Epilogue Corporation. The
Current Report on Form 8-K was filed on November 12, 1999. The
common stock of NextPath Technologies, Inc. trades on the NASD OTC
Bulletin Board under the symbol NPTK. Detailed information
concerning NextPath Technologies, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On November 26, 1999, all the outstanding shares of Caprock
Corporation were acquired by International Internet, Inc., a
Delaware corporation. Caprock was formed June 7, 1999 to engage in a
merger or acquisition with an unidentified company or companies and
was structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, International Internet, Inc. developed and
operated Internet and direct retail marketing companies. Pursuant
to the transaction, Caprock Corporation became a wholly-owned
subsidiary of International Internet, Inc. and International
Internet, Inc. became the successor issuer to Caprock Corporation.
A Current Report on Form 8-K was filed December 3, 1999. The common
stock of International Internet, Inc. trades on the NASD OTC
Bulletin Board under the symbol IINN. Detailed information
concerning International Internet, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On November 29, 1999, all the outstanding shares of Aterian
Corporation were acquired by Gourmet's Choice Coffee Co., Inc., a
Nevada corporation. Aterian was formed June 7, 1999 to engage in a
merger or acquisition with an unidentified company or companies and
was structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Gourmet's Choice Coffee Co. was a
development stage company that sold premium blended coffees from its
Web site on the Internet and served as a holding company for
domestic and international companies to be acquired, including its
first acquisition of a Vietnamese mineral water company. Pursuant
to the transaction, Aterian Corporation became a wholly-owned
subsidiary of Gourmet's Choice Coffee Co., Inc. and Gourmet's Choice
Coffee Co., Inc. became the successor issuer to Aterian Corporation.
The Current Report on Form 8-K was filed on November 29, 1999. The
common stock of Gourmet's Choice Coffee, Inc. trades on the NASD OTC
Bulletin Board under the symbol GMCH. Detailed information
concerning Gourmet's Choice Coffee Co., Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On December 3, 1999, all the outstanding shares of Tunlaw
International Corporation were acquired by American Career Centers,
Inc., a Nevada corporation. Tunlaw was formed March 27, 1997 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, American Career Centers, Inc. was
a holding company for a number of related career colleges and
training centers. Pursuant to the transaction, Tunlaw International
Corporation became a wholly-owned subsidiary of American Career
Centers, Inc. and American Career Centers, Inc. became the successor
issuer to Tunlaw International Corporation. The Current Report on
Form 8-K was filed on December 13, 1999. Detailed information
concerning American Career Centers, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On December 9, 1999, all the outstanding shares of Forestay
Corporation were acquired by Milinx Business Group, Inc. a Delaware
corporation. Forestay was formed June 7, 1999 to engage in a merger
or acquisition with an unidentified company or companies and was
structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Milinx Business Group, Inc. was a
development stage company specializing in automated digital business
services with a primary product that delivers integrated, next
generation e-business services to subscribers. Pursuant to the
transaction, Forestay Corporation became a wholly-owned subsidiary
of Milinx Business Group, Inc. and Milinx Business Group, Inc.
became the successor issuer to Forestay Corporation. The Current
Report on Form 8-K was filed on January 14, 2000. The stock of
Milinx Business Group, Inc. trades on the NASD OTC Bulletin Board
under the symbols MIXBA and MIXBP. Detailed information concerning
Milinx Business Group, Inc. subsequent to the business combination
may be obtained from its filings under the Exchange Act which are
found on the Edgar archives page of the Securities and Exchange
Commission's Website at http://www.sec.gov.
On December 13, 1999, all the outstanding shares of Decurion
Corporation were acquired by Hydrogiene Corporation, a Florida
corporation. Decurion was formed June 7, 1999 to engage in a merger
or acquisition with an unidentified company or companies and was
structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Hydrogiene Corporation was a development
stage company that manufactured and marketed personal care systems
that convert tank-type and flush-type valve toilets into personal
multi-functional cleansing, water therapy and sitz bath systems.
Pursuant to the transaction, Decurion Corporation became a
wholly-owned subsidiary of Hydrogiene Corporation and Hydrogiene
Corporation became the successor issuer to Decurion Corporation.
The Current Report on Form 8-K was filed on December 14, 1999. The
common stock of Hydrogiene Corporation trades on the NASD OTC
Bulletin Board under the symbol HICS. Detailed information
concerning Hydrogiene Corporation subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On January 5, 2000 all the outstanding shares of Ivory
Acquisition Corporation were acquired by Cosmoz.com, Inc., a
Delaware corporation. Ivory Acquisition was formed March 24, 1999
to engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, Cosmoz.com, Inc., was a
development stage company that intended to be an Internet portal and
venture capital provider focusing on the development, investment and
acquisition of high traffic, niche and unique technology-based Web
properties. Pursuant to the transaction, Ivory Acquisition
Corporation became a wholly-owned subsidiary of Cosmoz.com, Inc. and
Cosmoz.com, Inc. became the successor issuer to Ivory Acquisition
Corporation. The Current Report on Form 8-K was filed on January 7,
2000. The common stock of Cosmoz.com, Inc. trades on the NASD OTC
Bulletin Board under the symbol CMOZ. Detailed information
concerning Cosmoz.com, Inc. subsequent to the business combination
may be obtained from its filings under the Exchange Act which are
found on the Edgar archives page of the Securities and Exchange
Commission's Website at http://www.sec.gov.
On January 14, 2000 all the outstanding shares of Aberdeen
Acquisition Corporation were acquired by Kurchatov Research
Holdings, Ltd., a Delaware corporation. Aberdeen Acquisition was
formed December 3, 1997 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
Kurchatov Research was a development stage company organized to
identify, assess, acquire and capitalize on innovative technologies
introduced and developed by scientists throughout the world with
particular emphasis on technologies originating in Israel, Russia
and Germany. Pursuant to the transaction, Aberdeen Acquisition
Corporation became a wholly-owned subsidiary of Kurchatov Research
and Kurchatov Research became the successor issuer to Aberdeen
Acquisition Corporation. The Current Report on Form 8-K was filed
on January 14, 2000. The common stock of Kurchatov Research trades
on the NASD OTC Bulletin Board under the symbol KRHL. Detailed
information concerning Kurchatov Research subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On January 20, 2000 all the outstanding shares of Emerald
Acquisition Corporation were acquired by Rhombic Corporation, a
Nevada corporation. Emerald Acquisition Corporation was formed
March 24, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
Rhombic was a development stage company designed to research and
develop both its own and acquired technologies in order to make them
commercially marketable and capitalize on their commercial
applications. Pursuant to the transaction, Emerald Acquisition
Corporation became a wholly-owned subsidiary of Rhombic Corporation
and Rhombic Corporation became a successor issuer to Emerald
Acquisition Corporation. The Current Report on Form 8-K was filed
on January 21, 2000. The common stock Rhombic Corporation trades on
the NASD OTC Bulletin Board under the symbol NUKE. Detailed
information concerning Rhombic Corporation subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On February 4, 2000 all the outstanding shares of Echelon
Acquisition Corporation were acquired by Foodvision.com, Inc., a
Delaware corporation. Echelon Acquisition was formed March 24, 1999
to engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, Foodvision.com operated several
eat-in cafe restaurants and was developing an e-commerce Web site
devoted to the food and beverage industry. Pursuant to the
transaction, Echelon Acquisition Corporation became a wholly-owned
subsidiary of Foodvision.com and Foodvision.com became the successor
issuer to Echelon Acquisition Corporation. The Current Report on
Form 8-K was filed on February 4, 2000. The common stock of
Foodvision.com trades on the NASD OTC Bulletin Board under the
symbol FVSN. Detailed information concerning Foodvision.com
subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archives
page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On February 18, 2000 all the outstanding shares of Canticle
Corporation were acquired by PSA, Inc., a Nevada corporation.
Canticle Corporation was formed March 24, 1999 to engage in a merger
or acquisition with an unidentified company or companies and was
structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, PSA, Inc. intended to establish itself as
an Internet portal catering to the needs of travelers throughout the
world by developing its Web site and related technologies and by
placing primary emphasis on capturing a share of the online travel
business. Pursuant to the transaction, Canticle Corporation became
a wholly-owned subsidiary of PSA, Inc. and PSA, Inc. became the
successor issuer to Canticle Corporation. The Current Report on
Form 8-K was filed on February 22, 2000. The common stock of PSA,
Inc. trades on the NASD OTC Bulletin Board under the symbol PSAX.
Detailed information concerning PSA, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
On February 23, 2000 all the outstanding shares of Keynote
Acquisition Corporation were acquired by Beverly Hills Ltd. Inc., a
Florida corporation. Keynote Acquisition Corporation was formed
March 24, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
Beverly Hills Ltd., Inc. was an Internet holding company
specializing in marketing recreation, sporting goods and upscale
merchandise through a network of Web companies, events and media
publications. Pursuant to the transaction, Keynote Acquisition
Corporation became a wholly-owned subsidiary of Beverly Hills Ltd.
and Beverly Hills Ltd. became the successor issuer to Keynote
Acquisition Corporation. The Current Report on Form 8-K was filed
on March 10, 2000. The common stock of Beverly Hills Ltd. trades on
the daily quotation sheets published by the National Quotation
Bureau, Inc. (the "pink sheets") under the symbol BLTD. Detailed
information concerning Beverly Hills Ltd., Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On February 24, 2000 all the outstanding shares of Juniper
Acquisition Corporation were acquired by Quintek Technologies, Inc.,
a California corporation. Juniper Acquisition Corporation was
formed March 24, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
Quintek Technologies, Inc. was established for the primary purpose
of developing, manufacturing and distributing the 4300 Aperture Card
Imaging System's technology, used for recording digital images on
aperture card media. Pursuant to the transaction, Juniper
Acquisition Corporation became a wholly-owned subsidiary of Quintek
Technologies, Inc. and Quintek Technologies, Inc. became the
successor issuer to Juniper Acquisition Corporation. The Current
Report on Form 8-K was filed on February 25, 2000. The common stock
of Quintek Technologies, Inc. trades on the NASD OTC Bulletin Board
under the symbol QTEK. Detailed information concerning Quintek
Technologies, Inc. subsequent to the business combination may be
obtained from its filings under the Exchange Act which are found on
the Edgar archives page of the Securities and Exchange Commission's
Website at http://www.sec.gov.
On March 6, 2000 all the outstanding shares of Wellstone
Acquisition Corporation were acquired by Pet Quarters, Inc., an
Arkansas corporation. Wellstone Acquisition Corporation was formed
March 24, 1999 to engage in a merger or acquisition with an
unidentified company or companies and was structured substantially
identically to Hercules, including identical management and
beneficial shareholders. At the time of the business combination,
Pet Quarters, Inc. was engaged in the marketing and selling of pet
supplies via its Internet Web site and catalogue sales, and intended
to expand its pet-related e-commerce services. Pursuant to the
transaction, Wellstone Acquisition Corporation became a wholly-owned
subsidiary of Pet Quarters, Inc. The Current Report on Form 8-K was
filed on March 7, 2000. The common stock of Pet Quarters, Inc.
trades on the NASD OTC Bulletin Board under the symbol PDEN.
Detailed information concerning Pet Quarters, Inc. subsequent to the
business combination may be obtained from its filings under the
Exchange Act which are found on the Edgar archives page of the
Securities and Exchange Commission's Website at http://www.sec.gov.
On March 22, 2000 all the outstanding shares of Baroque
Corporation were acquired by Quik Pix, Inc., a California
corporation. Baroque Corporation was formed March 24, 1999 to
engage in a merger or acquisition with an unidentified company or
companies and was structured substantially identically to Hercules,
including identical management and beneficial shareholders. At the
time of the business combination, Quik Pix, Inc. was a company
offering a spectrum of services allowing a client to produce color
visuals (digital and photographic) according to parameters as
specified by a client. Pursuant to the transaction, Baroque
Corporation became a wholly-owned subsidiary of Quik Pix, Inc. and
Quik Pix, Inc. became the successor issuer to Baroque Corporation.
The Current Report on Form 8-K was filed on March 22, 2000. The
common stock of Quik Pix, Inc. trades on the daily quotation sheets
published by the National Quotation Bureau, Inc. (the "pink sheets")
under the symbol QPIX. Detailed information concerning Quik Pix,
Inc. subsequent to the business combination may be obtained from its
filings under the Exchange Act which are found on the Edgar archives
page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On April 17, 2000 all the outstanding shares of Erebus
Corporation were acquired by IVP Technology Corporation, a Nevada
Corporation. Erebus Corporation was formed June 7, 1999 to engage
in a merger or acquisition with an unidentified company or companies
and was structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, IVP Technology Corporation was established
with the purpose of identifying and acquiring private companies
and/or their technologies in the high technology field. Pursuant to
the transaction, Erebus Corporation became a wholly-owned subsidiary
of IVP Technology Corporation and IVP Technology Corporation became
the successor issuer to Erebus Corporation. The Current Report on
Form 8-K was filed on April 19, 2000. The common stock of IVP
Technology Corporation trades on the NASD OTC Bulletin Board under
the symbol TALL. Detailed information concerning IVP Technology
Corporation subsequent to the business combination may be obtained
from its filings under the Exchange Act which are found on the Edgar
archives page of the Securities and Exchange Commission's Website at
http://www.sec.gov.
On June 13, 2000 Mayford Acquisition Corporation acquired
99.9% of the outstanding shares of Syntec Acquisition Corporation, a
Texas corporation, resulting in Syntec Acquisition Corporation
becoming a subsidiary of Mayford Acquisition Corporation. Mayford
Acquisition Corporation was formed March 24, 1999 to engage in a
merger or acquisition with an unidentified company or companies and
was structured substantially identically to Hercules, including
identical management and beneficial shareholders. At the time of
the business combination, Syntec Acquisition Corporation, through
its subsidiaries Syntec Holding Group, Inc. and Syntec Corporation,
was an independent provider of customized integrated electronics
manufacturing services to original equipment manufacturers in the
electronics industry. The Current Report on Form 8-K was filed on
June 28, 2000. On July 14, 2000, Syntec Acquisition Corporation was
merged with and into Mayford Acquisition Corporation. In connection
with the merger, Mayford Acquisition Corporation changed its name to
CCM Manufacturing Technologies, Inc. The Current Report on Form 8-K
was filed on July 19, 2000. Detailed information concerning CCM
Manufacturing Technologies, Inc. subsequent to the business
combination may be obtained from its filings under the Exchange Act
which are found on the Edgar archives page of the Securities and
Exchange Commission's Website at http://www.sec.gov.
CONFLICTS OF INTEREST
James M. Cassidy, the sole officer and director of Hercules,
has organized and expects to organize other companies of a similar
nature and with a similar purpose as Hercules. Consequently, there
are potential inherent conflicts of interest in acting as an officer
and director of Hercules. In addition, insofar as Mr. Cassidy is
engaged in other business activities, he may devote only a portion
of his time to the affairs of Hercules.
A conflict may arise in the event that another blank check
company with which Mr. Cassidy is affiliated also actively seeks a
target company. It is anticipated that target companies will be
located for Hercules and other blank check companies in
chronological order of the date of formation of such blank check
companies or, in the case of blank check companies formed on the
same date, alphabetically. However, other blank check companies may
differ from Hercules in certain items such as place of
incorporation, number of shares and shareholders, working capital,
types of authorized securities, or other items. It may be that a
target company may be more suitable for or may prefer a certain
blank check company formed after Hercules. In such case, a business
combination might be negotiated on behalf of the more suitable or
preferred blank check company regardless of date of formation.
Mr. Cassidy is the principal of Cassidy & Associates, a
securities law firm located in Washington, D.C. As such, demands
may be placed on the time of Mr. Cassidy which will detract from the
amount of time he is able to devote to Hercules. Mr. Cassidy
intends to devote as much time to the activities of Hercules as
required. However, should such a conflict arise, there is no
assurance that Mr. Cassidy would not attend to other matters prior
to those of Hercules. Mr. Cassidy estimates that the business plan
of Hercules can be implemented by devoting approximately 10 to 25
hours per month over the course of several months but such figure
cannot be stated with precision.
Mr. Cassidy is the president, director and sole shareholder
of Pierce Mill Associates, Inc., a Delaware corporation, which is
the sole shareholder of Hercules. At the time of a business
combination, some or all of the shares of common stock owned by
Pierce Mill Associates, Inc. may be purchased by the target company
or retired by Hercules. The amount of common stock which may be
sold or continued to be owned by Pierce Mill Associates, Inc. cannot
be determined at this time.
The terms of business combination may include such terms as
Mr. Cassidy remaining a director or officer of Hercules and/or the
continuing securities or other legal work of Hercules being handled
by the law firm of which Mr. Cassidy is the principal. The terms of
a business combination may provide for a payment by cash or
otherwise to Pierce Mill Associates, Inc. for the purchase or
retirement of all or part of the common stock of Hercules owned by
it by a target company or for services rendered by Rock Creek
Capital Corporation incident to or following a business combination.
Mr. Cassidy would directly benefit from such employment or payment.
Such benefits may influence Mr. Cassidy's choice of a target
company.
Hercules will not enter into a business combination, or
acquire any assets of any kind for its securities, in which
management of Hercules or any affiliates or associates have any
interest, direct or indirect.
There are no binding guidelines or procedures for resolving
potential conflicts of interest. Failure by management to resolve
conflicts of interest in favor of Hercules could result in liability
of management to Hercules.
INVESTMENT COMPANY ACT OF 1940
Although Hercules will be subject to regulation under the
Securities Act and the Exchange Act, management believes Hercules
will not be subject to regulation under the Investment Company Act
of 1940 insofar as Hercules will not be engaged in the business of
investing or trading in securities. In the event Hercules engages
in business combinations which result in Hercules holding passive
investment interests in a number of entities, Hercules could be
subject to regulation under the Investment Company Act of 1940. In
such event, Hercules would be required to register as an investment
company and could be expected to incur significant registration and
compliance costs. Hercules has obtained no formal determination
from the Securities and Exchange Commission as to the status of
Hercules under the Investment Company Act of 1940. Any violation of
such Act would subject Hercules to material adverse consequences.
ITEM 6. EXECUTIVE COMPENSATION.
The officer and director of Hercules does not receive any
compensation for his services rendered to Hercules, has not received
such compensation in the past, and is not accruing any compensation
pursuant to any agreement with Hercules. However, the officer and
director of Hercules anticipates receiving benefits as a beneficial
shareholder of Hercules, as the officer and director and sole
shareholder of Pierce Mill Associates, Inc. and Rock Creek Capital
Corporation and, possibly, as principal of Cassidy & Associates,
which may perform legal services for Hercules after the business
combination. See "ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS
AND CONTROL PERSONS Conflicts of Interest".
No retirement, pension, profit sharing, stock option or
insurance programs or other similar programs have been adopted by
Hercules for the benefit of its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Hercules has issued a total of 1,000,000 shares of common
stock pursuant to Section 4(2) of the Securities Act for a total of
$100 in cash.
ITEM 8. DESCRIPTION OF SECURITIES.
The authorized capital stock of Hercules consists of
100,000,000 shares of common stock, par value $.0001 per share, of
which there are 1,000,000 issued and outstanding and 20,000,000
shares of preferred stock, par value $.0001 per share, of which none
have been designated or issued. The following statements relating
to the capital stock set forth the material terms of the securities
of Hercules; however, reference is made to the more detailed
provisions of, and such statements are qualified in their entirety
by reference to, the certificate of incorporation and the by-laws,
copies of which are filed as exhibits to this registration statement.
COMMON STOCK
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 do not have cumulative voting rights.
Holders 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
Hercules, the holders of common stock are entitled to share pro rata
all assets remaining after payment in full of all liabilities. All
of the outstanding shares of common stock are fully paid and
non-assessable.
Holders of common stock have no preemptive rights to
purchase the common stock of Hercules. There are no conversion or
redemption rights or sinking fund provisions with respect to the
common stock.
PREFERRED STOCK
The Board of Directors is authorized to provide for the
issuance of shares of preferred stock in series and, by filing a
certificate pursuant to the applicable law of Delaware, to establish
from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights
of the shares of each such series and the qualifications,
limitations or restrictions thereof without any further vote or
action by the shareholders. Any shares of preferred stock so issued
would have priority over the common stock with respect to dividend
or liquidation rights. Any future issuance of preferred stock may
have the effect of delaying, deferring or preventing a change in
control of Hercules without further action by the shareholders and
may adversely affect the voting and other rights of the holders of
common stock. At present, Hercules has no plans to issue any
preferred stock nor adopt any series, preferences or other
classification of preferred stock.
The issuance of shares of preferred stock, or the issuance
of rights to purchase such shares, could be used to discourage an
unsolicited acquisition proposal. For instance, the issuance of a
series of preferred stock might impede a business combination by
including class voting rights that would enable the holder to block
such a transaction, or facilitate a business combination by
including voting rights that would provide a required percentage
vote of the stockholders. In addition, under certain circumstances,
the issuance of preferred stock could adversely affect the voting
power of the holders of the common stock. Although the Board of
Directors is required to make any determination to issue such stock
based on its judgment as to the best interests of the stockholders
of Hercules, the Board of Directors could act in a manner that would
discourage an acquisition attempt or other transaction that some, or
a majority, of the stockholders might believe to be in their best
interests or in which stockholders might receive a premium for their
stock over the then market price of such stock. The Board of
Directors does not at present intend to seek stockholder approval
prior to any issuance of currently authorized stock, unless
otherwise required by law or otherwise. Hercules has no present
plans to issue any preferred stock.
DIVIDENDS
Dividends, if any, will be contingent upon Hercules'
revenues and earnings, if any, capital requirements and financial
conditions. The payment of dividends, if any, will be within the
discretion of Hercules' Board of Directors. Hercules presently
intends to retain all earnings, if any, for use in its business
operations and accordingly, the Board of Directors does not
anticipate declaring any dividends prior to a business combination.
TRADING OF SECURITIES IN SECONDARY MARKET
The National Securities Market Improvement Act of 1996
limited the authority of states to impose restrictions upon sales of
securities made pursuant to Sections 4(1) and 4(3) of the Securities
Act of companies which file reports under Sections 13 or 15(d) of
the Exchange Act. Upon effectiveness of this registration
statement, Hercules will be required to, and will, file reports
under Section 13 of the Exchange Act. As a result, sales of
Hercules' common stock in the secondary market by the holders
thereof may then be made pursuant to Section 4(1) of the Securities
Act (sales other than by an issuer, underwriter or broker) without
qualification under state securities acts.
Following a business combination, a target company will
normally wish to cause Hercules' common stock to trade in one or
more United States securities markets. The target company may elect
to take the steps required for such admission to quotation following
the business combination or at some later time. Such steps will
normally involve filing a registration statement under the
Securities Act. Such registration statement may include securities
held by current shareholders or offered by Hercules, including
warrants, shares underlying warrants, and debt securities.
In order to qualify for listing on the Nasdaq SmallCap
Market, a company must have at least (i) net tangible assets of
$4,000,000 or market capitalization of $50,000,000 or net income for
two of the last three years of $750,000; (ii) public float of
1,000,000 shares with a market value of $5,000,000; (iii) a bid
price of $4.00; (iv) three market makers; (v) 300 round-lot
shareholders and (vi) an operating history of one year or, if less
than one year, $50,000,000 in market capitalization. For continued
listing on the Nasdaq SmallCap Market, a company must have at least
(i) net tangible assets of $2,000,000 or market capitalization of
$35,000,000 or net income for two of the last three years of
$500,000; (ii) a public float of 500,000 shares with a market value
of $1,000,000; (iii) a bid price of $1.00; (iv) two market makers;
and (v) 300 round-lot shareholders.
If, after a business combination and qualification of its
securities for trading, Hercules does not meet the qualifications
for listing on the Nasdaq SmallCap Market, Hercules may apply for
quotation of its securities on the NASD OTC Bulletin Board.
In order to have its securities quoted on the NASD OTC
Bulletin Board a company must (i) be a company that reports its
current financial information to the Securities and Exchange
Commission, banking regulators or insurance regulators; and (ii)
have at least one market maker who completes and files a Form 211
with NASD Regulation, Inc.
The NASD OTC Bulletin Board is a dealer-driven quotation
service. Unlike the Nasdaq Stock Market, companies cannot directly
apply to be quoted on the NASD OTC Bulletin Board, only market
makers can initiate quotes, and quoted companies do not have to meet
any quantitative financial requirements. Any equity security of a
reporting company not listed on the Nasdaq Stock Market or on a
national securities exchange is eligible.
In certain cases Hercules may elect to have its securities
initially quoted in the "pink sheets" published by the National
Quotation Bureau, Inc.
In general there is greatest liquidity for traded securities
on the Nasdaq SmallCap Market, less on the NASD OTC Bulletin Board,
and least through quotation by the National Quotation Bureau, Inc.
on the "pink sheets". It is not possible to predict where, if at
all, the securities of Hercules will be traded following a business
combination and qualification of its securities for trading.
TRANSFER AGENT
It is anticipated that StockTrans, Inc., Ardmore,
Pennsylvania will act as transfer agent for the common stock of
Hercules.
PART II
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
(A) MARKET PRICE. There is no trading market for Hercules'
common stock at present and there has been no trading market to
date. There is no assurance that a trading market will ever develop
or, if such a market does develop, that it will continue.
The Securities and Exchange Commission has adopted Rule
15g-9 which establishes the definition of a "penny stock," for
purposes relevant to Hercules, as any equity security that has a
market price of less than $5.00 per share or with an exercise price
of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules
require:
(i) that a broker or dealer approve a person's account for
transactions in penny stocks and
(ii) the broker or dealer receive from the investor a
written agreement to the transaction, setting forth the identity and
quantity of the penny stock to be purchased.
In order to approve a person's account for transactions in
penny stocks, the broker or dealer must
(i) obtain financial information and investment experience
and objectives of the person; and
(ii) make a reasonable determination that the transactions
in penny stocks are suitable for that person and that person has
sufficient knowledge and experience in financial matters to be
capable of evaluating the risks of transactions in penny stocks.
The broker or dealer must also deliver, prior to any
transaction in a penny stock, a disclosure schedule prepared by the
Commission relating to the penny stock market, which, in highlight
form,
(i) sets forth the basis on which the broker or dealer made
the suitability determination and
(ii) that the broker or dealer received a signed, written
agreement from the investor prior to the transaction. Disclosure
also has to be made about the risks of investing in penny stocks in
both public offerings and in secondary trading, and about
commissions payable to both the broker-dealer and the registered
representative, current quotations for the securities and the rights
and remedies available to an investor in cases of fraud in penny
stock transactions.
Finally, monthly statements have to be sent disclosing
recent price information for the penny stock held in the account and
information on the limited market in penny stocks.
(B) HOLDERS. The issued and outstanding shares of the
common stock of Hercules were issued in accordance with the
exemptions from registration afforded by Section 4(2) of the
Securities Act of 1933.
(C) DIVIDENDS. Hercules has not paid any dividends to
date, and has no plans to do so in the immediate future.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against
Hercules.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Hercules has not changed accountants since its formation and
there are no disagreements with the findings of its accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, Hercules has issued 1,000,000
common shares pursuant to Section 4(2) of the Securities Act of 1933.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a
provision eliminating the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 (relating to liability for unauthorized
acquisitions or redemptions of, or dividends on, capital stock) of
the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal
benefit. Hercules' certificate of incorporation contains such a
provision.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS,
OFFICERS OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE
FOREGOING PROVISIONS, IT IS THE OPINION OF THE SECURITIES AND
EXCHANGE COMMISSION THAT SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
PART F/S
FINANCIAL STATEMENTS.
Set forth below are the audited financial statements for
Hercules for the period ended June 30, 2000. The following
financial statements are attached to this report and filed as a part
thereof.
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF JUNE 30, 2000
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF JUNE 30, 2000
PAGE 3 - STATEMENTS OF OPERATIONS FOR THE PERIODS
FROM JANUARY 1, 2000 TO JUNE 30, 2000 AND FROM
MARCH 24, 1999 (INCEPTION) TO JUNE 30, 2000
PAGE 4 - STATEMENT OF CHANGES IN STOCKHOLDER'S
EQUITY FOR THE PERIOD FROM MARCH 24, 1999
(INCEPTION) TO JUNE 30, 2000
PAGE 5 - STATEMENTS OF CASH FLOWS FOR THE PERIODS FROM
JANUARY 1, 2000 TO JUNE 30, 2000 AND FROM
MARCH 24, 1999 (INCEPTION) TO JUNE 30, 2000
PAGES 6 -8 - NOTES TO FINANCIAL STATEMENTS AS OF
JUNE 30, 2000
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Hercules Acquisition Corporation
(A Development Stage Company)
We have audited the accompanying balance sheet of Hercules Acquisition
Corporation (a development stage company) as of June 30, 2000 and
the related statements of operations, changes in stockholder's
equity and cash flows for the periods from January 1, 2000 to
June 30, 2000 and March 24, 1999 (inception) to June 30, 2000.
These financial statements are the
responsibility of the Company's management. Our responsibility is
to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly in all material respects, the financial position of Hercules
Acquisition Corporation (a development stage company) as of June
30, 2000, and the results of its operations and its cash flows for
the periods from January 1, 2000 to June 30, 2000 and March 24, 1999
(inception) to June 30, 2000 in conformity with generally accepted
accounting principles.
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
August 2, 2000
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF JUNE 30, 2000
ASSETS
Cash $ 100
TOTAL ASSETS $ 100
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES $ -
STOCKHOLDER'S EQUITY
Preferred Stock, $.0001 par value, 20,000,000
shares authorized, none issued and outstanding -
Common Stock, $.0001 par value, 100,000,000
shares authorized, 1,000,000 issued
and outstanding 100
Additional paid-in capital 535
Deficit accumulated during development stage (535)
Total Stockholder's Equity 100
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 100
See accompanying notes to financial statements.
2
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENTs OF OPERATIONS
March 24, 1999
January 1, 2000 (Inception) to
June 30, 2000 June 30, 2000
Income $ - $ -
Expenses
Organization expense - 535
Total expenses - 535
NET LOSS $ - (535)
See accompanying notes to financial statements.
3
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDER'S EQUITY
FOR THE PERIOD FROM MARCH 24, 1999 (INCEPTION)
TO JUNE 30, 2000
Deficit
Additional Accumulated
Common Stock Paid-In During
Issued Capital Development Total
Shares Amount Stage
Common stock issuance 1,000,000 $ 100 $ - $ - $ 100
Fair value of
expenses contributed - - 535 - 535
Net loss for the periods
ended:
December 31, 1999 - - - (535) (535)
June 30, 2000 - - - - -
BALANCE AT JUNE 30, 2000 1,000,000 $ 100 $ 535 $ (535) $ 100
See accompanying notes to financial statements.
4
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
March 24, 1999
January 1, 2000 (Inception) to
to June 30, 2000 June 30, 2000
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ - $ (535)
Adjustment to reconcile net loss
to net cash used by operating activities
Contributed expenses - 535
Net cash used in operating activities - -
CASH FLOWS FROM INVESTING ACTIVITIES - -
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock - 100
Net cash provided by financing activities - 100
INCREASE IN CASH AND CASH EQUIVALENTS - 100
CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD 100 -
CASH AND CASH EQUIVALENTS - END OF PERIOD $100 $100
See accompanying notes to financial statements.
5
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 2000
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
Hercules Acquisition Corporation (a development stage
company) ("the Company") was incorporated in Delaware on
March 24, 1999 to serve as a vehicle to effect a merger,
exchange of capital stock, asset acquisition or other
business combination with a domestic or foreign private
business. At June 30, 2000, the Company had not yet
commenced any formal business operations, and all activity
to date relates to the Company's formation and proposed
fund raising. The Company's fiscal year end is December 31.
The Company's ability to commence operations is contingent
upon its ability to identify a prospective target business
and raise the capital it will require through the issuance
of equity securities, debt securities, bank borrowings or
a combination thereof.
B. Use of Estimates
The preparation of the 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 revenues and expenses during the reporting period.
Actual results could differ from those estimates.
C. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company
considers all highly liquid investments purchased with an
original maturity of three months or less to be cash
equivalents.
6
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 2000
D. Income Taxes
The Company accounts for income taxes under the Financial
Accounting Standards Board of Financial Accounting
Standards No. 109, "Accounting for Income Taxes"
("Statement 109"). Under Statement 109, deferred tax
assets and liabilities are recognized for the future tax
consequences attributable to differences between the
financial statement carrying amounts of existing assets
and liabilities and their respective tax basis. Deferred
tax assets and liabilities are measured using enacted tax
rates expected to apply to taxable income in the years in
which those temporary differences are expected to be
recovered or settled. Under Statement 109, the effect on
deferred tax assets and liabilities of a change in tax
rates is recognized in income in the period that includes
the enactment date. There were no current or deferred
income tax expense or benefits due to the Company not
having any material operations for the period ending
June 30, 2000.
NOTE 2 - STOCKHOLDER'S EQUITY
A. Preferred Stock
The Company is authorized to issue 20,000,000 shares of
preferred stock at $.0001 par value, with such
designations, voting and other rights and preferences as
may be determined from time to time by the Board of
Directors.
B. Common Stock
The Company is authorized to issue 100,000,000 shares of
common stock at $.0001 par value. The Company issued
1,000,000 shares of its common stock to Pierce Mill Associates,
Inc. pursuant to Section 4(2) of the Securities Act of 1933 for
an aggregate consideration of $100.
7
HERCULES ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 2000
C. Additional Paid-In Capital
Additional paid-in capital at June 30, 2000 represents
the fair value of the amount of organization and
professional costs incurred by related parties on behalf
of the Company. (See Note 4)
NOTE 3 - AGREEMENT
On April 1, 1999, the Company signed an agreement with
Rock Creek Capital Corporaiton ("Rock Creek"), a related
entity (See Note 4). The Agreement calls for Rock Creek
to provide the following services, without
reimbursement from the Company, until the Company enters
into a business combination as described in Note 1A:
1. Preparation and filing of required documents with the
Securities and Exchange Commission.
2. Location and review of potential target companies.
3. Payment of all corporate, organizational, and other
costs incurred by the Company.
NOTE 4 - RELATED PARTIES
Legal counsel to the Company is a firm owned by a director
of the Company who also owns 100% of the outstanding stock
of Pierce Mill Associates, Inc. and Rock Creek. (See Note 3).
PART III
ITEM 1. INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
3.1 Certificate of Incorporation
3.2 By-Laws
3.3 Specimen stock certificate
10.1 Agreement with Rock Creek Capital Corporation
23.1 Consent of Accountants
27 Financial Data Schedule
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act
of 1934, the Registrant caused this registration statement to be
signed on its behalf by the undersigned thereunto duly authorized.
HERCULES ACQUISITION CORPORATION
By: ________________________________________
James M. Cassidy, President
DATE: August 24, 2000
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HERCULES ACQUISITION CORPORATION
ARTICLE ONE
Name
The name of the Corporation is Hercules Acquisition Corporation.
ARTICLE TWO
Duration
The Corporation shall have perpetual existence.
ARTICLE THREE
Purpose
The purpose for which this Corporation is organized is to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
ARTICLE FOUR
Shares
The total number of shares of stock which the Corporation
shall have authority to issue is 120,000,000 shares, consisting of
100,000,000 shares of Common Stock having a par value of $.0001 per
share and 20,000,000 shares of Preferred Stock having a par value of
$.0001 per share.
The Board of Directors is authorized to provide for the
issuance of the shares of Preferred Stock in series and, by filing a
certificate pursuant to the applicable law of the State of Delaware,
to establish from time to time the number of shares to be included
in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof.
The authority of the Board of Directors with respect to each
series of Preferred Stock shall include, but not be limited to,
determination of the following:
A. The number of shares constituting that series and the
distinctive designation of that series;
B. The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends
on share of that series;
C. Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such
voting rights;
D. Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as
the Board of Directors shall determine;
E. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
F. Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
G. The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
H. Any other relative rights, preferences and limitations of
that series.
ARTICLE FIVE
Commencement of Business
The Corporation is authorized to commence business as soon as
its certificate of incorporation has been filed.
ARTICLE SIX
Principal Office and Registered Agent
The post office address of the initial registered office of
the Corporation and the name of its initial registered agent and its
business address is
Inc. Plan (USA)
Trolley Square
Suite 26 C
Wilmington, Delaware 19806 (County of New Castle)
The initial registered agent is a resident of the State of
Delaware.
ARTICLE SEVEN
Incorporator
Lee W. Cassidy, 1504 R Street, N.W., Washington, D.C. 20009.
ARTICLE EIGHT
Pre-Emptive Rights
No Shareholder or other person shall have any pre-emptive
rights whatsoever.
ARTICLE NINE
By-Laws
The initial by-laws shall be adopted by the Shareholders or
the Board of Directors. The power to alter, amend, or repeal the
by-laws or adopt new by-laws is vested in the Board of Directors,
subject to repeal or change by action of the Shareholders.
ARTICLE TEN
Number of Votes
Each share of Common Stock has one vote on each matter on
which the share is entitled to vote.
ARTICLE ELEVEN
Majority Votes
A majority vote of a quorum of Shareholders (consisting of
the holders of a majority of the shares entitled to vote,
represented in person or by proxy) is sufficient for any action
which requires the vote or concurrence of Shareholders, unless
otherwise required or permitted by law or the by-laws of the
Corporation.
ARTICLE TWELVE
Non-Cumulative Voting
Directors shall be elected by majority vote. Cumulative
voting shall not be permitted.
ARTICLE THIRTEEN
Interested Directors, Officers and Securityholders
A. Validity. If Paragraph (B) is satisfied, no contract or
other transaction between the Corporation and any of its directors,
officers or securityholders, or any corporation or firm in which any
of them are directly or indirectly interested, shall be invalid
solely because of this relationship or because of the presence of
the director, officer or securityholder at the meeting of the Board
of Directors or committee authorizing the contract or transaction,
or his participation or vote in the meeting or authorization.
B. Disclosure, Approval, Fairness. Paragraph (A) shall
apply only if:
(1) The material facts of the relationship or interest of
each such director, officer or securityholder are known or disclosed:
(a) to the Board of Directors or the committee and it
nevertheless authorizes or ratifies the contract or transaction by a
majority of the directors present, each such interested director to
be counted in determining whether a quorum is present but not in
calculating the majority necessary to carry the vote; or
(b) to the Shareholders and they nevertheless authorize or
ratify the contract or transaction by a majority of the shares
present, each such interested person to be counted for quorum and
voting purposes; or
(2) the contract or transaction is fair to the Corporation
as of the time it is authorized or ratified by the Board of
Directors, the committee or the Shareholders.
ARTICLE FOURTEEN
Indemnification and Insurance
A. Persons. The Corporation shall indemnify, to the extent
provided in Paragraphs (B), (D) or (F) and to the extent permitted
from time to time by law:
(1) any person who is or was director, officer, agent or
employee of the Corporation, and
(2) any person who serves or served at the Corporation's
request as a director, officer, agent, employee, partner or trustee
of another corporation or of a partnership, joint venture, trust or
other enterprise.
B. Extent--Derivative Suits. In case of a suit by or in the
right of the Corporation against a person named in Paragraph (A) by
reason of his holding a position named in Paragraph (A), the
Corporation shall indemnify him, if he satisfies the standard in
Paragraph (C), for expenses (including attorney's fees but excluding
amounts paid in settlement) actually and reasonably incurred by him
in connection with the defense or settlement of the suit.
C. Standard--Derivative Suits. In case of a suit by or in
the right of the Corporation, a person named in Paragraph (A) shall
be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the
subject of the suit, and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Corporation.
However, he shall not be indemnified in respect of any claim, issue
or matter as to which he has been adjudged liable for negligence or
misconduct in the performance of his duty to the Corporation unless
(and only to the extent that) the court in which the suit was
brought shall determine, upon application, that despite the
adjudication but in view of all the circumstances, he is fairly and
reasonably entitled to indemnity for such expenses as the court
shall deem proper.
D. Extent--Nonderivative Suits. In case of a suit, action
or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the
Corporation against a person named in Paragraph (A) by reason of his
holding a position named in Paragraph (A), the Corporation shall
indemnify him, if he satisfies the standard in Paragraph (E), for
amounts actually and reasonably incurred by him in connection with
the defense or settlement of the suit as
(1) expenses (including attorneys' fees),
(2) amounts paid in settlement
(3) judgments, and
(4) fines.
E. Standard--Nonderivative Suits. In case of a
nonderivative suit, a person named in Paragraph (A) shall be
indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the
subject of the nonderivative suit, and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation and , with respect to any criminal action or proceeding,
he had no reason to believe his conduct was unlawful. The
termination of a nonderivative suit by judgement, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person failed to
satisfy this Paragraph (E) (2).
F. Determination That Standard Has Been Met. A
determination that the standard of Paragraph (C) or (E) has been
satisfied may be made by a court of law or equity or the
determination may be made by:
(1) a majority of the directors of the Corporation (whether
or not a quorum) who were not parties to the action, suit or
proceeding, or
(2) independent legal counsel (appointed by a majority of
the directors of the Corporation, whether or not a quorum, or
elected by the Shareholders of the Corporation) in a written
opinion, or
(3) the Shareholders of the Corporation.
G. Proration. Anyone making a determination under Paragraph
(F) may determine that a person has met the standard as to some
matters but not as to others, and may reasonably prorate amounts to
be indemnified.
H. Advance Payment. The Corporation may pay in advance any
expenses (including attorney's fees) which may become subject to
indemnification under paragraphs (A) - (G) if:
(1) the Board of Directors authorizes the specific payment and
(2) the person receiving the payment undertakes in writing
to repay unless it is ultimately determined that he is entitled to
indemnification by the Corporation under Paragraphs (A) - (G).
I. Nonexclusive. The indemnification provided by Paragraphs
(A) - (G) shall not be exclusive of any other rights to which a
person may be entitled by law or by by-law, agreement, vote of
Shareholders or disinterested directors, or otherwise.
J. Continuation. The indemnification and advance payment
provided by Paragraphs (A) - (H) shall continue as to a person who
has ceased to hold a position named in paragraph (A) and shall inure
to his heirs, executors and administrators.
K. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who holds or who has held any
position named in Paragraph (A) against any liability incurred by
him in any such positions or arising out of this status as such,
whether or not the Corporation would have power to indemnify him
against such liability under Paragraphs (A) - (H).
L. Reports. Indemnification payments, advance payments, and
insurance purchases and payments made under Paragraphs (A) - (K)
shall be reported in writing to the Shareholders of the Corporation
with the next notice of annual meeting, or within six months,
whichever is sooner.
M. Amendment of Article. Any changes in the General
Corporation Law of Delaware increasing, decreasing, amending,
changing or otherwise effecting the indemnification of directors,
officers, agents, or employees of the Corporation shall be
incorporated by reference in this Article as of the date of such
changes without further action by the Corporation, its Board of
Directors, of Shareholders, it being the intention of this Article
that directors, officers, agents and employees of the Corporation
shall be indemnified to the maximum degree allowed by the General
Corporation Law of the State of Delaware at all times.
ARTICLE FIFTEEN
Limitation On Director Liability
A. Scope of Limitation. No person, by virtue of being or
having been a director of the Corporation, shall have any personal
liability for monetary damages to the Corporation or any of its
Shareholders for any breach of fiduciary duty except as to the
extent provided in Paragraph (B).
B. Extent of Limitation. The limitation provided for in
this Article shall not eliminate or limit the liability of a
director to the Corporation or its Shareholders (i) for any breach
of the director's duty of loyalty to the Corporation or its
Shareholders (ii) for any acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law
(iii) for any unlawful payment of dividends or unlawful stock
purchases or redemptions in violation of Section 174 of the General
Corporation Law of Delaware or (iv) for any transaction for which
the director derived an improper personal benefit.
IN WITNESS WHEREOF, the incorporator hereunto has executed
this certificate of incorporation on this 22nd day of March, 1999.
Lee W. Cassidy, Incorporator
EXHIBIT 3.2
HERCULES ACQUISITION CORPORATION
BY-LAWS
ARTICLE I
The Stockholders
SECTION 1.1. ANNUAL MEETING. The annual meeting of the
stockholders of Hercules Acquisition Corporation (the "Corporation")
shall be held on the third Thursday in May of each year at 10:30
a.m. local time, or at such other date or time as shall be
designated from time to time by the Board of Directors and stated in
the notice of the meeting, for the election of directors and for the
transaction of such other business as may come before the meeting.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of the
stockholders may be called at any time by the written resolution or
request of two-thirds or more of the members of the Board of
Directors, the president, or any executive vice president and shall
be called upon the written request of the holders of two-thirds or
more in amount, of each class or series of the capital stock of the
Corporation entitled to vote at such meeting on the matters(s) that
are the subject of the proposed meeting, such written request in
each case to specify the purpose or purposes for which such meeting
shall be called, and with respect to stockholder proposals, shall
further comply with the requirements of this Article.
SECTION 1.3. NOTICE OF MEETINGS. Written notice of each
meeting of stockholders, whether annual or special, stating the
date, hour and place where it is to be held, shall be served either
personally or by mail, not less than fifteen nor more than sixty
days before the meeting, upon each stockholder of record entitled to
vote at such meeting, and to any other stockholder to whom the
giving of notice may be required by law. Notice of a special
meeting shall also state the purpose or purposes for which the
meeting is called and shall indicate that it is being issued by, or
at the direction of, the person or persons calling the meeting. If,
at any meeting, action is proposed to be taken that would, if taken,
entitle stockholders to receive payment for their stock, the notice
of such meeting shall include a statement of that purpose and to
that effect. If mailed, notice shall be deemed to be delivered when
deposited in the United States mail or with any private express mail
service, postage or delivery fee prepaid, and shall be directed to
each such stockholder at his address, as it appears on the records
of the stockholders of the Corporation, unless he shall have
previously filed with the secretary of the Corporation a written
request that notices intended for him be mailed to some other
address, in which case, it shall be mailed to the address designated
in such request.
SECTION 1.4. FIXING DATE OF RECORD. (a) In order that the
Corporation may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders, or any adjournment thereof,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to
notice of, or to vote at, a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of, or to
vote at, a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting (to the extent that such action by written consent
is permitted by law, the Certificate of Incorporation or these
By-Laws), the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date
shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by law, shall be
the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in its state of incorporation,
its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board
of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior
action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled
to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than
sixty days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
SECTION 1.5. INSPECTORS. At each meeting of the
stockholders, the polls shall be opened and closed and the proxies
and ballots shall be received and be taken in charge. All questions
touching on the qualification of voters and the validity of proxies
and the acceptance or rejection of votes, shall be decided by one or
more inspectors. Such inspectors shall be appointed by the Board of
Directors before or at the meeting, or, if no such appointment shall
have been made, then by the presiding officer at the meeting. If
for any reason any of the inspectors previously appointed shall fail
to attend or refuse or be unable to serve, inspectors in place of
any so failing to attend or refusing or unable to serve shall be
appointed in like manner.
SECTION 1.6. QUORUM. At any meeting of the stockholders,
the holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum of the
stockholders for all purposes, unless the representation of a larger
number shall be required by law, and, in that case, the
representation of the number so required shall constitute a quorum.
If the holders of the amount of stock necessary to constitute
a quorum shall fail to attend in person or by proxy at the time and
place fixed in accordance with these By-Laws for an annual or
special meeting, a majority in interest of the stockholders present
in person or by proxy may adjourn, from time to time, without notice
other than by announcement at the meeting, until holders of the
amount of stock requisite to constitute a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally notified.
SECTION 1.7. BUSINESS. The chairman of the Board, if any,
the president, or in his absence the vice-chairman, if any, or an
executive vice president, in the order named, shall call meetings of
the stockholders to order, and shall act as chairman of such
meeting; provided, however, that the Board of Directors or executive
committee may appoint any stockholder to act as chairman of any
meeting in the absence of the chairman of the Board. The secretary
of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the secretary at any meeting of
the stockholders, the presiding officer may appoint any person to
act as secretary of the meeting.
SECTION 1.8. STOCKHOLDER PROPOSALS. No proposal by a
stockholder shall be presented for vote at a special or annual
meeting of stockholders unless such stockholder shall, not later
than the close of business on the fifth day following the date on
which notice of the meeting is first given to stockholders, provide
the Board of Directors or the secretary of the Corporation with
written notice of intention to present a proposal for action at the
forthcoming meeting of stockholders, which notice shall include the
name and address of such stockholder, the number of voting
securities that he holds of record and that he holds beneficially,
the text of the proposal to be presented to the meeting and a
statement in support of the proposal.
Any stockholder who was a stockholder of record on the
applicable record date may make any other proposal at an annual
meeting or special meeting of stockholders and the same may be
discussed and considered, but unless stated in writing and filed
with the Board of Directors or the secretary prior to the date set
forth herein above, such proposal shall be laid over for action at
an adjourned, special, or annual meeting of the stockholders taking
place sixty days or more thereafter. This provision shall not
prevent the consideration and approval or disapproval at the annual
meeting of reports of officers, directors, and committees, but in
connection with such reports, no new business proposed by a
stockholder, qua stockholder, shall be acted upon at such annual
meeting unless stated and filed as herein provided.
Notwithstanding any other provision of these By-Laws, the
Corporation shall be under no obligation to include any stockholder
proposal in its proxy statement materials or otherwise present any
such proposal to stockholders at a special or annual meeting of
stockholders if the Board of Directors reasonably believes the
proponents thereof have not complied with Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder; nor shall the Corporation be required to
include any stockholder proposal not required to be included in its
proxy materials to stockholders in accordance with any such section,
rule or regulation.
SECTION 1.9. PROXIES. At all meetings of stockholders, a
stockholder entitled to vote may vote either in person or by proxy
executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary
before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise
provided in the proxy.
SECTION 1.10. VOTING BY BALLOT. The votes for directors,
and upon the demand of any stockholder or when required by law, the
votes upon any question before the meeting, shall be by ballot.
SECTION 1.11. VOTING LISTS. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, 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 of stock registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.12. PLACE OF MEETING. The Board of Directors may
designate any place, either within or without the state of
incorporation, as the place of meeting for any annual meeting or any
special meeting called by the Board of Directors. If no designation
is made or if a special meeting is otherwise called, the place of
meeting shall be the principal office of the Corporation.
SECTION 1.13. VOTING OF STOCK OF CERTAIN HOLDERS. Shares of
capital stock of the Corporation standing in the name of another
corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or
in the absence of such provision, as the board of directors of such
corporation may determine.
Shares of capital stock of the Corporation standing in the
name of a deceased person, a minor ward or an incompetent person may
be voted by his administrator, executor, court-appointed guardian or
conservator, either in person or by proxy, without a transfer of
such stock into the name of such administrator, executor,
court-appointed guardian or conservator. Shares of capital stock of
the Corporation standing in the name of a trustee may be voted by
him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the
name of a receiver may be voted, either in person or by proxy, by
such receiver, and stock held by or under the control of a receiver
may be voted by such receiver without the transfer thereof into his
name if authority to do so is contained in any appropriate order of
the court by which such receiver was appointed.
A stockholder whose stock is pledged shall be entitled to
vote such stock, either in person or by proxy, until the stock has
been transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote, either in person or by proxy, the
stock so transferred.
Shares of its own capital stock belonging to this Corporation
shall not be voted, directly or indirectly, at any meeting and shall
not be counted in determining the total number of outstanding stock
at any given time, but shares of its own stock held by it in a
fiduciary capacity may be voted and shall be counted in determining
the total number of outstanding stock at any given time.
ARTICLE II
Board of Directors
SECTION 2.1. GENERAL POWERS. The business, affairs, and the
property of the Corporation shall be managed and controlled by the
Board of Directors (the "Board"), and, except as otherwise expressly
provided by law, the Certificate of Incorporation or these By-Laws,
all of the powers of the Corporation shall be vested in the Board.
SECTION 2.2. NUMBER OF DIRECTORS. The number of directors
which shall constitute the whole Board shall be not fewer than one
nor more than five. Within the limits above specified, the number
of directors shall be determined by the Board of Directors pursuant
to a resolution adopted by a majority of the directors then in
office.
SECTION 2.3. ELECTION, TERM AND REMOVAL. Directors shall be
elected at the annual meeting of stockholders to succeed those
directors whose terms have expired. Each director shall hold office
for the term for which elected and until his or her successor shall
be elected and qualified. Directors need not be stockholders. A
director may be removed from office at a meeting expressly called
for that purpose by the vote of not less than a majority of the
outstanding capital stock entitled to vote at an election of directors.
SECTION 2.4. VACANCIES. Vacancies in the Board of
Directors, including vacancies resulting from an increase in the
number of directors, may be filled by the affirmative vote of a
majority of the remaining directors then in office, though less than
a quorum; except that vacancies resulting from removal from office
by a vote of the stockholders may be filled by the stockholders at
the same meeting at which such removal occurs provided that the
holders of not less than a majority of the outstanding capital stock
of the Corporation (assessed upon the basis of votes and not on the
basis of number of shares) entitled to vote for the election of
directors, voting together as a single class, shall vote for each
replacement director. All directors elected to fill vacancies shall
hold office for a term expiring at the time of the next annual
meeting of stockholders and upon election and qualification of his
successor. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of an incumbent director.
SECTION 2.5. RESIGNATIONS. Any director of the Corporation
may resign at any time by giving written notice to the president or
to the secretary of the Corporation. The resignation of any
director shall take effect at the time specified therein and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 2.6. PLACE OF MEETINGS, ETC. The Board of Directors
may hold its meetings, and may have an office and keep the books of
the Corporation (except as otherwise may be provided for by law), in
such place or places in or outside the state of incorporation as the
Board from time to time may determine.
SECTION 2.7. REGULAR MEETINGS. Regular meetings of the
Board of Directors shall be held as soon as practicable after
adjournment of the annual meeting of stockholders at such time and
place as the Board of Directors may fix. No notice shall be
required for any such regular meeting of the Board.
SECTION 2.8. SPECIAL MEETINGS. Special meetings of the
Board of Directors shall be held at places and times fixed by
resolution of the Board of Directors, or upon call of the chairman
of the Board, if any, or vice-chairman of the Board, if any, the
president, an executive vice president or two-thirds of the
directors then in office.
The secretary or officer performing the secretary's duties
shall give not less than twenty-four hours' notice by letter,
telegraph or telephone (or in person) of all special meetings of the
Board of Directors, provided that notice need not given of the
annual meeting or of regular meetings held at times and places fixed
by resolution of the Board. Meetings may be held at any time
without notice if all of the directors are present, or if those not
present waive notice in writing either before or after the meeting.
The notice of meetings of the Board need not state the purpose of
the meeting.
SECTION 2.9. PARTICIPATION BY CONFERENCE TELEPHONE. Members
of the Board of Directors of the Corporation, or any committee
thereof, may participate in a regular or special or any other
meeting of the 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 such
participation shall constitute presence in person at such meeting.
SECTION 2.10. ACTION BY WRITTEN CONSENT. 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 prior or subsequent to such action all the members of the
Board or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
the proceedings of the Board or committee.
SECTION 2.11. QUORUM. A majority of the total number of
directors then in office shall constitute a quorum for the
transaction of business; but if at any meeting of the Board there be
less than a quorum present, a majority of those present may adjourn
the meeting from time to time.
SECTION 2.12. BUSINESS. Business shall be transacted at
meetings of the Board of Directors in such order as the Board may
determine. At all meetings of the Board of Directors, the chairman
of the Board, if any, the president, or in his absence the
vice-chairman, if any, or an executive vice president, in the order
named, shall preside.
SECTION 2.13. INTEREST OF DIRECTORS IN CONTRACTS. (a) No
contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of the Corporation's directors or officers, are
directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board
or committee which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee,
and the Board or committee in good faith authorizes
the contract or transaction by the affirmative votes
of a majority of the disinterested directors, even
though the disinterested directors be less than a
quorum; or
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote
thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified, by the Board of Directors, a committee of
the Board of Directors or the stockholders.
(b) Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
SECTION 2.14. COMPENSATION OF DIRECTORS. Each director of
the Corporation who is not a salaried officer or employee of the
Corporation, or of a subsidiary of the Corporation, shall receive
such allowances for serving as a director and such fees for
attendance at meetings of the Board of Directors or the executive
committee or any other committee appointed by the Board as the Board
may from time to time determine.
SECTION 2.15. LOANS TO OFFICERS OR EMPLOYEES. The Board of
Directors may lend money to, guarantee any obligation of, or
otherwise assist, any officer or other employee of the Corporation
or of any subsidiary, whether or not such officer or employee is
also a director of the Corporation, whenever, in the judgment of the
directors, such loan, guarantee, or assistance may reasonably be
expected to benefit the Corporation; provided, however, that any
such loan, guarantee, or other assistance given to an officer or
employee who is also a director of the Corporation must be
authorized by a majority of the entire Board of Directors. Any such
loan, guarantee, or other assistance may be made with or without
interest and may be unsecured or secured in such manner as the Board
of Directors shall approve, including, but not limited to, a pledge
of shares of the Corporation, and may be made upon such other terms
and conditions as the Board of Directors may determine.
SECTION 2.16. NOMINATION. Subject to the rights of holders
of any class or series of stock having a preference over the common
stock as to dividends or upon liquidation, nominations for the
election of directors may be made by the Board of Directors or by
any stockholder entitled to vote in the election of directors
generally. However, any stockholder entitled to vote in the
election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such
stockholder's intent to make such nomination or nominations has been
given, either by personal delivery or by United States mail, postage
prepaid, to the secretary of the Corporation not later than (i) with
respect to an election to be held at an annual meeting of
stockholders, the close of business on the last day of the eighth
month after the immediately preceding annual meeting of
stockholders, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, the
close of business on the fifth day following the date on which
notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder
who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission, had
the nominee been nominated, or intended to be nominated, by the
Board of Directors, and; (e) the consent of each nominee to serve as
a director of the Corporation if so elected. The presiding officer
at the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
ARTICLE III
Committees
SECTION 3.1. COMMITTEES. The Board of Directors, by
resolution adopted by a majority of the number of directors then
fixed by these By-Laws or resolution thereto, may establish such
standing or special committees of the Board as it may deem
advisable, and the members, terms, and authority of such committees
shall be set forth in the resolutions establishing such committee.
SECTION 3.2. EXECUTIVE COMMITTEE NUMBER AND TERM OF OFFICE.
The Board of Directors may, at any meeting, by majority vote of the
Board of Directors, elect from the directors an executive committee.
The executive committee shall consist of such number of members as
may be fixed from time to time by resolution of the Board of
Directors. The Board of Directors may designate a chairman of the
committee who shall preside at all meetings thereof, and the
committee shall designate a member thereof to preside in the absence
of the chairman.
SECTION 3.3. EXECUTIVE COMMITTEE POWERS. The executive
committee may, while the Board of Directors is not in session,
exercise all or any of the powers of the Board of Directors in all
cases in which specific directions shall not have been given by the
Board of Directors; except that the executive committee shall not
have the power or authority of the Board of Directors to (i) amend
the Certificate of Incorporation or the By-Laws of the Corporation,
(ii) fill vacancies on the Board of Directors, (iii) adopt an
agreement or certification of ownership, merger or consolidation,
(iv) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets,
or a dissolution of the Corporation or a revocation of a
dissolution, (v) declare a dividend, or (vi) authorize the issuance
of stock.
SECTION 3.4. EXECUTIVE COMMITTEE MEETINGS. Regular and
special meetings of the executive committee may be called and held
subject to the same requirements with respect to time, place and
notice as are specified in these By-Laws for regular and special
meetings of the Board of Directors. Special meetings of the
executive committee may be called by any member thereof. Unless
otherwise indicated in the notice thereof, any and all business may
be transacted at a special or regular meeting of the executive
meeting if a quorum is present. At any meeting at which every
member of the executive committee shall be present, in person or by
telephone, even though without any notice, any business may be
transacted. All action by the executive committee shall be reported
to the Board of Directors at its meeting next succeeding such
action.
The executive committee shall fix its own rules of procedure,
and shall meet where and as provided by such rules or by resolution
of the Board of Directors, but in every case the presence of a
majority of the total number of members of the executive committee
shall be necessary to constitute a quorum. In every case, the
affirmative vote of a quorum shall be necessary for the adoption of
any resolution.
SECTION 3.5. EXECUTIVE COMMITTEE VACANCIES. The Board of
Directors, by majority vote of the Board of Directors then in
office, shall fill vacancies in the executive committee by election
from the directors.
ARTICLE IV
The Officers
SECTION 4.1. NUMBER AND TERM OF OFFICE. The officers of the
Corporation shall consist of, as the Board of Directors may
determine and appoint from time to time, a chief executive officer,
a president, one or more executive vice-presidents, a secretary, a
treasurer, a controller, and/or such other officers as may from time
to time be elected or appointed by the Board of Directors, including
such additional vice-presidents with such designations, if any, as
may be determined by the Board of Directors and such assistant
secretaries and assistant treasurers. In addition, the Board of
Directors may elect a chairman of the Board and may also elect a
vice-chairman as officers of the Corporation. Any two or more
offices may be held by the same person. In its discretion, the
Board of Directors may leave unfilled any office except as may be
required by law.
The officers of the Corporation shall be elected or appointed
from time to time by the Board of Directors. Each officer shall
hold office until his successor shall have been duly elected or
appointed or until his death or until he shall resign or shall have
been removed by the Board of Directors.
Each of the salaried officers of the Corporation shall devote
his entire time, skill and energy to the business of the
Corporation, unless the contrary is expressly consented to by the
Board of Directors or the executive committee.
SECTION 4.2. REMOVAL. Any officer may be removed by the
Board of Directors whenever, in its judgment, the best interests of
the Corporation would be served thereby.
SECTION 4.3. THE CHAIRMAN OF THE BOARD. The chairman of the
Board, if any, shall preside at all meetings of stockholders and of
the Board of Directors and shall have such other authority and
perform such other duties as are prescribed by law, by these By-Laws
and by the Board of Directors. The Board of Directors may designate
the chairman of the Board as chief executive officer, in which case
he shall have such authority and perform such duties as are
prescribed by these By-Laws and the Board of Directors for the chief
executive officer.
SECTION 4.4. THE VICE-CHAIRMAN. The vice-chairman, if any,
shall have such authority and perform such other duties as are
prescribed by these By-Laws and by the Board of Directors. In the
absence or inability to act of the chairman of the Board and the
president, he shall preside at the meetings of the stockholders and
of the Board of Directors and shall have and exercise all of the
powers and duties of the chairman of the Board. The Board of
Directors may designate the vice-chairman as chief executive
officer, in which case he shall have such authority and perform such
duties as are prescribed by these By-Laws and the Board of Directors
for the chief executive officer.
SECTION 4.5. THE PRESIDENT. The president shall have such
authority and perform such duties as are prescribed by law, by these
By-Laws, by the Board of Directors and by the chief executive
officer (if the president is not the chief executive officer). The
president, if there is no chairman of the Board, or in the absence
or the inability to act of the chairman of the Board, shall preside
at all meetings of stockholders and of the Board of Directors.
Unless the Board of Directors designates the chairman of the Board
or the vice-chairman as chief executive officer, the president shall
be the chief executive officer, in which case he shall have such
authority and perform such duties as are prescribed by these By-Laws
and the Board of Directors for the chief executive officer.
SECTION 4.6. THE CHIEF EXECUTIVE OFFICER. Unless the Board
of Directors designates the chairman of the Board or the
vice-chairman as chief executive officer, the president shall be the
chief executive officer. The chief executive officer of the
Corporation shall have, subject to the supervision and direction of
the Board of Directors, general supervision of the business,
property and affairs of the Corporation, including the power to
appoint and discharge agents and employees, and the powers vested in
him by the Board of Directors, by law or by these By-Laws or which
usually attach or pertain to such office.
SECTION 4.7. THE EXECUTIVE VICE-PRESIDENTS. In the absence
of the chairman of the Board, if any, the president and the
vice-chairman, if any, or in the event of their inability or refusal
to act, the executive vice-president (or in the event there is more
than one executive vice-president, the executive vice-presidents in
the order designated, or in the absence of any designation, then in
the order of their election) shall perform the duties of the
chairman of the Board, of the president and of the vice-chairman,
and when so acting, shall have all the powers of and be subject to
all the restrictions upon the chairman of the Board, the president
and the vice-chairman. Any executive vice-president may sign, with
the secretary or an authorized assistant secretary, certificates for
stock of the Corporation and shall perform such other duties as from
time to time may be assigned to him by the chairman of the Board,
the president, the vice-chairman, the Board of Directors or these
By-Laws.
SECTION 4.8. THE VICE-PRESIDENTS. The vice-presidents, if
any, shall perform such duties as may be assigned to them from time
to time by the chairman of the Board, the president, the
vice-chairman, the Board of Directors, or these By-Laws.
SECTION 4.9. THE TREASURER. Subject to the direction of
chief executive officer and the Board of Directors, the treasurer
shall have charge and custody of all the funds and securities of the
Corporation; when necessary or proper he shall endorse for
collection, or cause to be endorsed, on behalf of the Corporation,
checks, notes and other obligations, and shall cause the deposit of
the same to the credit of the Corporation in such bank or banks or
depositary as the Board of Directors may designate or as the Board
of Directors by resolution may authorize; he shall sign all receipts
and vouchers for payments made to the Corporation other than routine
receipts and vouchers, the signing of which he may delegate; he
shall sign all checks made by the Corporation (provided, however,
that the Board of Directors may authorize and prescribe by
resolution the manner in which checks drawn on banks or depositories
shall be signed, including the use of facsimile signatures, and the
manner in which officers, agents or employees shall be authorized to
sign); unless otherwise provided by resolution of the Board of
Directors, he shall sign with an officer-director all bills of
exchange and promissory notes of the Corporation; whenever required
by the Board of Directors, he shall render a statement of his cash
account; he shall enter regularly full and accurate account of the
Corporation in books of the Corporation to be kept by him for that
purpose; he shall, at all reasonable times, exhibit his books and
accounts to any director of the Corporation upon application at his
office during business hours; and he shall perform all acts incident
to the position of treasurer. If required by the Board of
Directors, the treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such sure ties as the
Board of Directors may require.
SECTION 4.10. THE SECRETARY. The secretary shall keep the
minutes of all meetings of the Board of Directors, the minutes of
all meetings of the stockholders and (unless otherwise directed by
the Board of Directors) the minutes of all committees, in books
provided for that purpose; he shall attend to the giving and serving
of all notices of the Corporation; he may sign with an
officer-director or any other duly authorized person, in the name of
the Corporation, all contracts authorized by the Board of Directors
or by the executive committee, and, when so ordered by the Board of
Directors or the executive committee, he shall affix the seal of the
Corporation thereto; he may sign with the president or an executive
vice-president all certificates of shares of the capital stock; he
shall have charge of the certificate books, transfer books and stock
ledgers, and such other books and papers as the Board of Directors
or the executive committee may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon
application at the secretary's office during business hours; and he
shall in general perform all the duties incident to the office of
the secretary, subject to the control of the chief executive officer
and the Board of Directors.
SECTION 4.11. THE CONTROLLER. The controller shall be the
chief accounting officer of the Corporation. Subject to the
supervision of the Board of Directors, the chief executive officer
and the treasurer, the controller shall provide for and maintain
adequate records of all assets, liabilities and transactions of the
Corporation, shall see that accurate audits of the Corporation's
affairs are currently and adequately made and shall perform such
other duties as from time to time may be assigned to him.
SECTION 4.12. THE ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES. The assistant treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the
Board of Directors may determine. The assistant secretaries as
thereunto authorized by the Board of Directors may sign with the
chairman of the Board, the president, the vice-chairman or an
executive vice-president, certificates for stock of the Corporation,
the issue of which shall have been authorized by a resolution of the
Board of Directors. The assistant treasurers and assistant
secretaries, in general, shall perform such duties as shall be
assigned to them by the treasurer or the secretary, respectively, or
chief executive officer, the Board of Directors, or these By-Laws.
SECTION 4.13. SALARIES. The salaries of the officers shall
be fixed from time to time by the Board of Directors, and no officer
shall be prevented from receiving such salary by reason of the fact
that he is also a director of the Corporation.
SECTION 4.14. VOTING UPON STOCKS. Unless otherwise ordered
by the Board of Directors or by the executive committee, any
officer, director or any person or persons appointed in writing by
any of them, shall have full power and authority in behalf of the
Corporation to attend and to act and to vote at any meetings of
stockholders of any corporation in which the Corporation may hold
stock, and at any such meeting shall possess and may exercise any
and all the rights and powers incident to the ownership of such
stock, and which, as the owner thereof, the Corporation might have
possessed and exercised if present. The Board of Directors may
confer like powers upon any other person or persons.
ARTICLE V
Contracts and Loans
SECTION 5.1. CONTRACTS. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
SECTION 5.2. LOANS. No loans shall be contracted on behalf
of the Corporation and no evidences of indebtedness shall be issued
in its name unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific
instances.
ARTICLE VI
Certificates for Stock and Their Transfer
SECTION 6.1. CERTIFICATES FOR STOCK. Certificates
representing stock of the Corporation shall be in such form as may
be determined by the Board of Directors. Such certificates shall be
signed by the chairman of the Board, the president, the
vice-chairman or an executive vice-president and/or by the secretary
or an authorized assistant secretary and shall be sealed with the
seal of the Corporation. The seal may be a facsimile. If a stock
certificate is countersigned (i) by a transfer agent other than the
Corporation or its employee, or (ii) by a registrar other than the
Corporation or its employee, any other signature on the certificate
may be a facsimile. In the event that any officer, transfer agent
or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. All
certificates for stock shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares of stock
represented thereby are issued, with the number of shares of stock
and date of issue, shall be entered on the books of the Corporation.
All certificates surrendered to the Corporation for transfer shall
be canceled and no new certificates shall be issued until the former
certificate for a like number of shares of stock shall have been
surrendered and canceled, except that, in the event of a lost,
destroyed or mutilated certificate, a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
SECTION 6.2. TRANSFERS OF STOCK. Transfers of stock of the
Corporation shall be made only on the books of the Corporation by
the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his
attorney thereunto authorized by power of attorney duly executed and
filed with the secretary of the Corporation, and on surrender for
cancellation of the certificate for such stock. The person in whose
name stock stands on the books of the Corporation shall be deemed
the owner thereof for all purposes as regards the Corporation.
ARTICLE VII
Fiscal Year
SECTION 7.1. FISCAL YEAR. The fiscal year of the
Corporation shall begin on the first day of January in each year and
end on the last day of December in each year.
ARTICLE VIII
Seal
SECTION 8.1. SEAL. The Board of Directors shall approve a
corporate seal which shall be in the form of a circle and shall have
inscribed thereon the name of the Corporation.
ARTICLE IX
Waiver of Notice
SECTION 9.1. WAIVER OF NOTICE. Whenever any notice is
required to be given under the provisions of these By-Laws or under
the provisions of the Certificate of Incorporation or under the
provisions of the corporation law of the state of incorporation,
waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Attendance
of any person at a meeting for which any notice is required to be
given under the provisions of these By-Laws, the Certificate of
Incorporation or the corporation law of the state of incorporation
shall constitute a waiver of notice of such meeting except when the
person attends for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
ARTICLE X
Amendments
SECTION 10.1. AMENDMENTS. These By-Laws may be
altered, amended or repealed and new By-Laws may be adopted
at any meeting of the Board of Directors of the Corporation
by the affirmative vote of a majority of the members of the
Board, or by the affirmative vote of a majority of the
outstanding capital stock of the Corporation (assessed upon
the basis of votes and not on the basis of number of shares)
entitled to vote generally in the election of directors,
voting together as a single class.
ARTICLE XI
Indemnification
SECTION 11.1. INDEMNIFICATION. The Corporation shall
indemnify its officers, directors, employees and agents to
the fullest extent permitted by the General Corporation Law
of Delaware, as amended from time to time.
[END]
EXHIBIT 3.3
Number Shares
Incorporated under the laws of the state of Delaware
HERCULES ACQUISITION CORPORATION
Authorized to issue 120,000,000 shares
100,000,000 common shares 20,000,000 preferred shares
par value $.0001 each par value $.0001 each
This certifies that
_______________________________ is the owner of _____________________ fully
paid and non-assessable Shares
of the Common Shares of HERCULES ACQUISITION CORPORATION
transferrable only on the books of the Corporation by the holder hereof
in person or by duly authorized Attorney upon surrender of this
Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this
Certificate to be signed by its duly authorized officers and to be sealed
with the Seal of the Corporation this ________ day of ____________A.D.
_____________________________________
President
[SEAL]
(Reverse side of stock certificate)
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations. Additional
abbreviations may also be used though not in the list.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- ____________Custodian
_________(Minor) under Uniform Gifts to Minors Act
_______________(State)
For value received, the undersigned hereby sells, assigns and
transfers unto _____________________________ (please insert social security
or other identifying number of assignee) ___________________________________
____________________________________________________________________
(please print or typewrite name and address of assignee)
_____________________________ Shares represented by the within
Certificate, and hereby irrevocably constitutes and appoints
____________________ Attorney to transfer the said shares on the books
of the within-named Corporation with full power of substitution in the
premises.
Dated,
_______________________________
___________________________________
In presence of
_______________________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the certificate in every particular
without alteration or enlargement, or any change whatever.
EXHIBIT 10.1
AGREEMENT between ROCK CREEK CAPITAL CORPORATION
("Rock Creek") and HERCULES ACQUISITION CORPORATION (the "Company").
WHEREAS the Company is a development stage company
that has no specific business plan and intends to merge,
acquire or otherwise combine with an unidentified company
(the "Business Combination");
WHEREAS the Company desires that Rock Creek assist
it in locating a suitable target company for a Business
Combination;
NOW THEREFORE, it is agreed:
1.00 ACTIONS BY ROCK CREEK. Rock Creek,
directly or through its affiliates, agrees to assist in:
1.01 The preparation and filing with the
Securities and Exchange Commission of a registration
statement on Form 10-SB for the common stock of the Company;
1.02 The location and review of potential
target companies for a business combination and the
introduction of potential candidates to the Company;
1.03 The preparation and filing with the
Securities and Exchange Commission of all required
filings under the Securities Exchange Act of 1934 until
the Company enters into a business combination;
1.04 The preparation and filing with the
Securities and Exchange Commission of a registration
statement on Form S-1, SB-2 or F-1, if requested.
2.00 PAYMENT OF THE COMPANY EXPENSES. Rock
Creek agrees to pay on behalf of the Company all
corporate, organizational and other costs incurred or
accrued by the Company until effectiveness of a business
combination. Rock Creek understands and agrees that it
will not be reimbursed for any payments made by it on
behalf of the Company.
3.00 INDEPENDENT CONSULTANT. Rock Creek is
not now, and shall not be, authorized to enter into any
agreements, contracts or understandings on behalf of the
Company and Rock Creek is not, and shall not be deemed to
be, an agent of the Company.
4.00 USE OF OTHER CONSULTANTS. The Company
understands and agrees that Rock Creek intends to work
with consultants, brokers, bankers, or others to assist
it in locating business entities suitable for a business
combination and that Rock Creek may share with such
consultants or others, in its sole discretion, all or any
portion of stock owned by it or an affiliate in the
Company and may make payments to such consultants from
its own resources for their services. The Company shall
have no responsibility for all or any portion of such
payments.
5.00 ROCK CREEK EXPENSES. Rock Creek will bear
its own expenses incurred in regard to its actions under
this agreement.
6.00 ARBITRATION. The parties hereby agree
that any and all claims (except only for requests for
injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties
or any affiliates may be adverse parties, and whether
arising out of this agreement or from any other cause,
will be resolved by arbitration before the American
Arbitration Association within the District of Columbia.
7.00 COVENANT OF FURTHER ASSURANCES. The
parties agree to take any further actions and to execute
any further documents which may from time to time be
necessary or appropriate to carry out the purposes of
this agreement.
8.00 EFFECTIVE DATE. The effective date of
this agreement is as of April 1, 1999.
IN WITNESS WHEREOF, the parties have approved and
executed this agreement.
ROCK CREEK CAPITAL CORPORATION
_____________________________________
President
HERCULES ACQUISITION CORPORATION
__________________________________
President
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB
Registration Statement, of Hercules Acquisition
Corporation our report as of June 30, 2000 and for the
periods from January 1, 2000 to June 30, 2000 and March
24, 1999 (inception) to June 30, 2000, dated August 2,
2000, relating to the financial statements of Hercules
Acquisition Corporation which appear in such Form 10-SB.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
August 24, 2000
