SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF EARLIEST REPORTED EVENT - JANUARY 23, 2003
TAMBORIL CIGAR COMPANY
(Exact name of Registrant as specified in its charter)
DELAWARE 000-22573 65-0774638
(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) Identification Number)
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1407 North Fort Harrison, Suite F
Clearwater, Florida 33755
(Address of principal executive offices)
(727) 469-8691
(Registrant's telephone number, including area code)
(727) 469-8603
(Issuer's facsimile number, including area code)
111 S.W. 3rd Street, Suite 701
Miami, Florida 33130
(Former name or former address, if changed since last report)
FORWARD LOOKING STATEMENTS
This Current Report on Form 8-K and the reports that we file with the Securities and Exchange Commission (the "SEC"), contain forward-looking statements about our business containing the words "believes," "anticipates," "expects" and words of similar import. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results or performance to be materially different from the results or performance anticipated or implied by such forward-looking statements. Given these uncertainties, stockholders are cautioned not to place undue reliance on forward-looking statements. Except as specified in SEC regulations, we have no duty to publicly release information that updates the forward-looking statements contained in this Current Report. An investment in our company involves numerous risks and uncertainties, including those described in this Current Report. Additional risks will be disclosed in our future SEC filings.
BACKGROUND INFORMATION
Our company was incorporated in Washington on May 24, 1937 as Idaho Leadville Mines Co. While available public records indicate that we engaged in the mining business at various times in the past, we were inactive during the five-year period ended October 1996. In October 1996, we acquired 100% of the issued and outstanding stock of Tamboril Cigar International in a business combination transaction that was structured as a reverse takeover. In connection with the business combination, we changed our name to Tamboril Cigar Company and changed our state of incorporation from Washington to Delaware. After the reverse takeover, our primary business was manufacturing, importing and marketing premium cigars that we sold under our proprietary brand names "Tamboril," "Cordova" and "Fore."
On May 15, 1997, we filed a registration statement on Form 10-SB to register our Common Stock under the Securities Exchange Act of 1934 (the "Exchange Act"). Our Form 10-SB became effective on August 21, 1997 and we have been subject to the reporting requirements of the Exchange Act since that date.
On September 22, 1997, Infinity Emerging Opportunities Limited, Summit Capital Limited and Glacier Capital Limited (the "Infinity Parties") purchased 56,000 shares of our $50 stated value Series B Convertible Preferred Stock (the "Preferred Stock") and $200,000 of our 8% Convertible Debentures (the "Debentures") for $3,000,000. The Preferred Stock and Debentures were convertible into shares of our $.0001 par value Common Stock (the "Common Stock") at a price equal to the lesser of $4.71 per share, or 77.5% of the average closing bid price of our Common Stock for the five trading days immediately preceding a conversion date. On January 9, 1998, we filed a Form SB-2 Registration Statement under the Securities Act of 1933 (the "Securities Act") to register the resale of the Common Stock issuable upon conversion of the Preferred Stock and Debentures. The SEC issued an order of effectiveness for this registration statement on January 28, 1998. Our Form 10-QSB for the nine-months ended September 30, 1998 reported that the Infinity Parties converted:
o 1,320 shares of Preferred Stock into 25,563 shares of Common Stock in February 1998;
o 1,560 shares of Preferred Stock into 47,133 shares of Common Stock in April 1998; and
o 19,893 shares of Preferred Stock into 7,380,042 shares of Common Stock in August 1998.
At September 30, 1998, the Infinity Parties owned approximately 55% of our outstanding Common Stock.
We encountered significant difficulties in our cigar production and distribution business when the principal U.S. distributor of our products failed to perform under various agreements with our company. For the nine months ended September 30, 1998, our net sales were only $309,906, as compared with $4,403,640 for the comparable nine months of 1997. We ultimately decided to terminate our cigar manufacturing operations in January of 1999. Subsequently, our senior management team was terminated for mismanagement and replaced by Alan L. Goldberg, a corporate workout specialist employed by Crisis Management, Inc. In July 1999, we moved our principal executive office to the offices of Crisis Management.
Chapter 11 Bankruptcy
On April 11, 2000, our company and two of our subsidiaries filed voluntary Chapter 11 petitions in the U.S. Bankruptcy Court for the Southern District of Florida (Cases 00-13040-BKC-AJC through 00-13042-BKC-AJC). We filed our Amended Plan of Reorganization (the "Amended Plan") and the associated Disclosure Statement with the Bankruptcy Court on August 9, 2000. Each class of debt and equity interests that was entitled to vote approved our Amended Plan. On December 7, 2000, the Bankruptcy Court entered an order that confirmed our Amended Plan (the "Confirmation Order").
As reported in our Current Report on Form 8-K dated December 22, 2000, our Amended Plan and the Confirmation Order also provided for the filing of an Amended and Restated Certificate of Incorporation that:
o Increased our authorized capital to 400 million shares of $.0001 par value common stock and 100 million shares of $.0001 par value preferred stock;
o Granted proportional voting rights to the holders of the Preferred Stock; and
o Prohibited the issuance of non-voting equity securities in the future.
Our Amended and Restated Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on February 13, 2001. Thereafter, our Amended Plan was implemented in due course. We have not engaged in any substantive business operations since the effective date of our Amended Plan.
Delinquent SEC Reports
We filed our required quarterly and annual Exchange Act reports for all periods through and including the nine months ended September 30, 1998. On August 17, 1999, we filed a Current Report on Form 8-K to report the relocation of our principal business office to the office of Crisis Management. On December 22, 2000, we filed a Current Report on Form 8-K to disclose the Confirmation Order. Before, during and after our bankruptcy, we failed to file a number of required Exchange Act reports, including:
o Annual Reports on Form 10-KSB for the years ended December 31, 1998, 1999, 2000 and 2001;
o Quarterly Reports on Form 10-QSB for the three-months ended March 31, 1999, 2000, 2001 and 2002;
o Quarterly Reports on Form 10-QSB for the three- and six-month periods ended June 30, 1999, 2000, 2001 and 2002; and
o Quarterly Reports on Form 10-QSB for the three- and nine-month periods ended September 30, 1999, 2000, 2001 and 2002.
In an effort to cure our company's SEC reporting deficiencies, our board of directors intends to retain a qualified firm of independent certified public accountants to audit our historical financial statements for the periods required by SEC rules. Thereafter, our board of directors intends to file all or a portion of our delinquent Exchange Act reports. There is no assurance that we will be able to provide financial statements for all of the periods specified above, but we believe we will be able to file complete information, including audited year-end financial statements, for all interim and annual periods between the effective date of the Confirmation Order and the date of this Current Report on Form 8-K.
Post-bankruptcy Operations
We failed to pay our Delaware franchise taxes for the year 2000. As a result, the Secretary of State of the State of Delaware revoked our Certificate of Incorporation on March 1, 2002.
In December of 2002, the Infinity Parties sold 7,380,042 shares of our Common Stock, 33,227 shares of our Preferred Stock and $200,000 of our Debentures to Ashley Bolt & Co. Limited ("Ashley Bolt") for a nominal consideration.
Alan L. Goldberg, who served as our sole officer and director during the pendancy of our bankruptcy and the implementation of our Amended Plan resigned effective December 31, 2002.
We have approximately $63,700 in cash and no other material assets or liabilities at the date of this Current Report on Form 8-K. Our available cash resources will be used to pay the cost of preparing financial statements for the periods required by SEC rules, preparing our delinquent Exchange Act reports, developing a restructuring plan for our company and implementing our proposed plan of operations. There is no assurance that our available cash resources will be sufficient to pay the costs associated with our contemplated future activities.
ITEM 1.
CHANGES IN CONTROL OF REGISTRANT
On January 23, 2003, Sally A. Fonner of Dunedin, Florida and John L. Petersen of Barbereche, Switzerland (collectively the "Purchasers") purchased the following securities from Ashley Bolt:
o 4,400,000 shares of our Common Stock;
o 33,227 shares of our Preferred Stock; and
o $200,000 of our Debentures.
The purchase price for these securities was $100 in cash. Ashley Bolt also gave Ms. Fonner and Mr. Petersen a proxy to vote 2,980,042 shares of our Common Stock that it retained for investment. The proxy was irrevocable until the earlier of (i) the delivery of certificates for the shares of Common Stock issuable upon conversion of the Preferred Stock and Debentures, or (ii) six months from the date of the purchase agreement.
According to Continental Stock Transfer & Trust Company, the transfer agent for our Common Stock, 13,356,640 shares of our Common Stock were issued and outstanding on the date of the purchase agreement. Since our Amended Plan granted voting rights of the holders of Preferred Stock, a total of 13,389,867 voting shares were issued and outstanding on the date of the purchase transaction. Therefore, the voting power obtained by Ms. Fonner and Mr. Petersen represented approximately 55.4% of the total voting power held by all our stockholders and the transaction resulted in a change in control. On January 23, 2003, Ms. Fonner and Mr. Petersen filed a statement on Schedule 13D to report their acquisition of a controlling interest in our company.
Election of Directors
Our company did not have any officers or directors on January 23, 2003. Since Rule 13d-1(e)(2) prohibits the exercise of certain voting rights until the expiration of the tenth day after the filing of a statement on Schedule 13D, Ms. Fonner and Mr. Petersen took no action until February 3, 2003, when they signed written consents pursuant to Section 211(b) of the General Corporation Law of Delaware for the sole purpose of electing themselves to serve as members of our board of directors until the next annual meeting of our stockholders. A meeting of the newly elected board of directors was convened immediately thereafter. At this meeting, the newly elected board voted to:
o Appoint Ms. Fonner chief executive officer and Mr. Petersen chief financial officer of our company
o Pay our delinquent Delaware franchise taxes and revive our Certificate of Incorporation in accordance with Section 312 of the General Corporation Law of Delaware;
o Approve the conversion of the Preferred Stock and Debentures into Common Stock in accordance with our Amended Plan and the Confirmation Order;
o Authorize our officers to negotiate a relationship with a qualified firm of independent certified public accountants to audit our historical financial statements for the periods required by SEC rules;
o Authorize our officers to prepare and file our delinquent Exchange Act reports;
o Authorize the development of a plan to restructure our company as a "public shell" that will endeavor to implement a business combination with a privately held company that wants to be publicly held; and
o Approve arrangements to compensate Ms. Fonner, Mr. Petersen and their respective employees and affiliates for future services to our company.
In connection with the appointment of Ms. Fonner as our chief executive officer, we moved our principal executive office to the offices of Stirling Corporate Services, LLC ("Stirling"), which are located at 1407 North Fort Harrison, Unit F, Clearwater, Florida 33755 [telephone (727) 469-8691]. Ms. Fonner is a principal stockholder of Stirling and serves as its' president.
Revival of Corporate Charter
We paid our delinquent Delaware franchise taxes and filed a Certificate of Revival and Restoration of our Certificate of Incorporation with the Secretary of State of the State of Delaware on February 3, 2003. At the date of this Current Report on Form 8-K, our company is duly incorporated and in good standing under the laws of the State of Delaware.
Documentation of Conversions
The Amended Plan included as an Exhibit to our Current Report on Form 8-K dated December 22, 2000 provided that the Infinity Parties would be entitled to:
o Convert the Preferred Stock into Common Stock in accordance with the terms of our Certificate of Designation of Series B Preferred Stock; and
o Convert the Debentures into Common Stock in accordance with the terms of the Debentures.
Similarly, paragraph 47 of the Confirmation Order provided:
"In accordance with section 1142 of the Bankruptcy Code, upon entry of this Confirmation Order (and subject to the occurrence of the Effective Date), the Debtors, acting by and through their officers, employees and agents, shall be authorized, without any requirement of further action by the stockholders or directors of the Debtors, to take any and all actions necessary or appropriate to implement the Plan, including, without limitation, (i) the filing by the Debtors of the Tamboril Charter, as amended and (ii) the adoption of the Amended Bylaws for Tamboril, heretofore filed with the Court. On the Effective Date, or as soon thereafter as practicable, the Debtors shall file the Tamboril Charter with the Secretary of State of the State of Delaware. On the Effective Date, the matters provided under the Plan involving the capital and corporate structures and governance of the Debtors, including, without limitation, the mergers and dissolutions effectuated pursuant to the Plan, shall be deemed to have occurred and shall be in effect from and after the Effective Date without any requirement of further action by the stockholders or directors of the Debtors. In accordance with section 1142 of the Bankruptcy Code and the Plan, on the Effective Date, Tamboril is authorized to issue the additional Common Stock to each of the Infinity Parties under the terms of the Debentures and the Certificate of Designations of Series B Preferred Stock as contemplated by the Plan."
On January 29, 2003, Ms. Fonner and Mr. Petersen forwarded duly executed Notices of Conversion to our transfer agent. These Notices of Conversion advised the transfer agent that Ms. Fonner and Mr. Petersen intended to exercise their conversion rights with respect to 33,227 shares of our Preferred Stock and $200,000 of Debentures. Since we did not have any directors or officers on that date, the transfer agent held the Notices of Conversion in suspense until Ms. Fonner and Mr. Petersen, acting as newly elected directors of our company, approved the stock issuances on February 3, 2003.
While the original constituent instruments provided that the conversion value of the Preferred Stock and the Debentures would include the stated value of the Preferred Stock, the original principal amount of the Debentures and all accrued dividends, interest and penalties, Ms. Fonner and Mr. Petersen waived all accrued dividends, interest and penalties, and agreed to use the original stated value of the Preferred Stock and the original principal amount of the Debentures for all conversion calculations. Therefore, the conversion value of the Preferred Stock was fixed at $1,661,350 and the conversion value of the Debentures was fixed at $200,000.
Similarly, while the original constituent instruments and the Confirmation Order would have fixed the conversion price of our Common Stock at 77.5% of the average closing "bid" price for the five trading days ended February 14, 2001, Ms. Fonner and Mr. Petersen elected to use 100% of the average closing "asked" price as the basis for the conversion calculations. Therefore, the conversion price of the Common Stock was fixed at $.05 per share, instead of the $.003565 per share price that would have resulted from the use of the original formula.
After giving effect to the foregoing adjustments, 33,227,000 shares of Common Stock were issuable upon conversion of the Preferred Stock and 4,000,000 shares of Common Stock were issuable upon conversion of the Debentures. On February 4, 2003, our transfer agent issued certificates for 18,613,500 shares of Common Stock to each of Ms. Fonner and Mr. Petersen. Immediately thereafter, the proxy granted by Ashley Bolt was revoked.
Security ownership of certain
Beneficial owners and management
We have 50,583,640 shares of Common Stock and no shares of Preferred Stock outstanding on the date of this Current Report. There are no outstanding Debentures, debt securities, warrants, options, contracts or other instruments that obligate our company to issue any additional equity securities in the future. The following table presents certain information regarding the beneficial ownership of our Common Stock by (i) each person known to own more than 5% of such securities, (ii) each of our directors, and (iii) all directors and officers as a group.
Name of Number of Percent
Beneficial Owner Shares Owned of Class
Sally Fonner (1)(4) 20,813,500 41.15%
John Petersen (2)(4) 20,813,500 41.15%
Ashley Bolt & Co. Limited (3) 2,980,042 5.89%
All officers & directors as a group (2 persons) 41,627,000 82.29%
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Total shares issued and outstanding 50,583,640 100.00%
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(1) 1407 North Fort Harrison, Suite F, Clearwater, Florida 33755 (2) Chateau de
Barbereche, Switzerland 1783 Barbereche (3) c/o Loughran & Co., 38 Hertford
Street, London, England W1J 7SG
(4) Ms. Fonner and Mr. Petersen each have sole investment and voting power with
respect to the shares of Common Stock registered in their respective names.
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Ms. Fonner and Mr. Petersen acted as a group in connection with their purchase of a controlling interest in our company. While there are no written agreements that require Ms. Fonner and Mr. Petersen to act in concert, they intend to continue to their cooperation until we have negotiated and closed a suitable business combination.
Since Ms. Fonner and Mr. Petersen collectively own 82.3% of our outstanding common stock, serve as our principal executive officers, and are the only members of our board of directors, they have the corporate authority and voting power to approve all future corporate actions without the consent of any other stockholders.
Plan of Operations
Ms. Fonner and Mr. Petersen, acting as officers and directors of our company, intend to develop a plan to restructure our company as a "public shell" that will endeavor to implement a business combination with a suitable privately held company that has both business history and operating assets and wants to be publicly held. However, our officers and directors will not be able to develop a detailed restructuring plan for our company until we have:
o Prepared audited financial statements for the periods required by applicable SEC rules;
o Filed our delinquent Exchange Act reports for the periods required by SEC rules; and
o Distributed a proxy or information statement to our stockholders that complies with SEC Rules and contains detailed information on the restructuring plan, our future plan of operations and the risks associated with our future business activities.
While a definitive restructuring plan does not yet exist, our officers and directors believe the plan is likely to include the following key structural elements:
o A reverse split of approximately 1 for 3,000 that will reduce the number of shares owned by a majority of our stockholders to a single share;
o A forward split of 100 for 1 that will ensure that each stockholder of record owns a round trading lot of at least 100 shares; and
o A voluntary surrender of shares by Ms. Fonner and Mr. Petersen that will reduce their combined voting and ownership interest to approximately 70% of outstanding shares.
The following table illustrates the anticipated capital structure of our company and the relative voting and ownership interests of our principal classes of stockholders after the implementation of the planned restructuring.
Shares Percent
Stockholder Class Owned of Class
Sally A. Fonner 360,000 34.31%
John L. Petersen 360,000 34.31%
Ashley Bolt & Co. Limited 99,400 9.47%
Public Stockholders 229,800 21.90%
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Total shares issued and outstanding 1,049,200 100.00%
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The values in the foregoing table are not precise and may vary depending on the number of stockholders on the record date for the restructuring, the magnitude of the reverse split and the magnitude of the forward split.
Holders of our common stock will not suffer any dilution of their economic interests or voting power in connection with the implementation of the restructuring. Nevertheless, beneficial owners who hold shares in a brokerage or other nominee account will not receive the same treatment as record owners who hold their shares in registered form. Under Delaware law, all beneficial owners who hold our shares in a "street name" account will be aggregated and treated as a single stockholder for purposes of the restructuring calculations. Accordingly, beneficial owners who have fewer than 3,000 shares will become odd-lot stockholders.
The Depository Trust Company holds approximately 3,090,000 shares of our Common Stock in street name for the benefit of persons who have purchased our shares through brokerage firms and other nominees. We have no detailed information on the relative distribution of these shares among the various beneficial owners.
IN ORDER TO MAXIMIZE THE POTENTIAL BENEFIT OF OUR PLANNED RESTRUCTURING,
WE STRONGLY ENCOURAGE BENEFICIAL OWNERS WHO HOLD OUR SHARES
IN BROKERAGE ACCOUNTS TO PROMPTLY REQUEST PHYSICAL DELIVERY
OF THEIR SHARES IN REGISTERED FORM.
Management Compensation
We will incur a variety of direct operating expenses including the fees charged by our transfer agent and auditors, the costs of communicating with our stockholders and the costs of maintaining an information website for our stockholders and other interested parties. Our company will also be obligated to reimburse our officers and directors for the out-of-pocket expenses they incur on our behalf. There is no limit on the amount of allowable expense reimbursements and our board of directors will have the sole authority to review and approve of the reasonableness of such expenses.
We will agree to pay substantial compensation to our officers and directors. Our agreements with our officers and directors will have initial terms of 18 months, provide for a fixed monthly compensation and provide for a lump sum bonus equal to any unearned compensation if we close a business combination before the expiration of the initial term. Our officers and directors have agreed to defer the bulk of their compensation until we close a business combination. Since Ms. Fonner and Mr. Petersen are principal stockholders, officers and directors of our company, the compensation arrangements summarized below present significant potential for conflicts of interest. Nevertheless, Ms. Fonner and Mr. Petersen believe the compensation arrangements are fair and reasonable in light of our limited resources, the speculative nature of our proposed activities and the fact that we will not be able to pay the deferred portion of the compensation unless we negotiate a business combination with a target that is willing to pay the accrued amounts.
The following table summarizes the compensation we will agree to pay to Ms. Fonner, Mr. Petersen and their respective employees and affiliates.
Summary of Cash Compensation and Other Payments
Monthly Annual 18 Month
Amount Amount Total (1)
Sally A. Fonner
Administrative fees (2)(3) $5,000 $60,000 $90,000
Officer's and Directors' fees (5) $7,500 $90,000 $135,000
Fees to employees (2)(5) $2,500 $30,000 $45,000
Out-of-pocket expenses actual actual actual
John L. Petersen
Officer's and Directors' fees (5) $7,500 $90,000 $135,000
Legal fees for preparing delinquent SEC reports (3) $80,000
Legal fees for future SEC reports (5) $5,000 $60,000 $90,000
Fees to relatives (4)(5) $2,500 $30,000 $45,000
Out-of-pocket expenses actual actual actual
Totals $30,000 $360,000 $620,000
(1) Assumes that we will require a period of 18 months to identify a target
and close a business combination. (2) Stirling will provide all necessary office
facilities and equipment, manage our day-to-day operations and manage our
accounting and reporting functions. In addition, an employee of Stirling will be
paid $2,500 per month for services rendered to our company.
(3) We will pay up to 50% of Ms. Fonner's administrative fees and up to 50%
of Mr. Petersen's legal fees for preparing our delinquent Exchange Act reports
in cash. The balance of those fees will be accrued and carried as a deferred
compensation liability until we close a business combination.
(4) Mr. Petersen's wife, Rachel A. Fefer, will be paid $2,500 per month for
serving as our corporate secretary. (5) All other fees payable to Ms. Fonner,
Mr. Petersen and their respective employees, relatives and affiliates will be
accrued and carried as a deferred compensation liability until we close a
business combination.
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With the exception of their accrued compensation, Ms. Fonner, Mr. Petersen and their respective employees, relatives and affiliates will not receive any direct or indirect compensation from a target, or any officer, director, affiliate or associate of a target in connection with a business combination. We are, however, unlikely to enter into a business combination with a target that is unwilling to pay a significant portion of the deferred compensation liabilities. While a target may decide to retain Ms. Fonner, Mr. Petersen or their respective employees, relatives and affiliates to provide future services for the combined companies, Ms. Fonner, Mr. Petersen will not require a target to enter into such an agreement as condition of a proposed business combination.
Executive Officers and Directors
Sally A. Fonner, age 54, is a principal stockholder of our company and has served as chief executive officer and a member of our board of directors since February 3, 2003. It is anticipated that Ms. Fonner will continue to serve as an officer and director for the foreseeable future. Ms. Fonner is not a full-time employee of our company and is not required to devote any specific amount of time to our business.
Since December of 2000, Ms. Fonner has served as the president of Win or Lose Acquisition Corporation, a blank check company that was organized for the purpose of conducting a registered public offering of securities pursuant to SEC Rule 419 and subsequently engaging in a business combination with a private company that wants to become publicly held. Ms. Fonner also serves as the president and sole director of The Enchanted Village, Inc., positions she has held since June of 2002. Enchanted Village is an inactive and insolvent public company that is attempting to restructure its affairs and then pursue an acquisition strategy as a public shell.
Ms. Fonner graduated from Stephens University in 1969 with a Bachelor of Arts in Social Systems. After a stint in the private sector, she returned to further her education and earned her MBA degree from the Executive Program of the University of Illinois in 1979. During the past five years Ms. Fonner has served as an officer and director and managed the business affairs of five other public shells that ultimately engaged in business combination transactions with privately held companies. The following table identifies the five public shells that were managed by Ms. Fonner during the last five years and provides summary information on the time periods for which she served as an officer and director.
Company Name Term as an officer Term as a director
eNote.com, Inc. June 1998 to April 1999 June 1998 to November 1999
Telemetrix, Inc. July 1997 to April 1999 July 1997 to April 1999
Dupont Direct Financial Holdings, Inc. June 1998 to April 1999 June 1998 to March 2000
Liberty Group Holdings, Inc. March 1997 to November 1999 March 1997 to December 1999
Yifan Communications, Inc. March 2000 to July 2000 March 2000 to March 2001
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Ms. Fonner is not an officer, director or principal stockholder of any other company with a class of securities registered under section 12 of the Exchange Act or subject to the requirements of section 15(d) thereof.
John L. Petersen, age 51, is a principal stockholder of our company and has served as chief financial officer and a member of our board of directors since February 3, 2003. It is anticipated that Mr. Petersen will continue to serve as an officer and director for the foreseeable future. Mr. Petersen is not a full-time employee of our company and is not required to devote any specific amount of time to our business.
Mr. Petersen has been principally engaged in the practice of law for 22 years and has been a resident of Barbereche, Switzerland since January 1998. He is a member of the Texas Bar Association and practices in the areas of securities and corporate law where he focuses on the needs of entrepreneurial companies. Since April 1999, Mr. Petersen has been a partner in the law firm of Petersen & Fefer, Barbereche, Switzerland. From January 1995 to April 1999, he was a self-employed solo practitioner in Houston, Texas and Barbereche, Switzerland. Mr. Petersen is a 1976 graduate of the College of Business Administration at Arizona State University and a 1979 graduate of the Notre Dame Law School. Mr. Petersen was admitted to the State Bar of Texas in May 1980 and received his license to practice as a Certified Public Accountant in March 1981.
Mr. Petersen also serves as an officer and director of Win or Lose Acquisition Corporation, positions he has held since December of 2000. Mr. Petersen is not an officer, director or principal stockholder of any other company with a class of securities registered under section 12 of the Exchange Act or subject to the requirements of section 15(d) thereof.
ITEM 2.
ACQUISITION OR DISPOSITION OF ASSETS.
Not Applicable
Item 3.
Bankruptcy or Receivership.
Not Applicable
Item 4.
Changes in Registrant's Certifying Accountant.
Not Applicable
Item 5.
Other Events AND REGULATION FD DISCLOSURE.
Not Applicable
Item 6.
Resignations of REGISTRANT'S Directors.
Not Applicable
ITEM 7.
Financial Statements and Exhibits.
(a) Financial statements of business acquired.
Not Applicable
(b) Pro forma financial information.
Not Applicable
(c) Exhibits.
2.1 Amended Plan of Reorganization for Debtors Under Chapter 11 of
the United States Bankruptcy Code +
2.2 Purchase and Sale Agreement dated January 23, 2003 between Ashley
Bolt & Co. Limited, Sally A.Fonner and John L. Petersen ++
3.1 Amended and Restated Certificate of Incorporation of Tamboril
Cigar Company dated February 13, 2001
4.1 Convertible Debenture and Convertible Preferred Stock Purchase
Agreement dated as of September 22, 1997 among Tamboril Cigar
Company, Infinity Emerging Opportunities Limited, Summit Capital
Limited and Glacier Capital Limited, together with all Schedules
and Exhibits thereto +++
4.2 Form of 8% Convertible Debenture +++
4.3 Certificate of Designation for Series B Preferred Stock +++
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+ Incorporated by reference from our Current Report on Form 8-K dated December 22, 2000. ++ Incorporated by reference from the Schedule 13D filed by Ms. Fonner and Mr. Petersen on January 23, 2003. +++ Incorporated by reference from our Current Report on Form 8-K dated September 23, 1997.
Item 8.
Change in Fiscal Year.
Not Applicable
Item 9.
REGULATION FD DISCLOSURE.
Not Applicable
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Tamboril Cigar Company has caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
TAMBORIL CIGAR COMPANY
February 7, 2003
By: /s/ Sally A. Fonner
-----------------------------------------
Sally A. Fonner, chief executive officer
By: /s/ John L. Petersen
-----------------------------------------
John L. Petersen, chief financial officer
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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TAMBORIL CIGAR COMPANY
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
TAMBORIL CIGAR COMPANY, a corporation organized and existing under the laws of the State of Delaware, for the purpose of amending and restating its Certificate of Incorporation, hereby certifies as follows:
FIRST: The name of the corporation is TAMBORIL CIGAR COMPANY (the "Corporation"). The Corporation was originally organized under the General Corporation Law of the State of Delaware by filing a Certificate of Incorporation with the Secretary of State on January 9, 1997;
SECOND: That the Certificate of Incorporation be amended and restated in its entirety as follows:
FIRST: The name of the corporation (hereinafter called the "Corporation") is:
Tamboril Cigar Company
SECOND: The address, including street, number, city, and county, of the registered office of the Corporation in the State of Delaware is 615 South Dupont Highway, City of Dover 19901, County of Kent; and the name of the registered agent of the Corporation in the State of Delaware at such address is National Corporate Research, Ltd.
THIRD: The nature of the business and the purpose to be conducted and promoted by the Corporation, which shall be in addition to the authority of the Corporation to conduct any lawful business, to promote any lawful purpose, and to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 500,000,000 shares of which 400,000,000 shares are designated as common stock, par value $.0001 per share (the "Common Stock") and 100,000,000 shares of which are designated as preferred stock, par value $.0001 per share (the "Preferred Stock").
(a) The Board of Directors of the Corporation is hereby authorized to, by any resolution or resolutions duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware and the By-Laws of the Corporation, authorize the issuance of any or all of the preferred stock in any number of classes or series within such classes and in the resolution or resolutions authorizing such issuance, to set all terms of such preferred stock of any class or series, including, without limitation:
(1) the designation of such class or series, the number of shares to constitute such class or series, whether the shares shall be of a stated par value or no par value, and the stated value thereof if different from the par value thereof;
(2) the dividends, if any, payable on such class or series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends shall bear to the dividends payable on any shares of stock of any other class or any other class or series of preferred stock;
(3) whether the shares of such class or series shall be subject to redemption by the Corporation, and, if so, the times, prices and other conditions of such redemption;
(4) the amount or amounts payable upon shares of such class or series upon, and the rights of the holders of such class or series in, the voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;
(5) whether the shares of such class or series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such class or series for retirement or other Corporation purposes and the terms and provisions relating to the operation thereof;
(6) whether the shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or any other series of preferred stock or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
(7) the conditions or restrictions, if any, upon the creation of indebtedness of the Corporation or upon the issue of any additional stock, including additional shares of such class or series or of any other class or series of Preferred Stock or of any other class; and
(8) any other powers, preferences and relative, participating, options and other special rights, and any qualifications, limitations and restrictions, thereof.
(b) The powers, preferences and relative, participating optional and other special rights of each class or series of preferred stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. All shares of any one series of preferred stock shall be identical in all respects with all other shares of such series, except that shares of any one series issued at different times may differ as to the dates from which dividends thereof shall be cumulative.
(c) As required pursuant to section 1123(a)(6) of title 11 of the United States Code, all shares of Common Stock and Preferred Stock issued and to be issued are and must be voting securities and, as to all Common Stock and Preferred Stock, voting power must be appropriately distributed by the Board of Directors of the Corporation on a proportional one-vote-per-share basis.
(d) The Corporation shall not have the power or authority to issue any shares of capital stock without voting power.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of (S)291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of (S)279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
SEVENTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation, and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided:
1. The management for the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot.
2. After the original or other Bylaws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of (S)109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of (S)141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this certificate of incorporation.
3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of (S)242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class.
EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of (S)102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
NINTH: The Corporation shall, to the fullest extent permitted by the provisions of (S)145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockbrokers or disinterested directors or otherwise both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
TENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this certificate of incorporation are granted subject to the provisions of this Article TENTH.
Signed on February 13, 2001
/s/ Alan L. Goldberg Alan L. Goldberg, President |