U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL
BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
COLORADO 84-1344320
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(State or other jurisdiction of (I.R.S. Employer I.D. No.)
incorporation)
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Issuer's Telephone Number, including Area Code: (801) 359-2035
Securities registered pursuant to Section 12(b) of the Act: None
Name of each exchange on which registered: None
Securities registered pursuant to Section 12(g) of the Act:
PART I
Item 1. Description of Business.
Business Development
Organization
Gulf & Orient Steamship Company, Ltd. ("Gulf and Orient," our "Company," "we," "us," and "our" or words of similar import) was incorporated in Colorado on May 9, 1996, with an authorized capital of 55,000,000 shares comprised of 50,000,000 shares of common stock, and 5,000,000 shares of non-voting preferred stock, both with no par value per share. We were formed for the primary purpose of engaging in the business of marine transportation and to provide ocean going shipping of goods internationally.
In May of 1996, we issued "restricted securities" (common stock) at our inception, and conducted an offerings under Rule 504 of Regulation D of the Securities and Exchange Commission. This offering was conducted in accordance with Section 11-51-308(1)(p) of the Colorado Revised Statutes that allows "public solicitation" of "accredited investors."
Our proposed business operations were unsuccessful, and we have had no business operations since 1996.
Copies of our Articles of Incorporation and our By-Laws are attached hereto and incorporated herein by reference. See Part III, Item 1.
We are voluntarily filing this Registration Statement so that we can become a "reporting issuer" under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); that will allow us to seek to have our common stock publicly quoted on the OTC Bulletin Board of the National Association of Securities Dealers, Inc. (the "NASD"), instead of the "Pink Sheets," where our common stock is currently quoted under the symbol "GLFO." We cannot ensure that we will be successful in obtaining quotations of our common stock on the OTC Bulletin Board. Our management believes that being a reporting issuer will facilitate this process for us. Presently, the NASD requires companies seeking quotations on the OTC Bulletin Board to be reporting issuers, and management also believes that in the present corporate regulatory climate, being a reporting issuer will soon become a requirement for every nationally recognized medium on which securities of companies are publicly traded. The information required to be filed by us with the Securities and Exchange Commission as a reporting issuer may also provide us with some credibility when seeking to acquire businesses or other acquisition opportunities in the future. There is currently no "established trading market" for our shares of common stock.
Business
We were originally organized for the primary purpose of engaging in the business of marine transportation and to provide ocean going shipping of goods internationally; and since 1996, and currently, we have no business operations.
Our Company's plan of operation for the next 12 months is to:(i)consider
guidelines of industries in which we may have an interest;(ii) adopt a
business plan regarding engaging in the business of any selected industry; and
(iii) to commence such operations through funding and/or the acquisition
of a "going concern" that is engaged in any industry selected. Accordingly,
we are deemed to be a "blank check," or "shell company," as defined in Rule
12b-2 promulgated under the Exchange Act by the Securities and Exchange
Commission.
When and if we will select either an industry or business in which to engage in or complete an acquisition of any kind is presently unknown, and will depend upon many factors, including but not limited to, those that are outlined below.
We are not currently engaged in any substantive business activity, and we have no plans to engage in any such activity in the foreseeable future. In our present form, we may be deemed to be a vehicle to acquire or merge with a business or company. Regardless, the commencement of any business opportunity will be preceded by the consideration and adoption of a business plan by our Board of Directors. We do not intend to restrict our search for business opportunities to any particular business or industry, and the areas in which we will seek out business opportunities or acquisitions, reorganizations or mergers may include, but will not be limited to, the fields of high technology, manufacturing, natural resources, service, research and development, communications, transportation, insurance, brokerage, finance and all medically related fields, among others. We recognize that the number of suitable potential business ventures that may be available to us will be extremely limited, and may be restricted, as to acquisitions, reorganizations and mergers, to entities who desire to avoid what such entities may deem to be the adverse factors related to an initial public offering ("IPO") as a method of going public. The most prevalent of these factors include substantial time requirements, legal and accounting costs, the inability to obtain an underwriter who is willing to publicly offer and sell shares, the lack of or the inability to obtain the required financial statements for such an undertaking, limitations on the amount of dilution to public investors in comparison to the stockholders of any such entities, along with other conditions or requirements imposed by various federal and state securities laws, rules and regulations and federal and state agencies that implement such laws, rules and regulations. Recent amendments to Form 8-K by the Securities and Exchange Commission regarding shell companies and transactions with shell companies that require the filing of all information about an acquired company that would have been required to have been filed had any such company filed a Form 10 or 10-SB Registration Statement with the Securities and Exchange Commission, along with required audited, interim and proforma financial statements, within four business days of the closing of any such transaction, may eliminate many of the perceived advantages of these types of transactions. These types of transactions are customarily referred to as "reverse" reorganizations in which the acquired company's shareholders become controlling shareholders in the acquiring company and the acquiring company becomes the successor to the business operations of the acquired company. These new regulations also deny the use of Form S-8 for the registration of securities of a shell company, and limit the use of this Form to a reorganized shell company until the expiration of 60 days from when any such entity is no longer considered to be a shell company. This prohibition could further restrict opportunities for us to acquire companies that may already have stock option plans in place that cover numerous employees. In such an instance, there may be no exemption from registration for the issuance of securities in any business combination to these employees, thereby necessitating the filing of a registration statement with the Securities and Exchange Commission to complete any such reorganization, and incurring the time and expense costs that are normally avoided by reverse reorganizations.
Any of these types of transactions, regardless of the particular prospect, would require us to issue a substantial number of shares of our common stock, that could amount to as much as 95% or more of our outstanding voting securities following the completion of any such transaction; accordingly, investments in any such private enterprise, if available, would be much more favorable than any investment in our Company.
Management intends to consider a number of factors prior to making any decision as to whether to participate in any specific business endeavor, none of which may be determinative or provide any assurance of success. These may include, but will not be limited to, as applicable, an analysis of the quality of the particular business or entity's management personnel; the anticipated acceptability of any new products or marketing concepts that any such business or company may have; the merit of any such business' or company's technological changes; the present financial condition, projected growth potential and available technical, financial and managerial resources of any such business or company; working capital, history of operations and future prospects; the nature of present and expected competition; the quality and experience of any such company's management services and the depth of its management; the business' or the company's potential for further research, development or exploration; risk factors specifically related to the business or company's operations; the potential for growth, expansion and profit of the business or company; the perceived public recognition or acceptance of the company or the business' products, services, trademarks and name identification; and numerous other factors which are difficult, if not impossible, to properly or accurately quantify or analyze, let alone describe or identify, without referring to specific objective criteria of an identified business or company.
Furthermore, the results of operations of any specific business or company may not necessarily be indicative of what may occur in the future, by reason of changing market strategies, plant or product expansion, changes in product emphasis, future management personnel and changes in innumerable other factors. Also, in the case of a new business venture or one that is in a research and development mode, the risks will be substantial, and there will be no objective criteria to examine the effectiveness, or the abilities of its management or its business objectives. Additionally, a firm market for its products or services may yet need to be established, and with no past track record, the profitability of any such enterprise will be unproven, and cannot be predicted with any certainty.
Our Management will attempt to meet personally with management and key personnel of the business or company providing any potential business opportunity afforded to us, visit and inspect material facilities, obtain independent analysis or verification of information provided and gathered, check references of management and key personnel and conduct other reasonably prudent measures calculated to ensure a reasonably thorough review of any particular business opportunity; however, due to time constraints of our management, and the lack of available funds for these purposes, these activities may be limited. See the heading "Business Experience," Part I, Item 5.
We are unable to predict the time as to when, and if we may actually participate in any specific business endeavor. Our Company anticipates that proposed business ventures will be made available to us through personal contacts of directors, executive officers and principal stockholders, professional advisors, broker dealers in securities, venture capital personnel, members of the financial community and others who may present unsolicited proposals. In certain cases, we may agree to pay a finder's fee or to otherwise compensate the persons who submit a potential business endeavor in which our Company eventually participates. Such persons may include our directors, executive officers and beneficial owners of our securities or their affiliates. In that event, such fees may become a factor in negotiations regarding any potential venture and, accordingly, may present a conflict of interest for such individuals. Management does not presently intend to acquire or merge with any business enterprise in which any member has a prior ownership interest.
Our Company's directors and executive officers have not used any particular consultants, advisors or finders on a regular basis.
Although we currently have no plans to do so, depending on the nature and extent of services rendered, we may compensate members of management in the future for services that they may perform for our Company. Because we currently have extremely limited resources, and because we are unlikely to have any significant resources until we have determined a business or enterprise to engage in or have completed a merger or acquisition, management expects that any such compensation would take the form of an issuance of our common stock to these persons; this would have the effect of further diluting the holdings of our other stockholders. There are presently no preliminary agreements or understandings between us and members of management respecting such compensation. Any shares issued to members of our management, persons who may be deemed to be our "promoters" or "founders," or our "affiliates," could be required to be resold under an effective registration statement filed with the Securities and Exchange Commission in accordance with the so-called "Wulff Letter" that is fully discussed under Part II, Item 4, under the heading "Restrictions on Sales of Certain "Restricted Securities," and which we believe will be liberally construed to promote its purposes as discussed therein. These provisions could further inhibit our ability to complete the acquisition of any business or complete any merger or reorganization with another entity, where finder's or others who may be subject to the interpretations of the Wulff Letter refuse to provide us with any introductions or to close any such transactions unless they are paid requested fees in cash or unless we agree to file a registration statement with the Securities and Exchange Commission that includes any shares that are issued to them at no cost to them. These expenses could limit potential acquisition candidates, especially those in need of cash resources, and could affect the number of shares that our shareholders retain following any such transaction, by reason of the increased expense.
Substantial fees are often paid in connection with the completion of all types of acquisitions, reorganizations or mergers, ranging from a small amount to as much as $500,000. These fees are usually divided among promoters or founders or finders, after deduction of legal, accounting and other related expenses, and it is not unusual for a portion of these fees to be paid to members of management or to principal stockholders as consideration for their agreement to retire a portion of the shares of common stock owned by them. Management may actively negotiate or otherwise consent to the purchase of all or any portion of their common stock as a condition to, or in connection with, a proposed reorganization, merger or acquisition. It is not anticipated that any such opportunity will be afforded to other stockholders or that such other stockholders will be afforded the opportunity to approve or consent to any particular stock buy-out transaction. In the event that any such fees are paid, they may become a factor in negotiations regarding any potential acquisition or merger by our Company and, accordingly, may also present a conflict of interest for such individuals. We have no present arrangements or understandings respecting any of these types of fees or opportunities. Any of these types of fees that are paid in our common stock could also be subject to the Securities and Exchange Commission's interpretations of the Wulff Letter. All of our shares of common stock that are owned by Michael Vardakis, our current President and a director, and Vincent Lombardi, a principal shareholder, are the subject of a Registration Agreement that we believe conforms with these interpretations of the Wulff Letter, which Messrs. Vardakis and Lombardi have voluntarily executed on the advice of our legal counsel. See Part II, Item 4, under the heading "Restrictions on Sales of Certain Restricted Securities," and Part III, Item 2, specifically, Exhibit 99.
None of our directors, executive officers, founders or their affiliates or associates has had any negotiations with any representatives of the owners of any business or company regarding the possibility of an acquisition, reorganization, merger or other business opportunity for our Company; nor are there any similar arrangements with us.
Risk Factors
In any business venture, there are substantial risks specific to the particular enterprise which cannot be ascertained until a potential acquisition, reorganization or merger candidate has been identified; however, at a minimum, our present and proposed business operations will be highly speculative and be subject to the same types of risks inherent in any new or unproven venture, and will include those types of risk factors outlined below, among others that cannot now be determined.
Extremely Limited Assets; No Source of Revenue.
We have virtually no assets and have had no profitable operations since inception. We will not receive revenues until we select an industry in which to commence business or complete an acquisition, reorganization or merger, at the earliest. We can provide no assurance that any selected or acquired business will produce any material revenues for us or our stockholders or that any such business will operate on a profitable basis.
We are deemed to be a Blank Check or Shell Company Until We Adopt a Business Plan and Commence Principal Significant Operations.
The limited business operations of ours, as now contemplated, involve those of a blank check or shell company. The only activities to be conducted by our Company are to manage our current limited assets and corporate standing and to seek out and investigate the commencement or the acquisition of any viable business opportunity by purchase and exchange for our securities or pursuant to a reorganization or merger through which our securities will be issued or exchanged.
Discretionary Use of Proceeds; Blank Check or Shell Company.
Because we are not currently engaged in any substantive business activities, as well as management's broad discretion with respect to selecting a business or industry for commencement of operations or completing an acquisition of assets, property or a business, we are deemed to be a blank check or shell company. Although management intends to apply any proceeds that we may receive through the private issuance of stock or debt to a suitable business enterprise, subject to the criteria identified above, such proceeds will not otherwise be designated for any more specific purpose. We can provide no assurance that any use or allocation of such proceeds will allow us to achieve our business objectives. We will comply with Rule 419 of Regulation C of the Securities and Exchange Commission if we issue stock or debt in a public offering, by depositing proceeds promptly into an escrow account or trust account that provides that the funds would not be released until we provide the purchaser of any such securities with information regarding the business combination and also receive in writing a confirmation regarding his or her decision to invest.
We are not currently engaged in any substantive business activity, and we have no plans to engage in any such activity in the foreseeable future, except the search for a business or an entity to acquire that may be beneficial to us and our stockholders.
When and if we will complete an acquisition is presently unknown, and will depend upon various factors, including but not limited to, funding and its availability; and if and when any potential acquisition may become available to us on terms acceptable to us.
We Will Seek Out Business Opportunities.
Management will seek out and investigate business opportunities through every reasonably available fashion, including personal contacts, professionals, securities broker dealers, venture capital personnel, members of the financial community and others who may present unsolicited proposals; we may also advertise our availability as a vehicle to bring a company to the public market through a "reverse" reorganization or merger, subject to the limitations on any such advertising that are included in the Securities Act of 1933, as amended (the "Securities Act"), and the General Rules and Regulations of the Securities and Exchange Commission promulgated thereunder.
Absence of Substantive Disclosure Relating to Prospective Acquisitions.
Because we have not yet identified any industry or assets, property or business that we may engage in or acquire, potential investors in our Company will have virtually no substantive information upon which to base a decision of whether to invest in us. Potential investors would have access to significantly more information if we had already identified a potential acquisition, or if the acquisition target had made an offering of its securities directly to the public. We can provide no assurance that any investment in our Company will not ultimately prove to be less favorable than such a direct investment.
Unspecified Industry and Acquired Business; Unascertainable Risks.
To date, we have not identified any particular industry or business in which to concentrate our potential interests. Accordingly, prospective investors currently have no basis to evaluate the comparative risks and merits of investing in any industry or business in which our Company may acquire. To the extent that we may acquire a business in a high risk industry, we will become subject to those risks. Similarly, if we acquire a financially unstable business or a business that is in the early stages of development, we will also become subject to the numerous risks to which those businesses are subject. Although management intends to consider the risks inherent in any industry and business in which we may become involved, there can be no assurance that we will correctly assess such risks.
Uncertain Structure of Acquisition.
Management has had no preliminary contact or discussions regarding, and there are no present plans, proposals or arrangements to engage in or acquire any specific business, assets, property or business. Accordingly, it is unclear whether such an acquisition would take the form of a purchase with a funding requirement as a condition precedent to closing, or an exchange of capital stock, a merger or an asset acquisition. However, because our Company has virtually no resources as of the date of this Registration Statement, management expects that any such acquisition would take the form of an exchange of capital stock.
Auditor's 'Going Concern' Opinion.
The Report of Independent Registered Public Accounting Firm issued in connection with our audited financial statements for the calendar years ended December 31, 2005 and 2004, expressed "substantial doubt about our ability to continue as a going concern," due to our status as a start-up and our lack of profitable operations. See the Index to Financial Statements, Part F/S of this Registration Statement.
Losses Associated With Startup.
We have not had a profitable operating history. We cannot guarantee that we will become profitable.
Federal and State Restrictions on Blank Check or Shell Companies.
Federal Restrictions.
Recent amendments to Form 8-K by the Securities and Exchange Commission regarding shell companies and transactions with shell companies require the filing of all information about an acquired company that would have been required to have been filed had any such company filed a Form 10 or 10-SB Registration Statement with the Securities and Exchange Commission, along with required audited, interim and proforma financial statements, within four business days of the closing of any such transaction. These new regulations also deny the use of Form S-8 for the registration of securities of a shell company, and limit the use of this Form to a reorganized shell company until the expiration of 60 days from when any such entity is no longer considered to be a shell company. This prohibition could further restrict opportunities for us to acquire companies that may already have stock option plans in place that cover numerous employees. In such an instance, there may be no exemption from registration for the issuance of securities in any business combination to these employees, thereby necessitating the filing of a registration statement with the Securities and Exchange Commission to complete any such reorganization, and incurring the time and expense costs normally avoided by reverse reorganizations.
The Wulff Letter, as discussed below under Part II, Item 4, under the heading "Restrictions on Sales of Certain Restricted Securities," can restrict the free tradeability of certain shares issued to our promoters or founders or affiliates in any transaction with us to resales pursuant to an effective registration statement filed with the Securities and Exchange Commission. We would expect the definition of these applicable persons to be liberally construed to promote the findings set out in the Wulff Letter. Michael Vardakis and Vincent Lombardi's shares of common stock in our Company are subject to resale under a Registration Agreement that is discussed below under this heading; Mr. Vardakis is one of our directors and executive officers; Mr. Lombardi is a principal stockholder.
If we publicly offer any securities as a condition to the closing of any acquisition, merger or reorganization while we are a blank check or shell company, we will have to fully comply with Rule 419 of the Securities and Exchange Commission and deposit all funds in escrow pending advice about the proposed transaction to our stockholder fully disclosing all information required by Regulation 14 of the Securities and Exchange Commission and seeking the vote and agreement of investment of those stockholders to whom such securities were offered; if no response is received from these stockholders within 45 days thereafter or if any elect not to invest following advice about the proposed transaction, all funds held in escrow must be promptly returned to any such stockholder. All securities issued in any such offering will likewise be deposited in escrow, pending satisfaction of the foregoing conditions. The foregoing is only a brief summary of Rule 419. We do not anticipate making any public offerings of our securities that would come within the context of an offering described in Rule 419.
All of these laws, rules and regulations could severely restrict us from completing the acquisition of any business or any merger or reorganization for the following reasons, among others:
* The time and expense in complying with any of the foregoing could be prohibitive and eliminate the reasons for a reverse reorganization.
* Management or others who own or are to receive shares that may be covered by the Wulff Letter may demand registration rights for these shares, and the acquisition candidate may refuse to grant them by reason of the time, cost and expense; or because the filing any such registration statement may be integrated with planned financing options that could prohibit or interfere with such options or such registration statement.
* Demands for cash in lieu of securities could be too high a cost of dilution to the acquisition candidate, especially when taking into account the dilution that results from the shareholdings that are retained by our shareholders.
* These costs and expenses, if agreed upon, would no doubt further dilute our shareholders, as any acquisition candidate may not be willing to
leave as many shares with our shareholders in any such transaction.
* An acquisition candidate may demand that outstanding Wulff Letter shares be cancelled, and the holders of these shares could refuse to do so without just compensation, including our current sole director.
* Finder's and parties who may introduce acquisition candidates would no doubt be unwilling to introduce any such candidates to us if shares issued to them came within the Wulff Letter interpretations and no registration rights were granted, which would substantially restrict our ability to attract such potential candidates.
State Restrictions.
A total of 36 states prohibit or substantially restrict the registration and sale of blank check or shell companies within their borders. Additionally, 36 states use "merit review powers" to exclude securities offerings from their borders in an effort to screen out offerings of highly dubious quality. See paragraph 8221, NASAA Reports, CCH Topical Law Reports, 1990. We intend to comply fully with all state securities laws, and plan to take the steps necessary to ensure that any future offering of our securities is limited to those states in which such offerings are allowed. However, while we have no substantive business operations and are deemed to a blank check or shell company, these legal restrictions may have a material adverse impact on our ability to raise capital, because potential purchasers of our securities must be residents of states that permit the purchase of such securities. These restrictions may also limit or prohibit stockholders from reselling shares of common stock within the borders of regulating states.
By regulation or policy statement, eight states (Idaho, Maryland, Missouri, Nevada, New Mexico, Pennsylvania, Utah and Washington), some of which are included in the group of 36 states mentioned above, place various restrictions on the sale or resale of equity securities of blank check or shell companies. These restrictions include, but are not limited to, heightened disclosure requirements, exclusion from "manual listing" registration exemptions for secondary trading privileges and outright prohibition of public offerings of such companies.
In most jurisdictions, blank check and shell companies are not eligible for participation in the Small Corporate Offering Registration ("SCOR") program, which permits an issuer to notify the Securities and Exchange Commission of certain offerings registered in such states by filing a Form D under
Regulation D of the Securities and Exchange Commission. All states (with the exception of Alabama, Delaware, Florida, Hawaii, Minnesota, Nebraska and New York) have adopted some form of SCOR. States participating in the SCOR program also allow applications for registration of securities by qualification via filing of a Form U-7 with the states' securities commissions. Nevertheless, our Company does not anticipate making any SCOR offering or other public offering in the foreseeable future, even in any jurisdiction where it may be eligible for participation in SCOR, despite our status as a blank check or shell company.
The net effect of the above-referenced laws, rules and regulations will be to place significant restrictions on our ability to register, offer and sell and/or to develop a secondary market for shares of our common stock in virtually every jurisdiction in the United States. These restrictions should cease once and if we acquire a venture by purchase, reorganization or merger, so long as the business operations succeeded to involve sufficient activities of a specific nature.
Management to Devote Insignificant Time to Activities of Our Company.
Members of our management are not required to devote their full time to the affairs of our Company. Because of their time commitments, as well as the fact that we have no business operations, the members of our management currently devote one hour a week to the activities of our Company, until such time as we have identified a suitable acquisition target or determined to engage in a particular business or industry and have commenced such operations.
No Market for Common Stock; No Market for Shares.
Although our shares of common stock are currently quoted in the Pink Sheets under the symbol "GLFO," we intend to submit for quotation of our common stock on the OTC Bulletin Board of the NASD before any selection of a business opportunity or a merger or acquisition transaction, and to seek a broker dealer to act as market-maker for our securities (without the use of any consultant), there is currently no market for such shares; there have been no discussions with any broker dealer or any other person in this regard; no market maker has been identified; and there can be no assurance that such a market will ever develop or be maintained. Any market price for shares of our common stock is likely to be very volatile, and numerous factors beyond our control may have a significant effect. In addition, the stock markets generally have experienced, and continue to experience, extreme price and volume fluctuations which have affected the market price of many small capital companies and which have often been unrelated to the operating performance of these companies. These broad market fluctuations, as well as general economic and political conditions, may adversely affect the market price of our common stock in any market that may develop. Sales of "restricted securities" under Rule 144 or sales of Wulff Letter shares pursuant to registration statements may also have an adverse effect on any market that may develop. See Part II, Item 4.
The shares of Messrs. Vardakis and Lombardi are subject to resale under a Registration Agreement which is attached as Exhibit 99 to this Registration Statement. Also, Messrs. Vardakis and Lombardi will not be able to sell their shares under Rule 144 or Section 4(1) of the Securities Act, both of which exempt routine trading transactions from the registration requirements of the Securities Act.
Risks of "Penny Stock."
Our common stock may be deemed to be "penny stock" as that term is defined in Rule 3a51-1 of the Securities and Exchange Commission. Penny stocks are stocks (i) with a price of less than five dollars per share; (ii) that are not traded on a "recognized" national exchange; (iii) whose prices are not quoted on the NASDAQ automated quotation system (NASDAQ- listed stocks must still meet requirement (i) above); or (iv) in issuers with net tangible assets less than $2,000,000 (if the issuer has been in continuous operation for at least three years); or $5,000,000 (if in continuous operation for less than three years); or with average revenues of less than $6,000,000 for the last three years.
Section 15(g) of the Exchange Act and Rule 15g-2 of the Securities and Exchange Commission require broker dealers dealing in penny stocks to provide potential investors with a document disclosing the risks of penny stocks and to obtain a manually signed and dated written receipt of the document before effecting any transaction in a penny stock for the investor's account. Potential investors in our common stock are urged to obtain and read such disclosure carefully before purchasing any shares that are deemed to be "penny stock."
Moreover, Rule 15g-9 of the Securities and Exchange Commission requires
broker dealers in penny stocks to approve the account of any investor
for transactions in such stocks before selling any penny stock to that
investor. This procedure requires the broker-dealer to (i) obtain from the
investor information concerning his, her or its financial situation,
investment experience and investment objectives; (ii) reasonably determine,
based on that information, that transactions in penny stocks are suitable for
the investor, and that the investor has sufficient knowledge and experience as
to be reasonably capable of evaluating the risks of penny stock transactions;
(iii) provide the investor with a written statement setting forth the basis on
which the broker-dealer made the determination in (ii) above; and (iv) receive
a signed and dated copy of such statement from the investor, confirming that
it accurately reflects the investor's financial situation, investment
experience and investment objectives. Compliance with these requirements may
make it more difficult for investors in our common stock to resell their
shares to third parties or to otherwise dispose of them.
There Has Been No "Established Public Market" for Our Common Stock Since Inception.
At such time as we identify a business opportunity or complete a merger or acquisition transaction, if at all, we may attempt to qualify for quotation on either NASDAQ or a national securities exchange. However, at least initially, any trading in our common stock will most likely be conducted in the over-the-counter market in the Pink Sheets or the OTC Bulletin Board of the NASD. Management intends to submit our securities for quotations on a national medium as soon as is reasonably practicable.
Principal Products or Services and Their Markets
None; not applicable.
Distribution Methods of the Products or Services
None; not applicable.
Status of any Publicly Announced New Product or Service
None; not applicable.
Competitive Business Conditions
Management believes that there are literally thousands of blank check or shell companies engaged in endeavors similar to those planned to be engaged in by us; many of these companies have substantial current assets and cash reserves. Competitors also include thousands of other publicly-held companies whose business operations have proven unsuccessful, and whose only viable business opportunity is that of providing a publicly-held vehicle through which a private entity may have access to the public capital markets. There is no reasonable way to predict the competitive position of our Company or any other entity in the strata of these endeavors; however, our Company, having limited assets and cash reserves, will no doubt be at a competitive disadvantage in competing with entities which have recently completed IPO's, have significant cash resources and have recent operating histories when compared with the complete lack of any substantive operations by us for the past several years.
Sources and Availability of Raw Materials and Names of Principal Suppliers
None; not applicable.
Dependence on One or a Few Major Customers
None; not applicable.
Patents, Trademarks, Licenses, Franchises, Concessions, Royalty Agreements or Labor Contracts
None; not applicable.
Need for any Governmental Approval of Principal Products or Services
Because we currently produce no products or services, we are not presently subject to any governmental regulation in this regard, except applicable securities laws, rules and regulations, as outlined above and under the heading below. However, in the event that we engage in any business endeavor or complete any merger or acquisition transaction with an entity that engages in governed activities, we will become subject to all governmental approval requirements to which the business or the merged or acquired entity is subject.
Effect of Existing or Probable Governmental Regulations on Business
The integrated disclosure system for small business issuers adopted by the Securities and Exchange Commission in Release No. 34-30968 and effective as of August 13, 1992, substantially modified the information and financial requirements of a "Small Business Issuer," defined to be an issuer that has revenues of less than $25 million; is a U.S. or Canadian issuer; is not an investment company; and if a majority-owned subsidiary, the parent is also a small business issuer; provided, however, an entity is not a small business issuer if it has a public float (the aggregate market value of the issuer's outstanding securities held by non-affiliates) of $25 million or more. We are a small business issuer.
The Securities and Exchange Commission, state securities commissions and NASAA have expressed an interest in adopting policies that will streamline the registration process and make it easier for a small business issuer to have access to the public capital markets. The present laws, rules and regulations designed to promote availability to the small business issuer of these capital markets and similar laws, rules and regulations that may be adopted in the future will substantially limit the demand for blank check or shell companies like us, and may make the use of these companies obsolete.
We are also subject to the Sarbanes-Oxley Act of 2002. This Act creates a strong and independent accounting oversight board to oversee the conduct of auditors of public companies and strengthens auditor independence. It also requires steps to enhance the direct responsibility of senior members of management for financial reporting and for the quality of financial disclosures made by public companies; establishes clear statutory rules to limit, and to expose to public view, possible conflicts of interest affecting securities analysts; creates guidelines for audit committee members' appointment, and compensation and oversight of the work of public companies' auditors; prohibits certain insider trading during pension fund blackout periods; and establishes a federal crime of securities fraud, among other provisions.
Section 14(a) of the Exchange Act requires all companies with securities registered pursuant to Section 12(g) of the Exchange Act to comply with the rules and regulations of the Securities and Exchange Commission regarding proxy solicitations, as outlined in Regulation 14A. Matters submitted to stockholders of our Company at a special or annual meeting thereof or pursuant to a written consent will require our Company to provide our stockholders with the information outlined in Schedules 14A or 14C of Regulation 14; preliminary copies of this information must be submitted to the Securities and Exchange Commission at least 10 days prior to the date that definitive copies of this information are forwarded to our stockholders.
We are also required to file annual reports on Form 10-KSB and quarterly reports on Form 10-QSB with the Securities Exchange Commission on a regular basis, and will be required to timely disclose certain material events (e.g., changes in corporate control; acquisitions or dispositions of a significant amount of assets other than in the ordinary course of business; and bankruptcy) in a Current Report on Form 8-K12G3.
If we are acquired by a non-"reporting issuer" under the Exchange Act, we will be subject to the "back-door registration" requirements of the Securities and Exchange Commission that will require us to file a Current Report on Form 8-K12G3 that will include all information about such non-"reporting issuer" as would have been required to be filed by that entity had it filed a Form 10 or Form 10-SB Registration Statement with the Securities and Exchange Commission. The Securities and Exchange Commission proposed on April 13, 2004, that any acquisition that will result in our Company no longer being a blank check or shell company will require us to include all information about the acquired company as would have been required to be filed by that entity had it filed a Form 10 or Form 10-SB Registration Statement with the Securities and Exchange Commission.
We are also prohibited from utilizing Form S-8 for the registration of our securities until we have not been a shell company for at least 60 days.
Research and Development
None; not applicable.
Cost and Effects of Compliance with Environmental Laws
None; not applicable. However, environmental laws, rules and regulations may have an adverse effect on any business venture viewed by us as an attractive acquisition, reorganization or merger candidate, and these factors may further limit the number of potential candidates available to us for acquisition, reorganization or merger.
Number of Employees
None.
Item 2. Management's Discussion and Analysis or Plan of Operation.
Forward-looking Statements
Statements made in this Registration Statement which are not purely historical are forward-looking statements with respect to the goals, plan objectives, intentions, expectations, financial condition, results of operations, future performance and business of our Company, including, without limitation, (i) our ability to raise capital, and (ii) statements preceded by, followed by or that include the words "may", "would", "could", "should", "expects", "projects", "anticipates", "believes", "estimates", "plans", "intends", "targets" or similar expressions.
Forward-looking statements involve inherent risks and uncertainties, and important factors (many of which are beyond our control) that could cause actual results to differ materially from those set forth in the forward-looking statements, including the following, general economic or industry conditions, nationally and/or in the communities in which we may conduct business, changes in the interest rate environment, legislation or regulatory requirements, conditions of the securities markets, our ability to raise capital, changes in accounting principles, policies or guidelines, financial or political instability, acts of war or terrorism, other economic, competitive, governmental, regulatory and technical factors affecting our Company's operations, products, services and prices.
Accordingly, results actually achieved may differ materially from expected results in these statements. Forward-looking statements speak only as of the date they are made. We do not undertake, and specifically disclaim, any obligation to update any forward-looking statements to reflect events or circumstances occurring after the date of such statements.
Plan of Operation
Our plan of operation for the next 12 months is to:(i)consider guidelines of industries in which we may have an interest;(ii) adopt a business plan regarding engaging in the business of any selected industry; and (iii) to commence such operations through funding and/or the acquisition of a "going concern" engaged in any industry selected.
During the next 12 months, our only foreseeable cash requirements will relate to maintaining our good standing or to the payment of our Securities and Exchange filing expenses and associated legal fees, accounting fees and costs incident to reviewing or verifying information about any potential business venture, any of which may be advanced by management or principal stockholders as loans to us. There is no agreement that management will advance these funds. Because we have not determined any business or industry in which our operations will be commenced, and we have not identified any prospective venture as of the date of this Registration Statement, it is impossible to predict the amount of any such loan. Any such loan will be on terms no less favorable to us than would be available from a commercial lender in an arm's length transaction. As of the date of this Registration Statement, we have not actively begun to seek any such venture. No advance or loan from any affiliate will be required to be repaid as a condition to any agreement with future acquisition partners.
When and if a business is commenced or an acquisition is made is presently unknown, and will depend upon various factors, including but not limited to, funding and its availability; and if and when any potential acquisition may become available to us at terms acceptable to us. The estimated costs associated with reviewing and verifying information about a potential business venture would be mainly for due diligence and the legal process, and could cost between $5,000 to $25,000. These funds will either be required to be loaned by management or raised in private offerings; we cannot assure you that we can raise these funds, if needed.
Results of Operations
We had no revenues for the periods ended March 31, 2006, and 2005; and incurred net losses of ($1,017) and ($1,364), respectively, during these periods, primarily as a result of legal and accounting expenses.
We have generated no profit since inception. We had a net loss of ($12,417) for the year ended December 31, 2005, and ($9,385) for the year ended December 31, 2004. Cumulative losses as of December 31, 2005 total ($55,540) since our inception on May 9, 1996. Primarily all of these losses are the result of legal and accounting expenses.
Liquidity
At March 31, 2006, we had no cash; and at December 31, 2005, we had $20 cash resources. At December 31, 2005, we owed $42,782 to related parties for money advanced to us or expenses paid on our behalf. $2,600 bears interest at 24% per year, and $3,500 bears interest at 18% per year. The remaining $36,682 bears no interest. Total accrued interest at December 31, 2005, was $4,982.
Item 3. Description of Property.
We have no assets, property or business; our principal executive office address and telephone number are the office address and telephone number of Michael Vardakis, who is a shareholder, our President and a director, and are provided at no cost.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
Security Ownership of Certain Beneficial Owners
The following table sets forth the shareholdings of those persons who own more than five percent of our common stock as of the date of this Registration Statement, respectively based upon 1,611,950 shares being outstanding:
Number of Shares Percentage
Name and Address Beneficially Owned of Class
---------------- ------------------ --------
Common Stock
------------
Vincent C. Lombardi 766,975 47.58%
755 East Greg Street #25
Sparks, Nevada 89431
Michael Vardakis 762,475 47.30%
601 South State Street
Salt Lake City, Utah 84111
--------- -----
TOTALS: 1,529,450 94.88%
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Security Ownership of Management
The following table sets forth the share holdings of management as of the date of this Registration Statement, respectively based upon 1,611,950:
Number of Shares Percentage
Name and Address Beneficially Owned of Class
---------------- ------------------ --------
Common Stock
------------
Michael Vardakis 762,475 47.30%
601 South State Street
Salt Lake City, Utah 84111
Melissa Ladakis -0- 0.00%
------- -----
TOTALS: 762,475 47.30%
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Changes in Control
There are no present arrangements or pledges of our securities which may result in a change in control of our Company.
Item 5. Directors, Executive Officers, Promoters and Control Persons.
Identification of Directors and Executive Officers
The following table sets forth the names of all of our current directors and executive officers. These persons will serve until the next annual meeting of the stockholders or until their successors are elected or appointed and qualified, or until their prior resignation or termination.
Date of Termination
Name Held Designation or Resignation
---- ---- ----------- --------------
Michael Vardakis President, 3/03 *
Director 3/03 *
Melissa Ladakis Secretary, 6/96 *
Treasurer, 6/96 *
Director 6/96 *
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* These persons presently serves in the capacities indicated.
Business Experience
Michael Vardakis, age 40, has served as President and director of us since March 6, 2003. Mr. Vardakis served as Secretary and a director and Treasurer of Asyst Corporation from 2001 to 2004 . Mr. Vardakis is also the President and Treasurer and a director of Syntony Group, Inc., and has held those positions since March 20, 2003. Since 1991, he has been employed as a salesman, and served as the Secretary, for AAA Jewelry & Loan, Inc. ("AAA Jewelry & Loan"), of Salt Lake City, Utah, a closely-held pawn brokerage business managed and co-owned by Terry S. Pantelakis, Mr. Vardakis' father-in- law. Since 1994, Mr. Vardakis has served as an executive officer, a director and a controlling shareholder of Michael Angelo Jewelers, Inc. ("Michael Angelo Jewelers"), Salt Lake City, Utah, a closely-held retail jewelry business that he founded together with Angelo Vardakis, his brother. He has been a manager and a 50% owner of M.N.V. Holdings, LLC, Salt Lake City, Utah, a real estate holding company; from July, 1997 until April, 2002; and since
November, 1997, Mr. Vardakis has been a manager and a member of M.H.A., LLC, Salt Lake City, Utah, a closely- held investment company co-owned together with his brother, Angelo Vardakis, among others. Since June 1996, Mr. Vardakis has served as a director and a controlling shareholder of TMV Holdings, Inc. ("TMV Holdings"), Sparks, Nevada, an investment company that he co-owns with Vincent Lombardi. He has also been a manager and a member of two Salt Lake City, Utah, real estate holding companies, V Financial, LLC, and BNO, LLC, since December 1999 and January 1997, respectively. He attended the University of Utah, Salt Lake City, Utah, from 1983 through 1984.
Melissa Ladakis, age 34, has served as Secretary/Treasurer and director of us since June 28, 1996. Ms. Ladakis has served from 2002 until present as President of The Paper Lady, Inc. She graduated from the University of Utah in 1998 with a Bachelor of Science in Political Science.
Previous Blank Check or Shell Company Experience
Name of Company Date of filing File Number Status Amazon Biotech Inc. fka Asyst, Corp. 7/19/1999 000-26753 Current |
Michael Vardakis was an officer until March of 2004.
Syntony Group, Inc. 4/12/2004 000-50678 Current
Michael Vardakis has been an officer since March of 2003.
Significant Employees
We have no employees who are not executive officers.
Family Relationships
None.
Involvement in Certain Legal Proceedings
During the past five years, no present or former director, executive officer or person nominated to become a director or an executive officer of ours:
(1) was a general partner or executive officer of any business against which any bankruptcy petition was filed, either at the time of the bankruptcy or two years prior to that time;
(2) was convicted in a criminal proceeding or named subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
(3) was subject to any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; or
(4) was found by a court of competent jurisdiction (in a civil action), the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated.
Item 6. Executive Compensation.
The following table sets forth the aggregate compensation paid by us for services rendered during the periods indicated:
SUMMARY COMPENSATION TABLE
Long Term Compensation
Annual Compensation Awards Payouts
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Secur-
Other ities All
Name and Year or Annual Rest- Under- LTIP Other
Principal Period Salary Bonus Compen- ricted lying Pay- Comp-
Position Ended ($) ($) sat'n Stock Options outs ensat'n
------------------------------------------------------------------------------
Michael 03/31/06 0 0 0 0 0 0 0
Vardakis 12/31/05 0 0 0 0 0 0 0
President 12/31/04 0 0 0 0 0 0 0
and
Director
Melissa 03/31/06 0 0 0 0 0 0 0
Ladakis 12/31/05 0 0 0 0 0 0 0
Sec/Treas 12/31/04 0 0 0 0 0 0 0
and
Director
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Stock Option and Similar Plans
No cash compensation, deferred compensation or long-term incentive plan awards were issued or granted to our management during the period ended March 31, 2006, or the calendar years ended December 31, 2005, or 2004, or to the date hereof. Further, no member of our management has been granted any option or stock appreciation rights; accordingly, no tables relating to such items have been included within this Item.
Compensation of Directors
There are no standard arrangements pursuant to which our directors are compensated for any services provided as director. No additional amounts are payable to directors for committee participation or special assignments.
Employment Contracts and Termination of Employment and Change-in-Control Arrangements
There are no employment contracts, compensatory plans or arrangements, including payments to be received from us, with respect to any director or executive officer of ours which would in any way result in payments to any such person because of his or her resignation, retirement or other termination of employment with our Company, any change in control of our Company, or a change in the person's responsibilities following a change in control of our Company.
Code of Ethics
We have not established a Code of Ethics because, due to our lack of operations and the fact that we only have two directors and executive officers, we believe that we are able to effectively manage the issues normally covered by a Code of Ethics. However, we intend to adopt a Code of Ethics once our Registration Statement becomes effective.
Audit Committee
We have not established an Audit Committee because, due to our lack of operations and the fact that we only have two directors and executive officers, we believe that we are able to effectively manage the issues normally considered by an audit committee. Following the entry into any business or the completion of any acquisition, merger or reorganization, a further review of this issue will no doubt be necessitated and undertaken by new management.
Compensation Committee
We have not established a Compensation Committee because, due to our lack of operations and the fact that we only have two directors and executive officers, we believe that we are able to effectively manage the issues normally considered by a Compensation Committee. Following the entry into any business or the completion of any acquisition, merger or reorganization, a further review of this issue will no doubt be necessitated and undertaken by new management.
Nominating and Corporate Governance Committee
We have not established a Nominating and Corporate Governance Committee because, due to our lack of operations and the fact that we only have two directors and executive officers, we believe that we are able to effectively manage the issues normally considered by a Nominating and Corporate Governance Committee. Following the entry into any business or the completion of any acquisition, merger or reorganization, a further review of this issue will no doubt be necessitated and undertaken by new management.
Item 7. Certain Relationships and Related Transactions.
There were no material transactions, or series of similar transactions, during the period ended March 31, 2006, or our last two calendar years ended December 31, 2005, and 2004, or any currently proposed transactions, or series of similar transactions, to which we or any of our subsidiaries was or is to be a party, in which the amount involved exceeded $60,000 and in which any director, executive officer or any security holder who is known to our Company to own of record or beneficially own more than five percent of any class of our common stock, or any member of the immediate family of any of the foregoing persons, had an interest.
Item 8. Description of Securities.
Common Stock
We are authorized to issue 50,000,000 shares of common stock, no par value per share. There are currently 1,611,950 shares of common voting stock issued and outstanding. The holders of our common stock are entitled to one vote per share on each matter submitted to a vote at a meeting of our stockholders.
Our stockholders have no pre-emptive rights to purchase, subscribe for or otherwise acquire shares of stock of the Corporation, rights, warrants or options to purchase stocks or securities of any kind convertible into stock of the Corporation. Our common stock is not subject to redemption rights and carries no subscription or conversion rights. In the event of liquidation of our Company, the shares of common stock are entitled to share equally in corporate assets after satisfaction of all liabilities. All shares of the common stock now outstanding are fully paid and non-assessable.
For additional information regarding our common stock, see our Articles of Incorporation, as amended, that are incorporated herein by reference, in Part III, Item 2.
Preferred Stock
We are authorized to issue 5,000,000 shares of preferred stock, no par value per share, with such rights, privileges and preferences as the Board of Directors may grant by amendment to our Articles of Incorporation.
No Outstanding Options, Warrants or Calls
There are no outstanding options, warrants or calls to purchase any of our authorized securities.
No Provisions Limiting Change of Control
There is no provision in our Articles of Incorporation or Bylaws that would delay, defer, or prevent a change in control of our Company.
PART II
Item 1. Market Price of and Dividends on our Common Equity and Related Stockholder Matters.
Market Information
There has never been any established trading market for our shares of common stock, though our shares of common stock are nominally quoted in the Pink Sheets under the symbol "GLFO." Once this Registration Statement is effective and the Securities and Exchange Commission has indicated to us that they have completed their review process, we intend to submit for quotations of our common stock on the OTC Bulletin Board of the NASD. No assurance can be given that any market for our common stock will develop or be maintained. For any market that develops for our common stock, the sale of restricted securities (common stock) pursuant to Rule 144 of the Securities and Exchange Commission by current stockholders or any other persons to whom any such securities may be issued in the future may have a substantial adverse impact on any such public market, along with sales made pursuant to registration statements filed respecting shares that come within the interpretations of the Wulff Letter or otherwise. See the heading "Recent Sales of Unregistered Securities," Part II, Item 4.
A minimum holding period of one year is required for resales under Rule 144, along with other pertinent provisions, including publicly available information concerning our Company (this requirement will be satisfied by the filing and effectiveness of this Registration Statement, the passage of 90 days from the effective date and the continued timely filing by us of all reports required to be filed by us with the Securities and Exchange Commission); limitations on the volume of restricted securities which can be sold in any 90 day period; the requirement of unsolicited broker's transactions; and the filing of a Notice of Sale on Form 144.
The shares of Messrs. Vardakis and Lombardi are subject to a Registration
Agreement which is attached hereto as Exhibit 99 to this 10-SB Registration
Statement. In accordance with this Registration Agreement, Messrs. Vardakis
and Lombardi will not be able to sell their holdings pursuant to Rule 144 or
Section 4(1) of the Securities Act in "routine trading transactions," because
their public sales, if any, must be made pursuant to an effective registration
statement filed with the Securities and Exchange Commission. Any person who
acquires any of these securities in a private transaction will be subject to
the same resale requirements.
Holders
The number of record holders of our common stock as of the date of this Registration Statement is approximately 40.
Dividends
We have not declared any cash dividends with respect to our common stock, and do not intend to declare dividends in the foreseeable future. The future dividend policy of our Company cannot be ascertained with any certainty, and if and until we determine to engage in any business or we complete any acquisition, reorganization or merger, no such policy will be formulated. There are no material restrictions limiting, or that are likely to limit, our ability to pay dividends on our securities.
Resales of "Restricted Securities"
See Part II, Item 4.
Item 2. Legal Proceedings.
We are not a party to any pending legal proceeding and, to the knowledge of our management; no federal, state or local governmental agency is presently contemplating any proceeding against us. No director, executive officer or affiliate of ours or owner of record or beneficially of more than five percent of our common stock is a party adverse to our Company or has a material interest adverse to us in any proceeding.
Item 3. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
There have been no changes in or disagreements with accountants on accounting and financial disclosure.
Item 4. Recent Sales of Unregistered Securities.
Common Stock
Date Number of Aggregate
Name Acquired Shares Consideration
---- -------- ------ -------------
Issued for Services(1) 4/9/03 50,000 $500
504 Offering (2) 5/31/96 1,621,000 $811
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(1) We issued all of these securities to persons who were "accredited investors," and each had prior access to all material information about us. We believe that the offer and sale of these securities were exempt from the registration requirements of the Securities Act, pursuant to Sections 4(2) and 4(6) thereof, and Rule 506 of Regulation D of the Securities and Exchange Commission and from various similar state exemptions.
(2) These securities were sold in reliance on Rule 504 of Regulation D of the Securities and Exchange Commission, with our Company having had a business plan and a specific industry in which we intended to and did conduct business operations.
Restrictions on Sales of Certain "Restricted Securities"
Generally, restricted securities can be resold under Rule 144 once they have been held for at least one year (subparagraph (d) thereof), provided that the issuer of the securities satisfies the "current public information" requirements (subparagraph (c)) of the Rule; no more than 1% of the outstanding securities of the issuer are sold in any three month period (subparagraph (e)); the seller does not arrange or solicit the solicitation of buyers for the securities in anticipation of or in connection with the sale transactions or does not make any payment to anyone in connection with the sales transactions except the broker dealer who executes the trade or trades in these securities (subparagraph (f)); the shares are sold in "broker's transactions" only (subparagraph (g)); the seller files a Notice on Form 144 with the Securities and Exchange Commission at or prior to the sales transactions (subparagraph (h)); and the seller has a bona fide intent to sell the securities within a reasonable time of the filing. Once two years have lapsed, assuming the holder of the securities is not an "affiliate" of the issuer, unlimited sales can be made without further compliance with the terms and provisions of Rule 144. All restricted securities of the Company have been held for in excess of one year.
In January, 2000, Richard K. Wulff, the Chief of the Securities and Exchange Commission's Office of Small Business, wrote a letter to Ken Worm, the Assistant Director of the OTC Compliance Unit of NASD Regulation, Inc. Many members of the securities community have come to refer to that letter as the "Wulff Letter." The full text of the Wulff Letter can be examined in the CCH Federal Securities Law Reporter, 1990-2000 Decisions, Paragraph No. 77,681, issued under the name "NASD Regulation, Inc."
The Wulff Letter was written in response to a request for guidance from Mr. Worm. In his request, Mr. Worm had referred to several situations in which non-affiliate stockholders of blank check or shell companies had sought to treat their shares as free trading or unrestricted securities. As defined in the Wulff Letter, a blank check or shell company is "a development stage company that has no specific business plan or purpose or has indicated its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person."
Citing the concerns of the United States Congress and the Securities and
Exchange Commission over potential fraud and market manipulations involving
blank check or shell companies, the Wulff Letter stated that promoters and
affiliates of blank check or shell companies, as well as transferees of their
securities, are "underwriters" with respect to such securities. Accordingly,
transactions in these companies' securities by promoters, affiliates or their
transferees do not fall within the scope of the Rule 144 "safe harbor" resales
for securities that have been beneficially owned for at least one year and
that satisfy informational and certain other requirements of the Rule, or the
Section 4(1) exemption from registration for resales under the Securities Act,
that exempts sales by persons other than "an issuer, underwriter or a dealer."
As a result, it is the position of the Securities and Exchange Commission that
these securities may be resold by these persons only pursuant to registration
under the Securities Act. According to the Wulff Letter, this restriction
would continue to apply even after the blank check or shell company completes
a merger or acquisition transaction with an operating entity. We take no
position as to whether the Securities and Exchange Commission has the
authority to abate the exemption from registration under the Securities Act in
Section 4(1), which is a statutory exemption for "routine trading
transactions; however, Messrs. Vardakis and Lombardi have agreed not to
publicly resell their securities (in any private sale, the purchaser would be
required to acknowledge the following restrictions) without registration under
the Securities Act; or the receipt of a "no action" letter from the Securities
and Exchange Commission indicating that registration is not required and that
there is an available exemption from registration under the Securities Act for
the resale of these securities; or there is a declaratory judgment by a
federal or state court indicating that registration is not required for resale
of these securities and that there is an available exemption from registration under the Securities Act for the resale of these securities. Messrs. Vardakis and Lombardi have no current intention to seek any court order respecting the availability of an exemption under the Securities Act to resell their securities. A copy of the Registration Agreement signed by Messrs. Vardakis and Lombardi with us is attached to this Registration Statement an incorporated herein by reference. See Part III, Item 2.
These restrictions will also apply to transferees of Messrs. Vardakis and Lombardi's securities or any securities of persons who may be deemed to be our promoters or "affiliates," too. We believe that this pronouncement will be liberally construed by the Securities and Exchange Commission to promote the concerns set forth in the Wulff Letter. An "affiliate" includes all directors and executive officers of an issuer, along with 10% stockholders, and includes persons controlling, controlled by or under common control of an issuer; a promoter is generally defined as anyone involved in the formation of an issuer, and that may include finder's and others in similar capacities, who introduce acquisition candidates to us.
We also have a Lock-up/Leak-out Agreement for the shares owned by Leonard W,. Burningham, Esq., our legal counsel, that limits the resales to 1/12th of his holdings in any month for one year following the closing of a Reorganization Transaction (as defined therein). That should ensure adequate protection of any market that may exist from any adverse influence from these shares. See
Part III, Item 2.
Item 5. Indemnification of Directors and Officers.
Section 7-109-102 of the Colorado Code authorizes a Colorado corporation to indemnify any director against liability incurred in any proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Unless limited by the Articles of Incorporation, Section 7-109-105 authorizes a director to apply for indemnification to the court conducting the proceeding or another court of competent jurisdiction. Section 7-109-107 extends this right to officers of a corporation as well.
Unless limited by the Articles of Incorporation, Section 7-109-103 requires that a corporation indemnify a director who was wholly successful in defending any proceeding to which he or she was a party against reasonable expenses incurred in connection therewith. Unless limited by the Articles of Incorporation, Section 7-109-107 extends this protection to officers of a corporation as well.
Pursuant to Section 7-109-104, a corporation may advance a director's expenses incurred in defending any action or proceeding upon receipt of an undertaking and a written affirmation of his or her good faith belief that he or she has met the standard of conduct specified in Section 7-109-102. Unless limited by the Articles of Incorporation, Section 7-109-107 extends this protection to officers of a corporation as well.
Regardless of whether a director, officer, employee or agent has the right to indemnity under the Colorado Code, Section 7-109-108 allows the corporation to purchase and maintain insurance on his or her behalf against liability resulting from his or her corporate role.
Section 7-109-109 provides that any provision in the Articles of Incorporation that is inconsistent with these provisions shall be unenforceable to the extent of any such inconsistency with the provisions of Sections 7-109-102 through 7-109-108, inclusive.
Our Articles of Incorporation do not limit the Colorado Code indemnification provisions, as set forth in Article XIII of our Articles of Incorporation that are attached hereto as Exhibit 3.1. See Part III, Item 1, for a complete description of these indemnification provisions, which are incorporated herein by reference.
Article IX of our Bylaws reiterates the provisions of the Colorado Code, and extends this protection to officers and employees of the Company. Article IX also provides that a judgment or conviction, whether based upon a plea of guilty or nolo contendere or its equivalent, or after trial, shall not in and of itself be deemed to be an adjudication that such director, officer or employee is liable to us for negligence or misconduct in the performance of his or her duties. This determination can be made, at the option of the director, officer or employee seeking indemnification in any of the following manners:
* order of the court or administrative agency having jurisdiction of the action, suit or proceeding;
* resolution of a majority of the non-interested members of the Board of Directors;
* if there is no quorum after excluding interested directors, by independent legal counsel in a written opinion; or
* by the stockholders.
PART F/S
GULF & ORIENT
STEAMSHIP COMPANY, LTD.
FINANCIAL STATEMENTS
December 31, 2005 and 2004
CONTENTS
PAGE
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM . F-2
BALANCE SHEET. . . . . . . . . . . . . . . . . . . . . . . F-3
STATEMENTS OF OPERATIONS . . . . . . . . . . . . . . . . . F-4
STATEMENTS OF SHAREHOLDERS' DEFICIT. . . . . . . . . . . . F-5
STATEMENTS OF CASH FLOWS . . . . . . . . . . . . . . . . . F-6
NOTES TO FINANCIAL STATEMENTS. . . . . . . . . . . . . . . F-7
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Officers and Directors
Gulf & Orient Steamship Company, Ltd.
Salt Lake City, Utah
We have audited the accompanying balance sheet of Gulf & Orient Steamship Company, Ltd. (a Colorado development stage enterprise) as of December 31, 2005, and the related statements of operations, stockholders' deficit, and cash flows for the years ended December 31, 2005 and 2004, and for the period of May 6, 1996 (date of inception) to December 31, 2005. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board ( United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Gulf & Orient Steamship Company, Ltd. as of December 31, 2005, and the results of its operations, stockholders' deficit, and its cash flows for the years ended December 31, 2005 and 2004, and for the period of May 9, 1996 (date of inception) to December 31, 2005 in conformity with accounting principles generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As shown in the financial statements, the Company has a working capital deficit of $56,229 and an accumulated deficit of $60,510 at December 31, 2005 and has no operations. The Company has suffered losses and has a substantial need for working capital. This raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are described in Note 6 to the financial statements. The accompanying financial statements do not include any adjustments that may result from the outcome of this uncertainty.
/s/ Child, Van Wagoner & Bradshaw, PLLC
Certified Public Accountants
Salt Lake City, Utah
April 18, 2006
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GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
BALANCE SHEET
December 31,
2005
ASSETS
CURRENT ASSETS
Cash $ 20
------------
TOTAL CURRENT ASSETS 20
------------
$ 20
============
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LIABILITIES AND
SHAREHOLDERS' DEFICIT
CURRENT LIABILITIES
Accounts payable $ 13,467
Payable - related parties (Note 4) 42,782
------------
TOTAL CURRENT LIABILITIES 56,249
------------
TOTAL LIABILITIES 56,249
------------
SHAREHOLDERS' DEFICIT
Preferred stock no par value, non-voting,
5,000,000 shares authorized; 0 shares issued
and outstanding 0
Common stock no par value, 50,000,000
shares authorized; 1,611,950 shares issued
and outstanding 4,281
Deficit accumulated during development stage (60,510)
------------
TOTAL SHAREHOLDERS' DEFICIT (56,229)
------------
$ 20
============
|
See Notes to Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
STATEMENTS OF OPERATIONS
Period
from
5/9/96
(Date of
Years ended December 31, inception) to
2005 2004 12/31/2005
Income $ 0 $ 0 $ 0
----------- ------------ -----------
Expenses:
General and Administrative expenses 8,813 8,761 50,558
Interest expense 3,604 624 4,982
----------- ------------ -----------
12,417 9,385 55,540
----------- ------------ -----------
(LOSS) BEFORE TAXES (12,417) (9,385) (55,540)
PROVISION FOR INCOME TAXES 0 0 0
----------- ------------ -----------
NET (LOSS) $ (12,417)$ (9,385) $ (55,540)
=========== ============ ===========
(LOSS) PER COMMON SHARE
Basic and diluted net (loss) per
weighted average common share
outstanding $ (.00)$ (.00)
=========== ============
Weighted average number of common
shares outstanding 1,646,396 1,671,000
=========== ============
|
See Notes to Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
STATEMENTS OF SHAREHOLDERS' DEFICIT
Period from May 9, 1996 (date of inception) to December 31, 2005
Deficit
Accumulated
During
Preferred Stock Common Stock Development
Shares Amount Shares Amount Stage
Balances at May 9, 1996 0 $ 0 0 $ 0 $ 0
Issuance of stock for
cash at $.01 per
share 5/16/96 300,000 3,000
Issuance of stock to
the public for cash
at $.0005 per share
5/31/96 1,621,000 811
Stock cancelled (300,000) (3,000) 3,000
Net loss for the period (5,636)
-------- ------- --------- ------ -----------
Balances at
December 31, 1996 0 0 1,621,000 3,811 (5,636)
Net loss for the year (5,699)
-------- ------- --------- ------ -----------
Balances at
December 31, 1997 0 0 1,621,000 3,811 (11,335)
Net loss for the year (3,995)
-------- ------- --------- ------ -----------
Balances at
December 31, 1998 0 0 1,621,000 3,811 (15,330)
Net loss for the year (4,055)
-------- ------- --------- ------ -----------
Balances at
December 31, 1999 0 0 1,621,000 3,811 (19,385)
Net loss for the year (147)
-------- ------- --------- ------ -----------
Balances at
December 31, 2000 0 0 1,621,000 3,811 (19,532)
Net loss for the year (2,896)
-------- ------- --------- ------ -----------
Balances at
December 31, 2001 0 0 1,621,000 3,811 (22,428)
Net loss for the year (2,861)
-------- ------- --------- ------ -----------
Balances at
December 31, 2002 0 0 1,621,000 3,811 (25,289)
Issuance of stock for
services at $.01
per share April 9, 2003 50,000 500
Net loss for the year (8,449)
-------- ------- --------- ------ -----------
Balances at
December 31, 2003 0 0 1,671,000 4,311 (33,738)
Net loss for the year (9,385)
-------- ------- --------- ------ -----------
Balances at
December 31, 2004 0 0 1,671,000 4,311 (43,123)
Purchase and cancel
treasury stock (59,050) (30) (4,970)
Net loss for the year (12,417)
-------- ------- --------- ------ -----------
Balances at
December 31, 2005 0 $ 0 1,611,950 $4,281 $ (60,510)
======== ======= ========= ====== ===========
|
See Notes to Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
STATEMENTS OF CASH FLOWS
Period
from
5/9/96
(Date of
Years ended December 31, inception) to
2005 2004 12/31/2005
OPERATING ACTIVITIES
Net (loss) $ (12,417) $ (9,385) $ (55,540)
Adjustments to reconcile net (loss)
to net cash provided (required) by
operating activities
Stock issued for expenses 0 0 500
Interest expense 3,604 624 4,982
Changes in assets and liabilities
Accounts payable 5,272 3,606 13,467
Payable - related parties 8,500 5,160 37,800
---------- ------------ ------------
NET CASH PROVIDED (REQUIRED)
BY OPERATING ACTIVITIES 4,959 5 1,209
FINANCING ACTIVITIES
Stock sold 0 0 3,811
Purchase treasury stock (5,000) 0 (5,000)
---------- ------------ ------------
NET CASH PROVIDED (REQUIRED)
BY FINANCING ACTIVITIES (5,000) 0 (1,189)
---------- ------------ ------------
NET INCREASE (DECREASE)
IN CASH (41) 5 20
CASH AT BEGINNING
OF PERIOD 61 56 0
---------- ------------ ------------
CASH AT END OF PERIOD $ 20 $ 61 $ 20
========== ============ ============
Cash paid for
Interest $ 0 $ 0 $ 0
Income taxes 0 0 0
|
See Notes to Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
December 31, 2005 and 2004
NOTE 1: SUMMARY OF HISTORY AND SIGNIFICANT ACCOUNTING POLICIES
Nature of Operations
The Company was incorporated in the State of Colorado on May 9, 1996. The
Company originally intended to engage in the business of marine
transportation. These plans did not materialize.
Development Stage Company
The financial statements present the Company as a development stage company
because of its short operating history. The Company is looking for business
opportunities.
Income Taxes
The Company utilizes the liability method of accounting for income taxes as
set forth in Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes" (SFAS 109). Under the liability method, deferred taxes are
determined based on the difference between the financial statement and tax
bases of assets and liabilities using enacted tax rates in effect in the years
in which the differences are expected to reverse. An allowance against
deferred tax assets is recorded when it is more likely than not that such tax
benefits will not be realized.
Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosures of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of reporting cash flows, the Company considers all highly-liquid
debt instruments purchased with a maturity of three months or less to be cash
equivalents.
Revenue Recognition
Revenue is recognized on the accrual method of accounting.
Income (Loss) Per Common Share
Income (Loss) per common share is computed by dividing net loss available to
common stockholders by the weighted average number of common shares
outstanding during the periods presented.
NOTE 2: INCOME TAXES
At December 31, 2005, the Company has a net operating loss carryover of $55,540 which expires as follows:
Year ended Amount Federal Expiration Date
December 31, 1996 $ 5,636 December 31, 2011
December 31, 1997 6,232 December 31, 2012
December 31, 1998 3,462 December 31, 2018
December 31, 1999 4,055 December 31, 2019
December 31, 2000 147 December 31, 2020
December 31, 2001 2,896 December 31, 2021
December 31, 2002 2,861 December 31, 2022
December 31, 2003 8,449 December 31, 2023
December 31, 2004 9,385 December 31, 2024
December 31, 2005 12,417 December 31, 2025
----------------
$ 55,540
================
|
However, due to the fact that the Company will most likely enter a new line of business and has had a change in control, the loss will most likely never be utilized.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (continued)
December 31, 2005 and 2004
NOTE 2: INCOME TAXES (continued)
At December 31, 2005, the Company has a deferred tax asset in the amount of $18,884. The amount has been reserved 100% due to the Company's history of losses.
The increase in the valuation allowance was $4,222 and $3,191 for the years ended December 31, 2005 and 2004 respectively.
Components of income tax are as follows:
2005 2004
Current
Federal $ 0 $ 0
State 0 0
----------- --------------
0 0
Deferred 0 0
----------- --------------
$ 0 $ 0
=========== ==============
|
A reconciliation of the provision for income tax expense with the expected income tax computed by applying the federal statutory income tax to income before provision for income taxes is as follows:
2005 2004
Income tax computed at
Federal statutory tax rate $ (4,222) $ (3,191)
Deferred taxes and other 4,222 3,191
State taxes (net of federal
benefit) 0 0
--------- -----------
$ 0 $ 0
========= ===========
|
NOTE 3: COMMITMENTS, CONTINGENCIES AND LEGAL MATTERS
Management of the Company has conducted a diligent search and concluded that there were no commitments, contingencies or legal matters pending at the balance sheet date that have not been disclosed.
NOTE 4: ACCOUNTS PAYABLE - RELATED PARTIES
At December 31, 2005, the Company owed $42,782 to related parties for money advanced to the Company or expenses paid on behalf of the Company. $2,600 bears interest at 24% per year, and $3,500 bears interest at 18% per year. Total accrued interest at December 31, 2005 was $4,982.
The Company also owes $5,000 to a related party. The $5,000 was due on October 13, 2005 and accrues a total interest of $2,500 on that date. The $5,000 is convertible to common stock at $.07 per share, which is not less than the fair market value of the stock on the date the loan was made. The $2,500 interest on the note is also convertible to common stock at $.07 per share which is not less than the fair market value of the stock on the date the loan was made.
NOTE 5: STOCK TRANSACTIONS
The Company raised $811 from various individuals from the sale of its common stock. Form "D" was filed with the Securities and Exchange Commission to report the sales. $3,000 was also raised from the sale of preferred stock. The preferred stock was later cancelled during an ownership change of the Company. 50,000 shares were issued in 2003 for services of $500.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (continued)
December 31, 2005 and 2004
NOTE 5: STOCK TRANSACTIONS (continued)
In April, 2005, the Company purchased and retired 59,050 shares of its common stock. The Company paid $5,000 for the shares.
The preferred stock has the following preferences: [a] the stock is non-
voting; [b] holders of the stock have the right to receive a mandatory
dividend of 10% of the Company's adjusted gross profit as reflected on the
annual tax return, and the dividend is to be paid within ten days of the
filing of the tax return (to date no dividends have been required to be paid);
[c] upon dissolution or winding up of the Company, 10% of the Company's assets
shall be distributed to the holders of the preferred stock prior to division
and distribution of assets to the holders of the Company's common stock.
NOTE 6: GOING CONCERN
The Company's financial statements have been presented on the basis that it is a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. At December 31, 2005, the Company has an accumulated deficit of $60,510 and a working capital deficit of $56,229.
The Company's continued existence is dependent on its ability to generate sufficient cash flow to cover operating expenses and to invest in future operations. Management has prepared the following plan to address the Company's ability to continue as a going concern:
The Company is looking for business opportunities. If none are found the Company will look to related parties to fund continuing operations.
GULF & ORIENT
STEAMSHIP COMPANY, LTD.
FINANCIAL STATEMENTS
March 31, 2006 and 2005
CONTENTS
PAGE
BALANCE SHEET. . . . . . . . . . . . . . . . . . . . . . . F-2
STATEMENTS OF OPERATIONS . . . . . . . . . . . . . . . . . F-3
STATEMENTS OF CASH FLOWS . . . . . . . . . . . . . . . . . F-4
NOTES TO FINANCIAL STATEMENTS. . . . . . . . . . . . . . . F-5
|
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
BALANCE SHEET
(Unaudited)
March 31,
2006
ASSETS
CURRENT ASSETS
Cash $ 0
----------
TOTAL CURRENT ASSETS 0
----------
$ 0
==========
|
LIABILITIES AND
SHAREHOLDERS' DEFICIT
CURRENT LIABILITIES
Bank overdraft $ 38
Accounts payable 12,582
Payable - related parties (Note 4) 44,626
----------
TOTAL CURRENT LIABILITIES 57,246
----------
TOTAL LIABILITIES 57,246
SHAREHOLDERS' DEFICIT
Preferred stock no par value, non-voting,
5,000,000 shares authorized; 0 shares issued
and outstanding 0
Common stock no par value, 50,000,000
shares authorized; 1,611,950 shares issued
and outstanding 4,281
Deficit accumulated during development stage (61,527)
----------
TOTAL SHAREHOLDERS' DEFICIT (57,246)
----------
$ 0
==========
|
See Notes to Unaudited Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
STATEMENTS OF OPERATIONS
(Unaudited)
Period
from
5/9/96
Three months (Date of
ended March 31, inception) to
2006 2005 3/31/2006
Income $ 0 $ 0 $ 0
------------- ----------- -----------
Expenses:
General and Administrative expenses 708 1,139 51,266
Interest expense 309 225 5,291
------------- ----------- -----------
1,017 1,364 56,557
------------- ----------- -----------
(LOSS) BEFORE TAXES (1,017) (1,364) (56,557)
PROVISION FOR INCOME TAXES 0 0 0
------------- ----------- -----------
NET (LOSS) $ (1,017)$ (1,364) $ (56,557)
============= =========== ===========
(LOSS) PER COMMON SHARE
Basic and diluted net (loss) per
weighted average common share
outstanding $ (.00)$ (.00)
============= ===========
Weighted average number of common
shares outstanding 1,611,950 1,671,000
============= ===========
|
See Notes to Unaudited Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
STATEMENTS OF CASH FLOWS
(Unaudited)
Period
from
5/9/96
Three months (Date of
ended March 31, inception) to
2006 2005 3/31/2006
OPERATING ACTIVITIES
Net (loss) $ (1,017) $ (1,364) $ (56,557)
Adjustments to reconcile net (loss)
to net cash provided (required) by
operating activities
Stock issued for expenses 0 0 500
Interest expense 309 225 5,291
Changes in assets and liabilities
Accounts payable (885) (1,273) 12,582
Payable - related parties 1,535 2,500 39,335
--------- ---------- ----------
NET CASH PROVIDED (REQUIRED)
BY OPERATING ACTIVITIES (58) 88 1,151
FINANCING ACTIVITIES
Stock sold 0 0 3,811
Purchase treasury stock 0 0 (5,000)
--------- ---------- ----------
NET CASH PROVIDED (REQUIRED)
BY FINANCING ACTIVITIES 0 0 (1,189)
--------- ---------- ----------
NET INCREASE (DECREASE)
IN CASH (58) 88 (38)
CASH AT BEGINNING
OF PERIOD 20 61 0
--------- ---------- ----------
CASH AT END OF PERIOD $ (38) $ 149 $ (38)
========= ========== ==========
Cash paid for
Interest $ 0 $ 0 $ 0
Income taxes 0 0 0
|
See Notes to Unaudited Financial Statements.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO UNAUDITED FINANCIAL STATEMENTS
March 31, 2006 and 2005
NOTE 1: SUMMARY OF HISTORY AND SIGNIFICANT ACCOUNTING POLICIES
Nature of Operations
The Company was incorporated in the State of Colorado on May 9, 1996. The
Company originally intended to engage in the business of marine
transportation. These plans did not materialize.
Development Stage Company
The financial statements present the Company as a development stage company
because of its short operating history. The Company is looking for business
opportunities.
Income Taxes
The Company utilizes the liability method of accounting for income taxes as
set forth in Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes" (SFAS 109). Under the liability method, deferred taxes are
determined based on the difference between the financial statement and tax
bases of assets and liabilities using enacted tax rates in effect in the years
in which the differences are expected to reverse. An allowance against
deferred tax assets is recorded when it is more likely than not that such tax
benefits will not be realized.
Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosures of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of reporting cash flows, the Company considers all highly-liquid
debt instruments purchased with a maturity of three months or less to be cash
equivalents.
Revenue Recognition
Revenue is recognized on the accrual method of accounting.
Income (Loss) Per Common Share
Income (Loss) per common share is computed by dividing net loss available to
common stockholders by the weighted average number of common shares
outstanding during the periods presented.
NOTE 2: INCOME TAXES
At December 31, 2005, the Company has a net operating loss carryover of $55,540 which expires as follows:
Year ended Amount Federal Expiration Date
December 31, 1996 $ 5,636 December 31, 2011
December 31, 1997 6,232 December 31, 2012
December 31, 1998 3,462 December 31, 2018
December 31, 1999 4,055 December 31, 2019
December 31, 2000 147 December 31, 2020
December 31, 2001 2,896 December 31, 2021
December 31, 2002 2,861 December 31, 2022
December 31, 2003 8,449 December 31, 2023
December 31, 2004 9,385 December 31, 2024
December 31, 2005 12,417 December 31, 2025
-------------
$ 55,540
=============
|
However, due to the fact that the Company will most likely enter a new line of business and has had a change in control, the loss will most likely never be utilized.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO UNAUDITED FINANCIAL STATEMENTS (continued)
March 31, 2006 and 2005
NOTE 2: INCOME TAXES (continued)
At March 31, 2006, the Company has a deferred tax asset in the amount of $19,229. The amount has been reserved 100% due to the Company's history of losses.
The increase in the valuation allowance was $345 and $464 for the quarters ended March 31, 2006 and 2005 respectively.
Components of income tax are as follows:
2006 2005
Current
Federal $ 0 $ 0
State 0 0
------------ ----------
0 0
Deferred 0 0
------------ ----------
$ 0 $ 0
============ ==========
|
A reconciliation of the provision for income tax expense with the expected income tax computed by applying the federal statutory income tax to income before provision for income taxes is as follows:
2006 2005
Income tax computed at
Federal statutory tax rate $ (345) $ (464)
Deferred taxes and other 345 464
State taxes (net of federal
benefit) 0 0
----------- ----------
$ 0 $ 0
=========== ==========
|
NOTE 3: COMMITMENTS, CONTINGENCIES AND LEGAL MATTERS
Management of the Company has conducted a diligent search and concluded that there were no commitments, contingencies or legal matters pending at the balance sheet date that have not been disclosed.
NOTE 4: ACCOUNTS PAYABLE - RELATED PARTIES
At March 31, 2006, the Company owed $44,626 to related parties for money advanced to the Company or expenses paid on behalf of the Company. $2,600 bears interest at 24% per year, and $3,500 bears interest at 18% per year. Total accrued interest at March 31, 2006 is $5,291.
The Company also owes $5,000 to a related party. The $5,000 was due on October 13, 2005 and accrues a total interest of $2,500 on that date. The $5,000 is convertible to common stock at $.07 per share, which is not less than the fair market value of the stock on the date the loan was made. The $2,500 interest on the note is convertible to common stock at $.07 per share which is not less than the fair market value of the stock on the date the loan was made.
NOTE 5: STOCK TRANSACTIONS
The Company raised $811 from various individuals from the sale of its common stock. Form "D" was filed with the Securities and Exchange Commission to report the sales. $3,000 was also raised from the sale of preferred stock. The preferred stock was later cancelled during an ownership change of the Company. 50,000 shares were issued in 2003 for services of $500.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
(A Development Stage Company)
NOTES TO UNAUDITED FINANCIAL STATEMENTS (continued)
December 31, 2005 and 2004
NOTE 5: STOCK TRANSACTIONS (continued)
In April, 2005, the Company purchased and retired 59,050 shares of its common stock. The Company paid $5,000 for the shares.
The preferred stock has the following preferences: [a] the stock is non-
voting; [b] holders of the stock have the right to receive a mandatory
dividend of 10% of the Company's adjusted gross profit as reflected on the
annual tax return, and the dividend is to be paid within ten days of the
filing of the tax return (to date no dividends have been required to be paid);
[c] upon dissolution or winding up of the Company, 10% of the Company's assets
shall be distributed to the holders of the preferred stock prior to division
and distribution of assets to the holders of the Company's common stock.
NOTE 6: GOING CONCERN
The Company's financial statements have been presented on the basis that it is a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. At March 31, 2006, the Company has an accumulated deficit of $61,527 and a working capital deficit of $57,246.
The Company's continued existence is dependent on its ability to generate sufficient cash flow to cover operating expenses and to invest in future operations. Management has prepared the following plan to address the Company's ability to continue as a going concern:
The Company is looking for business opportunities. If none are found the Company will look to related parties to fund continuing operations.
PART III
Item 1. Index to Exhibits.
The following Exhibits are filed as a part of this initial Registration Statement.
Item 2. Description of Exhibits.
Exhibit
Number Description
------- -----------
3.1 Articles of Incorporation Filed May 9, 1996
3.2 By-Laws
99.1 Registration Agreement of Michael Vardakis and Vincent
Lombardi
99.2 Lock-up/Leak-out of Leonard W. Burningham, Esq.
|
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, there unto duly authorized.
GULF & ORIENT STEAMSHIP COMPANY, LTD.
Date: 05/31/2006 By:/s/Michael Vardakis
---------- -----------------------
Michael Vardakis
President and Director
Date: 06/06/2006 By:/s/Melissa Ladakis
---------- -----------------------
Melissa Ladakis
Secretary/Treasurer and Director
|
Exhibit 3.1
ARTICLES OF INCORPORATION OF
GULF & ORIENT STEAMSHIP COMPANY, LTD.
KNOW ALL MEN BY THESE PRESENTS that the undersigned Incorporator being a natural person of the age of eighteen years of age or older and desiring to form a body corporate under the laws of the State of Colorado does hereby sign, verify and deliver in duplicate to the Secretary of State of the State of Colorado these Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is GULF & ORIENT STEAMSHIP COMPANY, LTD.
ARTICLE II
Period of Duration
This Corporation shall exist in perpetuity, from and after the date of filing these Articles of Incorporation with the Secretary of State of Colorado unless and until dissolved according to the laws of the State of Colorado.
ARTICLE III
Purposes
Section 1. Specific Purposes
A. To engage in the business of marine transportation.
B. To provide ocean going shipping of goods internationally.
Section 2. General Purposes
A. To own, operate and maintain such real or personal property as may be necessary to conduct such business and to do all of the things in connection with the real or personal property which might be done by an individual.
B. To hire and employ agents and employees, and to enter into agreements of employment and collective bargaining agreements for the purpose of advancement and performance of the purposes of this Corporation.
C. To carry on any other business, whether or not related to the foregoing, including the transaction of all lawful business for which corporations may be organized pursuant to the Colorado Corporation Act, to have and exercise all powers, privileges and immunities now or hereafter conferred upon or permitted to corporations by the laws of the State of Colorado, and to do any and all things herein set forth to the same extent as natural persons could do insofar as permitted by the laws of the State of Colorado.
D. To do those things which are authorized and permitted by the Colorado Corporations Code.
E. To do all things authorized by law or incidental thereto.
ARTICLE IV
Powers
The powers of the Corporation shall be those powers granted by Article Two of the Colorado Corporation Code under which this Corporation is formed. In addition, the Corporation shall have the following specific powers:
Section 1. Officers. The Corporation shall have the power to elect or appoint officers and agents of the Corporation and to fix their compensation.
Section 2. Capacity. The Corporation shall have the power to act as an agent for any individual, association, partnership, corporation or other legal entity, and to act as general partner for any limited partnership.
Section 3. Acquisitions. The Corporation shall have the power to receive, acquire, hold, exercise rights arising out of the ownership or possession thereof, sell, or otherwise dispose of, shares or other interests in, or obligations of, individuals, associations, partnerships, corporations or governments.
Section 4. Earned Surplus. The Corporation shall have the power to receive, acquire, hold, pledge, transfer, or otherwise dispose of shares of the Corporation, but such shares may only be purchased, directly or indirectly, out of earned surplus.
Section 5. Gifts. The Corporation shall have the power to make gifts or contributions for the public welfare or for charitable, scientific or educational purposes.
ARTICLE V
Capital Structure
Section 1. Authorized Capital. The aggregate number of shares and the amount of the total authorized capital of said Corporation shall consist of 50,000,000 shares of common stock, no par value per share, and 5,000,000 shares of non-voting preferred stock, no par value per share.
Section 2. Share Status. All common shares will be equal to each other, and when issued, shall be fully paid and nonassessable, and the private property of shareholders shall not be liable for corporate debts. Preferred shares shall have such preferences as the Directors may assign to them prior to issuance. Each holder of a common share of record shall have one vote for each share of stock outstanding in his name on the books of the Corporation and shall be entitled to vote said stock.
Section 3. Consideration for Shares. The common stock of the Corporation shall be issued for such consideration as shall be fixed from time to time by the Board of Directors. In the absence of fraud, the judgment of the Directors as to the value of any property or services received in full or partial payment for shares shall be conclusive. When shares are issued upon payment of the consideration fixed by the Board of Directors, such shares shall be taken to be fully paid stock and shall be nonassessable.
Section 4. Pre-Emptive Rights. Except as may otherwise be provided by the Board of Directors, holders of shares of stock of the Corporation shall have no preemptive right to purchase, subscribe for or otherwise acquire shares of stock of the Corporation, rights, warrants or options to purchase stocks or securities of any kind convertible into stock of the Corporation.
Section 5. Dividends. Dividends in cash, property or shares of the Corporation may be paid, as and when declared by the Board of Directors, out of funds of the Corporation to the extent and in the manner permitted by law.
Section 6. Distribution in Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, and after paying or adequately providing for the payment of all its obligations, the remainder of the assets of the Corporation shall be distributed, either in cash or in kind, pro rata to the holders of the common stock, subject to preferences, if any, granted to holders of the preferred shares. The Board of Directors may, from time to time, distribute to the shareholders in partial liquidation from stated capital of the Corporation, in cash or property, without the vote of the shareholders, in the manner permitted and upon compliance with limitations imposed by law.
ARTICLE VI
Voting by Shareholders
Section 1. Voting Rights: Cumulative Voting. Each outstanding share of common stock is entitled to one vote and each fractional share of common stock is entitled to a corresponding fractional vote on each matter submitted to a vote of shareholders. Cumulative voting shall not be allowed in the election of Directors of the Corporation and every shareholder entitled to vote at such election shall have the right to vote the number of shares owned by him for as many persons as there are Directors to be elected, and for whose election he has a right to vote. Preferred shares have no voting rights unless granted by amendment to these Articles of Incorporation.
Section 2. Majority Vote. When, with respect to any action to be taken by the Shareholders of the Corporation, the Colorado Corporation Code requires the vote or concurrence of the holders of two-thirds of the outstanding shares entitled to vote thereon, or of any class or series, any and every such action shall be taken, notwithstanding such requirements of the Colorado Corporation Code, by the vote or concurrence of the holders of a majority of the outstanding shares entitled to vote thereon, or of any class or series.
ARTICLE VII
Registered and Initial Principal Office and Registered Agent
The registered office and initial principal office of the Corporation is located at 1291 South Lincoln Street, Denver, Colorado 80210, and the name of the registered agent of the Corporation at such address is Edward H. Hawkins.
ARTICLE VIII
Incorporator
The name and address of the Incorporator is Edward H. Hawkins, 1291 South Lincoln Street, Denver, Colorado 80210.
ARTICLE IX
Board of Directors
Section 1. The corporate powers shall be exercised by a majority of the Board of Directors. The number of individuals to serve on the Board of Directors shall be set forth in the Bylaws of the Corporation; provided, however, that the initial Board of Directors shall consist of one person below-named to manage the affairs of the Corporation until such time as he resigns or his successor is elected by a majority vote of the Shareholders:
Name of Director Address
Edward H. Hawkins 1291 So. Lincoln St. Denver, CO 80210
Section 2. If in the interval between the annual meetings of shareholders of the Corporation, the Board of Directors of the Corporation deems it desirable that the number of Directors be increased, additional Directors may be elected by a unanimous vote of the Board of Directors of the Corporation then in office, or as otherwise set forth in the Bylaws of the Corporation.
Section 3. The number of Directors comprising the whole Board of Directors may be increased or decreased from time to time within such foregoing limit as set forth in the Bylaws of the Corporation.
ARTICLE X
Powers of the Board of Directors
In furtherance and not in limitation of the powers conferred by the State of Colorado, the Board of Directors is expressly authorized and empowered:
Section 1. Bylaws. To make, alter, amend and repeal the Bylaws, subject to the power of the shareholders to alter or repeal the Bylaws made by the Board of Directors.
Section 2. Books and Records. Subject to the applicable provisions of the Bylaws then in effect, to determine, from time to time, whether and to what extent, and at what times and places, and under what conditions and regulations, the accounts and books of the Corporation or any of them, shall be open to shareholder inspection. No shareholder shall have any right to inspect any of the accounts, books, or documents of the Corporation, except as permitted by law, unless and until authorized to do so by resolution of the Board of Directors or of the shareholders of the Corporation.
Section 3. Power to Borrow. To authorize and issue, without shareholder consent, obligations of the Corporation, secured and unsecured, under such terms and conditions as the Board, in its sole discretion, may determine, and to pledge, or mortgage, as security therefor, any real or personal property of the Corporation, including after-acquired property.
Section 4. Dividends. To determine whether any and, if so, what part, of the earned surplus of the Corporation shall be paid in dividends to the shareholders, and to direct and determine other use and disposition of any such earned surplus.
Section 5. Profits. To fix, from time to time, the amount of the profits of the Corporation to be reserved as working capital or for any other lawful purposes.
Section 6. Employees Plans. From time to time to provide and carry out and to recall, abolish, revise, amend, alter, or change a plan or plans for the participation by all or any of the employees, including Directors and officers of this Corporation or of any corporation in which or in the welfare of which the Corporation has any interest, and those actively engaged in the conduct of this Corporation's business, in the profits of this Corporation or of any branch or division thereof, as a part of this Corporation's legitimate expenses, and for the furnishing to such employees and persons, or any of them, at this Corporation's expense, of medical services, insurance against accident, sickness, or death, pensions during old age, disability, or unemployment, education, housing, social services, recreation, or other similar aids for their relief or general welfare, in such manner and upon such terms and conditions as may be determined by the Board of Directors.
Section 7. Warrants and Options. The Corporation, by resolution or resolutions of its Board of Directors, shall have power to create and issue, whether or not in connection with the issue and sale of any shares of any other securities of the Corporation, warrants, rights, or options entitling the holders thereof to purchase from the Corporation any shares of any class or classes of any other securities of the Corporation, such warrants, rights or options to be evidenced by or in such instrument or instruments as shall be approved by the Board of Directors. The terms upon which, the time or times (which may be limited or unlimited in duration), and the price or prices (not less than the minimum amount prescribed by law, if any) at which any such warrants, rights, or options may be issued and any such shares or other securities may be purchased from the Corporation upon the exercise of such warrant, right, or option shall be such as shall be fixed and stated in the resolution or resolutions of the Board of Directors providing for the creation and issue of such warrants, rights or options. The Board of Directors is hereby authorized to create and issue any such warrants, rights or options from time to time for such consideration, and to such persons, firms, or corporations, as the Board of Directors may determine.
Section 8. Compensation. To provide for the reasonable compensation of its own members, and to fix the terms and conditions upon which such compensation will be paid.
Section 9. Not in Limitation. In addition to the powers and authority hereinabove, or by statute expressly conferred upon it, the Board of Directors may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the laws of the State of Colorado, of these Articles of Incorporation and of the Bylaws of the Corporation.
ARTICLE XI
Right of Directors to Contract with Corporation
No contract or other transaction between this Corporation and one or more of its Directors or any other corporation, firm, association, or entity in which one or more of its Directors are directors or officers or are financially interested shall be either void or voidable solely because of such relationship or interest or solely because such directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves, or ratifies such contract or transaction or solely because their votes are counted for such purpose if:
A. The fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes of consents of such interested Directors; or
B. The fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve, or ratify such contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the Corporation.
ARTICLE XII
Corporate Opportunity
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 this Corporation's Board of Directors as evidenced by resolutions appearing in the Corporation's minutes. Once such areas of interest are delineated, all such business opportunities within such areas of interest 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 thereafter 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 right of any officer, Director or other member of management of this Corporation to continue a business existing prior to the time that such area of interest is designated by the Corporation. This provision shall not be construed to release any employee of this Corporation (other than an officer, Director or member of management) from any duties which he may have to this Corporation.
ARTICLE XIII
Indemnification of Officers, Directors and Others
The Board of Directors of the Corporation shall have the power to:
A. Indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in the best interests of the Corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
B. Indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of the Corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney's fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in the best interests of the Corporation; but no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which such court deems proper.
C. Indemnify a Director, officer, employee or agent of the Corporation to the extent that such person has been successful on the merits in defense of any action, suit or proceeding referred to in Subparagraph A or B of this Article or in defense of any claim, issue, or matter therein, against expenses (including attorney's fees) actually and reasonably incurred by him in connection therewith.
D. Authorize indemnification under Subparagraph A or B of this Article (unless ordered by a court) in the specific case upon a determination that indemnification of the Director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in said Subparagraph A or B. Such determination shall be made by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or, if such a quorum is not obtainable or even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or by the shareholders.
E. Authorize payment of expenses (including attorney's fees) incurred in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding as authorized in Subparagraph D of this Article upon receipt of an undertaking by or on behalf of the Director, officer, employee or agent to repay such amount unless it is ultimately determined that he is entitled to be indemnified by the Corporation as authorized in this Article.
F. Purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or who is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provision of this Article.
The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under these Articles of Incorporation, and the Bylaws, agreement, vote of shareholders or disinterested directors or otherwise, and any procedure provided for by any of the foregoing, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of heirs, executors and administrators of such a person.
ARTICLE XIV
Right to Amend
The right is expressly reserved to amend, alter, change, or repeal any provision or provisions contained in these Article of Incorporation or any Article herein by a majority vote of the members of the Board of Directors, and a majority vote of the shareholders of the Corporation.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 9th day of May 1996.
/s/Edward H. Hawkins
Edward H. Hawkins, Incorporator
CONSENT OF AGENT
|
The undersigned hereby consents to the appointment as agent for Sandhurst Enterprises, Inc. under the Section 105 of the Colorado Business Corporation Act, until such time as he resigns such position.
/s/Edward H. Hawkins Edward H. Hawkins, Agent, 4155 E. Jewell Ave., Suite 909, Denver, CO 80222 |
Exhibit 3.2
BYLAWS
OF
GULF & ORIENT STEAMSHIP COMPANY, LTD.
ARTICLE I
Offices
The principal office of the Corporation in Colorado shall initially be located in Denver, Colorado. The Corporation may have such other offices, either within or outside the State of Colorado, as the Board of Directors may designate, or as the business of the Corporation may require from time to time.
The registered office of the Corporation required by the Colorado Business Corporation Act to be maintained in the State of Colorado may be, but need not be, identical with the principal office, and the address of the registered office may be changed from time to time by the Board of Directors.
ARTICLE II
Shareholders
Section 1. Annual Meeting.
The annual meeting of the shareholders shall be held pursuant to notice given by the Board of Directors for the purpose of electing directors and for the transaction of such other business as may come before the meeting.
Section 2. Special Meetings.
Special meetings of the shareholders, for any purpose, unless otherwise prescribed by statute, may be called by the President or by the Board of Directors, and shall be called by the President at the request of the holders of not less than ten (10%) percent of all the outstanding shares of the Corporation entitled to vote at the meeting. Such request shall state the purposes of the proposed meeting.
Section 3. Adjournment.
When the annual meeting is convened, or when any special meeting is convened, the presiding officer may adjourn it for such period of time as may be reasonably necessary to reconvene the meeting at another place and another time.
The presiding officer shall have the power to adjourn any meeting of the shareholders for any proper purpose, including, but not limited to, lack of a quorum, to secure a more adequate meeting place, to elect officials to count and tabulate votes, to review any shareholder proposals or to pass upon any challenge which may properly come before the meeting.
When a meeting is adjourned to another time or place, it shall not be necessary to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and any business may be transacted at the adjourned meeting that might have been transacted on the original date of the meeting. If, however, after the adjournment the Board fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given in compliance with Subsection (4)(a) of this Article II to each shareholder of record on the new record date entitled to vote at such meeting.
Section 4. Notice of Meeting: Purpose of Meeting: Waiver
a. Each shareholder of record entitled to vote at any meeting shall be given in person or by first class mail, postage prepaid, written notice of such meeting which, in the case of a special meeting, shall set forth the purpose(s) for which the meeting is called, not less than ten (10) or more then fifty (50) days before the date of such meeting. If mailed, such notice is to be sent to the shareholder's address as it appears on the stock transfer books of the Corporation unless the shareholder shall have requested of the Secretary in writing at least fifteen (15) days prior to the distribution of any required notice that any notice intended for him to be sent to some other address, in which case the notice may be sent to the address so designated. Notwithstanding any such request by a shareholder, notice sent to a shareholder's address as it appears on the stock transfer books of this Corporation as of the record date shall be deemed properly given. Any notice of a meeting sent by the United States mail shall be deemed delivered when deposited with proper postage thereon with the United States Postal Service or in any mail receptacle under its control.
b. A shareholder waives notice of any meeting by attendance, either in person or by proxy, at such meeting or by waiving notice in writing either before, during or after such meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened, however, will not constitute a waiver of notice by a shareholder stating at the beginning of the meeting, his objection that the meeting is not lawfully called or convened.
c. Whenever the holders of at least eighty (80%) percent of the capital stock of the Corporation having the right to vote shall be present at any annual or special meeting of shareholders, however called or notified, and shall sign a written consent thereto on the minutes of such meeting, the meeting shall be valid for all purposes.
d. A Waiver of Notice signed by all shareholders entitled to vote at a meeting of shareholders may also be used for any other proper purpose including, but not limited to, designating any place within or without the State of Colorado as the place for holding such a meeting.
e. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of shareholders need be specified in any written Waiver of Notice.
Section 5. Closing of Transfer Books; Record Date: Shareholders' List.
a. In order to determine the holders of record of the capital stock of the Corporation who are entitled to notice of meetings, to vote at a meeting or adjournment thereof, or to receive payment of any dividend, or for any other purpose, the Board of Directors may fix a date not more than fifty (50) days prior to the date set for any of the abovementioned activities for such determination of shareholders.
b. 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, such books shall be closed for at least ten (10) days immediately preceding such meeting.
c. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the date for such determination of shareholders, such date in any case to be not more-than fifty (50) days and, in 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, is to be taken.
d. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice or to vote at a meeting of shareholders, or to receive payment of a dividend, the date 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.
e. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date under this section for the adjourned meeting.
f. The officer or agent having charge of the stock transfer books of the Corporation shall make, as of a date at least ten (10) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, with the address of each shareholder and the number and class and series, if any, of shares held by each shareholder. Such list shall be kept on file at the registered office of the Corporation or at the office of the transfer agent or registrar of the Corporation for a period of ten (10) days prior to such meeting and shall be available for inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of any meeting of shareholders and shall be subject to inspection by any shareholder at any time during the meeting.
g. The original stock transfer books shall be prima facie evidence as to the shareholders entitled to examine such list or stock transfer books or to vote at any meeting of shareholders.
h. If the requirements of Subsection 5(f) of this Article II have not been substantially complied with then, on the demand of any shareholder in person or by proxy, the meeting shall be adjourned until such requirements are complied with.
i. If no demand pursuant to Section 5(h) is made, failure to comply with the requirements of this Section shall not affect the validity of any action taken at such meeting.
j. Subsection 5(g) of this Article II shall be operative only at such time(s) as the Corporation shall have six (6) or more shareholders.
Section 6. Quorum.
a. At any meeting of the shareholders of the Corporation, the presence, in person or by proxy, of shareholders owning a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote thereat shall be necessary to constitute a quorum for the transaction of any business. If a quorum is present the affirmative vote of a majority of the shares represented at such meeting and entitled to vote on the subject matter shall be the act of the shareholders. If there shall not be a quorum at any meeting of the shareholders of the Corporation, then the holders of a majority of the shares of the capital stock of the Corporation who shall be present at such meeting, in person or by proxy, may adjourn such meeting from time to time until holders of a majority of the shares of the capital stock shall attend. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally scheduled.
b. The shareholders at a duly organized meeting having a quorum may continue to transact business until adjournment notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
Section 7. Presiding Officer; Order of Business.
a. Meetings of the shareholders shall be presided over by the Chairman of the Board, or, if he is not present, by the President or, if he is not present, by a Vice President or, if none of the Chairman of the Board, the President, or a Vice President is present, the meeting shall be presided over by a Chairman to be chosen by a plurality of the shareholders entitled to vote at the meeting who are present, in person or by proxy. The presiding officer of any meeting of the shareholders may delegate the duties and obligations of the presiding officer of the meeting as he sees fit.
b. The Secretary of the Corporation, or, in his absence, an Assistant Secretary shall act as Secretary of every meeting of shareholders, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting shall choose any person present to act as Secretary of the meeting.
c. The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous shareholders meeting or a
Waiver thereof.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Regular and miscellaneous business.
8. Special matters.
9. Adjournment.
d. Notwithstanding the provisions of Article II, Section 7,
Subsection c, the order and topics of business to be transacted at any meeting
shall be determined by the presiding officer of the meeting in his sole
discretion. In no event shall any variation in the order of business or
additions and deletions from the order of business as specified in Article II,
Section 7, Subsection c, invalidate any actions properly taken at any meeting.
Section 8. Voting.
a. Unless otherwise provided for in the Certificate of Incorporation, each shareholder shall be entitled, at each meeting and upon each proposal to be voted upon, to one vote for each share of voting stock recorded in his name on the books of the Corporation on the record date fixed as provided for in Article II, Section 5.
b. The presiding officer at any meeting of the shareholders shall have the power to determine the method and means of voting when any matter is to be voted upon. The method and means of voting may include, but shall not be limited to, vote by ballot, vote by hand or vote by voice. However, no method of voting may be adopted which fails to take account of any shareholder's right to vote by proxy as provided for in Section 10 of this Article II. In no event may any method of voting be adopted which would prejudice the outcome of the vote.
Section 9. Action Without Meeting.
a. Any action required to be taken at any annual or special meeting of shareholders of the Corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any class of shares is entitled to vote thereon as a class, such written consent shall be required of the holders of a majority of the shares of each class of shares entitled to vote thereon.
b. Within ten (10) days after obtaining such authorization by written consent, notice must be given to those shareholders who have not consented in. writing. The notice shall fairly summarize the material features of the authorized action and, if the action be a merger, consolidation or sale or exchange of assets for which dissenters' rights are provided under the Colorado Business Corporation Act, the notice shall contain a clear statement of the right of the shareholders dissenting therefrom to be paid the fair value of their shares upon compliance with further provisions of the Colorado Business Corporation Act regarding the rights of dissenting shareholders.
c. In the event, that the action to which the shareholders' consent is such as would have required the filing of a certificate under the Colorado Business Corporation Act if such action had been voted on by shareholders at a meeting thereof, the certificate filed under such other section shall state that written consent has been given in accordance with the provisions of this Article II, Section 9.
Section 10. Proxies.
a. Every shareholder entitled to vote at a meeting of shareholders or to express consent or discuss without a meeting, or his duly authorized attorney-in-fact may authorize another person or persons to act for him by proxy.
b. Every proxy must be sued by the shareholder or his attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy shall he revocable at the pleasure of the shareholder executing it, except as otherwise provided in this Article II, Section 10.
c. The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the shareholder who executed the proxy unless, before the authority is exercised, written notice of an adjudication of such incompetence or of such death is received by the corporate officer responsible for maintaining the list of shareholders.
d. Except when other provisions shall have been made by written agreement between the parties, the record holder of shares held as pledges or otherwise as security or which belong to another, shall issue to the pledgor or to such owner of such shares, upon demand therefor and payment of necessary expenses thereof, a proxy to vote or take other action thereon.
e. A proxy which states that it is irrevocable is irrevocable when it is
held by any of the following or a nominee of any of the following: (i) a
pledgee; (ii) a person who has purchased or agreed to purchase the shares;
(iii) a creditor or creditors of the Corporation who extend or continue to
extend credit to the Corporation in consideration of the proxy, if the proxy
states that it was given in consideration of such extension or continuation of
credit, they amount thereof, and the name of the person extending or
continuing credit; (iv) a person who has contracted to perform services as an
officer of the Corporation, if a proxy is required by the contract of
employment, if the proxy states that it was given in consideration of such
contract of employment and states the name of the employee and the period of
employment contracted for; and (v) a person designated by or under an
agreement as provided in Article XI hereof.
f. Notwithstanding a provision in a proxy stating that it is irrevocable, the proxy becomes revocable after the pledge is redeemed, or the debt of the Corporation is paid, or the period of employment provided for in the contract of employment has terminated, or the agreement under Article XII hereof, has terminated and, in a case provided for in Subsection 10(e)(iii) or Subsection 10(e)(iv) of this Article II becomes irrevocable three years after the date of the proxy or at the end of the period, if any, specified therein, whichever period is less, unless the period of irrevocability is renewed from time to time by the execution of a new irrevocable proxy as provided in this Article II, Section 10. This Subsection 10(f) does not affect the duration of a prosy under Subsection 10(b) of this Article II.
g. A proxy may be revoked, notwithstanding a provision making it irrevocable, by a purchaser of shares without knowledge of the existence of the provision unless the existence of the proxy and its irrevocability is noted conspicuously on the face or back of the certificate representing such shares.
h. If a proxy for the same shares confers authority upon two (2) or more persons and does not otherwise provide a majority of such persons present at the meeting, or if only one is present, then that one may exercise all the powers conferred by the proxy. If the proxy holders present at the meeting are equally divided-as to the right and manner of voting in any particular case, the voting of such shares shall be prorated.
i. If a proxy expressly so provides, any proxy holder may appoint in writing a substitute to act in his place.
Section 11. Voting of Shares by Shareholders.
a. Shares standing in the name of another corporation, domestic or foreign. may he voted by the officer, agent, or proxy designated by the Bylaws of the corporate shareholder: or, in the absence of any applicable Bylaw; by such person as the Board of Directors of the corporate shareholder may designate. Proof of such designation may be made by presentation of a certified copy of the Bylaws or other instrument of the corporate shareholder. In the absence of any such designation, or in case of conflicting designation by the corporate shareholder, the Chairman of the Board, President, any vice president, secretary and treasurer of the corporate shareholder, in that order shall be presumed to possess authority to vote such shares.
b. Shares held by an administrator, executor, guardian or conservator may be voted by him, either in person or by proxy; without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name.
c. Shares standing in the name of a receiver may be voted by such receiver. Shares held by or under the control of a receiver but not standing in the name of such receiver, may be voted by such receiver without the transfer, thereof into his name if authority to do so is contained in an appropriate order of the court by which such receiver was appointed.
d. A shareholder whose shares are pledged shall be entitled to, vote such shares until the shares have been transferred into the name of the pledge.
e. Shares of the capital stock of the Corporation belonging to the Corporation or held by it in a fiduciary capacity shall not be voted, directly or indirectly, at any meeting, and shall not be counted in determining the total number of outstanding shares.
ARTICLE III
Directors
Section 1.Board of Directors; Exercise of Corporate Powers.
a. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of the Board of Directors except as may be otherwise provided in the Articles of Incorporation. If any such provision is made in the Articles of Incorporation, the powers and duties conferred or imposed upon the Board of Directors shall be exercised or performed to such extent and by such person or persons as shall be provided in the Articles of Incorporation.
b. Directors need not be residents of the state of incorporation unless the Articles of Incorporation so require.
c. The Board of Directors shall have authority to fix the compensation of Directors unless otherwise provided in the Articles of Incorporation.
d. A Director shall perform his duties as a Director, including his duties as a member of any committee of the Board upon which he may serve, in good faith, in a manner he reasonably believes to be in the best interests of the Corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.
e. In performing his duties, a Director shall be entitled to rely on information, opinions, reports or statements, including financial data, in each case prepared or presented by: (i) one or more officers or employees of the Corporation whom the Director reasonably believes to be reliable and competent in the matters presented; (ii) counsel, public accountants or other persons as to matters which the Director reasonably believes to be within such persons' professional or expert competence; or (iii) a committee of the Board upon which he does not serve, duly designated in accordance with a provision of the Articles of Incorporation or the Bylaws, as to matters within its designated authority, which committee the Director reasonably believes to merit confidence.
f. A Director shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that would cause such reliance described in Subsection 1(e) of this Article III to be unwarranted.
g. A person who performs his duties in compliance with this Article III,
Section 1 shall have no liability by reason of being or having been a Director
of the Corporation.
h. A Director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken consents thereto unless he votes against such action or abstains from voting in respect thereto because of an asserted conflict of interest.
Section 2. Number; Election; Classification of Directors; Vacancies.
a. The Board of Directors of this Corporation shall consist of not less than two (2) nor more than seven (7) members, unless the number of shareholders is less than two, in which the Corporation shall one director until such time as the number of shareholders increase to two or more. The number of directors shall be fixed by the initial Board of Directors. The number of directors constituting the initial Board of Directors shall be fixed by the Articles of Incorporation. The number of directors may be increased from time to time by the Board of directors, but no decrease shall have the effect of shortening the term of any incumbent director.
b. Each person named in the Articles of Incorporation as a member of the initial Board of Directors, shall hold office until the first annual meeting of shareholders, and until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death.
c. At the first annual meeting of shareholders and at each annual meeting thereafter the shareholders shall elect directors to hold office until the next succeeding annual meeting, except in case of the classification of directors as permitted by the Colorado Business Corporation Act. Each director shall hold office for the term for which he is elected and until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death.
d. The shareholders, by amendment to these Bylaws, may provide that the directors be divided into not more than four classes, as nearly equal in number as possible, whose terms of office shall respectively expire at different times, but no such term shall continue longer than four (4) years, and at least one-fifth (1/5) in number of the directors shall be elected annually.
e. If directors are classified and the number of directors is thereafter changed, any increase or decrease in directorships shall be so apportioned among the classes as to make all classes as nearly equal in number as possible.
f. Any vacancy occurring in the Board of Directors including any vacancy created by reason of an increase in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall hold office only until the next election of directors by the shareholders.
Section 3. Removal of Directors.
a. At a meeting of shareholders called expressly for that purpose,
directors may be removed in the manner provided in this Article III, Section
3. Any director or the entire Board of Directors may be removed, with or
without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
b. If the Corporation has cumulative voting, if less than the entire Board is to be removed, no one of the directors may be removed if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire Board of Directors, or, if there be classes of directors, at an election of the class of directors of which he is a member.
Section 4. Director Quorum and Voting.
a. A majority of the number of directors fixed in the manner provided in these Bylaws shall constitute a quorum for the transaction of business unless a greater number if required elsewhere in these Bylaws.
b. A majority of the members of an Executive Committee or other committee shall constitute a quorum for the transaction of business at any meeting of such Executive Committee or other committee.
c. The act of the majority of the directors present at a Board meeting at which a quorum is present shall be the act of the Board of Directors.
d. The act of a majority of the members of an Executive Committee present at an Executive Committee meeting at which a quorum is present shall be the act of the Executive Committee.
e. The act of a majority of the members of any other committee present at a committee meeting at which a quorum is present shall be the act of the committee.
Section 5. Director Conflicts of Interest.
a. No contract or other transaction between this Corporation and one or more of its directors or any other Corporation, firm, association or entity in which one or more of its directors are directors or officers or are financially interested, shall be either void or voidable because of a relationship or interest or because such director or directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because his or their votes are counted for such purpose, if:
(i) The fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested directors; or
(ii) The fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent; or
(iii)The contract or transaction is fair and reasonable as to the Corporation at the time it is authorized by the Board, a committee, or the shareholders.
b. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction.
Section 6. Executive and Other Committees; Designation; Authority.
a. The Board of Directors, by resolution adopted by a majority of the full Board of Directors, may designate from among its members an Executive Committee and one or more other committees each of which, to the extent provided in such resolution or in the Articles of Incorporation or these Bylaws, shall have and may exercise all the authority of the Board of Directors, except that no such committee shall have the authority to: (i) approve or recommend to shareholders actions or proposals required by the Colorado Business Corporation Act to be approved by shareholders; (ii) designate candidates for the office of director for purposes of proxy solicitation or otherwise; (iii) fill vacancies on the Board of Directors or any committee thereof; (iv) amend the Bylaws; or (v) authorize or approve the issuance or sale of, or any contract to issue or sell, shares or designate the terms of a series of class of shares, unless the Board of Directors, having acted regarding general authorization for the issuance or sale of shares, or any contract therefor, and, in the case of a series, the designation thereof, has specified a general formula or method by resolution or by adoption of a stock option or other plan, authorized a committee to fix the terms upon which such shares may be issued or sold, including, without limitation, the price, the rate or manner of payment of dividends, provisions for redemption, sinking fund, conversion, and voting preferential rights, and provisions for other features of a class of shares, or a series of class of shares, with full power in such committee to adopt any final resolution setting forth all the terns thereof and to authorize the statement of the terms of a series for filing with the Secretary of State under the Colorado Business Corporation Act.
b. The Board, by resolution adopted in accordance with Article III, Subsection 6(a) may designate one or more directors as alternate members of any such committee, who may act in the place and stead of any absent member or members at any meeting of such committee.
c. Neither the designation of any such committee, the delegation thereto of authority nor action by such committee pursuant to such authority shall alone constitute compliance by any member of the Board of Directors, not a member of the committee in question, with his responsibility to act in good faith, in a manner he reasonably believes to bean the best interests of the Corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.
Section 7. Place, Time, Notice, and Call of Directors' Meetings.
a. Meetings of the Board of Directors, regular or special, may be held either within or without this state.
b. A regular meeting of the Board of Directors of the Corporation shall be held for the election of officers of the Corporation and for the transaction of such other business as may come before such meeting as promptly as practicable after the annual meeting of the shareholders of this Corporation without the necessity of other notice than this Bylaw. Other regular meetings of the Board of Directors of the Corporation may be held at such times and at such places as the Board of Directors of the Corporation may from time to time resolve without other notice than such resolution. Special meetings of the Board of Directors may be held at any time upon call of the Chairman of the Board or the President or a majority of the Directors of the Corporation, at such time and at such place as shall be specified in the call thereof. Notice of any special meeting of the Board of Directors must be given at least two (2) days prior thereto, if by written notice delivered personally; or at least five (5) days prior thereto, if mailed; or at least two (2) days prior thereto, if by telegram; or at least two (2) days prior thereto, if by telephone. If such notice is given by mail, such notice shall be deemed to have been delivered when deposited with the United States Postal Service addressed to the business address of such director with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed delivered when the telegram is delivered to the telegraph company. If notice is given by telephone, such notice shall be deemed delivered when the call is completed.
c. Notice of a meeting of the Board of Directors need not be given to any director who signs a waiver of notice either before or after the meeting. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting and waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when a director states, at the beginning of the meeting, any objection to the transaction of business because the meeting is not lawfully called or convened.
d. Neither the business to be transacted at, nor the purpose of any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
e. A majority of the directors present, whether or not a quorum exists, may adjourn any meeting of the Board of Directors to another time and place. Notice of any such adjourned meeting shall be given to the directors who were not present at the time of the adjournment and, unless the time and place of the adjourned meeting are announced at the time of the adjournment, to the other directors.
f. Members of the Board of Directors may participate in a meeting of such Board by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.
Section 8. Action by Directors Without a Meeting:
Any action required by the Colorado Business Corporation Act to he taken at a meeting of the directors of the Corporation, or a committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so to be taken, signed by all of the directors, or all of the members of the committee, as the case may be, is filed in the minutes of the proceedings of the Board or of the committee. Such consent shall have the same effect as a unanimous vote.
Section 9. Compensation.
The directors and members of the Executive and any other committee of the Board of Directors shall be entitled to such reasonable compensation for their services and on such basis as shall be fixed from time to time by resolution of the Board of Directors. The Board of Directors and members of any committee of the Board of Directors shall be entitled to reimbursement for any reasonable expenses incurred in attending any Board or committee meeting. Any director receiving compensation under this section shall not be prevented from serving the Corporation in, any other capacity and shall not be prohibited from receiving reasonable compensation for such other services.
Section 10. Resignation.
Any Director of the Corporation may resign at any time without acceptance by the Corporation. Such resignation shall be in writing and may provide that such resignation shall take effect immediately or on any future date stated in such notice.
Section 11. Removal.
Any Director of the Corporation may be removed for cause by a majority vote of the other members of the Board of Directors as then constituted or with or without cause by the vote of the holders of a majority of the outstanding shares of capital stock shareholders of the Corporation called for such purpose.
Section 12. Vacancies.
In the event that a vacancy shall occur on the Board of Directors of the Corporation whether because of death; resignation, removal, an increase in the number of directors or any other reason, such vacancy may be filled by the vote of a majority of the remaining directors of the Corporation even though such remaining directors represent less than a quorum. An increase in the number of directors shall create vacancies for the purpose of this section. A director of the Corporation elected to fill a vacancy shall hold office for the unexpired term of his predecessor, or in the case of an increase in the number of directors, until the election and qualification of directors at the next annual meeting of the shareholders.
ARTICLE IV
Officers
Section 1. Election; Number; Terms office.
a. The officers of the Corporation shall consist of a Chairman of the Board, a President, a Secretary and a Treasurer, each of whom shall be elected by the Board of Directors at such time and in such manner as may be prescribed by these Bylaws. Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Directors.
b. All officers and agents, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as are provided in these Bylaws, or as may be determined by resolution of the Board of Directors not inconsistent with these Bylaws.
c. Any two (2) or more offices may be held by the same person except the offices of the President and Secretary.
d. A failure to elect a Chairman of the Board, President, a Secretary and a Treasurer shall not affect the of the Corporation.
Section 2. Removal.
An officer of the Corporation shall hold office until the election and qualification of his successor however, officer of the Corporation may be removed from office by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby. Such removal shall be without prejudice to the contract rights, if of the person so removed. Election or appointment of any officer shall not of itself create any contract right to employment or compensation.
Section 3. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term of such office by Board of Directors.
Section 4. Powers and Duties.
a. The Chairman of the Board shall be the Chief Executive Officer of the Corporation. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board of Directors. Except where by law the signature of the President is required or unless the Board of Directors shall rule otherwise, the Chairman of the Board shall possess the same power as the President to sign all certificates, contracts and other instruments of the Corporation which shall be authorized by the Board of Directors. Unless a Chairman of the Board is specifically elected, the President shall be deemed to be the Chairman of the Board.
b. The President shall be the Chief Operating Officer of the Corporation. He shall be responsible for the actual day-to-day supervision of the business and affairs of the Corporation. He shall sign or countersign all certificates, contracts or other instruments of the Corporation as authorized by the Board of Directors. He may, but need not be a member of the Board of Directors. In the absence of the Chairman of the Board, the President shall be the Chief Executive Officer of the Corporation and shall preside at all meetings of the shareholders and the Board of directors. He shall make reports to the Board of Directors and shareholders. He shall perform such other duties as are pertinent to his office or are properly required of him by the Board of Directors. The Board of Directors will at all times have the power to expressly delegate the duties of the President to any other officer of the Corporation.
c. The Vice-President(s), if any, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence, disability, death, or refusal to act of the President. During the time that any Vice-President is properly exercising the functions of the President, such Vice-President shall have all the powers of and be subject to all the restrictions upon the President. Each Vice-President shall have such other duties as are assigned to him from time to time by the Board of Directors or by the President of the Corporation.
d. The Secretary of the Corporation shall keep the minutes of the meetings of the shareholders of the Corporation and, if so requested, the Secretary shall keep the minutes of the meetings of the Board of Directors of the Corporation. The Secretary shall be the custodian of the minute books of the Corporation and such other books and records of the Corporation as the Board of Directors of the Corporation may direct. The Secretary shall make or cause to be made all proper entries in all corporate books that the Board of Directors of the Corporation may direct. The secretary shall have the general responsibility for maintaining the stock transfer books of the Corporation, or of ensuring the maintenance of the stock transfer books of the Corporation by the transfer agent, if any, of the Corporation. The Secretary shall be the custodian of the corporate seal of the Corporation and shall affix the corporate seal of the Corporation on contracts and other instruments as the Board of Directors of the Corporation may direct. The Secretary shall perform such other duties as are assigned to him from time to time by the Board of Directors or the President of the Corporation.
e. The Treasurer of the Corporation shall have custody of all funds and securities owned by the Corporation. The Treasurer shall cause to be entered regularly in the proper books of account of the Corporation full and accurate accounts of the receipts and disbursements of the Corporation. The Treasurer of the Corporation shall render a statement of cash, financial and other accounts of the Corporation whenever he is directed to render such a statement by the Board of Directors or by the President of the Corporation. The Treasurer shall at all reasonable times make available the Corporation's books and financial accounts to any Director of the Corporation during normal business hours. The Treasurer shall perform all other acts incident to the office of the Treasurer of the Corporation, and he shall have such other duties as are assigned to him from time to time by the Board of Directors or the President of the Corporation.
f. Other subordinate or assistant officers appointed by the Board of Directors or by the President, if such authority is delegated to him by the Board of Directors, shall exercise such powers and perform such duties as may be delegated to them by the Board of Directors or by the President, as the case may be.
g. In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of such officer to any other officer or any director or any other person whom it may select.
Section 5.Salaries
The salaries of all Officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefor.
ARTICLE V
Loans to Employees and Officers:
Guaranty of Obligations of Employees and Officers
This Corporation may lend money to, guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or of a subsidiary, including any officer or employee who is a Director of the Corporation or of a subsidiary, whenever, in the judgment of the Directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve including, without limitation, a pledge of shares of stock of the Corporation. Nothing in this Article shall be deemed to deny, limit or restrict the powers of guaranty or warranty of this Corporation at common law or under any statute.
ARTICLE VI.
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
Section 1.Certificates Representing Shares.
a. Every holder of shares in this Corporation shall be entitled to one or more certificates, representing all shares to which he is entitled and such certificates shall be signed by the President or a 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 may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the Corporation itself or an employee of the Corporation. In case any officer who 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 he used by the Corporation with the same effect as if be were such officer at the date of it issuance.
b. Each certificate representing shares shall state upon the face thereof: (i) the name of the Corporation; (ii) that the Corporation is organized under the laws of this state; (iii) the name of the person or persons to whom issued; (iv) the number and class of shares, and the designation of the series, if any, which such certificate represents; and (v) the par value of each share represented by such certificate, or a statement that the shares are without par value.
c. No certificate shall be issued for any shares until such shares are fully paid.
Section 2.Transfer Book.
The Corporation shall keep at its registered office or principal place of business or in the office of its transfer agent or registrar, a book (or books where more than one kind, class, or series of stock is outstanding) to be known as the Stock Book, containing the names, alphabetically arranged, addresses and Social Security numbers of every shareholder, and the number of shares of each kind, class or series of stock held of record. Where the Stock Book is kept in the office of the transfer agent, the Corporation shall keep at its office in the State of Colorado copies of the stock lists prepared from said Stock Book and sent to it from time to time by said transfer agent. The Stock Book or stock lists shall show the current status of the ownership of shares of the Corporation provided, if the transfer agent of the Corporation be located elsewhere, a reasonable time shall be allowed for transit or mail.
Section 3.Transfer of Shares.
a. The name(s) and address(s) of the person(s) to whom shares of stock of this Corporation are issued, shall be entered on the Stock Transfer Books of the Corporation, with the number of shares and date of issuance.
b. Transfer of shares of the Corporation shall be made on the Stock Transfer Books of the Corporation by the Secretary or the transfer agent, only when the holder of record thereof or the legal representative of such bolder of record or the attorney-in-fact of such holder of record, authorized by power of attorney duly executed and filed with the Secretary or transfer agent of the Corporation, shall surrender the Certificate representing such shares for cancellation. Lost, destroyed or stolen Stock Certificates shall be replaced pursuant to Section 5 of this Article VI.
c. The person or persons in whose names shares stand on the books of the Corporation shall be deemed by the Corporation to be the owner of such shares for all purposes; except as otherwise provided pursuant to Section 10 and 11 of Article II, or Section 4 of this Article VI.
Section 4. Voting Trusts.
a. Any number of shareholders of the Corporation may create a voting
trust for the purpose of conferring upon a trustee or trustees the right to
vote or otherwise represent their shares, for a period not to exceed ten (10)
years, by: (i) entering into a written voting trust; (ii) depositing a
counterpart of the agreement with the Corporation at its registered office:
and (iii) transferring their shares to such trustee or trustees for the
purposes of this Agreement. Prior to the recording of the Agreement, the
shareholder concerned shall tender the stock certificate(s) described therein
to the corporate secretary who shall note on each certificate:
b. Upon the transfer of such shares, voting trust certificates shall be issued by the trustee or trustees to the shareholders who transfer their share in trust. Such trustee or trustees shall keep a record of the holders of the voting trust certificates evidencing a beneficial interest in the voting trust, giving the names and addresses of all such holders and the number and class of the shares in respect of which the voting trust certificates held by each are issued, and shall deposit a copy of such record with the Corporation at its registered office.
b. Upon the transfer of such shares, voting trust certificates shall he issued by the trustee or trustees to the shareholders who transfer their shares in trust. Such trustee or trustees shall keep a record of the holders of the voting trust certificates evidencing a beneficial interest in the voting trust, giving the names and addresses of all such holders and the number and class of the shares in respect of which the voting trust certificates held by each are issued, and shall deposit a copy of such record with the Corporation at its registered office.
c. The counterpart of the voting trust agreement and the copy of such record so deposited with the Corporation shall be subject to the same right of examination by a shareholder of the Corporation, in person or by agent or attorney; as are the books and records of the Corporation, and such counterpart and such copy of such record shall be subject to examination by any holder of record of voting trust certificates either in person or by agent or attorney, at any reasonable time for any proper purpose.
d. At any time before the expiration of a voting trust agreement as originally fixed or as extended one or more times under this Article VI, Subsection 4(d) one or more holders of voting trust certificates may, by agreement in writing, extend the duration of such voting trust agreement, nominating the same or substitute trustee or trustees, for an additional period not exceeding ten (10) years. Such extension agreement shall not affect the rights or obligations of persons not parties to the agreement, and such persons shall be entitled to remove their shares from the trust and promptly to have their stock certificates reissued upon the expiration date of the original term of the voting trust agreement. The extension agreement shall in every respect comply with and be subject to all the provisions of this Article VI, Section 4 applicable to the original voting trust agreement except that the ten (10) year maximum period of duration shall commence on the date of adoption of the extension agreement.
e. The trustees under the terms of the agreements entered into under the provisions of this Article VI, Section 4 shall not acquire the legal title to the shares but shall be vested only with the legal right and title to the voting power which is incident to the ownership of the shares.
Section 5. Lost, Destroyed. or Stolen Certificates.
No certificate representing shares of the stock in the Corporation shall be issued in place of any Certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of such loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the fair market value of the shares represented by the Certificate) and with such terms and with such surety as the Board of Directors may, in its discretion, require.
ARTICLE VII
Books and Records
a. The Corporation shall keep correct and complete hooks and records of account and shall keep minutes of the proceedings of its shareholders, Board of Directors and committees of Directors.
b. Any books, records and minutes may be in written form or in any other form capable of being converted into written form within a reasonable time.
c. Any person who shall have been a holder of record of one quarter of one percent of all shares or of voting trust certificates therefor at least six months immediately preceding his demand or shall be the holder of record of, or the holder of record of voting trust certificates for, at least five (5%) percent of the outstanding shares of any class or series of the Corporation, upon written demand stating the purpose thereof, shall have the right to examine, in person or by agent or attorney, at any reasonable time or times, for any proper purpose, its relevant hooks and records of account, minutes and record of shareholders and to make extracts therefrom.
d. No shareholder who within two (2) years has sold or offered for sale any list of shareholders or of holders of voting trust certificates for shares of this Corporation or any other Corporation; has aided or abetted any person in procuring any list of shareholders or of holders of voting trust certificates for any such purpose; or has, improperly used any information secured through any prior examination of the books and records of account, minutes, or record of shareholders or of holders of voting trust certificates for shares of the Corporation or any other Corporation; shall be entitled to examine the documents and records of the Corporation as provided in Subsection C of this Article VII. No shareholder who does not act in good faith or for a proper purpose in making his demand shall be entitled to examine the documents and records of the Corporation as provided in Subsection c of this Article VII.
e. Unless modified by resolution of the shareholders, this Corporation shall prepare not later than four (4) months after the close of each fiscal year;
(i) A balance sheet showing in reasonable detail the financial conditions of the Corporation as of the date of its fiscal year.
(ii) A profit and loss statement showing the results of its operation during its fiscal year.
f. Upon the written request of any shareholder or holder of voting trust certificates for shares of the Corporation, the Corporation shall mail to such shareholder or holder of voting trust certificates a copy of its most recent balance sheet and profit and loss statement.
g. Such balance sheets and profit and loss statements shall be filed and kept for at least five (5) years in the registered office of the Corporation in this state and shall be subject to inspection during business hours by any shareholder or holder of voting trust certificates.
ARTICLE VIII
Dividends
The Board of Directors of the Corporation may, from time to time, declare and the Corporation may pay dividends on its shares in cash, property or its own shares, except when the Corporation is insolvent or when the payment thereof would render the Corporation insolvent subject to the following provisions:
a. Dividends in cash or property may be declared and paid, except as otherwise provided in this Article VIII, only out of the unreserved and unrestricted earned surplus of the Corporation or out of capital surplus, however arising, but each dividend paid out of capital surplus shall be identified as a distribution of capital surplus, and the amount per share paid from such capital surplus shall be disclosed to the shareholders receiving the same concurrently with the distribution.
b. Dividends maybe declared and paid in the Corporation's treasury shares.
c. Dividends may be declared and paid in the Corporation's authorized but unissued shares out of any unreserved and unrestricted surplus of the Corporation upon the following conditions:
(i) If a dividend is payable in the Corporation's own shares having a par value, such shares shall be issued at not less than the par value thereof and there shall be transferred to stated capital at the time such dividend is paid an amount of surplus equal to the aggregate par value of the shares to be issued as a dividend.
(ii) If a dividend is payable in the Corporation's own shares without par value, such shares shall be issued at such stated value as shall be fixed by the Board of Directors by resolution adopted at the time such dividend is declared, and there shall be transferred to stated capital at the time such dividend is paid an amount of surplus equal to the aggregate stated value so fixed in respect of such shares; and the amount per share so transferred to stated capital shall he disclosed to the shareholders receiving such dividend concurrently with the payment thereof.
b. No dividend payable in shares of any class shall be paid to the holders of shares of any other class unless the Articles of incorporation so provide or such payment is authorized by the affirmative vote or written consent of the holders of at least a majority of the outstanding shares of the class in which the payment is to be made.
c. A split up or division of the issued shares of any class into a greater number of shares of the same class without increasing the stated capital of the Corporation shall not be construed to he a stock dividend within the meaning of this Article VIII.
ARTICLE IX
Indemnification
Section 1. Action, etc. Other Than by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding or investigation, whether civil, criminal or administrative, and whether external or internal to the Corporation, (other than a judicial action or suit brought by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or that, being or having been such a director, officer, employee or agent, he is or was serving at the request of the Corporation as a director, officer, employee, or trustee or agent of another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to hereafter as an "Agent"), against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, or any appeal therein, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of any action, suit or proceeding -- whether by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent -- shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, that such person had reasonable cause to believe that his conduct was unlawful.
Section 2. Action, etc., by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed judicial action or suit brought by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was an Agent (as defined above) against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense, settlement or appeal of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or, matter as to which such person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his or her duty to the Corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Determination of Right of Indemnification.
Any indemnification under Section 1 or 2 (unless ordered by a court) shall be made by the Corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a mariner that such person did not believe to be in or not opposed to the best interests of the Corporation, or, with respect to and criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful.
Section 4. Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that an Agent has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice or the settlement of an action without admission of liability, in defense of any proceeding or in defense of any claim, issue or matter therein, or on appeal from any such proceeding, action, claim or matter, such Agent shall be indemnified against all expenses incurred in connection therewith.
Section 5. Advances of Expenses.
Except as limited by Section 6 of this Article, costs, charges and expenses (including attorneys' fees) incurred in any action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Corporation in advance of the final disposition of such matter, if the Agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the Corporation if a determination is reasonably and promptly made by the Board of Directors or if a majority vote of a quorum of disinterested directors cannot be obtained, then by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interest of the Corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or independent legal counsel reasonably determines that such person deliberately breached his duty to the Corporation or its shareholders.
Section 6. Right of Agent to Indemnification Upon Application; Procedure Upon Application.
Any indemnification under Sections 1, 2 and 4 or advance under Section 5 of this Article, shall be made promptly; and in any event within ninety (90) days, upon the written request of the Agent, unless with respect to applications under Sections 1, 2 or 5, a determination is reasonably and promptly made by the Board of Directors by a majority vote of a quorum of disinterested directors that such Agent acted in a manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance to the Agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the Agent acted in the manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance to the Agent. The right to indemnification or advances as granted by this Article shall be enforceable by the Agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety (90) days. The Agent's costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Corporation.
Section 7. Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Article is held by a court of competent jurisdiction to be unavailable to an indemnitee in whole or part, the Corporation shall, in such an event, after taking into account, among other things, contributions by other directors and officers of the Corporation pursuant to indemnification agreements or otherwise, and, in the absence of personal enrichment, acts of intentional fraud or dishonesty or criminal conduct on the part of the Agent, contribute to the payment of Agent's losses to the extent that, after other contributions are taken into account, such losses exceed: (i) in the case of a director of the Corporation or any of its subsidiaries who is not an officer of the Corporation or any of such subsidiaries, the amount of fees paid to him for serving as a director during the 12 mouths preceding the commencement of the suit, proceeding or investigation; or (ii) in the case of a director of the Corporation or any of its subsidiaries who is also an officer of the Corporation or any of such subsidiaries, the amount set forth in clause (I) plus 5% of the aggregate cash compensation paid to said director for service in such office(s) during the 12 months preceding the commencement of the suit, proceeding or investigation; or (iii) in the case of an officer of the Corporation or any of its subsidiaries, 5% of the aggregate cash compensation paid to such officer of service in such office(s) during the 12 mouths preceding the commencement of such suit, proceeding or investigation.
Section 8. Other Rights and Remedies.
The indemnification provided by this Article shall not be deemed exclusive of, and shall not affect, any other rights to which an Agent seeking indemnification may be entitled under any law, Bylaw, or charter provision, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the Corporation and the Agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing.
Section 9. Insurance.
Upon resolution passed by the Board, the Corporation may purchase and maintain insurance on behalf of any person who is or was an Agent against any liability asserted against such person and incurred by him in any such capacity; or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article. The Corporation may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such sums as may become necessary to effect indemnification as provided herein.
Section 10. Constituent Corporation.
For the purposes of this Article, references to the "Corporation" include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee, agent or trustee of such a constituent corporation or who, being or having been such a director, officer, employee or trustee, is or was serving at the request of such constituent corporation as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as such person would if he had served the resulting or surviving corporation in the same capacity.
Section 11. Other Enterprises. Fines and Serving at Corporation's Request.
For purposes of this Article, references to "other enterprise" in Sections 1 and 10 shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Corporation" shall include any service by Agent as director, officer, employee, trustee or agent of the Corporation which imposes duties on, or involves services by, such Agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article.
Section 12. Savings Clause.
If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Agent as to expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit, appeal, proceeding or investigation, whether civil criminal or administrative, and whether internal or external, including a grand jury proceeding and an action or suit drought by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law.
ARTICLE X
Amendment of Bylaws
a. The Board of Directors shall have the power to amend, alter, or repeal these Bylaws, and to adopt new Bylaws, from time to time.
b. The shareholders of the Corporation, may, at any annual meeting of the shareholders of the corporation or at any special meeting of the shareholders of the Corporation called for the purpose of amending these Bylaws, amend, alter, or repeal these Bylaws, and adopt new Bylaws, from time to time.
c. The Board of Directors shall not have the authority to adopt or amend any Bylaw if such new Bylaw of such amendment would be inconsistent with any Bylaw previously adopted by the shareholders of the Corporation. The shareholders may prescribe in any Bylaw made by them that such Bylaw shall not be altered, amended or repealed ay the Board of Directors.
ARTICLE XI
Shareholder Agreements
Unless the shares of this Corporation are listed on a national securities exchange or are regularly quoted by Licensed securities dealers and brokers, all the shareholders of this Corporation may enter into agreements relating to any phase of business and affairs of the Corporation and which may provide for, among other things, the election of directors of the Corporation in a manner determined without reference to the number of shares of capital stock of the Corporation owned by its shareholders, the determination of management policy, and division of profits. Such agreement may restrict the discretion of the Board of Directors and its management of the business of the Corporation or may treat the Corporation as if it were a partnership or may arrange the relationships of the shareholders in a manner hat would be appropriate only among partners. In the event such agreement shall be inconsistent in whole or in part with the Articles of Incorporation and/or Bylaws of the Corporation, the terms of such agreement shall govern. Such agreement shall be binding upon any transferee of shares of this corporation provided such transferee has actual notice hereof or a legend referring to such agreement is noted on the face or back of the certificate or certificates representing its shares transferred to such transferee.
ARTICLE XII
Fiscal Year
The Fiscal Year of this Corporation shall be determined by the Board of Directors.
Date: 5/10/96 /s/Edward H Hawker |
Exhibit 99.1
Gulf & Orient Steamship Company, Ltd.
601 South State Street
Salt Lake City, Utah 84111
OTC Stock Transfer
231 East 2100 South, Suite #F
Salt Lake City, Utah 84115
Re: Conditions to quotations on the OTC Bulletin Board of the National Association of Securities Dealers, Inc. (the "NASD") of the common stock of Gulf & Orient Steamship Corporation Ltd., a Delaware corporation (the "Company"), and related instructions to OTC Stock Transfer ("OTC")
Dear Ladies and Gentlemen:
In consideration of the Company agreeing to file a Registration Statement with the United States Securities and Exchange Commission covering the resale of the "restricted securities" outlined below at no cost to the undersigned persons within a reasonable time and not later than June 30, 2004, and to pursue the effectiveness of such Registration Statement with the Company's "best efforts," and to comply with the so-called "Wulff Letter" of Richard K. Wulff, Chief, Office of Small Business Offering, United States Securities and Exchange Commission, under date of January 21, 2000, that was written to Ken Worm, Assistant Director of the NASD's OTC Compliance Unit in response to Mr. Worm's inquiry to Mr. Wulff regarding companies that may be deemed to be "blank check" companies, the undersigned persons agree as follows:
(1) That the following stock certificates and the shares of common stock of the Company represented thereby shall not be publicly sold unless and until: (i) there is a Registration Statement filed with the United States Securities and Exchange Commission covering these stock certificates and the shares of common stock represented thereby, which has become effective; or (ii) the United States Securities and Exchange Commission provides a "no action" letter which indicates that registration prior to resale of these stock certificates and the shares of common stock of the Company represented thereby is not required under Section 5 of the Securities Act of 1933, as amended (the "Securities Act"), as there is an available exemption for the resale of these securities by the undersigned; or (iii) there is a finding by a United States District Court having original jurisdiction or a state court having concurrent jurisdiction regarding the Securities Act, to the effect that these stock certificates and the shares of common stock represented thereby can be resold by the undersigned persons or their successors without registration under the Securities Act.
(2) The undersigned persons agree and do hereby advise OTC, the transfer and registrar for the common stock of the Company and the addressees of this Letter Agreement that OTC is hereby authorized to place a restriction on the stock certificates referred herein below on their presentation, reflecting the terms and conditions of this Letter Agreement, and that OTC shall make appropriate notations in the transfer records maintained for and on behalf of the Company to the effect that the following stock certificates have "stop transfer" instructions until one of the foregoing conditions has been met.
(3) The undersigned shall promptly courier to OTC the following stock certificates for the imprinting of an appropriate legend reflecting this Letter Agreement. The stock certificates subject to this Letter Agreement are as follows:
Stock Number of
Name and Address Certificate No. Shares
Vincent C. Lombardi 1013 766,975
755 East Greg Street #25
Sparks, Nevada 89431
Michael Vardakis 1012 762,475
601 South State Street
Salt Lake City, Utah 84111
Date: 11/4/03 /s/Vincent C. Lombardi
Vincent C. Lombardi
Date: 10/31/2003 /s/Michael Vardakis
Michael Vardakis
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Exhibit 99.2
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and entered into as of the 25th day of January, 2005, between Gulf & Orient Steamship Company Ltd., a Colorado corporation ("Gulf & Orient"), and Leonard W. Burningham, Esq., sometimes referred to herein as the "Shareholder." For all purposes of this Agreement, "Shareholder" includes any "affiliate, controlling person of Shareholder, agent, representative or other person with whom Shareholder is acting in concert with.
WHEREAS, Gulf & Orient presently has no operations and will have no operations until it completes an acquisition, reorganization or merger with an operating company (the "Reorganization Transaction"); and
WHEREAS, in order to facilitate the consummation of any transactions contemplated by any Reorganization Transaction and to protect the Company, the Shareholder has agreed to enter into this Agreement and to restrict the public sale, assignment, transfer, conveyance, hypothecation or alienation of the common stock of Gulf & Orient (the "Common Stock"), all on the terms set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Except as otherwise expressly provided herein, and except as the Shareholder may be otherwise restricted from selling shares of Common Stock, the Shareholder may only publicly sell Common Stock subject to the following conditions commencing on the execution and delivery of this Agreement and for the twelve (12) month period from the Closing of any Reorganization Transaction (the "Lock-Up/Leak-Out Period"):
1.1 The Shareholder shall be allowed to sell 1/12th of such Shareholder's shares of Common Stock per month during the Lock-Up/Leak-Out Period, on a non-cumulative basis, meaning that if no Common Stock was sold during one month while Common Stock was qualified to be sold, such shares of Common Stock could not be sold in the next successive month.
1.2 Except as otherwise provided herein, all Common Stock shall be only sold in "broker's transactions" and the Shareholder must comply with the "manner of sale" requirements as those terms are defined in Rule 144 of the Securities and Exchange Commission during the Lock-Up/Leak-Out Period.
1.3 An appropriate legend describing this Agreement shall be imprinted on each stock certificate representing Common Stock covered hereby, and the transfer records of Gulf & Orient's transfer agent shall reflect such appropriate restrictions.
1.4 The Shareholder agrees that he will not engage in any short selling of the Common Stock during the Lock-Up/Leak-Out Period.
1.5 During the Lock-Up/Leak/Out Period, Gulf & Orient shall maintain its "reporting" status with the Securities and Exchange Commission; file all reports that are required to be filed by it during such period; and use its "best efforts" to ensure that the Common Stock is continually quoted for public trading on a nationally recognized medium of no less significance than the OTC Electronic Bulletin Board of the National Association of Securities Dealers, Inc. (the "NASD"), the NASDAQ Small Cap or a recognized national stock exchange.
1.6 During the Lock-Up/Leak-Out Period, the Shareholder will be required to submit a legal opinion to the Company with any requested transfer hereunder to the effect that any monthly sale is being made in compliance with this Agreement.
2. The delivery of a duly executed copy of the Broker/Dealer Agreement by the selling Shareholder's broker and a duly executed Seller's Resale Agreement by the selling Shareholder in the forms attached hereto shall be satisfactory evidence for all purposes of this Agreement that such selling Shareholder and its broker will comply with the "broker's transactions" and "manner of sale" requirements of this Agreement, and no further evidence thereof will be required of the selling Shareholder; provided, however, Gulf & Orient may confirm such compliance with the Shareholder and the selling Shareholder's broker, to the extent that it deems reasonably required or necessary to assure compliance with this Agreement.
3. Notwithstanding anything to the contrary set forth herein, Gulf & Orient may, in its sole discretion and in good faith, at any time and from time to time, waive any of the conditions or restrictions contained herein to increase the liquidity of the Common Stock or if such waiver would otherwise be in the best interests of the development of the trading market for the Common Stock.
4. Other than the contemplated Reorganization Transaction or any merger with a subsidiary, in the event of: (a) a completed tender offer to purchase all or substantially all of Gulf & Orient's issued and outstanding securities; or (b) a merger, consolidation or other reorganization of Gulf & Orient with or into an unaffiliated entity, then this Agreement shall terminate as of the closing of such event and the Common Stock restricted pursuant hereto shall be released from such restrictions.
5. Except as otherwise provided in this Agreement or any other agreements between the parties, the Shareholder shall be entitled to his respective beneficial rights of ownership of the Common Stock, including the right to vote the Common Stock for any and all purposes.
6. The number of shares of Common Stock included in any monthly allotment that can be sold by the Shareholder shall be appropriately adjusted should Gulf & Orient make a dividend or distribution, undergo a forward split or a reverse split or otherwise reclassify its shares of Common Stock.
7. This Agreement may be executed in any number of counterparts with the same force and effect as if all parties had executed the same document.
8. All notices, instructions or other communications required or permitted to be given pursuant to this Agreement shall be given in writing and delivered by certified mail, return receipt requested, overnight delivery or hand-delivered to all parties to this Agreement, to Gulf & Orient, at 601 South State Street, Salt Lake City, Utah 84111. All notices shall be deemed to be given on the same day if delivered by hand or on the following business day if sent by overnight delivery or the second business day following the date of mailing.
9. The resale restrictions on the Common Stock set forth in this Agreement shall be in addition to all other restrictions on transfer imposed by applicable United States and state securities laws, rules and regulations.
10. Gulf & Orient or the Shareholder who fails to fully adhere to the terms and conditions of this Agreement shall be liable to every other party for any damages suffered by any party by reason of any such breach of the terms and conditions hereof. The Shareholder agrees that in the event of a breach of any of the terms and conditions of this Agreement by the Shareholder, that in addition to all other remedies that may be available in law or in equity to the non-defaulting parties, a preliminary and permanent injunction, without bond or surety, and an order of a court requiring the defaulting Shareholder to cease and desist from violating the terms and conditions of this Agreement and specifically requiring the Shareholder to perform his obligations hereunder is fair and reasonable by reason of the inability of the parties to this Agreement to presently determine the type, extent or amount of damages that Gulf & Orient or the non-defaulting Shareholder may suffer as a result of any breach or continuation thereof.
11. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof, and may not be amended except by a written instrument executed by the parties hereto.
12. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah applicable to contracts entered into and to be performed wholly within said State; and Gulf & Orient and the Shareholder agree that any action based upon this Agreement may be brought in the United States and state courts of Utah only, and the Shareholder submits himself to the jurisdiction of such courts for all purposes hereunder.
13. In the event of default hereunder, the non-defaulting parties shall be entitled to recover reasonable attorney's fees incurred in the enforcement of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement as of the day and year first above written.
GULF & ORIENT STEAMSHIP COMPANY LTD.
Date: 1/25/05. By/s/Michael Vardakis
Its President
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SHAREHOLDER
Date: 1/25/05. /s/Leonard W. Burningham
Leonard W. Burningham, Esq.
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Broker/Dealer Agreement
Gulf & Orient Steamship Company Ltd.
601 South State Street
Salt Lake City, Utah 84111
OTC Stock Transfer
Attn: Carolyn Simpson
231 East 2100 South, #F
Salt Lake City, UT 84115
Re: Resale restriction of certain shares of common stock of Gulf & Orient Steamship Company Ltd., a Colorado corporation ("Gulf & Orient" or the "Company")
Dear Ladies and Gentlemen:
The undersigned broker hereby acknowledges receipt of stock certificates representing ________________ shares of common stock of the Company that are owned by ______________________________________________ (the "Customer").
In consideration of transferring these securities free of any legend or other notation respecting the resale of these securities so that the undersigned broker can effect a sale of such shares (a "Company Approved Sale"), the undersigned broker agrees:
(i) That all sales of these securities or any other securities of Gulf & Orient on deposit in the accounts of the Customer will be made in "broker's transactions" only as that term is defined in Rule 144 of the Securities and Exchange Commission until _____________, 200_ (the "Resale Restriction Period");
(ii) That there will be no legend removal or DTC's of any securities of the Customer prior to a Company Approved Sale during the "Resale Restrictions Period";
(iii) That if any of the securities of the Company are ordered out by the Customer for delivery prior to the expiration of the Resale Restriction Period, that instructions will be given to the Company's transfer agent to re-issue the stock certificates for the Customer with the appropriate restriction or restrictions as are outlined in the Letter Agreement of the Customer, and to the effect that such securities can only be sold in "broker's transactions."
The undersigned broker further agrees that we will provide you with reasonable documentation on your request to verify our compliance with this Letter Agreement.
Very truly yours,
Date: ______________________ By___________________________________
Its___________________________________
Seller's Resale Agreement
Gulf & Orient Steamship Company Ltd.
601 South State Street
Salt Lake City, Utah 84111
OTC Stock Transfer
Attn: Carolyn Simpson
231 East 2100 South, #F
Salt Lake City, UT 84115
Re: Resale restriction of certain shares of common stock of Gulf & Orient Steamship Company Ltd., a Colorado corporation ("Gulf & Orient" or the "Company")
Dear Ladies and Gentlemen:
The undersigned agrees to effect all sales of shares of common stock of Stock Certificate No. ______________ representing _______________ shares of common stock of Gulf & Orient in accordance with the "manner of sale" requirements of Rule 144 as outlined in Schedule 1 hereto until on or before ______________, 200_.
DATED this ________ day of _____________________, 200__.
Very truly yours,
Date: ______________________ By___________________________________
Its___________________________________
_____________________________________
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Address
SCHEDULE 1
SELLER'S REQUIREMENTS IN "BROKERS' TRANSACTIONS"
RULE 144 "MANNER OF SALE" REQUIREMENTS
The securities shall be sold in "brokers' transactions" within the meaning of Section 4(4) of the Securities Act or in transactions directly with a "market maker," as that term is defined in Section 3(a)(38) of the Securities Exchange Act of 1934, and the person selling the securities shall not (1) solicit or arrange for the solicitation of orders to buy the securities in anticipation of or in connection with such transaction, or (2) make any payment in connection with the offer or sale of the securities to any person other than the broker who executes the order to sell the securities.