U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Delaware 5941 04-3625550
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(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
1537 West Orangewood Avenue, Orange, California 92868
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(Address of registrant's principal executive offices) (Zip Code)
(714) 633-1400
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(Registrant's Telephone Number, Including Area Code)
Michael J. Muellerleile
MC Law Group
4100 Newport Place, Suite 830
Newport Beach, California 92660
949.250.8655
Facsimile 949.250.8656
(Name, Address and Telephone Number of Agent for Service)
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Approximate date of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
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 this Form is a post-effective amendment filed pursuant to Rule 462(d) 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. [ ]
The offering price per share for the selling security holders was estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of Regulation C.
The 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, as amended, or until this Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
Preliminary Prospectus Golf Two, Inc., a Delaware corporation
2,418,336 Shares of Common Stock
This prospectus relates to 2,418,336 shares of common stock of Golf Two, Inc., which are issued and outstanding shares of our common stock, acquired by the selling security holders in private placement transactions which were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933. Our common stock is presently not traded on any market or securities exchange, and we have not applied for listing or quotation on any public market.
See "Risk Factors" on pages 5 to 8 for factors to be considered before investing in the shares of our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of the prospectus. Any representation to the contrary is a criminal offense.
The information in this prospectus is not complete and may be changed. The selling security holders 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 it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
The date of this prospectus is September 16, 2002 Subject to completion.
TABLE OF CONTENTS
Prospectus Summary ............................................................4 Risk Factors...................................................................5 Forward Looking Statements.....................................................7 Use of Proceeds................................................................7 Determination of Offering Price................................................8 Dilution.......................................................................8 Selling Security Holders.......................................................8 Plan of Distribution...........................................................9 Legal Proceedings.............................................................10 Directors, Executive Officers, Promoters and Control Persons..................10 Security Ownership of Certain Beneficial Owners and Management................11 Description of Our Securities.................................................11 Interest of Named Experts and Counsel.........................................12 Disclosure of Commission Position on Indemnification for Securities Act Liabilities....................................................12 Organization Within Last Five Years...........................................12 Description of Business.......................................................12 Management's Discussion and Analysis of Financial Condition and Results of Operations.....................................................14 Description of Property.......................................................15 Certain Relationships and Related Transactions................................16 Market for Common Equity and Related Stockholder Matters......................16 Executive Compensation........................................................17 Financial Statements..........................................................18 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure......................................................31 Legal Matters.................................................................31 Experts.......................................................................31 Additional Information........................................................31 Indemnification of Directors and Officers.....................................31 Other Expenses of Issuance and Distribution...................................33 Recent Sales of Unregistered Securities.......................................33 Exhibits......................................................................34 Undertakings..................................................................34 Signatures....................................................................35 Outside Back Cover Page Dealer Prospectus Delivery Obligation Until _______, all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligations to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions. |
Prospectus Summary
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Our business: We incorporated in Delaware on March 15,
2001. Our principal business address is 1537
West Orangewood Avenue, Orange, California
92868. Our telephone number is 714.633.1400.
We are a developmental stage company and we
plan to initiate, establish and operate
retail golf stores which will feature indoor
golf instruction and custom golf clubs. Each
retail location will offer custom-fitted golf
clubs, individualized to our customers' needs
and marketed under the Golf Two brand name.
Golf instruction and training will be
conducted on-site by in-store staff under the
direction of a professional at each store.
We anticipate that our retail stores will be
approximately 5,000 square feet and will
include two virtual reality golf simulators,
two computer swing analysis systems and a
club fitting analysis system. Private label
and brand name golf merchandise and related
products will also be available for sale at
each retail store.
We seek to promote the enjoyment of the game
of golf by helping golfing enthusiasts of all
levels play better. Accordingly, we intend to
offer indoor golf training available and
individualized, quality golf clubs and
related products to our clientele.
Number of shares being offered: The selling security holders want to sell
2,418,336 shares of our common stock. The
offered shares were acquired by the selling
security holders in private placement
transactions, which were exempt from the
registration and prospectus delivery
requirements of the Securities Act of 1933.
The selling security holders will sell their
shares at $0.10 per share until our shares
are quoted on the OTC Bulletin Board and
thereafter at prevailing market prices or
privately negotiated prices.
Number of shares outstanding: 7,418,336 shares of our common stock are
issued and outstanding. We have no other
securities issued.
Estimated use of proceeds: We will not receive any of the proceeds from
the sale of those shares being offered.
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RISK FACTORS
In addition to the other information in this prospectus, the following risk factors should be considered carefully in evaluating our business before purchasing any of our shares of common stock. A purchase of our common stock is speculative and involves a significant and substantial number of risks. Any person who is not in a position to lose the entire amount of his investment should forego purchasing our common stock.
Risks related to our business:
We are a new company with losses since our formation and we may not be able to achieve profitable operations or raise sufficient financing to continue with our business plans.
We were incorporated on March 15, 2001. Our lack of operating history makes an evaluation of our business and prospects very difficult. Our prospects must be considered speculative considering the risks, expenses and difficulties frequently encountered in the golf industry. We will encounter difficulties as an early stage company with little operating capital in the rapidly evolving and highly competitive golf industry. To implement our business plan and open our planned locations, we will be required to obtain additional financing. At this time, we have no firm commitments for such financing. If we are unable to raise additional financing, our plans to open a retail location will be harmed. If our planned retail facilities are not successful and if we continue to experience losses, our ability to continue with our business plan will be harmed. As a result, our shareholders could lose their entire investment.
We do not have commitments for additional financing and our inability to obtain acceptable financing will harm our development and growth strategy as we will be unable to finance our development and any future expansion.
We will require substantial amounts of working capital to continue executing our business plan, including, but not limited to, funds to secure our initial location and funds for equipment and inventory. We cannot guaranty that additional financing will be available. In fact, we have not yet identified the source of any such funding. We expect to require substantial capital to fund our development and operating expenses. We anticipate that our available funds will be sufficient to meet our anticipated needs for working capital and capital expenditures through the next 12 months. Our anticipation of the time through which our financial resources will be adequate to support our operations is a forward-looking statement that involves risks and uncertainties, and actual results could vary as a result of a number of factors, including those described elsewhere in this risk factor section. We cannot be certain that additional financing will be available to us on favorable terms or at all. If we are unable to obtain sufficient additional capital when needed, we could be forced to alter our business strategy, or delay or abandon some of our development plans. Any of these events would impair our ability to raise revenue and would likely interfere with our ability to expand our planned operations.
We face significant competition from traditional golf retail locations. Our operations and our ability to generate revenues will be harmed if we are unable to establish a positive reputation as a provider of golf products.
Our success will depend on our ability to compete in the highly competitive retail golf industry. To succeed, we must establish our reputation for providing quality golf products and instruction. We must establish our initial presence in Orange County, California. We will compete with traditional golf retail locations that are either independent shops or part of large regional or national retail chains such as Roger Dunn or Nevada Bob's. We may not be able to compete effectively with those traditional golf retail locations. If we do not compete effectively, our ability to earn revenue will be affected and we may not be able to continue our planned operations.
We have no existing brand identity and customer loyalty; if we fail to develop and maintain our proposed brand, our business could suffer.
Since we have not yet launched the Golf Two brand, we currently do not have strong brand identity or brand loyalty. We believe that establishing and maintaining brand identity and brand loyalty is critical to attracting consumers. In order to attract and retain consumers and vendors and respond to competitive pressures, we may need to spend substantial funds to create and maintain brand loyalty among these groups. If our branding efforts are not successful, our ability to generate significant revenues will be harmed.
Our officers and directors are engaged in other activities which could divert their time away from our activities and could conflict with our business interests which could harm our ability to continue proceeding with our plan to open retail locations.
Our officers and directors engage in other activities. Those activities may divert our officers and directors' time away from our business activities. If our officers and directors are not able to devote sufficient time to our business activities, our ability to operate at a profit could be harmed. Our officers and directors may have conflicts of interests in allocating time, services, and functions between the other business ventures in which those persons may be or become involved. Neither of our officers devotes their entire business hours to our operations. However, we believe that as soon as we secure the location for our first store in Orange County, California, our officers will increase the time they dedicate to our business.
Risks related to owning our common stock:
Our officers, directors and principal security holders own approximately 70.10% of our outstanding shares of common stock, allowing these shareholders control matters requiring approval of our shareholders.
As a result of such ownership by our officers, directors and principal security holders, investors will have no control over matters requiring approval by our security holders, including the election of directors. Our officers and directors can control matters requiring approval by our security holders, including the election of directors. Moreover, if our officers and directors decide to sell a significant number of their shares, investors will likely lose confidence in our ability to earn revenues and will see such a sale as a sign that our business is failing. Each of these factors by independently or collectively, will likely harm the market price of our stock. Moreover, such concentrated control may also make it difficult for our shareholders to receive a premium for their shares of our common stock in the event we merge with a third party or enter into different transactions which require shareholder approval.
We are registering 200,000 shares of common stock owned by our officers and directors. Those officers and directors may sell those shares as soon as possible, which could decrease the price of our common stock and reduce their desire to see us succeed.
In the event that this individual sells his shares, the price of our common stock could decrease significantly. Also, a conflict of interest will occur between his duties to us and his personal interest in selling his shares. We cannot assure you that this individual will not sell those shares as soon as they are registered.
Because we will be subject to the "penny stock" rules, the level of trading activity in our stock may be reduced, which may make it difficult for investors in our common stock to sell their shares.
Broker-dealer practices in connection with transactions in "penny stocks" are regulated by certain penny stock rules adopted by the Securities and Exchange Commission. Penny stocks, like shares of our common stock, generally are equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on NASDAQ. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document that provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction, and, if the broker-dealer is the sole market maker, the broker-dealer must disclose this fact and the broker-dealer's presumed control over the market, and monthly account statements showing the market value of each penny stock held in the customer's account. In addition, broker-dealers who sell these securities to persons other than established customers and "accredited investors" must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser's written agreement to the transaction. Consequently, these requirements may have the effect of reducing the level of trading activity, if any, in the secondary market for a security subject to the penny stock rules, and investors in our common stock may find it difficult to sell their shares.
We lack a public market for shares of our common stock, which may make it difficult for investors to sell their shares.
There is no public market for shares of our common stock. An active public market may not develop or be sustained. Therefore, investors may not be able to find purchasers for their shares of our common stock. Should there develop a significant market for our shares, the market price for those shares may be significantly affected by such factors as our financial results and introduction of new products and services. Factors such as announcements of new or enhanced products by us or our competitors and quarter-to-quarter variations in our results of operations, as well as market conditions in our sector may have a significant impact on the market price of our shares. Moreover, the stock market has experienced extreme volatility that has particularly affected the market prices of stock of many companies and that often has been unrelated or disproportionate to the operating performance of those companies.
Because we lack a public market for shares of our common stock, the selling security holders will arbitrarily determine the offering price of the shares. Therefore, investors may lose all or part of their investment if the price of their shares is too high.
Our common stock is not publicly traded and we do not participate in an electronic quotation medium for securities. We cannot guaranty that an active public market for our stock will develop or be sustained. Therefore, the selling security holders may arbitrarily determine the offering price of shares of our common stock. Accordingly, purchasers may lose all or part of their investments if the price of their shares is too high. A purchase of our stock in this offering would be unsuitable for a person who cannot afford to lose his entire investment.
Information in this prospectus contains "forward looking statements" which can be identified by the use of forward-looking words such as "believes", "estimates", "could", "possibly", "probably", "anticipates", "estimates", "projects", "expects", "may", "will", or "should" or other variations or similar words. No assurances can be given that the future results anticipated by the forward-looking statements will be achieved. The following matters constitute cautionary statements identifying important factors with respect to those forward-looking statements, including certain risks and uncertainties that could cause actual results to vary materially from the future results anticipated by those forward-looking statements. Among the key factors that have a direct bearing on our results of operations are the effects of various governmental regulations, the fluctuation of our direct costs and the costs and effectiveness of our operating strategy. Other factors could also cause actual results to vary materially from the future results anticipated by those forward-looking statements.
We will not receive any proceeds from the sale of shares of our common stock being offered by the selling security holders.
The selling security holders will sell their shares at $0.10 per share until our shares are quoted on the OTC Bulletin Board and thereafter at prevailing market prices or privately negotiated prices.
The shares offered for sale by the selling security holders are already outstanding and, therefore, do not contribute to dilution.
The following table sets forth information concerning the selling security holders including:
1. the number of shares owned by each selling security holder prior to
this offering;
2. the total number of shares that are to be offered for each selling
security holder; and
3. the total number of shares and the percentage of common stock that
will be owned by each selling security holder upon completion of the
offering.
The shares offered for sale constitute all of the shares known to us to be beneficially owned by the selling security holders. None of the selling security holders has held any position or office with us, except as specified in the following table. Other than the relationships described below, none of the selling security holders had or have any material relationship with us. None of the selling security holders is a broker-dealer or an affiliate of a broker-dealer to our knowledge.
Gerda Osward 66,667 66,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Barbara J. Moore 66,667 66,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Robert DeLuna 66,667 66,667 0 ------------------------------------------------------------------------------------------------------------------------------------ William H. Boren 16,667 16,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Becky Moore 66,667 66,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Curtis A. Stickfort 33,333 33,333 0 ------------------------------------------------------------------------------------------------------------------------------------ Michelle Bennett, spouse of David Bennett, our president, treasurer and director 166,667 166,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Kent S. Handleman 66,667 66,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Edward C. Ball 33,333 33,333 0 ------------------------------------------------------------------------------------------------------------------------------------ Phillip M. Handleman 166,667 166,667 0 ------------------------------------------------------------------------------------------------------------------------------------ Albert DiPaolo 33,333 33,333 0 ------------------------------------------------------------------------------------------------------------------------------------ Bradley Podosin 100,000 100,000 0 ------------------------------------------------------------------------------------------------------------------------------------ George Scott Watrous 50,000 50,000 0 ------------------------------------------------------------------------------------------------------------------------------------ James T. Smith 33,333 33,333 0 ------------------------------------------------------------------------------------------------------------------------------------ Harry R. Steele 33,333 33,333 0 ------------------------------------------------------------------------------------------------------------------------------------ Carol Jean Gehlke 325,000 325,000 0 ------------------------------------------------------------------------------------------------------------------------------------ |
The selling security holders will sell their shares at $0.10 per share until our shares are quoted on the OTC Bulletin Board and thereafter at prevailing market prices or privately negotiated prices. The selling security holders may sell our common stock in negotiated transactions or otherwise. The selling security holders may sell our common stock at prices then prevailing or at negotiated prices. The shares will not be sold in an underwritten public offering.
The shares may be sold directly or through brokers or dealers. The methods by which the shares may be sold include:
o purchases by a broker or dealer as principal and resale by such broker
or dealer for its account;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o privately-negotiated transactions.
Brokers and dealers engaged by selling security holders may arrange for other brokers or dealers to participate. Brokers or dealers may receive commissions or discounts from selling security holders, or, if any such broker-dealer acts as agent for the purchaser of such shares, from such purchaser, in amounts to be negotiated. Broker-dealers may agree with the selling security holders to sell a specified number of such shares at a stipulated price per share, and, to the extent such broker-dealer is unable to do so acting as agent for a selling security holder, to purchase as principal any unsold shares at the price required to fulfill the broker-dealer commitment to such selling security holder. Broker-dealers who acquire shares as principal may resell those shares from time to time in the over-the-counter market or otherwise at prices and on terms then prevailing or then related to the then-current market price or in negotiated transactions and, in connection with such resales, may receive or pay commissions.
The selling security holders and any broker-dealers participating in the distributions of the shares may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933. Any profit on the sale of shares by the selling security holders and any commissions or discounts given to any such broker-dealer may be deemed to be underwriting commissions or discounts. The shares may also be sold pursuant to Rule 144 under the Securities Act of 1933 beginning one year after the shares were issued.
We have filed the Registration Statement, of which this prospectus forms a part, with respect to the sale of the shares by the selling security holders. The selling security holders may not sell any or all of the offered shares.
Under the Securities Exchange Act of 1934 and the regulations thereunder, any person engaged in a distribution of the shares of our common stock offered by this prospectus may not simultaneously engage in market making activities with respect to our common stock during the applicable "cooling off" periods prior to the commencement of such distribution. Also, the selling security holders are subject to applicable provisions which limit the timing of purchases and sales of our common stock by the selling security holders.
We have informed the selling security holders that, during such time as they may be engaged in a distribution of any of the shares we are registering by this Registration Statement, they are required to comply with Regulation M. In general, Regulation M precludes any selling security holder, any affiliated purchasers and any broker-dealer or other person who participates in a distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase, any security which is the subject of the distribution until the entire distribution is complete. Regulation M defines a "distribution" as an offering of securities that is distinguished from ordinary trading activities by the magnitude of the offering and the presence of special selling efforts and selling methods. Regulation M also defines a "distribution participant" as an underwriter, prospective underwriter, broker, dealer, or other person who has agreed to participate or who is participating in a distribution.
Regulation M prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security, except as specifically permitted by Rule 104 of Regulation M. These stabilizing transactions may cause the price of our common stock to be more than it would otherwise be in the absence of these transactions. We have informed the selling security holders that stabilizing transactions permitted by Regulation M allow bids to purchase our common stock if the stabilizing bids do not exceed a specified maximum. Regulation M specifically prohibits stabilizing that is the result of fraudulent, manipulative, or deceptive practices. Selling security holders and distribution participants are required to consult with their own legal counsel to ensure compliance with Regulation M.
There are no legal actions pending against us nor are any legal actions contemplated by us at this time.
Executive Officers and Directors. Our officers and directors are specified on the table below:
==================== =============== ========================================= Name Age Position -------------------- --------------- ----------------------------------------- David Bennett 37 President, Treasurer, Director -------------------- --------------- ----------------------------------------- Daniel Bernstein 42 Secretary, Director ==================== =============== ========================================= |
David Bennett. Mr. Bennett has been our president, treasurer and one of our directors since February 2002. Mr. Bennett is responsible for marketing, business development and day to day operations of our management. From August 2001 to the present, Mr. Bennett has been employed as a programmer and manager by Cyberbucks.com. From 1994 to 2000, Mr. Bennett was the president and manager of Beneducci, Inc., and from 1982 to 1994, Mr. Bennett was a manager, partner and technician of Ramco Refrigeration. Mr. Bennett's background in marketing and management has given Mr. Bennett the necessary experience to understand the market trends essential for the implementation of our business strategy. Mr. Bennett is not an officer or director of any reporting company.
Daniel Bernstein. Mr. Bernstein has been our secretary and one of our directors since our inception. From 1982 to the present, Mr. Bernstein has been self-employed as a builder, specializing in steep hillside contemporary homes. Mr. Bernstein graduated with a Masters in architectural design from the Southern California Institute of Architecture in 1987. Mr. Bernstein earned a Bachelor of Science in economics from the University of California, Los Angeles in 1982. Mr. Bernstein also possesses a general contractor's license in the state of California. Mr. Bernstein is not an officer or director of any reporting company.
There is no family relationship between any of our officers or directors. There are no orders, judgments, or decrees of any governmental agency or administrator, or of any court of competent jurisdiction, revoking or suspending for cause any license, permit or other authority to engage in the securities business or in the sale of a particular security or temporarily or permanently restraining any of our officers or directors from engaging in or continuing any conduct, practice or employment in connection with the purchase or sale of securities, or convicting such person of any felony or misdemeanor involving a security, or any aspect of the securities business or of theft or of any felony, nor are any of the officers or directors of any corporation or entity affiliated with us so enjoined.
The following table sets forth certain information regarding the beneficial ownership of our common stock as of September 16, 2002 by each person or entity known by us to be the beneficial owner of more than 5% of the outstanding shares of common stock, each of our directors and named executive officers, and all of our directors and executive officers as a group.
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Title of Class Name of Beneficial Owner Amount of Beneficial Owner Percent of Class
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Common Stock David Bennett
1537 West Orangewood Avenue 3,166,667 shares(1),
Orange, CA 92868 president, treasurer, director 42.69%
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Common Stock Daniel Bernstein
1537 West Orangewood Avenue 2,033,333 shares,
Orange, CA 92868 secretary, director 27.41%
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Common Stock All directors and named executive
officers as a group 5,200,000 shares 70.10%
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(1) Michelle Bennett, who is the spouse of David Bennett, our president, treasurer and director, owns 166,667 shares of our common stock.
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. In accordance with Securities and Exchange Commission rules, shares of our common stock which may be acquired upon exercise of stock options or warrants which are currently exercisable or which become exercisable within 60 days of the date of the table are deemed beneficially owned by the optionees. Subject to community property laws, where applicable, the persons or entities named in the table above have sole voting and investment power with respect to all shares of our common stock indicated as beneficially owned by them.
Changes in Control. Our management is not aware of any arrangements which may result in "changes in control" as that term is defined by the provisions of Item 403(c) of Regulation S-B.
Description of Capital Stock. Our authorized capital stock consists of 50,000,000 shares of $.001 par value common stock, of which 7,418,336 are issued and outstanding as of September 16, 2002, and 5,000,000 shares of $.001 par value preferred stock, of which no such shares are issued and outstanding as of September 16, 2002. Holders of shares of our common stock are entitled to receive dividends when and as declared by our Board of Directors from funds legally available therefore. All the shares of our common stock have equal voting rights and are nonassessable. Each shareholder of our common stock is entitled to share ratably in any assets available for distribution to holders our equity securities upon our liquidation.
Dividend Policy. We have never declared or paid a cash dividend on our capital stock. We do not expect to pay cash dividends on our common stock in the foreseeable future. We currently intend to retain our earnings, if any, for use in our business. Any dividends declared in the future will be at the discretion of our Board of Directors and subject to any restrictions that may be imposed by our lenders.
Preferred Stock. We are authorized to issue 5,000,000 shares of $.001 par value preferred stock, of which no such shares are issued and outstanding. We have not designated the right and preferences of our preferred stock. The availability or issuance of these shares could delay, defer, discourage or prevent a change in control.
No expert or our counsel was hired on a contingent basis, or will receive a direct or indirect interest in us.
Article Seventh of our Certificate of Incorporation provides, among other things, that our directors shall not be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except for liability:
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or
o for unlawful payments of dividends or unlawful stock purchase or
redemption by us.
Accordingly, our directors may have no liability to our shareholders for any mistakes or errors of judgment or for any act of omission, unless the act or omission involves intentional misconduct, fraud, or a knowing violation of law or results in unlawful distributions to our shareholders.
Section 17 of our Bylaws also provides that our officers and directors shall be indemnified and held harmless by us to the fullest extent permitted by the provisions of Section 145 of the Delaware General Corporation Law.
Indemnification Agreements. We will enter into indemnification agreements with each of our executive officers. We will agree to indemnify each such person for all expenses and liabilities, including criminal monetary judgments, penalties and fines, incurred by such person in connection with any criminal or civil action brought or threatened against such person by reason of such person being or having been our officer or director or employee. In order to be entitled to indemnification by us, such person must have acted in good faith and in a manner such person believed to be in our best interests. With respect to criminal actions, such person must have had no reasonable cause to believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in that act and is, therefore, unenforceable.
Transactions with Promoters. Daniel Bernstein was issued 2,000,000 shares of our common stock in exchange for his services as our promoter. The value of the services performed by Mr. Bernstein was approximately $2,000, which represented the fair value of the common stock on the date of issuance.
Our Background. We were incorporated pursuant to the laws of the State of Delaware on March 15, 2001.
Our Business. We are a developmental stage company and we plan to initiate, establish and operate retail golf stores which will feature indoor golf instruction and custom golf clubs. We intend to operate retail locations which will offer custom-fitted golf clubs tailored to our customers' needs and marketed under the Golf Two brand name. We expect that golf instruction and training will be conducted on-site by in-store staff under the direction of a professional at each store.
We anticipate that our retail stores will be approximately 5,000 square feet and will include two virtual reality golf simulators, two computer swing analysis systems and a club fitting analysis system. We also plan to offer private label and brand name golf merchandise and related products for sale at each retail store.
We seek to promote the enjoyment of the game of golf by helping golfing enthusiasts of all levels play better. As such, we intend to offer indoor golf training available and individualized, quality golf clubs and related products to our clientele.
Our Proposed Products. We anticipate that our retail locations will offer customized golf clubs made on site and tailored to our customers' needs. In addition to our customized golf-clubs, we plan to offer our customers related products such as private label and brand name golf merchandise and accessories, related clothing items, instructional golf books and videos and golf novelty items.
Our Proposed Services. We seek to promote the enjoyment of the game of golf by helping golfing enthusiasts of all levels play better. We intend to offer indoor golf training available and individualized, quality golf clubs and related products to our clientele. We hope to offer our customers with on-site, indoor, individual instructional lessons with trained and qualified golf instructors utilizing the virtual reality equipment available on the market. We anticipate providing our customers with access to introductory, intermediate and advanced golf instruction and technique analysis. By providing these classes, we hope to build a client base familiar with our products and services and gain increased exposure to our brand name.
Our Business Strategy. As the popularity of golf continues to grow, we expect that easy and affordable access to proper training and specialized equipment and products is in high demand and will continue to remain so. We hope to be strategically positioned to fill the growing need for golfing instruction demanded by golf enthusiasts in the United States and what we believe to be the ever-growing number of new golf enthusiasts. We propose to offer our customers:
o computerized swing analysis;
o indoor golf practice and simulation;
o golf lessons and instruction for beginners and experts alike;
o customized golf clubs tailored to an individual's particular needs;
and
o related private label and brand-name gold merchandise.
Furthermore, we will strive to maintain clean, well-merchandised, attractive stores that we believe will appeal to high-caliber clientele. We hope to become a premier "center" where golfing enthusiasts of all abilities will feel welcomed and comfortable such that they will enjoy the time they spend with us and will want to return.
Our Target Markets and Marketing Strategy. We anticipate that our primary target market will consist of golfers throughout California, specifically patrons of nearby golf courses, country clubs, driving ranges and putting greens. We plan to market and promote our retail stores locally. We anticipate that our marketing initiatives will include:
o utilizing direct response print advertisements placed primarily in
specialized golf industry print media such as magazines and local
newspapers;
o advertising by television, radio, banners, affiliated marketing and
direct mail in California and surrounding areas; and,
o word of mouth advertising based on the customer loyalty and high
quality service.
Growth Strategy. We seek to establish a profitable retail golf store and training facility with the intention of expanding our efforts in areas outside California. Our strategy is to provide unparalleled customer service and high-quality, competitively-priced merchandise and offer on-site, indoor, individual instructional lessons with trained and qualified golf instructors utilizing the finest virtual reality equipment available on the market, thereby creating a fun, friendly and comfortable atmosphere which we believe will achieve unequaled customer satisfaction. We intend to initiate growth throughout California by establishing more alliances with leading and local vendors and long-term customer relationships and aim to replicate this model in many markets across the United States.
Our Competition. We expect to face significant competition from existing golf stores. There are currently numerous local and national chains, such as Roger Dunn, that we will be competing with us as well as individually owned businesses. Current and new competitors may be able to establish new locations relatively quickly. We anticipate we will also compete directly with other companies and businesses that have several golf retail locations which will be competitive with the golf retail stores developed by us. We cannot guaranty that we will be able to compete effectively with those competitors. Many of those competitors have greater financial and other resources, and more experience in the establishment of golf retail facilities, than we have.
Government Regulation. Each retail location facility we establish will be subject to licensing and reporting requirements by numerous governmental authorities. These governmental authorities include federal, state and local health, environmental, labor relations, sanitation, building, zoning, fire and safety departments. Difficulties in obtaining or failure to obtain the necessary licenses or approvals could delay or prevent the development or operation of a given retail location. Any problems that we may encounter in renewing such licenses in one jurisdiction, may impact our licensing status on a federal, state or local level in other relevant jurisdictions.
Our Research and Development. We are not currently conducting any research and development activities other than the development of our website. We do not anticipate conducting such activities in the near future.
Intellectual Property. We do not presently own any patents, trademarks, copyrights, licenses, concessions or royalties.
We own the Internet domain name www.golftwo.com. Under current domain name registration practices, no one else can obtain an identical domain name, but someone might obtain a similar name, or the identical name with a different suffix, such as ".org", or with a country designation. The regulation of domain names in the United States and in foreign countries is subject to change, and we could be unable to prevent third parties from acquiring domain names that infringe or otherwise decrease the value of our domain names.
Employees. As of September 16, 2002, we have two part-time employees. We do not currently anticipate that we will hire any employees in the next six months, unless we complete our business development. From time-to-time, we anticipate that we will use the services of independent contractors and consultants to support our business development. We believe our future success depends in large part upon the continued service of our senior management personnel and our ability to attract and retain highly qualified managerial personnel.
Facilities. Our headquarters are located at 1537 West Orangewood Avenue, Orange, California 92868. We believe that our facilities are adequate for our needs and that additional suitable space will be available on acceptable terms as required. We do not own any real estate.
Liquidity and Capital Resources. We have cash of $42,019 as of June 30, 2002. Our total assets were approximately $42,019 as of June 30, 2002. Our total liabilities were approximately $2,563 as of June 30, 2002. In April 2002, we sold 2,093,336 shares of our common stock for $0.03 per share. The net proceeds from the sale of those shares were $62,800. Those proceeds were used to provide us with additional working capital.
Results of Operations.
Revenues. We have realized no revenues during the period ended June 30, 2002. We anticipate that we will generate more revenues as we commence operations and build our customer base.
Operating Expenses. For the period ended June 30, 2002, our total expenses were approximately $103,503, which were represented by general and administrative expenses. Of that amount, $90,000 was represented by stock issued for services. For the period ended June 30, 2002, we experienced a net loss of approximately $103,666.
Liquidity and Capital Resources. We had no cash as of December 31, 2001.
Results of Operations. We did not yet realize any revenue from operations for the period from March 15, 2001, our date of formation, through December 31, 2001. Our expenses of approximately $13,703 consist of start-up costs from formation through December 31, 2001.
Our Plan of Operation for the Next Twelve Months. To effectuate our business plan during the next twelve months, we must locate a suitable location for our planned retail location, market our products and services and develop our brand image. Our operations to date have been focused on developing our brand name and attempting to establish strategic relationships with providers of golf products.
Our plan of operation is materially dependent on our ability to raise additional working capital. We believe that we have sufficient cash resources to fund most of our initial development plans. However, we will need additional capital to finance our proposed retail location. We are in the process of estimating the cost of opening our initial retail location. We hope to open our initial retail location in the next twelve months if we have adequate funding to do so. There is no guaranty that we will be able to arrange for financing. We may raise the necessary funds through equity financings or through loans from banks or other lending institutions. We may not be able to arrange for loans on favorable terms. Such additional capital may be raised through public or private financing. We cannot guaranty that additional funding will be available on favorable terms, if at all. If adequate funds are not available, then our ability to commence operations may be harmed.
We have cash of $42,019 as of June 30, 2002. In the opinion of management, available funds will satisfy our working capital requirements through the next twelve months. For the next twelve months, we anticipate that our day-to-day expenses will be approximately $1,000 per month until and unless we secure our first location. We believe that our expenses will significantly increase once we begin renovating and developing our first location. Our forecast for the period for which our financial resources will be adequate to support our operations involves risks and uncertainties and actual results could fail as a result of a number of factors.
We are not currently conducting any research and development activities and do not anticipate conducting such activities in the near future. We do not anticipate that we will purchase or sell of any significant equipment. In the event that we generate significant revenues and expand our operations, then we may need to hire additional employees or independent contractors as well as purchase or lease additional equipment.
Property held by us. As of the date specified in the following table, we held the following property:
============================================= ===============================
Property June 30, 2002
--------------------------------------------- -------------------------------
Cash $42,019
--------------------------------------------- -------------------------------
Property and Equipment, net $0
============================================= ===============================
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Our Facilities. Our headquarters are located at 1537 West Orangewood Avenue, Orange, California 92868. David Bennett, our president, treasurer and one of our directors, currently provides office space to us totalling $100 per month on a month-to-month basis, which is recorded as a contribution to capital. We do not have a written lease or sublease agreement and Mr. Bennett does not expect to be paid or reimbursed for providing office facilities.
In April 2001, we entered into a $10,000 non interest-bearing note with a stockholder. The note was due upon demand and repaid in April 2002. We recorded interest expense on this note at 8% per annum as a contribution to capital.
With regard to any future related party transaction, we plan to fully disclose any and all related party transactions, including, but not limited to, the following:
o disclosing such transactions in prospectuses where required;
o disclosing in any and all filings with the Securities and Exchange
Commission, where required;
o obtaining disinterested directors consent; and
o obtaining shareholder consent where required.
Reports to Security Holders. Our securities are not listed for trading on any exchange or quotation service. We are not required to comply with the timely disclosure policies of any exchange or quotation service. The requirements to which we would be subject if our securities were so listed typically include the timely disclosure of a material change or fact with respect to our affairs and the making of required filings. Although we are not required to deliver an annual report to security holders, we intend to provide an annual report to our security holders, which will include audited financial statements.
When this registration statement becomes effective, we will be a reporting company pursuant to the Securities Exchange Act of 1934. We will be required file annual, quarterly and periodic reports with the Securities and Exchange Commission. The public may read and copy any materials filed with the Securities and Exchange Commission at the Security and Exchange Commission's Public Reference Room at 450 Fifth Street N.W., Washington, D.C. 20549. The public may also obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the Securities and Exchange Commission. The address of that site is http://www.sec.gov.
There are no shares of our common stock that can be sold pursuant to Rule 144. There are no outstanding options or warrants to purchase, or securities convertible into, shares of our common stock. There are no outstanding shares of our common stock that we have agreed to register under the Securities Act for sale by security holders. The approximate number of holders of record of shares of our common stock is thirty-six.
There have been no cash dividends declared on our common stock. Dividends are declared at the sole discretion of our Board of Directors.
Penny Stock Regulation. Shares of our common stock are subject to rules adopted by the Securities and Exchange Commission that regulate broker-dealer practices in connection with transactions in "penny stocks". Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that current price and volume information with respect to transactions in those securities is provided by the exchange or system. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from those rules, deliver a standardized risk disclosure document prepared by the Securities and Exchange Commission, which contains the following:
o a description of the nature and level of risk in the market for penny
stocks in both public offerings and secondary trading;
o a description of the broker's or dealer's duties to the customer and
of the rights and remedies available to the customer with respect to
violation to such duties or other requirements of securities' laws;
o a brief, clear, narrative description of a dealer market, including
"bid" and "ask" prices for penny stocks and the significance of the
spread between the "bid" and "ask" price;
o a toll-free telephone number for inquiries on disciplinary actions;
o definitions of significant terms in the disclosure document or in the
conduct of trading in penny stocks; and
o such other information and is in such form including language, type,
size and format, as the Securities and Exchange Commission shall
require by rule or regulation.
Prior to effecting any transaction in penny stock, the broker-dealer also must provide the customer the following:
o the bid and offer quotations for the penny stock;
o the compensation of the broker-dealer and its salesperson in the
transaction;
o the number of shares to which such bid and ask prices apply, or other
comparable information relating to the depth and liquidity of the
market for such stock; and
o monthly account statements showing the market value of each penny
stock held in the customer's account.
In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser's written acknowledgment of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitably statement. These disclosure requirements may have the effect of reducing the trading activity in the secondary market for a stock that becomes subject to the penny stock rules. Holders of shares of our common stock may have difficulty selling those shares because our common stock will probably be subject to the penny stock rules.
Any compensation received by our officers, directors, and management personnel will be determined from time to time by our Board of Directors. Our officers, directors, and management personnel will be reimbursed for any out-of-pocket expenses incurred on our behalf.
Summary Compensation Table. The table set forth below summarizes the annual and long-term compensation for services in all capacities to us payable to our Chief Executive Officer and our other executive officers whose total annual salary and bonus are anticipated to exceed $50,000 during the years ending December 31, 2001 and 2002. Our Board of Directors may adopt an incentive stock option plan for our executive officers which would result in additional compensation.
=================================== ======= ============= ============= ===================== =====================
Name and Principal Position Year Annual Bonus ($) Other Annual All Other
Salary ($) Compensation ($) Compensation
----------------------------------- ------- ------------- ------------- --------------------- ---------------------
David Bennett - president, 2002 None None None $90,000 (1)
treasurer
----------------------------------- ------- ------------- ------------- --------------------- ---------------------
Scott Watrous - former president, 2001 None None None None
treasurer
----------------------------------- ------- ------------- ------------- --------------------- ---------------------
Daniel Bernstein - secretary 2002 None None None None
----------------------------------- ------- ------------- ------------- --------------------- ---------------------
Daniel Bernstein - secretary 2001 None None None $2,000 (1)
=================================== ======= ============= ============= ===================== =====================
(1) Represents stock issued for services.
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Compensation of Directors. Our current directors are also our employees and receive no extra compensation for their service on our board of directors.
Employment Contracts. We anticipate that we will enter into an employment agreement with David Bennett, although we do not currently know the terms of that employment agreement.
Stock Option Plan. We anticipate that we will adopt a stock option plan, pursuant to which shares of our common stock will be reserved for issuance to satisfy the exercise of options. The stock option plan will be designed to retain qualified and competent officers, employees, and directors. Our Board of
Directors, or a committee thereof, shall administer the stock option plan and will be authorized, in its sole and absolute discretion, to grant options thereunder to all of our eligible employees, including officers, and to our directors, whether or not those directors are also our employees. Options will be granted pursuant to the provisions of the stock option plan on such terms, subject to such conditions and at such exercise prices as shall be determined by our Board of Directors. Options granted pursuant to the stock option plan shall not be exercisable after the expiration of ten years from the date of grant.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
INDEPENDENT AUDITORS' REPORT
Board of Directors
Golf Two, Inc.
Newport Beach, California
We have audited the accompanying balance sheets of Golf Two, Inc. (A Development Stage Company) as of June 30, 2002 and December 31, 2001, the related statements of operations, stockholders' equity and cash flows for the period from March 15, 2001 (inception) to December 31, 2001, six months ended June 30, 2002 and the periods from March 15, 2001 (inception) to June 30, 2002 and 2001. We have audited the accompanying statements of stockholders' equity (deficiency), for the period from March 15, 2001 (inception) to June 30, 2002. These financials statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Golf Two, Inc. as of June 30, 2002 and December 31, 2001 and the results of its operations and its cash flows for the period from March 15, 2001 (inception) to December 31, 2001, six months ended June 30, 2002 and the periods from March 15, 2001 (inception) to June 30, 2002 and 2001 in conformity with accounting principles generally accepted in the United States.
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the accompanying financial statements, the Company has no established source of revenue, which raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also discussed in Note 1. These financial statements do not include any adjustments that might result from the outcome of this uncertainty.
CERTIFIED PUBLIC ACCOUNTANTS
Irvine, California
August 16, 2002
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
June 30, December 31,
2002 2001
------------------- -------------------
Current assets:
Cash and cash equivalents $ 42,019 $ -
------------------- -------------------
Total assets $ 42,019 $ -
=================== ===================
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
-------------------------------------------------
Current liabilities:
Accounts payable $ 2,563 $ -
Accounts payable-related party - 478
Notes payable-related party - 10,000
------------------- -------------------
Total current liabilities 2,563 10,478
------------------- -------------------
Stockholders' equity (deficiency):
Preferred stock, $0.001 par value, 5,000,000 shares authorized, no
shares issued or outstanding, respectively - -
Common stock, $0.001 par value, 50,000,000 shares authorized,
7,418,336 and 2,325,000 issued and outstanding, respectively 7,418 2,325
Additional paid-in capital 150,007 1,500
Deficit accumulated during development stage (117,969) (14,303)
------------------- -------------------
Total stockholders' equity (deficiency) 39,456 (10,478)
------------------- -------------------
Total liabilities and stockholders' equity (deficiency) $ 42,019 $ -
=================== ===================
|
See accompanying independent auditors' report and notes to financial statements
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
For the For the For the
period from For the period from period from
March 15, 2001 six months March 15, 2001 March 15, 2001
(inception) to ended (inception) to (inception) to
December 31, 2001 June 30, 2002 June 30, 2001 June 30, 2002
-------------------- --------------- --------------- ---------------
Revenue $ - $ - $ - $ -
General and administrative expenses 13,703 103,503 13,103 117,206
-------------------- --------------- --------------- ---------------
Loss from operations (13,703) (103,503) (13,103) (117,206)
Other income expenses:
Interest income - 37 - 37
Interest expense (600) (200) (200) (800)
-------------------- --------------- --------------- ---------------
Loss before provision for income taxes (14,303) (103,666) (13,303) (117,969)
Provision for income taxes - - - -
-------------------- --------------- --------------- --------------
Net loss $ (14,303) $ (103,666) $ (13,303) $ (117,969)
==================== =============== =============== ===============
Net loss available to common stockholders
per common share - basic and dilutive:
Loss per common share ($0.01) ($0.02) ($0.01) ($0.03)
==================== =============== =============== ===============
Weighted average common shares
outstanding - basic and dilutive 2,325,000 5,378,352 2,325,000 3,698,000
==================== =============== =============== ===============
|
See accompanying independent auditors' report and notes to financial statements
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
Deficit
accumulated Total
Common stock Additional during stockholders'
-------------------------------- paid-in development equity
Shares Amount capital stage (deficiency)
--------------- --------------- -------------- --------------- ---------------
Balance at March 15, 2001, - $ - $ - $ - $ -
date of incorporation
Issuance of Founders Shares for
services, March 2001 2,325,000 2,325 - - 2,325
Additional paid in capital - - 1,500 - 1,500
Net loss - - - (14,303) (14,303)
--------------- --------------- -------------- --------------- ----------------
Balance at December 31, 2001 2,325,000 2,325 1,500 (14,303) (10,478)
Issuance of common stock for
services at $0.03 per share
(February 2002) 3,000,000 3,000 87,000 - 90,000
Issuance of common stock for cash
at $0.03 per share (April 2002) 2,093,336 2,093 60,707 - 62,800
Additional paid in capital - - 800 - 800
Net loss - - - (103,666) (103,666)
--------------- --------------- -------------- --------------- ----------------
Balance at June 30, 2002 7,418,336 $ 7,418 $ 150,007 $ (117,969) $ 39,456
=============== =============== ============== =============== ================
|
See accompanying independent auditors' report and notes to financial statements
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
For the For the For the
period from For the period from period from
March 15, 2001 six months March 15, 2001 March 15, 2001
(inception) to ended (inception) to (inception) to
December 31, 2001 June 30, 2002 June 30, 2001 June 30, 2002
----------------- --------------- -------------- ---------------
Cash flows used for operating activities:
Net loss $ (14,303) $ (103,666) $ (13,303) $ (117,969)
----------------- --------------- -------------- ---------------
Adjustments to reconcile net loss to net cash
used for operating activities:
Non-cash issuance of common stock for services 2,325 90,000 2,325 92,325
Non-cash additional paid-in-capital contributed 1,500 800 500 2,300
Increase (decrease) in liabilities -
Accounts payable - 2,563 - 2,563
Accounts payable-related party 478 (478) 478 -
----------------- --------------- -------------- ---------------
Total adjustments 4,303 92,885 3,303 97,188
----------------- --------------- -------------- ---------------
Net cash used for operating activities (10,000) (10,781) (10,000) (20,781)
----------------- --------------- -------------- ---------------
Cash flows provided by financing activities:
Proceeds from note payable-related party 10,000 - 10,000 10,000
Repayment of note payable-related party - (10,000) - (10,000)
Proceeds from issuance of common stock - 62,800 - 62,800
----------------- --------------- -------------- ---------------
Net cash provided by financing activities 10,000 52,800 10,000 62,800
----------------- --------------- -------------- ---------------
Net increase in cash and cash equivalents - 42,019 - 42,019
Cash and cash equivalents, beginning of period - - - -
----------------- --------------- -------------- ---------------
Cash and cash equivalents, end of period $ - $ 42,019 $ - $ 42,019
================= =============== ============== ===============
Supplemental disclosure of cash flow information:
Income taxes paid $ - $ - $ - $ -
================= =============== ============== ===============
Interest paid $ - $ - $ - $ -
================= =============== ============== ===============
|
See accompanying independent auditors' report and notes to financial statements
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(1) Summary of Significant Accounting Policies:
Nature of Business:
Golf Two, Inc. (the "Company") is currently a development stage company under the provisions of Statement of Financial Accounting Standards ("SFAS") No. 7 and was incorporated under the laws of the State of Delaware on March 15, 2001. The Company plans to operate retail golf stores that will feature indoor golf instruction and sell custom golf clubs throughout California.
Basis of Presentation:
The accompanying financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America, which contemplate continuation of the Company as a going concern. However, the Company has no established source of revenue. This matter raises substantial doubt about the Company's ability to continue as a going concern. These financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts, or amounts and classification of liabilities that might be necessary should the Company be unable to continue as a going concern.
Management plans to take the following steps that it believes will be sufficient to provide the Company with the ability to continue in existence:
Management intends to continue to raise additional financing through joint venturing of projects, exchange of asset, debt financing, equity financing or other means and interests which it deems necessary with a view to moving forward and sustain a prolonged growth in its strategy phases.
Use of Estimates:
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reported periods.
Comprehensive Income:
SFAS No. 130, "Reporting Comprehensive Income," establishes standards for the reporting and display of comprehensive income and its components in the financial statements. As of June 30, 2002 and December 31, 2001, and for the periods from inception to June 30, 2002, the Company has no items that represent other comprehensive income and, therefore, has not included a schedule of comprehensive income in the consolidated financial statements.
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(1) Summary of Significant Accounting Policies, Continued:
Cash and Cash Equivalents:
For purposes of the statement of cash flows, the Company considers all highly liquid investments purchased with original maturities of three months or less to be cash equivalents.
Basic and Diluted Loss Per Share:
In accordance with SFAS No. 128, "Earnings Per Share," the basic loss per common share is computed by dividing net loss available to common stockholders by the weighted average number of common shares outstanding. Diluted loss per common share is computed similar to basic loss per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potential common shares had been issued and if the additional common shares were dilutive. As of June 30, 2002, the Company does not have any equity instruments outstanding that can be converted into common stock.
Income Taxes:
The Company accounts for income taxes under SFAS 109, "Accounting for Income Taxes." Under the asset and liability method of SFAS 109, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statements carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period the enactment occurs. A valuation allowance is provided for certain deferred tax assets if it is more likely than not that the Company will not realize tax assets through future operations.
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(1) Summary of Significant Accounting Policies, Continued:
Stock-Based Compensation:
The Company accounts for stock-based employee compensation arrangements in accordance with the provisions of Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" and complies with the disclosure provisions of SFAS 123, "Accounting for Stock-Based Compensation." Under APB 25, compensation cost is recognized over the vesting period based on the excess, if any, on the date of grant of the deemed fair value of the Company's shares over the employee's exercise price. When the exercise price of the employee share options is less than the fair value price of the underlying shares on the grant date, deferred stock compensation is recognized and amortized to expense in accordance with FASB Interpretation No. 28 over the vesting period of the individual options. Accordingly, because the exercise price of the Company's employee options equals or exceeds the market price of the underlying shares on the date of grant, no compensation expense is recognized. Options or shares awards issued to non-employees are valued using the fair value method and expensed over the period services are provided.
Fair Value of Financial Instruments:
The estimated fair values of cash and cash equivalents, accounts payable and accrued expenses, approximate their carrying value because of the short term maturity of these instruments or the stated interest rates are indicative of market interest rates.
Advertising Costs:
Advertising costs are expensed as incurred. There were no advertising expenses for any of the periods from March 15, 2001 (inception) to June 30, 2002.
Segment Reporting:
Based on the Company's integration and management strategies, the Company operated in a single business segment. For the periods from inception to June 30, 2002, all revenues have been derived from domestic operations.
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(1) Summary of Significant Accounting Policies, Continued:
New Accounting Pronouncements:
In July 2001, the FASB issued SFAS No. 141 "Business Combinations." SFAS No. 141 supersedes Accounting Principles Board ("APB") No. 16 and requires that any business combinations initiated after June 30, 2001 be accounted for as a purchase; therefore, eliminating the pooling-of-interest method defined in APB 16. The statement is effective for any business combination initiated after June 30, 2001 and shall apply to all business combinations accounted for by the purchase method for which the date of acquisition is July 1, 2001 or later. The Company has implemented this pronouncement and has concluded that the adoption has no material impact to the financial statements.
In July 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangibles." SFAS No. 142 addresses the initial recognition, measurement and amortization of intangible assets acquired individually or with a group of other assets (but not those acquired in a business combination) and addresses the amortization provisions for excess cost over fair value of net assets acquired or intangibles acquired in a business combination. The statement is effective for fiscal years beginning after December 15, 2001, and is effective July 1, 2001 for any intangibles acquired in a business combination initiated after June 30, 2001. The Company has implemented this pronouncement and has concluded that the adoption has no material impact to the financial statements.
In October 2001, the FASB recently issued SFAS No. 143, "Accounting for Asset Retirement Obligations," which requires companies to record the fair value of a liability for asset retirement obligations in the period in which they are incurred. The statement applies to a company's legal obligations associated with the retirement of a tangible long-lived asset that results from the acquisition, construction, and development or through the normal operation of a long-lived asset. When a liability is initially recorded, the company would capitalize the cost, thereby increasing the carrying amount of the related asset. The capitalized asset retirement cost is depreciated over the life of the respective asset while the liability is accreted to its present value. Upon settlement of the liability, the obligation is settled at its recorded amount or the company incurs a gain or loss. The statement is effective for fiscal years beginning after June 30, 2002. The Company does not expect the adoption to have a material impact to the Company's financial position or results of operations.
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(1) Summary of Significant Accounting Policies, Continued:
New Accounting Pronouncements, Continued:
In October 2001, the FASB issued SFAS No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets." Statement 144 addresses the accounting and reporting for the impairment or disposal of long-lived assets. The statement provides a single accounting model for long-lived assets to be disposed of. New criteria must be met to classify the asset as an asset held-for-sale. This statement also focuses on reporting the effects of a disposal of a segment of a business. This statement is effective for fiscal years beginning after December 15, 2001. The Company has implemented this pronouncement and has concluded that the adoption has no material impact to the financial statements.
In April 2002, the FASB issued Statement No. 145, "Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections." This Statement rescinds FASB Statement No. 4, "Reporting Gains and Losses from Extinguishment of Debt", and an amendment of that Statement, FASB Statement No. 64, "Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements" and FASB Statement No. 44, "Accounting for Intangible Assets of Motor Carriers." This Statement amends FASB Statement No. 13, "Accounting for Leases", to eliminate an inconsistency between the required accounting for sale-leaseback transactions and the required accounting for certain lease modifications that have economic effects that are similar to sale-leaseback transactions. The Company does not expect the adoption to have a material impact to the Company's financial position or results of operations.
(2) Related-Party Transactions:
In April 2001, the Company entered into a $10,000 non interest-bearing note with a stockholder. The note was due upon demand and repaid in April 2002. The Company recorded interest expense on this note at 8% per annum as a contribution to capital.
An officer of the Company provides office space to the Company for $100 per month on a month-to-month basis, which was recorded as a contribution to capital.
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(3) Stockholders' Equity:
Common Stock
In March 2001, the Company issued 5,650,000 shares of its common stock in exchange for services to incorporate the Company. In February 2002, the Board of Directors declared that the Company had not received consideration for the issuance of 3,325,000 shares of the previously issued shares and canceled those shares leaving 2,325,000 shares totaling $2,325. The Founder Shares were valued at the par value of the Company's common stock, which represented its fair market value on the date of issuance. The Company has not recognized the issuance of the cancelled shares in the financial statements.
In February 2002, 3,000,000 shares of common stock were issued at $0.03 per share in exchange for prior services rendered for a total of $90,000, which was fair market value of the Company's common stock on the date of issuance.
In April 2002, the Company performed a private placement and issued 2,093,336 shares of its common stock at $0.03 per share for an aggregate total of $62,800.
Preferred Stock
The Company is authorized to issue 5,000,000 shares of Preferred stock, par value at $.001 per share. As of June 30, 2002 and December 31, 2001, none of the shares was issued and outstanding.
(4) Provision for Income Taxes:
The reconciliation of the effective income tax rate to the federal statutory rate for the year ended December 31, 2001, the periods ended June 30, 2001 and 2000, and for the period from March 15, 2001 (inception) to June 30, 2002 is as follows:
For the period
from March 15, Period from For the period
2001 (inception) For the six March 15, 2001 from March 15, 2001
to December 31, months ended (inception) to (inception) to
2001 June 30, 2002 June 30, 2001 June 30, 2002
------------ ------------- ------------- -------------
Computed "expected" benefit $ 200 $ 34,300 $ 4,400 $ 38,900
Increase (decrease) in income taxes
resulting from:
Increase in valuation allowance (200) (34,300) (4,400) (38,000)
------------ ------------- ------------- -------------
$ - $ - $ - $ -
============ ============= ============= =============
|
See accompanying independent auditors' report.
GOLF TWO, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
PERIOD FROM MARCH 15, 2001 (INCEPTION)
TO DECEMBER 31, 2001, SIX MONTHS
ENDED JUNE 30, 2002 AND THE
PERIODS FROM MARCH 15, 2001 (INCEPTION)
TO JUNE 30, 2002 AND 2001
(4) Provision for Income Taxes, Continued:
Deferred tax assets and liabilities reflect the net effect of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and amounts used for income tax purposes. Significant components of the Company's deferred tax assets and liabilities at June 30, 2002 and December 31, 2001 are as follows:
June 30, December 31,
2002 2001
---------------- --------------
Deferred tax assets:
Net operating loss carryforwards $ 38,900 $ 4,600
Less: valuation allowance 38,900 4,600
---------------- --------------
$ - $ -
================ ==============
|
At December 31, 2001 and June 30, 2002, the Company has provided a 100% valuation allowance for the deferred tax asset since management has not been able to determine that the realization of that asset is more likely than not. The net change in the valuation allowance for the six months ended June 30, 2002 and the year ended December 31, 2001 was an increase of $34,300 and $200, respectively. As of June 30, 2002, the Company had net operating loss carryforwards ("NOLs") of approximately $118,000. If unused, the NOLs will begin to expire during 2019.
See accompanying independent auditors' report.
In July 2002, our Board of Directors appointed Stonefield Josephson, Inc., independent accountant, to audit our financial statements for the period from March 15, 2001, our date of formation, through June 30, 2002. Prior to our appointment of Stonefield Josephson, Inc. as our auditor, our financial statements had not been audited. Prior to engaging Stonefield Josephson, Inc., we had not consulted with them on the application of accounting principles to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on our financial statements. There have been no disagreements with our accountant since our formation required to be disclosed pursuant to Item 304 of Regulation S-B.
The validity of the issuance of the shares of common stock offered by the selling security holders has been passed upon by MC Law Group, located in Newport Beach, California.
Our financial statements for the period from March 15, 2001, our date of formation, through June 30, 2002, appearing in this prospectus which is part of a Registration Statement have been audited by Stonefield Josephson, Inc., and are included in reliance upon such reports given upon the authority of Stonefield Josephson, Inc., as experts in accounting and auditing.
We have filed a Registration Statement on Form SB-2 with the Securities and Exchange Commission pursuant to the Securities Act of 1933 with respect to the common stock offered by the selling security holders. This prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules to the Registration Statement. For further information regarding us and our common stock offered hereby, reference is made to the Registration Statement and the exhibits and schedules filed as a part of the Registration Statement.
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Article Seventh of our Certificate of Incorporation provides, among other things, that our directors shall not be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except for liability:
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or
o for unlawful payments of dividends or unlawful stock purchase or
redemption by us.
Accordingly, our directors may have no liability to our shareholders for any mistakes or errors of judgment or for any act of omission, unless such act or omission involves intentional misconduct, fraud, or a knowing violation of law or results in unlawful distributions to our shareholders.
Our Certificate of Incorporation provides that we will indemnify our directors to the extent permitted by Delaware General Corporation Law, including circumstances in which indemnification is otherwise discretionary under the Delaware General Corporation Law. Our Certificate of Incorporation also provides that to the extent that Delaware General Corporation Law is amended to permit further indemnification, we will so indemnify our directors.
Section 145 of the Delaware General Corporation Law provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to or is involved in any pending, threatened, or completed civil, criminal, administrative, or arbitration action, suit, or proceeding, or any appeal therein or any inquiry or investigation which could result in such action, suit, or proceeding, because of his or her being or having been our director, officer, employee, or agent or of any constituent corporation absorbed by us in a consolidation or merger or by reason of his or her being or having been a director, officer, trustee, employee, or agent of any other corporation or of any partnership, joint venture, sole proprietorship, trust, employee benefit plan, or such enterprise, serving as such at our request or of any such constituent corporation, or the legal representative of any such director, officer, trustee, employee, or agent, from and against any and all reasonable costs, disbursements, and attorney's fees, and any and all amounts paid or incurred in satisfaction of settlements, judgments, fines, and penalties, incurred or suffered in connection with any such proceeding.
Section 17 of our Bylaws also provides that our officers and directors shall be indemnified and held harmless by us to the fullest extent permitted by the provisions of Section 145 of the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
We will pay all expenses in connection with the registration and sale of the common stock by the selling security holders. None of the expenses will be borne by the selling security holders. The estimated expenses of issuance and distribution are set forth below.
========================================= ==================== ================ Registration Fees Approximately $22.25 ----------------------------------------- -------------------- ---------------- Transfer Agent Fees Approximately $650.00 ----------------------------------------- -------------------- ---------------- Costs of Printing and Engraving Approximately $500.00 ----------------------------------------- -------------------- ---------------- Legal Fees Approximately $10,000.00 ----------------------------------------- -------------------- ---------------- Accounting Fees Approximately $2,500.00 ========================================= ==================== ================ |
There have been no sales of unregistered securities within the last three years which would be required to be disclosed pursuant to Item 701 of Regulation S-B, except for the following:
In April 2002, we issued 2,093,336 shares of our common stock to thirty-four investors for $0.03 per share. The shares were issued in a transaction which we believe satisfies the requirements of that exemption from the registration and prospectus delivery requirements of the Securities Act of 1933, which exemption is specified by the provisions of Section 4(2) of that act and Rule 506 of Regulation D promulgated pursuant to that act by the Securities and Exchange Commission. Specifically, the offer was made to "accredited investors", as that term is defined under applicable federal and state securities laws, and no more than 35 non-accredited investors. We believe that each purchaser who was not an accredited investor has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. Each investor was given adequate access to sufficient information about us to make an informed investment decision. There were no commissions paid on the sale of these shares. The net proceeds to us were $62,800.
In February 2002, we issued 3,000,000 shares of our common stock to David
Bennett, our president, treasurer and one of our directors. We believe that Mr.
Bennett has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of the prospective investment.
In addition, Mr. Bennett had sufficient access to material information about us
because he was our president, treasurer and one of our directors. The shares
were issued in a transaction which we believe satisfies the requirements of that
certain exemption from the registration and prospectus delivery requirements of
the Securities Act of 1933, which exemption is specified by the provisions of
Section 4(2) of the Securities Act of 1933, as amended. The shares were issued
in exchange for services provided to us, which were valued at $90,000. That
amount represented the fair value of the common stock on the date of issuance.
In March 2001, we issued 2,325,000 shares of our common stock to two individuals, one of which was Daniel Bernstein, our secretary and one of our directors. We believe that those shareholders have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the prospective investment. The shares were issued in a transaction which we believe satisfies the requirements of that certain exemption from the registration and prospectus delivery requirements of the Securities Act of 1933, which exemption is specified by the provisions of Section 4(2) of the Securities Act of 1933, as amended. The shares were issued in exchange for services provided to us, which were valued at $2,325. That amount represented the fair value of the common stock on the date of issuance.
Copies of the following documents are filed with this Registration Statement as exhibits:
1. Underwriting Agreement (not applicable)
3.1 Certificate of Incorporation
3.2 Bylaws
5. Opinion Re: Legality
8. Opinion Re: Tax Matters (not applicable)
11. Statement Re: Computation of Per Share Earnings*
15. Letter on unaudited interim financial information (not applicable)
23.1 Consent of Auditors
23.2 Consent of Counsel**
24. Power of Attorney is included on the Signature Page of the
Registration Statement
|
* Included in Financial Statements ** Included in Exhibit 5
A. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities, other than the payment by us of expenses incurred or paid by our director, officer or controlling person 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 our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
B. We hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To specify in the prospectus any facts or events
arising after the effective date of the Registration
Statement or most recent post-effective amendment
thereof which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered, if the total dollar value of
securities offered would not exceed that which was
registered, and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule
424(b), Section 230.424(b) of Regulation S-B, if, in
the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any additional or changed material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as amended, we certify that we have reasonable grounds to believe that we meet all of the requirements of filing on Form SB-2 and authorized this Registration Statement to be signed on our behalf by the undersigned, in the city of Orange, California, on September 17, 2002.
Golf Two, Inc. a Delaware corporation
By: /s/ David Bennett
-----------------------------------------
David Bennett
Its: principal executive and financial officer
president, treasurer, and a director
|
In accordance with the requirements of the Securities Act of 1933, this Registration Statement was signed by the following persons in the capacities and on the dates stated:
/s/ David Bennett September 17, 2002 -------------------------------------------- David Bennett principal executive and financial officer president, treasurer and a director /s/ Daniel Bernstein September 17, 2002 -------------------------------------------- Daniel Bernstein secretary and a director |
(STAMP)
State of Delaware
Secretary of State
Division of Corporations
Filed 09:00 AM 03/15/2001
010129400-3368946
CERTIFICATE OF INCORPORATION
OF
GOLF TWO, INC.
I, the undersigned, for the purposes of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do execute this Certificate of Incorporation and hereby certify the foregoing:
FIRST. The name of this corporation is Golf Two, Inc.
SECOND. The address of this corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400, in the city of Wilmington, 19808, county of New Castle. The name of the agent at that address is Corporation Service Company.
THIRD. The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized pursuant to the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of stock, which this corporation shall have authority to issue, is Fifty Five Million (55,000,000) with a par value of one mil ($.001) per share. Fifty Million (50,000,000) of those shares are Common Stock and Five Million (5,000,000) of those shares are Preferred Stock. Each share of Common Stock shall entitle the holder thereof to one vote, in person or by proxy, on any matter on which action of the stockholders of this corporation is sought. The holders of shares of Preferred Stock shall have no right to vote such shares, except (i) as determined by the Board of Directors of this corporation in accordance with the provisions of Section (3) of ARTICLE FIFTH of this Certificate of Incorporation, or (ii) as otherwise provided by the Delaware General Corporation Law, as amended from time to time. The stockholders shall not possess cumulative voting rights. The holders of shares of capital stock of the corporation shall not be entitled to pre-emptive or preferential rights to subscribe to any unissued stock or any other securities which the corporation may now or hereafter be authorized to issued. The corporation's capital stock may be issued and sold from time to time for such consideration as may be fixed by the Board of Directors, provided that the consideration so fixed is not less than par value.
FIFTH. The Board of Directors of this corporation shall be, and hereby is, authorized and empowered, subject to limitations prescribed by law and the provisions of Article FOURTH of this Certificate of Incorporation, to provide for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in each such series, and to fix the designations, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions of each such series. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:
(1) The number of shares that constitute such series and the distinctive designation of such series;
(2) The dividend rate on the shares of such series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of such series;
(3) Whether such series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
(4) Whether such series shall have conversion privileges, and, if so, the terms and conditions of such conversion privileges, including provision for adjustment of the conversion rate, in such events as the Board of Directors shall determine;
(5) Whether or not the shares of such series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date upon or after which those shares shall be redeemable, and the amount per share payable in the event of redemption, which amount may vary in different circumstances and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption or purchase of shares of such series, and, if so, the terms and amount of such fund;
(7) The rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding up of this corporation, and the relative rights of priority, if any, of payment of shares of such series;
(8) Any other relative rights, preferences and limitations of such series.
SIXTH. The incorporator of this corporation is Michael Muellerleile whose mailing address is 1301 Dove Street, Suite 460, Newport Beach, California 92660.
SEVENTH. Each director of this corporation shall not be personally liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of such director's duty of loyalty to this 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) pursuant to Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which such director derived any improper personal benefit. In the event that the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors of this corporation, then the liability of each director of this corporation shall be eliminated or limited to the fullest and most complete extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of this article by the stockholders of this corporation shall not adversely affect any right or protection of any director of this corporation existing at the time of such repeal or modification.
EIGHTH. This corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision specified in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at any such time then in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article.
NINTH. The powers of the incorporator are to terminate upon the filing of this Certificate of Incorporation. The name and mailing address of the person who is to serve as the initial director of this corporation until the first annual meeting of stockholders of this corporation, or until his successor is elected and qualifies, is:
Bruce Younker 23 Corporate Plaza, Suite 180 Newport Beach, California 92663
TENTH. (a) The number of directors constituting the entire Board of
Directors of this corporation shall be not less than one (1) nor more than five
(5) as fixed from time to time by vote of a majority of the entire Board of
Directors of this corporation; provided, however, that the number of directors
shall not be reduced so as to shorten the term of any director at that time in
office.
(b) Notwithstanding any other provisions of this Certificate of Incorporation or the bylaws of this corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Certificate of Incorporation or the bylaws of this corporation), any director or the entire Board of Directors of this Corporation may be removed at any time, but only for cause and only by the affirmative vote of the holders of seventy-five percent (75%) or more of the outstanding shares of capital stock of this corporation entitled to vote generally in the election of directors cast at a meeting of the stockholders of this corporation called for that purpose. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of this corporation, the provisions of this article shall not apply with respect to the director or directors elected by such holders of Preferred Stock.
ELEVENTH. All of the powers of this corporation, insofar as the same may be lawfully vested by this Certificate of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this corporation. In furtherance and not in limitation of that power, the Board of Directors shall have the power to make, adopt, alter, amend and repeal from time to time the bylaws of this corporation, subject to the right of the stockholders entitled to vote with respect thereto to adopt, alter, amend and repeal bylaws made by the Board of Directors; provided, however, that bylaws shall not be adopted, altered, amended or repealed by the stockholders of this corporation, except by the vote of the holders of not less than two thirds (2/3) of the outstanding shares of stock entitled to vote upon the election of directors.
The undersigned incorporator hereby acknowledges that the foregoing Certificate of Incorporation is her act and deed on this 15th day of March, 2001.
Incorporator:
/s/ Michael Muellerleile --------------------------- Michael Muellerleile |
BYLAWS
OF
Golf Two, Inc.
ARTICLE I
Offices
Section 1. Registered Office. The registered office of Golf Two, Inc. ("Corporation") shall be maintained at such locations within the State of Delaware as the Board of Directors from time to time shall designate. The Corporation shall maintain in charge of such registered office an agent upon whom process against the Corporation may be served.
Section 2. Other Offices. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board of Directors from time to time may determine or the business of the Corporation may require.
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. Subject to the provisions of these Bylaws, the annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before such meeting shall be held on such date and at such time as shall be designated by the Board of Directors and stated in the notice of such meeting. If the election for directors shall not be held on the day designated therefore or at any adjournment thereof, the directors shall cause such election to be held at a special meeting of the shareholders as soon thereafter as may be convenient. At such special meeting, subject to the provisions of these Bylaws, the shareholders may elect the directors and transact any other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings. A special meeting of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called at any time and shall be called by the President or Secretary, upon the direction of the Board of Directors, or upon the written request of a shareholder or shareholders holding of record at least ten percent (10%) of the outstanding shares of the Corporation entitled to vote at such a meeting.
Section 3. Place of Meetings. All meetings of the shareholders shall be held at the principal place of business of the Corporation or at such other place, within or without the State of Delaware, as shall be designated by the Board of Directors and stated in the notice of each such meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law, notice of each meeting of the shareholders, whether annual, special, or adjourned, shall be given, not less than ten (10) days nor more than sixty (60) days before the day on which such meeting is to be held, to each shareholder of record entitled to vote at such meeting by delivering a written or printed notice thereof to such shareholder personally, by facsimile machine, or by mailing such notice in a postage prepaid envelope addressed to such shareholder at the post office address furnished by such shareholder to the Secretary for such purpose, or, if such shareholder shall not have furnished to the Secretary an address for such purpose, then at the address of such shareholder last known to the Secretary. Except when expressly required by law, no publication of any notice of a meeting of shareholders shall be required. Notice of any meeting of shareholders shall not be required to be given to any shareholder who shall attend such meeting in person or by proxy. If any shareholder shall in person or by proxy waive notice, in writing, of such meeting, whether before or after such meeting, notice thereof need not be given to such shareholder. Notice of any adjourned meeting of the shareholders shall not be required to be given, except when expressly required by law.
Section 5. Quorum. At each meeting of the shareholders, the presence in person or by proxy of shareholders holding of record a majority of the outstanding shares entitled to vote at such meeting shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, the shareholders entitled to vote who are present in person or by proxy at the time and place of any meeting, or, if no shareholder entitled to vote is so present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn such meeting from time to time, without notice other than an announcement at such meeting, until a quorum shall be present. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called.
Section 6. Organization. At every meeting of the shareholders, the President, or, in his or her absence, a Vice President, or, in the absence of the President and all of the Vice Presidents, a chairman chosen by a majority in interest of the shareholders present in person or by proxy and entitled to vote thereat, shall act as chairman. The Secretary, or, in his or her absence, an Assistant Secretary, shall act as secretary at all meetings of the shareholders. In the absence from any such meeting of the Secretary or an Assistant Secretary, the chairman may appoint any person to act as secretary of such meeting.
Section 7. Business and Order of Business. Subject to the provisions of these Bylaws, at each meeting of the shareholders, such business may be transacted as may properly be brought before such meeting.
Section 8. Voting. At each meeting of the shareholders, each
shareholder shall be entitled to one vote in person or by proxy for each share
of the Corporation having voting rights registered in his or her name on the
books of the Corporation at the close of business on the day next preceding the
day on which notice of such meeting was given, or, if no notice was given, on
the day next preceding the day on which such meeting is held, except when,
pursuant to the provisions of Section 7 of Article VII of these Bylaws, a date
shall have been fixed as a record date for the determination of the shareholders
entitled to vote. Any shareholder entitled to vote may vote in person or by
proxy in writing; provided, however, that no proxy shall be valid after eleven
(11) months after the date of its execution, unless otherwise provided therein.
The presence at any meeting of any shareholder who has given a proxy shall not
revoke such proxy, unless such shareholder shall file written notice of such
revocation with the secretary of such meeting prior to the voting of such proxy.
At each meeting of the shareholders, all matters other than those the manner of deciding of which is expressly regulated by statute, the Certificate of Incorporation, or these Bylaws, shall be decided by a majority of the votes cast by the holders of shares entitled to vote thereon.
The Board of Directors, in advance of any meeting of the shareholders, or the chairman of such meeting, at such meeting, may appoint one or more inspectors of election to act at such meeting or any adjournment thereof, but no inspectors need be appointed unless expressly requested at such meeting by a shareholder entitled to vote thereat.
Section 9. Conduct of Meetings of Shareholders. Meetings of the shareholders shall generally follow reasonable and fair procedure. Subject to the foregoing, the conduct of any meeting and the determination of procedure and rules shall be within the absolute discretion of the chairman, and there shall be no appeal from any ruling of the chairman with respect to procedure or rules. Accordingly, in any meeting of the shareholders, or part thereof, the chairman shall have the absolute power to determine appropriate rules or to dispense with theretofore prevailing rules. Without limiting the foregoing, the following rules shall apply:
(a) Within his or her sole discretion, the chairman of a meeting may adjourn such meeting by declaring such meeting adjourned. Upon his or her doing so, such meeting shall be immediately adjourned.
(b) The chairman may ask or require that anyone who is not a bona fide shareholder or proxy leave a meeting.
(c) A resolution or motion shall be considered for vote only if proposed by a shareholder or duly authorized proxy, and seconded by a person, who is a shareholder or a duly authorized proxy, other than the person who proposed the resolution or motion. The chairman may propose any motion for vote.
(d) The chairman of a meeting may impose any reasonable limits with respect to participation by shareholders in a meeting, including, but not limited to, limits on the amount of time at the meeting taken up by the remarks or questions or any shareholder, limits on the numbers of questions per shareholder, and limits as to the subject matter and timing of questions and remarks by shareholders.
Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any meeting of the shareholders except in accordance with the procedures set forth in this Section 9; provided, however, that nothing in this Section 9 shall be deemed to preclude discussion by any shareholder as to any business properly brought before any meeting.
The chairman shall, if the facts warrant, determine, and declare at any meeting of the shareholders that business was not properly brought before such meeting in accordance with the provisions of this Section 9, and if he or she should so determine, he or she shall so declare to such meeting and any such business not properly brought before such meeting shall not be transacted.
Section 10. Advance Notice of Shareholder Proposed Business at any Meeting of the Shareholders. To be properly brought before any annual meeting of the shareholders, business must be either (a) specified in the notice of such meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before such meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before such meeting by a shareholder. In addition to any other applicable requirements, including, but not limited to, requirements imposed by federal and state securities laws pertaining to proxies, for business to be properly brought before any meeting by a shareholder, such shareholder must have given timely notice thereof in writing to the Secretary. To be timely, shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation not later than the close of business on the 15th day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the Secretary shall set forth as to each matter such shareholder proposes to bring before any meeting of the shareholders (i) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by such shareholder, and (iv) any material interests of such shareholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 10. The chairman of such annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before such meeting and in accordance with the provisions of this Section 10, and if he or she should so determine, he or she shall so declare to such meeting and any such business not properly brought before such meeting shall not be transacted.
Section 11. Action by Shareholders Without a Meeting. Any action required or permitted to be taken at a meeting of the shareholders under any provisions of the Delaware General Corporation Law, the Certificate of Incorporation, or these Bylaws may be taken without a meeting if all of the shareholders entitled to vote thereon consent in writing to such action being taken, or, subject to the provisions of Section 228 of the Delaware General Corporation Law, if the shareholders who would have been entitled to cast the minimum number of votes which would be necessary to authorize such action at a meeting at which all of the shareholders entitled to vote thereon were present and voting shall consent in writing to such action being taken. Whenever action of the Corporation is so taken, the consents of the shareholders consenting thereto shall be filed with the minutes of proceedings of the shareholders.
ARTICLE III
Board of Directors
Section 1. General Powers. The property, affairs, and business of the Corporation shall be managed by the Board of Directors.
Section 2. Number, Qualifications, and Term of Office. The number of directors constituting the entire Board of Directors of this corporation shall be not less than one (1) nor more than eight (8) as fixed from time to time by vote of a majority of the entire Board of Directors of this Corporation; provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at that time in office. The directors shall be elected annually at the annual meeting of the shareholders. Each director shall hold office until his or her successor shall have been elected and qualified, until his or her death, until he or she shall have resigned in the manner set forth in Section 13 of this Article III, or until he or she shall have been removed in the manner set forth in Section 14 of this Article III, whichever shall first occur. Any director elected to fill a vacancy in the Board of Directors shall be deemed elected for the unexpired portion of the term of his or her predecessor on the Board of Directors. Each director, at the time of his or her election, shall be at least eighteen (18) years of age.
Section 3. Nomination of Directors. (a) Only persons who are nominated
in accordance with the procedures set forth in this section shall be eligible
for election as directors. The Board of Directors, or a duly appointed committee
thereof, shall act as a nominating committee for selecting nominees for election
as directors. Except in the case of a nominee substituted as a result of the
death or incapacity of a nominee of the nominating committee, the nominating
committee shall deliver written nominations to the Secretary at least ninety
(90) days prior to the appropriate date of the previous meeting of shareholders
called for election of directors. Provided such nominating committee makes such
nominations, no nominations for directors, except those made by the nominating
committee, shall be voted upon at the annual meeting unless other nominations by
shareholders are made in accordance with the provisions of this section. No
person shall be elected as a director of the Corporation unless nominated in
accordance with the procedures set forth in this section. Ballots specifying the
names of all persons nominated by the nominating committee and by shareholders
shall be provided for use at the annual meeting.
(b) Nominations of persons for election to the Board of Directors of the Corporation at an annual meeting of shareholders may be made by any shareholder entitled to vote for the election of directors at such meeting who complies with the procedures set forth in this section. Such nominations, other than those made by the Board of Directors or a nominating committee thereof, shall be made pursuant to timely notice in writing to the Secretary as set forth in this section. To be timely, a shareholder's notice shall be delivered to or received at the principal executive offices of the Corporation not less than ninety (90) days prior to the appropriate anniversary date of the previous meeting of shareholders of the Corporation called for the election of directors. Each such shareholder's notice shall set forth (1) the name and address of the shareholder who intends to make the nomination and of the person or persons to be nominated; (2) a representation that the shareholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (3) a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder; (4) such other information regarding each nominee proposed by such shareholder as would be required to be disclosed in solicitations of proxies with respect to nominees for election as directors, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, including, but not limited to, information required to be disclosed by Items 4, 5, 6, and 7 of Schedule 14A; (5) the consent of each nominee to serve as director of the Corporation if so elected; and (6) the class and number of shares of stock of the Corporation which are beneficially owned by such shareholder on the date of such shareholder notice and, to the extent known, by any other shareholders known by such shareholder to be supporting such nominees on the date of such shareholder notice. At the request of the Board of Directors, any person nominated by the Board of Directors, or a nominating committee thereof, for election as a director shall furnish to the Secretary that information required to be set forth in a shareholder's notice of nomination which pertains to the nominee together with the required written consents, each as described herein.
(c) The Board of Directors may reject any nomination by a shareholder not timely made in accordance with the requirements of this section. If the Board of Directors , or a designated committee thereof, determines that the information provided in a shareholder's notice does not satisfy the informational requirements of this section in any material aspect, the Secretary shall notify such shareholder of the deficiency in the notice. The shareholder shall have an opportunity to cure the deficiency by providing additional information to the Secretary within such period of time, not to exceed five (5) days from the date such deficiency notice is given to the shareholder, as the Board of Directors or such committee shall reasonably determine. If the deficiency is not cured within such period, or if the Board of Directors or such committee reasonably determines that the additional information provided by the shareholder, together with information previously provided, does not satisfy the requirements of this section in any material respect, then the Board of Directors may reject such shareholder's nomination.
The Secretary shall notify a shareholder in writing whether his or her nomination has been made in accordance with the time and informational requirements of this section. Notwithstanding the procedures set forth in this section, if neither the Board of Directors nor such committee makes a determination as to the validity of any nominations by a shareholder, the chairman of such annual meeting shall determine and declare at such annual meeting whether the nomination was made in accordance with the terms of this section. If such chairman determines a nomination was made in accordance with the terms of this section, he or she shall so declare at such annual meeting and ballots shall be provided for use at the annual meeting with respect to such nominee. If such chairman determines that a nomination was not made in accordance with this section, he or she shall so declare at the annual meeting and defective nomination shall be disregarded.
Section 4. Election of Directors. At each meeting of the shareholders for the election of directors, the directors shall be chosen by a plurality of the votes cast at such election by the holders of shares entitled to vote thereon. The vote for directors need not be by ballot, unless demanded by a shareholder entitled to vote thereon at such election and before the voting begins. The shareholders shall not be entitled to cumulate their votes for directors.
Section 5. Annual Meetings. The annual meeting of the Board of Directors shall be held in each year immediately after the annual meeting of shareholders, at such place as the Board of Directors from time to time may fix and, if so held, no notice of such meeting need be given.
Section 6. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times as the Board of Directors shall determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting which would otherwise be held on that day shall be held at said place at the same hour on the next succeeding business day that is not a legal holiday. Notice of regular meetings need not be given.
Section 7. Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the President or any one (1) director. Notice of each such meeting shall be mailed to each director, addressed to him or her at his or her residence or usual place of business, at least five (5) days before the day on which such meeting is to be held, or shall be sent to him or her at such place by facsimile machine, telegraph, cable, telex, or the equivalent, or be delivered personally or by telephone, not later than the day preceding the day on which such meeting is to be held, except that in the event of an emergency, the President may direct that shorter notice of a special meeting be given personally or by facsimile machine, telephone, telegraph, cable, telex, or the equivalent. Neither the business to be transacted nor the purpose of any such meeting need be specified in such notice. Notice of any meeting of the Board of Directors need not be given, however, if waived in writing or by facsimile machine, telegraph, telex, cable, or the equivalent, either before or after such meeting, or, at the meeting. Any meeting of the Board of Directors shall be a legal meeting without any notice having been given, if all the directors shall be present thereat.
Section 8. Place of Meeting. Meetings of the Board of Directors may be held at such place or places within or without the State of Delaware as the Board of Directors from time to time may designate.
Section 9. Quorum and Manner of Acting. A majority of the directors shall be required to constitute a quorum for the transaction of business at any meeting. The act of a majority of the directors present at any meeting while a quorum is present shall be an act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. Notice of any adjourned meeting shall be given, in the same manner as notice of special meetings is required to be given, as set forth in these Bylaws. The directors shall act only as a board and the individual directors shall have no power as such.
Section 10. Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if, prior or subsequent to such action, all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the Board of Directors or such committee. Such consent shall have the same effect as a unanimous vote of the Board of Directors or such committee for all purposes and may be stated as such in any certificate or other document.
Section 11. Organization. At each meeting of the Board of Directors, the President or, in his or her absence, a chairman chosen by a majority of the directors present, shall act as chairman. The Secretary, or, in his or her absence, an Assistant Secretary, or, in the absence of the Secretary and the Assistant Secretaries, any person appointed by the chairman, shall act as secretary of such meeting.
Section 12. Order of Business. At all meetings of the Board of Directors business may be transacted in such order as the Chairman of the Board of Directors may determine.
Section 13. Resignations. Any director of the Corporation may resign at any time by giving written notice to the President or to the Secretary. The resignation of any director shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make such resignation effective.
Section 14. Removal of Directors. Any director may be removed at any time, either with or without cause, by the shareholders at any regular or special meeting of the shareholders and the vacancy in the Board of Directors caused thereby may be filled by the shareholders at the same meeting.
Section 15. Vacancies. In addition to a vacancy occurring by removal by the shareholders, as contemplated by Section 14 of these Bylaws, a vacancy in the Board of Directors shall occur upon the happening of any of the following events:
(a) a director dies or resigns:
(b) the shareholders fail to elect the number of directors authorized to be elected at any meeting of shareholders at which any director is to be elected;
(c) the Board of Directors by resolution have elected to increase the number of directors;
(d) the Board of Directors declare vacant the office of any director for such cause as the Board may determine; or
(e) a vacancy occurs for any other reason. Any vacancy occurring in the Board of Directors shall be filled by a majority of the remaining members of the Board of Directors, though less than a quorum, and each person so elected shall hold office until the next annual meeting of shareholders and until his or her successor is duly elected and has qualified.
Section 16. Compensation. The directors shall receive no compensation for their services as directors.
Section 17. Indemnification of Directors, Officers, Employees and Agents. The Corporation shall indemnify each director, officer, employee and agent of the Corporation, as amended by the provisions of Section 145 of the Delaware General Corporation Law, as set forth in Article VI of these Bylaws.
Section 18. Executive and Other Committees.
(a) The Board of Directors, by resolution adopted by a majority of the members of the Board of Directors determined in the manner specified by these Bylaws, may create and establish an Executive Committee consisting of not less than two (2) directors. The Board of Directors may provide the Executive Committee with such powers as the Board of Directors determines to be necessary or appropriate, subject to such conditions as may be prescribed by the Board of Directors, these Bylaws, the Certificate of Incorporation and the Delaware General Corporation Law.
(b) During the intervals between the meetings of the Board of Directors, the Executive Committee may exercise all the authority of the Board of Directors; provided, however, that the Executive Committee shall not have the power to amend or repeal any resolution of the Board of Directors that by its terms shall not be subject to amendment or repeal by the Executive Committee, and the Executive Committee shall not have the authority of the Board of Directors in reference to (1) approving or proposing to shareholders action required to be approved by shareholders; (2) filling vacancies on the Board of Directors or on any of its committees; (3) amending the Certificate of Incorporation; (4) adopting, amending or repealing bylaws; or (5) approving a plan of merger or share exchange not requiring shareholder approval.
(c) The Executive Committee shall meet from time to time on call of the Chairman of the Board of Directors or of any two (2) or more members of the Executive Committee. Meetings of the Executive Committee may be held at such place or places, within or without the State of Delaware, as the Executive Committee shall determine or as may be specified or fixed in the respective notices or waivers of such meetings. The Executive Committee may fix its own rules of procedures, including provision for notice of its meetings. It shall keep a record of its proceedings and shall report these proceedings to the Board of Directors at the meeting thereof held next after they have been taken, and all such proceedings shall be subject to revision or alternation by the Board of Directors except to the extent that action shall have been taken pursuant to or in reliance upon such proceedings prior to any such revision or alternation.
(d) The Executive Committee shall act by majority vote of its members; provided, however, the provisions of Section 19 of these Bylaws notwithstanding, that contracts or transactions of and by the Corporation in which officers or directors of the Corporation are interested shall require the affirmative vote of majority of the disinterested members of the Executive Committee, at a meeting of the Executive Committee at which the material facts as to the interest and as to the contract or transaction are disclosed or known to the members of the Executive Committee prior to the vote.
(e) Members of the Executive Committee may participate in committee proceedings by means of conference telephone or similar communications equipment by means of which all persons participating in the proceedings can hear each other, and such participation shall constitute presence in person at such proceedings.
(f) The Board of Directors, by resolution adopted in accordance with Paragraph (a) of this section, may designate one or more directors as alternate members of the Executive Committee who may act in the place and stead of any absent member or members at any meeting of said committee.
(g) The Board of Directors, by resolution adopted by a majority of the entire Board of Directors, may designate one or more additional committees, each committee to consist of two (2) or more of the directors, which shall have such name or names and shall have and may exercise such powers of the Board of Directors, except the powers denied to the Executive Committee, as may be determined from time to time by the Board of Directors. Such committees shall provide for their own rules of procedure, subject to the same restrictions thereon as provided above for the Executive Committee.
(h) The Board of Directors shall have the power at any time to remove any member of any committee, with or without cause, and to fill vacancies in and to dissolve any such committee.
Section 19. Provision Concerning Interested Transactions. Any contract or other transaction between the Corporation and (i) any director, or (ii) any corporation, unincorporated association, business trust, estate, partnership, trust, joint venture, individual or other legal entity ("Legal Entity") (A) in which any director has a material financial interest or is a general partner, or (B) of which any director is a director, officer, or trustee (collectively, a "Conflict Transaction"), shall be valid for all purposes, if the material facts of such Conflict Transaction and such director's interest were disclosed or known to the Board of Directors, a committee with authority to act thereon, or the shareholders entitled to vote thereon, and the Board of Directors, such committee, or such shareholders authorized, approved, or ratified such Conflict Transaction. A Conflict Transaction shall be authorized, approved or ratified:
(a) By the Board or Directors or such committee, if it receives affirmative vote of majority of the directors who have no interest in the Conflict Transaction, notwithstanding the fact that such majority may not constitute a quorum or a majority of the Board of Directors or such committee or a majority of the directors present at such meeting, and notwithstanding the presence or vote of any director who does have such an interest; provided, however, that no Conflict Transaction may be authorized, approved or ratified by a single director; or
(b) By such shareholders, if such Conflict Transaction receives the vote of a majority of the shares entitled vote, in which vote shares owned or voted under the control of any director who, or of any Legal Entity that, has an interest in the Conflict Transaction may be counted. This section shall not be construed to require authorization, ratification or approval by the shareholders of any Conflict Transaction, or to invalidate any Conflict Transaction that would otherwise be valid under the common and statutory law applicable thereto.
Section 20. Telephonic Meeting. Unless restricted by the Certificate of Incorporation, any one or more members of the Board of Directors may participate in a meeting of the Board of Directors by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV
Officers
Section 1. Number. The officers of the Corporation shall be a President, a Treasurer, and a Secretary, and, in the discretion of the Board of Directors, one or more Vice Presidents.
Section 2. Election, Qualifications, and Terms of Office. The officers shall be elected annually by the Board of Directors. Each officer shall hold office until his or her successor shall have been elected and qualified, or until his or her earlier death, resignation, or removal in the manner provided in these Bylaws. Any person may hold more than one office.
Section 3. Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the President, or the Secretary. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt of the notice thereof by the Board of Directors or any such officer.
Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled for the unexpired portion of the term by the Board of Directors.
Section 5. The President. The President shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, the President shall have general charge of the business affairs and property of the Corporation and general supervision over its officers and agents. If present, the President shall preside at all meetings of shareholders and at all meetings of the Board of Directors. The President shall see that all orders and resolutions of the Board of Directors are carried into effect. The President may sign, with any other officer "hereunto authorized, share certificates of the Corporation, the issuance of which shall have been duly authorized, and may sign and execute, in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements, and other instruments duly authorized by the Board of Directors, except in these instances where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent. >From time to time, the President shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require to be brought to their attention. The President shall also perform such other duties as are given to him or her by these Bylaws or as from time to time may be assigned to him or her by the Board of Directors.
Section 6. The Secretary. The Secretary shall (a) record all the proceedings of the meetings of the shareholders and Board of Directors in a book or books to be kept for that purpose; (b) cause all notices to be duly given in accordance with the provisions of these Bylaws and as required by statute; (c) be custodian of the records and of the seal of the Corporation and cause such seal to be affixed to all certificates representing shares of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized;
(d) see that the lists, books, reports, statements, certificates, and other
documents and records required by statute are properly kept and filed; (e) have
charge of the share record books of the Corporation and cause the same to be
kept in such manner as to show at any time the amount of shares of the
Corporation issued and outstanding, the names and addresses of the holders of
record thereof, the number of shares held by each, and the date when each became
such holder of record; (f) perform the duties required of him or her under
Section 9 of Article II of these Bylaws; (g) sign (unless the Treasurer shall
sign) certificates representing shares of the Corporation, the issuance of which
shall have been duly authorized; and (h) in general, perform all duties incident
to the office of Secretary and such other duties as are given to him or her by
these Bylaws or as from time to time may be assigned to him or her by the Board
of Directors or the President.
Section 7. The Treasurer. The Treasurer shall (a) have charge of and supervision over and by responsible for the funds, securities, receipts, and disbursements of the Corporation; (b) cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies, or with such bankers or other depositories, as shall be selected in accordance with Section 3 of Article V of these Bylaws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositories of the Corporation and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) render to the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his or her transactions as Treasurer; (e) cause to be kept, at the principal office of the Corporation or at such other office (within or without the State of Delaware) as shall be designated by the Board of Directors, correct books of account of all its business and transactions; (f) sign (unless the Secretary shall sign) certificates representing shares of the Corporation, the issuance of which shall have been duly authorized; and (g) in general, perform all duties incident to the office of Treasurer and such other duties as are given to him or her by these Bylaws or as from time to time may be assigned to him or her by the Board of Directors or the President.
Section 8. The Vice Presidents. At the request of the President, any Vice President shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also sign, with any other officer thereunto duly authorized, share certificates of the Corporation, the issuance of which shall have been duly authorized, and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements, and other instruments duly authorized by the Board of Directors, except in those instances where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent. Each Vice President shall perform such other duties as are given to him or her by these Bylaws or as from time to time may be assigned to him or her by the Board of Directors or the President.
Section 9. Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors. No officer shall be prevented from receiving such salary by reason of the fact that he or she is also a director of the Corporation.
Section 10. Surety Bonds. In the event the Board of Directors shall so require, any officer or agent of the Corporation shall execute a bond to the Corporation, in such amount and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his or her duties.
ARTICLE V
Contracts and Financial Matters
Section 1. Execution of Contracts. The President or any Vice President, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. Such authorization may be general or restricted to specific instances.
Section 2. Checks and Drafts. All checks, drafts, or other orders for the payment of money and all notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers or agent or agents of the Corporation as shall be thereunto so authorized from time to time by resolution of the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine.
Section 4. General and Special Bank Accounts. The Board of Directors may authorize from time to time the opening and keeping of general and special bank accounts with such banks, trust companies, or other depositaries as the Board of Directors may designate and may make such special rules and regulations with respect thereto, not inconsistent with the provisions of these Bylaws, as the Board of Directors may deem expedient.
Section 5. Loans. No loans or advances shall be contracted on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or restricted to specific instances. Any officer or agent of the Corporation thereunto so authorized may effect loans and advances for the Corporation and for such loans and advances may make, execute, and deliver promissory notes, bonds, or other evidences of indebtedness of the Corporation.
Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate, or transfer, as security for the payment of any and all loans, advances, indebtedness, and liabilities of the Corporation, any and all stocks, bonds, other securities, and other personal property at any time held by the Corporation and, to that end, may endorse, assign, and deliver the same and do every act and shine necessary or proper in connection therewith.
Section 6. Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by such person or persons as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VI
Indemnification and Insurance
Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any pending, threatened, or completed civil, criminal, administrative, or arbitration action, suit, or proceeding, or any appeal therein or any inquiry or investigation which could lead to such action, suit, or proceeding ("proceeding"), by reason of his or her being or having been a director, officer, employee, or agent of the Corporation or of any constituent corporation absorbed by the Corporation in a consolidation or merger or by reason of his or her being or having been a director, officer, trustee, employee, or agent of any other corporation (domestic or foreign) or of any partnership, joint venture, sole proprietorship, trust, employee benefit plan, or such enterprise (whether or not for profit), serving as such at the request of the Corporation or of any such constituent corporation, or the legal representative of any such director, officer, trustee, employee, or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the Delaware General Corporation Law permitted prior to such amendment), from and against any and all reasonable costs, disbursements, and attorney's fees, and any and all amounts paid or incurred in satisfaction of settlements, judgments, fines, and penalties, incurred or suffered in connection with any such proceeding, and such indemnification shall continue as to a person who has ceased to be a director, officer, trustee, employee, or agent and shall inure to the benefit of his or her heirs, executors, administrators, and assigns; provided, however, that, except as provided in Section 2 of this Article VI, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was specifically authorized by the Board of Directors of the Corporation.
The right to indemnification specified in this Article VI shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in connection with any proceeding in advance of the final disposition of such proceeding as authorized by the Board of Directors; provided, however; that, if the Delaware General Corporation Law so requires, the payment of such expenses in advance of the final disposition of a proceeding shall be made only upon receipt by the Corporation of an undertaking, by or on behalf of such director, officer, employee, or agent, to repay all amounts so advanced unless it shall ultimately be determined that such person is entitled to be indemnified under this article or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim made under
Section 1 of this Article VI is not paid in full by the Corporation within
thirty (30) days after a written request has been received by the Corporation,
the claimant may, at any time thereafter, apply to a court for an award of
indemnification by the Corporation for the unpaid amount of the claim and, if
successful on the merits or otherwise in connection with any proceeding or in
the defense of any claim, issue, or matter therein, the claimant shall also be
entitled to be paid by the Corporation for any and all expenses incurred or
suffered in connection with such proceeding. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advancement of
expenses incurred in connection with any proceeding where the required
undertaking, if any, has been tendered to the Corporation) that the claimant has
not satisfied the standard of conduct which makes it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such proceeding that indemnification
of the claimant is proper in the circumstances because he or she has satisfied
the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, or its shareholders) that the claimant
has not satisfied such applicable standard of conduct, nor the termination of
any proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has not satisfied the applicable standard of
conduct.
Section 3. Nonexclusivity of Rights. The right to indemnification and advance of expenses provided by or granted pursuant to this Article VI shall not exclude or be exclusive of any other rights to which any person may be entitled under the Certificate of Incorporation of the Corporation, these Bylaws, any agreement, vote of shareholders, or otherwise; provided, however, that no indemnification shall be made to or on behalf of such person if a judgment or other final adjudication adverse to such person establishes that such person has not satisfied the applicable standard of conduct required to be satisfied under the Delaware General Corporation Law.
Section 4. Insurance. The Corporation may purchase and maintain insurance on behalf of any director, officer, employee, or agent of the Corporation, or of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against any expenses incurred in any proceeding and against any liabilities asserted against him or her by reason of such person's being or having been such a director, officer, employee, or agent, whether or not the Corporation would have the power to indemnify such person against such expenses and liabilities under the provisions of this Article VI or otherwise.
ARTICLE VII
Shares and Their Transfer
Section 1. Share Certificates. Every holder of shares of the Corporation shall be entitled to have a certificate, signed by the President or a Vice president and either the Treasurer or the Secretary, certifying the number of shares owned by him or her in the Corporation. In case any officer of the Corporation who has signed any such certificate shall cease to be such officer, for whatever cause, before the certificate shall have been delivered by the Corporation, the certificate shall be deemed to have been adopted by the Corporation, unless the Board of Directors shall otherwise determine prior to the issuance and delivery thereof, and may be issued and delivered as though the person who signed it had not ceased to be such officer of the Corporation. Certificates representing shares of the Corporation shall be in such form as shall be approved by the Board of Directors. There shall be entered upon the share record books of the Corporation, at the time of issuance of each share, the number of the certificate issued, the name and address of the person owning the shares represented thereby, the number of shares, and the date of issuance thereof. Every certificate exchanged or returned to the Corporation shall be marked "cancelled" with the date of cancellation.
Section 2. Share Record Books. The share record books and the blank share certificate books shall be kept by the Secretary, or by any officer or agent designated by the Board of Directors.
Section 3. Addresses of Shareholders. Each shareholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served, delivered, or mailed to such shareholder and, if any shareholder shall fail to designate such address, all corporate notices (whether served or delivered by the Secretary, another shareholder, or any other person) may be served upon such shareholder by mail directed to him or her at his or her last known post office address.
Section 4. Transfers of Shares. Transfers of shares of the Corporation shall be made on the books of the Corporation by the holder or record thereof or by his or her attorney thereunto duly authorized by a power of attorney duly executed in writing and filed with the Secretary and on surrender of the certificate or certificates representing such shares. The Corporation shall be entitled to treat the holder of record of any shares as the absolute owner thereof for all purposes and, accordingly, shall not be obligated to recognize any legal, equitable, or other claim to or interest in such shares on the part of any other person, whether or not it or they shall have express of other notice thereof, except as otherwise expressly provided by statute; provided, however, that whenever any transfer of shares shall be made for collateral or security and not absolutely and written notice thereof shall be given to the Secretary, such fact shall be expressed in the entry of the transfer. Notwithstanding anything to the contrary contained in these Bylaws, the Corporation shall not be required or permitted to make any transfer of shares of the Corporation which, if made, would violate the provisions of any agreement restricting the transfer of shares of the Corporation to which the Corporation shall be a party; provided, however, that the restriction upon the transfer of the shares represented by any share certificate shall be set forth or referred to upon the certificate.
Section 5. Regulations. Subject to the provisions of this Article VII, the Board of Directors may make such rules and regulations as it may deem expedient concerning the issuance, transfer, and registration of certificates for shares of the Corporation.
Section 6. Lost, Destroyed, and Mutilated Certificates. The holder of any shares shall immediately notify the Corporation of any loss, destruction, or mutilation of the certificate therefore and the Board of Directors, in its discretion, may cause to be issued to him or her a new certificate or certificates upon surrender of the mutilated certificate or, in case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction. The Board of Directors, in its discretion, may require the owner of the lost or destroyed certificate or his or her legal representative to give the Corporation a bond, in such amount (not exceeding twice the value of such shares) and with such surety or sureties as it may direct, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
Section 7. Fixing of Record Dates. The Board of Directors shall have
the power to fix in advance a date, not more than sixty (60) nor less than ten
(10) days, preceding the date of any meeting of shareholders, the date for the
payment of any dividend or allotment of any right, the date when any change,
conversion, or exchange of shares shall go into effect, or for the purpose of
any other action, as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting, entitled to receive
payment of any such dividend or allotment of any right, entitled to exercise the
rights in respect to any such change, conversion, or exchange of shares, or
entitled to participate in or be entitled to the benefit of any such other
action. Whenever a record date has been so fixed, only shareholders of record on
such date shall be entitled to notice of and to vote at such meeting, to receive
payment of any such dividend or allotment of any right, to exercise such rights
in respect to any such change, conversion, or exchange of shares, or to
participate in or be entitled to the benefit of any such other action.
Section 8. Refusal to Register Transfer. The Corporation shall not register any transfer of securities issued by the Corporation in any transaction that qualifies for the exemption from registration requirements specified by the provisions of Regulation S, unless such transfer is made in accordance with the provisions of Regulation S.
ARTICLE VIII
Dividends and Surplus
Subject to any restrictions imposed by statute, the Board of Directors from time to time, in its discretion, may fix and vary the amount of the working capital of the Corporation and determine what, if any, dividends shall be declared and paid to the shareholders out of the surplus of the Corporation. The Board of Directors, in its discretion, may use and apply any surplus in purchasing or acquiring any of the shares of the Corporation in accordance with law or any of its bonds, debentures, or other obligations, or from time to time may set aside from such surplus such amount or amounts as it, in its absolute discretion, may deem proper as a reserve fund to meet contingencies or for equalizing dividends, for the purpose of maintaining or increasing the property or business of the Corporation, or for any other purposes it may deem consistent with the best interest of the Corporation. All such surplus, until actually declared in dividends or used and applied as aforesaid, shall be deemed to be so set aside by the Board of Directors for one or more of said purposes.
ARTICLE IX
Corporation Seal
The Corporation shall have a corporate seal which shall be in circular form, shall bear the name of the Corporation and the words and figures denoting its organization under the laws of the State of and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE XI
Accountants
The Board of Directors of the Corporation from time to time shall designate the independent accountants of the Corporation.
ARTICLE XII
Amendments
All Bylaws of the Corporation shall be subject to amendment, alteration, or repeal, and new Bylaws not inconsistent with any provision of the Certificate of Incorporation of the Corporation or any provision of law may be made, by the shareholders or by the Board of Directors, except as otherwise expressly required by statute. Any Bylaw adopted, amended, or repealed by the shareholders may be amended or repealed by the Board of Directors, unless the resolution of the shareholders adopting such Bylaw expressly reserves the right to amend or repeal it only to the shareholders.
ARTICLE XIII
Force and Effect
These Bylaws are subject to the provisions of the Delaware General Corporation Law and the Certificate of Incorporation, as the same may be amended from time to time. If any provision in these Bylaws is inconsistent with an express provision of either of the Delaware General Corporation Law or the Certificate of Incorporation, the provision of the Delaware General Corporation Law or the Certificate of Incorporation, as the case may be, shall govern, prevail and control the extent of such inconsistency.
MC LAW GROUP
A PROFESSIONAL CORPORATION
4100 NEWPORT PLACE, SUITE 830
NEWPORT BEACH, CALIFORNIA 92660
TELEPHONE: 949.250.8655
FACSIMILE: 949.250.8656
Opinion of Counsel and Consent of Counsel
Board of Directors
Golf Two, Inc.
Re: Registration Statement on Form SB-2
Gentlemen: As counsel to Golf Two, Inc., a Delaware corporation (the "Company"), we have participated in the preparation of the Company's Registration Statement on Form SB-2 filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, relating to the registration of 2,418,336 shares of the Company's $.001 par value common stock owned by the selling security holders (the "Shares"). As counsel to the Company, we have examined such corporate records, certificates and other documents of the Company, and made inquiries of such officers of the Company, as we have deemed necessary or appropriate for purposes of this opinion. Based upon such examinations, we are of the opinion that the Shares have been and are duly authorized, validly issued, fully paid and non-assessable shares of the common stock of the Company. We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement on Form SB-2 filed by the Company and the reference to our firm contained therein under "Legal Matters."
Sincerely,
/s/ MC Law Group MC Law Group Newport Beach, California September 16, 2002 |
Independent Certified Public Accountants
September 18, 2002
We hereby consent to the use in this Registration Statement on Form SB-2 of our report dated August 16, 2002, relating to the financial statements of Golf Two, Inc. (a Development Stage Company) for the period from March 15, 2001 (Inception) to December 31, 2001, the six months ended June 30, 2002, and the periods from March 15, 2001 (Inception) to June 30, 2002 and 2001, and the reference to our firm under the Caption "Experts" in the Prospectus.
/s/ Stonefield Josephson, Inc. ------------------------------ Stonefield Josephson, Inc. A Professional Accountancy Corporation Irvine, California |