U.S.
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-SB
GENERAL
FORM FOR REGISTRATION OF SECURITIES OF SMALL
BUSINESS
ISSUERS
UNDER
SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission
file number ______
Zeta
Acquisition Corp. II
(Name
of
Small Business Issuer in its charter)
|
Delaware
|
61-1547850
|
|
|
(State
or other jurisdiction of
incorporation
or formation)
|
(I.R.S.
employer
identification
number)
|
|
c/o
Equity Dynamics Inc.
666
Walnut Street, Suite 2116
Des
Moines, Iowa
|
50309
|
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Issuer's
telephone number: (515)
244-5746
Facsimile
number: (515)
244-2346
Copies
to:
David
N.
Feldman, Esq.
Feldman
Weinstein & Smith LLP
420
Lexington Avenue, Suite 2620
New
York,
NY 10170
(212)
869-7000
Securities
to be registered under Section 12(b) of the Act: none
Securities
to be registered under Section 12(g) of the Exchange Act:
|
Title
of each class
|
Name
of Exchange on which to be so
registered
each class is to be registered
|
|
Common
Stock, $.0001
|
N/A
|
EXPLANATORY
NOTE
We
are
filing this General Form for Registration of Securities on Form 10-SB to
register our common stock, pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”).
Once
this
registration statement is deemed effective, we will be subject to the
requirements of Regulation 13A under the Exchange Act, which will require us
to
file annual reports on Form 10-KSB, quarterly reports on Form 10-QSB, and
current reports on Form 8-K, and we will be required to comply with all other
obligations of the Exchange Act applicable to issuers filing registration
statements pursuant to Section 12(g) of the Exchange Act.
Unless
otherwise noted, references in this registration statement to the “Company,”
“we,” “our” or “us” means Zeta Acquisition Corp. II. Our principal
place of business is located at c/o Equity Dynamics Inc., 666
Walnut Street,
Suite
2116,
Des
Moines, Iowa 50309.
Our
telephone number is (515)
244-5746.
FORWARD
LOOKING STATEMENTS
There
are
statements in this registration statement that are not historical facts. These
“forward-looking statements” can be identified by use of terminology such as
“believe,” “hope,” “may,” “anticipate,” “should,” “intend,” “plan,” “will,”
“expect,” “estimate,” “project,” “positioned,” “strategy” and similar
expressions. You should be aware that these forward-looking statements are
subject to risks and uncertainties that are beyond our control. For a
discussion of these risks, you should read this entire Registration Statement
carefully, especially the risks discussed under “Risk Factors.” Although
management believes that the assumptions underlying the forward looking
statements included in this Registration Statement are reasonable, they do
not
guarantee our future performance, and actual results could differ from those
contemplated by these forward looking statements. The assumptions used for
purposes of the forward-looking statements specified in the following
information represent estimates of future events and are subject to uncertainty
as to possible changes in economic, legislative, industry, and other
circumstances. As a result, the identification and interpretation of data and
other information and their use in developing and selecting assumptions from
and
among reasonable alternatives require the exercise of judgment. To the extent
that the assumed events do not occur, the outcome may vary substantially from
anticipated or projected results, and, accordingly, no opinion is expressed
on
the achievability of those forward-looking statements. In the light
of these risks and uncertainties, there can be no assurance that the results
and
events contemplated by the forward-looking statements contained in this
Registration Statement will in fact transpire. You are cautioned not to place
undue reliance on these forward-looking statements, which speak only as of
their
dates. We do not undertake any obligation to update or revise any
forward-looking statements.
2
PART
I
ITEM
1.
DESCRIPTION OF BUSINESS.
(a)
Business Development
Zeta
Acquisition Corp. II (“we”, “us”, “our”, the "Company" or the "Registrant") was
incorporated in the State of Delaware on November 16, 2007. Since inception,
the
Company has been engaged in organizational efforts and obtaining initial
financing. The Company was formed as a vehicle to pursue a business combination
and has made no efforts to identify a possible business combination. As a
result, the Company has not conducted negotiations or entered into a letter
of
intent concerning any target business. The business purpose of the Company
is to
seek the acquisition of, or merger with, an existing company. The Company
selected December 31 as its fiscal year end.
(b)
Business of Issuer
The
Company, based on proposed business activities, is a "blank check" company.
The
U.S. Securities and Exchange Commission (the “SEC”) defines those companies as
"any development stage company that is issuing a penny stock, within the meaning
of Section 3 (a)(51) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and that has no specific business plan or purpose, or has
indicated that its business plan is to merge with an unidentified company or
companies." Under SEC Rule 12b-2 under the Exchange Act, the Company also
qualifies as a “shell company,” because it has no or nominal assets (other than
cash) and no or nominal operations. Many states have enacted statutes, rules
and
regulations limiting the sale of securities of "blank check" companies in their
respective jurisdictions. Management does not intend to undertake any efforts
to
cause a market to develop in our securities, either debt or equity, until we
have successfully concluded a business combination. The Company intends to
comply with the periodic reporting requirements of the Exchange Act for so
long
as it is subject to those requirements.
The
Company was organized as a vehicle to investigate and, if such investigation
warrants, acquire a target company or business seeking the perceived advantages
of being a publicly held corporation. The Company’s principal business objective
for the next 12 months and beyond such time will be to achieve long-term growth
potential through a combination with a business rather than immediate,
short-term earnings. The Company will not restrict its potential candidate
target companies to any specific business, industry or geographical location
and, thus, may acquire any type of business.
The
analysis of new business opportunities will be undertaken by or under the
supervision of John Pappajohn and Matthew P. Kinley, the officers and directors
of the Registrant. As of this date the Company has not entered into any
definitive agreement with any party, nor have there been any specific
discussions with any potential business combination candidate regarding business
opportunities for the Company. The Registrant has unrestricted flexibility
in
seeking, analyzing and participating in potential business opportunities. In
its
efforts to analyze potential acquisition targets, the Registrant will consider
the following kinds of factors:
(a)
Potential
for growth, indicated by new technology, anticipated market expansion or new
products;
(b) Competitive
position as compared to other firms of similar size and experience within the
industry segment as well as within the industry as a whole;
(c)
Strength
and diversity of management, either in place or scheduled for
recruitment;
3
(d)
Capital
requirements and anticipated availability of required funds, to be provided
by
the Registrant or from operations, through the sale of additional securities,
through joint ventures or similar arrangements or from other
sources;
(e)
The
cost
of participation by the Registrant as compared to the perceived tangible and
intangible values and potentials;
(f)
The
extent to which the business opportunity can be advanced;
(g)
The
accessibility of required management expertise, personnel, raw materials,
services, professional assistance and other required items; and
(h)
Other
relevant factors.
In
applying the foregoing criteria, no one of which will be controlling, management
will attempt to analyze all factors and circumstances and make a determination
based upon reasonable investigative measures and available data. Potentially
available business opportunities may occur in many different industries, and
at
various stages of development, all of which will make the task of comparative
investigation and analysis of such business opportunities extremely difficult
and complex. Due to the Registrant's limited capital available for
investigation, the Registrant may not discover or adequately evaluate adverse
facts about the opportunity to be acquired.
FORM
OF
ACQUISITION
The
manner in which the Registrant participates in an opportunity will depend upon
the nature of the opportunity, the respective needs and desires of the
Registrant and the promoters of the opportunity, and the relative negotiating
strength of the Registrant and such promoters.
It
is
likely that the Registrant will acquire its participation in a business
opportunity through the issuance of common stock or other securities of the
Registrant. Although the terms of any such transaction cannot be predicted,
it
should be noted that in certain circumstances the criteria for determining
whether or not an acquisition is a so-called "tax free" reorganization under
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code")
depends upon whether the owners of the acquired business own 80% or more of
the
voting stock of the surviving entity. If a transaction were structured to take
advantage of these provisions rather than other "tax free" provisions provided
under the Code, all prior stockholders would in such circumstances retain 20%
or
less of the total issued and outstanding shares of the surviving entity. Under
other circumstances, depending upon the relative negotiating strength of the
parties, prior stockholders may retain substantially less than 20% of the total
issued and outstanding shares of the surviving entity. This could result in
substantial additional dilution to the equity of those who were stockholders
of
the Registrant prior to such reorganization.
The
present stockholders of the Registrant will likely not have control of a
majority of the voting securities of the Registrant following a reorganization
transaction. As part of such a transaction, all or a majority of the
Registrant's directors may resign and one or more new directors may be appointed
without any vote by stockholders.
In
the
case of an acquisition, the transaction may be accomplished upon the sole
determination of management without any vote or approval by stockholders. In
the
case of a statutory merger or consolidation directly involving the Company,
it
will likely be necessary to call a stockholders' meeting and obtain the approval
of the holders of a majority of the outstanding securities. The necessity to
obtain such stockholder approval may result in delay and additional expense
in
the consummation of any proposed transaction and will also give rise to certain
appraisal rights to dissenting stockholders. Most likely, management will seek
to structure any such transaction so as not to require stockholder
approval.
4
It
is
anticipated that the investigation of specific business opportunities and the
negotiation, drafting and execution of relevant agreements, disclosure documents
and other instruments will require substantial management time and attention
and
substantial cost for accountants, attorneys and others. If a decision is made
not to participate in a specific business opportunity, the costs theretofore
incurred in the related investigation might not be recoverable. Furthermore,
even if an agreement is reached for the participation in a specific business
opportunity, the failure to consummate that transaction may result in the loss
to the Registrant of the related costs incurred.
We
presently have no employees apart from our management. Our officers and
directors are engaged in outside business activities and anticipate that they
will devote to our business very limited time until the acquisition of a
successful business opportunity has been identified. We expect no significant
changes in the number of our employees other than such changes, if any, incident
to a business combination.
(c)
Reports to security holders.
(1)
The
Company is not required to deliver an annual report to security holders and
at
this time does not anticipate the distribution of such a report.
(2)
The
Company will file reports with the SEC. The Company will be a reporting company
and will comply with the requirements of the Exchange Act.
(3)
The
public may read and copy any materials the Company files with the SEC in the
SEC's Public Reference Section, Room 1580, 100 F Street N.E., Washington, D.C.
20549. The public may obtain information on the operation of the Public
Reference Section by calling the SEC at 1-800-SEC-0330. Additionally, the SEC
maintains an Internet site that contains reports, proxy and information
statements, and other information regarding issuers that file electronically
with the SEC, which can be found at http://www.sec.gov.
ITEM
2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
The
Company was organized as a vehicle to investigate and, if such investigation
warrants, acquire a target company or business seeking the perceived advantages
of being a publicly held corporation. Our principal business objective for
the
next 12 months and beyond such time will be to achieve long-term growth
potential through a combination with a business rather than immediate,
short-term earnings. The Company will not restrict our potential candidate
target companies to any specific business, industry or geographical location
and, thus, may acquire any type of business.
The
Company does not currently engage in any business activities that provide cash
flow. The costs of investigating and analyzing business combinations for the
next 12 months and beyond such time will be paid with money in our treasury
or
with additional amounts, as necessary, to be loaned to or invested in us by
our
stockholders, management or other investors.
During
the next 12 months we anticipate incurring costs related to:
|
(i)
|
filing
of Exchange Act reports, and
|
|
(ii)
|
consummating
an
acquisition.
|
5
We
believe we will be able to meet these costs through use of funds in our treasury
and additional amounts, as necessary, to be loaned by or invested in us by
our
stockholders, management or other investors.
The
Company is in the development stage and has not earned any revenues from
operations to date. The Company is currently devoting its efforts to locating
merger candidates. The Company's ability to continue is dependent upon our
ability to develop additional sources of capital, locate and complete a merger
with another company, and ultimately, achieve profitable
operations.
The
Company may consider a business which has recently commenced operations, is
a
developing company in need of additional funds for expansion into new products
or markets, is seeking to develop a new product or service, or is an established
business which may be experiencing financial or operating difficulties and
is in
need of additional capital. In the alternative, a business combination may
involve the acquisition of, or merger with, a company which does not need
substantial additional capital, but which desires to establish a public trading
market for its shares, while avoiding, among other things, the time delays,
significant expense, and loss of voting control which may occur in a public
offering.
Our
officers and directors have not had any preliminary contact or discussions
with
any representative of any other entity regarding a business combination with
us.
Any target business that is selected may be a financially unstable company
or an
entity in its early stages of development or growth, including entities without
established records of sales or earnings. In that event, we will be subject
to
numerous risks inherent in the business and operations of financially unstable
and early stage or potential emerging growth companies. In addition, we may
effect a business combination with an entity in an industry characterized by
a
high level of risk, and, although our management will endeavor to evaluate
the
risks inherent in a particular target business, there can be no assurance that
we will properly ascertain or assess all significant risks.
Our
management anticipates that it will likely be able to effect only one business
combination, due primarily to our limited financing and the dilution of interest
for present and prospective stockholders, which is likely to occur as a result
of our management’s plan to offer a controlling interest to a target business in
order to achieve a tax-free reorganization. This lack of diversification should
be considered a substantial risk in investing in us, because it will not permit
us to offset potential losses from one venture against gains from
another.
The
Company anticipates that the selection of a business combination will be complex
and extremely risky. Because of general economic conditions, rapid technological
advances being made in some industries and shortages of available capital,
our
management believes that there are numerous firms seeking even the limited
additional capital which we will have and/or the perceived benefits of becoming
a publicly traded corporation. Such perceived benefits of becoming a publicly
traded corporation include, among other things, facilitating or improving the
terms on which additional equity financing may be obtained, providing liquidity
for the principals of and investors in a business, creating a means for
providing incentive stock options or similar benefits to key employees, and
offering greater flexibility in structuring acquisitions, joint ventures and
the
like through the issuance of stock. Potentially available business combinations
may occur in many different industries and at various stages of development,
all
of which will make the task of comparative investigation and analysis of such
business opportunities extremely difficult and complex.
We
do not
currently intend to retain any entity to act as a “finder” to identify and
analyze the merits of potential target businesses.
6
We
have
not entered into any off-balance sheet arrangements that have or are reasonably
likely to have a current or future effect on our financial condition, changes
in
financial condition, revenues or expenses, results of operations, liquidity,
capital expenditures or capital resources and would be considered material
to
investors.
RISK
FACTORS
An
investment in the Company is highly speculative in nature and involves an
extremely high degree of risk.
There
may be conflicts of interest between our management and the non-management
stockholders of the Company.
Conflicts
of interest create the risk that management may have an incentive to act
adversely to the interests of the stockholders of the Company. A conflict
of interest may arise between our management's personal pecuniary interest
and
its fiduciary duty to our stockholders. In addition, management is currently
involved with other blank check companies and conflicts in the pursuit of
business combinations with such other blank check companies with which they
and
other members of our management are, and may in the future be, affiliated with
may arise. If we and the other blank check companies that our management is
affiliated with desire to take advantage of the same opportunity, then those
members of management that are affiliated with both companies would abstain
from
voting upon the opportunity. In the event of identical officers and directors,
members of management, such individuals will arbitrarily determine the company
that will be entitled to proceed with the proposed transaction.
Our
business is difficult to evaluate because we have no operating
history.
As
the
Company has no operating history or revenue and only minimal assets, there
is a
risk that we will be unable to consummate a business combination. The Company
has had no recent operating history nor any revenues or earnings from operations
since inception. We have no significant assets or financial resources. We will,
in all likelihood, sustain operating expenses without corresponding revenues,
at
least until the consummation of a business combination. This may result in
our
incurring a net operating loss that will increase continuously until we can
consummate a business combination with a profitable business opportunity. We
cannot assure you that we can identify a suitable business opportunity and
consummate a business combination.
There
is competition for those private companies suitable for a merger transaction
of
the type contemplated by management.
The
Company is in a highly competitive market for a small number of business
opportunities which could reduce the likelihood of consummating a successful
business combination. We are and will continue to be an insignificant
participant in the business of seeking mergers with, joint ventures with and
acquisitions of small private and public entities. A large number of established
and well-financed entities, including small public companies and venture capital
firms, are active in mergers and acquisitions of companies that may be desirable
target candidates for us. Nearly all these entities have significantly greater
financial resources, technical expertise and managerial capabilities than we
do;
consequently, we will be at a competitive disadvantage in identifying possible
business opportunities and successfully completing a business combination.
These
competitive factors may reduce the likelihood of our identifying and
consummating a successful business combination.
7
We
are a development stage company, and our future success is highly dependent
on
the ability of management to locate and attract a suitable
acquisition.
We
were
incorporated in November 2007 and are considered to be in the development stage.
The nature of our operations is highly speculative, and there is a consequent
risk of loss of your investment. The success of our plan of operation will
depend to a great extent on the operations, financial condition and management
of the identified business opportunity. While management intends to seek
business combination(s) with entities having established operating histories,
we
cannot assure you that we will be successful in locating candidates meeting
that
criterion. In the event we complete a business combination, the success of
our
operations may be dependent upon management of the successor firm or venture
partner firm and numerous other factors beyond our control.
The
Company has no existing agreement for a business combination or other
transaction.
We
have
no arrangement, agreement or understanding with respect to engaging in a merger
with, joint venture with or acquisition of, a private or public entity. No
assurances can be given that we will successfully identify and evaluate suitable
business opportunities or that we will conclude a business combination.
Management has not identified any particular industry or specific business
within an industry for evaluation. We cannot guarantee that we will be able
to
negotiate a business combination on favorable terms, and there is consequently
a
risk that funds allocated to the purchase of our shares will not be invested
in
a company with active business operations.
Management
intends to devote only a limited amount of time to seeking a target company
which may adversely impact our ability to identify a suitable acquisition
candidate.
While
seeking a business combination, management anticipates devoting very limited
time to the Company's affairs. Our officers have not entered into written
employment agreements with us and are not expected to do so in the foreseeable
future. This limited commitment may adversely impact our ability to identify
and
consummate a successful business combination.
The
time and cost of preparing a private company to become a public reporting
company may preclude us from entering into a merger or acquisition with the
most
attractive private companies.
Target
companies that fail to comply with SEC reporting requirements may delay or
preclude acquisition. Sections 13 and 15(d) of the Exchange Act require
reporting companies to provide certain information about significant
acquisitions, including certified financial statements for the company acquired,
covering one, two, or three years, depending on the relative size of the
acquisition. The time and additional costs that may be incurred by some target
entities to prepare these statements may significantly delay or essentially
preclude consummation of an acquisition. Otherwise suitable acquisition
prospects that do not have or are unable to obtain the required audited
statements may be inappropriate for acquisition so long as the reporting
requirements of the Exchange Act are applicable.
The
Company may be subject to further government regulation which would adversely
affect our operations.
Although
we will be subject to the reporting requirements under the Exchange Act,
management believes we will not be subject to regulation under the Investment
Company Act of 1940, as amended (the “Investment Company Act”), since we will
not be engaged in the business of investing or trading in securities. If we
engage in business combinations which result in our holding passive investment
interests in a number of entities, we could be subject to regulation under
the
Investment Company Act. If so, we would be required to register as an investment
company and could be expected to incur significant registration and compliance
costs. We have obtained no formal determination from the SEC as to our status
under the Investment Company Act and, consequently, violation of the Investment
Company Act could subject us to material adverse consequences.
8
Any
potential acquisition or merger with a foreign company may subject us to
additional risks.
If
we
enter into a business combination with a foreign company, we will be subject
to
risks inherent in business operations outside of the United States. These risks
include, for example, currency fluctuations, regulatory problems, punitive
tariffs, unstable local tax policies, trade embargoes, risks related to shipment
of raw materials and finished goods across national borders and cultural and
language differences. Foreign economies may differ favorably or unfavorably
from
the United States economy in growth of gross national product, rate of
inflation, market development, rate of savings, and capital investment, resource
self-sufficiency and balance of payments positions, and in other
respects.
There
is currently no trading market for our common stock, and liquidity of shares
of
our common stock is limited.
Our
shares of common stock are not registered under the securities laws of any
state
or other jurisdiction, and accordingly there is no public trading market for
our
common stock. Further, no public trading market is expected to develop in the
foreseeable future unless and until the Company completes a business combination
with an operating business and the Company thereafter files a registration
statement under the Securities Act of 1933, as amended (the “Securities Act”).
Therefore, outstanding shares of our common stock cannot be offered, sold,
pledged or otherwise transferred unless subsequently registered pursuant to,
or
exempt from registration under, the Securities Act and any other applicable
federal or state securities laws or regulations. Shares
of
our common stock cannot be sold under the exemptions from registration provided
by Rule 144 under or Section 4(1) of the Securities Act (“Rule 144”), in
accordance with the letter from Richard K. Wulff, Chief of the Office of Small
Business Policy of the Securities and Exchange Commission’s Division of
Corporation Finance, to Ken Worm of NASD Regulation, dated January 21, 2000
(the
“Wulff Letter”). The Wulff Letter provides that certain private transfers of the
shares of common stock also may be prohibited without registration under federal
securities laws. The SEC has announced that it is changing certain aspects
of
the Wulff Letter, and such changes shall apply retroactively to our
stockholders. Effective February 15, 2008, all holders of shares of common
stock
of a “shell company” will be permitted to sell their shares of common stock
under Rule 144, subject to certain restrictions, starting one year after (i)
the
completion of a business combination with a private company in a reverse merger
or reverse takeover transaction after which the company would cease to be a
“shell company” (as defined in Rule 12b-2 under the Exchange Act) and (ii) the
disclosure of certain information on a Current Report on Form 8-K within four
business days thereafter.
Compliance
with the criteria for securing exemptions under federal securities laws and
the
securities laws of the various states is extremely complex, especially in
respect of those exemptions affording flexibility and the elimination of trading
restrictions in respect of securities received in exempt transactions and
subsequently disposed of without registration under the Securities Act or state
securities laws.
There
are issues impacting liquidity of our securities with respect to the SEC’s
review of a future resale registration statement.
Since
our
shares of common stock issued prior to a business combination or reverse merger
cannot currently, nor will they for a considerable period of time after we
complete a business combination, be available to be offered, sold, pledged
or
otherwise transferred without being registered pursuant to the Securities Act,
we will likely file a resale registration statement on Form S-1, or some other
available form, to register for resale such shares of common stock. We cannot
control this future registration process in all respects as some matters are
outside our control. Even if we are successful in causing the effectiveness
of
the resale registration statement, there can be no assurances that the
occurrence of subsequent events may not preclude our ability to maintain the
effectiveness of the registration statement. Any of the foregoing items could
have adverse effects on the liquidity of our shares of common stock.
9
In
addition, the SEC has recently disclosed that it has developed internal informal
guidelines concerning the use of a resale registration statement to register
the
securities issued to certain investors in private investment in public equity
(PIPE) transactions, where the issuer has a market capitalization of less than
$75 million and, in general, does not qualify to file a Registration Statement
on Form S-3 to register its securities. The SEC has taken the position that
these smaller issuers may not be able to rely on Rule 415 under the Securities
Act (“Rule 415”), which generally permits the offer and sale of securities on a
continued or delayed basis over a period of time, but instead would require
that
the issuer offer and sell such securities in a direct or "primary" public
offering, at a fixed price, if the facts and circumstances are such that the
SEC
believes the investors seeking to have their shares registered are underwriters
and/or affiliates of the issuer. It appears that the SEC in most cases will
permit a registration for resale of up to one third of the total number of
shares of common stock then currently owned by persons who are not affiliates
of
such issuer and, in some cases, a larger percentage depending on the facts
and
circumstances. Staff members also have indicated that an issuer in most cases
will have to wait until the later of six months after effectiveness of the
first
registration or such time as substantially all securities registered in the
first registration are sold before filing a subsequent registration on behalf
of
the same investors. Since, following a reverse merger or business combination,
we may have little or no tradable shares of common stock, it is unclear as
to
how many, if any, shares of common stock the SEC will permit us to register
for
resale, but SEC staff members have indicated a willingness to consider a higher
percentage in connection with registrations following reverse mergers with
shell
companies such as the Company. The SEC may require as a condition to the
declaration of effectiveness of a resale registration statement that we reduce
or “cut back” the number of shares of common stock to be registered in such
registration statement. The result of the foregoing is that a stockholder’s
liquidity in our common stock may be adversely affected in the event the SEC
requires a cut back of the securities as a condition to allow the Company to
rely on Rule 415 with respect to a resale registration statement, or, if the
SEC
requires us to file a primary registration statement.
We
have never paid dividends on our common stock.
We
have
never paid dividends on our common stock and do not presently intend to pay
any
dividends in the foreseeable future. We anticipate that any funds available
for
payment of dividends will be re-invested into the Company to further its
business strategy.
The
Company may be subject to certain tax consequences in our business, which may
increase our cost of doing business.
We
may
not be able to structure our acquisition to result in tax-free treatment for
the
companies or their stockholders, which could deter third parties from entering
into certain business combinations with us or result in being taxed on
consideration received in a transaction. Currently, a transaction may be
structured so as to result in tax-free treatment to both companies, as
prescribed by various federal and state tax provisions. We intend to structure
any business combination so as to minimize the federal and state tax
consequences to both us and the target entity; however, we cannot guarantee
that
the business combination will meet the statutory requirements of a tax-free
reorganization or that the parties will obtain the intended tax-free treatment
upon a transfer of stock or assets. A non-qualifying reorganization could result
in the imposition of both federal and state taxes that may have an adverse
effect on both parties to the transaction.
10
Our
business will have no revenue unless and until we merge with or acquire an
operating business.
We
are a
development stage company and have had no revenue from operations. We may not
realize any revenue unless and until we successfully merge with or acquire
an
operating business.
The
Company intends to issue more shares in a merger or acquisition, which will
result in substantial dilution.
Our
Certificate of Incorporation authorizes the issuance of a maximum of
100,000,000 shares of common stock and a maximum of 10,000,000 shares of
preferred stock. Any merger or acquisition effected by us may result in the
issuance of additional securities without stockholder approval and may result
in
substantial dilution in the percentage of our common stock held by our then
existing stockholders. Moreover, the common stock issued in any such merger
or
acquisition transaction may be valued on an arbitrary or non-arm’s-length basis
by our management, resulting in an additional reduction in the percentage of
common stock held by our then existing stockholders. Our board of directors
(the
“Board
of
Directors”) has the power to issue any or all of such authorized but unissued
shares without stockholder approval. To the extent that additional shares of
common stock or preferred stock are issued in connection with a business
combination or otherwise, dilution to the interests of our stockholders will
occur and the rights of the holders of common stock might be materially
adversely affected.
Our
principal stockholders may engage in a transaction to cause the Company to
repurchase their shares of common stock.
In
order
to provide an interest in the Company to a third party, our controlling
stockholders may choose to cause the Company to sell Company securities to
one
or more third parties, with the proceeds of such sale(s) being utilized by
the
Company to repurchase shares of common stock held by them. As a result of such
transaction(s), our management, stockholder(s) and Board of Directors may
change.
The
Company has conducted no market research or identification of business
opportunities, which may affect our ability to identify a business to merge
with
or acquire.
The
Company has not conducted market research concerning prospective business
opportunities, nor have others made the results of such market research
available to the Company. Therefore, we have no assurances that market demand
exists for a merger or acquisition as contemplated by us. Our management has
not
identified any specific business combination or other transactions for formal
evaluation by us, such that it may be expected that any such target business
or
transaction will present such a level of risk that conventional private or
public offerings of securities or conventional bank financing will not be
available. There is no assurance that we will be able to acquire a business
opportunity on terms favorable to us. Decisions as to
which
business opportunity to participate in will be unilaterally made by our
management, which may act without the consent, vote or approval of our
stockholders.
Because
we may seek to complete a business combination through a “reverse merger”,
following such a transaction we may not be able to attract the attention of
major brokerage firms.
Additional
risks may exist since we will assist a privately held business to become public
through a “reverse merger.” Securities analysts of major brokerage firms may not
provide coverage of our Company since there is no incentive to brokerage firms
to recommend the purchase of our common stock. No assurance can be given that
brokerage firms will want to conduct any secondary offerings on behalf of our
post-merger company in the future.
11
We
cannot assure you that following a business combination with an operating
business, our common stock will be listed on NASDAQ or any other securities
exchange.
Following
a business combination, we may seek the listing of our common stock on NASDAQ
or
the American Stock Exchange. However, we cannot assure you that following such
a
transaction, we will be able to meet the initial listing standards of either
of
those or any other stock exchange, or that we will be able to maintain a listing
of our common stock on either of those or any other stock exchange. After
completing a business combination, until our common stock is listed on the
NASDAQ or another stock exchange, we expect that our common stock would be
eligible to trade on the OTC Bulletin Board, another over-the-counter quotation
system, or on the “pink sheets,” where our stockholders may find it more
difficult to dispose of shares or obtain accurate quotations as to the market
value of our common stock. In addition, we would be subject to an SEC rule
that,
if it failed to meet the criteria set forth in such rule, imposes various
practice requirements on broker-dealers who sell securities governed by the
rule
to persons other than established customers and accredited investors.
Consequently, such rule may deter broker-dealers from recommending or selling
our common stock, which may further affect its liquidity. This would also make
it more difficult for us to raise additional capital following a business
combination.
Authorization
of preferred stock.
Our
Certificate of Incorporation authorizes the issuance of up to 10,000,000 shares
of preferred stock with designations, rights and preferences determined from
time to time by our Board of Directors. Accordingly, our Board of Directors
is
empowered, without stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting, or other rights which could adversely affect
the voting power or other rights of the holders of the common stock. In the
event of issuance, the preferred stock could be utilized, under certain
circumstances, as a method of discouraging, delaying or preventing a change
in
control of the Company. Although we have no present intention to issue any
shares of its authorized preferred stock, there can be no assurance that the
Company will not do so in the future.
Control
by management.
Management
currently controls and votes 80% of all the issued and outstanding common stock
of the Company. Consequently, management has the ability to influence control
of
the operations of the Company and, acting together, will have
the
ability to influence or control substantially all matters submitted to
stockholders for approval, including:
|
·
|
Election
of the Board of Directors;
|
|
·
|
Removal
of directors;
|
|
·
|
Amendment
to the Company’s certificate of incorporation or bylaws;
and
|
|
·
|
Adoption
of measures that could delay or prevent a change in control or impede
a
merger, takeover or other business
combination.
|
These
stockholders will thus have substantial influence over our management and
affairs and
other
stockholders of the Company possess no practical ability to remove management
or
effect the operations of the business of the Company.
Accordingly, this concentration of ownership by itself may have the effect
of
impeding a merger, consolidation, takeover or other business consolidation,
or
discouraging a potential acquirer from making a tender offer for the common
stock.
12
This
registration statement contains forward-looking statements and information
relating to us, our industry and to other businesses.
These
forward-looking statements are based on the beliefs of our management, as well
as assumptions made by and information currently available to our management.
When used in this registration statement, the words "estimate," "project,"
"believe," "anticipate," "intend," "expect" and similar expressions are intended
to identify forward-looking statements. These statements reflect our current
views with respect to future events and are subject to risks and uncertainties
that may cause our actual results to differ materially from those contemplated
in our forward-looking statements. We caution you not to place undue reliance
on
these forward-looking statements, which speak only as of the date of this
registration statement. We do not undertake any obligation to publicly release
any revisions to these forward-looking statements to reflect events or
circumstances after the date of this registration statement or to reflect the
occurrence of unanticipated events.
ITEM
3.
DESCRIPTION OF PROPERTY.
The
Company neither rents nor owns any properties. The Company utilizes the office
space and equipment of its management at no cost. Management estimates such
amounts to be immaterial. The Company currently has no policy with respect
to
investments or interests in real estate, real estate mortgages or securities
of,
or interests in, persons primarily engaged in real estate
activities.
ITEM
4.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
(a)
Security ownership of certain beneficial owners.
The
following table sets forth, as of January 31, 2008, the number of shares of
common stock owned of record and beneficially by executive officers, directors
and persons who beneficially own more than 5% of the outstanding shares of
common stock of the Company.
|
Name
and Address
|
Amount and Nature of
Beneficial Ownership
|
Percentage
of Class
|
|||||
|
John
Pappajohn (1)
c/o
Equity Dynamics Inc.
666
Walnut Street, Suite 2116
Des
Moines, Iowa 50309
|
2,000,000
|
40
|
%
|
||||
|
Matthew
P. Kinley (2)
c/o
Equity Dynamics Inc.
666
Walnut Street, Suite 2116
Des
Moines, Iowa 50309
|
2,000,000
|
|
40
|
%
|
|||
|
AANA
Ltd.
c/o
Argyris Vassiliou
45-10
Court Square, FL#2
Long
Island City, NY 11101
|
625,000
|
(3)
|
12.5
|
%
|
|||
|
NICALE
Partners
c/o
Argyris Vassiliou
45-10
Court Square, FL#2
Long
Island City, NY 11101
|
375,000
|
(4)
|
7.5
|
%
|
|||
13
|
(1)
|
Mr.
Pappajohn serves as President and director of the
Company.
|
|
(2)
|
Mr.
Kinley serves as Secretary, Chief Financial Officer and director
of the
Company.
|
|
(3)
|
Represents
shares of common stock owned by AANA Ltd. Mr. Vassiliou, his
wife and his
two minor children are the owners of AANA Ltd. Mr. Vassiliou
has sole
investment and voting power of these shares. Therefore, Mr. Vassiliou
may
be deemed the beneficial owner of the shares of common stock
held by AANA
Ltd.
|
|
(4)
|
Represents
shares of common stock owned by NICALE Partners. Mr. Vassiliou’s minor
children are the owners of NICALE Partners. Mr. Vassiliou has
sole
investment and voting power of these shares. Therefore, Mr. Vassiliou
may
be deemed the beneficial owner of the shares of common stock
held by
NICALE Partners.
|
ITEM
5.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
A.
Identification of Directors and Executive Officers.
Our
officers and directors and additional information concerning them are as
follows:
|
Age
|
Position
|
|||
|
79
|
President
and Director
|
|||
|
Matthew
P. Kinley
|
40
|
Secretary,
Chief Financial Officer and
Director
|
John
Pappajohn
has
served as our President and Director since inception. Mr. Pappajohn currently
serves as the President and principal stockholder of Equity Dynamics, Inc.,
a
financial consulting firm, and has served as such since 1969. He is also the
sole owner of Pappajohn Capital Resources, a venture capital firm. Mr. Pappajohn
has been involved in the development and financing of more than one hundred
companies during his career and has served as a director of more than 40 public
companies. Mr. Pappajohn currently serves as a director of the following public
companies: Allion Healthcare, Inc., American CareSource Holdings, Inc., ConMed
Healthcare Management, Inc., PharmAthene, Inc., and SpectraScience, Inc., which
trade under the symbols “NASDAQ NMS:ALLI,” “AMEX:XSI,” “NASDAQ OTCBB:CMHM,”
“AMEX:PIP,” and “NASDAQ OTCBB:SCIE”, respectively. Mr. Pappajohn received his
B.S.C. from the University of Iowa in 1952.
Matthew
P. Kinley
has
served as our Chief Financial Officer, Secretary and a Director since inception.
Mr. Kinley currently serves as the Senior Vice President of Equity Dynamics,
Inc., a financial consulting firm, and Pappajohn Capital Resources, a venture
capital firm. He has served as such since 1995. Mr. Kinley served as President
and as a director of the Healthcare Acquisition Corp. from April 2005 through
August 2007. Healthcare Acquisition Corp. is now the public company known as
PharmAthene, Inc., which trades under the symbol “AMEX:PIP.” Mr. Kinley has been
involved in the financing and development of more than 25 companies in the
past
ten years. From 1990 through 1995, Mr. Kinley was manager and held various
positions at KPMG Peat Marwick, working on tax, audit and merger and acquisition
issues. He currently serves on the Board of Directors of several private
companies. Mr. Kinley also serves on the College of Business Executive Advisory
Board and the Entrepreneurial Center Advisory Board at the University of
Northern Iowa. Mr. Kinley received his B.A. in Business, with highest honors,
from the University of Northern Iowa in May 1990.
14
B.
Significant Employees. None.
C.
Family
Relationships. None.
D.
Involvement in Certain Legal Proceedings. There have been no events under any
bankruptcy act, no criminal proceedings and no judgments, injunctions, orders
or
decrees material to the evaluation of the ability and integrity of any director,
executive officer, promoter or control person of Registrant during the past
five
years.
E.
The
Board of Directors acts as the Audit Committee, and the Board has no separate
committees. The Company has no qualified financial expert at this time because
it has not been able to hire a qualified candidate. Further, the Company
believes that it has inadequate financial resources at this time to hire such
an
expert. The Company intends to continue to search for a qualified individual
for
hire.
Prior
Blank Check Company Experience
As
indicated below, members of the management also serve as officers and directors
of:
|
Name
|
Filing
Date
Registration
Statement
|
Operating
Status |
SEC
File
Number
|
Pending
Business
Combinations
|
Additional
Information
|
|||||
|
Healthcare
Acquisition Corp.
|
April
25, 2005
|
Effective
July 28, 2005
|
001-32587
|
Completed
August 3, 2007
|
Mr.
Pappajohn has served as Chairman of the company since inception.
Mr.
Pappajohn also served as Secretary of the company until he resigned
on
August 3, 2007. Mr. Kinley served as President, Treasurer and director
of
the company until he resigned on August 3, 2007.
|
|||||
|
Zeta
Acquisition Corp. I, Inc. and Zeta Acquisition Corp. III
Inc.
|
January
31, 2008
|
Pending
Effectiveness
|
Unknown
(filed today)
|
None.
|
Messrs.
Pappajohn and Kinley have been officers and directors of these companies
since inception.
|
15
ITEM
6.
EXECUTIVE COMPENSATION.
The
Company’s officers and directors have not received any cash remuneration since
inception. They will not receive any remuneration until the consummation of
an
acquisition. No remuneration of any nature has been paid for on account of
services rendered by a director in such capacity. Our officers and directors
intend to devote very limited time to our affairs.
It
is
possible that, after the Company successfully consummates a business combination
with an unaffiliated entity, that entity may desire to employ or retain one
or a
number of members of our management for the purposes of providing services
to
the surviving entity. However, the Company has adopted a policy whereby the
offer of any post-transaction employment to members of management will not
be a
consideration in our decision whether to undertake any proposed transaction.
No
retirement, pension, profit sharing, stock option or insurance programs or
other
similar programs have been adopted by the Company for the benefit of its
employees.
There
are
no understandings or agreements regarding compensation our management will
receive after a business combination that is required to be included in this
table, or otherwise.
ITEM
7.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
On
November 13, 2007, the Company issued a non-interest bearing promissory note
payable in the amount of $10,000 to John Pappajohn, the President and a Director
of the Company (the “Note”). The Note matured upon the earlier of (i) December
31, 2007 or (ii) the date that capital was received from the sale of the
Company’s capital stock.
On
December 27, 2007, the Company repaid the principal amount on the Note and
paid
to John Pappajohn $10,000, which represents the principal amount on the
Note.
Except
as
otherwise indicated herein, there have been no related party transactions,
or
any other transactions or relationships required to be disclosed pursuant to
Item 404 of Regulation S-B.
ITEM
8.
DESCRIPTION OF SECURITIES.
(a)
Common and Preferred Stock.
The
Company is authorized by its Certificate of Incorporation to issue an aggregate
of 110,000,000 shares of capital stock, of which 100,000,000 are shares of
common stock, par value $.0001 per share (the "Common Stock") and 10,000,000
are
shares of preferred stock, par value $.0001 per share (the “Preferred Stock”).
As of January 31, 2008, 5,000,000 shares of Common Stock and zero shares of
Preferred Stock were issued and outstanding.
Common
Stock
All
outstanding shares of Common Stock are of the same class and have equal rights
and attributes. The holders of Common Stock are entitled to one vote per share
on all matters submitted to a vote of stockholders of the Company. All
stockholders are entitled to share equally in dividends, if any, as may be
declared from time to time by the Board of Directors out of funds legally
available. In the event of liquidation, the holders of Common Stock are entitled
to share ratably in all assets remaining after payment of all liabilities.
The
stockholders do not have cumulative or preemptive rights.
Preferred
Stock
Our
Certificate of Incorporation authorizes the issuance of up to 10,000,000 shares
of Preferred Stock with designations, rights and preferences determined from
time to time by its Board of Directors. Accordingly, our Board of Directors
is
empowered, without stockholder approval, to issue Preferred Stock with dividend,
liquidation, conversion, voting, or other rights which could adversely affect
the voting power or other rights of the holders of the Common Stock. In the
event of issuance, the Preferred Stock could be utilized, under certain
circumstances, as a method of discouraging, delaying or preventing a change
in
control of the Company. Although we have no present intention to issue any
shares of its authorized Preferred Stock, there can be no assurance that the
Company will not do so in the future.
16
The
description of certain matters relating to the securities of the Company is
a
summary and is qualified in its entirety by the provisions of the Company's
Certificate of Incorporation and By-Laws, copies of which have been filed as
exhibits to this Form 10-SB.
(b)
Debt
Securities.
On
November 13, 2007, the Company issued a non-interest bearing promissory note
payable in the amount of $10,000 to John Pappajohn, the President and a Director
of the Company (the “Note”). The Note matured upon the earlier of (i) December
31, 2007 or (ii) the date that capital was received from the sale of the
Company’s capital stock.
On
December 27, 2007, the Company repaid the principal amount on the Note and
paid
to John Pappajohn $10,000, which represents the principal amount on the
Note.
(c)
Other
Securities To Be Registered.
None.
PART
II
ITEM
1.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
(a)
Market Information.
The
Common Stock is not trading on any stock exchange. The Company is not aware
of
any market activity in its Common Stock since its inception through the date
of
this filing.
(b)
Holders.
As
of
January 31, 2008, there were four record holders of an aggregate of 5,000,000
shares of the Common Stock issued and outstanding.
(c)
Dividends.
The
Registrant has not paid any cash dividends to date and does not anticipate
or
contemplate paying dividends in the foreseeable future. It is the present
intention of management to utilize all available funds for the development
of
the Registrant's business.
ITEM
2.
LEGAL PROCEEDINGS.
Presently,
there are not any material pending legal proceedings to which the Registrant
is
a party or as to which any of its property is subject, and no such proceedings
are known to the Registrant to be threatened or contemplated against
it.
ITEM
3.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE.
There
are
not and have not been any disagreements between the Registrant and its
accountants on any matter of accounting principles, practices or financial
statement disclosure.
17
ITEM
4.
RECENT SALES OF UNREGISTERED SECURITIES.
On
December 14, 2007, the Company offered and sold an aggregate of 5,000,000 shares
of Common Stock for aggregate proceeds equal to $50,000.00. The Company sold
these shares of Common Stock under the exemption from registration provided
by
Section 4(2) of the Securities Act.
No
securities have been issued for services. Neither the Registrant nor any person
acting on its behalf offered or sold the securities by means of any form of
general solicitation or general advertising. No services were performed by
any
purchaser as consideration for the shares issued.
ITEM
5.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145
of the Delaware General Corporation Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses including attorneys' fees, judgments, fines and amounts paid
in
settlement in connection with various actions, suits or proceedings, whether
civil, criminal, administrative or investigative other than an action by or
in
the right of the corporation, a derivative action, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses including attorneys' fees
incurred in connection with the defense or settlement of such actions, and
the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation.
The
statute provides that it is not exclusive of other indemnification that may
be
granted by a corporation's certificate of incorporation, bylaws, agreement,
a
vote of stockholders or disinterested directors or otherwise.
The
Company’s Certificate of Incorporation provides that it will indemnify and hold
harmless, to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, as amended from time to time, each person that such section
grants us the power to indemnify.
The
Delaware General Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for:
•
any
breach of the director's duty of loyalty to the corporation or its stockholders;
•
acts
or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law;
•
payments of unlawful dividends or unlawful stock repurchases or redemptions;
or
•
any
transaction from which the director derived an improper personal benefit.
The
Company’s Certificate of Incorporation provides that, to the fullest extent
permitted by applicable law, none of our directors will be personally liable
to
us or our stockholders for monetary damages for breach of fiduciary duty as
a
director. Any repeal or modification of this provision will be prospective
only
and will not adversely affect any limitation, right or protection of a director
of our company existing at the time of such repeal or modification.
18
PART
F/S
INDEX
TO FINANCIAL STATEMENTS
|
Page(s)
|
|||
|
Report
of Independent Registered Public Accounting Firm
|
F-1
|
||
|
Financial
Statements:
|
|
||
|
Balance
Sheet
|
F-2
|
||
|
Statement
of Operations
|
F-3
|
||
|
Statement
of Changes in Stockholders' Equity
|
F-4
|
||
|
Statement
of Cash Flows
|
F-5
|
||
|
|
|||
|
Notes
to Financial Statements
|
F-6 to F-8
|
||
19
Report
of Independent Registered Public Accounting Firm
The
Board
of Directors
Zeta
Acquisition Corp. II
(A
Development Stage Company)
We
have
audited the accompanying balance sheet of Zeta Acquisition Corp. II (a
development stage company) as of December 31, 2007, and the related statements
of operations, stockholders' equity, and cash flows for the period from November
16, 2007 (inception) to December 31, 2007. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an
opinion on these financial statements based on our audit.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we
plan
and perform our audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures
in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audit provides a reasonable basis for our opinion.
In
our
opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of Zeta Acquisition Corp. II (a
development stage company), as of December 31, 2007, and the results of its
operations and its cash flows for the period from November 16, 2007 (inception)
to December 31, 2007, in conformity with accounting principles generally
accepted in the United States of America.
/s/
LWBJ,
LLP
West
Des
Moines, Iowa
January
24, 2008
F-1
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
BALANCE
SHEET
December
31, 2007
|
Assets
|
||||
|
Current
assets:
|
||||
|
Cash
and cash equivalents
|
$
|
39,273
|
||
|
Total
assets
|
$
|
39,273
|
||
|
Liabilities
and stockholders' equity
|
||||
|
Current
liabilities:
|
||||
|
Accrued
expenses
|
$
|
4,250
|
||
|
Total
current liabilities
|
4,250
|
|||
|
Stockholders'
equity:
|
||||
|
Preferred
stock, $0.0001 par value; 10,000,000 shares authorized; no shares
issued
and outstanding
|
-
|
|||
|
Common
stock, $0.0001 par value; 100,000,000 shares authorized; 5,000,000
shares
issued and outstanding
|
500
|
|||
|
Additional
paid-in capital
|
49,500
|
|||
|
Deficit
accumulated during the development stage
|
(14,977
|
)
|
||
|
Total
stockholders' equity
|
35,023
|
|||
|
Total
liabilities and stockholders' equity
|
$
|
39,273
|
||
See
accompanying notes.
F-2
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
STATEMENT
OF OPERATIONS
For
the period from November 16, 2007 (Inception) to December 31,
2007
|
Operating
expenses:
|
||||
|
Formation
costs
|
$
|
10,593
|
||
|
General
and administrative
|
4,384
|
|||
|
Net
loss
|
$
|
(14,977
|
)
|
|
|
Net
loss per basic and diluted common share
|
$
|
(0.01
|
)
|
|
|
Weighted-average
number of common shares
|
1,888,889
|
|||
See
accompanying notes.
F-3
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
STATEMENT
OF CHANGES IN STOCKHOLDERS’ EQUITY
For
the period from November 16, 2007 (Inception) to December 31,
2007
|
Common Stock
|
Additional
Paid-In
|
Deficit
Accumulated
During the
Development
|
Total
Stockholders'
|
|||||||||||||
|
Shares
|
Amount
|
Capital
|
Stage
|
Equity
|
||||||||||||
|
Issuance
of common stock on December 14, 2007 at $0.01 per share
|
5,000,000
|
$
|
500
|
$
|
49,500
|
$
|
-
|
$
|
50,000
|
|||||||
|
Net
loss
|
-
|
-
|
-
|
(14,977
|
)
|
(14,977
|
)
|
|||||||||
|
Balance
at December 31, 2007
|
5,000,000
|
$
|
500
|
$
|
49,500
|
$
|
(14,977
|
)
|
$
|
35,023
|
||||||
See
accompanying notes.
F-4
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
STATEMENT
OF CASH FLOWS
For
the period from November 16, 2007 (Inception) to December 31,
2007
|
Operating
activities
|
||||
|
Net
loss
|
$
|
(14,977
|
)
|
|
|
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||
|
Increase
in accrued expenses
|
4,250
|
|||
|
Net
cash used in operating activities
|
(10,727
|
)
|
||
|
Financing
activities
|
||||
|
Proceeds
from note payable, stockholder
|
10,000
|
|||
|
Payments
on note payable, stockholder
|
(10,000
|
)
|
||
|
Proceeds
from issuance of common stock
|
50,000
|
|||
|
Net
cash provided by financing activities
|
50,000
|
|||
|
Net
increase in cash and cash equivalents
|
39,273
|
|||
|
Cash
and cash equivalents at beginning of period
|
-
|
|||
|
Cash
and cash equivalents at end of period
|
$
|
39,273
|
||
See
accompanying notes.
F-5
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
Notes
To Financial Statements
December
31, 2007
|
1.
|
Nature
of Operations and Significant Accounting
Policies
|
Nature
of Operations
Zeta
Acquisition Corp. II (the "Company") was incorporated under the laws of the
State of Delaware on November 16, 2007. The Company is a new enterprise in
the
development stage as defined by Statement of Financial Accounting Standards
("SFAS") No. 7, Accounting
and Reporting by Development Stage Enterprise.
The
Company was organized as a vehicle to investigate and, if such investigation
warrants, acquire a target company or business seeking the perceived advantages
of being a publicly held corporation. The Company's principal business objective
for the next twelve (12) months and beyond will be to achieve long-term growth
potential through a combination with a business. The Company will not restrict
its potential candidate target companies to any specific business, industry
or
geographical location and, thus, may acquire any type of business.
Liquidity
Since
its
inception, the Company has generated no revenues and has incurred a net loss
of
$14,977. Since inception, the Company has been dependent upon the receipt of
capital investment or other financing to fund its continuing activities. The
Company has not identified any business combination and therefore, cannot
ascertain with any degree of certainty the capital requirements for any
particular transaction. In addition, the Company is dependent upon certain
related parties to provide continued funding and capital resources. The
accompanying financial statements have been presented on the basis of the
continuation of the Company as a going concern and do not include any
adjustments relating to the recoverability and classification of recorded asset
amounts or the amounts and classification of liabilities that might be necessary
should the Company be unable to continue as a going concern.
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
certain 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 revenue and expenses during
the reporting periods. Actual results could differ from those
estimates.
Cash
and Cash Equivalents
For
purposes of the statement of cash flows, the Company considers all highly liquid
investments with a maturity of three (3) months or less to be cash
equivalents.
F-6
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
Notes
To Financial Statements (continued)
|
1.
|
Nature
of Operations and Significant Accounting Policies
(continued)
|
Income
Taxes
The
Company accounts for income taxes in accordance with SFAS No. 109, Accounting
for Income Taxes,
which
requires the recognition of deferred tax liabilities and assets at currently
enacted tax rates for the expected future tax consequences of events that have
been included in the financial statements or tax returns. A valuation allowance
is recognized to reduce the net deferred tax asset to an amount that is more
likely than not to be realized.
Fair
Value of Financial Instruments
Pursuant
to SFAS No. 107, Disclosures
About Fair Value of Financial Instruments,
the
Company is required to estimate the fair value of all financial instruments
included on its balance sheet as of December 31, 2007. The Company considers
the
carrying value of cash and cash equivalents and accrued expenses to approximate
fair value due to their short maturities.
Net
Loss Per Share
Basic
loss per share is computed by dividing net loss by the weighted-average number
of common shares outstanding for the period. The Company currently has no
dilutive securities and as such, basic and diluted loss per share are the same
for all periods presented.
Recently
Issued Accounting Pronouncements
Management
does not believe that any recently issued, but not yet effective, accounting
standards, if currently adopted, would have a material effect.
|
2.
|
Note
Payable, Stockholder
|
The
Company issued an unsecured promissory note to a stockholder and officer of
the
Company in the amount of $10,000. The note was non-interest bearing and was
repaid from the proceeds of the sale of common stock.
|
3.
|
Preferred
Stock
|
The
Company is authorized to issue 10,000,000 shares of preferred stock with such
designations, voting and other rights and preferences as may be determined
from
time to time by the Board of Directors.
F-7
ZETA
ACQUISITION CORP. II
(A
Development Stage Company)
Notes
To Financial Statements (continued)
|
4.
|
Common
Stock
|
The
Company is authorized to issue 100,000,000 shares of common stock with such
designations, voting and other rights and preferences as may be determined
from
time to time by the Board of Directors. During December 2007, the Company issued
5,000,000 shares of its common stock pursuant to a private placement for
$50,000.
|
5.
|
Income
Taxes
|
The
tax
effects of temporary differences that give rise to significant portions of
the
Company's net deferred tax asset at December 31, 2007 are as
follows:
|
Deferred
tax asset:
|
||||
|
Capitalized
formation costs
|
$
|
2,247
|
||
|
Valuation
allowance
|
(2,247
|
)
|
||
|
Net
deferred tax asset recognized
|
$
|
—
|
||
A
full
valuation allowance has been recorded against the Company's deferred tax asset
because, based on the weight of available evidence, it is more likely than
not
that such benefits will not be realized.
The
benefit from income taxes differs from the amount computed by applying the
United States (US) federal income tax rate of fifteen percent (15%) to loss
before income taxes for the cumulative period from November 16, 2007 (Inception)
to December 31, 2007 as follows:
|
US
federal income tax benefit at statutory rate
|
$
|
(2,247
|
)
|
|
|
Change
in valuation allowance
|
2,247
|
|||
|
Benefit
from income taxes
|
$
|
—
|
|
6.
|
Commitment
|
The
Company utilizes the office space and equipment of an officer and director
at no
cost on a month-to-month basis. Management estimates such amounts to be de
minimis.
F-8
PART
III
ITEM
1.
INDEX TO EXHIBITS.
|
Exhibit
|
||
|
Number
|
Description
|
|
|
3.1
|
Certificate
of Incorporation
|
|
|
3.2
|
By-Laws
|
20
SIGNATURES
In
accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by
the
undersigned, thereunto duly authorized.
|
ZETA
ACQUISITION CORP. II
|
|||
|
By:
|
/s/
John Pappajohn
|
||
|
John
Pappajohn
|
|||
|
President
|
|||
21
Exhibit
3.1
CERTIFICATE
OF INCORPORATION
OF
ZETA
ACQUISITION CORP. II
(Pursuant
to Section 102 of the Delaware General Corporation Law)
1.
The
name of the corporation is ZETA ACQUISITION CORP. II (the
"Corporation").
2.
The
address of its registered office in the State of Delaware is 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808, County of New Castle. The name
of
its registered agent at such address is the Corporation Service
Company.
3.
The
nature of the business or purposes to be conducted or promoted is to engage
in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware (the "DGCL").
4.
The
Corporation is to have perpetual existence.
5.
The
total number of shares of capital stock which the Corporation shall have
authority to issue is: One Hundred Ten Million (110,000,000). These shares
shall
be divided into two classes with 100,000,000 shares designated as common stock
at $.0001 par value (the “Common Stock”) and 10,000,000 shares designated as
preferred stock at $.0001 par value (the “Preferred Stock”).
The
Preferred Stock of the Corporation shall be issued by the Board of Directors
of
the Corporation in one or more classes or one or more series within any class
and such classes or series shall have such voting powers, full or limited,
or no
voting powers, and such designations, preferences, limitations or restrictions
as the Board of Directors of the Corporation may determine, from time to
time.
Holders
of shares of Common Stock shall be entitled to cast one vote for each share
held
at all stockholders' meetings for all purposes, including the election of
directors. The Common Stock does not have cumulative voting rights.
No
holder
of shares of stock of any class shall be entitled as a matter of right to
subscribe for or purchase or receive any part of any new or additional issue
of
shares of stock of any class, or of securities convertible into shares of stock
of any class, whether now hereafter authorized or whether issued for money,
for
consideration other than money, or by way of dividend.
6. The
Board
of Directors shall have the power to adopt, amend or repeal the by-laws of
the
Corporation.
7. No
director shall be personally liable to the Corporation or its stockholders
for
monetary damages for any breach of fiduciary duty by such director as a
director. Notwithstanding the foregoing sentence, a director shall be liable
to
the extent provided by applicable law, (i) for breach of the director's duty
of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not
in good faith or which involve intentional misconduct or a knowing violation
of
law, (iii) pursuant to Section 174 of the DGCL or (iv) for any transaction
from
which the director derived an improper personal benefit. If the DGCL hereafter
is amended to authorize the further elimination or limitation of the liability
of directors, then the liability of a director of the Corporation, in addition
to the limitation on personal liability provided herein, shall be limited to
the
fullest extent permitted by the amended DGCL. No amendment to or repeal of
this
Article 7 shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts
or
omissions of such director occurring prior to such amendment.
8. The
Corporation shall indemnify, to the fullest extent permitted by Section 145
of
the DGCL, as amended from time to time, each person that such section grants
the
Corporation the power to indemnify.
9.
The
name and mailing address of the incorporator is Lindsay R. Cantor, c/o Feldman
Weinstein & Smith LLP, 420 Lexington Avenue, Suite 2620, New York, New York
10170.
IN
WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named,
has
executed, signed and acknowledged this certificate of incorporation this
16th
day of
November, 2007.
|
/s/ Lindsay R. Cantor
|
||
|
Lindsay
R. Cantor
|
||
|
Incorporator
|
Exhibit
3.2
BY-LAWS
OF
ZETA
ACQUISITION CORP. II
(a
Delaware corporation)
ARTICLE
I
STOCKHOLDERS
Section
1. Certificates
Representing Stock.
(a)
Certificates representing stock in the corporation shall be signed by, or in
the
name of, the corporation by the Chairman or Vice-Chairman of the Board of
Directors, if any, or by the President or a Vice-President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation. Any or all the signatures on any such certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed
or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
(b) Whenever
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class of stock, and whenever the corporation shall
issue any shares of its stock as partly paid stock, the certificates
representing shares of any such class or series or of any such partly paid
stock
shall set forth thereon the statements prescribed by the General Corporation
Law. Any restrictions on the transfer or registration of transfer of any shares
of stock of any class or series shall be noted conspicuously on the certificate
representing such shares.
(c) The
corporation may issue a new certificate of stock or uncertificated shares in
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Board of Directors may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give
the
Corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate or
uncertificated shares.
Section
2. Uncertificated
Shares.
Subject
to any conditions imposed by the General Corporation Law, the Board of Directors
of the corporation may provide by resolution or resolutions that some or all
of
any or all classes or series of the stock of the corporation shall be
uncertificated shares. Within a reasonable time after the issuance or transfer
of any uncertificated shares, the corporation shall send to the registered
owner
thereof any written notice prescribed by the General Corporation
Law.
Section
3. Fractional
Share Interests.
The
corporation may, but shall not be required to, issue fractions of a share.
If
the Corporation does not issue fractions of a share, it shall (1) arrange for
the disposition of fractional interests by those entitled thereto, (2) pay
in
cash the fair value of fractions of a share as of the time when those entitled
to receive such fractions are determined, or (3) issue scrip or warrants in
registered form (either represented by a certificate or uncertificated) or
bearer form (represented by a certificate) which shall entitle the holder to
receive a full share upon the surrender of such scrip or warrants aggregating
a
full share. A certificate for a fractional share or an uncertificated fractional
share shall, but scrip or warrants shall not unless otherwise provided therein,
entitle the holder to exercise voting rights, to receive dividends thereon,
and
to participate in any of the assets of the Corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing the full shares or uncertificated full shares before
a
specified date, or subject to the conditions that the shares for which scrip
or
warrants are exchangeable may be sold by the corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other
conditions which the Board of Directors may impose.
Section
4. Stock
Transfers.
Upon
compliance with provisions restricting the transfer or registration of transfer
of shares of stock, if any, transfers or registration of transfers of shares
of
stock of the corporation shall be made only on the stock ledger of the
corporation by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary
of
the corporation or with a transfer agent or a registrar, if any, and, in the
case of shares represented by certificates, on surrender of the certificate
or
certificates for such shares of stock properly endorsed and the payment of
all
taxes due thereon.
Section
5. Record
Date For Stockholders.
In
order that the corporation may determine the stockholders entitled to notice
of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the
date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty nor less than
ten
days before the date of such meeting. If no record date is fixed by the Board
of
Directors, the record date for determining stockholders entitled to notice
of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at
the close of business on the day next preceding the day on which the meeting
is
held. A determination of stockholders of record entitled to notice of or to
vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the
adjourned meeting. In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining the stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by the General Corporation Law, shall be the first date
on
which a signed written consent setting forth the action taken or proposed to
be
taken is delivered to the corporation by delivery to its registered office
in
the State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which proceedings of meeting
of
stockholders are recorded. Delivery made to the corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action
by
the Board of Directors is required by the General Corporation Law, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which
the Board of Directors adopts the resolution taking such prior action. In order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion, or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board
of
Directors adopts the resolution relating thereto.
Section
6. Meaning
of Certain Terms.
As used
herein in respect of the right to notice of a meeting of stockholders or a
waiver thereof or to participate or vote thereat or to consent or dissent in
writing in lieu of meeting, as the case may be, the term "share" or "shares"
or
"share of stock" or "shares of stock" or "stockholder" or "stockholders" refers
to an outstanding share or shares of stock and to a holder or holders of record
of outstanding shares of stock when the corporation is authorized to issue
only
one class of shares of stock, and said reference is also intended to include
any
outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the certificate
of incorporation confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the General Corporation
Law
confers such rights notwithstanding that the certificate of incorporation may
provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that
no
such right shall vest in the event of an increase or a decrease in the
authorized number of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of incorporation,
except as any provision of law may otherwise require.
Section
7. Stockholder
Meetings.
- Time.
The
annual meeting shall be held on the date and at the time fixed, from time to
time, by the directors, provided that the first annual meeting shall be held
on
a date within thirteen months after the organization of the corporation, and
each successive annual meeting shall be held on a date within thirteen months
after the date of the preceding annual meeting. A special meeting shall be
held
on the date and at the time fixed by the directors.
- Place.
Annual
meetings and special meetings shall be held at such place, within or without
the
State of Delaware, as the directors may, from time to time, fix. Whenever the
directors shall fail to fix such place, the meeting shall be held at the
registered office of the corporation in the State of Delaware.
- Call.
Annual
meetings and special meetings may be called by the directors or by any officer
instructed by the directors to call the meeting.
- Notice
or Waiver of Notice.
Written
notice of all meetings shall be given, stating the place, date, hour of the
meeting and stating the place within the city or other municipality or community
at which the list of stockholders of the corporation may be examined. The notice
of an annual meeting shall state that the meeting is called for the election
of
directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at
a
special meeting is to be taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called. The notice of any meeting
shall also include, or be accompanied by, any additional statements,
information, or documents prescribed by the General Corporation Law. Except
as
otherwise provided by the General Corporation Law, a copy of the notice of
any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the corporation. Notice
by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or place is made at the meeting, it shall not be
necessary to give notice of the adjourned meeting unless the directors, after
adjournment, fix a new record date for the adjourned meeting. Notice need not
be
given to any stockholder who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of a stockholder at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to
be transacted at, not the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
- Stockholder
List.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten days before every meeting of stockholders, a complete list
of
the stockholders, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
or
other municipality or community where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at
the
place where the meeting is to be held. The list shall also be produced and
kept
at the time and place of the meeting during the whole time thereof, and may
be
inspected by any stockholder who is present. The stock ledger shall be the
only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote
at
any meeting of stockholders.
- Conduct
of Meeting.
Meetings of the stockholders shall be presided over by one of the following
officers in the order of seniority and if present and acting-the Chairman of
the
Board, if any, the Vice-Chairman of the Board, if any, the President, a
Vice-President, or, if none of the foregoing is in office and present and
acting, by a chairman to be chosen by the stockholders. The Secretary of the
corporation, or in his absence, an Assistant Secretary, shall act as secretary
of every meeting, but if neither the Secretary nor an Assistant Secretary is
present the Chairman of the meeting shall appoint a secretary of the meeting.
- Proxy
Representation.
Every
stockholder may authorize another person or persons to act for him by proxy
in
all matters in which a stockholder is entitled to participate, whether by
waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent without a meeting. Every proxy must be signed
by
the stockholder or by his attorney-in-fact. No proxy shall be voted or acted
upon after three years from its date unless such proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that is
irrevocable and, if, and only as long as it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is
an
interest in the stock itself or an interest in the corporation
generally.
- Inspectors.
The
directors, in advance of any meeting, may, but need not, appoint one or more
inspectors of election to act at the meeting or any adjournment thereof. If
any
inspector or inspectors are not appointed, the person presiding at the meeting
may, but need not appoint one or more inspectors. In case any person who may
be
appointed as an inspector fails to appear or act, the vacancy may be filled
by
appointment made by the directors in advance of the meeting or at the meeting
by
the person presiding thereat. Each inspector, if any, before entering upon
the
discharge of his duties, shall take and sign an oath faithfully to execute
the
duties of inspectors at such meeting with strict impartiality and according
to
the best of his ability. The inspectors, if any, shall determine the number
of
shares of stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots, or consents, hear and determine
all challenges and questions arising in connection with the right to vote,
count
and tabulate all votes, ballots, or consents, determine the result, and do
such
acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the person presiding at the meeting, the inspector
or inspectors, if any, shall make a report in writing of any challenge,
question, or matter determined by him or them and execute a certificate of
any
fact found by him or them. Except as otherwise required by subsection (e) of
Section 231 of the General Corporation Law, the provisions of that Section
shall
not apply to the corporation.
- Quorum.
The
holders of a majority of the outstanding shares of stock shall constitute a
quorum at a meeting of stockholders for the transaction of any business. The
stockholders presents may adjourn the meeting despite the absence of a
quorum.
- Voting.
Each
share of stock shall entitle the holder thereof to one vote. Directors shall
be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. Any other action shall be authorized by a majority of the votes
cast
except where the General Corporation Law prescribes a different percentage
of
votes and/or a different exercise of voting power, and except as may be
otherwise prescribed by the provisions of the certificate of incorporation
and
these Bylaws. In the election of directors, and for any other action, voting
need not be by ballot.
Section
8. Stockholder
Action Without Meetings.
Any
action required by the General Corporation Law to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not
less than the minimum number of votes that would be necessary to authorize
or
take such action at a meeting at which all shares entitled to vote thereon
were
present and voted. Prompt notice of the taking of the corporate action without
a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Action taken pursuant to this
paragraph shall be subject to the provisions of Section 228 of the General
Corporation Law.
ARTICLE
II
DIRECTORS
Section
1. Functions
and Definition.
The
business and affairs of the corporation shall be managed by or under the
direction of the Board of Directors of the corporation. The Board of Directors
shall have the authority to fix the compensation of the members thereof. The
use
of the phrase "whole board" herein refers to the total number of directors
which
the corporation would have if there were no vacancies.
Section
2. Qualifications
and Number.
A
director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist
of two (2) persons. Thereafter, the number of directors may be increased or
decreased from time to time by action of the stockholders or of the directors,
or, if the number is not fixed, the number shall be two (2).
Section
3. Election
and Term.
The
first Board of Directors, unless the members thereof shall have been named
in
the certificate of incorporation, shall be elected by the incorporator or
incorporators and shall hold office until first annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal. Any director may resign at any time upon written notice
to the corporation. Thereafter, directors who are elected at an annual meeting
of stockholders, and directors who are elected in the interim to fill vacancies
and newly created directorships, shall hold office until the next annual meeting
resignation or removal. Except as the General Corporation Law may otherwise
require, in the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of directors
for cause or without cause, may be filled by the vote of a majority of the
remaining directors then in office, although less than a quorum, or by the
sole
remaining director.
Section
4. Meetings.
- Time.
Meetings shall be held at such time as the Board shall fix, except that the
first meeting of a newly elected Board shall be held as soon after its election
as the directors may conveniently assemble.
- Place.
Meetings shall be held at such place within or without the State of Delaware
as
shall be fixed by the Board.
- Call.
No call
shall be required for regular meetings for which the time and place have been
fixed. Special meetings may be called by or at the direction of the Chairman
of
the Board, if any, the Vice-Chairman of the Board, if any, of the President,
or
of a majority of the directors in office.
- Notice
or Actual or Constructive Waiver.
No
notice shall be required for regular meetings for which the time and place
have
been fixed. Written, oral, or any other mode of notice of the time and place
shall be given for special meetings in sufficient time for the convenient
assembly of the directors thereat. Notice need not be given to any director
or
to any member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated therein. Attendance of any such
person at a meeting shall constitute a waiver of notice of such meeting, except
when he attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the
purpose of, any regular or special meeting of the directors need be specified
in
any written waiver of notice.
- Quorum
and Action.
A
majority of the whole Board shall constitute a quorum except when a vacancy
or
vacancies prevents such majority, whereupon a majority of the directors in
office shall constitute a quorum, provided, that such majority shall constitute
at least one-third of the whole Board. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting to another time and
place. Except as herein otherwise provided, and except as otherwise provided
by
the General Corporation Law, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board. The
quorum and voting provisions herein stated shall not be construed as conflicting
with any provisions of the General Corporation Law and these Bylaws which govern
a meeting of the directors held to fill vacancies and newly created
directorships in the Board or action of disinterested directors.
Any
member or members of the Board of Directors or of any committee designated
by
the Board, may participate in a meeting of the Board, or any such committee,
as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
- Chairman
of the Meeting.
The
Chairman of the Board, if any and if present and acting, shall preside at all
meetings. Otherwise, the Vice-Chairman of the Board, if any and if present
and
acting, or the President, if present and acting, or any other director chosen
by
the Board, shall preside.
Section
5. Removal
of Directors.
Except
as may otherwise be provided by the General Corporation Law, any director or
the
entire Board of Directors may be removed, with or without cause, by the holders
of a majority of the shares then entitled to vote at an election of
directors.
Section
6. Committees.
The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more
of
the directors of the corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such
absent or disqualified member. Any such committee, to the extent provided in
the
resolution of the Board, shall have and may exercise the powers and authority
of
the Board of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of which is
prohibited by Section 141 of the General Corporation Law, and may authorize
the
seal of the corporation to be affixed to all papers which may require
it.
Section
7. Written
Action.
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 all members
of the Board or committee, as the case may be, consent thereto in writing,
and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
Section
8. Board
of Advisors. The
Board
of Directors, in its discretion, may establish a Board of Advisors, consisting
of individuals who may or may not be stockholders or directors of the
Corporation. The purpose of the Board of Advisors would be to advise the
officers and directors of the Corporation with respect to such matters as such
officers and directors shall choose, and any other matters which the members
of
such Board of Advisors deem appropriate in furtherance of the best interest
of
the Corporation. The Board of Advisors shall meet on such basis as the members
thereof may determine. The Board of Directors may eliminate the Board of
Advisors at any time. No member of the Board of Advisors, nor the Board of
Advisors itself, shall have any authority of the Board of Directors or any
decision-making power and shall be merely advisory in nature. Unless the Board
of Directors determines another method of appointment, the President shall
recommend possible members of the Board of Advisors to the Board of Directors,
who shall approve such appointments or reject them.
ARTICLE
III
OFFICERS
The
officers of the corporation shall consist of a President and a Secretary, and,
if deemed necessary, expedient, or desirable by the Board of Directors, a
Treasurer, a Chairman of the Board, a Vice-Chairman of the Board, an Executive
Vice- President, one or more other Vice-Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers with
such
title as the resolution of the Board of Directors choosing them shall designate.
Except as may otherwise be provided in the resolution of the Board of Directors
choosing him, no officer other than the Chairman or Vice-Chairman of the Board,
if any, need be a director. Any number of offices may be held by the same
person, as the directors may determine.
Unless
otherwise provided in the resolution choosing him, each officer shall be chosen
for a term which shall continue until the meeting of the Board of Directors
following the next annual meeting of stockholders and until his successor shall
have been chosen and qualified.
All
officers of the corporation shall have such authority and perform such duties
in
the management and operation of the corporation as shall be prescribed in the
resolutions of the Board of Directors designating and choosing such officers
and
prescribing their authority and duties, and shall have such additional authority
and duties as are incident to their office except to the extent that such
resolutions may be inconsistent therewith. The Secretary or an Assistant
Secretary of the corporation shall record all of the proceedings of all meetings
and actions in writing of stockholders, directors, and committees of directors,
and shall exercise such additional authority and perform such additional duties
as the Board shall assign to him. Any officer may be removed, with or without
cause, by the Board of Directors. Any vacancy in any office may be filled by
the
Board of Directors.
ARTICLE
IV
CORPORATE
SEAL
The
corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE
V
FISCAL
YEAR
The
fiscal year of the corporation shall be fixed, and shall be subject to change,
by the Board of Directors.
ARTICLE
VI
AMENDMENT
These
Bylaws may be adopted, amended or repealed at any time by the unanimous written
consent of the Board of Directors.