As filed with the Securities and Exchange Commission, December 14, 2000
File No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Excel Publishing, Inc.
(Exact name of registrant as specified in its charter)
Nevada 87-0653761
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
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2250 West Center St.
Springville, UT 84663
(Address and telephone number of registrant's principal offices)
Anthony B. Ramon
President, Excel Publishing, Inc.
2250 West Center St.
Springville, UT 84663
801-489-7079
(Name, address and telephone number of agent for service)
Copies to:
Cletha A. Walstrand, Esq.
Lehman Walstrand & Associates
8 East Broadway, Suite 620
Salt Lake City, UT 84111-2204
(801) 532-7858
(801) 363-1715 fax
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes
effective.
The securities being registered on the Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of each class Amount to be Proposed offering Proposed maximum Amount of of securities t registered price per share aggregate offering registration be registered price fee Common Stock 1,000,000 shares $0.10 per share $100,000 $26.40 |
The number of shares to be registered is estimated solely for
the purpose of calculating the registration fee. Registrant
hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act
of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS
Subject to completion _____________, 2000
$80,000 Minimum / $100,000 Maximum
EXCEL PUBLISHING, INC.
COMMON STOCK
This is Excel's initial public offering. We are offering a minimum of 800,000 shares and a maximum of 1,000,000 shares of common stock. The public offering price is $0.10 per share. No public market exists for our shares.
See "Risk Factors" beginning on page 2 for certain information you should consider before you purchase the shares.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The shares are offered on a "minimum/maximum, best efforts" basis directly through our officers and directors. No commission or other compensation related to the sale of the shares will be paid to any of our officers or directors. The proceeds of the offering will be placed and held in an escrow account at Brighton Bank, 311 South State Street, Salt Lake City, UT 84111, until a minimum of $80,000 in cash has been received as proceeds from sale of shares. If we do not receive the minimum proceeds within 90 days from the date of this prospectus, unless extended by us for up to an additional 30 days, your investment will be promptly returned to you without interest and without any deductions. We may terminate this offering prior to the expiration date.
Price to Public Commissions Proceeds to Company
Per Share $0.10 $-0- $0.10
Minimum $80,000 $-0- $80,000
Maximum $100,000 $-0- $100,000
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The date of this Prospectus is -------------, 2000.
PROSPECTUS SUMMARY
About our company
We were formed as a Nevada corporation on June 7, 2000 with the intent to focus on the business of marketing and distributing a weekly newsletter which tracks our proprietary investment strategy and offers stock market observations and portfolio performance information. We have commenced only limited operations. The proceeds from this offering are needed so we can continue operations and implement our growth and marketing plan. We intend to develop a website, fund several promotional campaigns in order to advertise our services and initiate sales. Our objective is to increase our customer base and identify new markets in which to sell our newsletter.
Our principal executive offices are located at 2250 West
Center Street, Springville, Utah 84663. Our telephone number is
(801) 489-7079.
RISK FACTORS
Investing in our stock is very risky and you should be able to bear a complete loss of your investment.
Although our management has past experience in writing, marketing and selling investment newsletters, we are a new business and investment in our company is risky. We have an extremely limited operating history so it will be difficult for you to evaluate an investment in our stock. We have limited experience and a short history of operations with respect to marketing and selling our newsletters. We have had only minimal revenues and we cannot assure that we will be profitable. As a young company, we are especially vulnerable to the problems, delays, expenses and difficulties encountered by any company in the development stage.
If we do not raise money through this offering, it is unlikely we can continue operations. We have limited assets and need the proceeds from this offering to continue our business, identify new markets and sell our newsletters. If we cannot raise at least the minimum offering amount, we will have to seek other sources of financing or we will be severely limited in achieving our plan of operation. There is no assurance that additional sources of financing will be available at all or at a reasonable cost.
Our newsletter may not be accepted in the market. Subscribers must accept our newsletter as beneficial and worthwhile. Market acceptance will require substantial education about the benefits
of our newsletter. If subscribers do not accept our newsletter or acceptance takes a long time, then revenues and profits will be reduced. We can provide no assurance that there will be a favorable market for our newsletter or that we can realize a profitable rate of return.
We depend on a license to supply us with information for our newsletter. The loss of our license would mean we have no information to sell. In the event our license agreement terminates for any reason, we would lose our rights to sell our current information. Further, the inability to obtain additional licenses will limit the information we can sell.
We have limited experience in sales and marketing of financial newsletters. Our current plan is to employ direct mail marketing efforts to sell our newsletter. We also intend to use e-commerce strategies to market our newsletter. Additionally, we plan to present our newsletter at investment conferences and to establish a website for our newsletter. We cannot assure you that we will be able to establish sales and distribution capabilities for our newsletter.
We cannot assure the completion of the "minimum-maximum, best efforts" offering. The shares are being offered on a "minimum-maximum, best efforts" only basis and no individual or firm is committed to purchase or take down any of the shares. There is no assurance that we will sell any portion of the shares. In the event that at least $80,000 has not been received within 90 days of the date of this prospectus, which time period may be extended for up to an additional 30 days in our discretion, funds will be promptly returned to investors without interest and without deducting expenses of this offering. As such, you could invest money for as long as 120 days and have your investment returned without interest. Anytime after the minimum amount is received prior to termination of the offering, the escrowed funds will be transmitted to us and shares will then be issued and no refunds will be made to you.
We arbitrarily determined our offering price. The offering price of the shares was arbitrarily determined by our management. The offering price bears no relationship to our assets, book value, net worth or other economic or recognized criteria of value. In no event should the offering price be regarded as an indicator of any future market price of our securities. In determining the offering price, we considered such factors as the prospects for our products, our management's previous experience, our historical and anticipated results of operations and our present financial resources.
FORWARD-LOOKING STATEMENTS
You should carefully consider the risk factors set forth above, as well as the other information contained in this prospectus. This prospectus contains forward-looking statements regarding events, conditions, and financial trends that may affect our plan of operation, business strategy, operating results, and financial position. You are cautioned that any forward-looking statements are not guarantees of future performance and are subject to risks and uncertainties. Actual results may differ materially from those included within the forward-looking statements as a result of various factors. Cautionary statements in this "Risk Factors" section and elsewhere in this prospectus identify important risks and uncertainties affecting our future, which could cause actual results to differ materially from the forward-looking statements made in this prospectus.
DILUTION AND COMPARATIVE DATA
As of August 31, 2000, we had an audited net tangible book value (total tangible assets less total liabilities) of $7,145, or a net tangible book value per share of approximately $.0007. The following table shows the dilution to your equity interest without taking into account any changes in our net tangible book value after August 31, 2000, except the sale of the minimum and maximum number of shares offered.
Assuming Minimum Assuming Maximum
Shares Sold Shares Sold
Shares Outstanding 11,300,000 11,500,000
Public offering proceeds $55,000 $75,000
at $0.10 per share, net
of estimated offering
expenses
Net tangible book value $62,145 $82,145
after offering
Net tangible book value $.0007 $.0007
per share
before offering
Increase attributable to $.0043 $.0063
purchase of shares by
new investors
Pro forma net tangible $.005 $.007
per share
book value after offering
Dilution per share to new $.095 $.093
investors
Percent dilution 95% 93%
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The following table summarizes the comparative ownership and capital contributions of existing common stock shareholders and investors in this offering as of August 31, 2000:
Shares Owned Total Average Price
Number Consideration Per Share
%
Amount
Present
Shareholders 10,500,000 30% $.002
Minimum Offering 10,500,000 $35,000 $.002
Maximum Offering 26%
$35,000
New Investors
Minimum Offering 800,000 70% $.10
Maximum Offering 1,000,000 $80,000 $.10
74%
$100,000
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The numbers used for Present Shareholders assumes that none of the present shareholders purchase additional shares in this offering.
The above table illustrates that as an investor in this offering, you will pay a price per share that substantially exceeds the price per share paid by current shareholders and that you will contribute a high percentage of the total amount to fund Excel Publishing, but will only own a small percentage of our shares. Investors will have contributed $80,000 if the minimum offering is raised and $100,000 if the maximum offering is raised, compared to $35,000 contributed by current shareholders. Further, if the minimum is raised, investors will only own 7% of the total shares and 8.6% if the maximum is raised.
USE OF PROCEEDS
The net proceeds to be realized by us from this offering, after deducting estimated offering related expenses of approximately $25,000 is approximately $55,000 if the minimum number of shares is sold and $75,000 if the maximum number of shares is sold.
The following table sets forth our best estimate of the use of proceeds from the sale of the minimum and maximum amount of shares offered. Since the dollar amounts shown in the table are estimates only, actual use of proceeds may vary from the estimates shown.
Description Assuming Sale of Assuming Sale of
Minimum Offering Maximum Offering
Total Proceeds $80,000 $100,000
Less Estimated
Offering Expenses 25,000 25,000
Net Proceeds Available 55,000 75,000
Use of Net Proceeds
Direct mail marketing 28,000 33,000
Computing equipment 5,000 5,000
Internet advertising and
Website development 8,000 12,000
Investment conferences 3,000 5,000
Travel 1,000 2,000
Working capital 10,000 18,000
TOTAL NET PROCEEDS $55,000 $75,000
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The working capital reserve may be used for general corporate purposes to operate, manage and maintain the current and proposed operations including wages and salaries, professional fees, expenses and other administrative costs.
We do not intend to use any of the proceeds from this offering to purchase key man insurance. Costs associated with being a public company, including compliance and audits of our financial statements will be paid from working capital and revenues generated from our operations.
Pending expenditures of the proceeds of this offering, we may make temporary investments in short-term, investment grade, interest-bearing securities, money market accounts, insured certificates of deposit and/or in insured banking accounts.
DETERMINATION OF OFFERING PRICE
The offering price of the shares was arbitrarily determined by our management. The offering price bears no relationship to our assets, book value, net worth or other economic or recognized criteria of value. In no event should the offering price be regarded as an indicator of any future market price of our securities. In determining the offering price, we considered such factors as the prospects for our products, our management's previous experience, our historical and anticipated results of operations and our present financial resources.
CAPITALIZATION
The following tables sets forth our capitalization as of the
date of this prospectus, on an actual basis. This table should
be read in conjunction with the financial statement of the
company and the notes thereto.
Stockholders' equity:
Preferred stock, $0.001 par value, authorized 10,000,000
shares; no shares issued or outstanding
Common stock, $0.001 par value, authorized 50,000,000
Shares; 10,500,000 shares issued and outstanding $10,500
Capital in excess of par value 24,500
(Deficit) accumulated during the development stage $(27,855)
Total Stockholders equity $ 7,145
DESCRIPTION OF BUSINESS
General
We were formed as a Nevada corporation on June 7, 2000 with
the intent to focus on the business of marketing and distributing
a weekly newsletter which tracks our proprietary investment
strategy and offers stock market observations and portfolio
performance information. We have commenced only limited
operations. The proceeds from this offering are needed so we can
continue operations and implement our growth and marketing plan.
We intend to develop a website, fund several promotional
campaigns in order to advertise our services and initiate sales.
Our objective is to increase our customer base and identify new
markets in which to sell our newsletter.
Our business
We market annual subscriptions for an investment strategy
newsletter called the "Sector Fund Wealth Builder." The Sector
Fund Wealth Builder is published and distributed to subscribers
on a weekly basis. The newsletter provides timely information
regarding our proprietary strategy, stock market observations,
information on websites and publications relative to the stock
market and investing, and a portfolio performance analysis.
Our strategy is based upon information provided by Eldridge
Investment Management, with whom we have an exclusive marketing
agreement. EIM has developed a computer system that tracks and
analyses sector funds and determines sustained leadership or
momentum growth in targeted sectors. We use the information
provided by EIM to notify our subscribers of buy or sell signals
of certain sector funds.
In addition to the recommendations based upon the EIM data,
we provide a commentary on financial markets and the economy.
Our commentary is based on research and analysis of weekly
trends, market developments, current political and economical
events and other information obtained from subscription and non-
subscription sources, websites, periodicals, and financial news
channels.
We currently fax, e-mail and U.S. mail our newsletter and
Portfolio Alerts to our subscribers. In addition, for up to the
minute information, we have a telephone hotline at 801-344-1304 where
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subscribers can call for an update of any new buy or sell
recommendations. Our hotline is available to our subscribers 24
hours a day, seven days a week.
Subscriptions are $497 per year. Under certain promotions,
we offer new subscribers an introductory offer of $297 per year.
We offer a 100% refund for any subscriber who cancels within the
first sixty days. Thereafter, at any time a subscriber cancels
their subscription, we pro rate a refund.
We have agreed to pay EIM a royalty of 10% for all new and
renewing subscriptions, less any refunds. In return EIM provides
us instant notification of any and all signals given by their
proprietary system.
In addition to our weekly newsletter, the Sector Fund Wealth
Builder, we also publish intra-week alerts called Portfolio
Alerts. If and when the EIM system gives a buy or sell signal
intra-week, we notify our subscribers via a Portfolio Alert that
is sent to the subscribers the same day, typically within hours
of receiving the information from EIM. This information is also
placed on our hotline immediately. Along with a buy or sell
recommendation, we include a description of the funds we
recommend, along with the fund's strategy and its holdings.
As of October 27, 2000 we had approximately 76 subscribers.
Currently, subscription fees paid by subscribers is our sole
source of revenue. We anticipate our future website will
provide additional revenue sources. We will consider allowing
advertising inserts to accompany our newsletter at such time as
our subscriber base reaches a significant level.
We also intend to undertake a marketing and advertising
program to promote our brand and products. In addition, we
intend to pursue additional strategic relationships and, as
appropriate, hire additional personnel, including management
personnel, and purchase additional computer systems and software.
Industry background
In recent years, there has been substantial growth in the
individual ownership of equity and fixed income securities
worldwide. In a Fall 1999 survey entitled "Equity Ownership in
America," the Investment Company Institute and the Securities
Industry Association reported that the number of Americans owning
stocks directly or through mutual funds grew from an estimated
42.9 million in 1983 to almost 78.7 million in 1999. The survey
further reported that the total holdings of equities by U.S.
households rose from 17.2 percent of household financial assets
in 1980 to 34.9 percent in 1998.
We believe that various factors have contributed to the
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growth in financial assets, including:
* the speed of information delivery
* organization of increased numbers of mutual funds,
* increase investment in mutual funds,
* the allocation by households of more assets to equity
investments,
* sustained high returns in the equity markets over a number
of years, and
* lower trading costs as a result of regulatory changes and
improved technologies
The proliferation in equity ownership and associated trading activity has created a need for more investment research and market information on the part of individual investors who seek higher returns on their portfolios.
We believe that the World Wide Web has rapidly established itself as an effective means for investors to manage their portfolios, research investments and trade securities. At the same time, individuals have been taking greater control of their investments by directly researching their investments, tracing their portfolios, purchasing mutual funds and playing a more proactive role in their relationships with financial advisors. The web has facilitated these behavioral shifts by providing individual investors with easy access to information that was once generally available only to investment professionals, such as timely market news, intra-day and historical quotes, charts, Securities and Exchange Commission filings and analysts' earnings estimates.
We believe that these trends evidence a fundamental change in the way many individual investors manage their financial assets. As individual investors seek to independently manage their financial assets, the demand for independent financial analysis and research, including SEC filings, business and financial news, stock quotes, stock price graphs and annual reports, has grown. This analysis and research represent key tools used by individuals and institutional investors in deciding whether to invest in a company or industry and when to buy or sell a particular security.
We believe that by combining our existing products and services with financial news and information and employing the interactive qualities of the internet to create a branded financial newsletter and website, we can capitalize on the increased demand among individual investors for financial analysis and research and attract such investors as new subscribers. For this reason, as part of our business strategy, we have adopted the development and launch of our website.
Marketing and advertising
We anticipate conducting a multi-faceted advertising campaign in print as well as electronic media. We also expect to conduct direct mail marketing initiatives targeting groups likely to be interested in our products.
We have completed three direct mail campaigns to targeted audiences. Our campaigns have consisted of a promotional insert in an existing financial newsletter with approximately 10,000 subscribers. It is our belief, that by targeting the 1,000,000 current financial newsletter subscribers, we can substantially increase our subscriber base. With proceeds from this offering, we believe we will be able to do direct mailings as a promotional insert in financial newsletters and publications with a much larger subscriber base, thus reaching more potential subscribers for our newsletter.
We have adopted a business strategy designed to increase the total number of our subscribers. To this end, upon completion of this offering, we will launch the creation and marketing of our website and the establishment of strategic distribution relationships through which we intend to reach additional subscribers.
When operational, our website will offer to subscribers, our financial newsletter and analysis, portfolio alerts and archived information. We expect to use the website to build brand awareness, attract paying subscribers for our products, and eventually generate advertising revenue.
In addition to our direct mail efforts and creating a website, we anticipate attending financial and investment conferences to promote our newsletter. To promote our newsletter, we pay a fee that enables us to give a presentation on our products and services to attendees of the conference. We believe that presentations at these conferences allows us to reach a large number of potential subscribers.
Competition
We compete with a substantial number of providers of financial news and information, market analysis and stock selections for the attention of subscribers and advertisers. We will compete directly with other financial newsletters and fee- based internet investment advisors. The growth in consumer demand for such information has been accompanied by enormous growth in the availability of such information and the number and types of sources for such information. Among the sources of competition are:
* Online services or websites focused on business, finance and investing, such as CBS MarketWatch.com, the Wall Street Journal Interactive Edition, CNNfn and The Street.com
* Publishers and distributors of traditional media, including print, radio and television, such as The Wall Street Journal, Investors' Daily, Barrons, Fortune, CNN and CNBC
* Providers of terminal-based financial news and data, such as Bloomberg Business News, Reuters News Service, Dow Jones Markets and Bridge News Services
* Web "portal" companies such as MSN, Yahoo! And American Online
* Online brokerage firms which provide financial and investment news and information, such as Charles Schwab and E*TRADE
* Online market analysis and stock analysis and selection companies such as Clear Station, Polar Trading and Pristine Trading.
The market for the distribution of investment research and related services is intensely competitive and this competition is expected to increase. We intend to differentiate ourselves from our competitors based on numerous factors including ease and speed of delivery of products and use of our website, performance, price, reliability, customer service and support, and sales and marketing efforts, as well as the quality, originality, variety and timeliness of our products and services.
We also believe that competitive position within the financial news and information, market analysis and stock selection market is, to a significant degree, personality driven; spokesmen and analysts for enterprise in this market are often highly visible and can be an important factor in differentiating a business from our competition. We believe that our newsletter provides a strategy as well as diverse, interesting commentary that will encourage loyalty to our publication.
Many of our existing competitors, as well as a number of potential new competitors, have longer operating histories, greater name recognition, larger customer bases and far greater financial, technical and marketing resources than we do. This may allow them to devote greater resources to the development and promotion of their services and to the recruitment and hiring of analysts and other personnel. These competitors may also engage in more extensive research and development, undertake more extensive marketing campaigns, adopt more aggressive pricing policies, and make more attractive offers to existing and potential employees, advertisers and strategic partners.
Because we are a small, start-up investment newsletter provider, we do not currently have the exposure or market share to be considered competitive.
Governmental Regulation
We are not required to register under the Investment Advisors Act of 1940 because we qualify for an exemption from registration under Section 202(a)(11)(D) of the Advisors Act.
Operation of our website is dependent on the use of the internet and telephone connections. Currently, there are few laws that apply specifically to access to or commerce on the internet. Due to the increasing popularity of use of the internet, however, it is possible that laws and regulations with respect to the internet may be adopted at Federal, state and even local levels, covering issues such as user privacy, freedom of expression, pricing, characteristics and quality of products and services, taxation, advertising, intellectual property rights, information security and the convergence of traditional telecommunications services with internet communications. In addition, the telecommunications industry is subject to regulatory control under a number of Federal statutes. Any amendments to current regulations, statutes or new laws and regulations could harm our business, results of operations and prospects.
Employees
We do not currently have any employees other than Anthony Ramon who is our sole officer and director. Mr. Ramon devotes at least 40 hours per week to Excel Publishing but may also be involved in other ventures. We do not intend to hire any additional employees until such time as our subscription base increases to the point where additional help is necessary. Until then, we will employ consultants and others on a part time, as needed basis, in order to help implement our business plan.
Facilities
We rent office space on a month to month basis which includes administrative support for no more than $500 per month. Our monthly rental expense varies depending on the amount of administrative support we require each month. Our offices are located at 2250 West Center Street, Springville, Utah 84663. We believe our current office space is sufficient for our operations.
Legal proceedings
Our company is not a party in to any bankruptcy, receivership or other legal proceeding, and to the best of our knowledge, no such proceedings by or against Excel have been threatened.
PLAN OF OPERATION
We commenced our current operations in May 2000 with our test market using direct mail inserts. The response was favorable and we anticipate similar results from future direct mail efforts. However, in order to pursue additional direct mail efforts, create and establish our website, investigate e- commerce relationships and increase our marketing and promotions, we must receive the proceeds from this offering.
Should we receive only the minimum offering, we will realize a net of $55,000. We will use these funds to test market through direct mailing efforts and develop our website. We anticipate that with the minimum offering amount, we can continue our operations for a period of twelve months.
Should we receive the maximum amount of the offering, we will realize a net of $75,000. This amount will enable us to increase our marketing efforts, create our website and explore internet relationships for marketing and distribution of our products. We anticipate that with the maximum
offering amount, we can continue our operations and increase our marketing efforts for a period of twelve months.
If we are unable to raise the minimum offering amount, it will be necessary for us to find additional funding in order to market our products. In this event, we may seek additional financing in the form of loans or sales of our stock and there is no assurance that we will be able to obtain financing on favorable terms or at all or that we will find qualified purchasers for the sale of any stock.
RESULTS OF OPERATIONS
From inception on June 7, 2000 through August 31, 2000
We realized $3,447 in revenues and $22,577 in cost of goods. We had $8,755 in general and administrative expenses. We realized a net loss of $27,855.
As of August 31, 2000, we had $16,677 cash on hand and $5,000 of prepaid assets for total current assets of $21,677. We have accounts payable of $1,602, accrued expenses of $1,507 and unearned subscription income of $11,423, making our total current liabilities $14,532.
We have no capital commitments for the next twelve months.
MANAGEMENT
Our business will be managed by our sole officer and director, Mr. Anthony B. Ramon.
Name Age Position Since Anthony B. Ramon 37 Sole Officer and Director June 2000 |
The following is a brief biography of Mr. Anthony B. Ramon, sole officer and director.
Mr. Anthony B. Ramon, Sole Officer and Director. From 1994 until the present, Mr. Ramon has been the General Manager and Publisher of The Ruff Times financial newsletter. From 1991 to 1993, he was a Vice President of The MainStreet Alliance, a discount membership club. From 1989 to 1991, Mr. Ramon was General Manager, gemologist and numismatist of Tanset Resources, a precious stones and precious metals dealer, and from 1987 to 1989, Mr. Ramon was the numismatist and account executive with Ruffco, a precious metals and rare coin dealer.
COMPENSATION
Mr. Ramon currently receives $5,000 per month as salary from Excel. We currently do not have any employment agreements in place for officers or directors. We anticipate entering an employment agreement with our sole officer in the future. We do not anticipate compensating any directors.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Our policy is stated in Article X of our articles of incorporation. A contract or transaction either between our company and a director, or between a director and another company in which he is financially interested is not necessarily void or voidable if the relationship or interest is disclosed or known to the board of directors and the stockholders are entitled to vote on the issue, or if it is fair and
reasonable to our company. A common or interested director may be counted in determining the presence of a quorum at a meeting of the board of directors or committee thereof which authorizes, approves or ratifies the contract or transaction.
On June 15, 2000, we issued 10,000,000 shares to Mr. Anthony B. Ramon, sole officer and director. We received $10,000 for the shares.
PRINCIPAL STOCKHOLDERS
The following table sets forth the beneficial ownership of our common stock as of the date of this prospectus, and as adjusted to reflect the sale of 800,000 should the minimum number of shares be sold and to reflect the sale of 1,000,000 should the maximum number of shares be sold.
The table includes:
* each person known to us to be the beneficial owner of more than
five percent of the outstanding shares
* each director of Excel
* each named executive officer of Excel
Name & # of % Before % After Offering
Address Shares Offering Minimum Maximum
Beneficially
Owned
Anthony B.Ramon 10,000,000 95.23% 88.49% 86.95%
632 N. 1000 East
Mapleton, UT 84664
All directors
and executive 10,000,000 95.23% 88.49% 86.95%
officers as a
group (1 person)
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Mr. Anthony B. Ramon is the sole officer and director of Excel.
DESCRIPTION OF THE SECURITIES
Common Stock
We are authorized to issue up to 50,000,000 shares of common stock with a par value of $.001. As of the date of this prospectus, there are 10,500,000 shares of common stock issued and outstanding.
The holders of common stock are entitled to one vote per share on each matter submitted to a vote of stockholders. In the event of liquidation, holders of common stock are entitled to share ratably in the distribution of assets remaining after payment of liabilities, if any. Holders of common stock have no cumulative voting rights, and, accordingly, the holders of a majority of the outstanding shares have the ability to elect all of the directors. Holders of common stock have no preemptive or other rights to subscribe for shares. Holders of common stock are entitled to such dividends as may be declared by the board of directors out of funds legally available therefor. The outstanding common stock is, and the common stock to be outstanding upon completion of this offering will be, validly issued, fully paid and non-assessable.
We anticipate that we will retain all of our future earnings, if any, for use in the operation and expansion of our business. We do not anticipate paying any cash dividends on our common stock in the foreseeable future.
Preferred Stock
We are authorized to issue up to 10,000,000 shares of preferred stock with a par value of $.001. As of the date of this prospectus, there are no shares of preferred stock issued and outstanding.
Our preferred stock may be issued from time to time in one or more series, with such distinctive serial designations as may be stated or expressed in the resolution or resolutions providing for the issue of such stock adopted from time to time by our board of directors. Our board of directors are expressly authorized to fix:
* Voting rights
* The consideration for which the shares are to be issued;
* The number of shares constituting each series;
* Whether the shares are subject to redemption and the terms
of redemption;
* The rate of dividends, if any, and the preferences and
whether such dividends shall be cumulative or noncumulative;
* The rights of preferred stockholders regarding liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding up of Excel; and
* The rights of preferred stockholders regarding conversion or
exchange of shares for another class of our shares.
Transfer Agent
Interwest Transfer Company, Inc., 1981 East 4800 South, Salt Lake City, Utah 84124, is our transfer agent.
SHARES AVAILABLE FOR FUTURE SALE
As of the date of this prospectus, there are 10,500,000 shares of our common stock issued and outstanding. Upon the effectiveness of this registration statement, 800,000 shares of common stock will be freely tradeable if the minimum number of shares are sold and 1,000,000 shares of common stock will be freely tradable if the maximum number of shares are sold. The remaining 10,500,000 shares of common stock will be subject to the resale provisions of Rule 144. Sales of shares of common stock in the public markets may have an adverse effect on prevailing market prices for the common stock.
Rule 144 governs resale of "restricted securities" for the
account of any person (other than an issuer), and restricted and
unrestricted securities for the account of an "affiliate of the
issuer. Restricted securities generally include any securities
acquired directly or indirectly from an issuer or its affiliates
which were not issued or sold in connection with a public
offering registered under the Securities Act. An affiliate of
the issuer is any person who directly or indirectly controls, is
controlled by, or is under common control with the issuer.
Affiliates of the company may include its directors, executive
officers, and person directly or indirectly owning 10% or more of
the outstanding common stock. Under Rule 144 unregistered
resales of restricted common stock cannot be made until it has
been held for one year from the later of its acquisition from the
company or an affiliate of the company. Thereafter, shares of
common stock may be resold without registration subject to Rule
144's volume limitation, aggregation, broker transaction, notice
filing requirements, and requirements concerning publicly
available information
about the company ("Applicable Requirements"). Resales by the company's affiliates of restricted and unrestricted common stock are subject to the Applicable Requirements. The volume limitations provide that a person (or persons who must aggregate their sales) cannot, within any three-month period, sell more that the greater of one percent of the then outstanding shares, or the average weekly reported trading volume during the four calendar weeks preceding each such sale. A non-affiliate may resell restricted common stock which has been held for two years free of the Applicable Requirements.
MARKET FOR COMMON STOCK AND RELATED STOCKHOLDER MATTERS
We have two shareholders. Currently, there is no public trading market for our securities and there can be no assurance that any market will develop. If a market develops for our securities, it will likely be limited, sporadic and highly volatile.
Presently, we are privately owned. This is our initial public offering. Most initial public offerings are underwritten by a registered broker-dealer firm or an underwriting group. These underwriters generally will act as market makers in the stock of a company they underwrite to help insure a public market for the stock. This offering is to be sold by our sole officer and director. We have no commitment from any brokers to sell shares in this offering. As a result, we will not have the typical broker public market interest normally generated with an initial public offering. Lack of a market for shares of our common stock could adversely affect a shareholder in the event a shareholder desires to sell his shares. The company does anticipate a market maker filing for listing on the Over the Counter Bulletin Board should the offering succeed.
Currently the Shares are subject to Rule 15g-9, which provides, generally, that for as long as the bid price for the Shares is less than $5.00, they will be considered low priced securities under rules promulgated under the Exchange Act. Under these rules, broker-dealers participating in transactions in low priced securities must first deliver a risk disclosure document which describes the risks associated with such stocks, the broker- dealer's duties, the customer's rights and remedies, and certain market and other information, and make a suitability determination approving the customer for low priced stock transactions based on the customer's financial situation, investment experience and objectives. Broker-dealers must also disclose these restrictions in writing to the customer and obtain specific written consent of the customer, and provide monthly account statements to the customer. Under certain circumstances, the purchaser may enjoy the right to rescind the transaction within a certain period of time. Consequently, so long as the common stock is a designated security under the Rule, the ability of broker-dealers to effect certain trades may be affected adversely, thereby impeding the development of a meaningful market in the common stock. The likely effect of these restrictions will be a decrease in the willingness of broker- dealers to make a market in the stock, decreased liquidity of the stock and increased transaction costs for sales and purchases of the stock as compared to other securities.
PLAN OF DISTRIBUTION
Mr. Anthony B. Ramon, the sole officer and director of the company will sell the common shares offered hereunder on a "best efforts" basis. We have appointed Brighton Bank, 311 South State Street, Salt Lake City, Utah 84111 as the escrow agent who will hold proceeds from the sale of shares until the minimum $80,000 has been received. If we have not received $80,000 within 90 days from the date of this prospectus, unless extended by us for up to an additional 30 days, funds will be promptly returned to investors without interest and without any deductions. In order to buy our shares, you must complete and execute the subscription agreement and make payment of the purchase price for each share purchased either in cash or by check payable to the order of Excel Publishing, Inc.
Solicitation for purchase of our shares will be made only by
means of this prospectus and communications with our sole officer
and director who is employed to perform substantial duties
unrelated
to the offering, who will not receive any commission or compensation for their efforts, and who is not associated with a broker or dealer.
LEGAL MATTERS
The legality of the issuance of the shares offered hereby and certain other matters will be passed upon for Excel Publishing, Inc. by Lehman Walstrand & Associates, Salt Lake City, Utah.
EXPERTS
The financial statements of Excel Publishing, Inc. as of August 31, 2000 (audited) appearing in this Prospectus and Registration Statement have been prepared by Pritchett, Siler & Hardy, P.C., as set forth in their report appearing elsewhere herein, and are included in reliance upon such report given upon the authority of said firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
We have filed a Registration Statement on Form SB-2 under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the shares offered hereby. This Prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules thereto. For further information with respect to Excel and the shares offered hereby, reference is made to the Registration Statement and the exhibits and schedules filed therewith. Statements contained in this Prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. A copy of the Registration Statement, and the exhibits and schedules thereto, may be inspected without charge at the public reference facilities maintained by the Securities and Exchange Commission in Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the Commission located at Seven World Trade Center, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies of all or any part of the Registration Statement may be obtained from the Commission upon payment of a prescribed fee. This information is also available from the Commission's Internet website, http://www.sec.gov.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
CONTENTS
PAGE
- Independent Auditors' Report 17
- Balance Sheet, August 31, 2000 18 - Statement of Operations, for the period from inception on June 7, 2000 through August 31, 2000 19 |
- Statement of Stockholders' Equity, for the period
from inception on June 7, 2000 through
August 31, 2000 20
- Statement of Cash Flows, for the period from
inception on June 7, 2000 through August 31, 2000 21
- Notes to Financial Statements 22
|
INDEPENDENT AUDITORS' REPORT
Board of Directors
EXCEL PUBLISHING, INC.
Salt Lake City, Utah
We have audited the accompanying balance sheet of Excel Publishing, Inc. [a development stage company] at August 31, 2000, and the related statement of operations, stockholders' equity and cash flows for the period from inception on June 7, 2000 through August 31, 2000. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements audited by us present fairly, in all material respects, the financial position of Excel Publishing, Inc. [a development stage company] as of August 31, 2000, and the results of its operations and its cash flows for the period from inception on June 7, 2000 through August 31, 2000, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 5 to the financial statements, the Company has incurred losses since its inception and has not yet been successful in establishing profitable operations, raising substantial doubt about its ability to continue as a going concern. Management's plans in regards to these matters are also described in Note 5. The financial statements do not include any adjustments that might result from the outcome of these uncertainties.
/s/ Pritchett, Siler & Hardy, P.C. PRITCHETT, SILER & HARDY, P.C. September 8, 2000 Salt Lake City, Utah |
EXCEL PUBLISHING, INC.
[A Development Stage Company]
BALANCE SHEET
ASSETS
August 31,
2000
_________
CURRENT ASSETS:
Cash in bank $ 16,677
Prepaid assets 5,000
_________
Total Current Assets 21,677
_________
$ 21,677
|
[S]
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable - related party $ 1,602
Accrued expenses 1,507
Unearned subscription income 11,423
_________
Total Current Liabilities 14,532
_________
STOCKHOLDERS' EQUITY:
Preferred stock, $.001 par value,
5,000,000 shares authorized,
no shares issued and outstanding -
Common stock, $.001 par value,
50,000,000 shares authorized,
10,500,000 shares issued and
outstanding 10,500
Capital in excess of par value 24,500
(Deficit) accumulated during the
development stage (27,855)
_________
Total Stockholders' Equity 7,145
_________
$ 21,677
_________
|
The accompanying notes are an integral part of this financial statement.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
STATEMENT OF OPERATIONS
From Inception on
June 7, 2000
Through
August 31,
2000
_______________
REVENUE, net $ 3,477
COST GOODS SOLD 22,577
_______________
Gross profit (19,100)
EXPENSES:
General and Administrative 8,755
_______________
LOSS BEFORE INCOME TAXES (27,855)
CURRENT TAX EXPENSE -
DEFERRED TAX EXPENSE -
_______________
NET LOSS $ (27,855)
_______________
LOSS PER COMMON SHARE $ (.00)
_______________
|
The accompanying notes are an integral part of this financial statement.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
STATEMENT OF STOCKHOLDERS' EQUITY
FROM THE DATE OF INCEPTION ON JUNE 7, 2000
THROUGH AUGUST 31, 2000
Deficit
Accumulated
Preferred Stock Common StockCapital in During
the
____________________________________________ Excess of
Development
Shares Amount Shares AmountPar Value Stage
___________________________________________________
__________
BALANCE, June 7, 2000 - $ - - $ - $ - $ -
Common stock issued for
cash at $.001 per share,
June 2000 - -10,000,000 10,000 - -
Common stock issued for
cash at $.05 per share,
August 2000 - - 500,000 500 24,500 -
Net loss for the period
ended August 31, 2000 - - - - -(27,855)
___________________________________________________
__________
BALANCE, August 31,
2000 - $ -10,500,000 $ 10,500 $ 24,500 $(27,855)
________________________________________________________
|
The accompanying notes are an integral part of this financial statement.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
STATEMENT OF CASH FLOWS
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
From Inception on
June 7, 2000
Through
August 31,
2000
_______________
Cash Flows From Operating Activities:
Net loss $
(27,855)
Adjustments to reconcile net loss to
net cash used by operating activities:
Changes in assets and liabilities:
(Increase) in prepaid assets (5,000)
Increase in accrued liabilities 1,507
Increase in accounts payable - related party 1,602
Increase in unearned subscription income 11,423
_______________
Net Cash (Used) by Operating Activities (18,323)
_______________
Cash Flows From Investing Activities -
_______________
Net Cash Provided by Investing Activities -
_______________
Cash Flows From Financing Activities:
Proceeds from issuance of common stock 35,000
_______________
Net Cash Provided by Financing Activities 35,000
_______________
Net Increase (Decrease) in Cash 16,677
Cash at Beginning of Period -
_______________
Cash at End of Period $ 16,677
_______________
Supplemental Disclosures of Cash Flow
Information:
Cash paid during the period for:
Interest $ -
Income taxes $ -
Supplemental Schedule of Noncash Investing and Financing Activities:
For the year ended August 31, 2000:
None.
|
The accompanying notes are an integral part of these financial statements.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
NOTES TO FINANCIAL STATEMENTS
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization - Excel Publishing, Inc. (the Company) was organized under the laws of the State of Nevada on June 7, 2000. The Company is considered a development stage company as defined in Statement of Financial Accounting Standards (SFAS) No. 7. The Company sells subscriptions to an investment newsletter. The Company has, at the present time, not paid any dividends and any dividends that may be paid in the future will depend upon the financial requirements of the Company and other relevant factors.
Revenue Recognition - The Company recognizes revenue from the sale of subscriptions upon mailing of the Company's newsletters. At August 31, 2000, the Company has recorded unrecorded subscription income of $11,423, representing the unearned portion of annual subscriptions.
Loss Per Share - The computation of loss per share is based on the weighted average number of shares outstanding during the period presented in accordance with Statement of Financial Accounting Standards No. 128, "Earnings Per Share". [See Note 6]
Cash and Cash Equivalents - For purposes of the statement of cash flows, the Company considers all highly liquid debt investments purchased with a maturity of three months or less to be cash equivalents.
Accounting 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, the disclosures of contingent assets and liabilities at the date of the financial statements, and the reported amount of revenues and expenses during the reported period. Actual results could differ from those estimated.
Recently Enacted Accounting Standards - Statement of Financial Accounting Standards (SFAS) No. 136, "Transfers of Assets to a not for profit organization or charitable trust that raises or holds contributions for others", SFAS No. 137, "Accounting for Derivative Instruments and Hedging Activities - deferral of the effective date of FASB Statement No. 133 (an amendment of FASB Statement No. 133.),", SFAS No. 138 "Accounting for Certain Derivative Instruments and Certain Hedging Activities - and Amendment of SFAS No. 133", SFAS No. 139, "Recission of SFAS No. 53 and Amendment to SFAS No 63, 89 and 21", and SFAS No. 140, "Accounting to Transfer and Servicing of Financial Assets and Extinguishment of Liabilities", were recently issued SFAS No. 136, 137, 138, 139 and 140 have no current applicability to the Company or their effect on the financial statements would not have been significant.
NOTE 2 - CAPITAL STOCK
Common Stock - During June 2000, in connection with its organization, the Company issued 10,000,000 shares of its previously authorized, but unissued common stock. The shares were issued for $10,000 cash (or $.001 per share).
During August 2000, the Company issued 500,000 shares of its previously authorized, but unissued common stock for $25,000 cash (or $.05 per share).
EXCEL PUBLISHING, INC.
[A Development Stage Company]
NOTES TO FINANCIAL STATEMENTS
NOTE 3 - INCOME TAXES
The Company accounts for income taxes in accordance with Statement of Financial Accounting Standards No. 109 "Accounting for Income Taxes". FASB 109 requires the Company to provide a net deferred tax asset/liability equal to the expected future tax benefit/expense of temporary reporting differences between book and tax accounting methods and any available operating loss or tax credit carryforwards. At August 31, 2000, the Company has available unused operating loss carryforwards of approximately $27,900, which may be applied against future taxable income and which expire in various years through 2020.
The amount of and ultimate realization of the benefits from the operating loss carryforwards for income tax purposes is dependent, in part, upon the tax laws in effect, the future earnings of the Company, and other future events, the effects of which cannot be determined. Because of the uncertainty surrounding the realization of the loss carryforwards the Company has established a valuation allowance equal to the tax effect of the loss carryforwards and, therefore, no deferred tax asset has been recognized for the loss carryforwards. The net deferred tax assets are approximately $9,500 as of August 31, 2000 with an offsetting valuation allowance of the same amount.
NOTE 4 - RELATED PARTY TRANSACTIONS
Management Compensation - As of August 31, 2000, the Company has paid $17,500 in compensation to an officer/director of the Company.
Expenses Paid By Officer- An officer of the Company advanced $1,602 to the Company on a non-interest basis to pay costs related to producing the Company's newsletter.
NOTE 5 - GOING CONCERN
The accompanying financial statements have been prepared in conformity with generally accepted accounting principles, which contemplate continuation of the Company as a going concern. However, the Company has incurred losses since its inception and has not yet been successful in establishing profitable operations. These factors raise substantial doubt about the ability of the Company to continue as a going concern. In this regard, management is proposing to raise any necessary additional funds not provided by operations through loans or through additional sales of its common stock. There is no assurance that the Company will be successful in raising this additional capital or achieving profitable operations. The financial statements do not include any adjustments that might result from the outcome of these uncertainties.
EXCEL PUBLISHING, INC.
[A Development Stage Company]
NOTES TO FINANCIAL STATEMENTS
NOTE 6 - LOSS PER SHARE
The following data shows the amounts used in computing loss per share:
From Inception on
June 7, 2000
Through
August 31,
2000
______________
Loss from continuing operations
available to common shareholders
(numerator) $ (27,855)
______________
Weighted average number of
common shares outstanding used
in computing loss per share for the period
(denominator) 10,194,805
______________
|
NOTE 7 - SUBSEQUENT EVENT
Proposed Stock Offering - The Company is proposing to make a
public offering of 1,000,000 shares of its previously authorized
but unissued common stock. This offering is proposed to be
registered with the Security and Exchange Commission on Form SB-
2. An offering price of $.10 per share has been arbitrarily
determined by the Company. The offering will be managed by the
Company without an underwriter. The shares will be offered and
sold by an officer of the Company, who will receive no sales
commissions or other compensation in connection with the
offering, except for reimbursement of expenses actually incurred
on behalf of the Company in connection with the offering. The
sale of all 1,000,000 shares is to be made within 90 days (or 120
days if extended by the Company) of the commencement of the
offering.
=============================== ===============================
Until _____________, 2000, all
dealers that effect
transactions in these
securities, whether or not $100,000
participating in this offering,
may be required to deliver a
prospectus. This is in
addition to the dealers'
obligation to deliver a Excel Publishing, Inc.
prospectus when acting as
underwriters and with respect
to their unsold allotments or
subscriptions.
1,000,000 Shares
------------------------------- Common Stock
$.001 Par Value
TABLE OF CONTENTS
-------------------------------
Prospectus Summary 2
Risk Factors 2 ---------------------
PROSPECTUS
Forward-Looking Statements 3 ---------------------
Dilution and Comparative Data 3
Use of Proceeds 5
Dermination of Offering Price 5
Capitalization 6
Description of Business 6
Plan of Operation 10
Management 11
Compensation 11
Certain Relationships and
Related Transactions 11 ___________________ 2000
Principal Stockholders 12
Description of the Securities 12
Shares Available for Future
Sale 13
Market for Common Stock 14
Plan of Distribution 14
Legal Matters 15
Experts 15
Additional Information 15 ===============================
Index to Financial Statements 16
No dealer, salesperson or other
person has been authorized to
give any information or to make
any representations other than
those contained in this
Prospectus and, if given or
made, such information or
representations must not be
relied upon as having been
authorized by the Company. This
Prospectus does not constitute
an offer to sell or a
solicitation of an offer to buy
any of the securities offered
hereby to whom it is unlawful
to make such offer in any
jurisdiction. Neither the
delivery of this Prospectus nor
any sale made hereunder shall,
under any circumstances, create
any implication that
information contained herein is
correct as of any time
subsequent to the date hereof
or that there has been no
change in the affairs of the
Company since such date.
===============================
|
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our company's charter provides that, to the fullest extent that limitations on the liability of directors and officers are permitted by the Nevada Revised Statutes, no director or officer of the company shall have any liability to the company or its stockholders for monetary damages. The Nevada Revised Statutes provide that a corporation's charter may include a provision which restricts or limits the liability of its directors or officers to the corporation or its stockholders for money damages except: (1) to the extent that it is provided that the person actually received an improper benefit or profit in money, property or services, for the amount of the benefit or profit in money, property or services actually received, or (2) to the extent that a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding in the proceeding that the person's action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. The company's charter and bylaws provide that the company shall indemnify and advance expenses to its currently acting and its former directors to the fullest extent permitted by the Nevada Revised Business Corporations Act and that the company shall indemnify and advance expenses to its officers to the same extent as its directors and to such further extent as is consistent with law.
The charter and bylaws provide that we will indemnify our directors and officers and may indemnify our employees or agents to the fullest extent permitted by law against liabilities and expenses incurred in connection with litigation in which they may be involved because of their offices with Excel. However, nothing in our charter or bylaws of the company protects or indemnifies a director, officer, employee or agent against any liability to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office. To the extent that a director has been successful in defense of any proceeding, the Nevada Revised Statutes provide that he shall be indemnified against reasonable expenses incurred in connection therewith.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy and is, therefore, unenforceable.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with this Registration Statement. We will pay all expenses of the offering. All of such expenses are estimates, other than the filing fees payable to the Securities and Exchange Commission.
Securities and Exchange Commission Filing Fee $ 26.40 Printing Fees and Expenses 1,000.00 Legal Fees and Expenses 15,000.00 Accounting Fees and Expenses 7,000.00 Blue Sky Fees and Expenses 1,000.00 Trustee's and Registrar's Fees 500.00 Miscellaneous 473.60 TOTAL $ 25,000.00 |
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
On June 15, 2000, we issued 10,000,000 shares to Anthony B. Ramon in exchange for $10,000. The securities were sold in a private transaction, without registration in reliance on the exemption provided by Section 4(2) of the Securities Act. The investor had a pre-existing relationship with the Company and had access to all material information pertaining to the Company and its financial condition. No broker was involved and no commissions were paid in the transaction.
On August 1, 2000, we issued 500,000 shares to an individual in exchange for $25,000 in a private transaction, without registration in reliance on the exemption provided by Section 4(2) of the Securities Act. No broker was involved and no commissions were paid in the transaction.
ITEM 27. EXHIBITS.
Exhibits.
Exhibit SEC Ref. Title of Document Location No. No. 1 3.1 Articles of Incorporation Attached 1 3.2 By-laws Attached 2 5 Legal Opinion included in Exhibit 23.1 Attached 4 10 Material Contract - Eldridge Investment Management Attached 5 23.1 Consent of Lehman Walstrand & Associates Attached 6 23.2 Consent of Pritchett, Siler & Hardy, P.C. Attached 7 99.1 Escrow Agreement Attached 8 99.2 Subscription Agreement Attached 9 27 Financial Data Schedule Attached |
ITEM 28. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in this Registration Statement or otherwise, we have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the us of expenses incurred or paid by a director, officer or controlling persons of Excel in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to:
(1) File, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information in the registration statement; and
(iii) Include any additional or changed material information on the plan of distribution.
(2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bonafide offering.
(3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, Excel Publishing, Inc., certifies that it has reasonable ground to believe that it meets all of the requirements of filing on Form SB-2 and authorizes this Registration Statement to be signed on its behalf, in the City of Salt Lake, State of Utah, on December 13, 2000.
Excel Publishing, Inc.
By: /s/ Anthony B.Ramon
--------------------
Anthony B. Ramon
President and Treasurer
Dated: December 13, 2000
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following person in the capacity and on the dates indicated.
/s/ Anthony B. Ramon Sole Officer and Director Dated: December 13, 2000 |
ARTICLES OF INCORPORATION
(Pursuant to NRS 78)
1. Name of Corporation: Excel Publishing, Inc.
2. Resident Agent Name
and Street Address: Gateway Enterprises, Inc.
3230 E. Flamingo Road, Suite 156 Las Vegas, Nevada 89121
3. Shares:
Number of shares Number of shares
With par value: 50,000,000 Par Value: $.001 without par value: NONE
4. Names, Addresses, Number
of Board of Directors/ Trustees:
The first Board of Directors/Trustees shall consist of ONE members
whose names and addresses are as follows:
ANTHONY B. RAMON
832 North 1000 East, Mapleton, Utah 84684
5. Purpose:
The purpose of this Corporation shall be: optional
6. Other Matters:
Number of additional pages attached: 7 pages
7. Names, Addresses and Signatures of Incorporators:
/s/ Anthony B. Ramon
632 North 1000 East, Mapleton, Utah 84684
8. Certificate of Acceptance of
Appointment of Resident Agent
I, Gateway Enterprises Inc., hereby accept appointment as Resident
Agent for the above named corporation.
/s/ Resident Agent
E1-1
|
ARTICLES OF INCORPORATION
OF
Excel Publishing, Inc.
ARTICLE I
The name of the corporation (which is hereinafter referred to as the "Corporation") is Excel Publishing, Inc
ARTICLE II
The address of the registered office of the Corporation in the State of Nevada is 3230 East Flamingo Road, Suite 156, Las Vegas, Nevada 8912 1. The name of the registered agent of the Corporation is Gateway Enterprises, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the provisions of Chapter 78 of the Nevada Revised Statutes.
ARTICLE IV
Common Stock The aggregate number of shares of Common Stock which the Corporation shall have authority to issue is 50,000,000 shares at a par value of $.001 per share. All stock, when issued shall be fully paid and non-assessable, shall be of the same class and have the same rights and preferences.
Each share of Common Stock shall be entitled to one vote at a stockholder's meetings, either in person or by proxy. Cumulative voting in elections of Directors and all other matters brought before stockholders meeting, whether they be annual or special, shall not be permitted.
The holders of the capital stock of the Corporation shall not be personally liable for the payment of the Corporation's debts and the private property of the holders of the capital stock of the Corporation shall not be subject to the payment of debts of the Corporation to any extent whatsoever.
Stockholders of the Corporation shall not have any preemptive rights to subscribe for additional issues of stock of the Corporation except as may be agreed from time to time by the Corporation and any such stockholder.
Preferred Stock. The aggregate number of share of Preferred Stock which the Corporation shall have authority to issue is 10,000,000 shares, par value $.001, which may be issued in series, with such designations, preferences, stated values, rights, qualifications or limitations as determined solely by the Board of Directors of the Corporation.
ARTICLE V
The amount of the authorized stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
ARTICLE VI
SECTION 1. Number. Election and Terms of Directors. The members of the governing board of the Corporation shall be styled Directors of the Corporation. The number of the Directors of the Corporation shall be fixed from time to time by or pursuant to the By-Laws of the Corporation, and shall initially be one.
SECTION 2. Newly Created Directorships and Vacancies Newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
SECTION 3. Removal of Directors. Any Director may be removed from office, with or without cause, only by the affirmative vote of the holders of 5 1 % of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.
ARTICLE VII
Any action required or permitted to be taken by the stockholders of the Corporation may be effected by any consent in writing by such holders, signed by holders of not less than that number of shares of Common Stock required to approve such action.
ARTICLE VIII
Subject to any express provision of the laws of the State of Nevada or these Articles of Incorporation, the Board of Directors shall have the power to make, alter, amend and repeal the By-Laws of the Corporation (except so far as By-Laws of the Corporation adopted by the stockholders shall otherwise provide). Any By-Laws made by the Directors under the powers conferred hereby may be altered, amended or repealed by the Directors or by the stockholders.
ARTICLE IX
Election of Directors need not be by ballot unless the By- laws of the Corporation shall so provide.
ARTICLE X
SECTION 1. Elimination of Certain Liability of Directors. A
Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the Director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) for the payment of distributions to stockholders in
violation of Section 78.300 of the Nevada Revised Statutes, or
(iv) for any transaction from which the Director derived an
improper personal benefit.
SECTION 2. Indemnification and Insurance
(a) Action, etc.. Other Than by or in the Right of the Corporation The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any Agent (as hereinafter defined) against costs, charges and Expenses (as hereinafter defined), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Agent in connection with such action, suit or proceeding, and any appeal therefrom, if the Agent acted in good faith and in a manner the Agent 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 Agent did not act in good faith and in a manner which the Agent 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 the Agent had reasonable cause to believe that the Agent's conduct was unlawful.
(b) 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 such person is or was an Agent, against costs, charges and Expenses actually and reasonably incurred by the Agent in connection with the defense or settlement of such action or suit and any appeal therefrom if the Agent acted in good faith and in a manner such person 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 the Agent's 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 costs, charges and Expenses which such court shall deem proper.
(c) Determination of Right of Indemnification. Any indemnification under Paragraphs (a) and (b) of this Section (unless ordered by a court) shall be paid by the Corporation unless a determination is reasonably and promptly made (i) 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 (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 manner that such person did not believe to be in or not
opposed to the best interests of the Corporation, or, with respect
to any criminal proceeding, that such person believed or had
reasonable cause to believe that his conduct was unlawful,
(d) Indemnification Against Expenses of Successful Pam. Notwithstanding the other provisions of this Section, to the extent that an Agent has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, the settlement of an action without admission of liability, or the 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 costs, charges and Expenses incurred in connection therewith.
(e) Advances of Expenses Except as limited by Paragraph (f) of this Section, costs, charges, and Expenses incurred by an Agent 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 by a majority vote of a quorum of disinterested Directors, 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, that, based upon the facts known to the Board of Directors or counsel at the time such determination is made, the Agent acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests 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 of Directors or independent legal counsel reasonably determines that the Agent deliberately breached such persons' duty to the Corporation or its stockholders.
(f) Right of Agent to Indemnification upon Application:
Procedure upon Application. Any indemnification under Paragraphs
(a), (b) and (d) or advance under Paragraph (e) of this Section,
shall be made promptly, and in any event within 60 days, upon the
written request of the Agent, unless with respect to applications
under Paragraphs (a), (b) or (e), 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 Paragraphs 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 Paragraphs 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 Section shall be
enforceable by the Agent in any court of competent jurisdiction if
the Board of Directors or independent legal counsel denies the
claim in whole or in part or if no disposition of such claim is
made within 60 days. The Agent's costs, charges and Expenses
incurred in connection with successfully establishing such
persons' right to indemnification, in whole or in part, in any
such proceeding shall also be indemnified by the Corporation.
(g) Other Rights and Remedies. The indemnification provided by this Section 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 such person's 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 Section shall be deemed to be contract between the Corporation and the Agent who serves in such capacity at any time while these Articles and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeat or modification thereof shall not affect any rights or obligations then existing.
(h) Insurance. 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 or her in any such capacity, or arising out of such persons's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Section. 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.
(i) Other Enterprises. Fines and Serving at Corporation's Request. For purposes of this Section, references to "other enterprise" in Paragraph (a) 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, agent or fiduciary 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 such person 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 Section.
(j) Savings Clause. If this Section 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 costs, charges and Expenses, judgments, fines and amounts paid in settlement with respect to any action, suit, proceeding or investigation, and any appeal therefrom, whether civil, criminal or administrative, and whether internal or external ' including a grand jury proceeding and an action or suit brought by or in the right of the
BY-LAWS
OF
Excel Publishing, Inc., A NEVADA CORPORATION
ARTICLE I
OFFICES
Section I. The principal office of the Corporation shall be 2250 West Center, Springville, Utah 84663. The Corporation may have such other offices, either within or without the State of Nevada 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 Nevada Business Corporation Act to be maintained in the State of Nevada may be, but need not be identical with the principal offices in the State of Nevada, and the address of the registered office may be changed, from time to time, by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of stockholders shall be held at the principal office of the Corporation, at 2250 West Center Street, Springville, Utah, 84663, or at such other places on the third Thursday of January or at such other times as the Board of Directors may, from time to time, determine. If the day so designated falls upon a legal holiday then the meeting shall be held upon the first business day thereafter. The Secretary shall serve personally or by mail a written notice thereof, not less than ten (10) nor more than fifty (50) days previous to such meeting, addressed to each stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which all stockholders not present have waived notice in writing, the giving of notice as above required may be dispensed with.
Section 2. Special Meetings. Special meetings of stockholders other than those regulated by statute, may be called at any time by a majority of the Directors. Notice of such meeting stating the place, day and hour and the purpose for which it is called shall be served personally or by mail, not less than ten (10) days before the date set for such meeting. If mailed, it shall be directed to a stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which stockholders not present have waived notice in writing, the giving of notice as above described may be dispensed with. The Board of Directors shall also, in like manner, call a special meeting of stockholders whenever so requested in writing by stockholders representing not less than ten percent (10%) of the capital stock of the Corporation entitled to vote at the meeting. The President may in his discretion call a special meeting of stockholders upon ten (10) days notice. No business other than that specified in the call for the meeting shall be transacted at any special meeting of the stockholders, except upon the unanimous consent of all the stockholders entitled to notice thereof.
Section 3. Closing of Transfer Books or fixing of Record Date. For the purpose of determining stockholders entitled to receive notice of or to vote at any meeting of stockholders or
any adjournment thereof, or stockholders entitled to receive
payment of any dividend; or in order to make a determination of
stockholders for any other proper purpose, the Board of Directors of the
Corporation may provide that the stock transfer books shall be
closed for a stated period not to exceed, in any case, fifty (50) days.
If the stock transfer books shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for a least ten
(10) days immediately preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of stockholders,
such date in any case to be not more than fifty (50) days, and in
case of a meeting of stockholders, not less than ten (10) days
prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. If the stock transfer
books are not closed, and no record date is fixed for the
determination of stockholders entitled to receive notice of or to
vote at a meeting of stockholders, or stockholders entitled 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 as to stockholders. When a
determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
Section 4. Voting. At all meetings of the stockholders of record having the right to vote, subject to the provisions of Section 3, each stockholder of the Corporation is entitled to one (1) vote for each share of stock having voting power standing in the name of such stockholder on the books of the Corporation. Votes may be cast in person or by written authorized proxy.
Section 5. Proxy. Each proxy must be executed in writing by the stockholder of the Corporation or his duly authorized attorney. No proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless it shall have specified therein its duration.
Every proxy shall be revocable at the discretion of the person executing it or of his personalrepresentatives or assigns.
Section 6. Voting of Shares by certain Holders. Shares standing in the name of anothercorporation may be voted by such officer, agent or proxy as the by-laws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be noted 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.
Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate Order of the Court by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledge, and thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock 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 at any given time.
Section 7. Election of Directors. At each election for Directors every stockholder entitled to vote at such election shall have the right to vote, in person or by proxy, 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. There shall be no cumulative voting.
Section 8. Quorum. A majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the stockholders.
If a quorum shall not be present or represented, the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting, from time to time, until a quorum shall be present or represented. At such rescheduled meeting at which a quorum shall be present or represented any business or any specified item of business may be transacted which might have been transacted at the meeting as originally notified.
The number of votes or consents of the holders of stock having voting power which shall be necessary for the transaction of any business or any specified item of business at any meeting of stockholders, or the giving of any consent, shall be a majority of the outstanding shares of the Corporation entitled to vote.
Section 9. Informal Action by Stockholders. Any action required or permitted to be taken by the stockholders of the Corporation may be effected by any consent in writing by such holders, signed by holders of not less than that number of shares of Common Stock required to approve such action.
ARTICLE III
DIRECTORS
Section 1. Number. The affairs and business of this Corporation shall be managed by a Board of Directors. The present Board of Directors shall consist of one (1) member. Thereafter the number of Directors may be increased to not more than nine (9) by resolution of the Board of Directors. Directors need not be residents of the State of Nevada and need not be stockholders of the Corporation.
Section 2. Election. The Directors shall be elected at each annual meeting of the stockholders, but if any such annual meeting is not held, or the Directors are not elected thereat, the Directors may be elected at any special meeting of the stockholders held for that purpose.
Section 3. Term of Office. The term of office of each of the Directors shall be one (1) year, which shall continue until his successor has been elected and qualified.
Section 4. Duties. The Board of Directors shall have the control and general management of the affairs and business of the Corporation. Such Directors shall in all cases act as a Board, regularly convened, and may adopt such rules and regulations for the conduct of meetings and the management of the Corporation, as may be deemed proper, so long as it is not inconsistent with these By-Laws and the laws of the State of Nevada.
Section 5. Directors' Meetings. Regular meetings of the Board of Directors shall be held immediately following the annual meeting of the stockholders, and at such other time and places as the Board of Directors may determine. Special meetings of the Board of Directors may be called by the President or the Secretary upon the written request of one (1) Director.
Section 6. Notice of Meetings. Notice of meetings other than the
regular annual meeting shall be given by service upon each Director in
person, or by mailing to him at his last known address, at least three
(3) days before the date therein designated for such meeting, of a
written notice thereof specifying the time and place of such meeting,
and the business to be brought before the meeting, and no business other
than that specified in such notice shall be transacted at any special
meeting. At any Directors' meeting at which a quorum of the Board of
Directors shall be present(although held without notice), any and all
business may be transacted which might have been transacted if the meeting
had been duly called if a quorum of the Directors waive or are willing to
waive the notice requirements of such meeting.
Any Directors may waive notice of any meeting under the provisions of Article XII The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully convened or called.
Section 7. Voting. At all meetings of the Board of Directors, each Director is to have one (1) vote. The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 8. Newly Created Directorships and Vacancies. Newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
Section 9. Removal of Directors. Any Director may be removed from office, with or without cause, only by the affirmative vote of the holders of 51 % of the voting power of all shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.
Section 10. Quorum. The number of Directors who shall be present at any meeting of the Board of Directors in order to constitute a quorum for the transaction of any business or any specified item of business shall be a majority.
The number of votes of Directors that shall be necessary for the transaction of any business of any specified item of business at any meeting of the Board of Directors shall be a majority.
If a quorum shall not be present at any meeting of the Board of Directors, those present may adjourn the meeting, from time to time, until a quorum shall be present.
Section 11. Compensation. By resolution of the Board of Directors, the Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors or each may be paid a stated salary as Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefore.
Section 12. Presumption of Assent. 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 shall be presumed to have assented to the action taken unless his dissent is entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered or certified mail t o the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be:
President, Vice-President, Secretary, and Treasurer, and such
assistant Secretaries as the President shall determine. Any
officer may hold more than one (1) office.
Section 2. Election. All officers of the Corporation shall be elected annually by the Board of Directors at its meeting held immediately following the meeting of stockholders, and shall hold office for the term of one (1) year or until their successors are duly elected. Officers need not be members of the Board of Directors.
The Board may appoint such other officers, agents and employees as it shall deem necessary who shall have such authority and shall perform such duties as, from time to time, shall be prescribed by the Board.
Section 3. Duties of Officers. The duties and powers of the officers of the Corporation shall be as follows:
PRESIDENT
The President shall preside at all meetings of the stockholders. He shall present at each annual meeting of the stockholders and Directors a report of the condition of the business of the
Corporation. He shall cause to be called regular and special meetings of these stockholders and Directors in accordance with these By-Laws. He shall appoint and remove, employ and discharge, and fix the compensation of all agents, employees, and clerks of the Corporation other than the duly appointed officers, subject to the approval of the Board of Directors. He shall sign and make all contracts and agreements in the name of the Corporation, subject to the approval of the Board of Directors. He shall see that the books, reports, statements and certificates required by the statutes are properly kept, made and filed according to law. He shall sign all certificates of stock, otes, drafts, or bills of exchange, warrants or other orders for the payment of money duly drawn by the Treasurer; and he shall enforce these By-Laws and perform all the duties incident to the position and office, and which are required by law.
VICE-PRESIDENT
During the absence or inability of the President to render and perform his duties or exercise his powers, as set forth in these By-Laws or in the statutes under which the Corporation is organized, the same shall be performed and exercised by the Vice- President; and when so acting, he shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon such President.
SECRETARY
The Secretary shall keep the minutes of the meetings of the Board of Directors and of the stockholders in appropriate books. He shall give and serve all notices of the Corporation. He shall be custodian of the records and of the corporate seal and affix the latter when required. He shall keep the stock and transfer books in the manner prescribed by law, so as to show at all times the amount of capital stock issued and outstanding; the manner and the time compensation for the same was paid; the names of the owners thereof, alphabetically arranged; the number of shares owned by each; the time at which each person became such owner; and the amount paid thereon; and keep such stock and transfer books open daily during the business hours of the office of the Corporation, subject to the inspection of any stockholder of the Corporation, and permit such stockholder to make extracts from said books to the extent prescribed by law. He shall sign all certificates of stock. He shall present to the Board of Directors at their meetings all communications addressed to him officially by the President or any officer or stockholder of the Corporation; and he shall attend to all correspondence and perform all the duties incident to the office of Secretary.
TREASURER
The Treasurer shall have the care and custody of and be responsible for all the funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such bank or banks, trust company or trust companies or safe deposit vaults as the Board of Directors may designate. He shall exhibit at all reasonable times his books and accounts to any Director or stockholder of the Corporation upon application at the office of the Corporation during business hours. He shall render a statement of the conditions of the finances of the Corporation at each regular meeting of the Board of Directors, and at such other times as shall be required of him, and a full financial report at the annual meeting of the stockholders. He shall keep, at the office of the Corporation, correct books of account of all its business and transactions and such other books of
account as the Board of Directors may require. He shall do and perform all duties appertaining to th office of Treasurer. The Treasurer shall, if required by the Board of Directors, give to the Corporation such security for the faithful discharge of his duties as the Board may direct.
Section 4. Bond. The Treasurer shall, if required by the Board of Directors, give to the Corporation such security for the faithful discharge of his duties as the Board may direct.
Section 5. Vacancies, How Filled. All vacancies in any office shall be filled by the Board of Directors without undue delay, either at its regular meeting or at a meeting specifically called for that purpose. In the case of the absence of any officer of the Corporation or for any reason that the Board of Directors may deem sufficient, the Board may, except as specifically otherwise provided in these By-Laws, delegate the power or duties of such officers to any other officer or Director for the time being; provided, a majority of the entire Board concur therein.
Section 6. Compensation of Officers. The officers shall receive such salary or compensation as may be determined by the Board of Directors.
Section 7. Removal of Officers. The Board of Directors may remove any officer, by a majority vote, at any time with or without cause.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Description of Stock Certificates. The certificates of stock shall be numbered and registered in the order in which they are issued. They shall be bound in a book and shall be issued in consecutive order therefrom, and in the margin thereof shall be entered the name of the person owning the shares therein represented, with the number of shares and the date thereof. Such certificates shall exhibit the holder's name and number of shares. They shall be signed by the President or Vice President, and countersigned by the Secretary or Treasurer and sealed with the Seal of the Corporation.
Section 2. Transfer of Stock. The stock of the Corporation shall be assignable and transferable on the books of the Corporation only by the person in whose name it appears on said books, his legal representatives or by his duly authorized agent. In case of transfer by attorney, the power of attorney, duly executed and acknowledged, shall be deposited with the Secretary. In all cases of transfer the former certificate must be surrendered up and canceled before a new certificate may be issued. No transfer shall be made upon the books of the Corporation within ten (10) days next preceding the annual meeting of the stockholders.
Section 3. Lost Certificates. If a stockholder shall claim to have lost or destroyed a certificate or certificates of stock issued by the Corporation, the Board of Directors may, at its discretion, direct a new certificate or certificates to be issued, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed, and upon the deposit of a bond or other indemnity in such form and with such sureties if any that the Board may require.
ARTICLE VI
SEAL
Section 1. Seal. The seal of the Corporation shall be as follows:
NO SEAL IN USE AT THIS TIME
ARTICLE VII
DIVIDENDS
Section 1. When Declared. The Board of Directors shall by vote declare dividends from the surplus profits of the Corporation whenever, in their opinion, the condition of the Corporation's affairs will render it expedient for such dividends to be declared.
Section 2. Reserve. The Board of Directors may set aside, out of the net profits of the Corporation available for dividends, such sum or sums (before payment of any dividends) as the Board, in their absolute discretion, think proper as a reserve fund, to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and they may abolish or modify any such reserve in the manner in which it was created.
ARTICLE VIII
INDEMNIFICATION
Section 1. Any person made a party to or involved in any civil, criminal or administrative action, suit or proceeding by reason of the fact that he or his testator or intestate is or was a Director, officer, or employee of the Corporation, or of any corporation which he, the testator, or intestate served as such at the request of the Corporation, shall be indemnified by the Corporation against expenses reasonably incurred by him or imposed on him in connection with or resulting from the defense of such action, suit, or proceeding and in connection with or resulting from any appeal thereon, except with respect to matters as to which it is adjudged in such action, suit or proceeding that such officer, Director, or employee was liable to the Corporation, or to such other corporation, for negligence or misconduct in the performance of his duty. As used herein the term "expense" shall include all obligations incurred by such person for the payment of money, including without limitation attorney's fees, judgments, awards, fines, penalties, and amounts paid in satisfaction of judgment or in settlement of any such action, suit, or proceedings, except amounts paid to the Corporation or such other corporation by him.
A judgment of conviction whether based on plea of guilty or nolo contendere or its equivalent, or after trial, shall not of itself be deemed an adjudication that such Director, officer or employee is liable to the Corporation, or such other corporation, for negligence or misconduct in the performance of his duties. Determination of the rights of such indemnification and the amount thereof may be made at the option of the person to be indemnified pursuant to procedure set forth, from time to time,in the By-Laws, or by any of the following procedures: (a) order of the Court or administrative body or agency having jurisdiction of the action, suit, or proceeding; (b) resolution adopted by a majority of the quorum of the Board of Directors of the Corporation without counting in such majority any Directors who have incurred expenses in connection with such action, suit or
proceeding; (c) if there is no quorum of Directors who have not incurred expense in connection with such action, suit, or proceeding, then by resolution adopted by a majority of the committee of stockholders and Directors who have not incurred such expenses appointed by the Board of Directors; (d) resolution adopted by a majority of the quorum of the Directors entitled to vote at any meeting; or (e) Order of any Court having jurisdiction over the Corporation. Any such determination that a payment by way of indemnity should be made will be binding upon the Corporation. Such right of indemnification shall not be exclusive of any other right which such Directors, officers, and employees of the Corporation and the other persons above mentioned may have or hereafter acquire, and without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any By-Law, Agreement, vote of stockholders, provision of law, or otherwise in addition to their rights under this Article. The provision of this Article shall apply to any member of any committee appointed by the Board of Directors as fully as though each person and been a Director, officer or employee of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. How Amended. These By-Laws may be altered, amended, repealed or added to by the vote of the Board of Directors of the Corporation at any regular meeting of said Board, or at a special meeting of Directors called for that purpose provided a quorum of the Directors asprovided by law and by the Articles of Incorporation, are present at such regular meeting or special meeting. These By-Laws and any amendments thereto and new By-Laws added by the Directors may be amended, altered or replaced by the stockholders at any annual or special meeting of the stockholders.
ARTICLE X
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year shall end on the 31st day of DECEMBER.
ARTICLE X1
WAIVER OF NOTICE
Section 1. Whenever any notice is required to be given to any shareholders or directors of the Corporation under the provisions of these By-Laws, under the Articles of Incorporation or under the provisions of the Nevada Business Corporation Act, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
ADOPTED this 12th day of June, 2000. EXCEL PUBLISHING, INC., a Nevada corporation,
/s/ Anthony B. Ramon, President CERTIFICATE OF SECRETARY: I the undersigned, do hereby certify: |
1. That I am the duly elected and acting Secretary\Treasurer of EXCEL Publishing, Inc., A Nevada Corporation: and
2. That the foregoing By-Laws, comprising eight (8) pages, constitute the By-Laws of said Corporation as duly adopted at a meeting of the Board of Directors thereof duly held on the 12th day of June, 2000.
/s/ Anthony B. Ramon, SecretaryTreasurer |
LICENSE AGREEMENT
This License Agreement is made and entered into this 11th day of December, 2000 (the "Effective Date") 2000, by and between Paul Eldridge dba.Eldridge Investment Management ("EIM") of Berkeley, California, ("Licensor") and Anthony Ramon and Excel Publishing, Inc., a Nevada corporation, with its principal place of business at 2250 West Center Street, Springville, Utah ("Licensee").
WHEREAS, the Licensor has expended time, effort and money to develop a computer-based investment strategy called the EIM Mutual Fund Program, that is recognized as providing advantageous investment signals.
WHEREAS, the Licensee desires to distribute the strategy to investors by way of an investment newsletter called the Sector Fund Wealth Builder.
NOW, THEREFORE, the parties hereto agree as follows:
1. EIM Mutual Fund Program Signals. Licensor agrees to provide Licensee with timely data and information produced from the EIM Mutual Fund Program. The information will be provided to Licensee as soon as is reasonably possible after the program generates new market signals, which, in most occasions, will not exceed 48 hours.
2. Grant of Rights. The License granted by this agreement authorizes Licensee to utilize the EIM Mutual Fund Program signals as part of a newsletter-based service. Licensee agrees that all EIM Mutual Fund Program information and data it publishes and all statements and communications it makes regarding EIM Mutual Fund Program will be factual and accurate. Licensor grants Licensee the exclusive right to utilize the EIM Mutual Fund Program in this manner for one year from the Effective Date. Thereafter, Licensee will have the exclusive right to utilize the EIM Mutual Fund Program for newsletter-based services, provided it pays Licensor not less than $500 during each month of the second year, not less than $1,000 during each month of the third year, and not less than $1,500 during each month thereafter. In the event payments fall below those specified during any month, Licensee's exclusive right terminates, although their right to continue utilizing the EIM Mutual Fund Program will continue.
3. License Fee. Licensee will pay Licensor 10 percent of all new and renewing subscription revenue collected (net of refunds) from any newsletter-based service utilizing the EIM Mutual Fund Program. Licensee will pay Licensor on the 15th day of each month following the receipt of subscription revenue and provide Licensee with an accurate report of all new and renewing subscription revenue.
4. Books and records. Licensor may examine at any time Licensee's books and records that reasonably relate to the bookkeeping and accounting information of subscription revenues generated from newsletter-based services utilizing the EIM Mutual Fund Program.
5. Confidentiality. Licensor and Licensee agree that any information identified by either as confidential or proprietary information will be used solely for the purposes contemplated and will not be disclosed to any third party.
6. Indemnification. Licensee will indemnify, defend and hold harmless Licensor from any and all claims or liabilities arising from Licensee's use or publication of data or information provided by Licensor.
7. Termination and Default. This agreement may be terminated by
either party on or after January 1, 2004 upon three months' prior
written notice to the other party. This agreement may also be
terminated by the non-defaulting party if any of the following events
of default occur: (1) If a party materially fails to perform or comply
with the terms of this agreement; (2) If either party fails to
strictly comply with the provisions of 5 (Confidentiality) or makes
an assignment in violation of 8 (non-assignability); (3) If a party
becomes insolvent or admits in writing its inability to pay its debts
as they mature, or makes an assignment for the benefit of creditors;
(4) If a petition under any foreign state or United States Bankruptcy
Act, Receiverships Statute, or the like, as they now exist or as they
may be amended, is filed by a party; or (5) If such petition is filed
by any third party. or an application for a receiver is made by anyone
and such petition or application is not resolved favorably within 90
days.
8. Non-assignability. This agreement and the rights provided herein may not be assigned by Licensee without the prior written consent of Licensor. Any sale or transfer of more than fifty-percent of the outstanding stock of Excel Publishing, Inc. will constitute an assignment of this agreement.
9. Arbitration. Should any dispute arise regarding the terms and conditions of this agreement, the parties agree to arbitrate that dispute before an arbitrator appointed by the American Arbitration Association, located in Salt Lake City, Utah. The arbitration will be performed pursuant to the rules of the American Arbitration Association and the decision rendered thereunder shall be final and conclusive upon the parties. The parties agree to share the expenses of arbitration, including travel and lodging expenses of Licensor reasonably incurred in participating in and attending the arbitration proceedings. The laws of the State of Utah will govern the arbitration proceedings.
IN WITNESS WHEREOF, the parties have caused their duly-authorized representative to execute this agreement as of the date set forth above.
LICENSOR LICENSEE
/s/Paul Eldrige /s/Anthony Ramon
Paul Eldridge dba, Eldridge Investment Anthony Ramon, individually
Management
EXCEL PUBLISHING, INC.
By:/s/Anthony Ramon
Anthony Ramon, President
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December 12, 2000
The Board of Directors
Excel Publishing, Inc.
2250 West Center Street
Springville, UT 84663
Gentlemen:
We have been retained by Excel Publishing, Inc. (the "Company"), in connection with the Registration Statement on Form SB-2 filed by the Company with the Securities and Exchange Commission (the "Registration Statement") relating to 1,000,000 shares of common stock, par value $0.001 per share. You have requested that we render an opinion as to whether the common stock as proposed to be issued on the terms set forth in the Registration Statement will be validly issued, fully paid and non- assessable.
In connection with this engagement, we have examined the following:
1. the articles of incorporation of the Company;
2. the Registration Statement;
3. the bylaws of the Company; and
4. unanimous consents of the board of directors.
We have examined such other corporate records and documents and have made such other examinations as we deemed relevant.
Based upon the above examination, we are of the opinion that the shares of common stock proposed to be issued pursuant to the Registration Statement, are validly authorized and, when issued in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid, and non- assessable.
We hereby consent to being named in the Prospectus included in the Registration Statement as having rendered the foregoing opinion and as having represented the Company in connection with the Registration Statement.
Sincerely yours,
/s/ Lehman Walstrand & Associates LEHMAN WALSTRAND & ASSOCIATES |
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus
constituting part of this Registration Statement on Form
SB-2 for Excel Publishing, Inc., of our report dated
September 8, 2000, relating to the August 31, 2000
financial statements of Excel Publishing, Inc., which
appears in such Prospectus. We also consent to the
reference to us under the heading "Experts".
/s/ Pritchett, Siler & Hardy, P.C. PRITCHETT, SILER & HARDY, P.C. Salt Lake City, Utah December 5, 2000 |
6
PROCEEDS ESCROW AGREEMENT
PROCEEDS ESCROW AGREEMENT ("Agreement") dated as of ___________, 2000, by and between Excel Publishing, Inc., a Nevada corporation (the "Company") and BRIGHTON BANK of Salt Lake City, Utah (the "Escrow Agent")
W I T N E S S E T H
WHEREAS, the Company intends to engage in a private offering of certain of its securities (the "Offering"), which Offering contemplates minimum aggregate offering proceeds of $100,000 and maximum aggregate offering proceeds of $125,000;
WHEREAS, there will be deposited into an escrow account with Escrow Agent from time to time funds from prospective investors who wish to subscribe for securities offered in connection with the Offering ("Subscribers"), which funds will be held in escrow and distributed in accordance with the terms hereof; and
WHEREAS, the Escrow Agent is willing to act as an escrow agent in respect of the Escrow Funds (as hereinafter defined) upon the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable considerations, the receipt and adequacy of which are hereby acknowledged by each of the parties hereto, the parties hereto hereby agree as follows:
1. Appointment of Escrow Agent. The Company hereby appoints the Escrow Agent as escrow agent in accordance with the terms and conditions set forth herein, and the Escrow Agent hereby accepts such appointment.
2. Delivery of Escrow Funds.
(a) The Company shall deliver to the Escrow Agent checks or wire transfers made payable to the order of "Brighton Bank, Excel Publishing, Inc., Escrow Account" together with the Subscribers mailing address. The funds delivered to the Escrow Agent shall be deposited by the Escrow Agent into a non-interest- bearing account designated "Brighton Bank, Excel Publishing, Inc., Escrow Account" (the "Escrow Account") and shall be held and distributed by the Escrow Agent in accordance with the terms hereof. The collected funds deposited into the Escrow Account are referred to herein as the "Escrow Funds." The Escrow Agent shall acknowledge receipt of all Escrow Funds by notifying the Company of deposits into the Escrow Account in the Escrow Agent's customary manner no later than the next business day following the business day on which the Escrow Funds are deposited into the Escrow Account.
(b) The Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole duty of the Escrow Agent shall be to return the check to the Company.
3. Investment of the Escrow Funds. The Escrow Account shall not bear interest and no other investment of the Escrow Funds shall be made while held by the Escrow Agent.
4. Release of Escrow Funds. The Escrow Funds shall be paid by the Escrow Agent in accordance with the following:
(a) Provided that the Escrow Funds total at least $100,000 at or before 4:00 p.m., Salt Lake City time, on _________, 2000, (or ___________, 2000 if extended by the Company by written notice to the Escrow Agent given on or before _________, 2000), or on any date prior thereto, the Escrow Funds (or any portion thereof) shall be paid to the Company or as otherwise instructed by the Company, within one (1) business day after the Escrow Agent receives a written release notice in substantially the form of Exhibit A attached hereto (a "Release Notice") signed by an authorized person of the Company and thereafter, the Escrow Account will remain open for the purpose of depositing therein the subscription price for additional securities sold by the Company in the Offering, which additional Escrow Funds shall be paid to the Company or as otherwise instructed by the Company upon receipt by the Escrow Agent of a Release Notice as described above; and
(b) if the Escrow Agent has not received a Release Notice from the Company at or before 4:00 p.m. Salt Lake City time, on __________, 2000, (or ____________, 2000 if extended by the Company by written notice to the Escrow Agent given on or before August 22, 2000), and the Escrow Funds do not total at least $100,000 at such time and date, then the Escrow Funds shall be returned to Subscribers.
In the event that at any time the Escrow Agent shall receive from the Company written instructions signed by an individual who is identified on Exhibit B attached hereon as a person authorized to act on behalf of the Company, requesting the Escrow Agent to refund to a Subscriber the amount of a collected check or other funds received by the Escrow Agent, the Escrow Agent shall make such refund to the Subscriber within one (1) business day after receiving such instructions.
5. Limitation of Responsibility and Liability of the Escrow Agent. The Escrow Agent:
(a) shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence and willful misconduct;
(b) shall be authorized to rely upon all written instructions and/or communications of the non-bank Party which appear to be valid on their face;
(c) shall have no implied obligations or responsibilities hereunder, nor shall it have any obligation or responsibility to collect funds or seek the deposit of money or property;
(d) may consult with legal counsel of its choice with regard to any legal question arising in connection with this duties or responsibilities hereunder, and shall have no
liability or responsibility by reason of any action it may take or fail to take in accordance with the opinions of such counsel;
(e) acts hereunder as a depository only, and is not responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness, or validity of any instrument deposited with it, or with respect to the form or execution of the same, or the identity, authority, or rights of any person executing or depositing the same; and
(f) shall be entitled to comply with any final order, judgment or decree of a court of competent jurisdiction, and/or with the consistent written instructions from the non-bank Party.
6. Costs and Expenses. The fee of the Escrow Agent is $_____, receipt of which is hereby acknowledged. In addition, if the Escrow Funds are returned to subscribers under 4(b), above, the Escrow Agent shall receive a fee of $_______ per check for such service. The fee agreed on for services rendered hereunder is intended as full compensation for the Escrow Agent's services as contemplated by this Agreement; however, in the event that the conditions of this Agreement are not fulfilled, the Escrow Agent renders any material service not contemplated by this Agreement, there is any assignment of interest in the subject matter of this Agreement, there is any material modification hereof, any material controversy arises hereunder, or the Escrow Agent is made a party to or justifiably intervenes in any litigation pertaining to this Agreement or the subject matter hereof, the Escrow Agent shall be reasonably compensated for such extraordinary expenses, including reasonable attorneys' fees, occasioned by any delay, controversy, litigation, or event and the same may be recoverable only from the Company.
7. Notices. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; when received, if deposited in the mail, postage prepaid, addressed as provided below; when transmission is verified, if telecopied; and on the next business day, if timely delivered to an air courier guaranteeing overnight
delivery;
To the Company: Excel Publishing, Inc.
2250 West Center Street
Springville, UT 84663
Attn: Anthony Ramon, President
To Escrow Agent: BRIGHTON BANK
311 South State Street
Salt Lake City, Utah 84111
Attn:_______________________
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Any party may change its address by providing written notice of such change to the other parties hereto.
8. Resignation by Escrow Agent. Upon thirty (30) calendar days' prior written notice to the non-bank Party delivered or sent as required above, the Escrow Agent shall have the
right to resign as escrow agent hereunder and to thereby terminate its duties and responsibilities hereunder, and shall thereupon be released from these instructions. Upon resignation by the Escrow Agent, the Escrow Agent shall provide the non-bank Party with sufficient information concerning the status of the Escrow Fund to enable the non-bank parties to provide the same to a successor escrow agent.
9. Termination of Escrow Agreement. The Escrow Agent's responsibilities thereunder shall terminate at such time as the Escrow Fund shall have been fully disbursed pursuant to the terms hereof, or upon earlier termination of this escrow arrangement pursuant to written instructions executed by the non-bank Party. Such written notice of earlier termination shall include instruction to the Escrow Agent for the distribution of the Escrow Fund.
10. Entire Agreement. This Agreement contains the entire understanding by and among the parties hereto; there are no promises, agreements, understandings, representations or warranties, other than as herein set forth. No change or modification of this Agreement shall be valid or effective unless the same is in writing and is signed by all of the parties hereto.
11. Applicable Law, Successors and Assigns. This Agreement shall be governed in all respects by the laws of the state of Utah, and shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, executors, administrators, legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused their respective hands to be set hereto with the intention of being bound effective in all respects as of the date and year first hereinabove written.
EXCEL PUBLISHING, INC.
BRIGHTON BANK
EXHIBIT A
Release Notice
BRIGHTON BANK
311 South State Street
Salt Lake City, Utah 84111
Gentlemen:
The undersigned hereby authorize and instruct BRIGHTON BANK, escrow agent, to release [$______________] of Escrow Funds from the Escrow Account and to deliver such funds as follows:
[Insert Delivery Instructions]
IN WITNESS WHEREOF, this release has been executed on ________________, 2000.
EXCEL PUBLISHING, INC.
EXHIBIT B
Authorized Personnel
The Escrow Agent is authorized to accept instructions and notices signed or believed by the Escrow Agent to be signed by any one of the following each of whom is authorized to act on behalf of the Company:
On Behalf of EXCEL PUBLISHING, INC.
Name Title Signature
Anthony B. Ramon President ______________________________
EXCEL PUBLISHING, INC. - COMMON STOCK
SUBSCRIPTION AGREEMENT
Investment
I desire to purchase shares of Excel Publishing Inc at $0.10 per share for a total of $
Make Checks Payable to: Brighton Bank , Excel Publishing, Inc., Escrow Account
Subscriber Information: Please clearly print name(s) in which Shares are to be acquired. All correspondence will go to the Investor Residence Address
Investor 1 (First, Middle I., Last):
Investor 2 (First, Middle I. Last):
REGISTRATION FOR THE INVESTMENT (HOW THE INVESTMENT SHOULD BE TITLED):
INVESTOR RESIDENCE ADDRESS 1: CHECK ONE OF THE
FOLLOWING:
U.S. Citizen
Investor Residence Address 2:
Resident Alien
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City, State ZIP Code Foreign Resident; Country ________
U.S. Citizen residing outside the U.S.
Enter the taxpayer identification number. For most individual taxpayers, it is their Social Security Number. Note: If the purchase is in more than one name, the number should be that of the first person listed. For IRAs, Keoghs, and qualified plans, enter both the Social Security Number and the Taxpayer Identification Number for the plan.
SOCIAL SECURITY NUMBER TAXPAYER IDENTIFICATION NUMBER (IF
APPLICABLE)
Form of Ownership (Individual, IRA, Trust, UGMA, Pension Plan, etc.)
Subscriber Signature: The undersigned has the authority to enter into this subscription agreement on behalf of the person(s) or entity registered above.
Authorized Signature of Investor 1 ________________________________________ Date:_____________________________________
Company's Acceptance (To be completed only by an authorized representative of the Company.)
The foregoing subscription is accepted this ____________ day of ________________, _____