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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 1, 2000
THE SOUTHSHORE CORPORATION
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(Exact name of registrant as specified in its charter)
Colorado 0-19949 84-1153522
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(State or other (Commission file number) (IRS Employer
incorporation or organization) Identification No.)
5373 North Union Boulevard, Suite 100, Colorado Springs, Colorado 80918
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (719) 590-4900
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26 Tamarade Drive, Littleton, Colorado 80127
(303) 978-1475
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(Former name or former address and telephone number, if changed since last
report)
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ITEM 1. CHANGE IN CONTROL
On February 1, 2000, a change in control of Southshore Corporation (the
"Company") occurred in connection with the consummation of a certain Agreement
and Plan of Merger between the Company, its acquisition subsidiary, Southshore
Acquisition Corp. ("SAC") and iRV, Inc. (formerly RV Holiday.com, Inc.), a
Colorado corporation, ("iRV") dated as of December 20, 1999 (the "Merger
Agreement").
Under the terms of the Merger Agreement, SAC was merged with and into iRV,
with iRV to be the surviving corporation. On the effective date of the
merger, February 3, 2000, each issued and outstanding share of common stock of
iRV was converted automatically to the right to receive one (1) share of the
common stock of the Company. On the effective date of the merger, iRV had a
total of 5,500,000 shares of its common stock issued and outstanding. As a
result of the merger, therefore, the Company issued a total of 5,500,000
shares of its common stock to the holders of record of iRV on the effective
date of the merger.
The 5,500,000 shares of the Company's common stock issued to the former
shareholders of iRV represented, immediately after their issuance, 67.8% of
the total issued and outstanding shares of the Company's common stock
following the merger. The former shareholders of iRV and the number of shares
of the Company's common stock received by each in connection with the merger
is set forth in the table below:
Name Number of Shares
- ---- ----------------
Dorothy Calandrella 200,000
Stephen Calandrella 300,000
Calandrella Family Foundation 200,000
Kim Davis 50,000
Nannette Goldberg 1,850,000
Marie Kanger 200,000
Ratna Enterprises, Inc. 111,000
Smith Mark 100,000
Triumph Capital 1,064,000
Jeffrey Barber 50,000
Neil Berman 131,250
Howard Farkas 62,500
Scott Friedman 12,500
Jerry Karnell 50,000
David Lavigne 50,000
Bruce Madsen 125,000
Mike McCallum 75,000
Len Nacht 100,000
John Overturf 62,500
John Power 50,000
Richard Rizzo 31,250
Patrick Santonacita 62,500
John Deufel 500,000
Arden Wandel 62,500
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5,500,000
Further, upon closing of the Merger Agreement, Kenneth M. Dalton, Ren
Berggren and Rod K. Barksdale resigned as officers and directors of the
Company after electing the following persons to serve as Directors of the
Company following the merger:
Dr. Robert A. Scott
Wayne Kirschling
John H. Deufel
Following the merger, RV Holiday.com, Inc. changed its name to iRV, Inc.
on February 7, 2000. iRV, Inc. will operate as a wholly owned subsidiary of
the Company.
iRV, Inc. has two wholly owned subsidiaries: iRV.com, Inc. and iRV
Dealerships, Inc. iRV.com, Inc. has developed an internet website for RV
enthusiasts which is expected to be launched in the near future. iRV
Dealerships, Inc. is engaged in acquiring one or more dealerships which will
operate in conjunction with the internet website. iRV Dealerships, Inc.,
through a wholly owned subsidiary, currently operates under an agreement to
manage an RV dealership in Knoxville, Tennessee as a precursor to acquiring
the dealership, which is expected to close in the next several weeks.
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ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
Pursuant to Item 7(a)(4), the Registrant declares that it is
impracticable to provide the required audited financial statements relative to
the acquired business at the time of this Report. Such audited financial
statements required by Item 7(a) shall be filed not later than sixty (60) days
after the due date of this Current Report on Form 8-K.
(b) Pro Forma Financial Information
Pursuant to Item 7(b) and Item 7(a)(4), the Registrant declares it
is impracticable to provide the required pro forma financial information
relative to the acquired business at the time of this Report. Such pro forma
financial information required by Item 7(b) shall be filed not later than
sixty (60) days after the due date of this Current Report on Form 8-K.
(c) Exhibits
Item Title
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1.1 Agreement and Plan of Merger by and between the Company, SAC
and iRV (formerly RV Holiday.com, Inc.) dated December 20,
1999.
1.2 Amended and Restated Articles of Incorporation of RV
Holiday.com, Inc.
1.3 Articles of Amendment to Articles of Incorporation of RV
Holiday.com, Inc. changing its name to iRV, Inc.
1.4 Bylaws of iRV, Inc. (formerly RV Holiday.com, Inc.)
1.5 Articles of Incorporation of iRV.com, Inc.
1.6 Bylaws of iRV.com, Inc.
1.7 Articles of Incorporation of Innovative Recreational
Dealerships, Inc.
1.8 Articles of Amendment to Articles of Incorporation of
Innovative Recreational Dealerships, Inc. changing its name to
iRV Dealerships, Inc.
1.9 Articles of Incorporation of iRV - Knoxville, Inc.
1.10 Bylaws of iRV - Knoxville, Inc.
1.11 Management Agreement dated January 2000 between Coach and
Campers of Knoxville, LLC and iRV - Knoxville, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
iRV, INC.
Date: February 8, 2000 By: /s/ John H. Deufel
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John H. Deufel, President
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
RV HOLIDAY.COM, INC.
AND
SOUTHSHORE CORPORATION
AND
SOUTHSHORE ACQUISITION CORP.
DATED AS OF DECEMBER 20, 1999
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TABLE OF CONTENTS
SECTION 1: GENERAL DEFINITIONS 1
1.2 Best Knowledge 1
1.3 Control 1
1.4 Exchange Act 1
1.5 Fiscal Year 2
1.6 Governmental Authority 2
1.7 Governmental Requirement 2
1.8 Legal Requirements 2
1.9 Net Worth 2
1.10 Person 2
1.11 Exhibit 2
1.12 Section 2
1.13 Securities Act 2
1.14 Taxes 2
SECTION 2: THE MERGER 3
2.1 The Merger 3
2.2 Filing 3
2.3 Effective Time of the Merger 3
2.4 Closing: Closing Date 3
SECTION 3: APPROVALS 3
3.1 Southshore Approvals 3
3.2 RV Approvals 3
3.3 Dissenter Rights 4
SECTION 4: CONVERSION OR CANCELLATION OF SHARES 4
4.1 Conversion or Cancellation of Shares 4
4.2 Surrender and Payment 4
4.3 Subscription Agreements 5
4.4 No Further Transfers 5
SECTION 5: CERTAIN EFFECTS OF MERGER 5
5.1 Effect of Merger 5
5.2 Further Assurances 5
SECTION 6: POST-MERGER GOVERNANCE 6
6.1 Articles of Incorporation and Bylaws 6
6.2 Directors, Officers and Employees 6
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING 7
7.1 Covenants Regarding the Closing 7
7.2 Conditions to Obligation of Southshore 7
7.3 Conditions to Obligation of RV 10
7.4 Specific Items to be Delivered at the Closing 12
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE 14
8.1 Organization and Standing 14
8.2 Subsidiaries, etc. 15
8.3 Qualification 15
8.4 Financial Statements 15
8.5 Capitalization of Southshore 16
8.6 No Defaults 16
8.7 Taxes 16
8.8 No Actions, Proceedings, etc. 16
8.9 Post Balance Sheet Changes 16
8.10 No Breaches 17
8.11 Condition of Southshore's Assets 17
8.12 Inventory 17
8.13 Accounts Receivable 17
8.14 Southshore Acts and Proceedings 17
8.15 Patents and Other Intangible Rights 18
8.16 Changes in Suppliers and Customers 18
8.17 No Liens or Encumbrances 18
8.18 Employee Matters 18
8.19 Legal Proceedings and Compliance with Law 19
8.20 Contract Schedules 19
8.21 Labor Matters 20
8.22 Insurance 20
8.23 Environmental 20
8.24 Compliance with Reporting Requirements 21
SECTION 9: COVENANTS OF SOUTHSHORE 21
9.1 Preservation of Business 21
9.2 Ordinary Course 21
9.3 Negative Covenants 22
9.4 Access to Books and Records, Premises, etc. 22
9.5 Compensation 22
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV 22
10.1 Organization and Standing 23
10.2 Subsidiaries, etc. 23
10.3 Qualification 23
10.4 Financial Statements 23
10.5 Capitalization of RV 23
10.6 No Defaults 24
10.7 Taxes 24
10.8 No Actions. Proceedings, etc. 24
10.9 Post Balance Sheet Changes 24
10.10 No Breaches 25
10.11 Condition of RV's Assets 25
10.12 Inventory 25
10.13 Accounts Receivable 25
10.14 RV Acts and Proceedings 25
10.15 Patents and Other Intangible Rights 25
10.16 Changes in Suppliers and Customers 26
10.17 No Liens or Encumbrances 26
10.18 Legal Proceedings and Compliance with Law 27
10.19 Contract Schedules 27
10.20 Labor Matters 28
10.21 Insurance 28
10.22 Environmental 28
SECTION 11: COVENANTS OF RV 29
11.1 Preservation of Business 29
11.2 Ordinary Course 29
11.3 Negative Covenants 29
11.4 Access to Books and Records,. Premises, etc. 30
11.5 Compensation 30
SECTION 12: TERMINATION 30
12.1 Termination 30
12.2 Effect of Termination 31
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH 31
13.1 Indemnification by Southshore and SAC 31
13.2 Indemnification by RV 31
13.3 Additional Notice 32
13.4 Determination of Damages and Related Matters 32
13.5 Remedies for Breach 33
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION 33
SECTION 15: EXPENSES 34
SECTION 16: MISCELLANEOUS 34
16.1 Attorney's Fees 34
16.2 Survival and Incorporation of Representations 35
16.3 Incorporation by Reference 35
16.4 Parties in Interest 35
16.5 Amendments and Waivers 35
16.6 Waiver 35
16.7 Governing Law - Construction 36
16.8 Limitation of Actions 36
16.9 Notices 37
16.10 Fax/Counterparts 37
16.11 Captions 37
16.12 Severabilitv 37
16.13 Jurisdiction and Venue 37
16.14 Good Faith Cooperation and Additional Documents 37
16.15 Legal Counsel 37
16.16 No Finders or Brokers Fees 38
16.17 Assignment 38
16.18 List of Exhibits 38
16.19 Entire Agreement - Amendment 39
16.20 Authority to Si
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EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with John Deufel
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax
Related Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs,
Injunctions, Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition
and Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts
Receivable(Material Counterclaims or Set-Offs)
Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation,
Exceptions to Compliance with Laws, Ordinances,
Requirements, Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste
Production, Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults)
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes; Tax Related
Disputes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative, or
Proceedings or Other Material DocumentsGovernmental
Investigation, Exceptions to Compliance with Laws,
Ordinances, Requirements, Regulations or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f) RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into this 20th day of December, 1999, by and among RV HOLIDAY.COM, INC., a
Colorado corporation ("RV"), SOUTHSHORE CORPORATION, a Colorado corporation
("Southshore") and SOUTHSHORE ACQUISITION CORP., a Colorado Subsidiary of
Southshore ("SAC").
WITNESSETH:
WHEREAS, RV is a company formed for the purpose of developing an Internet
web site portal for the recreational vehicle industry; and
WHEREAS, Prior to the Closing, Southshore shall organize a shell
acquisition corporation and become the owner in the aggregate of ten (10)
shares (the "Shares") of the issued and outstanding Common Stock of SAC, $.001
par value per share, representing all the issued and outstanding shares of the
capital stock of SAC; and
WHEREAS, following the Closing, RV intends to acquire one or more RV
dealerships; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants under which a merger of SAC and RV will occur.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties and covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1: GENERAL DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
1.1 AFFILIATE. "Affiliate" of any Person shall mean any Person
Controlling, controlled by or under common Control with such Person.
1.2 BEST KNOWLEDGE. "Best Knowledge" shall mean both what a Person knew
as well as what the Person should have known had the Person exercised
reasonable diligence. When used with respect to a Person other than a natural
person, the term "Best Knowledge" shall include matters that are known to the
directors, officers, partners, trustees, administrators, executors, managers,
employees, consultants and agents of the Person.
1.3 CONTROL. "Control" and all derivations thereof shall mean the
ability to either (i) vote (or direct the vote of) 50% or more of the voting
interests in any Person or (ii) direct the affairs of another, whether through
voting power, contract or otherwise.
1.4 EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
1.5 FISCAL YEAR. "Fiscal Year" shall mean a twelve-month period
beginning January 1;
1.6 GOVERNMENTAL AUTHORITY. "Governmental Authority "shall mean any and
all foreign, federal, state or local governments, governmental institutions,
public authorities and governmental entities of any nature whatsoever, and any
subdivisions or instrumentalities thereof, including, but not limited to,
departments, boards, bureaus, commissions, agencies, courts, administrations
and panels, and any division or instrumentalities thereof, whether permanent
or ad hoc and whether now or hereafter constituted or existing.
1.7 GOVERNMENTAL REQUIREMENT. "Governmental Requirement" shall mean any
and all laws (including, but not limited to, applicable common law
principles), statutes, ordinances, codes, rules regulations, interpretations,
guidelines, directions, orders, judgments, writs, injunctions, decrees,
decisions or similar items or pronouncements, promulgated, issued, passed or
set forth by any Governmental Authority.
1.8 LEGAL REQUIREMENTS. "Legal Requirements" means applicable common
law and any statute, ordinance, code or other laws, rule, regulation,
order, technical or other standard, requirement, judgment, or procedure
enacted, adopted, promulgated, applied or followed by any governmental
authority, including, without limitation, any order, decree, award, verdict,
findings of fact, conclusions of law, decision or judgment, whether or not
final or appealable, of any court, arbitrator, arbitration board or
administrative agency.
1.9 NET WORTH. "Net Worth" shall mean the assets of a Person minus the
liabilities of the Person, as of a given date as determined in accordance with
generally accepted accounting principles.
1.10 PERSON. "Person" shall mean any natural person, any Governmental
Authority and any entity the separate existence of which is recognized by any
Governmental Authority or Governmental Requirement, including, but not limited
to, corporations, partnerships, joint ventures, joint stock companies, trusts,
estates, companies and associations, whether organized for profit or
otherwise.
1.11 EXHIBIT. Unless otherwise stated herein, the term "Exhibit" when
used in this Agreement shall refer to the Exhibits to this Agreement. The
Exhibits to this Agreement may be attached to this Agreement or may be set
forth in a separate document denoted as the Exhibits to this Agreement, or
both.
1.12 SECTION. Unless otherwise stated herein, the term "Section" when
used in this Agreement shall refer to the Sections of this Agreement.
1.13 SECURITIES ACT. "Securities Act" shall mean the Securities Act of
1933, as amended.
1.14 TAXES. "Tax" and "Taxes" shall mean any and all income, excise,
franchise or other taxes and all other charges or fees imposed or collected by
any Governmental Authority or pursuant to any Governmental Requirement, and
shall also include any and all penalties, interest, deficiencies, assessments
and other charges with respect thereto.
SECTION 2: THE MERGER
2.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 2.3 herein). SAC shall be merged
(the "Merger") with and into RV upon the terms and conditions set forth herein
as permitted by and in accordance with the Colorado Corporation Code (the
"Colorado Corporation Law"). Thereupon, the separate existence of SAC shall
cease, and RV, as the surviving corporation in the Merger (the "Surviving
Corporation"), shall continue to exist under and be governed by the Colorado
Corporation Law, with all its purposes, objects, rights, privileges,
immunities, powers and franchises continuing unaffected and unimpaired by the
Merger. The name of the Surviving Corporation shall be "RV Holiday.com, Inc."
2.2 FILING. As soon as practicable following fulfillment or waiver of
the conditions specified in Sections 7, 9 and II hereof, and provided that
this Agreement has not been terminated pursuant to Section 12 hereof, SAC and
RV will cause a short form Agreement and Plan of Merger, in the form attached
hereto as Exhibit 2.2, to be executed, acknowledged and filed with the
Secretary of State of each of Colorado as provided in Section 7-7-104 of the
Colorado Corporation Law and obtain a copy of the Articles of Merger,
certified by the Secretary of State of the State of Colorado.
2.3 EFFECTIVE TIME OF THE MERGER. The Merger shall become effective
immediately upon the filing of the Articles of Merger with the Secretary of
State of the State of Colorado in accordance with the Colorado Corporation
Law. The date and time of the completion of such filings is herein sometimes
referred to as the "Effective Time".
2.4 CLOSING: CLOSING DATE. Subject to the terms and conditions set
forth herein, the consummation of the transactions referenced above shall take
place (the "Closing") on ___________, 1999, at ___________ __.m. Mountain Time
at the offices of Neuman & Drennen, Temple-Bowron House, 1507 Pine Street,
Boulder, Colorado, or at such other time, date and place as RV and SAC shall
designate (the "Closing Date").
SECTION 3: APPROVALS
3.1 SOUTHSHORE APPROVALS. Subject to the provisions hereof, the Board
of Directors of Southshore shall, by written unanimous consent approve the
transactions contemplated by this Agreement in its capacity as the sole
shareholder of SAC; provided, however, that such approval shall be subject to
their satisfaction that the issuance of the Common Stock of Southshore to the
RV Shareholders shall be and is exempt from the registration requirements of
the Securities Act, is undertaken without violation of the anti-fraud
provisions of the Securities Act and has been consummated in conformity with
all other applicable Legal Requirements, including the requirements of Rule
14(f)-1 under the Exchange Act.
3.2 RV APPROVALS. As promptly as practicable after the date hereof. RV
shall take all action necessary or appropriate under the Colorado Corporation
Law, and the Articles of Incorporation and Bylaws of RV, to convene a meeting
of its Stockholders as promptly as practicable for the purpose of considering
and voting upon appropriate resolutions approving the transactions
contemplated by this Agreement, or in lieu thereof, obtain such approval by
unanimous written consent.
3.3 DISSENTER RIGHTS. At all times, and as applicable, RV shall comply
with applicable Legal Requirements including, without limitation, the payment
of cash for dissenting shares related to the Merger.
SECTION 4: CONVERSION OR CANCELLATION OF SHARES
4.1 CONVERSION OR CANCELLATION OF SHARES. At the Effective Time, the
issued and outstanding shares of Common Stock, $.001 par value, of RV ("RV
Common Stock") shall, by virtue of the Merger, be cancelled and converted into
shares of the capital stock of Southshore, as follows:
(a) Subject to compliance with Sections 5 and 17(a) of the
Securities Act, the shares of RV Stock issued and outstanding immediately
prior to the Effective Time, excluding any such shares held in the treasury of
RV, shall be converted into the right to receive an equal number of shares of
Common Stock of Southshore, $.01 par value per share (the "Southshore Stock").
Such right may be exercised by the surrender of the certificates representing
such shares of RV stock in accordance with Section 4.2 hereof. The number of
shares of Southshore Stock issued upon surrender shall be calculated as
follows:
The aggregate number of shares of Southshore Stock so issuable in
the conversion of the RV Stock shall be 5,500,000. The Southshore
Stock shall be allocated to the holders of RV Stock pro rata on a
one-for-one basis.
(b) Each share of Southshore Stock, issued under paragraph (a)
above shall be Restricted Stock pursuant to Rule 144 promulgated under the
Securities Act.
(c) Each share of RV Stock, if any, held in RV's treasury
immediately prior to the Effective Time shall be canceled and retired and no
payment shall be made in respect thereof.
(d) At the Effective Time, all outstanding shares of SAC shall be
converted into an equal number of shares of Common Stock of RV.
4.2 SURRENDER AND PAYMENT. Subject to compliance with Sections 5 and
17(a) of the Securities Act, after the Effective Time, each holder of a
certificate representing an issued and outstanding share of RV Stock shall be
entitled upon surrender of such certificate along with a fully executed
Subscription Agreement in the form of Exhibit 4.3, to Southshore, to receive
the Southshore stock as set forth in Section 4.1 above. Until so surrendered,
each certificate which immediately prior to the Effective Time represented an
issued and outstanding share of RV Stock shall, upon and after the Effective
Time, be deemed for all purposes to represent and evidence only the right to
receive Southshore Stock as set forth in Section 4.1. If any exchange for
shares of RV Stock is to be made in a name other than that in which the
certificate therefor surrendered for exchange is registered, it shall be a
condition of such payment that the certificate so surrendered be properly
endorsed or otherwise in proper form for transfer and that the person
requesting such payment either pay to Southshore any transfer or other similar
taxes required by reason of the payment to a person other than the registered
holder of the certificate surrendered or establish to the satisfaction of
Southshore that such tax has been paid or is not payable.
4.3 SUBSCRIPTION AGREEMENTS. Each of the RV Shareholders receiving
Southshore Stock pursuant to the terms hereof shall have delivered a fully
executed Subscription Agreement in the form included on Exhibit 4.3.
4.4 NO FURTHER TRANSFERS. On and after the Effective Time, no transfer
of the shares of RV Stock issued and outstanding immediately prior to the
Effective Time shall be made on the stock transfer books of RV.
SECTION 5: CERTAIN EFFECTS OF MERGER
5.1 EFFECT OF MERGER. On and after the Effective Time, the separate
existence of SAC shall cease and SAC shall be merged with and into RV, which
as the Surviving Corporation shall, consistently with its Articles of
Incorporation succeed to, and without other transfer, possess all the rights,
privileges, immunities, powers and franchises of public as well as private
nature, and be subject to all restrictions, disabilities and duties of SAC;
and all rights, privileges, immunities, powers and franchises of SAC, and all
property, real, personal and mixed, causes of action and every other asset of,
and all debts due to SAC on whatever account as well as stock subscriptions
and all other things in action or belonging to SAC shall vest in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of SAC, and
the title to any real estate vested by deed or otherwise in SAC, and the title
to any real estate vested by deed or otherwise in SAC shall not revert or be
in any way impaired but all rights of creditors and all liens upon any
property of SAC shall be preserved unimpaired, and all debts, liabilities and
duties of SAC shall thenceforth attach to the Surviving Corporation, and may
be enforced against it to the same extent as if such debts, liabilities and
duties had been incurred or contracted by it. Any action or proceeding
pending by or against SAC may be prosecuted to judgment, which shall bind the
Surviving Corporation, or the Surviving Corporation may be proceeded against
or substituted in its place.
5.2 FURTHER ASSURANCES. If at any time after the Effective Time the
Surviving Corporation shall consider any further deeds, assignments or
assurances in law or any other action necessary, desirable or proper (a) to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to any property or rights of SAC acquired or to be acquired by
reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, SAC agrees that it and its proper officers and
directors shall and will execute and deliver all such property, deeds,
assignments and assurances in law and take all other action necessary,
desirable or proper to vest, perfect or confirm title to such property or
right in the Surviving Corporation and otherwise to carry out the purposes of
this Agreement.
SECTION 6: POST-MERGER GOVERNANCE
6.1 ARTICLES OF INCORPORATION AND BYLAWS. At the Effective Time, the
Articles of Incorporation and By-Laws of RV as in effect immediately prior to
the Effective Time, shall be and continue to be the Articles of Incorporation
and By-Laws of RV, as the Surviving Corporation, until duly amended in
accordance with law.
6.2 DIRECTORS. OFFICERS AND EMPLOYEES.
(a) DIRECTORS OF SOUTHSHORE. On Closing, the current members of
the Board of Directors of Southshore shall, in accordance with the Colorado
Corporation Law and the Articles of Incorporation and By-Laws of Southshore,
cause the Board of Directors of Southshore to be reconstituted to consist of a
total of three (3) persons, to be designated by the management of RV. The
current members of the Southshore Board of Directors shall resign their
respective board memberships.
(b) INFORMATION STATEMENT. At least ten (10) days prior to the
Closing, Southshore shall cause to be mailed to its shareholders of record and
filed with the Securities and Exchange Commission (the "Commission") an
information statement meeting the requirements of Rule 14(f)-1 under the
Exchange Act.
(c) EXECUTIVE OFFICERS OF SOUTHSHORE. Immediately after the
Effective Time, the newly constituted Board of Directors of Southshore shall
elect persons to serve as Executive Officers of Southshore any persons serving
as Executive Officers of Southshore immediately prior to the Effective Time
who will not continue in such capacity immediately after the Effective Time
shall tender their resignations in accordance with applicable Legal
Requirements.
(d) EMPLOYMENT AGREEMENTS OF SOUTHSHORE. At Closing, Southshore
shall enter into a written Employment Agreement with John Deufel as
____________________, substantially in the form of Exhibit 6.2(d) hereto.
(e) DIRECTORS OF RV. Immediately after the Effective Time, the
Board of Directors of RV shall be reconstituted to consist of one (1) or more
persons as shall be appointed by a majority vote of the newly constituted
Board of Directors of Southshore.
(f) EXECUTIVE OFFICERS OF RV. Immediately after the Effective
Time, any person serving as an executive officer of RV immediately prior to
the Effective Time who will not continue in such capacity immediately after
the Effective Time shall tender their resignation in accordance with
applicable legal requirements. The executive officers of RV immediately after
the Effective Time shall be persons duly appointed by the newly constituted
directors of RV.
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING
7.1 COVENANTS REGARDING THE CLOSING. The parties hereto hereby covenant
and agree that they shall (i) use reasonable efforts to cause all of their
respective representations and warranties set forth in this Agreement to be
true on and as of the Closing Date, (ii) use reasonable efforts to cause all
of their respective obligations that are to be fulfilled on or prior to the
Closing Date to be so fulfilled, (iii) use reasonable efforts to cause all
conditions to the Closing set forth in this Agreement to be satisfied on or
prior to the Closing Date, and (iv) deliver to each other at the Closing the
certificates, updated lists, opinion of counsel, notices, consents,
authorizations, approvals, agreements, transfer documents, receipts and
amendments contemplated by Sections 7, 8 and 10 (with such additions or
exceptions to such items as are necessary to make the statements set forth in
such items accurate, provided that if any such additions or exceptions cause
any of the conditions to the parties' obligations hereunder as set forth in
Sections 7, 8 and 10 below not to be fulfilled, such additions and exceptions
shall in no way limit the rights of the parties to terminate this Agreement or
refuse to consummate the transactions contemplated hereby.) All
indemnifications, guarantees, covenants, agreements, representations and
warranties made by the parties hereunder or pursuant hereto or in connection
with the transactions contemplated hereby shall survive the Closing regardless
of any investigation at any time made by or on behalf of the parties.
7.2 CONDITIONS TO OBLIGATION OF SOUTHSHORE. The obligation of
Southshore to complete the Merger on the Closing date on the terms set forth
in this Agreement is, at the option of Southshore, subject to the satisfaction
or waiver by Southshore of each of the following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by RV in this Agreement shall be correct
in all material respects on and as of the Closing date with the same force and
effect as though such representations and warranties had been made on the
Closing date.
(b) COMPLIANCE WITH COVENANTS. All covenants which RV is required
to perform or comply with on or before the Closing date shall have been fully
complied with or performed in all material respects.
(c) CORPORATE APPROVALS. The Board of Directors and shareholders
of RV shall have approved and ratified this Agreement and shall have
authorized the appropriate officers of RV to execute same and fully perform
its terms.
(d) CONSENTS AND APPROVALS. To the extent that any material lease,
mortgage, deed of trust, contract or agreement to which RV is a party shall
require the consent of any person to the exchange of RV's shares of common
stock or any other transaction provided for herein, such consent shall have
been obtained; provided, however, that RV shall not make, as a condition for
the obtaining of any such consent, any agreements or undertakings not approved
in writing by Southshore to the extent that such condition otherwise has an
effect on Southshore.
(e) REVIEW AND DUE DILIGENCE. Southshore, its investment bankers,
legal counsel and/or auditors shall have had the opportunity to complete, and
shall have completed, a satisfactory due diligence investigation of RV
together with a satisfactory review of RV's corporate status and the
marketability of title to RV's property.
(f) NO GOVERNMENTAL ACTIONS. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the Companies
shall have delivered to each other certificates dated as of the Closing Date
and executed by such parties, staling that to their Best Knowledge, no such
items exist. No governmental authority shall have taken any other action as a
result of which the management of Southshore, in its sole discretion,
reasonably deems it inadvisable to proceed with the transactions contemplated
by this Agreement.
(g) NO MATERIAL ADVERSE CHANGE. No material adverse change in the
business, property or assets of any party hereto shall have occurred, and no
loss or damage to any of the assets, whether or not covered by insurance, with
respect to any party hereto has occurred, and the parties hereto shall have
delivered to each other certificates dated as of the Closing Date and executed
by each of the parties to all such effects.
(h) UPDATE OF CONTRACTS. The parties hereto shall have delivered
to each other an accurate list, as of the Closing Date, showing (i) all
agreements, contracts and commitments of the type listed on Exhibits 8.20 and
10.13 entered into since the date of this Agreement; and (ii) all other
agreements, contracts and commitments related to the businesses or the assets
of the respective parties entered into since the date of this Agreement,
together with true, complete and accurate copies of all such documents (the
"New Contracts"). Each party shall have had the opportunity to review and
approve the New Contracts of the other, and any of the parties shall have the
right to delay the Closing for up to ten (10) days if it in its sole
discretion deems such delay necessary to enable it to adequately review the
New Contracts.
(i) APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carry out this Agreement, including all
schedules and exhibits thereto, and all other related legal matters shall have
been approved by Neuman & Drennen, LLC, counsel to RV and SAC, and Krys,
Boyle, Freedman & Sawyer, counsel to Southshore.
(j) NO ADVERSE INFORMATION. The investigations with respect to the
parties, the assets and the respective businesses performed by each party's
respective professional advisors and other representatives shall not have
revealed any information concerning the other parties, their assets or their
business and with respect to the backgrounds of the proposed directors and
officers of Southshore nominated by RV that has not been made known to the
discovering party, in writing prior to the date of this Agreement and that, in
the opinion of such party and its advisors, materially and adversely affects
the business or assets of the other party or the viability of the transaction
contemplated by this Agreement.
(k) COURSE OF BUSINESS. During the period from the date of this
Agreement until the Closing Date, RV shall have carried on its business which
consists of completing a private offering of its securities and entering into
agreements to acquire one or more RV dealerships.
(l) LIENS. RV shall have delivered to Southshore a reasonably
current lien and judgment search (both state and county levels in each
jurisdiction where the party is qualified to or is doing business or owns
material assets) confirming the absence of any judicial liens, security
interests, tax liens and similar such liens affecting any of its business or
assets. Each and every lien or encumbrance of any nature, if any, relating to
the assets, business, or the shares of common stock of RV shall have been
terminated and released, and proof thereof delivered to Southshore.
(m) OTHER DOCUMENTS. The parties shall have delivered or caused to
be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(n) GOVERNMENTAL AND REGULATORY APPROVALS. The parties shall have
obtained evidence, in form and substance satisfactory to each of them, that
there have been obtained all consents, approvals and authorizations required
by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions
contemplated pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction where
such approval may be required.
(o) DISSENTING SHAREHOLDERS. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(p) AUDIT CONFIRMATION. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, Southshore shall have received confirmation from its
independent accountants or the independent public accountants selected by RV
that books and records of RV will permit the preparation by Southshore of
audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(q) FEDERAL AND STATE SECURITIES LAWS. The sale and/or issuance of
Southshore securities pursuant to the Merger shall have been cleared by all
applicable federal and state securities authorities or the issuance of such
securities shall be exempt from registration with said authorities.
(r) PRIVATE PLACEMENT. RV shall have completed a private placement
of its securities exclusively to persons who qualify as "accredited investors"
within the meaning of Rule 501(a) of Regulation D realizing gross revenues of
at least Six Hundred Thousand Dollars ($600,000).
(s) URL NAME. Prior to the Closing, RV shall have acquired
ownership to the following URL names:
IRV.com
Destination Freedom.com
IRV.com.com
IRV Home Page.com
IRV Home Page.net
MYRV Bid.com
MYRV Bid.net
MYRV Offer.com
MYRV Offer.net
RV Dealers.net.com
RV Dealers.net.net
RVHoliday.com
RVHoliday.net
RV Home Page.com
RV Home Page.net
RV Locators.com
RV Locators.net
RV Nation.net
RV Negotiators.com
RV Negotiators.net
RV Priceline.com
RV Priceline.net
RV Pricequote.com
RV Pricequote.net
RV Purchase.com
RV Purchase.net
RV Smart.net
(s) COMPLIANCE WITH SECTIONS 5 AND 17 OF THE SECURITIES ACT. The
Board of Directors of Southshore shall be satisfied that the issuance of
Common Stock to the RV shareholders is in compliance with the provisions of
Sections 5 and 17 of the Securities Act.
7.3 CONDITIONS TO OBLIGATION OF RV. The obligations of RV to complete
the Merger on the Closing date on the terms set forth in this Agreement is, at
the option of RV, subject to the satisfaction or waiver by RV of each of the
following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by Southshore and SAC in this Agreement
shall be correct in all material respects on and as of the Closing date with
the same force and effect as though such representations and warranties had
been made on the Closing date.
(b) COMPLIANCE WITH COVENANTS. All covenants which Southshore and
SAC is required to perform or comply with on or before the Closing date shall
have been fully complied with or performed in all material respects.
(c) CORPORATE APPROVALS. The Board of Directors of Southshore and
SAC shall have approved and ratified this Agreement and shall have authorized
the appropriate officers to execute same and fully perform its terms.
(d) CONSENTS AND APPROVALS. To the extent that any material lease,
mortgage, deed of trust, contract or agreement to which Southshore and SAC is
a party shall require the consent of any person to the exchange of Southshore
and SAC's shares of common stock or any other transaction provided for herein,
such consent shall have been obtained; provided, however, that Southshore and
SAC shall not make, as a condition for the obtaining of any such consent, any
agreements or undertakings not approved in writing by RV to the extent that
such condition otherwise has an effect on RV or Southshore and SAC.
(e) REVIEW AND DUE DILIGENCE. RV and its legal counsel and/or
auditors shall have had the opportunity to complete, and shall have completed,
a satisfactory due diligence investigation of Southshore and SAC, together
with a satisfactory review of Southshore and SAC's corporate status, the
marketability of title to Southshore and SAC's property, and compliance with
all reporting requirements imposed by or on account of any federal or state
securities laws or regulations.
(f) NO GOVERNMENTAL ACTIONS. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the parties
hereto shall have delivered to each other certificates dated as of the Closing
Date and executed by such parties stating that, to their Best Knowledge, no
such items exist. No governmental authority shall have taken any other action
as a result of which the management of any of the parties, in its sole
discretion, reasonably deems it inadvisable to proceed with the transactions
contemplated by this Agreement.
(g) NO MATERIAL ADVERSE CHANGE. No material adverse change in the
business, property or assets of any party hereto shall have occurred, and no
loss or damage to any of the assets, whether or not covered by insurance, with
respect to any party hereto has occurred, and the parties shall have delivered
to each other certificates dated as of the Closing Date and executed by each
of the parties to all such effects.
(h) UPDATE OF CONTRACTS. The parties shall have delivered to each
other an accurate list, as of the Closing Date, showing (i) all agreements,
contracts and commitments of the type listed on Exhibits 8.20 and 10.13
entered into since the date of this Agreement; and (ii) all other agreements,
contracts and commitments related to the businesses or the assets of the
respective parties entered into since the date of this Agreement, together
with true, complete and accurate copies of all such documents (the "New
Contracts"). Each party shall have had the opportunity to review the New
Contracts of the other, and any of the parties shall have the right to delay
the Closing for up to ten (10) days if it in its sole discretion deems such
delay necessary to enable it to adequately review the New Contracts.
(i) APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carry out this Agreement, including all
schedules and exhibits thereto, and all other related legal matters shall have
been approved as to substance and form by Neuman & Drennen, LLC, counsel to
RV, and Krys, Boyle, Freedman & Sawyer, counsel to Southshore.
(j) NO ADVERSE INFORMATION. The investigations with respect to the
parties, the assets and their respective businesses performed by each party's
respective professional advisors and other representatives shall not have
revealed any information concerning the other panes, their assets or their
business that has not been made known to the discovering party, in writing
prior to the date of this Agreement and that, in the opinion of such party and
its advisors, materially and adversely affects the business or assets of the
other party or the viability of the transaction contemplated by this
Agreement.
(k) ORDINARY COURSE OF BUSINESS. During the period from the date
of this Agreement until the Closing Date, Southshore shall have carried on its
business in the ordinary and usual course, and shall have delivered to RV a
certificate to that effect.
(1) OTHER DOCUMENTS. The parties shall have delivered or caused to
be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(m) GOVERNMENTAL AND REGULATORY APPROVALS. The parties shall have
obtained evidence, in form and substance satisfactory to each of them, that
there have been obtained all consents, approvals and authorizations required
by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions
contemplated pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction where
such approval may be required.
(n) DISSENTING SHAREHOLDERS. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(o) AUDIT CONFIRMATION. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, RV shall have received confirmation from its independent
accountants that the books and records of RV will permit the preparation by RV
of audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(p) FEDERAL AND STATE SECURITIES LAWS. The sale and/or issuance of
Southshore securities pursuant to the Merger shall be exempt from registration
under state and federal securities laws.
(q) SHAREHOLDER OPTIONS. At Closing, certain shareholders of
Southshore shall have granted options to persons designated by RV exercisable
for ninety (90) days to purchase an aggregate of 500,000 shares of Southshore
Common Stock at an exercise price of $.50 per share.
(r) NET WORTH AND SHARES OUTSTANDING. At Closing, Southshore shall
have Net Worth of not less than One Hundred Thousand Dollars ($100,000) and no
more than 2,610,470 shares of Common Stock outstanding.
(s) RESALE AGREEMENTS. At Closing, Ken Dalton and Michael McCallum
should have executed and delivered their agreements to limit their resales of
Southshore common stock in market transactions upon terms acceptable to RV.
7.4 SPECIFIC ITEMS TO BE DELIVERED AT THE CLOSING. The parties shall
deliver the following items to the appropriate party at the Closing of the
transactions contemplated by this Agreement.
(a) To be delivered by RV (in duplicate original):
(i) Copy of corporate resolutions authorizing the
execution of this Agreement, and the consummation by RV
of the transactions contemplated by this Agreement.
(ii) A certificate of the President of RV staring
that the representations and warranties of RV set forth
in this Agreement are true and correct. Said certificate
shall further verify and affirm that all consents or
waivers, if any, which may be necessary to execute and
deliver this Agreement have been obtained and are in full
force and effect.
(iii) A certificate dated the Closing Date, signed by the Chief
Executive Officer and the Chief Financial Officer of RV,
in form and substance satisfactory to the other party and
its legal counsel, certifying that all conditions
precedent set forth in this Agreement to the obligations
of RV to close, have been fulfilled, and that no event of
default hereunder and no event which, with the giving of
notice or passage of time, or both, would be an event of
default, has occurred as of such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of RV, (i) certifying resolutions duly adopted
by the Board of Directors and Shareholders of RV,
authorizing the execution of this Agreement and all of the
other transactions to be consummated pursuant thereto;
(ii) certifying the names and incumbency of the officers
of RV who are empowered to execute the foregoing documents
for and on behalf of such company; (iii) certifying the
authenticity of copies of the Articles of Incorporation
and Bylaws of RV; and (iv) certifying the authenticity of
a reasonably current Certificate of Good Standing, from
all jurisdictions in which the company is qualified to
conduct business.
(b) To be delivered by Shareholders of RV (in duplicate original):
(i) Certificate or certificates representing 100% of the
issued and outstanding common shares of RV, which stock
certificates shall be endorsed in favor of Southshore.
(ii) Fully executed Subscription Agreements from all
shareholders of record of RV substantially in the form of
Exhibit 4.3.
(iii) Assignments, if any, with unconditional warranties of
title, duly executed by Shareholders, assigning to
Southshore any and all equity rights, including, but not
limited to, options, warrants, puts and so forth, which
Shareholders may own in RV at the time of Closing.
(iv) Certificate of Shareholders in which they state that they
own the shares and other rights of RV free and clear of
all liens, encumbrances, security interests and
limitations on transfer whatsoever.
(c) To be delivered by Southshore (in duplicate original):
(i) Certificate or certificates representing 5,500,000 shares
of Southshore Common Stock, which stock certificates shall
be issued in the names of each Shareholder in the numbers
set forth in Section 4.1 hereof;
(ii) Copy of corporate resolution authorizing the
execution of this Agreement and the consummation by
Southshore and SAC of the transactions contemplated by
this Agreement, including, but not limited to, the
issuance of Southshore Common Stock in the amounts and
manner set forth in Section 4.1 above;
(iii) A certificate dated the Closing Date, signed by the Chief
Executive Officer and the Chief Financial Officer of
Southshore and SAC, in form and substance satisfactory to
the other party and its legal counsel, certifying that all
conditions precedent set forth in this Agreement to the
obligations of Southshore and SAC to close, have been
fulfilled, and that no event of default hereunder and no
event which, with the giving of notice or passage of time,
or both, would be an event of default, has occurred as of
such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of Southshore and SAC, (i) certifying
resolutions duly adopted by the Board of Directors of
Southshore and SAC, authorizing the execution of this
Agreement and all of the other transactions to be
consummated pursuant thereto; (ii) certifying the names
and incumbency of the officers of Southshore and SAC who
are empowered to execute the foregoing documents for and
on behalf of such company; (iii) certifying the
authenticity of copies of the Articles of Incorporation
and Bylaws of Southshore and SAC; and (iv) certifying the
authenticity of a reasonably current Certificate of Good
Standing, from all jurisdictions in which Southshore
and SAC are qualified to conduct business.
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE
Southshore represents and warrants as follows:
8.1 ORGANIZATION AND STANDING. Southshore is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Colorado and has all requisite corporate power and authority to own their
assets and properties and to carry on their businesses as they are now being
conducted.
8.2 SUBSIDIARIES, ETC. SAC will prior to Closing be a subsidiary of and
wholly owned by Southshore, a Colorado. Other than its ownership interest in
SAC, Southshore has no direct or indirect ownership interest in any
corporation, partnership, joint venture, association or other business
enterprise. SAC will not have any direct or indirect ownership interest in
any corporation, partnership, joint venture, association or other business
enterprise, and, at the Effective Time, will have no assets and no
liabilities.
8.3 QUALIFICATION. Southshore is not qualified to engage in business as
foreign corporations in any state, and there is no other jurisdiction wherein
the character of the properties presently owned by Southshore or the nature of
the activities presently conducted by Southshore and SAC make necessary the
qualification, licensing or domestication of Southshore as foreign
corporations.
8.4 FINANCIAL STATEMENTS. The following financial statements have been
filed with the Commission:
(a) Audited financial statements of Southshore accompanied by
a report of its independent certified public accountants containing audited
balance sheets of Southshore for the periods ending March 31, 1999, 1998 and
1997, together with statements of operations and cash flows for Southshore for
the three year period ending March 31, 1999 on Form 10-K; and
(b) Unaudited financial statements of Southshore containing
balance sheets and statements of operations for Southshore at June 30, 1999
and September 30, 1999 on Form 10-Q.
To the Best Knowledge of Southshore, such financial statements, together
with and subject to the disclosures and notes thereto, (i) are in accordance
with the books and records of Southshore; (ii) present fairly and accurately
the financial condition of Southshore; as of the dates of the balance sheets;
(iii) present fairly and accurately the results of operations for the periods
covered by such statements; (iv) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis; (v)
include all adjustments (consisting of only normal recurring accruals) which
are necessary for a fair presentation of the financial condition of
Southshore, and of the results of operations of Southshore for the periods
covered by such statements; and (vi) fully comply with all requirements of
Regulation SK and all applicable securities laws.
As of the date hereof, and as of Closing, Southshore does not have any
liabilities or payables (absolute or contingent, known or unknown) except for
liabilities or payables set forth on Southshore's financial statements or
otherwise disclosed in writing by Southshore, or except for liabilities and
payables incurred in the ordinary course of business.
8.5 CAPITALIZATION OF SOUTHSHORE. The authorized capital stock of
Southshore consists entirely of 100,000,000 shares common stock having a par
value of $.001 per share. As of the date of this Agreement, 2,610,470 shares
of common stock are issued and outstanding, and there are no preferred shares
issued and outstanding. All outstanding shares of Southshore's capital stock
have been validly issued and are fully paid and nonassessable. Except as set
forth in its latest Form 10-K, there are no other equity securities of
Southshore authorized, issued or outstanding, and there are no authorized,
issued or outstanding subscriptions, options, warrants, contracts, calls,
commitments or other purchase rights of any nature or character relating to
any of Southshore's capital stock, equity securities, debt or other securities
convertible into stock or equity securities of Southshore.
8.6 NO DEFAULTS. Except as set forth on the attached Exhibit 8.6, each
of the leases, contracts, agreements and insurance policies to which
Southshore is a party is in full force and effect as of the date hereof with
no material defaults existing thereunder.
8.7 TAXES. Except as set forth in Exhibit 8.7, Southshore has filed (or
has obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of Southshore accrued for or applicable to all periods
ended on or prior to the date of this Agreement, or which may subsequently be
determined to be owing by Southshore with respect to all periods ending on or
prior to the Closing date, subject to normal year-end adjustments, which will
not be material. There are no present disputes as to Taxes of any nature
payable by Southshore.
8.8 NO ACTIONS. PROCEEDINGS, ETC. Except as listed on the attached
Exhibit 8.8, there is no action or proceeding (whether or not purportedly on
behalf of Southshore) pending or threatened by or against Southshore, nor does
there exist any basis therefor, which might result in any material adverse
change in the condition, financial or otherwise, of Southshore's business or
assets. No order, writ or injunction or decree has been issued by, or
requested of any court or governmental agency which does nor may result in any
material adverse change in Southshore's assets or properties or in the
financial condition or the business of Southshore. Southshore is not liable
for damages to any employee or former employee as a result of any violation of
any state, federal or foreign laws directly or indirectly relating to such
employee or former employee.
8.9 POST BALANCE SHEET CHANGES. Except as set forth on the attached
Exhibit 8.9, since the date of the latest financial statements through the
date of this Agreement, Southshore has not without the prior written consent
of RV, (a) issued, bought, redeemed or entered into any agreements,
commitments or obligations to sell, buy or redeem any shares of its capital
stock; (b) incurred any obligation or liability (absolute or contingent),
other than current liabilities incurred, and obligations under contracts
entered into, in the ordinary course of business; (c) discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute or
contingent), other than current liabilities incurred in the ordinary course of
business; (d) mortgaged, pledged or subjected to lien charges, or other
encumbrance any of its assets, other than the lien of current or real property
taxes not yet due and payable; (e) waived any rights of substantial value,
whether or not in the ordinary course of business; (f) suffered any damage,
destruction or loss, whether or not covered by insurance, materially and
adversely affecting its assets or its business; (g) made or suffered any
amendment or termination of any material contract or any agreement which
adversely affects its business; (h) received notice or had knowledge of any
labor trouble other than routine grievance matters, none of which is material;
(i) increased the salaries or other compensation of any of its directors,
officers or employees or made any increase in other benefits to which
employees may be entitled, other than employee salary increases made in the
ordinary course of business; (j) sold, transferred or otherwise disposed of
any of its assets, other than in the ordinary course of business; (k) declared
or made any distribution or payments to any of its shareholders, officers or
employees, other than wages and salaries made to employees in the ordinary
course of business; (1) revalued any of its assets; or (m) entered into any
transactions not in the ordinary course of business.
8.10 NO BREACHES. Southshore is not in violation of, and the
consummation of the transactions contemplated hereby do not and will not
result in any material breach of, any of the terms or conditions of any
mortgage, bond, indenture, agreement, contract, license or other instrument or
obligation to which Southshore is a party or by which its assets are bound;
nor will the consummation of the transactions contemplated hereby cause
Southshore to violate any statute, regulation, judgment, writ, injunction or
decree of any court, threatened or entered in a proceeding or action in which
Southshore is, was or may be bound or to which any of Southshore's assets are
subject.
8.11 CONDITION OF SOUTHSHORE'S ASSETS. Southshore's assets are currently
in good and usable condition and there are no defects or other conditions
which, in the aggregate, materially and adversely affect the operation or
values of such assets. Except as disclosed on the attached Exhibit 8.11, no
third party (including any officer or employee of Southshore) has any
proprietary interest in any know-how or other intangible assets used by
Southshore in the conduct of its business. All product which is currently
being marketed by Southshore is operable for its intended purposes in
accordance with its written specifications and trade representations.
8.12 INVENTORY. Except as otherwise set forth on Exhibit 8.12, all
inventories reflected in Southshore's latest financial statements in excess of
the reserves for excess or obsolete inventories are stated at the lowest of
cost, replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
ordinary course of business of Southshore, without discounts other than normal
trade discounts regularly offered by Southshore, for prompt payment or
quantity purchase.
8.13 ACCOUNTS RECEIVABLE. The accounts receivable of Southshore
represent valid and enforceable obligations due to Southshore, and, except to
the extent of the reserve reflected in the latest financial statements, to the
Best Knowledge of Southshore shall be collectible by Southshore in the
ordinary course of business. Except as set forth on the attached Exhibit
8.13, Southshore has not received any notice of any material counterclaim or
set-off with respect to such accounts receivable.
8.14 SOUTHSHORE ACTS AND PROCEEDINGS. This Agreement has been duly
authorized by all necessary corporate action on behalf of Southshore, has been
duly executed and delivered by authorized officers of Southshore, and is a
valid and binding Agreement on the part of Southshore that is enforceable
against Southshore in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and to judicial limitations on the enforcement of the remedy of specific
performance and other equitable remedies. All corporate action necessary to
issue and deliver to the shareholders of RV the Southshore Stock (as described
in Section 4) has been taken by Southshore.
8.15 PATENTS AND OTHER INTANGIBLE RIGHTS. Except as disclosed on Exhibit
8.15, Southshore (a) owns or has the exclusive right to use, free and clear of
all material liens, claims and restrictions, all patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect to the
foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
8.16 CHANGES IN SUPPLIERS AND CUSTOMERS. Except as disclosed on Exhibit
8.16, Southshore is not aware of any fact which indicates that any of the
suppliers supplying products, components or materials to Southshore intends to
cease selling such products to Southshore nor is Southshore aware of any fact
which indicates that any major customer of Southshore intends to terminate its
business relations with Southshore.
8.17 NO LIENS OR ENCUMBRANCES. Southshore has good and marketable title
to all of the property and assets, tangible and intangible, employed in the
operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 8.17 and except for such property and assets
as may be leased by Southshore.
8.18 EMPLOYEE MATTERS. Ken Dalton and Eric Nelson are the only employees
of Southshore. They intend to terminate their employment relationship with
Southshore on the Closing Date, without further liability of Southshore.
Except as specifically described on Exhibit 8.18, Southshore has no employee
benefit plans (including, but not limited to, pension plans and health or
welfare plans), arrangements or understandings, whether formal or informal.
Southshore does not now and has never contributed to a "multi-employer plan"
as defined in Section 400(a)(3) of the Employee Retirement Income Securities
Act of 1934, as amended ("ERISA"). Southshore has complied with all applicable
provisions of ERISA and all rules and regulations promulgated thereunder, and
neither Southshore nor any trustee, administrator, fiduciary, agent or
employee thereof has at any time been involved in a transaction that would
constitute a "prohibited transaction" within the meaning of Section 406 of
ERISA as to any covered plan of Southshore. Southshore is not a party to any
collective bargaining or other union agreement. Southshore has not, within the
past five (5) years had, or been threatened with, any union activities, work
stoppages or other labor trouble with respect to its employees which had or
might have had a material adverse effect on Southshore or SAC, their
businesses or assets. Except as disclosed on Exhibit 8.18, within the twelve
(12) months prior to and since the date of the financial statements provided
for in this Agreement, Southshore has not made any commitment or agreements to
increase the wages or modify the conditions or terms of employment of any of
the employees of Southshore used in connection with its business, and between
the date of this Agreement and the Closing Date, neither Southshore or SAC
will make any agreement to increase the wages or modify the conditions or
terms of employment of any of the employees of Southshore or SAC respectively,
without the prior written consent of all parties hereto.
8.19 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW. Except as set forth in
Exhibits 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.13 or 8.19, there is no legal,
administrative, arbitration or other proceeding or governmental investigation
pending or threatened (including those relating to the health, safety,
employment of labor, or protection of the environment) pertaining to
Southshore which might result in the aggregate in money damages payable by
Southshore in excess of insurance coverage or which might result in a
permanent injunction against Southshore. Except as set forth in such Exhibits,
Southshore has substantially complied with, and is not in default in any
respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of Southshore, the violation of which might
materially and adversely affect it. Except as set forth in such Exhibits,
Southshore is not a party to any agreement or instrument, nor is it subject to
any charter or other corporate restriction or any judgment, order, writ,
injunction, decree, rule, regulation, code or ordinance which materially and
adversely affects, or might reasonably be expected materially and adversely to
affect the business, operations, prospects, property, assets or condition,
financial or otherwise, of Southshore.
8.20 CONTRACT SCHEDULES. Attached as Exhibits 8.20(a) to 8.20(f) hereto
are an accurate list and summary description of the following:
(a) All contracts, leases, agreements, covenants, licenses,
instruments or commitments of Southshore pertaining to the business of
Southshore calling for the payment of $5,000 or more or which is otherwise
material to the business of Southshore, including, without limitation, the
following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of any
assets;
(iii) Management or consulting contracts;
(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the like,
other than those entered into and executed in the ordinary
course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and collective
bargaining agreements related to Southshore.
(c) All instruments evidencing any liens or security interest
securing any indebtedness of Southshore covering any asset of Southshore.
(d) A listing generally describing all computer programs and
related software proprietary to Southshore, and all management proprietary
systems utilized by Southshore in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of Southshore.
(f) Any and all documents, instruments and other writings not
listed in any other schedule hereto which are material to the business
operations of Southshore.
Except as set forth in Exhibit 8.20(f), all of such contracts,
agreements, leases, licenses, plans, arrangements and commitments and all
other such items set forth above are valid, binding and in full force and
effect in accordance with their terms and conditions, and there is no existing
default thereunder or breach thereof by Southshore, or by any party to such
contracts, or any conditions which, with the passage of time or the giving of
notice or both, might constitute such a default by Southshore or by any other
party to the contracts.
8.21 LABOR MATTERS. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of Southshore or any of its agent or employees,
threatened against Southshore.
8.22 INSURANCE. Southshore maintains in full force and effect insurance
coverage on its assets and business in such amounts and against such risks and
losses as set forth in Exhibit 8.22.
8.23 ENVIRONMENTAL. Except as disclosed on Exhibit 8.23, and except for
normal office and consumer products utilized in the ordinary course of
business, the conduct and operation of the business of Southshore has not and
does not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency. The terms "hazardous wastes" and "hazardous
substances" shall have the meaning specified by any applicable local, state,
or federal statute or regulation concerning or governing water pollution,
groundwater protection, air pollution, solid wastes, hazardous wastes, spills,
and other releases of toxic or hazardous substances, transportation of
hazardous substances, materials, and wastes and occupational or employee
health and safety.
8.24 COMPLIANCE WITH REPORTING REQUIREMENTS. Southshore represents,
warrants and agrees that, as of the date of Closing, Southshore has filed all
forms, reports and documents with the Securities and Exchange Commission (the
"Commission") required to be filed by it pursuant to the Securities Act and
the Exchange Act, including, without limitation, all reporting requirements of
13(a) of the Exchange Act. The reports filed with the Commission, to
Southshore's Best Knowledge, did not contain, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
SECTION 9: COVENANTS OF SOUTHSHORE AND SAC
9.1 PRESERVATION OF BUSINESS. Until Closing, Southshore shall use its
best efforts to:
(a) preserve intact the present business organization of
Southshore;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of Southshore with its customers and all other persons having
business dealings with Southshore;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of Southshore; and
(e) comply with all laws applicable to the conduct of its business
9.2 ORDINARY COURSE. Southshore shall conduct its business only in the
usual, regular and ordinary course, in substantially the same manner as
previously, and shall not make any substantial change to its methods of
management or operation in respect of such business or property. Without
limiting the foregoing, Southshore shall not:
(a) sell, mortgage, pledge or encumber or agree to sell, mortgage,
pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
(c) discuss, solicit negotiate, enter into an agreement concerning
any merger, consolidation or sale of all or substantially all of its assets
except as contemplated by this Agreement.
9.3 NEGATIVE COVENANTS. From the date hereof until the Closing date,
unless and until RV otherwise consents in writing, Southshore will not (a)
change or alter the physical contents or character of the inventories of its
business, so as to materially affect the nature of Southshore's business or
materially and adversely change the total dollar valuation of such inventories
from that reflected on the financial statements referred to in Section 8.4
other than in the ordinary course of business; (b) incur any obligations or
liabilities (absolute or contingent) other than current liabilities incurred
and obligations under contracts entered into in the ordinary course of
business; (c) mortgage, pledge or voluntarily subject to lien, charge or other
encumbrance any assets, tangible or intangible, other than the lien of current
property taxes not due and payable; (d) sell, assign or transfer any of its
assets or cancel any debts or claims, other than in the ordinary course of
business; (e) waive any right of any substantial value; (f) declare or make
any payment or distribution to shareholders or issue, purchase or redeem any
shares of its capital stock or other equity securities or issue or sell any
rights to acquire the same; (g) grant any increase in the salary or other
compensation of any of its directors, officers, or employees or make any
increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
9.4 ACCESS TO BOOKS AND RECORDS. Premises, etc. From the date of this
Agreement through the Closing date, Southshore will grant RV and its
authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling RV to fully investigate the business of Southshore. Southshore will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to RV
as soon as such statements are available.
9.5 COMPENSATION. Southshore shall not enter into or agree to enter
into any employment contract or agreement for consulting, professional, or
other services which will adversely and materially affect the operation of
Southshore prior to the Closing Date.
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV
RV represents and warrants as follows:
10.1 ORGANIZATION AND STANDING. RV is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own its assets and
properties and to carry on its business as it is now being conducted.
10.2 SUBSIDIARIES, ETC. RV has no direct or indirect ownership interest
in any corporation, partnership, joint venture, association or other business
enterprise.
10.3 QUALIFICATION. RV is not qualified to engage in business as a
foreign corporation in any state, and there is no other jurisdiction wherein
the character of the properties presently owned by RV or the nature of the
activities presently conducted by RV make necessary the qualification,
licensing or domestication of RV as foreign corporations.
10.4 FINANCIAL STATEMENTS. The following statements will be prepared and
made a part of this Agreement within sixty (60) days following Closing as
Exhibit 10.4:
(a) Audited financial statements and pro forma financial
information of RV and its subsidiaries conforming to the requirements of Item
7 of Form 8-K under the Exchange Act.
To the Best Knowledge of RV, such financial statements, together with and
subject to the disclosures and notes thereto, (i) are in accordance with the
books and records of RV; (ii) present fairly and accurately the financial
condition of RV; as of the dates of the balance sheets; (iii) present fairly
and accurately the results of operations for the periods covered by such
statements; (iv) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis; (v) include all
adjustments (consisting of only normal recurring accruals) which are necessary
for a fair presentation of the financial condition of RV, and of the results
of operations of RV for the periods covered by such statements; and (vi) fully
comply with all requirements of all applicable securities laws. As of the date
hereof, and as of Closing, RV does not have any liabilities or payables
(absolute or contingent, known or unknown) except for liabilities or payables
set forth on RV's financial statements or otherwise disclosed in writing by
RV, or except for liabilities and payables incurred in the ordinary course of
business.
10.5 CAPITALIZATION OF RV. The authorized capital stock of RV consists
entirely of 100,000,000 shares of common stock having a par value of $.001 per
share and 50,000,000 shares of preferred stock having a par value of $.01 per
share. As of the Closing of the Merger, 5,500,000 shares of common stock and
no shares of preferred stock will be issued and outstanding. All outstanding
shares of RV's capital stock have been validly issued and are fully paid and
nonassessable. Except as set forth on Exhibit 10.5, there are no other equity
securities of RV authorized, issued or outstanding, and there are no
authorized, issued or outstanding subscriptions, options, warrants, contracts,
calls, commitments or other purchase rights of any nature or character
relating to any of RV's capital stock, equity securities, debt or other
securities convertible into stock or equity securities of RV.
10.6 NO DEFAULTS. Except as set forth on the attached Exhibit 10.6, each
of the leases, contracts, agreements and insurance policies to which RV is a
party is in full force and effect as of the date hereof with no material
defaults existing thereunder.
10.7 TAXES. Except as set forth in Exhibit 10.7, RV has filed (or has
obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of RV accrued for or applicable to all periods ended on
or prior to the date of this Agreement, or which may subsequently be
determined to be owing by RV with respect to all periods ending on or prior to
the Closing date, subject to normal year-end adjustments, which will not be
material. There are no present disputes as to Taxes of any nature payable by
RV.
10.8 NO ACTIONS, PROCEEDINGS, ETC. Except as listed on the attached
Exhibit 10.8, there is no action or proceeding (whether or not purportedly on
behalf of RV) pending or threatened by or against RV, nor does there exist any
basis therefor, which might result in any material adverse change in the
condition, financial or otherwise, of RV's business or assets. No order, writ
or injunction or decree has been issued by, or requested of any court or
governmental agency which does nor may result in any material adverse change
in RV's assets or properties or in the financial condition or the business of
RV. RV is not liable for damages to any employee or former employee as a
result of any violation of any state, federal or foreign laws directly or
indirectly relating to such employee or former employee.
10.9 POST BALANCE SHEET CHANGES. Except as set forth on the attached
Exhibit 10.9, since the date of the latest financial statements through the
date of this Agreement, RV has not without the prior written consent of
Southshore and SAC, (a) issued, bought, redeemed or entered into any
agreements, commitments or obligations to sell, buy or redeem any shares of
its capital stock; (b) incurred any obligation or liability (absolute or
contingent), other than current liabilities incurred, and obligations under
contracts entered into, in the ordinary course of business; (c) discharged or
satisfied any lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities incurred in the
ordinary course of business; (d) mortgaged, pledged or subjected to lien
charges, or other encumbrance any of its assets, other than the lien of
current or real property taxes not yet due and payable; (e) waived any rights
of substantial value, whether or not in the ordinary course of business; (f)
suffered any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting its assets or its business; (g) made or
suffered any amendment or termination of any material contract or any
agreement which adversely affects its business; (h) received notice or had
knowledge of any labor trouble other than routine grievance matters, none of
which is material; (i) increased the salaries or other compensation of any of
its directors, officers or employees or made any increase in other benefits to
which employees may be entitled, other than employee salary increases made in
the ordinary course of business; (j) sold, transferred or otherwise disposed
of any of its assets, other than in the ordinary course of business; (k)
declared or made any distribution or payments to any of its shareholders,
officers or employees, other than wages and salaries made to employees in the
ordinary course of business; (1) revalued any of its assets; or (m) entered
into any transactions not in the ordinary course of business.
10.10 NO BREACHES. RV is not in violation of, and the consummation of
the transactions contemplated hereby do not and will not result in any
material breach of, any of the terms or conditions of any mortgage, bond,
indenture, agreement, contract, license or other instrument or obligation to
which RV is a party or by which its assets are bound; nor will the
consummation of the transactions contemplated hereby cause RV to violate any
statute, regulation, judgment, writ, injunction or decree of any court,
threatened or entered in a proceeding or action in which RV is, was or may be
bound or to which any of RV's assets are subject.
10.11 CONDITION OF RV'S ASSETS. RV's assets are currently in good and
usable condition and there are no defects or other conditions which, in the
aggregate, materially and adversely affect the operation or values of such
assets. Except as disclosed on the attached Exhibit 10.11, no third party
(including any officer or employee of RV) has any proprietary interest in any
know-how or other intangible assets used by RV in the conduct of its business.
All product which is currently being marketed by RV is operable for its
intended purposes in accordance with its written specifications and trade
representations.
10.12 INVENTORY. Except as otherwise set forth on Exhibit 10.12, all
inventories reflected in RV's latest financial statements in excess of the
reserves for excess or obsolete inventories are stated at the lowest of cost,
replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
ordinary course of business of RV, without discounts other than normal trade
discounts regularly offered by RV, for prompt payment or quantity purchase.
10.13 ACCOUNTS RECEIVABLE. The accounts receivable of RV represent valid
and enforceable obligations due to RV, and, except to the extent of the
reserve reflected in the latest financial statements, to the Best Knowledge of
RV shall be collectible by RV in the ordinary course of business. Except as
set forth on the attached Exhibit 10.13, Southshore has not received any
notice of any material counterclaim or set-off with respect to such accounts
receivable.
10.14 RV ACTS AND PROCEEDINGS. This Agreement has been duly authorized by
all necessary corporate action on behalf of RV, has been duly executed and
delivered by authorized officers of RV, and is a valid and binding Agreement
on the part of RV that is enforceable against RV in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to judicial limitations on the enforcement of
the remedy of specific performance and other equitable remedies. All
corporate action necessary to issue and deliver to the shareholders of
Southshore the RV (as described in Section 4) has been taken by RV.
10.15 PATENTS AND OTHER INTANGIBLE RIGHTS. Except as disclosed on Exhibit
10.15, RV (a) owns or has the exclusive right to use, free and clear of all
material liens, claims and restrictions, all patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect to the
foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
10.16 CHANGES IN SUPPLIERS AND CUSTOMERS. Except as disclosed on Exhibit
10.16, Southshore is not aware of any fact which indicates that any of the
suppliers supplying products, components or materials to RV intends to cease
selling such products to Southshore nor is Southshore aware of any fact which
indicates that any major customer of RV intends to terminate its business
relations with RV.
10.17 NO LIENS OR ENCUMBRANCES. RV has good and marketable title to all
of the property and assets, tangible and intangible, employed in the
operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 10.17 and except for such property and
assets as may be leased by RV.
10.18 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW. Except as set forth in
Exhibits 10.4, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14,
10.15, 10.16, 10.17 or 10.18, there is no legal, administrative, arbitration
or other proceeding or governmental investigation pending or threatened
(including those relating to the health, safety, employment of labor, or
protection of the environment) pertaining to RV which might result in the
aggregate in money damages payable by RV in excess of insurance coverage or
which might result in a permanent injunction against RV. Except as set forth
in such Exhibits, RV has substantially complied with, and is not in default in
any respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of RV, the violation of which might materially and
adversely affect it. Except as set forth in such Exhibits, RV is not a party
to any agreement or instrument, nor is it subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree, rule,
regulation, code or ordinance which materially and adversely affects, or might
reasonably be expected materially and adversely to affect the business,
operations, prospects, property, assets or condition, financial or otherwise,
of RV.
10.19 CONTRACT SCHEDULES. Attached as Exhibit 10.19 hereto is an accurate
list and summary description of the following:
(a) All contracts, leases, agreements, covenants, licenses,
instruments or commitments of RV pertaining to the business of RV calling for
the payment of $5,000 or more or which is otherwise material to the business
of RV, including, without limitation, the following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of any
assets;
(iii) Management or consulting contracts;
(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the like,
other than those entered into and executed in the ordinary
course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and collective
bargaining agreements related to RV.
(c) All instruments evidencing any liens or security
interest securing any indebtedness of RV covering any asset of RV.
(d) A listing generally describing all computer programs and
related software proprietary to RV, and all management proprietary systems
utilized by RV in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of RV. Any and all
documents, instruments and other writings not listed in any other schedule
hereto which are material to the business operations of RV. Except as set
forth in Exhibit 10.19(f), all of such contracts, agreements, leases,
licenses, plans, arrangements and commitments and all other such items set
forth above are valid, binding and in full force and effect in accordance with
their terms and conditions, and there is no existing default thereunder or
breach thereof by RV, or by any party to such contracts, or any conditions
which, with the passage of time or the giving of notice or both, might
constitute such a default by RV or by any other party to the contracts.
10.20 LABOR MATTERS. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of RV or any of its agent or employees, threatened
against RV.
10.21 INSURANCE. RV maintains in full force and effect insurance coverage
on its assets and business in such amounts and against such risks and losses
as set forth in Exhibit 10.21.
10.22 ENVIRONMENTAL. Except as disclosed on Exhibit 10.22, and except for
normal office and consumer products utilized in the ordinary course of
business, the conduct and operation of the business of RV has not and does
not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency.
The terms "hazardous wastes" and "hazardous substances" shall have the
meaning specified by any applicable local, state, or federal statute or
regulation concerning or governing water pollution, groundwater protection,
air pollution, solid wastes, hazardous wastes, spills, and other releases of
toxic or hazardous substances, transportation of hazardous substances,
materials, and wastes and occupational or employee health and safety.
SECTION 11: COVENANTS OF RV
11.1 PRESERVATION OF BUSINESS. Until Closing, RV shall use its best
efforts to:
(a) preserve intact the present business organization of RV;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of RV with its customers and all other persons having business
dealings with RV;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of RV; and
(e) comply with all laws applicable to the conduct of its business
11.2 ORDINARY COURSE. RV shall conduct its business only in the usual,
regular and ordinary course, in substantially the same manner as previously,
and shall not make any substantial change to its methods of management or
operation in respect of such business or property. Without limiting the
foregoing, RV shall not, with respect to RV:
(a) sell, mortgage, pledge or encumber or agree to sell, mortgage,
pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
(c) discuss, solicit negotiate, enter into an agreement concerning
any merger, consolidation or sale of all or substantially all of its assets
except as contemplated by this Agreement.
11.3 NEGATIVE COVENANTS. From the date hereof until the Closing date,
unless and until Southshore and SAC otherwise consent in writing. RV will not
(a) change or alter the physical contents or character of the inventories of
its business, so as to materially affect the nature of RV's business or
materially and adversely change the total dollar valuation of such inventories
from that reflected on the financial statements referred to in Section 10.4
other than in the ordinary course of business; (b) incur any obligations or
liabilities (absolute or contingent) other than current liabilities incurred
and obligations under contracts entered into in the ordinary course of
business; (c) mortgage, pledge or voluntarily subject to lien, charge or other
encumbrance any assets, tangible or intangible, other than the lien of current
property taxes not due and payable; (d) sell, assign or transfer any of its
assets or cancel any debts or claims, other than in the ordinary course of
business; (e) waive any right of any substantial value; (f) declare or make
any payment or distribution to shareholders or issue, purchase or redeem any
shares of its capital stock or other equity securities or issue or sell any
rights to acquire the same; (g) grant any increase in the salary or other
compensation of any of its directors, officers, or employees or make any
increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
11.4 ACCESS TO BOOKS AND RECORDS. Premises, etc. From the date of this
Agreement through the Closing date. RV will grant Southshore and SAC and their
authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling Southshore and SAC to fully investigate the business of RV. RV will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to
Southshore and SAC as soon as such statements are available.
11.5 COMPENSATION. RV shall not enter into or agree to enter into any
employment contract or agreement for consulting, professional, or other
services which will adversely and materially affect the operation of RV prior
to the Closing Date.
SECTION 12: TERMINATION
12.1 TERMINATION. This Agreement may be terminated and abandoned solely
as follows:
(a) At any time until the Closing Date by the mutual agreement of
the Board of Directors of RV, Southshore and SAC.
(b) FAILURE OF CONDITIONS. This Agreement may be terminated by
either party hereto, if the conditions, as set forth in this Agreement to such
terminating party's obligations under this Agreement are not fulfilled on or
prior to the Closing Date; provided that any such termination shall not limit
the remedies otherwise available to such party as a result of
misrepresentations of or breaches by the other party.
(c) MATERIAL BREACH. This Agreement may be terminated by either
party if the other party is in material breach or default of its respective
covenants, agreements or other obligations hereunder, or if any of its
representations and warranties herein are not true and accurate in all
material respects when made or when otherwise required by this Agreement to be
true and accurate.
(d) By either Southshore, SAC or RV, if for any reason the parties
have failed to close this Agreement on or before January 31, 2000, provided
that neither Southshore, SAC nor RV is then in default hereunder.
In the event of any termination pursuant to this Section 12.1 (other than
pursuant to subparagraph 12.1(a)), written notice setting forth the reasons
therefor shall forthwith be given by RV, if it is the terminating party, to
Southshore and SAC, or by Southshore or SAC, if either of them is the
terminating party, to RV.
12.2 EFFECT OF TERMINATION. If Terminated as provided for in this
Section, this Agreement shall forthwith become wholly void and of no effect,
except for the confidentiality obligations set forth in Section 14 hereof,
without liability to any party to this Agreement except for breach of this
Agreement.
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH
13.1 INDEMNIFICATION BY SOUTHSHORE AND SAC.
(a) Southshore and SAC shall defend, indemnify and hold RV harmless
against and in respect of any damage, loss, liability, cost or expense,
including expert witness fees and reasonable attorneys' fees, whether or not
recoverable under applicable state law, resulting or arising from or incurred
in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on the
part of Southshore or SAC under this Agreement, or any
misrepresentation or omission from any exhibit, schedule,
list, certificate or other instrument furnished or to be
furnished by them under this Agreement;
(ii) any and all liabilities of Southshore or SAC of any
nature whatsoever, whether accrued, absolute, contingent
or otherwise and whether known or unknown, except to the
extent that any such liability arises from RV's failure to
perform or discharge, when due. RV's future obligations;
and
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
(b) Promptly after the receipt by RV of notice of any claim
asserted by a third party that may give rise to Southshore or SAC's liability
to RV under this Section, RV shall give to Southshore or SAC respectively
written notice of such claim, and Southshore or SAC shall be entitled to
participate at its own expense in the defense of any such claim. RV shall not
pay, acknowledge, compromise or settle any such claim without the written
consent of Southshore or SAC, unless such payment, acknowledgement, compromise
or settlement results in a full and complete release and discharge of
Southshore and SAC from any liability.
13.2 INDEMNIFICATION BY RV.
(a) RV shall defend, indemnify and hold Southshore and SAC harmless
against and in respect of any damage, loss, liability, cost or expense,
including expert witness fees and reasonable attorneys' fees, whether or not
recoverable under applicable state law, resulting or arising from or incurred
in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on the
part of RV under this Agreement, or any misrepresentation
or omission from any exhibit, schedule, list, certificate
or other instrument furnished or to be furnished by it
under this Agreement;
(ii) any and all liabilities of RV of any nature whatsoever,
whether accrued, absolute, contingent or otherwise and
whether known or unknown, except to the extent that any
such liability arises from Southshore or SAC's failure to
perform or discharge, when due, Southshore or SAC's future
obligations;
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
(b) Promptly after the receipt by Southshore or SAC of notice of
any claim asserted by a third party that may give rise to RV's liability to
Southshore or SAC under this Section, Southshore or SAC shall give to RV
written notice of such claim and RV shall be entitled to participate at its
own expense in the defense of any such claim. Neither Southshore nor SAC shall
pay, acknowledge, compromise or settle any such claim without the written
consent of RV, unless such payment, acknowledgement, compromise or settlement
results in a full and complete release and discharge of RV from any liability.
13.3 ADDITIONAL NOTICE. Notwithstanding the provisions of Sections 13.1
or 13.2 above, promptly after the receipt by any party hereto of notice of any
claim asserted by a third party that may give rise to the liability of any
party for which the right to indemnification may be claimed under this
Section, such party shall give to each other party written notice of such
claim as soon as practicable. The provisions of this Section 13.3 in addition
to and not in lieu of the covenants of the parties contained in Sections 13.1
or 13.2 above.
13.4 DETERMINATION OF DAMAGES AND RELATED MATTERS.
(a) Upon the occurrence of any event which would give rise to a
claim by Southshore or SAC against, or to a right of defense and indemnity
against RV pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which RV may become obligated to Southshore or SAC hereunder, Southshore and
SAC shall give notice to RV of the occurrence of such event and shall identify
Southshore or SAC's choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of Southshore or SAC to give notice
shall not affect the indemnification obligations of RV hereunder. Southshore
or SAC (i) shall have the exclusive right to so defend, contest or protect
against such matter utilizing the counsel of Southshore or SAC's choice (who
shall be reasonably acceptable to RV), and (ii) without further notice may set
off or apply against all amounts due RV hereunder, or their affiliates, under
any instrument or pursuant to any obligation, the full amount for
which indemnification hereunder is provided. RV shall have the right, but not
the obligation, to participate, at its own expense, in the defense thereof by
counsel of their choice.
(b) As Southshore or SAC incurs expenses for which indemnification
hereunder is provided and after any final judgment or award shall have been
rendered by a court, arbitration board or administrative agency of competent
jurisdiction, and the expiration of the time in which to appeal therefrom, or
a settlement shall have been consummated, Southshore or SAC shall forward to
RV notice of any sums due and owing by them pursuant to this Agreement with
respect to such matter and they shall be required to pay all of the sums so
due and owing to Southshore or SAC by certified or bank cashier's check within
ten (10) days of such notice.
(c) Upon the occurrence of any event which would give rise to a
claim by RV against, or to a right of defense and indemnity against Southshore
or SAC pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which Southshore or SAC may become obligated to RV hereunder. RV shall give
notice to Southshore or SAC respectively of the occurrence of such event and
shall identify their choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of RV to give notice shall not
affect the indemnification obligations of Southshore or SAC hereunder. RV (i)
shall have the exclusive right to so defend, contest or protect against such
matter utilizing the counsel of their choice (who shall be reasonably
acceptable to Southshore or SAC), and (ii) without further notice may set off
or apply against all amounts due Southshore or SAC hereunder, or their
affiliates, under any instrument or pursuant to any obligation, the
full amount for which indemnification hereunder is provided. Southshore
and SAC shall have the right, but not the obligation, to participate, at their
own expense, in the defense thereof by counsel of their choice.
(d) As RV incurs expenses for which indemnification hereunder is
provided and after any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction,
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated. RV shall forward to Southshore or SAC notice of
any sums due and owing by it pursuant to this Agreement with respect to such
matter, and Southshore or SAC respectively shall be required to pay all of the
sums so due and owing to RV by certified or bank cashier's check within ten
(10) days of such notice.
13.5 REMEDIES FOR BREACH. In the event of any material breach of any of
the provisions of this Agreement, including but not limited to any breach of
any covenant, warranty or representation made by any party hereto, the other
party may terminate this Agreement as provided for in Section 12.1 above.
Specific performance shall not be a remedy available to any party for breach
of this Agreement.
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Each of the parties hereto recognizes and acknowledges that it has and
will have access to certain nonpublic information of the others which shall be
deemed the confidential information of the other parties that is included in
the assets (including, but not limited to, business plans, costs, trade
secrets, licenses, research projects, profits, markets, sales, customer lists,
strategies, plans for future development, financial information and any other
information of a similar nature) that after the consummation of the
transactions contemplated hereby will be valuable, special and unique property
of the parties. Information shall not be deemed Confidential Information and
afforded the protections of this Section 14 if, on the Closing Date, such
information has been (i) developed by the receiving party independently of the
disclosing party, (ii) rightfully obtained without restriction by the
receiving party from a third party, provided that the third party had full
legal authority to possess and disclose such information, (iii) publicly
available other than through the fault or negligence of the receiving party,
(iv) released without restriction by the disclosing party to anyone, including
the United States government, or (v) properly and lawfully known to the
receiving party at the time of its disclosure, as evidenced by written
documentation conclusively established to have been in the possession of the
receiving party on the date of such disclosure. Each of the parties hereto
agrees that they will not disclose, and that they will use their best efforts
to prevent disclosure by any other Person of, any such confidential
information to any Person for any purpose or reason whatsoever, except to
authorized representatives of the parties. Notwithstanding, a party may use
and disclose any such confidential information to the extent that a party may
become compelled by Legal Requirements to disclose any such information;
provided, however, that such party shall use all reasonable efforts and
shall have afforded the other parties the opportunity to obtain an
appropriate protective order or other satisfactory assurance of confidential
treatment for any such information compelled to be disclosed. In the event of
termination of this Agreement, each party shall use all reasonable efforts to
cause to be delivered to the other parties, and to retain no copies of, any
documents, work papers and other materials obtained by such party or on such
party's behalf during the conduct of the matters provided for in this
Agreement, whether so obtained before or after the execution hereof. Each of
the parties recognizes and agrees that violation of any of the agreements
contained in this Section 14 will cause irreparable damage or injury to the
other parties, the exact amount of which may be impossible to ascertain, and
that, for such reason, among others, the other shall be entitled to an
injunction, without the necessity of posting bond therefor, restraining any
further violation of such agreements. Such rights to any injunction shall be
in addition to, and not in limitation of, any other rights and remedies the
parties may have against each other.
SECTION 15: EXPENSES
Each of the parties will pay all costs and expenses of its or his
performance and compliance with this Agreement. Notwithstanding the
foregoing, if the Agreement is not consummated by reason of a default of one
of the parties, then the expenses of each of the parties in connection with
the transaction contemplated herein shall be paid by such defaulting party.
SECTION 16: MISCELLANEOUS
16.1 ATTORNEY'S FEES. In any action at law or in equity or in any
arbitration proceeding, for declaratory relief or to enforce any of the
provisions or rights or obligations under this Agreement, the unsuccessful
party to such proceeding, shall pay the successful party or parties all
statutorily recoverable costs, expenses and reasonable attorneys' fees
incurred by the successful party or parties including without limitation
costs, expenses, and fees on any appeals and the enforcement of any award,
judgment or settlement obtained, such costs, expenses and attorneys' fees
shall be included as part of the judgment. The successful party shall be that
party who obtained substantially the relief or remedy sought, whether by
judgment, compromise, settlement or otherwise.
16.2 SURVIVAL AND INCORPORATION OF REPRESENTATIONS. The representations,
warranties, covenants and agreements made herein or in any certificates or
documents executed in connection herewith shall survive the execution and
delivery thereof for a period of one (1) year, and all statements contained in
any certificate or other document delivered by any party hereunder or in
connection herewith shall be deemed to constitute representations and
warranties made by that party to this Agreement.
16.3 INCORPORATION BY REFERENCE. All appendices to this Agreement and
all documents delivered pursuant to or referred to in this Agreement are
herein incorporated by reference and made a part hereof.
16.4 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to, or shall, confer any rights or remedies under, or by
reason of, this Agreement, on any person other than the parties hereto and
their respective and proper successors and assigns. Nor shall anything in
this Agreement act to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement.
16.5 AMENDMENTS AND WAIVERS. This Agreement may not be amended, nor may
compliance with any term, covenant, agreement, condition or provision set
forth herein be waived (either generally or in a particular instance and
either retroactively or prospectively) unless such amendment or waiver is
agreed to in writing by all parties hereto.
16.6 WAIVER. No waiver of any breach of any one of the agreements,
terms, conditions, or covenants of this Agreement by the parties shall be
deemed to imply or constitute a waiver of any other agreement, term,
condition, or covenant of this Agreement. The failure of any party to insist
on strict performance of any agreement, term, condition, or covenant, herein
set forth, shall not constitute or be construed as a waiver of the rights of
either or the other thereafter to enforce any other default of such agreement,
term, condition, or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to
forego or subvert or otherwise disregard any other agreement, term, condition,
or covenants of this Agreement.
16.7 GOVERNING LAW - CONSTRUCTION. This Agreement, and the rights and
obligations of the respective parties, shall be governed by and construed in
accordance with the laws of the State of Colorado, excluding conflict of law
provisions which would act to apply the laws of another state. Notwithstanding
the preceding sentence, it is acknowledged that each party hereto is being
represented by, or has waived the right to be. represented by, independent
counsel. Accordingly, the parties expressly agree that no provision of this
Agreement shall be construed against any party on the ground that the party or
its counsel drafted the provision. Nor may any provision of this Agreement be
construed against any party on the grounds that party caused the provision to
be present.
16.8 LIMITATION OF ACTIONS. No action may be brought by any party to
this Agreement to enforce any covenant made by any party hereto or to seek
damages or equitable relief arising from any claimed breach or nonperformance
of a covenant, representation, warranty or other performance provided for
herein unless such action is commenced within one (1) year of the date of
Closing. The parties hereto agree to be bound by the aforesaid limitation of
actions notwithstanding the provisions of any applicable statutory limitation
of actions to the contrary.
16.9 NOTICES. Any notice, communication, offer, acceptance, request,
consent, reply, or advice (herein severally and collectively, for convenience,
called "Notice"), in this Agreement provided or permitted to be given, served,
made, or accepted by any party or person to any other party or parties, person
or persons, hereunder must be in writing, addressed to the party to be
notified at the address set forth below, or such other address as to which one
party notifies the other in writing pursuant to the terms of this Section, and
must be served by (1) telefax or other similar electronic method, or (2)
depositing the same in the United States mail, certified, return receipt
requested and postage paid to the party or parties, person or persons to be
notified or entitled to receive same, or (3) delivering the same in person to
such party.
Notice shall be deemed to have been given immediately when sent by
telefax or other electronic method and seventy-two hours after being deposited
in the United States mail, or when personally delivered in the manner
hereinabove described. Notice provided in any manner not specified above
shall be effective only if and when received by the party or parties, person
or persons to be, or provided to be notified.
All notices, requests, demands and other communications required or
permitted under this Agreement shall be addressed as set forth below:
To Southshore: Ken Dalton
c/o Active Medical
790 Umatilla Street
Denver, Colorado 80204
With copies to: Tom Boyle, Esq.
Krys, Boyle, Freedman & Sawyer
South Tower
600 17th Street, Suite 2700
Denver, Colorado 80202-5427
To RV: RV Holiday.com, Inc.
5373 North Union Boulevard, Suite 100
Colorado Springs, Colorado 80918
With copies to: Clifford L. Neuman, Esq.
Neuman & Drennen, LLC
1507 Pine Street
Boulder, Colorado 80302
Any party receiving a facsimile transmission shall be entitled to rely upon a
facsimile transmission to the same extent as if it were an original. Any
party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions
of this Section for the giving of notice.
16.10 FAX/COUNTERPARTS. This Agreement may be executed by telex, telecopy
or other facsimile transmission, and such facsimile transmission shall be
valid and binding to the same extent as if it were an original. Further, this
Agreement may be signed in one or more counterparts, all of which when taken
together shall constitute the same documents. For all evidentiary purposes,
any one complete counter set of this Agreement shall be considered an
original.
16.11 CAPTIONS. The caption and heading of various sections and
paragraphs of this Agreement are for convenience only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
16.12 SEVERABILITV. Wherever there is any conflict between any provision
of this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
it within the requirement of the law. In the event that any part, section,
paragraph or clause of this Agreement shall be held by a court of proper
jurisdiction to be invalid or unenforceable, the entire Agreement shall not
fail on account thereof, but the balance of the Agreement shall continue in
full force and effect unless such construction would clearly be contrary to
the intention of the parties or would result in unconscionable injustice.
16.13 JURISDICTION AND VENUE. Jurisdiction over any action, proceeding or
arbitration shall be proper only if filed and maintained in Colorado, and
venue shall be proper therefor only in the County of Boulder as to state court
proceedings or the District Court for the District of Colorado as to federal
court proceedings.
16.14 GOOD FAITH COOPERATION AND ADDITIONAL DOCUMENTS. The parties shall
use their best good faith efforts to fulfill all of the conditions set forth
in this Agreement over which it has control or influence. Each party
covenants and agrees to cooperate in good faith and to enter into and deliver
such other documents and papers as the other party reasonably shall require in
order to consummate the transactions contemplated hereby, provided in each
instance, any such document is in form and substance approved by the parties
and their respective legal counsel.
16.15 Legal Counsel. Each of the parties are being represented by
independent counsel; RV acknowledges that it is being represented by Clifford
L. Neuman of Neuman & Drennen, LLC; and Southshore by Tom Boyle of Krys,
Boyle, Freedman & Sawyer.
16.16 NO FINDERS OR BROKERS FEES. Both parties agree that there are no
finders fees or brokers fees due to any person or entity in connection with
the transactions contemplated or provided for herein.
16.17 ASSIGNMENT. Neither party may directly or indirectly assign or
delegate, by operation of law or otherwise, all or any portion of
its/their/his rights, obligations or liabilities under this Agreement without
the prior written consent of all other parties, which consent may be withheld
in their respective sole and absolute discretion.
16.18 LIST OF EXHIBITS. The following Exhibits are attached to this
Agreement:
EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with John Deufel
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax
Related Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs,
Injunctions, Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition
and Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts
Receivable (Material Counterclaims or Set-Offs)
Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation,
Exceptions to Compliance with Laws, Ordinances,
Requirements, Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste
Production, Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV: Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative or Other
Proceedings or Governmental Investigation, Exceptions to
Compliance with Laws, Ordinances, Requirements,
Regulations or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f) RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
16.19 ENTIRE AGREEMENT - AMENDMENT. For purposes of this Section, the
term "Agreement" shall include this Agreement and the Exhibits and other
documents attached hereto or described in Section 16.18. This Agreement, and
other documents delivered pursuant to this Agreement, contain all of the terms
and conditions agreed upon by the parties relating to the subject matter of
this Agreement and supersede all prior and contemporaneous agreements,
letters of intent, representations, warranties, disclosures, negotiations,
correspondence, undertakings and communications of the parties, oral or
written, respecting that subject matter.
16.20 AUTHORITY TO SIGN. Each of the persons signing below on behalf of
any party hereby represents and warrants that s/he or it is signing with full
and complete authority to bind the party on whose behalf of whom s/he or it is
signing, to each and every term of this Agreement.
16.21 EXECUTION OF DOCUMENTS. The parties hereto agree to execute and
deliver any and all other documents necessary and convenient to effectuate the
exchange of stock herein provided for, and RV as an inducing condition,
represent that it has the authority to enter into this Agreement and to make
the foregoing commitments for itself.
16.22 TIME. Time is of the essence of this Agreement and each of its
provisions.
IN WITNESS WHEREOF, the parties have signed the Agreement the date and
year first above written.
SOUTHSHORE CORPORATION,
a Colorado corporation
By:
--------------------------------
Kenneth Dalton, President
RV HOLIDAY.COM, INC.,
a Colorado corporation
By:
--------------------------------
John Deufel, President
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
RV HOLIDAY.COM, INC.
Pursuant to Colorado Revised Statues, Sec. 7-110-107, the undersigned
being the initial incorporator of RV HOLIDAY.COM, INC. (the "Company" or the
"Corporation"), hereby affirm that no shares have been issued and no directors
have been elected, and that the following Amended and Restated Articles of
Incorporation correctly set forth the provisions of the Articles of
Incorporation of the Company, as amended, as said Articles of Incorporation
have been approved by the initial incorporator prior to the issuance of any
shares or the election of any directors and that the following Amended and
Restated Articles of Incorporation supersede the original Articles of
Incorporation and all amendments thereto.
ARTICLE I
NAME
The name of the corporation is to be "RV Holiday.com, Inc."
ARTICLE II
TERMS OF EXISTENCE
The corporation shall exist in perpetuity, from and after the date of
filing this Certificate of Incorporation with the Secretary of State of the
State of Colorado, unless sooner dissolved or disincorporated according to
law.
ARTICLE III
OBJECT, PURPOSES AND POWERS
Section 1. General Objects and Purposes. To engage in any lawful
activity as may from time to time be authorized by the corporation's Board of
Directors, which is not prohibited by law or by these Articles of
Incorporation. To undertake such other activities as the Board of Directors
may deem reasonable or necessary in the furtherance of the general or specific
purposes and powers of the corporation.
Section 2. General Powers. Further, the corporation shall have and
may exercise all the rights, powers and privileges now or hereafter conferred
upon corporations organized under the laws of the State of Colorado and in
addition may do everything necessary, suitable, proper for, or incident to,
the accomplishment of any of these corporate purposes.
Section 3. Specific Purposes and Powers. Subject to any specific
written limitations or restrictions imposed by the Colorado Corporation Code
or by other law, or by these Articles of Incorporation, and not in limitation
of any of the statutory powers herein granted, the corporation shall have the
following purposes and exercise the following specific powers:
a. To Deal in Real Property. To acquire, hold, own, improve, manage,
operate, let as lessor, sell, convey or mortgage, or otherwise deal with,
either alone or in conjunction with others, real estate of every right, title
or interest, character and description whatsoever and wheresoever situated.
b. To Deal in Personal Property, Generally. To acquire, hold, own,
manage, operate, mortgage, pledge, hypothecate, exchange, sell, deal in and
dispose of, either alone or in conjunction with others, personal property and
commodities of every right, title or interest, character and description
whatsoever and wheresoever situated.
c. To Enter into Profit Sharing Arrangements and Partnerships. To
enter into any lawful arrangement for sharing profits, union of interest,
reciprocal association, or cooperative association with any corporation,
association, partnership, individual, or other legal entity for the carrying
on of any business, the purpose of which is similar to the Purposes set forth
in Section 1 of this Article, and to enter into any general or limited
partnership, the purpose of which is similar to such Purposes.
d. To Execute Guarantees. To make any guaranty respecting stocks,
dividends, securities, indebtedness, interest, contracts or other obligations
created by any individual, partnership, association, corporation, or other
entity, to the extent that such guaranty is made in pursuance to the Purposes
set forth in Section 1 of this Article.
e. To Borrow Funds. To borrow or raise monies for any of the Purposes
of the corporation set forth in Section 1 of this Article, and, from time to
time, without limit as to amount, to execute, accept, endorse, and deliver as
evidence of such borrowing, all kinds of securities, including, but without
limiting the generality thereof, promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness; and to secure the payment and full performance
of such securities by mortgage on, or pledge, conveyance or assignment in
trust of, the whole, or any part of the assets of the corporation.
f. To Lend Funds. To lend money to individuals or other business
entities and to charge interest for the same and to engage in the business,
buying, loaning money upon, selling, transferring, assigning, discounting,
borrowing money upon and pledging as collateral, and otherwise dealing as
principal agent or broker in bills of lading, warehouse receipts, evidence of
deposit and storage of personal property, bonds, stocks, promissory notes,
commercial paper account, invoices, choses in action, interest in estates,
contracts, mortgages on real or personal property, pledges of personal
property and other evidence of indebtedness of persons, firms or corporations,
and owning, holding or conveying such real estate as may be necessary in the
operating of its business, and purchasing, acquiring and holding shares of
stock in other corporations, domestic and foreign, and doing all things
incidental thereto; to do a general brokerage business, to buy, sell and deal
in all kinds of listed and unlisted stocks and bonds on commission; not for
the purpose of carrying on the business of banking, insurance or the operation
of railroads or the discounting of bills and notes, or the buying and selling
of bills of exchange.
Section 4. All the foregoing listed powers and/or purposes of the
corporation are both purposes and powers of the corporation and shall be
construed as such.
ARTICLE IV
CAPITAL STOCK
Section 1. The total number of shares of capital stock which the
corporation shall have authority to issue is one hundred fifty million
(150,000,000) shares, of which one hundred million (100,000,000) shall be
designated common stock, having a par value of five cents ($.05) each, and of
which fifty million (50,000,000) shall be designated preferred stock of the
corporation, having a par value of ten cents ($.10) each. All or any part of
the common stock may be issued by the corporation from time to time and for
such consideration and on such terms as may be determined and fixed by the
Board of Directors, without action of the stockholders, as provided by law,
unless the Board of Directors deems it advisable to obtain the advice of the
stockholders. Said stock may be issued for money, property, services or other
things of value, and when issued shall be issued as fully paid and non-
assessable. The private property of stock holders shall not be liable for
corporation debts. Subject to the preferences, rights and restrictions which
may be ascribed to the preferred stock of the corporation by the Board of
Directors, the preferences and relative participating optional or other
special rights and qualifications, limitations or restrictions thereof of the
common stock of the corporation are as follows:
a. Dividends. Dividends may be paid upon the common stock, as and when
declared by the Board of Directors, out of funds of the corporation legally
available therefor.
b. Payment on Liquidation. Upon any liquidation, dissolution and
termination of the corporation, and after payment or setting aside of any
amount sufficient to provide for payment in full of all debts and liabilities
of, and other claims against the corporation, the assets shall be distributed
pro rata to the holders of the common stock.
c. Voting Rights. At any meeting of the stockholders of the
Corporation each holder of Common Stock shall be entitled to one vote for each
share outstanding in the name of such holder on the books of the Corporation
on the date fixed for determination of voting rights.
The stockholders, by vote or concurrence of a majority of the
outstanding shares of the Corporation entitled to vote on the subject matter,
may take any action which would otherwise require a two-thirds (2/3) vote
under the Colorado Corporation Code, as amended.
d. Cumulative Voting. Cumulative voting shall not be allowed in the
election of directors or for any other purpose.
e. Pre-Emptive Rights. Unless otherwise determined by the Board of
Directors, no stockholder of the corporation shall have pre-emptive rights to
subscribe for any additional shares of stock, or for other securities of any
class, or for rights, warrants or options to purchase stock for the scrip, or
for securities of any kind convertible into stock or carrying stock purchase
warrants or privileges.
f. Restrictions on Sale or Disposition. All lawful restrictions on the
sale or other disposition of shares may be placed upon all or a portion or
portions of the certificates evidencing the corporation's shares.
Section 2. The preferred stock of the corporation shall be issued in
one or more series as may be determined from time to time by the Board of
Directors. In establishing a series the Board of Directors shall give to it a
distinctive designation so as to distinguish it from the shares of all other
series and classes, shall fix the number of shares in such series, and the
preferences, rights and restrictions thereof. All shares of any one series
shall be alike in every particular. All series shall be alike except that
there may be variation as to the following: (1) the rate of distribution, (2)
the price at and the terms and conditions on which shares shall be redeemed,
(3) the amount payable upon shares for distributions of any kind, (4) sinking
fund provisions for the redemption of shares, and (5) the terms and conditions
on which shares may be converted if the shares of any series are issued with
the privilege of conversion, and (6) voting rights except as limited by law.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the registered office of the corporation will be at 5373
North Union Boulevard, Suite 100, Colorado Springs, Colorado 80918. The name
of the registered agent at such address is Bradley Smith. The principal
office of this corporation and its principal place of business is the same
address as that of the initial registered office. The corporation may conduct
part or all of its business in the County of Boulder, or the State of
Colorado, or the United States, or of the world, and it may hold, purchase,
mortgage, lease and convey real and personal property in any of such places.
ARTICLE VI
DIRECTORS
The business and affairs of this corporation and the management thereof
shall be vested in a Board of Directors consisting of not less than one (1)
nor more than ten (10) members. Directors need not be stockholders of the
corporation.
The number of directors may be increased or decreased from time to time,
within the limits stated above, by action of the majority of the whole Board
of Directors.
ARTICLE VII
RIGHTS OF DIRECTORS, OFFICERS AND MANAGEMENT
TO CONTRACT WITH CORPORATION
No contract or other transaction between the corporations or any other
corporation whether or not a majority of the shares of capital stock of such
other corporation is owned by this corporation, and no act of this corporation
shall be in any way affected or invalidated by the fact that any of the
directors, officers or other members of the management of this corporation are
pecuniarily or otherwise interested in or are directors, officers or members
of management of such other corporation. Any director, officer or other
member of management of this corporation individually, or any firm of which
such director, officer or member of management may be a member, may be a party
to, or may be pecuniarily or otherwise interested in, any contract or
transaction of this corporation, provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of this corporation or a majority thereof. Any director of
this corporation who is also a director, officer or member of management of
such other corporation, or who is so interested, may be counted in determining
the existence of a quorum at any meeting of the Board of Directors of this
corporation that shall authorize such contract or transaction, and may vote at
any such meeting to authorize such contract or transaction, with like force
and effect as if he were not such director, officer or member of management of
such other corporation or not so interested.
ARTICLE VIII
INDEMNIFICATION
The Corporation may and shall indemnify each director, officer and any
employee or agent of the Corporation, his heirs, executors and administrators,
against any and all expenses or liability reasonably incurred by him in
connection with any action, suit or proceeding to which he may be a party by
reason of his being or having been a director, officer, employee or agent of
the Corporation to the full extent required or permitted by the Colorado
Corporation Code, as amended.
ARTICLE IX
CORPORATE OPPORTUNITIES
The officers, directors and other members of management of this
corporation shall be subject to the Doctrine of Corporate Opportunities only
insofar as it applies to business opportunities in which this corporation has
expressed an interest as determined from time to time by the corporation's
Board of Directors as evidenced by resolutions appearing in the corporation's
Minutes. When such areas of interest are delineated, all such business
opportunities within such areas or interests which come to the attention of
the officers, directors and other members of management of this corporation
shall be disclosed promptly to this corporation and made available to it. The
Board of Directors may reject any business opportunity presented to it and
therefore any officer, director or other member of management may avail
himself of such opportunity. Until such time as this corporation, through its
Board of Directors, has designated an area of interest, the officers,
directors and other members of management of this corporation shall be free to
engage in such areas of interest on their own and this Doctrine shall not
limit the rights of any officer, director or other member of this corporation
to continue a business existing prior to the time that such area of interest
is designated by this corporation.
ARTICLE X
PARTIAL LIQUIDATION
The Board of Directors may, from time to time, distribute to the
corporation's shareholders, in partial liquidation, out of stated capital or
capital surplus of the corporation, a portion of its assets, in cash or
properties if (a) at the time the corporation is solvent; (b) such
distribution would not render the corporation insolvent; (c) all cumulative
dividends on all preferred or special classes of shares entitled to
preferential dividends shall have been paid fully; (d) the distribution would
not reduce the remaining net assets of the corporation below the aggregate
preferential amount payable in the amount of voluntary liquidation to the
holders of shares having preferential rights to the assets of the corporation
in the event of liquidation; (e) the distribution is not made out of capital
surplus arising from unrealized depreciation of assets of re-evaluation of
surplus; (f) the distribution is identified as a distribution in partial
liquidation and the amount per share is disclosed to the shareholders
receiving the same concurrently with the distribution thereof.
ARTICLE XI
DIRECTORS' LIABILITY
a. A director of this corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Colorado as the same exists or may hereafter be amended.
b. Any repeal or modification of the foregoing paragraph A by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, the President has hereunto set her hand and seal this
9th day of November, 1999.
RV HOLIDAY.COM, INC.
- ------------------------------ ----------------------------------------
Bradley Smith, Registered Agent Bradley Smith, Initial Incorporator
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
I, , a Notary Public, hereby certify that
-----------------------------
on the 9th day of November, 1999, personally appeared before me Bradley Smith
as the initial incorporator of RV Holiday.com, Inc., who, being by me first
duly sworn, declared that she was the person who signed the foregoing document
and that the statements therein contained are true.
My commission expires:
--------------------------
----------------------------------------
Notary Public
<PAGE>
Mail to: Secretary of State For office use only
002
Corporations Section
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894-2251
MUST BE TYPED Fax (303) 894-2242
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
Please include a typed TO THE
self-addressed envelope ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is RV Holiday.com, Inc.
SECOND: The following amendment to the Articles of Incorporation was adopted
on December 20, 1999, as prescribed by the Colorado Business Corporation Act,
in the manner marked with an X below:
____ No shares have been issued or Directors Elected - Action by
Incorporators
____ No shares have been issued but Directors Elected - Action by
Directors
____ Such amendment was adopted by the board of directors where shares
have been issued but shareholder action was not required.
X Such amendment was adopted by a vote of the shareholders. The
- ---- number of shares voted for the amendment was sufficient for
approval.
THIRD: If changing corporate name, the new name of the corporation is iRV,
Inc.
FOURTH: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in
the amendment shall be effected, is as follows:
If these amendments are to have a delayed effective date, please list that
date:_______________________________________________________
(Not to exceed ninety (90) days from the date of filing)
RV HOLIDAY.COM, INC.
Signature ____________________________
John Deufel, President
<PAGE>
BY-LAWS OF
RV HOLIDAY.COM, INC.
ARTICLE I
Section 1. The following paragraphs contain provisions for the
regulation and management of RV HOLIDAY.COM, INC., a Colorado corporation.
Section 2. In the event that there is a conflict between a provision
of these By-Laws and a mandatory provision of the Articles of Incorporation of
this corporation, then said mandatory provision of the Articles of
Incorporation of this corporation shall control.
ARTICLE II
PLACE OF BUSINESS
Section 1. The registered office of the corporation, which shall also
be the principal office of said corporation, shall be 5373 North Union
Boulevard, Suite 100, Colorado Springs, Colorado 80918. This designation
shall be without prejudice to the power and right of the corporation to
conduct and transact any of its affairs or business in other cities, states,
territories, countries, or places.
Section 2. The registered agent of the corporation in the State of
Colorado shall be Bradley Smith.
Section 3. The registered office and registered agent of the
corporation may be changed from time to time in the manner prescribed by law
without amending these By-Laws.
ARTICLE III
OFFICERS
Section 1. Number. The officers of this corporation may consist of a
President, a Secretary, a Treasurer, and such other officers, including one or
more Vice Presidents, and, if desired, a Chief Executive Officer, as may be
appointed in accordance with the provisions of Section 3 of this Article. One
person may hold any two of said offices, but no such officer shall execute,
acknowledge, or verify any instrument in more than one capacity if such
instrument is required by law or by these By-Laws or by a resolution of the
Board of Directors to be executed, acknowledged or verified by any two or more
officers.
Section 2. Election, Term of Office and Qualifications. The officers
of this corporation shall be chosen annually by the Board of Directors. Each
officer, except such officer as may be appointed in accordance with the
provisions of Section 3 of this Article, shall hold his office until his
successors shall have been removed in the manner hereinafter provided.
Section 3. Subordinate Officers. The Board of Directors may appoint
such other officers to hold office for such period, have such authority and
perform such duties as the Board of Directors may from time to time determine.
The Board of Directors may delegate to any officer the power to appoint any
such subordinate officers.
Section 4. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Such removal shall be by vote of a majority of the whole
Board of Directors at a regular meeting or a special meeting of the Board of
Directors called for this purpose.
Section 5. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or
Secretary of the corporation. Any such resignation 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 6. Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the corporation and, subject to
the control of the Board of Directors, shall in general supervise and control
all of the business and affairs of the corporation. He shall preside at all
meetings of the shareholders and all meetings of the Board of Directors; and
shall have general supervision over the affairs of the corporation and over
the other officers.
Section 7. President. The President shall be the chief operating
officer of the corporation. The President shall perform all duties incident
to the office of the President; shall sign all stock certificates and written
contracts of the corporation; and shall perform all such other duties as are
assigned to him from time to time by resolution of the Board of Directors or
the Chief Executive Officer.
Section 8. Vice President. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice President shall
perform the duties of the President, and when so acting, shall have all the
powers of, and be subject to, all of the restrictions upon the President. The
Vice President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 9. Secretary. The secretary shall be sworn to the faithful
discharge of his duty. He shall:
a. Keep the minutes of the meetings of the shareholders and of the
Board of Directors in books provided for that purpose;
b. See that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
c. Be custodian of the records and of the seal of the corporation and
see that such seal is affixed to all stock certificates prior to
their issue and to all documents, the execution of which on behalf
of the corporation under its seal is duly authorized in accordance
with the provisions of these By-Laws.
d. Have charge of the stock books of the corporation and keep or cause
to be kept the stock and transfer books in such manner as to show at
any time the amount of the stock of the corporation issued and
outstanding, the manner in which and the time when such stock was
paid for, the names, alphabetically arranged, and the addresses of
the holders of record; and exhibit during the usual business hours
of the corporation to any director, upon application, the original
or duplicate stock ledger;
e. Sign with the President, or a Vice President, certificates of stock
of the corporation;
f. See that the books, reports, statements, certificates, and all other
documents and records of the corporation required by law are
properly kept and filed;
g. In general, perform all duties incident to the office of Secretary
and such other duties as, from time to time, may be assigned to him
by the Board of Directors or by the President.
Section 10. Treasurer. The Treasurer shall:
a. Have charge and custody of, and be responsible for, all funds and
securities of the corporation;
b. From time to time render a statement of the condition of the
finances of the corporation at the request of the Board of
Directors;
c. Receive and give receipt for monies due and payable to the
corporation from any source whatsoever;
d. In general, perform all duties incident to the office of Treasurer,
and such other duties as from time to time may be assigned to him by
the Board of Directors or by the President.
Section 11. Salaries. 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.
ARTICLE IV
DIRECTORS
Section 1. General Powers. The business and affairs of this
corporation and the management thereof shall be vested in a Board of Directors
consisting of not less than one (1) nor more than ten (10) members.
Section 2. Number and qualification. The number of directors of this
corporation shall be not less than one (1) and not more than ten (10). The
number of directors may be increased or decreased from time to time within the
limits stated above by the action of the majority or the whole Board of
Directors. Directors shall be elected for a term of one (1) year and shall
serve until the election and qualification of their successors, unless they
sooner resign. At the first annual meeting of the stockholders and at each
annual meeting thereafter, the stockholders shall so elect directors to hold
office until the next succeeding annual meeting. The directors need not be
residents of the State of Colorado or stockholders of the corporation.
Section 3. Executive Committee. The Board of Directors by resolution
passed by a majority of the whole Board may designate two or more of their
number to constitute an executive committee, which shall have and exercise,
subject to limitations, if any, as may be prescribed herein or by resolution
of the Board of Directors, the powers of the Board of Directors and the
management of the business and affairs of the corporation; provided such
executive committee shall act only at such times as the Board of Directors is
not in session and in no event to the exclusion of the Board of Directors at
any time to act as a Board upon any business of the corporation.
Section 4. Vacancy. Any director may resign at any time by giving
written notice to the President or to the Secretary of the corporation. Such
resignation 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. Any vacancy occurring in the Board of
Directors maybe filled by the affirmative majority vote of the whole Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. A director chosen to fill a
position resulting from a vacancy or an increase in the number of directors
shall hold office until the next annual meeting of stockholders.
Section 5. Removal. Any director may be removed from office, either
with or without cause, at any time, and another person may be elected to his
place, to serve for the remainder of his term, at any special meeting of
shareholders called for that purpose, by a majority of all of the shares of
stock outstanding and entitled to vote. In case any vacancy so created shall
not be filled by the shareholders at such meeting, such vacancy may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum.
Section 6. Meetings. The regular meeting of the Board of Directors
shall be held immediately following the annual shareholder's meeting. The
Board of Directors shall meet at such other time or times as they may from
time to time determine.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by them.
Section 8. Place of Meetings. The Board of Directors may hold its
meetings at such place or places within or without the State of Colorado as
the Board may from time to time determine, or, with respect to its meetings,
as shall be specified or fixed in respective notices or waivers of notice of
such meetings.
Section 9. Special Meetings: Notice. Special meetings of the Board
of Directors shall be held whenever called by the President or by two of the
directors. Notice of the time and place of holding said special meeting of
the Board of Directors shall be given to each director by either
(i) registered mail, return receipt requested, deposited in the mail at least
ten (10) days prior to the date of said special meeting, or (ii) guaranteed
overnight delivery by a nationally-used courier service at least three (3)
days prior to the date of said special meeting, or (iii) by telex or facsimile
copy sent at least forty-eight (48) hours prior to the time and date of such
special meeting. Attendance of a director at such special meeting shall
constitute a waiver of notice of such special meeting, except where a director
attends the meeting for the express purpose of objecting to the transacting of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular meeting or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
Section 10. Presence of Meetings. Members of the Board, or of any
committee thereof, may participate in a meeting of the Board or such committee
by means of conference telephone or similar communications equipment, by means
of which all persons participating in the meeting can hear one another.
Participation in a meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. Quorum and Manner of Acting. A majority of the members of
the Board of Directors shall form a quorum for the transaction of business at
any regular or special meeting of the Board of Directors. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. If the vote of a lesser number is
required for a specific act by the Articles of Incorporation, or by another
provision of these By-Laws, then that lesser number shall govern. In the
absence of a quorum, a majority of the directors present may adjourn the
meeting from time to time until a quorum be had.
Section 12. Compensation. By resolution of the Board of Directors,
the directors may be paid their expenses, if any, for attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 13. Election of Officers. At the first meeting of the Board
of Directors after the annual election, the President, Vice President, and
Secretary and Treasurer shall be elected to serve for the ensuing year and
until the election of their respective successors, and an executive committee
may be elected. Election shall be by ballot, and the majority of the votes
cast shall be necessary to elect. Any vacancies that occur may be filled by
the Board of Directors for the unexpired term. An officer may be removed at
any time by the majority vote of the directors present at any regular or
special meeting of said Board of Directors at which a quorum is present. The
Board of Directors shall have the power to fill officer vacancies, create new
officer positions, and adjust salaries of officers as said Board from time to
time shall deem necessary, all in accordance with the Articles of
Incorporation.
Section 14. Reporting. At each annual stockholder's meeting, the
directors shall submit a statement of business done during the preceding year,
together with a report of the general financial condition of the corporation,
and of the condition of its tangible property.
ARTICLE V
BOOKS AND RECORDS
Section 1. The corporation shall keep either within or without the
State of Colorado, complete books and records of account and shall keep
minutes of the proceedings of its stock holders and the Board of Directors.
Section 2. The corporation shall keep at its registered office or
principal place of business, a record of its stock holders, giving the names
and addresses of all of the stock holders and the number and class of the
shares held by each.
Section 3. The books, records of account, financial statements and
other documents of the corporation shall be available to such persons who have
been designated by law as having a right thereto, and said books, records of
account, financial statements and documents shall be made available to such
persons in the manner and in accordance with the procedures established by
law.
ARTICLE VI
STOCK
Section 1. Authorization. The authorized shares of stock of the
corporation shall be as provided by the Articles of Incorporation.
Section 2. Certificate of Shares. The shares of stock of the
corporation shall be represented by certificates signed by the Chief Executive
Officer, President or the Vice President and the Secretary or an assistant
Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. The signatures of the President or Vice
President and the Secretary or Assistant Secretary upon a certificate may be
facsimile if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its issue.
Section 3. Issuance of Certificates. Each certificate representing
shares shall state upon the face of same that the corporation is organized
under the laws of the State of Colorado, the name of the person to whom the
certificate is issued, the number and class of shares, and the designation of
the series, if any, which such certificate represents. No certificate shall
be issued for any shares until such shares are fully paid and when issued
shall bear the notation that the certificate is issued as a fully paid and
non-assessable certificate of stock.
Section 4. Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer 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
shares. Upon surrender to the corporation or to a transfer agent of the
corporation of a certificate of stock duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of shares shall
be entered on the stock book of the corporation which shall be kept at its
principal office, or by its registrar duly appointed.
Section 5. Transfer Agent. The secretary of the corporation shall
act as transfer agent of the certificates representing the shares of the
corporation. The Secretary shall maintain a stock transfer book, the stubs in
which shall set forth, among other things, the names and addresses of the
holders of all issued shares of the corporation, the number of shares held by
each, the certificate numbers representing such shares, the date of issue of
the certificates representing such shares, and whether or not such shares
originate from original issue or from transfer. The names and addresses of
the shareholders as they appear on the stubs of the stock transfer book shall
be conclusive evidence as to who are the shareholders of record and as such
entitled to receive notice of the meetings of shareholders; to vote at such
meetings; to examine the list of the shareholders entitled to vote at
meetings; to receive dividends; and to own, enjoy and exercise any other
property rights deriving from such shares against the corporation. Each
shareholder shall be responsible for notifying the secretary in writing of any
change in his name or address and failure so to do will relieve the
corporation, its directors, officers and agents, from liability for failure to
direct notices or other documents, or to pay over or transfer dividends or
other property or rights, to a name and address other than the name and
address appearing on the stub of the stock transfer book.
The Board of Directors may at its discretion, appoint instead
of the secretary of the corporation, one or more transfer agents, registrars
and agents outside the corporation for making payment upon any class of stock,
bond, debenture, or other security of the corporation. Such agents and
registrars may be located either within or outside the State of Colorado.
They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
Section 6. Fractional Shares. The corporation may, but shall not be
obliged to, issue a certificate for a fractional share, and by action by its
Board of Directors, may issue in lieu thereof scrip in register or bearer form
which shall entitle the holder to receive a certificate for a full share upon
the surrender of such scrip aggregated to a full share. The rights and
obligations of persons holding said fractional shares or scrip shall be as are
contained in any applicable provision of these By-Laws, Articles of
Incorporation, or laws of the State of Colorado.
Section 7. Treasury Shares. Treasury shares of stock shall be held
by the corporation subject to the disposal of the Board of Directors and shall
neither vote nor participate in dividends.
Section 8. Lien. The corporation shall have a first lien on all
shares of its stock and upon all dividends declared upon same for any
indebtedness of the respective holders thereof of the corporation.
Section 9. Lost Certificates. In cases of loss or destruction of a
certificate of stock, no new certificates shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors of such loss or
destruction, and, at the election of a majority of the Board of Directors,
upon giving satisfactory security by bond or otherwise, against loss to the
corporation. Any such new certificate shall be plainly marked "Duplicate" on
its face.
Section 10. Consideration and Payment for Shares. Shares having a par
value shall be issued for such consideration, expressed in dollars but not
less than the par value thereof, as shall be fixed from time to time by the
Board of Directors. Shares without par value shall be issued for such
consideration expressed in dollars as shall be fixed from time to time by the
Board of Directors. Treasury shares shall be disposed of for such
consideration expressed in dollars as may be fixed from time to time by the
Board of Directors. Such consideration may consist, in whole or in part, of
money, other property, tangible or intangible, or labor or services actually
performed for the corporation, but neither promissory notes nor future
services shall constitute payment or part payment for shares.
ARTICLE VII
SHAREHOLDERS
Section 1. Annual Meeting. The regular meeting of the shareholders
of the corporation shall be held at a time and place to be designated by the
President, Vice President, or the Board of Directors, provided, however, that
whenever such day shall fall upon a Sunday or a legal holiday, the meeting
shall be held on the next succeeding business day. At the regular annual
meeting of the shareholders, the directors for the ensuing year shall be
elected. The officers of the corporation shall present their annual reports
and the Secretary shall have on file for inspection and reference, an
authentic list of the stockholders, giving the amount of stock held by each as
shown by the stock books of the corporation ten (10) days before the annual
meeting.
Section 2. Special Meeting. Special meetings of the shareholders may
be called at any time by the President, any member of the Board of Directors,
or by the holders of not less than ten (10%) percent of all of the shares
entitled to vote at said special meeting. The Board of Directors may
designate any place as the place for any annual meeting or for any special
meeting called by the Board of Directors. If a special meeting shall be
called otherwise than by the Board of Directors, the place of meeting shall be
the principal office of the corporation.
Section 3. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting, and in case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than fifty (50) days before the date of the
meeting, either personally, or by mail, by or at the discretion of the
President, the Secretary, or the director or the person calling the meeting,
to each stockholder of record entitled to vote at such meeting, except that if
the authorized capital stock is to be increased, at least thirty (30) days
notice shall be given. If mailed, such notice shall be deemed to be delivered
when deposited in the U.S. Mails and addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid.
Section 4. Closing Transfer Books. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shares for any other purpose,
the Board of Directors may provide that the stock transfer books shall be
closed for any stated period not exceeding fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, shall be closed
for at least ten (10) days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of such shareholders, such
date in any case to be not more than fifty (50) days and in the case of a
meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action, requiring such determination of shareholders, or
shareholders entitled to receive payment of a dividend, the day on which
notice of the meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such a determination shall apply to
any adjournment thereof. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of shareholders
entitled to vote at any such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list for a period of ten (10) days prior to such meeting, shall be kept
on file at the principal office of the corporation. The original stock
transfer books shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders.
Section 5. Election of Directors. At each annual meeting of the
shareholders of the corporation, the directors shall be elected who shall
serve until their successors are duly elected and qualified, unless they
sooner resign. Election of directors shall be by such of the shareholders as
attend the annual meeting, either in person or by proxy, provided that if the
majority of stock is not represented, said meeting may be adjourned by the
shareholders present for a period not exceeding sixty (60) days at any one
adjournment. At each election of directors, cumulative voting shall not be
allowed. In the election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, are elected to the board of directors.
Section 6. Quorum. A majority of the outstanding stock exclusive of
treasury stock, shall be necessary to constitute a quorum at meetings of the
shareholders. If a quorum is present at any meeting, a matter other than the
election of directors shall be approved if the votes cast favoring the action
exceed the votes cast opposing the action, unless a greater number is required
by the Articles of Incorporation of the Company. In the absence of a quorum,
those present may adjourn the meeting from day to day but not exceeding sixty
(60) days.
Section 7. Proxies. Any shareholder entitled to vote may be
represented at any regular or special meeting of the shareholders by a duly
executed proxy.
ARTICLE VIII
WAIVER OF NOTICE
Section 1. Directors and Officers. Unless otherwise provided by law,
whenever any notice is required to be given to any director or officer of the
corporation under the provisions of these By-Laws or under the provisions of
the Articles of Incorporation, a 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.
Section 2. Shareholders. No notice of the time, place or purpose of
any annual, regular, or special meeting of the shareholders need be given if
all shareholders of record on the date said meeting is held waive such notice
in writing either before or after the regular, or special meeting of the
shareholders, such meeting shall be deemed to have been legally and duly
called, noticed, held, and conducted.
ARTICLE IX
ACTION WITHOUT A MEETING
Section 1. Any action required by the laws of the State of Colorado,
the Articles of Incorporation, or by these By-Laws, to be taken at a meeting
of the directors or stockholders of this corporation, or any action which may
be taken at a meeting of the directors or stockholders, may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all the directors or stockholders entitled to vote with respect to
the subject matter thereof. Such consent shall have the same force and effect
as a unanimous vote of the directors or stockholders, and may be stated as
such in any Articles or documents filed with the Secretary of State under the
law of the State of Colorado.
ARTICLE X
CONTRACT, LOANS, CHECKS AND DEPOSITS
Section 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 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.
Section 3. Checks, Drafts, Etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE XI
EXECUTION OF INSTRUMENTS
Section 1. Execution of Instruments. The President shall have power
to execute on behalf and in the name of the corporation any deed, contract,
bond, debenture, note or other obligations or evidences or indebtedness, or
proxy, or other instrument requiring the signature of an officer of the
corporation, except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. Unless so authorized, no officer, agent or employee shall have
any power or authority to bind the corporation in any way, to pledge its
credit or to render it liable pecuniarily for any purpose or in any amount.
Section 2. Checks and Endorsements. All checks and drafts upon the
funds to the credit of the corporation in any of its depositories shall be
signed by such of its officers or agents as shall from time to time be
determined by resolution of the Board of Directors which may provide for the
use of facsimile signatures under specified conditions, and all notes, bills
receivable, trade acceptances, drafts, and other evidences of indebtedness
payable to the corporation shall, for the purposes of deposit, discount or
collection, be endorsed by such officers or agents of the corporation or in
such manner as shall from time to time be determined by resolution of the
Board of Directors.
ARTICLE XII
LOANS TO DIRECTORS AND OFFICERS
Loans to employees or officers of the corporation, guarantees of their
obligations or other similar assistance to these employees or officers (except
those employees or officers who are directors of the corporation), shall be
contracted on behalf of the corporation only upon the specific authorization
of the Board of Directors of the corporation. Unless otherwise provided in
the Articles of Incorporation, loans to directors, guarantees of their
obligations, or other similar assistance to the directors shall be contracted
on behalf of the corporation only upon the specific authorization of the Board
of Directors and the affirmative vote of the holders of two-thirds (2/3) of
the outstanding shares of the corporation which are entitled to vote for
directors. No such loans or guarantees shall be secured by the shares of this
corporation.
ARTICLE XIII
MISCELLANEOUS
Section 1. Corporate Seal. The Board of Directors shall provide a
corporate seal which shall be circular in form and shall have inscribed
thereon the name of the corporation, the state of incorporation, and the words
"Corporate Seal".
Section 2. Fiscal Year. The fiscal year of the corporation shall be
as established by the Board of Directors.
Section 3. Amendments. Subject to repeal or change by action of the
shareholders, the Board of Directors shall have the power to alter, amend, or
repeal the by-laws of the corporation and to make and adopt new by-laws at any
regular meeting of the Board or at any special meeting called for that
purpose.
Section 4. Dividends. The Board of Directors may, from time to time,
declare, and the corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and its Articles
of Incorporation.
ADOPTED BY THE BOARD OF DIRECTORS this day of November, 1999.
-----
DIRECTOR:
--------------------------------------
BRADLEY SMITH
<PAGE>
ARTICLES OF INCORPORATION
OF
iRV.COM, INC.
The undersigned natural person of the age of eighteen years or more,
acting as incorporator of a corporation under the Colorado Business
Corporation Act, adopts the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
The name of the Corporation is to be iRV.com, Inc.
ARTICLE II
TERMS OF EXISTENCE
The Corporation shall exist in perpetuity, from and after the date of
filing this Certificate of Incorporation with the Secretary of State of the
State of Colorado, unless sooner dissolved or disincorporated according to
law.
ARTICLE III
OBJECT, PURPOSES AND POWERS
Section 1. General Objects and Purposes. To engage in any lawful
activity as may from time to time be authorized by the Corporation's Board of
Directors, which is not prohibited by law or by these Articles of
Incorporation. To undertake such other activities as the Board of Directors
may deem reasonable or necessary in the furtherance of the general or specific
purposes and powers of the Corporation.
Section 2. General Powers. Further, the Corporation shall have and may
exercise all the rights, powers and privileges now or hereafter conferred upon
corporations organized under the laws of the State of Colorado and in addition
may do everything necessary, suitable, proper for, or incident to, the
accomplishment of any of these corporate purposes.
Section 3. Specific Purposes and Powers. Subject to any specific
written limitations or restrictions imposed by the Colorado Business
Corporation Act or by other law, or by these Articles of Incorporation, and
not in limitation of any of the statutory powers herein granted, the
Corporation shall have the following purposes and exercise the following
specific powers:
a. To Deal in Real Property. To acquire, hold, own, improve, manage,
operate, let as lessor, sell, convey or mortgage, or otherwise deal with,
either alone or in conjunction with others, real estate of every right, title
or interest, character and description whatsoever and wheresoever situated.
b. To Deal in Personal Property, Generally. To acquire, hold, own,
manage, operate, mortgage, pledge, hypothecate, exchange, sell, deal in and
dispose of, either alone or in conjunction with others, personal property and
commodities of every right, title or interest, character and description
whatsoever and wheresoever situated.
c. To Enter into Profit Sharing Arrangements and Partnerships. To
enter into any lawful arrangement for sharing profits, union of interest,
reciprocal association, or cooperative association with any corporation,
association, partnership, individual, or other legal entity for the carrying
on of any business, the purpose of which is similar to the Purposes set forth
in Section 1 of this Article, and to enter into any general or limited
partnership, the purpose of which is similar to such Purposes.
d. To Execute Guarantees. To make any guaranty respecting stocks,
dividends, securities, indebtedness, interest, contracts or other obligations
created by any individual, partnership, association, corporation, or other
entity, to the extent that such guaranty is made in pursuance to the Purposes
set forth in Section 1 of this Article.
e. To Borrow Funds. To borrow or raise monies for any of the Purposes
of the Corporation set forth in Section 1 of this Article, and, from time to
time, without limit as to amount, to execute, accept, endorse, and deliver as
evidence of such borrowing, all kinds of securities, including, but without
limiting the generality thereof, promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness; and to secure the payment and full performance
of such securities by mortgage on, or pledge, conveyance or assignment in
trust of, the whole, or any part of the assets of the Corporation.
f. To Lend Funds. To lend money to individuals or other business
entities and to charge interest for the same and to engage in the business,
buying, loaning money upon, selling, transferring, assigning, discounting,
borrowing money upon and pledging as collateral, and otherwise dealing as
principal agent or broker in bills of lading, warehouse receipts, evidence of
deposit and storage of personal property, bonds, stocks, promissory notes,
commercial paper account, invoices, choses in action, interest in estates,
contracts, mortgages on real or personal property, pledges of personal
property and other evidence of indebtedness of persons, firms or corporations,
and owning, holding or conveying such real estate as may be necessary in the
operating of its business, and purchasing, acquiring and holding shares of
stock in other corporations, domestic and foreign, and doing all things
incidental thereto; to do a general brokerage business, to buy, sell and deal
in all kinds of listed and unlisted stocks and bonds on commission; not for
the purpose of carrying on the business of banking, insurance or the operation
of railroads or the discounting of bills and notes, or the buying and selling
of bills of exchange.
Section 4. All the foregoing listed powers and/or purposes of the
Corporation are both purposes and powers of the Corporation and shall be
construed as such.
ARTICLE IV
CAPITAL STOCK
Section 1. The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred and fifty million
(150,000,000) shares of which one hundred million (100,000,000) shares shall
be designated common stock, having a par value of one tenth of one cent
($.001) each, and of which fifty million (50,000,000) shares shall be
designated preferred stock of the Corporation, having a par value of one cent
($.01) each. All or any part of the common stock may be issued by the
Corporation from time to time and for such consideration and on such terms as
may be determined and fixed by the Board of Directors, without action of the
stockholders, as provided by law, unless the Board of Directors deems it
advisable to obtain the advice of the stockholders. Said stock may be issued
for money, property, services or other lawful consideration, and when issued
shall be issued as fully paid and non-assessable. The private property of
stock holders shall not be liable for Corporation debts. Subject to the
preferences, rights and restrictions which may be ascribed to the preferred
stock of the Corporation by the Board of Directors, the preferences and
relative participating optional or other special rights and qualifications,
limitations or restrictions thereof of the common stock of the Corporation are
as follows:
a. Dividends. Dividends may be paid upon the common stock, as and when
declared by the Board of Directors, out of funds of the Corporation legally
available therefor.
b. Payment on Liquidation. Upon any liquidation, dissolution and
termination of the Corporation, and after payment or setting aside of any
amount sufficient to provide for payment in full of all debts and liabilities
of, and other claims against the Corporation, the assets shall be distributed
pro rata to the holders of the common stock.
c. Voting Rights. At any meeting of the stockholders of the
Corporation each holder of Common Stock shall be entitled to one vote for each
share outstanding in the name of such holder on the books of the Corporation
on the date fixed for determination of voting rights.
The stockholders, by vote or concurrence of a majority of the
outstanding shares of the Corporation entitled to vote on the subject matter,
may take any action which would otherwise require a two-thirds (2/3) vote
under the Colorado Business Corporation Act.
d. Cumulative Voting. Cumulative voting shall not be allowed in the
election of directors or for any other purpose.
e. Pre-Emptive Rights. Unless otherwise determined by the Board of
Directors, no stockholder of the Corporation shall have pre-emptive rights to
subscribe for any additional shares of stock, or for other securities of any
class, or for rights, warrants or options to purchase stock for the scrip, or
for securities of any kind convertible into stock or carrying stock purchase
warrants or privileges.
f. Restrictions on Sale or Disposition. All lawful restrictions on the
sale or other disposition of shares may be placed upon all or a portion or
portions of the certificates evidencing the Corporation's shares.
Section 2. The preferred stock of the Corporation shall be issued in
one or more series as may be determined from time to time by the Board of
Directors. In establishing a series the Board of Directors shall give to it a
distinctive designation so as to distinguish it from the shares of all other
series and classes, shall fix the number of shares in such series, and the
preferences, rights and restrictions thereof. All shares of any one series
shall be alike in every particular. All series shall be alike except that
there may be variation as to the following: (1) the rate of distribution, (2)
the price at and the terms and conditions on which shares shall be redeemed,
(3) the amount payable upon shares for distributions of any kind, (4) sinking
fund provisions for the redemption of shares, and (5) the terms and conditions
on which shares may be converted if the shares of any series are issued with
the privilege of conversion, and (6) voting rights except as limited by law.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation will be
at 5373 North Union Boulevard, Suite 100, Colorado Springs, Colorado 80918.
The name of the initial registered agent at such address is Bradley Smith.
The principal office of this Corporation and its principal place of business
is the same address as that of the initial registered office. The Corporation
may conduct part or all of its business in the County of El Paso, or the State
of Colorado, or the United States, or of the world, and it may hold, purchase,
mortgage, lease and convey real and personal property in any of such places.
ARTICLE VI
DIRECTORS
The business and affairs of this Corporation and the management thereof
shall be vested in a Board of Directors consisting of not less than one (1)
nor more than ten (10) members. Directors need not be stockholders of the
Corporation. The persons, together with their addresses, who shall act as such
directors for the first year of existence of this Corporation and until their
successors shall be duly elected and qualified will be:
John Deufel
5373 North Union Boulevard, Suite 100
Colorado Springs, CO 80918
The number of directors may be increased from time to time, within the
limits stated above, by action of the majority of the whole Board of Directors
but the number of Directors may thereafter be decreased only by the
stockholders of the Corporation at an annual or special meeting thereof.
ARTICLE VII
RIGHTS OF DIRECTORS, OFFICERS AND MANAGEMENT
TO CONTRACT WITH CORPORATION
No contract or other transaction between the Corporation and any other
corporation whether or not a majority of the shares of capital stock of such
other corporation is owned by this Corporation, and no act of this Corporation
shall be in any way affected or invalidated by the fact that any of the
directors, officers or other members of the management of this Corporation are
pecuniarily or otherwise interested in or are directors, officers or members
of management of such other corporation. Any director, officer or other
member of management of this Corporation individually, or any firm of which
such director, officer or member of management may be a member, may be a party
to, or may be pecuniarily or otherwise interested in, any contract or
transaction of this Corporation, provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of this Corporation or a majority thereof. Any director of
this Corporation who is also a director, officer or member of management of
such other corporation, or who is so interested, may be counted in determining
the existence of a quorum at any meeting of the Board of Directors of this
Corporation that shall authorize such contract or transaction, and may vote at
any such meeting to authorize such contract or transaction, with like force
and effect as if he were not such director, officer or member of management of
such other corporation or not so interested.
ARTICLE VIII
INCORPORATOR
The name and address of the incorporator is:
Clifford L. Neuman, Esq.
Neuman & Drennen, LLC
Temple-Bowron House
1507 Pine Street
Boulder, Colorado 80302
ARTICLE IX
INDEMNIFICATION
The Corporation may and shall indemnify each director, officer and any
employee or agent of the Corporation, his heirs, executors and administrators,
against any and all expenses or liability reasonably incurred by him in
connection with any action, suit or proceeding to which he may be a party by
reason of his being or having been a director, officer, employee or agent of
the Corporation to the full extent required or permitted by the Colorado
Business Corporation Act.
ARTICLE X
CORPORATE OPPORTUNITIES
The officers, directors and other members of management of this Corporation
shall be subject to the Doctrine of Corporate Opportunities only insofar as it
applies to business opportunities in which this Corporation has expressed an
interest as determined from time to time by the Corporation's Board of
Directors as evidenced by resolutions appearing in the Corporation's Minutes.
When such areas of interest are delineated, all such business opportunities
within such areas or interests which come to the attention of the officers,
directors and other members of management of this Corporation shall be
disclosed promptly to this Corporation and made available to it. The Board of
Directors may reject any business opportunity presented to it and therefore
any officer, director or other member of management may avail himself of such
opportunity. Until such time as this Corporation, through its Board of
Directors, has designated an area of interest, the officers, directors and
other members of management of this Corporation shall be free to engage in
such areas of interest on their own and this Doctrine shall not limit the
rights of any officer, director or other member of this Corporation to
continue a business existing prior to the time that such area of interest is
designated by this Corporation, other than an officer, director or member of
management, from any duty which he may have to the Corporation.
ARTICLE XI
PARTIAL LIQUIDATION
The Board of Directors may, from time to time, distribute to the
Corporation's shareholders, in partial liquidation, out of stated capital or
capital surplus of the Corporation, a portion of its assets, in cash or
properties if (a) at the time the Corporation is solvent; (b) such
distribution would not render the Corporation insolvent; (c) all cumulative
dividends on all preferred or special classes of shares entitled to
preferential dividends shall have been paid fully; (d) the distribution would
not reduce the remaining net assets of the Corporation below the aggregate
preferential amount payable in the amount of voluntary liquidation to the
holders of shares having preferential rights to the assets of the Corporation
in the event of liquidation; (e) the distribution is not made out of capital
surplus arising from unrealized depreciation of assets of re-evaluation of
surplus; (f) the distribution is identified as a distribution in partial
liquidation and the amount per share is disclosed to the shareholders
receiving the same concurrently with the distribution thereof.
ARTICLE XII
DIRECTORS' LIABILITY
a. A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Colorado as the same exists or may hereafter be amended.
b. Any repeal or modification of the foregoing paragraph A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, the above-named incorporator has hereunto set his hand
and seal this 29th day of December, 1999.
- ------------------------------- --------------------------------
Bradley Smith, Registered Agent Clifford L. Neuman, Incorporator
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
I, ________________________, a Notary Public, hereby certify that on the
29th day of December, 1999, personally appeared before me Clifford L.
Neuman, who, being by me first duly sworn, declared that he was the person who
signed the foregoing document as the incorporator and that the statements
therein contained are true.
My commission expires:_____________________
-------------------------------------
Notary Public
<PAGE>
BY-LAWS OF
iRV.COM, INC.
ARTICLE I
Section 1. The following paragraphs contain provisions for the
regulation and management of iRV.com, Inc., a Colorado corporation.
Section 2. In the event that there is a conflict between a provision
of these By-Laws and a mandatory provision of the Articles of Incorporation of
this corporation, then said mandatory provision of the Articles of
Incorporation of this corporation shall control.
ARTICLE II
PLACE OF BUSINESS
Section 1. The registered office of the corporation, which shall also
be the principal office of said corporation, shall be 5373 North Union
Boulevard, Suite 100, Colorado Springs, Colorado 80918. This designation
shall be without prejudice to the power and right of the corporation to
conduct and transact any of its affairs or business in other cities, states,
territories, countries, or places.
Section 2. The registered agent of the corporation in the State of
Colorado shall be Bradley Smith.
Section 3. The registered office and registered agent of the
corporation may be changed from time to time in the manner prescribed by law
without amending these By-Laws.
ARTICLE III
OFFICERS
Section 1. Number. The officers of this corporation may consist of a
President, a Secretary, a Treasurer, and such other officers, including one or
more Vice Presidents, and, if desired, a Chief Executive Officer, as may be
appointed in accordance with the provisions of Section 3 of this Article. One
person may hold any two of said offices, but no such officer shall execute,
acknowledge, or verify any instrument in more than one capacity if such
instrument is required by law or by these By-Laws or by a resolution of the
Board of Directors to be executed, acknowledged or verified by any two or more
officers.
Section 2. Election, Term of Office and Qualifications. The officers
of this corporation shall be chosen annually by the Board of Directors. Each
officer, except such officer as may be appointed in accordance with the
provisions of Section 3 of this Article, shall hold his office until his
successors shall have been removed in the manner hereinafter provided.
Section 3. Subordinate Officers. The Board of Directors may appoint
such other officers to hold office for such period, have such authority and
perform such duties as the Board of Directors may from time to time determine.
The Board of Directors may delegate to any officer the power to appoint any
such subordinate officers.
Section 4. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Such removal shall be by vote of a majority of the whole
Board of Directors at a regular meeting or a special meeting of the Board of
Directors called for this purpose.
Section 5. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or
Secretary of the corporation. Any such resignation 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 6. Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the corporation and, subject to
the control of the Board of Directors, shall in general supervise and control
all of the business and affairs of the corporation. He shall preside at all
meetings of the shareholders and all meetings of the Board of Directors; and
shall have general supervision over the affairs of the corporation and over
the other officers.
Section 7. President. The President shall be the chief operating
officer of the corporation. The President shall perform all duties incident
to the office of the President; shall sign all stock certificates and written
contracts of the corporation; and shall perform all such other duties as are
assigned to him from time to time by resolution of the Board of Directors or
the Chief Executive Officer.
Section 8. Vice President. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice President shall
perform the duties of the President, and when so acting, shall have all the
powers of, and be subject to, all of the restrictions upon the President. The
Vice President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 9. Secretary. The secretary shall be sworn to the faithful
discharge of his duty. He shall:
a. Keep the minutes of the meetings of the shareholders and of the
Board of Directors in books provided for that purpose;
b. See that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
c. Be custodian of the records and of the seal of the corporation and
see that such seal is affixed to all stock certificates prior to
their issue and to all documents, the execution of which on behalf
of the corporation under its seal is duly authorized in accordance
with the provisions of these By-Laws.
d. Have charge of the stock books of the corporation and keep or cause
to be kept the stock and transfer books in such manner as to show at
any time the amount of the stock of the corporation issued and
outstanding, the manner in which and the time when such stock was
paid for, the names, alphabetically arranged, and the addresses of
the holders of record; and exhibit during the usual business hours
of the corporation to any director, upon application, the original
or duplicate stock ledger;
e. Sign with the President, or a Vice President, certificates of stock
of the corporation;
f. See that the books, reports, statements, certificates, and all other
documents and records of the corporation required by law are
properly kept and filed;
g. In general, perform all duties incident to the office of Secretary
and such other duties as, from time to time, may be assigned to him
by the Board of Directors or by the President.
Section 10. Treasurer. The Treasurer shall:
a. Have charge and custody of, and be responsible for, all funds and
securities of the corporation;
b. From time to time render a statement of the condition of the
finances of the corporation at the request of the Board of
Directors;
c. Receive and give receipt for monies due and payable to the
corporation from any source whatsoever;
d. In general, perform all duties incident to the office of Treasurer,
and such other duties as from time to time may be assigned to him by
the Board of Directors or by the President.
Section 11. Salaries. 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.
ARTICLE IV
DIRECTORS
Section 1. General Powers. The business and affairs of this
corporation and the management thereof shall be vested in a Board of Directors
consisting of not less than one (1) nor more than ten (10) members.
Section 2. Number and qualification. The number of directors of this
corporation shall be not less than one (1) and not more than ten (10). The
number of directors may be increased or decreased from time to time within the
limits stated above by the action of the majority or the whole Board of
Directors. Directors shall be elected for a term of one (1) year and shall
serve until the election and qualification of their successors, unless they
sooner resign. At the first annual meeting of the stockholders and at each
annual meeting thereafter, the stockholders shall so elect directors to hold
office until the next succeeding annual meeting. The directors need not be
residents of the State of Colorado or stockholders of the corporation.
Section 3. Executive Committee. The Board of Directors by resolution
passed by a majority of the whole Board may designate two or more of their
number to constitute an executive committee, which shall have and exercise,
subject to limitations, if any, as may be prescribed herein or by resolution
of the Board of Directors, the powers of the Board of Directors and the
management of the business and affairs of the corporation; provided such
executive committee shall act only at such times as the Board of Directors is
not in session and in no event to the exclusion of the Board of Directors at
any time to act as a Board upon any business of the corporation.
Section 4. Vacancy. Any director may resign at any time by giving
written notice to the President or to the Secretary of the corporation. Such
resignation 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. Any vacancy occurring in the Board of
Directors maybe filled by the affirmative majority vote of the whole Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. A director chosen to fill a
position resulting from a vacancy or an increase in the number of directors
shall hold office until the next annual meeting of stockholders.
Section 5. Removal. Any director may be removed from office, either
with or without cause, at any time, and another person may be elected to his
place, to serve for the remainder of his term, at any special meeting of
shareholders called for that purpose, by a majority of all of the shares of
stock outstanding and entitled to vote. In case any vacancy so created shall
not be filled by the shareholders at such meeting, such vacancy may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum.
Section 6. Meetings. The regular meeting of the Board of Directors
shall be held immediately following the annual shareholder's meeting. The
Board of Directors shall meet at such other time or times as they may from
time to time determine.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any spe0cial meeting of the
Board of Directors called by them.
Section 8. Place of Meetings. The Board of Directors may hold its
meetings at such place or places within or without the State of Colorado as
the Board may from time to time determine, or, with respect to its meetings,
as shall be specified or fixed in respective notices or waivers of notice of
such meetings.
Section 9. Special Meetings: Notice. Special meetings of the Board
of Directors shall be held whenever called by the President or by two of the
directors. Notice of the time and place of holding said special meeting of
the Board of Directors shall be given to each director by either
(i) registered mail, return receipt requested, deposited in the mail at least
ten (10) days prior to the date of said special meeting, or (ii) guaranteed
overnight delivery by a nationally-used courier service at least three (3)
days prior to the date of said special meeting, or (iii) by telex or facsimile
copy sent at least forty-eight (48) hours prior to the time and date of such
special meeting. Attendance of a director at such special meeting shall
constitute a waiver of notice of such special meeting, except where a director
attends the meeting for the express purpose of objecting to the transacting of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular meeting or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
Section 10. Presence of Meetings. Members of the Board, or of any
committee thereof, may participate in a meeting of the Board or such committee
by means of conference telephone or similar communications equipment, by means
of which all persons participating in the meeting can hear one another.
Participation in a meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. Quorum and Manner of Acting. A majority of the members of
the Board of Directors shall form a quorum for the transaction of business at
any regular or special meeting of the Board of Directors. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. If the vote of a lesser number is
required for a specific act by the Articles of Incorporation, or by another
provision of these By-Laws, then that lesser number shall govern. In the
absence of a quorum, a majority of the directors present may adjourn the
meeting from time to time until a quorum be had.
Section 12. Compensation. By resolution of the Board of Directors,
the directors may be paid their expenses, if any, for attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 13. Election of Officers. At the first meeting of the Board
of Directors after the annual election, the President, Vice President, and
Secretary and Treasurer shall be elected to serve for the ensuing year and
until the election of their respective successors, and an executive committee
may be elected. Election shall be by ballot, and the majority of the votes
cast shall be necessary to elect. Any vacancies that occur may be filled by
the Board of Directors for the unexpired term. An officer may be removed at
any time by the majority vote of the directors present at any regular or
special meeting of said Board of Directors at which a quorum is present. The
Board of Directors shall have the power to fill officer vacancies, create new
officer positions, and adjust salaries of officers as said Board from time to
time shall deem necessary, all in accordance with the Articles of
Incorporation.
Section 14. Reporting. At each annual stockholder's meeting, the
directors shall submit a statement of business done during the preceding year,
together with a report of the general financial condition of the corporation,
and of the condition of its tangible property.
ARTICLE V
BOOKS AND RECORDS
Section 1. The corporation shall keep either within or without the
State of Colorado, complete books and records of account and shall keep
minutes of the proceedings of its stock holders and the Board of Directors.
Section 2. The corporation shall keep at its registered office or
principal place of business, a record of its stock holders, giving the names
and addresses of all of the stock holders and the number and class of the
shares held by each.
Section 3. The books, records of account, financial statements and
other documents of the corporation shall be available to such persons who have
been designated by law as having a right thereto, and said books, records of
account, financial statements and documents shall be made available to such
persons in the manner and in accordance with the procedures established by
law.
ARTICLE VI
STOCK
Section 1. Authorization. The authorized shares of stock of the
corporation shall be as provided by the Articles of Incorporation.
Section 2. Certificate of Shares. The shares of stock of the
corporation shall be represented by certificates signed by the Chief Executive
Officer, President or the Vice President and the Secretary or an assistant
Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. The signatures of the President or Vice
President and the Secretary or Assistant Secretary upon a certificate may be
facsimile if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its issue.
Section 3. Issuance of Certificates. Each certificate representing
shares shall state upon the face of same that the corporation is organized
under the laws of the State of Colorado, the name of the person to whom the
certificate is issued, the number and class of shares, and the designation of
the series, if any, which such certificate represents. No certificate shall
be issued for any shares until such shares are fully paid and when issued
shall bear the notation that the certificate is issued as a fully paid and
non-assessable certificate of stock.
Section 4. Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer 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
shares. Upon surrender to the corporation or to a transfer agent of the
corporation of a certificate of stock duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of shares shall
be entered on the stock book of the corporation which shall be kept at its
principal office, or by its registrar duly appointed.
Section 5. Transfer Agent. The secretary of the corporation shall
act as transfer agent of the certificates representing the shares of the
corporation. The Secretary shall maintain a stock transfer book, the stubs in
which shall set forth, among other things, the names and addresses of the
holders of all issued shares of the corporation, the number of shares held by
each, the certificate numbers representing such shares, the date of issue of
the certificates representing such shares, and whether or not such shares
originate from original issue or from transfer. The names and addresses of
the shareholders as they appear on the stubs of the stock transfer book shall
be conclusive evidence as to who are the shareholders of record and as such
entitled to receive notice of the meetings of shareholders; to vote at such
meetings; to examine the list of the shareholders entitled to vote at
meetings; to receive dividends; and to own, enjoy and exercise any other
property rights deriving from such shares against the corporation. Each
shareholder shall be responsible for notifying the secretary in writing of any
change in his name or address and failure so to do will relieve the
corporation, its directors, officers and agents, from liability for failure to
direct notices or other documents, or to pay over or transfer dividends or
other property or rights, to a name and address other than the name and
address appearing on the stub of the stock transfer book.
The Board of Directors may at its discretion, appoint instead
of the secretary of the corporation, one or more transfer agents, registrars
and agents outside the corporation for making payment upon any class of stock,
bond, debenture, or other security of the corporation. Such agents and
registrars may be located either within or outside the State of Colorado.
They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
Section 6. Fractional Shares. The corporation may, but shall not be
obliged to, issue a certificate for a fractional share, and by action by its
Board of Directors, may issue in lieu thereof scrip in register or bearer form
which shall entitle the holder to receive a certificate for a full share upon
the surrender of such scrip aggregated to a full share. The rights and
obligations of persons holding said fractional shares or scrip shall be as are
contained in any applicable provision of these By-Laws, Articles of
Incorporation, or laws of the State of Colorado.
Section 7. Treasury Shares. Treasury shares of stock shall be held
by the corporation subject to the disposal of the Board of Directors and shall
neither vote nor participate in dividends.
Section 8. Lien. The corporation shall have a first lien on all
shares of its stock and upon all dividends declared upon same for any
indebtedness of the respective holders thereof of the corporation.
Section 9. Lost Certificates. In cases of loss or destruction of a
certificate of stock, no new certificates shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors of such loss or
destruction, and, at the election of a majority of the Board of Directors,
upon giving satisfactory security by bond or otherwise, against loss to the
corporation. Any such new certificate shall be plainly marked "Duplicate" on
its face.
Section 10. Consideration and Payment for Shares. Shares having a par
value shall be issued for such consideration, expressed in dollars but not
less than the par value thereof, as shall be fixed from time to time by the
Board of Directors. Shares without par value shall be issued for such
consideration expressed in dollars as shall be fixed from time to time by the
Board of Directors. Treasury shares shall be disposed of for such
consideration expressed in dollars as may be fixed from time to time by the
Board of Directors. Such consideration may consist, in whole or in part, of
money, other property, tangible or intangible, or labor or services actually
performed for the corporation, but neither promissory notes nor future
services shall constitute payment or part payment for shares.
ARTICLE VII
SHAREHOLDERS
Section 1. Annual Meeting. The regular meeting of the shareholders
of the corporation shall be held at a time and place to be designated by the
President, Vice President, or the Board of Directors, provided, however, that
whenever such day shall fall upon a Sunday or a legal holiday, the meeting
shall be held on the next succeeding business day. At the regular annual
meeting of the shareholders, the directors for the ensuing year shall be
elected. The officers of the corporation shall present their annual reports
and the Secretary shall have on file for inspection and reference, an
authentic list of the stockholders, giving the amount of stock held by each as
shown by the stock books of the corporation ten (10) days before the annual
meeting.
Section 2. Special Meeting. Special meetings of the shareholders may
be called at any time by the President, any member of the Board of Directors,
or by the holders of not less than ten (10%) percent of all of the shares
entitled to vote at said special meeting. The Board of Directors may
designate any place as the place for any annual meeting or for any special
meeting called by the Board of Directors. If a special meeting shall be
called otherwise than by the Board of Directors, the place of meeting shall be
the principal office of the corporation.
Section 3. Notice of Meetings. Written or printed notice stating the
place, day and hour of the meeting, and in case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than fifty (50) days before the date of the
meeting, either personally, or by mail, by or at the discretion of the
President, the Secretary, or the director or the person calling the meeting,
to each stockholder of record entitled to vote at such meeting, except that if
the authorized capital stock is to be increased, at least thirty (30) days
notice shall be given. If mailed, such notice shall be deemed to be delivered
when deposited in the U.S. Mails and addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid.
Section 4. Closing Transfer Books. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shares for any other purpose,
the Board of Directors may provide that the stock transfer books shall be
closed for any stated period not exceeding fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, shall be closed
for at least ten (10) days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of such shareholders, such
date in any case to be not more than fifty (50) days and in the case of a
meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action, requiring such determination of shareholders, or
shareholders entitled to receive payment of a dividend, the day on which
notice of the meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such a determination shall apply to
any adjournment thereof. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of shareholders
entitled to vote at any such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list for a period of ten (10) days prior to such meeting, shall be kept
on file at the principal office of the corporation. The original stock
transfer books shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders.
Section 5. Election of Directors. At each annual meeting of the
shareholders of the corporation, the directors shall be elected who shall
serve until their successors are duly elected and qualified, unless they
sooner resign. Election of directors shall be by such of the shareholders as
attend the annual meeting, either in person or by proxy, provided that if the
majority of stock is not represented, said meeting may be adjourned by the
shareholders present for a period not exceeding sixty (60) days at any one
adjournment. At each election of directors, cumulative voting shall not be
allowed. In the election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, are elected to the board of directors.
Section 6. Quorum. A majority of the outstanding stock exclusive of
treasury stock, shall be necessary to constitute a quorum at meetings of the
shareholders. If a quorum is present at any meeting, a matter other than the
election of directors shall be approved if the votes cast favoring the action
exceed the votes cast opposing the action, unless a greater number is required
by the Articles of Incorporation of the Company. In the absence of a quorum,
those present may adjourn the meeting from day to day but not exceeding sixty
(60) days.
Section 7. Proxies. Any shareholder entitled to vote may be
represented at any regular or special meeting of the shareholders by a duly
executed proxy.
ARTICLE VIII
WAIVER OF NOTICE
Section 1. Directors and Officers. Unless otherwise provided by law,
whenever any notice is required to be given to any director or officer of the
corporation under the provisions of these By-Laws or under the provisions of
the Articles of Incorporation, a 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.
Section 2. Shareholders. No notice of the time, place or purpose of
any annual, regular, or special meeting of the shareholders need be given if
all shareholders of record on the date said meeting is held waive such notice
in writing either before or after the regular, or special meeting of the
shareholders, such meeting shall be deemed to have been legally and duly
called, noticed, held, and conducted.
ARTICLE IX
ACTION WITHOUT A MEETING
Section 1. Any action required by the laws of the State of Colorado,
the Articles of Incorporation, or by these By-Laws, to be taken at a meeting
of the directors or stockholders of this corporation, or any action which may
be taken at a meeting of the directors or stockholders, may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all the directors or stockholders entitled to vote with respect to
the subject matter thereof. Such consent shall have the same force and effect
as a unanimous vote of the directors or stockholders, and may be stated as
such in any Articles or documents filed with the Secretary of State under the
law of the State of Colorado.
ARTICLE X
CONTRACT, LOANS, CHECKS AND DEPOSITS
Section 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 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.
Section 3. Checks, Drafts, Etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE XI
EXECUTION OF INSTRUMENTS
Section 1. Execution of Instruments. The President shall have power
to execute on behalf and in the name of the corporation any deed, contract,
bond, debenture, note or other obligations or evidences or indebtedness, or
proxy, or other instrument requiring the signature of an officer of the
corporation, except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. Unless so authorized, no officer, agent or employee shall have
any power or authority to bind the corporation in any way, to pledge its
credit or to render it liable pecuniarily for any purpose or in any amount.
Section 2. Checks and Endorsements. All checks and drafts upon the
funds to the credit of the corporation in any of its depositories shall be
signed by such of its officers or agents as shall from time to time be
determined by resolution of the Board of Directors which may provide for the
use of facsimile signatures under specified conditions, and all notes, bills
receivable, trade acceptances, drafts, and other evidences of indebtedness
payable to the corporation shall, for the purposes of deposit, discount or
collection, be endorsed by such officers or agents of the corporation or in
such manner as shall from time to time be determined by resolution of the
Board of Directors.
ARTICLE XII
LOANS TO DIRECTORS AND OFFICERS
Loans to employees or officers of the corporation, guarantees of their
obligations or other similar assistance to these employees or officers (except
those employees or officers who are directors of the corporation), shall be
contracted on behalf of the corporation only upon the specific authorization
of the Board of Directors of the corporation. Unless otherwise provided in
the Articles of Incorporation, loans to directors, guarantees of their
obligations, or other similar assistance to the directors shall be contracted
on behalf of the corporation only upon the specific authorization of the Board
of Directors and the affirmative vote of the holders of two-thirds (2/3) of
the outstanding shares of the corporation which are entitled to vote for
directors. No such loans or guarantees shall be secured by the shares of this
corporation.
ARTICLE XIII
MISCELLANEOUS
Section 1. Corporate Seal. The Board of Directors shall provide a
corporate seal which shall be circular in form and shall have inscribed
thereon the name of the corporation, the state of incorporation, and the words
"Corporate Seal".
Section 2. Fiscal Year. The fiscal year of the corporation shall be
as established by the Board of Directors.
Section 3. Amendments. Subject to repeal or change by action of the
shareholders, the Board of Directors shall have the power to alter, amend, or
repeal the by-laws of the corporation and to make and adopt new by-laws at any
regular meeting of the Board or at any special meeting called for that
purpose.
Section 4. Dividends. The Board of Directors may, from time to time,
declare, and the corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and its Articles
of Incorporation.
ADOPTED BY THE BOARD OF DIRECTORS this 20th day of January, 2000.
DIRECTORS:
--------------------------------------
BRADLEY SMITH
--------------------------------------
JOHN DUEFEL
--------------------------------------
WINDY HADDAD
<PAGE>
ARTICLES OF INCORPORATION
OF
INNOVATIVE RECREATIONAL DEALERSHIPS, INC.
The undersigned natural person of the age of eighteen years or more,
acting as incorporator of a corporation under the Colorado Business
Corporation Act, adopts the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
The name of the Corporation is to be Innovative Recreational Dealerships,
Inc.
ARTICLE II
TERMS OF EXISTENCE
The Corporation shall exist in perpetuity, from and after the date of
filing this Certificate of Incorporation with the Secretary of State of the
State of Colorado, unless sooner dissolved or disincorporated according to
law.
ARTICLE III
OBJECT, PURPOSES AND POWERS
Section 1. General Objects and Purposes. To engage in any lawful
activity as may from time to time be authorized by the Corporation's Board of
Directors, which is not prohibited by law or by these Articles of
Incorporation. To undertake such other activities as the Board of Directors
may deem reasonable or necessary in the furtherance of the general or specific
purposes and powers of the Corporation.
Section 2. General Powers. Further, the Corporation shall have and may
exercise all the rights, powers and privileges now or hereafter conferred upon
corporations organized under the laws of the State of Colorado and in addition
may do everything necessary, suitable, proper for, or incident to, the
accomplishment of any of these corporate purposes.
Section 3. Specific Purposes and Powers. Subject to any specific
written limitations or restrictions imposed by the Colorado Business
Corporation Act or by other law, or by these Articles of Incorporation, and
not in limitation of any of the statutory powers herein granted, the
Corporation shall have the following purposes and exercise the following
specific powers:
a. To Deal in Real Property. To acquire, hold, own, improve,
manage, operate, let as lessor, sell, convey or mortgage, or otherwise deal
with, either alone or in conjunction with others, real estate of every right,
title or interest, character and description whatsoever and wheresoever
situated.
b. To Deal in Personal Property, Generally. To acquire, hold,
own, manage, operate, mortgage, pledge, hypothecate, exchange, sell, deal in
and dispose of, either alone or in conjunction with others, personal property
and commodities of every right, title or interest, character and description
whatsoever and wheresoever situated.
c. To Enter into Profit Sharing Arrangements and Partnerships. To
enter into any lawful arrangement for sharing profits, union of interest,
reciprocal association, or cooperative association with any corporation,
association, partnership, individual, or other legal entity for the carrying
on of any business, the purpose of which is similar to the Purposes set forth
in Section 1 of this Article, and to enter into any general or limited
partnership, the purpose of which is similar to such Purposes.
d. To Execute Guarantees. To make any guaranty respecting stocks,
dividends, securities, indebtedness, interest, contracts or other obligations
created by any individual, partnership, association, corporation, or other
entity, to the extent that such guaranty is made in pursuance to the Purposes
set forth in Section 1 of this Article.
e. To Borrow Funds. To borrow or raise monies for any of the
Purposes of the Corporation set forth in Section 1 of this Article, and, from
time to time, without limit as to amount, to execute, accept, endorse, and
deliver as evidence of such borrowing, all kinds of securities, including, but
without limiting the generality thereof, promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness; and to secure the payment and full
performance of such securities by mortgage on, or pledge, conveyance or
assignment in trust of, the whole, or any part of the assets of the
Corporation.
f. To Lend Funds. To lend money to individuals or other business
entities and to charge interest for the same and to engage in the business,
buying, loaning money upon, selling, transferring, assigning, discounting,
borrowing money upon and pledging as collateral, and otherwise dealing as
principal agent or broker in bills of lading, warehouse receipts, evidence of
deposit and storage of personal property, bonds, stocks, promissory notes,
commercial paper account, invoices, choses in action, interest in estates,
contracts, mortgages on real or personal property, pledges of personal
property and other evidence of indebtedness of persons, firms or corporations,
and owning, holding or conveying such real estate as may be necessary in the
operating of its business, and purchasing, acquiring and holding shares of
stock in other corporations, domestic and foreign, and doing all things
incidental thereto; to do a general brokerage business, to buy, sell and deal
in all kinds of listed and unlisted stocks and bonds on commission; not for
the purpose of carrying on the business of banking, insurance or the operation
of railroads or the discounting of bills and notes, or the buying and selling
of bills of exchange.
Section 4. All the foregoing listed powers and/or purposes of the
Corporation are both purposes and powers of the Corporation and shall be
construed as such.
ARTICLE IV
CAPITAL STOCK
Section 1. The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred and fifty million
(150,000,000) shares of which one hundred million (100,000,000) shares shall
be designated common stock, having a par value of one tenth of one cent
($.001) each, and of which fifty million (50,000,000) shares shall be
designated preferred stock of the Corporation, having a par value of one cent
($.01) each. All or any part of the common stock may be issued by the
Corporation from time to time and for such consideration and on such terms as
may be determined and fixed by the Board of Directors, without action of the
stockholders, as provided by law, unless the Board of Directors deems it
advisable to obtain the advice of the stockholders. Said stock may be issued
for money, property, services or other lawful consideration, and when issued
shall be issued as fully paid and non-assessable. The private property of
stock holders shall not be liable for Corporation debts. Subject to the
preferences, rights and restrictions which may be ascribed to the preferred
stock of the Corporation by the Board of Directors, the preferences and
relative participating optional or other special rights and qualifications,
limitations or restrictions thereof of the common stock of the Corporation are
as follows:
a. Dividends. Dividends may be paid upon the common stock, as and
when declared by the Board of Directors, out of funds of the Corporation
legally available therefor.
b. Payment on Liquidation. Upon any liquidation, dissolution and
termination of the Corporation, and after payment or setting aside of any
amount sufficient to provide for payment in full of all debts and liabilities
of, and other claims against the Corporation, the assets shall be distributed
pro rata to the holders of the common stock.
c. Voting Rights. At any meeting of the stockholders of the
Corporation each holder of Common Stock shall be entitled to one vote for each
share outstanding in the name of such holder on the books of the Corporation
on the date fixed for determination of voting rights.
The stockholders, by vote or concurrence of a majority of the
outstanding shares of the Corporation entitled to vote on the subject matter,
may take any action which would otherwise require a two-thirds (2/3) vote
under the Colorado Business Corporation Act.
d. Cumulative Voting. Cumulative voting shall not be allowed in
the election of directors or for any other purpose.
e. Pre-Emptive Rights. Unless otherwise determined by the Board
of Directors, no stockholder of the Corporation shall have pre-emptive rights
to subscribe for any additional shares of stock, or for other securities of
any class, or for rights, warrants or options to purchase stock for the scrip,
or for securities of any kind convertible into stock or carrying stock
purchase warrants or privileges.
f. Restrictions on Sale or Disposition. All lawful restrictions
on the sale or other disposition of shares may be placed upon all or a portion
or portions of the certificates evidencing the Corporation's shares.
Section 2. The preferred stock of the Corporation shall be issued in
one or more series as may be determined from time to time by the Board of
Directors. In establishing a series the Board of Directors shall give to it a
distinctive designation so as to distinguish it from the shares of all other
series and classes, shall fix the number of shares in such series, and the
preferences, rights and restrictions thereof. All shares of any one series
shall be alike in every particular. All series shall be alike except that
there may be variation as to the following: (1) the rate of distribution, (2)
the price at and the terms and conditions on which shares shall be redeemed,
(3) the amount payable upon shares for distributions of any kind, (4) sinking
fund provisions for the redemption of shares, and (5) the terms and conditions
on which shares may be converted if the shares of any series are issued with
the privilege of conversion, and (6) voting rights except as limited by law.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation will be
at 5373 North Union Boulevard, Suite 100, Colorado Springs, Colorado 80918.
The name of the initial registered agent at such address is Bradley Smith.
The principal office of this Corporation and its principal place of business
is the same address as that of the initial registered office. The Corporation
may conduct part or all of its business in the County of El Paso, or the State
of Colorado, or the United States, or of the world, and it may hold, purchase,
mortgage, lease and convey real and personal property in any of such places.
ARTICLE VI
DIRECTORS
The business and affairs of this Corporation and the management thereof
shall be vested in a Board of Directors consisting of not less than one (1)
nor more than ten (10) members. Directors need not be stockholders of the
Corporation. The persons, together with their addresses, who shall act as such
directors for the first year of existence of this Corporation and until their
successors shall be duly elected and qualified will be:
Bradley Smith
5373 North Union Boulevard, Suite 100
Colorado Springs, CO 80918
The number of directors may be increased from time to time, within the
limits stated above, by action of the majority of the whole Board of Directors
but the number of Directors may thereafter be decreased only by the
stockholders of the Corporation at an annual or special meeting thereof.
ARTICLE VII
RIGHTS OF DIRECTORS, OFFICERS AND MANAGEMENT
TO CONTRACT WITH CORPORATION
No contract or other transaction between the Corporation and any other
corporation whether or not a majority of the shares of capital stock of such
other corporation is owned by this Corporation, and no act of this Corporation
shall be in any way affected or invalidated by the fact that any of the
directors, officers or other members of the management of this Corporation are
pecuniarily or otherwise interested in or are directors, officers or members
of management of such other corporation. Any director, officer or other
member of management of this Corporation individually, or any firm of which
such director, officer or member of management may be a member, may be a party
to, or may be pecuniarily or otherwise interested in, any contract or
transaction of this Corporation, provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of this Corporation or a majority thereof. Any director of
this Corporation who is also a director, officer or member of management of
such other corporation, or who is so interested, may be counted in determining
the existence of a quorum at any meeting of the Board of Directors of this
Corporation that shall authorize such contract or transaction, and may vote at
any such meeting to authorize such contract or transaction, with like force
and effect as if he were not such director, officer or member of management of
such other corporation or not so interested.
ARTICLE VIII
INCORPORATOR
The name and address of the incorporator is:
Clifford L. Neuman, Esq.
Neuman & Drennen, LLC
Temple-Bowron House
1507 Pine Street
Boulder, Colorado 80302
ARTICLE IX
INDEMNIFICATION
The Corporation may and shall indemnify each director, officer and any
employee or agent of the Corporation, his heirs, executors and administrators,
against any and all expenses or liability reasonably incurred by him in
connection with any action, suit or proceeding to which he may be a party by
reason of his being or having been a director, officer, employee or agent of
the Corporation to the full extent required or permitted by the Colorado
Business Corporation Act.
ARTICLE X
CORPORATE OPPORTUNITIES
The officers, directors and other members of management of this
Corporation shall be subject to the Doctrine of Corporate Opportunities only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined from time to time by the Corporation's
Board of Directors as evidenced by resolutions appearing in the Corporation's
Minutes. When such areas of interest are delineated, all such business
opportunities within such areas or interests which come to the attention of
the officers, directors and other members of management of this Corporation
shall be disclosed promptly to this Corporation and made available to it. The
Board of Directors may reject any business opportunity presented to it and
therefore any officer, director or other member of management may avail
himself of such opportunity. Until such time as this Corporation, through its
Board of Directors, has designated an area of interest, the officers,
directors and other members of management of this Corporation shall be free to
engage in such areas of interest on their own and this Doctrine shall not
limit the rights of any officer, director or other member of this Corporation
to continue a business existing prior to the time that such area of interest
is designated by this Corporation, other than an officer, director or member
of management, from any duty which he may have to the Corporation.
ARTICLE XI
PARTIAL LIQUIDATION
The Board of Directors may, from time to time, distribute to the
Corporation's shareholders, in partial liquidation, out of stated capital or
capital surplus of the Corporation, a portion of its assets, in cash or
properties if (a) at the time the Corporation is solvent; (b) such
distribution would not render the Corporation insolvent; (c) all cumulative
dividends on all preferred or special classes of shares entitled to
preferential dividends shall have been paid fully; (d) the distribution would
not reduce the remaining net assets of the Corporation below the aggregate
preferential amount payable in the amount of voluntary liquidation to the
holders of shares having preferential rights to the assets of the Corporation
in the event of liquidation; (e) the distribution is not made out of capital
surplus arising from unrealized depreciation of assets of re-evaluation of
surplus; (f) the distribution is identified as a distribution in partial
liquidation and the amount per share is disclosed to the shareholders
receiving the same concurrently with the distribution thereof.
ARTICLE XII
DIRECTORS' LIABILITY
a. A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Colorado as the same exists or may hereafter be amended.
b. Any repeal or modification of the foregoing paragraph A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, the above-named incorporator has hereunto set his
hand and seal this 23rd day of November, 1999.
- ------------------------------- ------------------------------
Bradley Smith, Registered Agent Clifford L. Neuman,
Incorporator
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
I, _____________________________, a Notary Public, hereby certify that on
the 23rd day of November, 1999, personally appeared before me Clifford L.
Neuman, who, being by me first duly sworn, declared that he was the person who
signed the foregoing document as the incorporator and that the statements
therein contained are true.
My commission expires:__________________
--------------------------------
Notary Public
<PAGE>
Mail to: Secretary of State For office use only
002
Corporations Section
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894-2251
MUST BE TYPED Fax (303) 894-2242
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
Please include a typed TO THE
self-addressed envelope ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Innovative Recreational Dealerships,
Inc.
SECOND: The following amendment to the Articles of Incorporation was adopted
on January 7, 2000, as prescribed by the Colorado Business Corporation Act, in
the manner marked with an X below:
____ No shares have been issued or Directors Elected - Action by
Incorporators
X No shares have been issued but Directors Elected - Action by
- ----- Directors
____ Such amendment was adopted by the board of directors where shares
have been issued and shareholder action was not required.
____ Such amendment was adopted by a vote of the shareholders. The
number of shares voted for the amendment was sufficient for
approval.
THIRD: If changing corporate name, the new name of the corporation is iRV
Dealerships, Inc.
FOURTH: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in
the amendment shall be effected, is as follows:
If these amendments are to have a delayed effective date, please list that
date:_______________________________________________________________
(Not to exceed ninety (90) days from the date of filing)
INNOVATIVE RECREATIONAL DEALERSHIPS, INC,
Bradley Smith, President
<PAGE>
ARTICLES OF INCORPORATION
OF
iRV - KNOXVILLE, INC.
The undersigned natural person of the age of eighteen years or more,
acting as incorporator of a corporation under the Colorado Business
Corporation Act, adopts the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
The name of the Corporation is to be iRV - Knoxville, Inc.
ARTICLE II
TERMS OF EXISTENCE
The Corporation shall exist in perpetuity, from and after the date of
filing this Certificate of Incorporation with the Secretary of State of the
State of Colorado, unless sooner dissolved or disincorporated according to
law.
ARTICLE III
OBJECT, PURPOSES AND POWERS
Section 1. General Objects and Purposes. To engage in any lawful
activity as may from time to time be authorized by the Corporation's Board of
Directors, which is not prohibited by law or by these Articles of
Incorporation. To undertake such other activities as the Board of Directors
may deem reasonable or necessary in the furtherance of the general or specific
purposes and powers of the Corporation.
Section 2. General Powers. Further, the Corporation shall have and may
exercise all the rights, powers and privileges now or hereafter conferred upon
corporations organized under the laws of the State of Colorado and in addition
may do everything necessary, suitable, proper for, or incident to, the
accomplishment of any of these corporate purposes.
Section 3. Specific Purposes and Powers. Subject to any specific
written limitations or restrictions imposed by the Colorado Business
Corporation Act or by other law, or by these Articles of Incorporation, and
not in limitation of any of the statutory powers herein granted, the
Corporation shall have the following purposes and exercise the following
specific powers:
a. To Deal in Real Property. To acquire, hold, own, improve, manage,
operate, let as lessor, sell, convey or mortgage, or otherwise deal with,
either alone or in conjunction with others, real estate of every right, title
or interest, character and description whatsoever and wheresoever situated.
b. To Deal in Personal Property, Generally. To acquire, hold, own,
manage, operate, mortgage, pledge, hypothecate, exchange, sell, deal in and
dispose of, either alone or in conjunction with others, personal property and
commodities of every right, title or interest, character and description
whatsoever and wheresoever situated.
c. To Enter into Profit Sharing Arrangements and Partnerships. To
enter into any lawful arrangement for sharing profits, union of interest,
reciprocal association, or cooperative association with any corporation,
association, partnership, individual, or other legal entity for the carrying
on of any business, the purpose of which is similar to the Purposes set forth
in Section 1 of this Article, and to enter into any general or limited
partnership, the purpose of which is similar to such Purposes.
d. To Execute Guarantees. To make any guaranty respecting stocks,
dividends, securities, indebtedness, interest, contracts or other obligations
created by any individual, partnership, association, corporation, or other
entity, to the extent that such guaranty is made in pursuance to the Purposes
set forth in Section 1 of this Article.
e. To Borrow Funds. To borrow or raise monies for any of the Purposes
of the Corporation set forth in Section 1 of this Article, and, from time to
time, without limit as to amount, to execute, accept, endorse, and deliver as
evidence of such borrowing, all kinds of securities, including, but without
limiting the generality thereof, promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness; and to secure the payment and full performance
of such securities by mortgage on, or pledge, conveyance or assignment in
trust of, the whole, or any part of the assets of the Corporation.
f. To Lend Funds. To lend money to individuals or other business
entities and to charge interest for the same and to engage in the business,
buying, loaning money upon, selling, transferring, assigning, discounting,
borrowing money upon and pledging as collateral, and otherwise dealing as
principal agent or broker in bills of lading, warehouse receipts, evidence of
deposit and storage of personal property, bonds, stocks, promissory notes,
commercial paper account, invoices, choses in action, interest in estates,
contracts, mortgages on real or personal property, pledges of personal
property and other evidence of indebtedness of persons, firms or corporations,
and owning, holding or conveying such real estate as may be necessary in the
operating of its business, and purchasing, acquiring and holding shares of
stock in other corporations, domestic and foreign, and doing all things
incidental thereto; to do a general brokerage business, to buy, sell and deal
in all kinds of listed and unlisted stocks and bonds on commission; not for
the purpose of carrying on the business of banking, insurance or the operation
of railroads or the discounting of bills and notes, or the buying and selling
of bills of exchange.
Section 4. All the foregoing listed powers and/or purposes of the
Corporation are both purposes and powers of the Corporation and shall be
construed as such.
ARTICLE IV
CAPITAL STOCK
Section 1. The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred and fifty million
(150,000,000) shares of which one hundred million (100,000,000) shares shall
be designated common stock, having a par value of one tenth of one cent
($.001) each, and of which fifty million (50,000,000) shares shall be
designated preferred stock of the Corporation, having a par value of one cent
($.01) each. All or any part of the common stock may be issued by the
Corporation from time to time and for such consideration and on such terms as
may be determined and fixed by the Board of Directors, without action of the
stockholders, as provided by law, unless the Board of Directors deems it
advisable to obtain the advice of the stockholders. Said stock may be issued
for money, property, services or other lawful consideration, and when issued
shall be issued as fully paid and non-assessable. The private property of
stock holders shall not be liable for Corporation debts. Subject to the
preferences, rights and restrictions which may be ascribed to the preferred
stock of the Corporation by the Board of Directors, the preferences and
relative participating optional or other special rights and qualifications,
limitations or restrictions thereof of the common stock of the Corporation are
as follows:
a. Dividends. Dividends may be paid upon the common stock, as and when
declared by the Board of Directors, out of funds of the Corporation legally
available therefor.
b. Payment on Liquidation. Upon any liquidation, dissolution and
termination of the Corporation, and after payment or setting aside of any
amount sufficient to provide for payment in full of all debts and liabilities
of, and other claims against the Corporation, the assets shall be distributed
pro rata to the holders of the common stock.
c. Voting Rights. At any meeting of the stockholders of the
Corporation each holder of Common Stock shall be entitled to one vote for each
share outstanding in the name of such holder on the books of the Corporation
on the date fixed for determination of voting rights.
The stockholders, by vote or concurrence of a majority of the
outstanding shares of the Corporation entitled to vote on the subject matter,
may take any action which would otherwise require a two-thirds (2/3) vote
under the Colorado Business Corporation Act.
d. Cumulative Voting. Cumulative voting shall not be allowed in the
election of directors or for any other purpose.
e. Pre-Emptive Rights. Unless otherwise determined by the Board of
Directors, no stockholder of the Corporation shall have pre-emptive rights to
subscribe for any additional shares of stock, or for other securities of any
class, or for rights, warrants or options to purchase stock for the scrip, or
for securities of any kind convertible into stock or carrying stock purchase
warrants or privileges.
f. Restrictions on Sale or Disposition. All lawful restrictions on the
sale or other disposition of shares may be placed upon all or a portion or
portions of the certificates evidencing the Corporation's shares.
Section 2. The preferred stock of the Corporation shall be issued in
one or more series as may be determined from time to time by the Board of
Directors. In establishing a series the Board of Directors shall give to it a
distinctive designation so as to distinguish it from the shares of all other
series and classes, shall fix the number of shares in such series, and the
preferences, rights and restrictions thereof. All shares of any one series
shall be alike in every particular. All series shall be alike except that
there may be variation as to the following: (1) the rate of distribution, (2)
the price at and the terms and conditions on which shares shall be redeemed,
(3) the amount payable upon shares for distributions of any kind, (4) sinking
fund provisions for the redemption of shares, and (5) the terms and conditions
on which shares may be converted if the shares of any series are issued with
the privilege of conversion, and (6) voting rights except as limited by law.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation will be
at 5373 North Union Boulevard, Suite 100, Colorado Springs, Colorado 80918.
The name of the initial registered agent at such address is Bradley Smith.
The principal office of this Corporation and its principal place of business
is the same address as that of the initial registered office. The Corporation
may conduct part or all of its business in the County of El Paso, or the State
of Colorado, or the United States, or of the world, and it may hold, purchase,
mortgage, lease and convey real and personal property in any of such places.
ARTICLE VI
DIRECTORS
The business and affairs of this Corporation and the management thereof
shall be vested in a Board of Directors consisting of not less than one (1)
nor more than ten (10) members. Directors need not be stockholders of the
Corporation. The persons, together with their addresses, who shall act as such
directors for the first year of existence of this Corporation and until their
successors shall be duly elected and qualified will be:
Bradley Smith John Deufel
5373 North Union Boulevard, 5373 North Union Boulevard,
Suite 100 Suite 100
Colorado Springs, CO 80918 Colorado Springs, CO 80918
Windy Haddad
5373 North Union Boulevard,
Suite 100
Colorado Springs, CO 80918
The number of directors may be increased from time to time, within the
limits stated above, by action of the majority of the whole Board of Directors
but the number of Directors may thereafter be decreased only by the
stockholders of the Corporation at an annual or special meeting thereof.
ARTICLE VII
RIGHTS OF DIRECTORS, OFFICERS AND MANAGEMENT
TO CONTRACT WITH CORPORATION
No contract or other transaction between the Corporation and any other
corporation whether or not a majority of the shares of capital stock of such
other corporation is owned by this Corporation, and no act of this Corporation
shall be in any way affected or invalidated by the fact that any of the
directors, officers or other members of the management of this Corporation are
pecuniarily or otherwise interested in or are directors, officers or members
of management of such other corporation. Any director, officer or other
member of management of this Corporation individually, or any firm of which
such director, officer or member of management may be a member, may be a party
to, or may be pecuniarily or otherwise interested in, any contract or
transaction of this Corporation, provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of this Corporation or a majority thereof. Any director of
this Corporation who is also a director, officer or member of management of
such other corporation, or who is so interested, may be counted in determining
the existence of a quorum at any meeting of the Board of Directors of this
Corporation that shall authorize such contract or transaction, and may vote at
any such meeting to authorize such contract or transaction, with like force
and effect as if he were not such director, officer or member of management of
such other corporation or not so interested.
ARTICLE VIII
INCORPORATOR
The name and address of the incorporator is:
Clifford L. Neuman, Esq.
Neuman & Drennen, LLC
Temple-Bowron House
1507 Pine Street
Boulder, Colorado 80302
ARTICLE IX
INDEMNIFICATION
The Corporation may and shall indemnify each director, officer and any
employee or agent of the Corporation, his heirs, executors and administrators,
against any and all expenses or liability reasonably incurred by him in
connection with any action, suit or proceeding to which he may be a party by
reason of his being or having been a director, officer, employee or agent of
the Corporation to the full extent required or permitted by the Colorado
Business Corporation Act.
ARTICLE X
CORPORATE OPPORTUNITIES
The officers, directors and other members of management of this
Corporation shall be subject to the Doctrine of Corporate Opportunities only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined from time to time by the Corporation's
Board of Directors as evidenced by resolutions appearing in the Corporation's
Minutes. When such areas of interest are delineated, all such business
opportunities within such areas or interests which come to the attention of
the officers, directors and other members of management of this Corporation
shall be disclosed promptly to this Corporation and made available to it. The
Board of Directors may reject any business opportunity presented to it and
therefore any officer, director or other member of management may avail
himself of such opportunity. Until such time as this Corporation, through its
Board of Directors, has designated an area of interest, the officers,
directors and other members of management of this Corporation shall be free to
engage in such areas of interest on their own and this Doctrine shall not
limit the rights of any officer, director or other member of this Corporation
to continue a business existing prior to the time that such area of interest
is designated by this Corporation, other than an officer, director or member
of management, from any duty which he may have to the Corporation.
ARTICLE XI
PARTIAL LIQUIDATION
The Board of Directors may, from time to time, distribute to the
Corporation's shareholders, in partial liquidation, out of stated capital or
capital surplus of the Corporation, a portion of its assets, in cash or
properties if (a) at the time the Corporation is solvent; (b) such
distribution would not render the Corporation insolvent; (c) all cumulative
dividends on all preferred or special classes of shares entitled to
preferential dividends shall have been paid fully; (d) the distribution would
not reduce the remaining net assets of the Corporation below the aggregate
preferential amount payable in the amount of voluntary liquidation to the
holders of shares having preferential rights to the assets of the Corporation
in the event of liquidation; (e) the distribution is not made out of capital
surplus arising from unrealized depreciation of assets of re-evaluation of
surplus; (f) the distribution is identified as a distribution in partial
liquidation and the amount per share is disclosed to the shareholders
receiving the same concurrently with the distribution thereof.
ARTICLE XII
DIRECTORS' LIABILITY
a. A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Colorado as the same exists or may hereafter be amended.
b. Any repeal or modification of the foregoing paragraph A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, the above-named incorporator has hereunto set his
hand and seal this 20th day of January, 2000.
- -------------------------------- --------------------------------
Bradley Smith, Registered Agent Clifford L. Neuman, Incorporator
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
I, Gini Goldstein, a Notary Public, hereby certify that on the 20th day
of January, 2000, personally appeared before me Clifford L. Neuman, who,
being by me first duly sworn, declared that he was the person who signed the
foregoing document as the incorporator and that the statements therein
contained are true.
My commission expires: 10/10/2003
---------------------------------
Notary Public
<PAGE>
BY-LAWS OF
iRV - KNOXVILLE, INC.
ARTICLE I
Section 1. The following paragraphs contain provisions for the
regulation and management of iRV - Knoxville, Inc., a Colorado corporation.
Section 2. In the event that there is a conflict between a provision
of these By-Laws and a mandatory provision of the Articles of Incorporation of
this corporation, then said mandatory provision of the Articles of
Incorporation of this corporation shall control.
ARTICLE II
PLACE OF BUSINESS
Section 1. The registered office of the corporation, which shall also
be the principal office of said corporation, shall be 5373 North Union
Boulevard, Suite 100, Colorado Springs, Colorado 80918. This designation
shall be without prejudice to the power and right of the corporation to
conduct and transact any of its affairs or business in other cities, states,
territories, countries, or places.
Section 2. The registered agent of the corporation in the State of
Colorado shall be Bradley Smith.
Section 3. The registered office and registered agent of the
corporation may be changed from time to time in the manner prescribed by law
without amending these By-Laws.
ARTICLE III
OFFICERS
Section 1. NUMBER. The officers of this corporation may consist of a
President, a Secretary, a Treasurer, and such other officers, including one or
more Vice Presidents, and, if desired, a Chief Executive Officer, as may be
appointed in accordance with the provisions of Section 3 of this Article. One
person may hold any two of said offices, but no such officer shall execute,
acknowledge, or verify any instrument in more than one capacity if such
instrument is required by law or by these By-Laws or by a resolution of the
Board of Directors to be executed, acknowledged or verified by any two or more
officers.
Section 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers
of this corporation shall be chosen annually by the Board of Directors. Each
officer, except such officer as may be appointed in accordance with the
provisions of Section 3 of this Article, shall hold his office until his
successors shall have been removed in the manner hereinafter provided.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may appoint
such other officers to hold office for such period, have such authority and
perform such duties as the Board of Directors may from time to time determine.
The Board of Directors may delegate to any officer the power to appoint any
such subordinate officers.
Section 4. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Such removal shall be by vote of a majority of the whole
Board of Directors at a regular meeting or a special meeting of the Board of
Directors called for this purpose.
Section 5. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or
Secretary of the corporation. Any such resignation 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 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall be the principal executive officer of the corporation and, subject to
the control of the Board of Directors, shall in general supervise and control
all of the business and affairs of the corporation. He shall preside at all
meetings of the shareholders and all meetings of the Board of Directors; and
shall have general supervision over the affairs of the corporation and over
the other officers.
Section 7. PRESIDENT. The President shall be the chief operating
officer of the corporation. The President shall perform all duties incident
to the office of the President; shall sign all stock certificates and written
contracts of the corporation; and shall perform all such other duties as are
assigned to him from time to time by resolution of the Board of Directors or
the Chief Executive Officer.
Section 8. VICE PRESIDENT. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice President shall
perform the duties of the President, and when so acting, shall have all the
powers of, and be subject to, all of the restrictions upon the President. The
Vice President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 9. SECRETARY. The secretary shall be sworn to the faithful
discharge of his duty. He shall:
a. Keep the minutes of the meetings of the shareholders and of the
Board of Directors in books provided for that purpose;
b. See that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
c. Be custodian of the records and of the seal of the corporation and
see that such seal is affixed to all stock certificates prior to
their issue and to all documents, the execution of which on behalf
of the corporation under its seal is duly authorized in accordance
with the provisions of these By-Laws.
d. Have charge of the stock books of the corporation and keep or cause
to be kept the stock and transfer books in such manner as to show at
any time the amount of the stock of the corporation issued and
outstanding, the manner in which and the time when such stock was
paid for, the names, alphabetically arranged, and the addresses of
the holders of record; and exhibit during the usual business hours
of the corporation to any director, upon application, the original
or duplicate stock ledger;
e. Sign with the President, or a Vice President, certificates of stock
of the corporation;
f. See that the books, reports, statements, certificates, and all other
documents and records of the corporation required by law are
properly kept and filed;
g. In general, perform all duties incident to the office of Secretary
and such other duties as, from time to time, may be assigned to him
by the Board of Directors or by the President.
Section 10. TREASURER. The Treasurer shall:
a. Have charge and custody of, and be responsible for, all funds and
securities of the corporation;
b. From time to time render a statement of the condition of the
finances of the corporation at the request of the Board of
Directors;
c. Receive and give receipt for monies due and payable to the
corporation from any source whatsoever;
d. In general, perform all duties incident to the office of Treasurer,
and such other duties as from time to time may be assigned to him by
the Board of Directors or by the President.
Section 11. SALARIES. 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.
ARTICLE IV
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of this
corporation and the management thereof shall be vested in a Board of Directors
consisting of not less than one (1) nor more than ten (10) members.
Section 2. NUMBER AND QUALIFICATION. The number of directors of this
corporation shall be not less than one (1) and not more than ten (10). The
number of directors may be increased or decreased from time to time within the
limits stated above by the action of the majority or the whole Board of
Directors. Directors shall be elected for a term of one (1) year and shall
serve until the election and qualification of their successors, unless they
sooner resign. At the first annual meeting of the stockholders and at each
annual meeting thereafter, the stockholders shall so elect directors to hold
office until the next succeeding annual meeting. The directors need not be
residents of the State of Colorado or stockholders of the corporation.
Section 3. EXECUTIVE COMMITTEE. The Board of Directors by resolution
passed by a majority of the whole Board may designate two or more of their
number to constitute an executive committee, which shall have and exercise,
subject to limitations, if any, as may be prescribed herein or by resolution
of the Board of Directors, the powers of the Board of Directors and the
management of the business and affairs of the corporation; provided such
executive committee shall act only at such times as the Board of Directors is
not in session and in no event to the exclusion of the Board of Directors at
any time to act as a Board upon any business of the corporation.
Section 4. VACANCY. Any director may resign at any time by giving
written notice to the President or to the Secretary of the corporation. Such
resignation 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. Any vacancy occurring in the Board of
Directors maybe filled by the affirmative majority vote of the whole Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. A director chosen to fill a
position resulting from a vacancy or an increase in the number of directors
shall hold office until the next annual meeting of stockholders.
Section 5. REMOVAL. Any director may be removed from office, either
with or without cause, at any time, and another person may be elected to his
place, to serve for the remainder of his term, at any special meeting of
shareholders called for that purpose, by a majority of all of the shares of
stock outstanding and entitled to vote. In case any vacancy so created shall
not be filled by the shareholders at such meeting, such vacancy may be filled
by the affirmative vote of a majority of the remaining directors though less
than a quorum.
Section 6. MEETINGS. The regular meeting of the Board of Directors
shall be held immediately following the annual shareholder's meeting. The
Board of Directors shall meet at such other time or times as they may from
time to time determine.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any spe0cial meeting of the
Board of Directors called by them.
Section 8. PLACE OF MEETINGS. The Board of Directors may hold its
meetings at such place or places within or without the State of Colorado as
the Board may from time to time determine, or, with respect to its meetings,
as shall be specified or fixed in respective notices or waivers of notice of
such meetings.
Section 9. SPECIAL MEETINGS: NOTICE. Special meetings of the Board
of Directors shall be held whenever called by the President or by two of the
directors. Notice of the time and place of holding said special meeting of
the Board of Directors shall be given to each director by either
(i) registered mail, return receipt requested, deposited in the mail at least
ten (10) days prior to the date of said special meeting, or (ii) guaranteed
overnight delivery by a nationally-used courier service at least three (3)
days prior to the date of said special meeting, or (iii) by telex or facsimile
copy sent at least forty-eight (48) hours prior to the time and date of such
special meeting. Attendance of a director at such special meeting shall
constitute a waiver of notice of such special meeting, except where a director
attends the meeting for the express purpose of objecting to the transacting of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular meeting or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
Section 10. PRESENCE OF MEETINGS. Members of the Board, or of any
committee thereof, may participate in a meeting of the Board or such committee
by means of conference telephone or similar communications equipment, by means
of which all persons participating in the meeting can hear one another.
Participation in a meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. QUORUM AND MANNER OF ACTING. A majority of the members of
the Board of Directors shall form a quorum for the transaction of business at
any regular or special meeting of the Board of Directors. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. If the vote of a lesser number is
required for a specific act by the Articles of Incorporation, or by another
provision of these By-Laws, then that lesser number shall govern. In the
absence of a quorum, a majority of the directors present may adjourn the
meeting from time to time until a quorum be had.
Section 12. COMPENSATION. By resolution of the Board of Directors,
the directors may be paid their expenses, if any, for attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
Section 13. ELECTION OF OFFICERS. At the first meeting of the Board
of Directors after the annual election, the President, Vice President, and
Secretary and Treasurer shall be elected to serve for the ensuing year and
until the election of their respective successors, and an executive committee
may be elected. Election shall be by ballot, and the majority of the votes
cast shall be necessary to elect. Any vacancies that occur may be filled by
the Board of Directors for the unexpired term. An officer may be removed at
any time by the majority vote of the directors present at any regular or
special meeting of said Board of Directors at which a quorum is present. The
Board of Directors shall have the power to fill officer vacancies, create new
officer positions, and adjust salaries of officers as said Board from time to
time shall deem necessary, all in accordance with the Articles of
Incorporation.
Section 14. REPORTING. At each annual stockholder's meeting, the
directors shall submit a statement of business done during the preceding year,
together with a report of the general financial condition of the corporation,
and of the condition of its tangible property.
ARTICLE V
BOOKS AND RECORDS
Section 1. The corporation shall keep either within or without the
State of Colorado, complete books and records of account and shall keep
minutes of the proceedings of its stock holders and the Board of Directors.
Section 2. The corporation shall keep at its registered office or
principal place of business, a record of its stock holders, giving the names
and addresses of all of the stock holders and the number and class of the
shares held by each.
Section 3. The books, records of account, financial statements and
other documents of the corporation shall be available to such persons who have
been designated by law as having a right thereto, and said books, records of
account, financial statements and documents shall be made available to such
persons in the manner and in accordance with the procedures established by
law.
ARTICLE VI
STOCK
Section 1. AUTHORIZATION. The authorized shares of stock of the
corporation shall be as provided by the Articles of Incorporation.
Section 2. CERTIFICATE OF SHARES. The shares of stock of the
corporation shall be represented by certificates signed by the Chief Executive
Officer, President or the Vice President and the Secretary or an assistant
Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. The signatures of the President or Vice
President and the Secretary or Assistant Secretary upon a certificate may be
facsimile if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its issue.
Section 3. ISSUANCE OF CERTIFICATES. Each certificate representing
shares shall state upon the face of same that the corporation is organized
under the laws of the State of Colorado, the name of the person to whom the
certificate is issued, the number and class of shares, and the designation of
the series, if any, which such certificate represents. No certificate shall
be issued for any shares until such shares are fully paid and when issued
shall bear the notation that the certificate is issued as a fully paid and
non-assessable certificate of stock.
Section 4. TRANSFER OF SHARES. Transfer of shares of the corporation
shall be made only on the stock transfer 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
shares. Upon surrender to the corporation or to a transfer agent of the
corporation of a certificate of stock duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of shares shall
be entered on the stock book of the corporation which shall be kept at its
principal office, or by its registrar duly appointed.
Section 5. Transfer Agent. The secretary of the corporation shall
act as transfer agent of the certificates representing the shares of the
corporation. The Secretary shall maintain a stock transfer book, the stubs in
which shall set forth, among other things, the names and addresses of the
holders of all issued shares of the corporation, the number of shares held by
each, the certificate numbers representing such shares, the date of issue of
the certificates representing such shares, and whether or not such shares
originate from original issue or from transfer. The names and addresses of
the shareholders as they appear on the stubs of the stock transfer book shall
be conclusive evidence as to who are the shareholders of record and as such
entitled to receive notice of the meetings of shareholders; to vote at such
meetings; to examine the list of the shareholders entitled to vote at
meetings; to receive dividends; and to own, enjoy and exercise any other
property rights deriving from such shares against the corporation. Each
shareholder shall be responsible for notifying the secretary in writing of any
change in his name or address and failure so to do will relieve the
corporation, its directors, officers and agents, from liability for failure to
direct notices or other documents, or to pay over or transfer dividends or
other property or rights, to a name and address other than the name and
address appearing on the stub of the stock transfer book.
The Board of Directors may at its discretion, appoint instead of the
secretary of the corporation, one or more transfer agents, registrars and
agents outside the corporation for making payment upon any class of stock,
bond, debenture, or other security of the corporation. Such agents and
registrars may be located either within or outside the State of Colorado.
They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
Section 6. FRACTIONAL SHARES. The corporation may, but shall not be
obliged to, issue a certificate for a fractional share, and by action by its
Board of Directors, may issue in lieu thereof scrip in register or bearer form
which shall entitle the holder to receive a certificate for a full share upon
the surrender of such scrip aggregated to a full share. The rights and
obligations of persons holding said fractional shares or scrip shall be as are
contained in any applicable provision of these By-Laws, Articles of
Incorporation, or laws of the State of Colorado.
Section 7. TREASURY SHARES. Treasury shares of stock shall be held
by the corporation subject to the disposal of the Board of Directors and shall
neither vote nor participate in dividends.
Section 8. LIEN. The corporation shall have a first lien on all
shares of its stock and upon all dividends declared upon same for any
indebtedness of the respective holders thereof of the corporation.
Section 9. LOST CERTIFICATES. In cases of loss or destruction of a
certificate of stock, no new certificates shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors of such loss or
destruction, and, at the election of a majority of the Board of Directors,
upon giving satisfactory security by bond or otherwise, against loss to the
corporation. Any such new certificate shall be plainly marked "Duplicate" on
its face.
Section 10. CONSIDERATION AND PAYMENT FOR SHARES. Shares having a par
value shall be issued for such consideration, expressed in dollars but not
less than the par value thereof, as shall be fixed from time to time by the
Board of Directors. Shares without par value shall be issued for such
consideration expressed in dollars as shall be fixed from time to time by the
Board of Directors. Treasury shares shall be disposed of for such
consideration expressed in dollars as may be fixed from time to time by the
Board of Directors. Such consideration may consist, in whole or in part, of
money, other property, tangible or intangible, or labor or services actually
performed for the corporation, but neither promissory notes nor future
services shall constitute payment or part payment for shares.
ARTICLE VII
SHAREHOLDERS
Section 1. ANNUAL MEETING. The regular meeting of the shareholders
of the corporation shall be held at a time and place to be designated by the
President, Vice President, or the Board of Directors, provided, however, that
whenever such day shall fall upon a Sunday or a legal holiday, the meeting
shall be held on the next succeeding business day. At the regular annual
meeting of the shareholders, the directors for the ensuing year shall be
elected. The officers of the corporation shall present their annual reports
and the Secretary shall have on file for inspection and reference, an
authentic list of the stockholders, giving the amount of stock held by each as
shown by the stock books of the corporation ten (10) days before the annual
meeting.
Section 2. SPECIAL MEETING. Special meetings of the shareholders may
be called at any time by the President, any member of the Board of Directors,
or by the holders of not less than ten (10%) percent of all of the shares
entitled to vote at said special meeting. The Board of Directors may
designate any place as the place for any annual meeting or for any special
meeting called by the Board of Directors. If a special meeting shall be
called otherwise than by the Board of Directors, the place of meeting shall be
the principal office of the corporation.
Section 3. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting, and in case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) nor more than fifty (50) days before the date of the
meeting, either personally, or by mail, by or at the discretion of the
President, the Secretary, or the director or the person calling the meeting,
to each stockholder of record entitled to vote at such meeting, except that if
the authorized capital stock is to be increased, at least thirty (30) days
notice shall be given. If mailed, such notice shall be deemed to be delivered
when deposited in the U.S. Mails and addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid.
Section 4. CLOSING TRANSFER BOOKS. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shares for any other purpose,
the Board of Directors may provide that the stock transfer books shall be
closed for any stated period not exceeding fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, shall be closed
for at least ten (10) days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of such shareholders, such
date in any case to be not more than fifty (50) days and in the case of a
meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action, requiring such determination of shareholders, or
shareholders entitled to receive payment of a dividend, the day on which
notice of the meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such a determination shall apply to
any adjournment thereof. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of shareholders
entitled to vote at any such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list for a period of ten (10) days prior to such meeting, shall be kept
on file at the principal office of the corporation. The original stock
transfer books shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders.
Section 5. ELECTION OF DIRECTORS. At each annual meeting of the
shareholders of the corporation, the directors shall be elected who shall
serve until their successors are duly elected and qualified, unless they
sooner resign. Election of directors shall be by such of the shareholders as
attend the annual meeting, either in person or by proxy, provided that if the
majority of stock is not represented, said meeting may be adjourned by the
shareholders present for a period not exceeding sixty (60) days at any one
adjournment. At each election of directors, cumulative voting shall not be
allowed. In the election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, are elected to the board of directors.
Section 6. QUORUM. A majority of the outstanding stock exclusive of
treasury stock, shall be necessary to constitute a quorum at meetings of the
shareholders. If a quorum is present at any meeting, a matter other than the
election of directors shall be approved if the votes cast favoring the action
exceed the votes cast opposing the action, unless a greater number is required
by the Articles of Incorporation of the Company. In the absence of a quorum,
those present may adjourn the meeting from day to day but not exceeding sixty
(60) days.
Section 7. PROXIES. Any shareholder entitled to vote may be
represented at any regular or special meeting of the shareholders by a duly
executed proxy.
ARTICLE VIII
WAIVER OF NOTICE
Section 1. DIRECTORS AND OFFICERS. Unless otherwise provided by law,
whenever any notice is required to be given to any director or officer of the
corporation under the provisions of these By-Laws or under the provisions of
the Articles of Incorporation, a 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.
Section 2. SHAREHOLDERS. No notice of the time, place or purpose of
any annual, regular, or special meeting of the shareholders need be given if
all shareholders of record on the date said meeting is held waive such notice
in writing either before or after the regular, or special meeting of the
shareholders, such meeting shall be deemed to have been legally and duly
called, noticed, held, and conducted.
ARTICLE IX
ACTION WITHOUT A MEETING
Section 1. Any action required by the laws of the State of Colorado,
the Articles of Incorporation, or by these By-Laws, to be taken at a meeting
of the directors or stockholders of this corporation, or any action which may
be taken at a meeting of the directors or stockholders, may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all the directors or stockholders entitled to vote with respect to
the subject matter thereof. Such consent shall have the same force and effect
as a unanimous vote of the directors or stockholders, and may be stated as
such in any Articles or documents filed with the Secretary of State under the
law of the State of Colorado.
ARTICLE X
CONTRACT, LOANS, CHECKS AND DEPOSITS
Section 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 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.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the corporation shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE XI
EXECUTION OF INSTRUMENTS
Section 1. EXECUTION OF INSTRUMENTS. The President shall have power
to execute on behalf and in the name of the corporation any deed, contract,
bond, debenture, note or other obligations or evidences or indebtedness, or
proxy, or other instrument requiring the signature of an officer of the
corporation, except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. Unless so authorized, no officer, agent or employee shall have
any power or authority to bind the corporation in any way, to pledge its
credit or to render it liable pecuniarily for any purpose or in any amount.
Section 2. CHECKS AND ENDORSEMENTS. All checks and drafts upon the
funds to the credit of the corporation in any of its depositories shall be
signed by such of its officers or agents as shall from time to time be
determined by resolution of the Board of Directors which may provide for the
use of facsimile signatures under specified conditions, and all notes, bills
receivable, trade acceptances, drafts, and other evidences of indebtedness
payable to the corporation shall, for the purposes of deposit, discount or
collection, be endorsed by such officers or agents of the corporation or in
such manner as shall from time to time be determined by resolution of the
Board of Directors.
ARTICLE XII
LOANS TO DIRECTORS AND OFFICERS
Loans to employees or officers of the corporation, guarantees of their
obligations or other similar assistance to these employees or officers (except
those employees or officers who are directors of the corporation), shall be
contracted on behalf of the corporation only upon the specific authorization
of the Board of Directors of the corporation. Unless otherwise provided in
the Articles of Incorporation, loans to directors, guarantees of their
obligations, or other similar assistance to the directors shall be contracted
on behalf of the corporation only upon the specific authorization of the Board
of Directors and the affirmative vote of the holders of two-thirds (2/3) of
the outstanding shares of the corporation which are entitled to vote for
directors. No such loans or guarantees shall be secured by the shares of this
corporation.
ARTICLE XIII
MISCELLANEOUS
Section 1. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal which shall be circular in form and shall have inscribed
thereon the name of the corporation, the state of incorporation, and the words
"Corporate Seal".
Section 2. FISCAL YEAR. The fiscal year of the corporation shall be
as established by the Board of Directors.
Section 3. AMENDMENTS. Subject to repeal or change by action of the
shareholders, the Board of Directors shall have the power to alter, amend, or
repeal the by-laws of the corporation and to make and adopt new by-laws at any
regular meeting of the Board or at any special meeting called for that
purpose.
Section 4. DIVIDENDS. The Board of Directors may, from time to time,
declare, and the corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and its Articles
of Incorporation.
ADOPTED BY THE BOARD OF DIRECTORS this 26th day of January, 2000.
DIRECTORS:
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BRADLEY SMITH
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JOHN DUEFEL
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WINDY HADDAD
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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is entered into on this ______
day of January, 2000, by and between COACH AND CAMPERS OF KNOXVILLE, LLC, a
Tennessee limited liability company ("C&C"), and iRV - KNOXVILLE, INC., a
Colorado corporation ("iRV").
WHEREAS, C&C, iRV and iRV's parent corporation, iRV Dealerships, Inc, a
Colorado corporation ("iRV Dealerships"), have entered into an Asset Purchase
and Sale Agreement, which contemplates the purchase by iRV from C&C of all of
C&C's operational assets (the "Purchase");
NOW THEREFORE, for valuable consideration, the parties do covenant and
agree as follows:
1. Management Services.
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Under the direction and control of Donald C. Hanney II ("Hanney") of
C&C, as hereinafter described, C&C retains iRV as Business Manager of C&C
operations during the term of this Agreement, all in accordance with the
provisions hereof. iRV agrees to become the Business Manager of C&C, and to
perform the services on behalf of C&C, under the direction of C&C's Board of
Directors, as hereinafter set forth. In performing its services and
responsibilities hereunder, iRV shall take instruction and direction from
Hanney, or such other person as Hanney shall appoint or authorize in writing.
2. Services Provided.
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iRV shall, subject to the general supervision of Hanney, perform, at
C&C's expense, all desirable or necessary business functions for and on behalf
of C&C in substantially the manner previously conducted, including
specifically, but not limited to, the following (collectively, the
"Services"):
(a) enter into contracts, leases and other agreements in the normal
course of business;
(b) open bank accounts, sign, accept, endorse and receive notes,
drafts, checks, bills of exchange and commercial papers;
(c) take out insurance;
(d) perform all accounting and disbursing services;
(e) implement and supervise C&C's performance under existing
contracts, and procure and perform new contracts in the ordinary course of
business;
(f) accept and receive notes, drafts, checks, bills of exchange and
commercial papers; purchase insurance; and supervise accounting, disbursing,
and payroll services;
(g) pay and discharge out of funds available therefor the accounts
payable, notes, and other obligations and liabilities of C&C;
(h) furnish Hanney all pertinent reports and information with
respect to the progress of C&C's business on a bi-weekly basis;
(i) employ personnel required for C&C operations, planning and
administration pertaining to labor relations, salaries, wages, working
conditions, hours of work, termination of employment, employee benefits,
safety, recruiting, housing and related matters pertaining to such employees;
(j) purchase, rent or otherwise acquire machinery, equipment and
facilities for the conduct of the business of C&C and sell, abandon or
otherwise dispose of items of machinery, equipment or fixtures that are worn
out, obsolete or no longer useful in the conduct of the business of C&C.
(k) purchase such materials, supplies and services as may be needed
or required in connection with the operations of C&C;
(l) prepare and file with all appropriate governmental authorities
any tax and other reports concerning operations of C&C required by law;
(m) disburse funds, to the extent available, for any taxes imposed
on C&C by virtue of its conduct of its business;
(n) secure and maintain insurance covering insurable risks of C&C,
including risks growing out of personal injuries to or against its employees
or others, risks of fire, and other risks ordinarily insured against in
similar operations, and adjusting losses and claims pertaining to or rising
out of such insurance;
(o) comply with all laws applicable to C&C by virtue of the
operation of the business of C&C, including particularly laws relating to
safety requirements, working conditions, and compensation and benefits to
employees;
(p) apply to appropriate governmental bodies for permits, licenses
and approvals necessary to accomplish the powers and duties of C&C herein set
forth and the filing of all reports and notices with such governmental bodies
as are required by law;
(q) keep full and accurate accounts of all business transactions
entered into on behalf of C&C;
(r) prosecute and defend lawsuits, as necessary, to establish and
protect the rights of C&C or to establish or protect the validity of title to
C&C's real or personal property; and
(s) negotiate loans to or from any other corporation or partnership
with or without security.
3. Clients.
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(a) During the term hereof, any and all new client engagements
obtained or procured shall be deemed iRV clients and contracts or agreements
for services shall be executed in the name of and inure to the benefit of iRV.
(b) Should this Agreement terminate prior to the consummation of
the Purchase, then and in such event (i) all contracts signed during the term
under the iRV name for existing C&C services shall revert to C&C, free of any
claim of iRV, and (ii) all contracts signed under the iRV name for existing
iRV services or services developed by iRV during the term shall remain the
sole and separate property of iRV, free of any claim of C&C. iRV and C&C each
shall indemnify, defend and hold harmless the other from any future liability
under client contracts which inure to each following the termination hereof.
4. Bank Account.
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(a) iRV shall establish a new C&C bank account(s) (the "Bank
Account") in which all revenues received from the operations of C&C shall be
deposited. iRV shall not commingle any of the above described revenues with
any funds or other property of C&C. From the revenues deposited into the Bank
Account, iRV shall (i) reimburse itself twice monthly for all expenses
incurred or paid by iRV in connection with performing the Services hereunder
including, without limitation, expense for salaries, wages, taxes, travel,
lodging and other expenses, (ii) pay itself the management fee provided for in
paragraph 8(a) hereof subject to the terms and conditions thereof, and (iii)
pay appropriate operating expenses with respect to the business. Pending
closing of the Purchase, all funds deposited into the Bank Account shall be
deemed as sole and separate property of C&C, free of any claim, lien or
entitlement of iRV or Discovery. Upon closing and consummation of the
Purchase Agreement, all funds remaining in the Bank Account on the closing
date shall be included in the assets transferred to Discovery pursuant to the
Purchase.
5. Working Capital.
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The parties recognize and agree that pending closing and
consummation of the Purchase, operation of C&C's business may require the
infusion of additional working capital in order to satisfy short term
obligations, trade payables and other liabilities necessary for continued
operations. To the extent that revenues received from operations and
deposited into the Bank Account pursuant to paragraph 3 hereof are
insufficient to meet such working capital requirements, iRV may advance
sufficient funds to C&C to satisfy its immediate working capital requirements
(the "Advances"). All such Advances shall be deemed loans from iRV to C&C,
subject to the following: Should the parties fail to close the Purchase
Agreement prior to the termination of this Agreement, then C&C agrees to repay
to iRV all such Advances, together with interest at the rate of ten percent
(10.0%) per annum, within sixty (60) days of the date of termination of this
agreement. The obligation of C&C to repay the Advances, together with
interest thereon, shall be secured by a security interest in all tangible and
intangible assets of C&C.
6. Key Employees.
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In the performance of the Services assigned to iRV in this
Agreement, iRV shall assign and make available such management and employees
as are necessary in its judgement to perform the services required under this
Agreement. iRV shall determine the authority and duties of the iRV Employees,
and may discharge, suspend, or dismiss any of the iRV Employees. iRV shall
plan and administer all matters pertaining to labor relations, salaries,
wages, working conditions, hours of work, termination of employment, employee
benefits, safety, recruiting, housing, and related matters pertaining to the
iRV Employees, at iRV's own expense and responsibility. iRV Employees
assigned to C&C pursuant to this Agreement shall at all time remain employees
of iRV during their assignment to C&C. iRV shall be solely responsible for
withholding and the payment of all iRV Employees' taxes, including, without
limitation, Federal, State, and local income taxes, FICA contributions, and
unemployment and Workers Compensation payments. Each iRV employee assigned to
C&C shall be advised of, and consent to be bound by, the terms of this
Agreement. However, C&C, through Board Consent, shall have the right to
reject the assignment to C&C of any individual iRV Employee at any time and
for any reason.
7. Compensation.
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(a) In consideration of the Services to be rendered by iRV pursuant
to this Agreement, iRV shall be entitled to receive the net income, if any,
generated by the operations of C&C during the term hereof (the
"Compensation"). Such net income shall be calculated after allowance for
depreciation, amortization and income taxes, and shall be calculated in
accordance with generally accepted accounting principles consistently applied.
(b) Discovery shall have the right and option to utilize any and
all amounts outstanding as Compensation hereunder as a credit against the
purchase price of C&C assets which iRV shall have the right to purchase from
C&C following termination hereof.
8. Costs and Expenses.
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iRV shall be entitled to reimbursement for any and all costs or
expenses incurred by it in connection with performing the Services hereunder,
including, without limitation, expenses for wages and salary, payroll taxes,
workers' compensation premiums, fringe benefits, travel, lodging,
entertainment and other costs or expenses incurred in connection with its
performance hereunder. Such expenses shall be reimbursed twice monthly from
the Bank Account in accordance with the provisions of paragraph 4 above.
9. Termination.
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(a) The term of this Agreement shall be six (6) months, commencing
upon the execution hereof, or until the closing of the Purchase, whichever
occurs first (the "Term"), or unless terminated pursuant to Section 10(b) or
10(c) below ("Termination").
(b) C&C may terminate this Agreement at any time for cause, which
shall include, but not be limited to, the following:
(i) iRV or any assigned employee engaging in fraud,
misappropriation of funds, embezzlement, or other like conduct committed
against C&C;
(ii) any iRV Employee being convicted of a felony;
(iii) iRV's or any iRV Employee's material breach of this
Agreement; or
(iv) the filing for protection, voluntarily or involuntarily,
under the bankruptcy laws by iRV or the dissolution of
iRV.
In addition to, and not in lieu of terminating this Agreement, C&C may
exercise any alternative remedy for the breach at law or in equity including,
without limitation, recovering its reasonable attorney's fees and costs of
litigation.
(c) iRV may terminate this Agreement for cause, which shall
include, but not be limited to, the following:
(i) C&C or any of C&C's employees materially breach this
Agreement; or
(ii) the dissolution of C&C.
Upon Termination of this Agreement pursuant to this Section 10(c), all of
iRV's obligations hereunder, including those of iRV Employees shall cease,
provided, however, iRV's sole remedy for breach shall be the Compensation or
expenses due it under Section 6 for Services performed to the date of
Termination, plus its reasonable attorney's fees and costs of litigation.
10. Indemnification.
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(a) C&C agrees to indemnify, defend and hold harmless iRV, its
agents and employees, from and against any claims, demands, obligations,
liabilities or causes of action, of whatsoever kind or description, based upon
any act or omission alleged to have been performed or omitted in connection
with or arising out of the services to be performed under this Agreement.
(b) iRV agrees to indemnify, defend and hold harmless C&C, its
agents and employees, from and against any claims, demands, obligations,
liabilities or causes of action, of whatsoever kind or description, based upon
any act or omission alleged to have been performed or omitted in connection
with or arising out of the services to be performed under this Agreement.
11. Miscellaneous.
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(a) This Agreement constitutes the entire understanding between the
parties with respect to the subject matter hereof, superseding all previous
communications and negotiations, whether written or oral.
(b) Any amendment or modification or this Agreement shall be in
writing and shall be signed by the parties.
(c) If, for any reason, any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this
Agreement, and each such other provision shall to the full extent consistent
with law continue in full force and effect. If any provision of this
Agreement should be invalid in part, such invalidity shall in no way affect
the rest of such provision, which shall, together with all other provisions of
this Agreement, to the full extent consistent with law, continue in full force
and effect.
(d) All notices, requests, demands, and other communications
hereunder in writing and shall be delivered personally or sent by first class
registered or certified mail, overnight courier service, or telecopy as
follows:
If to C&C, to: Donald Hanney II
10260 Cogdill Road
Knoxville, Tennessee 37932
with a copy to: _______________________________
_______________________________
_______________________________
If to iRV: John Deufel, President
iRV - Knoxville, Inc.
5373 North Union Boulevard, Suite 100
Colorado Springs, Colorado 80918
with copy to: Clifford L. Neuman, Esq.
1507 Pine Street
Boulder, CO 80302
or such other address or telecopy number as may be designated in writing by
any party to the other parties hereto. Any notice or other communication so
transmitted shall be deemed to have been given on the day of delivery, if
delivered personally, on the business day following receipt of telecopy
confirmation, if sent by telecopy, one business day after delivery to an
overnight courier service, or five days after mailing if sent by mail.
(e) This Agreement shall be binding upon and shall inure to the
benefit of, the parties hereto and their permitted successors and assigns.
This Agreement is a personal services contract, and it is expressly agreed
that the rights and interests of iRV and Discovery hereunder may not be sold,
transferred, assigned, pledged, or hypothecated.
(f) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall be deemed
to be one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on
the day and year first above written.
COACH AND CAMPERS, INC., a
Tennessee corporation
By:
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Donald C. Hanney II, President
By: Its Board of Directors
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Donald C. Hanney II
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iRV - KNOXVILLE, INC., a Colorado corporation
By:
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John Deufel, President
