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PRELIMINARY CONSENT STATEMENT
SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN CONSENT STATEMENT
SCHEDULE 14A INFORMATION
Consent Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Consent Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Consent Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
NUWEB SOLUTIONS, INC. (FORMERLY KNOWN AS THE CONTINUUM GROUP, INC.)
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(Name of Registrant as Specified In Its Charter)
PERFORMANCE CAPITAL INVESTMENTS L.L.C.,
MICHAEL WAINSTEIN, ESQ., AND ROBERT L. FROME, ESQ.
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(Name of Person(s) Filing Consent Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1. Title of each class of securities to which transaction applies:
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2. Aggregate number of securities to which transaction applies:
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3. Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was
determined):
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4 Proposed maximum aggregate value of transaction:
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5 Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1. Amount Previously Paid:
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2. Form, Schedule or Registration Statement No.:
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3 Filing Party:
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4. Date Filed:
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Performance Capital Investments L.L.C.
6044 Rossmoor Lakes Court
Boynton Beach, Florida 33437
Telephone: (561) 733-2823
Facsimile: (305) 373-3739
December __, 2000
Dear NUWEB Solutions, Inc. Stockholders:
Through the attached Consent Statement, we are asking you to assist
Michael Wainstein, Robert L. Frome and Performance Capital Investments L.L.C. to
replace the Board of Directors of NUWEB Solutions, Inc. (formerly known as The
Continuum Group, Inc.) with the three persons listed in the Consent Statement.
We strongly urge all NUWEB stockholders to express their consent to do so by
marking, signing and dating the enclosed WHITE consent card and returning it via
facsimile to (305) 373-3739, and via mail in the enclosed, postage-paid
envelope, to Performance Capital Investments L.L.C. as set forth in the Consent
Statement.
Only stockholders of record at the close of business on November 29,
2000, are entitled to vote in connection with this consent solicitation. If you
were a stockholder of record on November 29, 2000, but subsequently sold your
stock, you still retain your voting rights.
Please sign and return your consent cards today and in no case, later
than Sunday, January 28, 2001. If you have questions please feel free to call
Michael Wainstein at (212) 755-1222 or me at (561) 733-2823.
Sincerely,
Bernard M. Marcus
Managing Member
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IMPORTANT
1. If your shares of NUWEB Common Stock are held in your own name, please
sign and date the enclosed WHITE consent card and then send it via
facsimile to (305) 373-3739, and mail it to Performance Capital
Investments L.L.C., in the postage-paid envelope provided.
2. If your shares of NUWEB Common Stock are held in "street name," only
your broker or bank can execute a consent with respect to your shares
and only upon receipt of your specific instructions. Accordingly, you
should deliver the enclosed WHITE consent card to your broker or bank,
contact the person responsible for your account and give instructions
for signing the WHITE consent card representing your shares. We urge
you to confirm in writing your instructions to the person responsible
for your account and provide a copy of those instructions to
Performance Capital Investments L.L.C., so that we will be aware of all
instructions given and can attempt to ensure that such instructions are
followed.
If you have any questions or require any assistance in executing your consent,
please call:
Performance Capital Investments L.L.C. Michael Wainstein
6044 Rossmoor Lakes Court 505 Park Avenue
Boynton Beach, Florida 33437 New York, New York 10022
Telephone: (561) 733-2823 Telephone: (212) 755-1222
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PRELIMINARY COPY - SUBJECT TO COMPLETION,
DATED DECEMBER 12, 2000
CONSENT STATEMENT
OF
PERFORMANCE CAPITAL INVESTMENTS L.L.C.,
MICHAEL WAINSTEIN AND ROBERT L. FROME
GENERAL
Performance Capital Investments L.L.C., a Delaware limited liability
company ("PCI"), Michael Wainstein and Robert L. Frome (collectively, the
"Participants") are furnishing this Consent Statement and form of written
consent in connection with their solicitation of written consents from the
holders of common stock, par value $0.015 per share (the "Common Stock") of
NUWEB Solutions, Inc. (formerly known as The Continuum Group, Inc.), a Delaware
corporation ("NUWEB"), to take the following actions, in the order set forth
below, without the necessity of a meeting of NUWEB's stockholders, as authorized
by Delaware law:
1. Eliminate ARTICLE II, Section 3, of the Bylaws of NUWEB
thereby permitting the stockholders, as well as the Board of
Directors, to fill vacancies on the Board;
2. Remove the existing members of NUWEB's Board of Directors;
3. Fix the number of persons constituting the Board of Directors
of NUWEB at three persons; and
4. Elect the following nominees, Bernard M. Marcus, Michael A.
Ciccoricco and Anthony T. Ottaviano (collectively, the
"Nominees") as directors of NUWEB to serve until their
respective successors are duly elected and qualified.
All of the foregoing actions (collectively, the "Proposals") are
designed to permit the Participants to replace the persons constituting the
Board of Directors of NUWEB with the Nominees as described herein. The
Participants ask that you express your consent to the Proposals by marking,
signing and dating the enclosed WHITE consent card and returning it via
facsimile to (305) 373-3739 and via mail in the enclosed, postage-paid envelope
to the Participants in accordance with the instructions set forth below.
The Proposals will become effective when properly completed, unrevoked
consents are signed by the holders of record on the Record Date (as defined
below) of a majority of the shares of Common Stock then outstanding and such
consents are delivered to NUWEB on or before Sunday, January 28, 2001 (the
"Effective Date"). See "Consent Procedure." Accordingly, holders of record on
the Record Date are urged to execute and return a consent to the Participants no
later than Sunday, January 28, 2001, to ensure delivery on the Effective Date.
Additionally, because the Proposals will become effective only if executed
consents are returned by holders of record on the Record Date of a majority of
the outstanding shares of Common Stock, the failure to execute and timely return
a consent will have the same effect as voting against the Proposals.
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The effectiveness of the consents is conditioned on the receipt of
approval of all of the Proposals. Consequently, if all of the Proposals are not
approved, none of the Proposals will be enacted even though sufficient consents
may have been received to approve a particular Proposal.
THIS CONSENT SOLICITATION IS BEING MADE BY THE PARTICIPANTS AND NOT ON
BEHALF OF THE CURRENT BOARD OF DIRECTORS OF NUWEB.
The record date for this Consent Statement is November 29, 2000 (the
"Record Date"). Stockholders who sold shares of Common Stock subsequent to
November 29, 2000, still retain their voting rights with respect to such shares.
This Consent Statement and the enclosed WHITE consent card are first being
furnished to NUWEB's stockholders on or about December ___, 2000.
Certain information regarding consent procedures is found beginning on
page 6.
The Participants recommend that you consent to each of the Proposals.
The information contained in this Consent Statement includes forward-looking
statements within the meaning of Section 21E of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). Such statements are indicated by words or
phrases such as "anticipates," "estimates," "projects," "believes," "intends,"
"expects" and similar words and phrases. Forward-looking statements are subject
to risks, uncertainties and other factors that could cause actual results to
differ materially from future results expressed or implied by such
forward-looking statements. Such factors include, among others, new or different
circumstances resulting in a change in the current intentions of the Nominees.
Given these uncertainties, prospective investors are cautioned not to attribute
undue certainty to such forward-looking statements. The Participants disclaim
any obligation to update any such factors or to publicly announce the results of
any revisions to any of the forward-looking statements contained herein to
reflect future events or developments. The Participants urge you to read this
entire Consent Statement carefully.
REASONS FOR THE CONSENT SOLICITATION
The Participants are concerned that NUWEB is not being managed
properly. NUWEB's management previously rebuffed the efforts of the Participants
to discuss basic business issues facing NUWEB. Such efforts resulted in Andrew
Chandler, Chief Executive Officer and a director of NUWEB, requesting the
resignation of Bernard M. Marcus, one of the Nominees and NUWEB's Chairman of
the Board. Each of the Participants is a significant stockholder of NUWEB and
has a significant investment in NUWEB. The Participants are soliciting consents
to the Proposals to replace the Board of Directors of NUWEB with directors that
the Participants believe will be more effective in directing the business and
affairs of NUWEB. The Participants believe that if the Nominees are elected,
they intend, subject to their fiduciary duties to NUWEB and its stockholders, to
evaluate the business and management of NUWEB and then decide whether to make
any changes in management based on such evaluations. The Participants do not
believe that the Nominees currently intend to make any changes in the business
of NUWEB.
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THE PROPOSALS
This Consent Statement and the accompanying form of written consent are
being furnished to the NUWEB stockholders in connection with the Participants'
solicitation from such stockholders of written consents to take the following
actions without the necessity of a stockholders' meeting, as permitted by
Delaware law:
PROPOSAL NO. 1. PROPOSAL TO AMEND BYLAWS.
Article II, Section 3, of the Bylaws of NUWEB currently provides that a
vacancy on the Board of Directors, including unfilled vacancies resulting from
the removal of directors for cause or without cause, may be filled by the vote
of a majority of the remaining directors. Proposal No. 1 provides for the
deletion of Article II, Section 3, of the Bylaws of NUWEB thereby permitting the
stockholders, as well as the Board of Directors to fill vacancies on the Board.
Proposal No. 1 reads as follows:
"RESOLVED, that Article II, Section 3, of the Company's Bylaws
be and hereby is deleted in its entirety."
PROPOSAL NO. 2. PROPOSAL TO REMOVE ALL DIRECTORS.
Proposal No. 2 provides for the removal of all of NUWEB's current
directors. NUWEB's current directors are Andrew Chandler, Bernard M. Marcus and
Darren Rosenthal. Although NUWEB has issued a press release indicating that Mr.
Marcus has resigned, Mr. Marcus did not resign. In order to avoid any confusion,
the Participants propose to remove every member of the Board of Directors of
NUWEB and then to reappoint Mr. Marcus and appoint the other Nominees. Proposal
No 2 reads as follows:
"RESOLVED, that each and every member of the Company's Board
of Directors is hereby removed from office effective
immediately and without cause."
PROPOSAL NO. 3. PROPOSAL TO FIX THE BOARD OF DIRECTORS AT THREE MEMBERS.
ARTICLE II, Section 2, of the Bylaws currently provides that NUWEB's
Board of Directors shall consist of at least one director, with the number of
directors to be fixed from time to time by action of the stockholders or of the
Board of Directors, or, if the number is not fixed, the number shall be three.
Proposal No. 3 provides for a resolution to fix the numbers of directors of
NUWEB at three. Proposal No. 3 reads as follows:
"RESOLVED, that the number of directors constituting the
Company's Board of Directors shall be three."
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PROPOSAL NO. 4. PROPOSAL TO ELECT DIRECTORS.
Proposal No. 4 provides for the election as directors of NUWEB of the
three Nominees named below, each of whom has consented to being named herein to
serve as a director, if elected, and until his successor has been elected and
qualified. The Participants have entered into an agreement to solicit
stockholder consents to elect the Nominees as directors of NUWEB. In such
agreement, the Participants also agreed that for a period of 2 years they will
vote their shares of Common Stock for the election of the Nominees, or such
other persons as are acceptable to all of the Participants, as directors of
NUWEB.
The purpose of Participants in seeking to elect the Nominees to the
NUWEB's Board of Directors is to replace the Board of Directors of NUWEB with
directors that the Participants believe will be more effective in directing the
business and affairs of NUWEB. If elected, the Nominees would be responsible for
managing the business and affairs of NUWEB and each director of NUWEB has an
obligation under Delaware law to discharge his duties as a director on an
informed basis, in good faith, with the care an ordinarily careful and prudent
person in a like position would exercise under similar circumstances and in a
manner the director honestly believes to be in the best interests of NUWEB. In
this connection, circumstances may arise in which the interests of one or more
of the Participants, on the one hand, and the interests of other stockholders of
NUWEB, on the other hand, may differ. In any such case, the Nominees intend to
discharge fully the obligations owing to NUWEB and its stockholders under
Delaware law. Although none of the Participants has any reason to believe that
any of the Nominees will be unable or unwilling to serve as directors, if any of
the Nominees is not available for election, the persons named on the WHITE
consent card will vote for the election of such other nominee or nominees as may
be proposed by the Participants. Proposal No. 4 reads as follows:
"RESOLVED, that the following persons are hereby elected as
directors of the Company to serve until their successors are
duly elected and qualified:
Bernard M. Marcus
Michael A. Ciccoricco
Anthony T. Ottaviano"
INFORMATION ABOUT THE NOMINEES
The following sets forth information about the Nominees:
BERNARD M. MARCUS
Mr. Marcus has been the Managing Member of PCI from the date of its
formation in February 1998 to present. PCI was formed to invest in companies
involved in the adult entertainment business on the internet. NUWEB acquired the
securities, assets and operations of PCI in May 2000. Upon the closing of such
transaction, NUWEB entered into a 3-year employment agreement with Mr. Marcus.
For more information about the transaction and the employment agreement, see
"Interests of Certain Persons." From 1997 to present, Mr. Marcus has also served
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as the President of RBG Investments, Inc. ("RBG Investments"), and RBG
Management Services, Inc., which are involved in investment banking activities
related to the homebuilding industry. From 1980 to 1994, Mr. Marcus was employed
by National Partnership Equities, Inc., and National Partnership Investment
Corp., most recently as Senior Vice President - National Marketing Director. On
September 26, 2000, Mr. Marcus, RBG Investments, which is a member of the
National Association of Securities Dealers, Inc., and certain other persons
affiliated with RBG Investments entered into a Letter of Acceptance, Waiver and
Consent with NASD Regulation, Inc. (the "NASDR"), pursuant to which Mr. Marcus,
RBG Investments and the other persons accepted and consented, without admitting
or denying the alleged violations, to entry of certain findings by NASDR (the
"AWC"). With respect to Mr. Marcus, the AWC concerned findings that in
connection with two private placement offerings, RBG Investments withdrew or
caused the withdrawal of funds from the account of the issuer before selling the
required number of units in bona fide transactions, failed to properly escrow
funds for sales and, in one offering, deposited funds net of commissions. Mr.
Marcus, by his actions, was found to have violated SEC Rule 10b-9 and NASD
Conduct Rule 2110. Pursuant to the AWC, Mr. Marcus, RBG Investments and the
other persons were subjected to a joint and several $10,000 fine and Mr. Marcus
was subject to a 60-calendar day suspension from association with any member of
the NASD in any capacity. Mr. Marcus is 52 years of age.
MICHAEL A. CICCORICCO
Since 1997, Mr. Ciccoricco has provided consulting services for the
hospitality industry, primarily in connection with the development and opening
of nightclubs in New York, New York. From 1995 to 1997, Mr. Ciccoricco served as
Chief Executive Officer and Co-Owner of Wireless USA, Inc., a
telecommunications/marketing company. Mr. Ciccoricco is 29 years of age.
ANTHONY T. OTTAVIANO
Mr. Ottaviano has been a sole practitioner in New York, New York, since
May 2000. From November 1998 to May 2000, Mr. Ottaviano was an associate with
Flomenhast, Cannata, LLP. From July 1997 to November 1998, Mr. Ottaviano was a
contract attorney with various law firms. Mr. Ottaviano graduated from the New
York Law School in May 1997. Mr. Ottaviano is 32 years of age.
See "Security Ownership of the Participants, Certain Beneficial Owners,
Directors and Management of Common Stock" for information regarding shares of
Common Stock owned of record and beneficially by the Nominees and, to the best
knowledge of the Participants, by those participating in this solicitation on
behalf of the Participants, or any associate of or immediate family member
sharing the same household as the foregoing persons.
Except as otherwise set forth in this Consent Statement, no Nominee or
any associate of, or immediate family member sharing the same household as, such
Nominee is or within the past year has been a party to any contract, arrangement
or understanding with respect to any securities of NUWEB. For additional
information, see "Interests of Certain Persons."
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EFFECTIVENESS OF PROPOSALS.
The Proposals will become effective only if properly completed,
unrevoked consents are signed by the holders of record on the Record Date of a
majority of the shares of Common Stock then outstanding and such consents are
delivered to NUWEB on or prior to the Effective Date. The effectiveness of each
of the Proposals is subject to, and conditioned upon, the adoption of each of
the other Proposals by the holders of record, as of the close of business on the
Record Date, of a majority of the shares of Common Stock then outstanding
(including the receipt of consents from such holders to the removal of each
member of the NUWEB Board of Directors and to the election of each Nominee). See
"Consent Procedure."
Because the Proposals will become effective only if executed consents
are returned by holders of record on the Record Date of a majority of the total
number of shares of Common Stock then outstanding, the failure to execute and
return a consent will have the same effect as voting against the Proposals.
REIMBURSEMENT OF COSTS.
If the Proposals are adopted, the Participants will request
reimbursement from NUWEB for the expenses that the Participants incur in
connection with this consent solicitation as more fully described below under
"Costs and Method of Consent Solicitation."
PROPOSED ACTION OF NOMINEES.
If the Proposals are approved, the Participants believe the Nominees
currently intend, if elected and subject to their fiduciary duties to NUWEB and
its stockholders, to evaluate the business and management of NUWEB and then
decide whether to make any changes in management based on such evaluation. The
Participants do not believe that the Nominees currently intend to make any
changes in the business of NUWEB.
CONSENT PROCEDURE
WHAT PROVISIONS OF LAW GOVERN NUWEB IN CONNECTION WITH THE CONSENT SOLICITATION?
Section 228 of the Delaware General Corporation Law (the "DGCL") states
that, unless otherwise provided in a corporation's certificate of incorporation,
any action required to be taken at any annual or special meeting of
stockholders, or any action that may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted, and those consents are delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business or an officer or
agent of the corporation having custody of the books in which proceedings of
meetings of stockholders are recorded.
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NUWEB's Certificate of Incorporation does not prohibit stockholder
action by written consent. Accordingly, NUWEB stockholders are permitted to act
by consent. However, the written, unrevoked consents of the holders of a
majority of the outstanding shares of Common Stock approving all of the
Proposals contained in this Consent Statement as of the Record Date must be
delivered to NUWEB to effect the actions described in this Consent Statement.
Section 228 of the DGCL provides that no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by Delaware
law, written consents signed by a sufficient number of holders to take such
action are delivered to the corporation. With respect to this consent
solicitation, the 60th day is Sunday, January 28, 2001. Therefore, a sufficient
number of consents must be returned to the Participants by Sunday, January 28,
2001, to ensure that the Participants can deliver the consents to NUWEB within
the 60-day period required under Delaware law.
As soon as the Participants have received valid and unrevoked consents
representing a majority of the outstanding shares of Common Stock as of the
Record Date evidencing approval of all of the Proposals, the Participants will
deliver the consents to NUWEB as required by Delaware law. After the
Participants deliver the consents, stockholders will be unable to revoke
consents.
At such time as the Participants have been able to secure a sufficient
number of consents to adopt the Proposals, the Participants will promptly
notify, in accordance with Section 228(d) of the DGCL, all stockholders of NUWEB
who have not executed and returned a consent card.
WHO IS ENTITLED TO SIGN AND DELIVER CONSENTS?
Consents may be executed by stockholders of record at the close of
business on the Record Date. All stockholders who owned shares of Common Stock
at the close of business on the Record Date have the right to consent to the
Proposals, even if they have disposed of their shares of Common Stock after the
Record Date. As soon as the Participants have received valid and unrevoked
consents representing a majority of the outstanding shares of Common Stock from
holders of shares of Common Stock as of the Record Date, the Participants, will
deliver the consents to NUWEB. After the Participants make that delivery,
stockholders will be unable to revoke a consent. The Participants will notify
all stockholders who have not consented to the actions at such time as the
Participants have been able to secure a sufficient number of consents to adopt
the Proposals.
WHAT IS THE RECORD DATE FOR THE CONSENT SOLICITATION?
November 29, 2000, is the Record Date for this Consent Statement.
Under Section 213 of the DGCL, the board of directors of a corporation
may fix a record date to determine the stockholders entitled to consent to
corporate action in writing without a meeting. The record date may not precede
the date upon which the resolution fixing the record date is adopted by the
board of directors and may not be more than 10 days after the date upon which
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the resolution fixing the record date is adopted by the board of directors. If
the board of directors has not fixed a record date, the record date 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 Delaware, 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.
The Board of Directors of NUWEB did not fix a record date in connection
with the consents subject to this Consent Statement. On November 29, 2000, the
Participants delivered to NUWEB a written consent in compliance with Section 213
of the DGCL indicating consent to the Proposals described in this Consent
Statement. Accordingly, the Record Date in connection with the consents subject
to this Consent Statement is November 29, 2000.
HOW MANY SHARES MUST CONSENT TO THE PROPOSALS TO EFFECT THEM?
Only stockholders of record at the close of business on the Record Date
may execute consents. According to information provided by the transfer agent
for the Common Stock, as of November 29, 2000, NUWEB had 24,723,614 shares of
Common Stock issued and outstanding. The Participants are not aware of any
change in the number of outstanding shares of Common Stock (i) from the Record
Date to December __, 2000; and (ii) since December __, 2000. Each share of
Common Stock entitles the record holder thereof to cast one vote. NUWEB's
Certificate of Incorporation and Bylaws do not provide for cumulative voting.
Consents for a majority of the issued and outstanding shares of Common Stock on
the Record Date must be provided for each of the Proposals to be approved and
adopted. Assuming that the number of shares of Common Stock outstanding on the
Record Date is 24,772,614, the number of consents necessary to approve and adopt
the Proposals is 12,361,308.
Because the Participants must timely receive consents from a majority
of the outstanding shares of Common Stock in order for the Proposals to be
adopted, abstentions, failures to vote, broker non-votes or directions to
withhold authority to vote on the WHITE consent card will have the same effect
as a "no" vote with respect to this solicitation.
HOW MANY CONSENTS MUST THE PARTICIPANTS RECEIVE TO APPROVE THE PROPOSALS?
Each of PCI and Messrs. Wainstein and Frome have executed consents for
the shares of Common Stock owned by it or him, as the case may be, representing
an aggregate of 6,153,590 shares of Common Stock, in favor of all of the
Proposals. The Participants must timely receive consents from a majority of the
outstanding shares of Common Stock in order for the Proposals to be adopted.
Accordingly, based on the information known to the Participants, written
consents by stockholders representing an additional 6,207,718 shares of Common
Stock, or 25.1 percent of the shares of Common Stock not owned by PCI or Messrs.
Wainstein or Frome, will be required to adopt and approve each of the Proposals.
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Because the Participants must timely receive consents from a majority
of the outstanding shares of Common Stock in order for the Proposals to be
adopted, abstentions, failures to vote, broker non-votes or directions to
withhold authority to vote on the WHITE consent card will have the same effect
as a "no" vote with respect to this solicitation.
The delivery by the Participants of consents to NUWEB is conditioned on
the receipt of approval of all of the Proposals. Consequently, if all of the
Proposals are not approved, none of the Proposals will be enacted even though
sufficient consents may have been received to approve a particular Proposal.
WHEN MUST I RETURN THE CONSENT?
If you are in favor of the actions the Participants are proposing, you
must send the Participants a written consent by Sunday, January 28, 2001. If the
Participants do not receive a consent from you by such date, it will be the same
as a "no" vote. The Participants, therefore, urge you to mark, sign, date and
return the enclosed consent as soon as possible.
WHAT MUST I DO TO CONSENT AND HOW DO I COMPLETE THE CONSENT CARD?
If you were a holder of shares of Common Stock as of the close of
business on the Record Date, you may elect to consent to, withhold consent to or
abstain with respect to each Proposal by marking the "consent," "consent
withheld" or "abstain" box, as applicable, underneath each such Proposal on the
accompanying WHITE consent card and signing, dating and returning it promptly
via facsimile and in the enclosed postage-paid envelope.
In addition, you may withhold consent to the removal of any individual
member of the Board of Directors of NUWEB or to the election of any individual
Nominee by writing such person's name on the consent card. However, the
effectiveness of each of the Proposals is subject to, and conditioned upon, the
receipt of consents from the holders of record on the Record Date of a majority
of the shares of Common Stock then outstanding to, among other things, the
removal of each member of the current Board of Directors of NUWEB and to the
election of each Nominee.
If your shares of Common Stock are held in the name of a brokerage
firm, bank nominee or other institution, only that entity can execute a consent
with respect to your shares of Common Stock and it will do so only upon receipt
of your specific instructions. Accordingly, you should contact the person
responsible for your account and instruct him or her to vote a WHITE consent
card on your behalf today. The Participants urge you to confirm in writing your
instructions to the person responsible for your account and provide a copy of
those instructions to the Participants at the address set forth above so that
the Participants will be aware of all instructions given and can attempt to
ensure that such instructions are followed.
If a stockholder who has executed and returned the consent card has
failed to check a box marked "Consent," "Consent Withheld" or "Abstain" for any
or all of the Proposals, such stockholder consent card will be treated as a
consent to such Proposal or Proposals.
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Your consent is important. Please mark, sign and date the enclosed
WHITE consent card and send it promptly via facsimile to (305) 373-3739 and via
mail in the enclosed postage-paid envelope. Failure to timely return your
consent will have the same effect as voting against the Proposals.
If you have any questions or require any assistance in executing or
delivering your consent, please call either Bernard M. Marcus at (561) 733-2823,
or Michael Wainstein at (212) 755-1222.
CAN I REVOKE MY CONSENT?
You can revoke your consent at any time before it becomes effective by
submitting a written, dated revocation of such consent or a later dated consent
covering the same shares of Common Stock. Your revocation may be in any written
form validly signed by the holder of record of the shares of Common Stock
related to the consent being revoked and should clearly state that the consent
previously given is no longer effective. You must execute and deliver your
revocation before the time that the action authorized by the executed consent is
taken. You may deliver the revocation to the Participants at the address set
forth above.
DO I HAVE APPRAISAL RIGHTS?
You do not have appraisal rights as a result of this solicitation of
consents.
COSTS AND METHOD OF CONSENT SOLICITATION
Written consents may be solicited by mail, advertisement, telephone,
facsimile or in person. Banks, brokerage houses and other custodians, nominees
and fiduciaries may be requested to forward our solicitation materials to the
beneficial owners of the shares of Common Stock they hold of record, and the
Participants will reimburse them for their reasonable out-of-pocket expenses. If
your shares of Common Stock are registered in your own name, you may mail or fax
both sides of your consent card to us at the address or fax number listed below.
The entire expense of preparing, assembling, printing and mailing this
Consent Statement and any other consent soliciting materials and the cost of
soliciting consents will be borne by PCI. If the Proposals are approved, the
Participants will request reimbursement from NUWEB for these expenses.
PARTICIPANTS
PCI and Messrs. Wainstein and Frome may be deemed to be a participant
in the solicitation of consents described herein. Additionally, the following
individuals, each of whom is a Nominee, may be deemed to be participants in this
solicitation: Bernard M. Marcus, Michael A. Ciccoricco and Anthony T. Ottaviano.
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<PAGE> 15
INTERESTS OF CERTAIN PERSONS
To the knowledge of each of the Participants, other than in connection
with the Acquisition (as described below) or as otherwise described below, none
of PCI or Messrs. Wainstein or Frome, or any of their associates or other
representatives, nor any other person who may be deemed to be a participant in
this solicitation of consents, since the beginning of NUWEB's last fiscal year,
(i) has engaged in or has a direct or indirect interest in any transaction or
series of similar transactions in which NUWEB or any of its subsidiaries was or
is to be a party where the amount involved was in excess of $60,000, (ii) is or
was an executive officer of, or owns or owned an equity interest in excess of
10% in any business or professional entity that made payment to or received
payments from NUWEB for property or services or that was indebted to NUWEB,
(iii) is or has been a member, partner or executive officer of, or of counsel
to, a law firm or investment banking firm that NUWEB has retained or that has
performed services to NUWEB, or (iv) has been indebted to NUWEB or its
subsidiaries.
In May 2000, NUWEB acquired substantially all of the assets of PCI and
certain other companies in exchange for shares of Common Stock (the
"Acquisition"). Also upon the closing, of the Acquisition, Mr. Marcus entered
into a 3-year employment agreement with NUWEB, such agreement renewable for
successive one-year terms upon the agreement of both partners and providing for
annual compensation of one dollar and a percentage of NUWEB's earnings (as
determined in accordance with the terms of the Agreement) as follows: (i)
$1,200,001 - $1,500,000 - $0; (ii) $1,500,000 - $2,500,000 - $250,000;
$2,500,001 and above - $300,000. Upon the closing of the Acquisition, PCI
received 5,009,590 shares of Common Stock. Each of Messrs. Frome and Wainstein
received a portion of his shares of Common Stock in connection with the
consummation of NUWEB's plan of reorganization in Federal Bankruptcy Court In
October 1999, and received the balance of his shares in exchange for services
rendered and the payment of $.015 per share (representing the Common Stock's par
value).
Mr. Frome is President and a shareholder, and Mr. Wainstein is the
Executive Vice President and a shareholder, of Hanover Capital Corporation, a
financial advising and consulting firm ("Hanover Capital"). Hanover Capital is
party to a 60-month consulting agreement with NUWEB, July 2000. Pursuant to the
terms of the consulting agreement, NUWEB paid Hanover Capital an initial fee of
$50,000 and agreed to a monthly fee of $3,750 per month, which increased to
$5,000 in September 2000.
Mr. Frome is a senior partner of the law firm of Olshan Grundman Frome
Rosenzweig & Wolosky, LLP, which was counsel to NUWEB from October 1999 to
August 2000.
Other than as set forth in "The Proposals--Proposal No. 4 - Proposal to
Elect Directors," in "Ownership of Common Stock" and in "Interests of Certain
Persons," to the knowledge of each of the Participants, none of PCI or Messrs.
Wainstein or Frome, or any of their associates or other representatives, or any
other person who may be deemed to be a participant in this solicitation of
consents, (i) is the beneficial or record owner of any securities of NUWEB or
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<PAGE> 16
any parent or subsidiary thereof, (ii) is the record owner of any securities of
NUWEB of which it or he, as the case may be, may not be deemed to be the
beneficial owner, (iii) has, within the past 2 years, purchased or sold
securities of NUWEB, (iv) has been within the past year, a party to any
contract, arrangement or understanding with any person with respect to any
securities of NUWEB, (v) has any agreement or understanding with respect to any
future transaction to which NUWEB will or may be a party, or (vi) has any other
interest, direct or indirect, in NUWEB, by security holding or otherwise.
SECTION 16(a) BENEFICIAL OWBERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires PCI, as an owner of more than 10 percent of a registered class of NUWEB
securities, and Mr. Marcus, as a director of NUWEB, to file reports of ownership
and changes in ownership with the Securities and Exchange Commission. Each of
PCI and Mr. Marcus is required by regulations promulgated by the Commission to
furnish NUWEB with copies of all Section 16(a) forms it or he, as the case may
be, files. As of the date of this Consent Statement, each of PCI and Mr. Marcus
has complied with all Section 16(a) filing requirements applicable to it or him,
as the case may be, with respect to transactions in NUWEB stock. Each of Mr.
Marcus and PCI failed to file a Form 3 on a timely basis. The other Nominees are
not officers, directors or owners of more than 10 percent of a registered class
of NUWEB securities and are therefore not required to make any filings in
accordance with Section 16(a).
SECURITY OWNERSHIP OF THE PARTICIPANTS,
CERTAIN BENEFICIAL OWNERS, DIRECTORS
AND MANAGEMENT OF NUWEB
The following table indicates the beneficial ownership of the Common
Stock as of December __, 2000, based on information received by the Participants
in connection with the Acquisition, by each director of NUWEB, by NUWEB's Chief
Executive Officer, the Participants, by each person known by the Participants to
be the beneficial owner of more than 5% of the Common Stock, and by all
directors and executive officers of NUWEB as a group.
<TABLE>
<CAPTION>
COMMON STOCK BENEFICIALLY OWNED(1)
------------------------------------
NAME AND ADDRESS OF BENEFICIAL OWNER SHARES PERCENT
------------------------------------ ------------------- -------
<S> <C> <C>
Andrew P. Chandler (2) 9,130,410 36.9
Performance Capital Investments L.L.C. (3)(4) 7,243,840 29.3
Michael Wainstein(4)(5) 7,243,840 29.3
Robert L. Frome (4)(6) 7,243,840 29.3
Bernard M. Marcus (7) 5,009,590 20.2
All directors and executive officers as a group (8) 14,140,000 57.1
</TABLE>
---------------
(1) Unless otherwise indicated, each person or group has sole voting and
investment power with respect to all such shares.
(2) Mr. Chandler is President and a director of NUWEB. Mr. Chandler's address
is 1985 N.W. 18th Street, Pompano Beach, Florida 33069.
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<PAGE> 17
(3) Includes (i) 1,144,000 shares of Common Stock beneficially owned by Mr.
Wainstein; and (ii) 1,090,250 shares of Common Stock beneficially owned by
Mr. Frome. PCI's address is 6044 Rossmoor Lakes Court, Boynton Beach,
Florida 33069.
(4) Robert L. Frome, Michael Wainstein and PCI have filed a joint Schedule 13D
reporting their participation in this consent solicitation. Messrs. Frome,
Wainstein and PCI each disclaims the beneficial ownership of the Common
Stock beneficially owned by the other persons.
(5) Includes (i) 5,009,590 shares of Common Stock beneficially owned by PCI;
and (ii) 1,090,250 shares of Common Stock beneficially owned by Mr. Frome.
Mr. Wainstein's address is 505 Park Avenue, New York, New York 10022.
(6) Includes (i) 70,000 shares of Common Stock owned by The Jennifer Frome
Trust, for which Mr. Frome is the Trustee; (ii) 5,009,590 shares of Common
Stock beneficially owned by PCI; and (iii) 1,144,000 shares of Common Stock
beneficially owned by Mr. Wainstein. Does not include 137,500 shares of
Common Stock owned by Mr. Frome's wife, LouAnn Frome. Mr. Frome disclaims
beneficial ownership of the Common Stock owned by the Trust and his wife.
Mr. Frome's address is 505 Park Avenue, New York, New York 10022.
(7) Mr. Marcus is the Managing Member of PCI and Chairman of the Board and a
director of NUWEB. Mr. Marcus disclaims beneficial ownership of the shares
of Common Stock owned by PCI. Mr. Marcus' address is 6044 Rossmoor Lakes
Court, Boynton Beach, Florida 33437.
(8) Includes the shares of Common Stock beneficially owned by Mr. Chandler and
by Mr. Marcus.
CERTAIN OTHER INFORMATION REGARDING NUWEB
GENERAL
The information concerning NUWEB contained herein has been taken from,
or based upon, the general knowledge of the Participants regarding NUWEB. The
Participants do not take any responsibility for the inaccuracy or incompleteness
of such information as the result of any failure by NUWEB to disclose events
that may have occurred and that may affect the significance or accuracy of any
such information.
STOCKHOLDER PROPOSALS
The Participants have no knowledge of when NUWEB last held an annual
meeting of stockholders and NUWEB has not held an annual meeting to date in
2000. The deadline for submission of proposals for NUWEB's next annual meeting
will be a reasonable time before NUWEB begins to print and mail its proxy
materials.
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<PAGE> 18
CERTAIN INFORMATION ABOUT THE PARTICIPANTS
PCI was formed in February 1998 to invest in companies involved in the
adult entertainment business on the internet. In May 2000, NUWEB acquired
substantially all of PCI's assets for 5,009,590 shares of Common Stock. Mr.
Wainstein is the Executive Vice President of Hanover Capital Corporation, a
financial advising and consulting firm located at 505 Park Avenue, New York, New
York 10022 ("Hanover Capital"). Mr. Frome is a senior partner of the law firm of
Olshan Grundman Frome Rosenzweig & Wolosky, LLP, located at 505 Park Avenue, New
York, New York and President of Hanover Capital. See "Interests of Certain
Persons."
ADDITIONAL INFORMATION
Your consent is important. No matter how many or how few shares of
Common Stock you own, please submit your consent to the Proposals contained in
this Consent Statement. The Participants' delivery of consents to NUWEB is
conditioned on the receipt of approval of all of the Proposals by Sunday,
January 28, 2001. Consequently, if all of the Proposals are not approved, none
of the Proposals will be enacted even though sufficient consents may have been
received to approve a particular Proposal. Only your latest dated consent
counts.
If you have any questions or require any assistance in executing or
delivering your consent, please call Bernard M. Marcus at (561) 733-2823, or
Michael Wainstein at (212) 755-1222.
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<PAGE> 19
CONSENT CARD
This Consent is being solicited by Performance Capital Investments L.L.C.,
Michael Wainstein and Robert L. Frome
Consent of Stockholders to Action Without a Meeting
The undersigned, a stockholder of record of NUWEB Solutions, Inc., a
Delaware corporation (the "Company"), hereby consents pursuant to Section 228 of
the Delaware General Corporation Law, with respect to the number of shares of
Common Stock, par value $0.015 per share, of NUWEB held by the undersigned, to
each of the following actions, which will occur in the order set forth in this
Consent Card, without prior notice and without a vote, as more fully described
in the Consent Statement, receipt of which is hereby acknowledged.
1. Proposal to Amend Bylaws: Eliminate ARTICLE II, Section 3, of the
Bylaws thereby permitting the stockholders, as well as the Board of
Directors of NUWEB, to fill vacancies on the Board. Such Proposal reads
as follows:
"RESOLVED, that Article II, Section 3, of the Company's Bylaws
be and hereby is deleted in its entirety."
CONSENT CONSENT WITHHELD ABSTAIN
[ ] [ ] [ ]
If no box is marked with respect to the Proposal to Amend the Bylaws,
this Consent will be voted in favor of the amendment of the Bylaws as set forth
above.
2. Proposal to Remove Directors: Remove all the current members of the
Board of Directors of NUWEB. Such Proposal reads as follows:
"RESOLVED, that each and every member of the Company's Board
of Directors is hereby removed from office effective
immediately and without cause."
CONSENT CONSENT WITHHELD ABSTAIN
[ ] [ ] [ ]
If no box is marked with respect to the Proposal to Remove Directors,
this Consent will be voted in favor of the removal of the directors of NUWEB as
set forth above.
3. Proposal to Fix the Board of Directors at Three Members. Fix the number
of directors of NUWEB at three. Such Proposal reads as follows:
"RESOLVED, that the number of directors constituting the
Company's Board of Directors shall be three."
CONSENT CONSENT WITHHELD ABSTAIN
[ ] [ ] [ ]
<PAGE> 20
If no box is marked with respect to the Proposal to Fix the Board of
Directors at Three Members, this Consent will be voted in favor of fixing the
number of directors at three as set forth above.
4. Proposal to Elect Directors: Elect the Nominees to fill the newly
vacant seats on the Board of Directors of NUWEB. Such Proposal reads as
follows:
"RESOLVED, that the following persons are hereby elected as
directors of the Company to serve until their successors are
duly elected and qualified:
Bernard M. Marcus
Michael A. Ciccoricco
Anthony T. Ottaviano"
CONSENT CONSENT WITHHELD ABSTAIN
[ ] [ ] [ ]
To withhold consent to a proposed Nominee, specify the Nominee in the
following space:
If no box is marked above with respect to the Proposal to Elect
Directors, this Consent will be voted in favor of the election of all three
Nominees.
If you have any questions or need assistance, please contact either
Bernard M. Marcus at (561) 733-2823 or Michael Wainstein at (212) 755-1222.
PLEASE ACT PROMPTLY
IMPORTANT: THIS CONSENT MUST BE SIGNED AND DATED TO BE VALID
Dated: , 2000
--------------------------
Signature:
----------------------------------
Signature
(if held jointly):
----------------------------------
Title or authority
(if applicable):
----------------------------------
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<PAGE> 21
Consents can only be given by the stockholder of record on the Record
Date. Please sign exactly as name appears on your stock certificate(s) on the
Record Date or on the label affixed hereto. If shares are registered in more
than one name, the signature of all such persons should be provided. A
corporation should sign in its full corporate name by a duly authorized officer,
stating his or her title. Trustees, guardians, executors and administrators
should sign in their official capacity, giving their full title as such. If a
partnership, please sign in the partnership name by authorized persons. The
consent card votes all shares in all capacities.
PLEASE MARK, SIGN AND DATE THIS CONSENT
BEFORE MAILING THE CONSENT IN THE ENCLOSED ENVELOPE
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