-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DiEVz4lWI0inM3X1P4U6cJvQ/q2UBR3A8zKAO1G2Vbf1XOKUcoQlIJ3Bc81n+HEr TJdfaH8BM3vnACOwRxrm7w== 0001137091-01-500294.txt : 20010820 0001137091-01-500294.hdr.sgml : 20010820 ACCESSION NUMBER: 0001137091-01-500294 CONFORMED SUBMISSION TYPE: SB-2 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010817 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOO GOURMET INC CENTRAL INDEX KEY: 0001144499 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SB-2 SEC ACT: 1933 Act SEC FILE NUMBER: 333-67768 FILM NUMBER: 1717617 BUSINESS ADDRESS: STREET 1: 280 WHITE CAP LANE CITY: NEWPORT COAST STATE: CA ZIP: 92657 BUSINESS PHONE: 9493868982 SB-2 1 too_sb-2.txt U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM SB-2 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Too Gourmet, Inc. ----------------- (Exact name of registrant as specified in its charter) Nevada 5411 33-0967353 - ------ ---- ---------- (State or other (Primary Standard Industrial (I.R.S. Employer jurisdiction of Classification Code Number) Identification No.) incorporation or organization) 280 White Cap Lane, Newport Coast, California 92657 - --------------------------------------------- ----- (Address of registrant's principal executive offices) (Zip Code) (949) 836-8982 -------------- (Registrant's Telephone Number, Including Area Code) Michael J. Muellerleile Stepp Law Group 1301 Dove Street, Suite 460 Newport Beach, California 92660 949.660.9700 Facsimile 949.660.9010 (Name, Address and Telephone Number of Agent for Service) Approximate date of proposed sale to the public: From time to time after this Registration Statement becomes effective. If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _______ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _______ If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] _______ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
================================== =================== ==================== ======================= ================ Title of each class Amount Proposed maximum Proposed maximum Amount of of securities to be offering price aggregate registration to be registered registered per share offering price fee - ---------------------------------- ------------------- -------------------- ----------------------- ---------------- Common Stock, $.001 par value 2,991,250 $0.10 $299,125 $78.96 ================================== =================== ==================== ======================= ================
The offering price per share for the selling security holders was estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of Regulation C. The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. 1 Preliminary Prospectus Too Gourmet, Inc. a Nevada corporation 2,991,250 Shares of Common Stock This prospectus relates to 2,991,250 shares of common stock of Too Gourmet, Inc., which are issued and outstanding shares of our common stock, acquired by the selling security holders in private placement transactions which were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933. Our common stock is presently not traded on any market or securities exchange, and we have not applied for listing or quotation on any public market. See "Risk Factors" on pages 4 to 8 for factors to be considered before investing in the shares of our common stock. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of the prospectus. Any representation to the contrary is a criminal offense. The information in this prospectus is not complete and may be changed. The selling security holders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. The date of this prospectus is August 15, 2001. Subject to completion. 2 TABLE OF CONTENTS Prospectus Summary ............................................................4 Risk Factors...................................................................4 Use of Proceeds................................................................9 Determination of Offering Price................................................9 Dilution.......................................................................9 Selling Security Holders.......................................................9 Plan of Distribution..........................................................11 Legal Proceedings.............................................................12 Directors, Executive Officers, Promoters and Control Persons..................12 Security Ownership of Certain Beneficial Owners and Management................13 Description of Our Securities.................................................13 Interest of Named Experts and Counsel.........................................14 Disclosure of Commission Position on Indemnification for Securities Act Liabilities....................................................14 Organization Within Last Five Years...........................................14 Description of Business.......................................................15 Management's Discussion and Analysis of Financial Condition and Results of Operations.....................................................15 Description of Property.......................................................17 Certain Relationships and Related Transactions................................18 Market for Common Equity and Related Stockholder Matters......................18 Executive Compensation........................................................18 Financial Statements..........................................................20 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure......................................................30 Legal Matters.................................................................30 Experts.......................................................................30 Additional Information........................................................30 Indemnification of Directors and Officers.....................................31 Other Expenses of Issuance and Distribution...................................31 Recent Sales of Unregistered Securities.......................................32 Exhibits......................................................................32 Undertakings..................................................................33 Signatures....................................................................34 3 Prospectus Summary - ------------------ Our business: We incorporated in Nevada on April 9, 2001. Our principal business address is 280 White Cap Lane, Newport Coast, California 92657. Our telephone number is 949.836.8982. We are a specialty gourmet grocery retailer. We intend to offer our products and product selection advice services over the Internet. We currently market and distribute specialty gourmet coffee under our Too Gourmet label. We intend to offer a unique array of the finest in specialty and hard-to-find foods and spirits, coupled with expert, personalized service to our customers to assist in their gourmet shopping needs. We believe we will create an efficient, personable, proprietary system that will enable us to cater to the discriminating tastes of our customers. If we generate significant revenues, we plan to develop a traditional retail store located in Orange County, California, and if successful, plan to replicate our business model in other markets. Number of shares being offered: The selling security holders want to sell 2,991,250 shares of our common stock. The offered shares were acquired by the selling security holders in private placement transactions, which were exempt from the registration and prospectus delivery requirements of the Securities Act of 1933. Number of shares outstanding: 6,091,250 shares of our common stock are issued and outstanding. We have no other securities issued. Estimated use of proceeds: We will not receive any of the proceeds from the sale of those shares being offered. 4 RISK FACTORS In addition to the other information in this prospectus, the following risk factors should be considered carefully in evaluating our business before purchasing any of our shares of common stock. A purchase of our common stock is speculative and involves a significant and substantial number of risks. Any person who is not in a position to lose the entire amount of his investment should forego purchasing our common stock. Risks related to our business: We are a new company with losses since our formation and we anticipate that we will lose money in the foreseeable future. Therefore, we may not be able to achieve profitable operations. We were formed on April 9, 2001 and have a limited operating history. Our losses since inception are $9,705 as of June 30, 2001. We expect to encounter difficulties as an early stage company in the rapidly evolving online commerce. Our business strategy is unproven, and we may not be successful in addressing early stage challenges, such as establishing our position in the market and expanding our online presence and capabilities. To implement our business plan, we must increase our marketing initiatives and identify and enter into additional strategic relationships. Our prospects must be considered speculative, considering the risks, expenses, and difficulties frequently encountered in the establishment of a new business, specifically the risks inherent in developmental stage companies. We expect to continue to incur significant operating and capital expenditures and, as a result, we expect significant net losses in the future. We will need to generate significant revenues to achieve and maintain profitability. We may not be able to achieve profitable operations. 5 If we do not expand our product offerings and continue to develop our website, our business may fail. Our only current product is specialty gourmet coffee which we market and distribute under our Too Gourmet label. We must expand our product offerings and continue to develop our website to facilitate and promote the online shopping experience. Demand and market acceptance for our products is uncertain and may not increase as necessary for our business to increase or succeed. The use of e-commerce, particularly by companies that have historically relied on traditional methods of selling their products and services, requires the acceptance of a new method of conducting business, exchanging information and completing commercial transactions. If the Internet or e-commerce fails to develop or develops more slowly than we expect, we may not generate revenues and our business may fail. We rely on consumer acceptance of the Internet as a means of marketing and distributing our products, and may be unable to succeed if consumers reject the use of the Internet to purchase gourmet groceries. The market for e-commerce is new and rapidly evolving, and it is uncertain whether e-commerce will achieve and sustain high levels of demand and market acceptance, particularly with respect to the specialty grocery industry. Our success will depend to a substantial extent on the willingness of consumers to increase their use of online services as a method to buy specialty groceries. We anticipate that we will rely primarily on product orders received through our website sales. Our success will also depend upon our vendors' acceptance of our online service as a significant means to market and sell their products. Moreover, our growth will depend on the extent to which an increasing number of consumers own or have access to personal computers or other systems that can access the Internet. If e-commerce in the grocery industry does not achieve high levels of demand and market acceptance, our business may fail. We will depend on third-party providers and key vendors for certain services. We will not be able to successfully operate if our relationships with these third-party providers are terminated or impaired. We anticipate that we will rely solely on third-party providers for several products that we expect to offer of our customers, including but not limited to, products from a variety of national and local grocers and distributors and local gourmet and specialty shops. We may become dependent upon various other third parties for one or more significant services required for our website, which services will be provided to our business pursuant to agreements with such providers. Inasmuch as the capacity for certain services by certain third parties may be limited, our inability, for economic or other reasons, to continue to receive services from existing providers or to obtain similar products or services from additional providers could have a material adverse effect on our business. We expect to generate operating losses and to experience negative cash flow for the foreseeable future. Therefore, investors may lose all or part of their investment if our operations are not profitable. We have incurred a net loss since inception and expect to incur net losses for the foreseeable future. Our success depends on developing awareness of the Too Gourmet brand, providing our customers with a quality online shopping experience and investing in systems and technology that will support increased traffic to our website. Accordingly, we intend to increase our marketing and promotional expenditures, make additional payments in connection with strategic relationships and make capital expenditures to develop and maintain the quality of our website and operating systems. Our ability to undertake these expenditures will be significantly hindered if we do not generate revenues or raise additional capital. We face significant competition from other online and traditional retailers of grocery products. Our operations and our ability to generate revenues will be negatively affected if we are unable to establish a positive reputation as a provider of fine gourmet foods and beverages. Our success will depend on our ability to compete in the highly competitive retail specialty grocery industry. To succeed, we must establish our reputation for providing specialty gourmet grocery items with unparalleled service to our customers, beginning with the Internet, and then by serving the greater Southern California community from our proposed retail store planned for Orange County, California. Our success will also depend on our ability to market our unique selection of products and shopping services continually and on a timely basis and to continue to improve the performance, features and reliability of our products and services in response to both evolving demands of prospective customers and competitive products and services. 6 We will compete with online and traditional gourmet grocery retail stores that are either independent markets or part of large regional or national retail chains such as Bristol Farms. Specialty grocery businesses are especially affected by changes in consumer tastes, as well as national, regional and local economic conditions, demographic trends, and the type, number and location of competing grocery stores. We may not be able to compete effectively with those online and traditional gourmet grocery retail stores. If we do not compete effectively, we may not be able to continue operations. We anticipate that we will be heavily dependent upon advertising and strategic relationships to generate sales. Therefore, we may not generate revenues if we do not fund advertising and develop those strategic relationships. We anticipate that we will rely on advertising and strategic relationships to attract customers to our website. We intend to spend resources on our advertising and marketing to promote the Too Gourmet brand through online advertising and newspaper, television and radio advertising. Our online advertising may include strategic relationships that require costly, long-term commitments. This advertising may not attract a significant number of customers to our website or generate a substantial amount of sales. In addition, software is available that permits an Internet user to block online banner advertising. If customers are able to block the viewing of banner advertising, then our advertising investment may not generate the expected level of sales. We may face product liability claims relating to the foods and beverages that we intend to sell. Any claims or adverse judgments against us may reduce our financial resources or hinder our reputation. We cannot be certain that the products that we deliver will be free from contaminants. Grocery and other related products occasionally contain contaminants due to inherent defects in the products or improper storage or handling. If any of the products that we sell cause harm to any of our customers, we could be subject to product liability lawsuits. We do not have product liability insurance. If we are found liable under a product liability claim, or even if we are required to defend ourselves against such a claim, our reputation could suffer and customers may substantially reduce their orders or stop ordering from us. The successful assertion or settlement of an uninsured claim, a significant number of insured claims or a claim exceeding the limits of any insurance coverage that we may obtain would harm us by adding additional costs to our business and by diverting the attention of our senior management from the operation of our business. We anticipate that we will need to raise additional capital to expand our operations. Our failure to raise additional capital will significantly limit our ability to conduct marketing activities and generate revenues. To conduct marketing activities and generate revenues, we may be required to raise additional funds. We may not be able to obtain additional financing at commercially reasonable rates. Our failure to obtain additional funds would significantly limit or eliminate our ability to conduct marketing activities. This would have a material adverse effect on our ability to continue our business operations and compete with other providers. We anticipate that we may seek additional funding through public or private sales of our securities. That could include equity securities, or through commercial or private financing arrangements. Adequate funds may not be available when needed or on terms acceptable to us. In the event that we are not able to obtain additional funding on a timely basis, we may be required to limit any proposed operations or expansion. Our ability to raise additional capital through the sale of our stock may be harmed by competing resales of our common stock by the selling security holders. The price of our common stock could fall if the selling security holders sell substantial amounts of our common stock. These sales would make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem appropriate because the selling security holders may offer to sell their shares of common stock to potential investors for less than we do. Moreover, potential investors may not be interested in purchasing shares of our common stock if the selling security holders are selling their shares of common stock. Risks related to owning our common stock: Our officers, directors and principal security holders own approximately 72.24% of our outstanding shares of common stock, allowing these shareholders control matters requiring approval of our shareholders. 7 Our directors, officers and principal security holders, taken as a group, together with their affiliates, beneficially own, in the aggregate, approximately 72.24% of our outstanding shares of common stock. Such concentrated control of the company may adversely affect the price of our common stock. Our principal security holders may be able to control matters requiring approval by our security holders, including the election of directors. Such concentrated control may also make it difficult for our shareholders to receive a premium for their shares of our common stock in the event we merge with a third party or enter into different transactions which require shareholder approval. In addition, certain provisions of Nevada law could have the effect of making it more difficult or more expensive for a third party to acquire, or of discouraging a third party from attempting to acquire, control of us. Because we will be subject to the "penny stock" rules, the level of trading activity in our stock may be reduced, which may make it difficult for investors in our common stock to sell their shares. Broker-dealer practices in connection with transactions in "penny stocks" are regulated by certain penny stock rules adopted by the Securities and Exchange Commission. Penny stocks, like shares of our common stock, generally are equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on Nasdaq. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document that provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction, and, if the broker-dealer is the sole market maker, the broker-dealer must disclose this fact and the broker-dealer's presumed control over the market, and monthly account statements showing the market value of each penny stock held in the customer's account. In addition, broker-dealers who sell these securities to persons other than established customers and "accredited investors" must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser's written agreement to the transaction. Consequently, these requirements may have the effect of reducing the level of trading activity, if any, in the secondary market for a security subject to the penny stock rules, and investors in our common stock may find it difficult to sell their shares. We lack a public market for shares of our common stock, which may make it difficult for investors to sell their shares. There is no public market for shares of our common stock. An active public market may not develop or be sustained. Therefore, investors may not be able to find purchasers for their shares of our common stock. Should there develop a significant market for our shares, the market price for those shares may be significantly affected by such factors as our financial results and introduction of new services. Factors such as announcements of new or enhanced products by us or our competitors and quarter-to-quarter variations in our results of operations, as well as market conditions in our sector may have a significant impact on the market price of our shares. Moreover, the stock market has experienced extreme volatility that has particularly affected the market prices of stock of many companies and that often has been unrelated or disproportionate to the operating performance of those companies. Because we lack a public market for shares of our common stock, the selling security holders will arbitrarily determine the offering price of the shares. Therefore, investors may lose all or part of their investment if the price of their shares is too high. Our common stock is not publicly traded and we do not participate in an electronic quotation medium for securities traded outside the Nasdaq Stock Market. We cannot guaranty that an active public market for our stock will develop or be sustained. Therefore, the selling security holders may arbitrarily determine the offering price of shares of our common stock. Accordingly, purchasers may lose all or part of their investments if the price of their shares is too high. A purchase of our stock in this offering would be unsuitable for a person who cannot afford to lose his entire investment. 8 We are registering 500,000 shares of common stock owned by our officers and directors. Our officers and directors may sell those shares as soon as possible, which could significantly decrease the price of our common stock and reduce their desire to see us succeed. Our officers and directors may sell those 500,000 shares immediately after they are registered. In the event that our officers and directors sell those shares, the price of our common stock could decrease significantly. Also, a conflict of interest will occur between their duties to us and their personal interest in selling their shares. We cannot assure you that our officers and directors will not sell those shares as soon as they are registered. Information in this prospectus contains "forward looking statements" which can be identified by the use of forward-looking words such as "believes", "estimates", "could", "possibly", "probably", "anticipates", "estimates", "projects", "expects", "may", "will", or "should" or other variations or similar words. No assurances can be given that the future results anticipated by the forward-looking statements will be achieved. The following matters constitute cautionary statements identifying important factors with respect to those forward-looking statements, including certain risks and uncertainties that could cause actual results to vary materially from the future results anticipated by those forward-looking statements. Among the key factors that have a direct bearing on our results of operations are the effects of various governmental regulations, the fluctuation of our direct costs and the costs and effectiveness of our operating strategy. Other factors could also cause actual results to vary materially from the future results anticipated by those forward-looking statements. Use of Proceeds - --------------- We will not receive any proceeds from the sale of shares of our common stock being offered by the selling security holders. Determination of Offering Price - ------------------------------- The selling security holders may sell our common stock at prices then prevailing or related to the then current market price or at negotiated prices. Dilution - -------- The shares offered for sale by the selling security holders are already outstanding and, therefore, do not contribute to dilution. Selling Security Holders - ------------------------ The following table sets forth information concerning the selling security holders including: 1. the number of shares owned by each selling security holder prior to this offering; 2. the total number of shares that are to be offered for each selling security holder; and 3. the total number of shares and the percentage of common stock that will be owned by each selling security holder upon completion of the offering. The shares offered for sale constitute all of the shares known to us to be beneficially owned by the selling security holders. None of the selling security holders has held any position or office with us, except as specified in the following table. Other than the relationships described below, none of the selling security holders had or have any material relationship with us. None of the selling security holders is a broker-dealer or an affiliate of a broker-dealer to our knowledge. Thomas E. Stepp, Jr., Michael J. Muellerleile, Deron M. Colby, Richard C. Reincke, Amy M. Pontillas, Sandie M. Williams, Myra E. Capoccia, and Lan P. Nguyen are employees of Stepp Law Group, which serves as our legal counsel. 9
- ----------------------------- ---------------------------------- ---------------------------------- ------------------------------- Name of Selling Security Amount of Shares of Common Stock Amount of Shares of Common Stock Amount of Shares and the Holder Owned by Selling Security Holder to be Offered by the Selling Percentage of Common Stock Owned Before the Offering Security Holder by Selling Security Holder After the Offering is Complete - ----------------------------- ---------------------------------- ---------------------------------- ------------------------------- Cynthia A. Bergendahl, president, secretary, and a director 3,000,000 400,000 2,600,000 shares and 42.68% - ----------------------------------------------------------------------------------------------------------------------------------- Matthew A. Bergendahl, treasurer and a director 600,000 100,000 500,000 shares and 8.20% - ----------------------------------------------------------------------------------------------------------------------------------- Thomas E. Stepp, Jr. 400,000 400,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Michael J. Muellerleile 400,000 400,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Deron M. Colby 300,000 300,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Richard C. Reincke 300,000 300,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Amy M. Pontillas 70,000 70,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Sandie M. Williams 10,000 10,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Myra E. Capoccia 10,000 10,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Lan P. Nguyen 10,000 10,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Renee McCracken 25,000 25,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- John D. Muellerleile 100,000 100,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Suzanne Muellerleile 25,000 25,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- John R. Muellerleile 100,000 100,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Renee Y. Close 10,000 10,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Jason Ortega 40,000 40,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Scott Sherman 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Brad Thompson 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- AV Neely 6,250 6,250 0 - ----------------------------------------------------------------------------------------------------------------------------------- John Shukur 12,500 12,500 0 - ----------------------------------------------------------------------------------------------------------------------------------- Alia Neely 12,500 12,500 0 - ----------------------------------------------------------------------------------------------------------------------------------- Wade Neely 6,250 6,250 0 - ----------------------------------------------------------------------------------------------------------------------------------- Scott Michaels 15,000 15,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- William Sterling, Jr. 6,250 6,250 0 - ----------------------------------------------------------------------------------------------------------------------------------- Thomas J. Slosson 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Jerry A. Cardenas 2,500 2,500 0 - ----------------------------------------------------------------------------------------------------------------------------------- Gary Manley 2,500 2,500 0 - ----------------------------------------------------------------------------------------------------------------------------------- Anderson M. Hinsch 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Sonny Martinez 41,250 41,250 0 - ----------------------------------------------------------------------------------------------------------------------------------- Eric Becker 11,250 11,250 0 - ----------------------------------------------------------------------------------------------------------------------------------- Michelle Mirrotto 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Jesus Avelar 25,000 25,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Jim Mirrotto 5,000 5,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Lyle Neely 70,000 70,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Ryan A. Neely 275,000 275,000 0 - ----------------------------------------------------------------------------------------------------------------------------------- Tim Neely 175,000 175,000 0 - -----------------------------------------------------------------------------------------------------------------------------------
10 Plan of Distribution - -------------------- The selling security holders may sell our common stock in the over-the-counter market, or on any securities exchange on which our common stock is or becomes listed or traded, in negotiated transactions or otherwise. The selling security holders may sell our common stock at prices then prevailing or related to the then current market price or at negotiated prices. The shares will not be sold in an underwritten public offering. The shares may be sold directly or through brokers or dealers. The methods by which the shares may be sold include: o purchases by a broker or dealer as principal and resale by such broker or dealer for its account; o ordinary brokerage transactions and transactions in which the broker solicits purchasers; and o privately negotiated transactions. Brokers and dealers engaged by selling security holders may arrange for other brokers or dealers to participate. Brokers or dealers may receive commissions or discounts from selling security holders, or, if any such broker-dealer acts as agent for the purchaser of such shares, from such purchaser, in amounts to be negotiated. Broker-dealers may agree with the selling security holders to sell a specified number of such shares at a stipulated price per share, and, to the extent such broker-dealer is unable to do so acting as agent for a selling security holder, to purchase as principal any unsold shares at the price required to fulfill the broker-dealer commitment to such selling security holder. Broker-dealers who acquire shares as principal may resell those shares from time to time in the over-the-counter market or otherwise at prices and on terms then prevailing or then related to the then-current market price or in negotiated transactions and, in connection with such resales, may receive or pay commissions. The selling security holders and any broker-dealers participating in the distributions of the shares may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933. Any profit on the sale of shares by the selling security holders and any commissions or discounts given to any such broker-dealer may be deemed to be underwriting commissions or discounts. The shares may also be sold pursuant to Rule 144 under the Securities Act of 1933 beginning one year after the shares were issued. We have filed the Registration Statement, of which this prospectus forms a part, with respect to the sale of the shares by the selling security holders. The selling security holders may not sell any or all of the offered shares. Under the Securities Exchange Act of 1934 and the regulations thereunder, any person engaged in a distribution of the shares of our common stock offered by this prospectus may not simultaneously engage in market making activities with respect to our common stock during the applicable "cooling off" periods prior to the commencement of such distribution. Also, the selling security holders are subject to applicable provisions which limit the timing of purchases and sales of our common stock by the selling security holders. We have informed the selling security holders that, during such time as they may be engaged in a distribution of any of the shares we are registering by this Registration Statement, they are required to comply with Regulation M. In general, Regulation M precludes any selling security holder, any affiliated purchasers and any broker-dealer or other person who participates in a distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase, any security which is the subject of the distribution until the entire distribution is complete. Regulation M defines a "distribution" as an offering of securities that is distinguished from ordinary trading activities by the magnitude of the offering and the presence of special selling efforts and selling methods. Regulation M also defines a "distribution participant" as an underwriter, prospective underwriter, broker, dealer, or other person who has agreed to participate or who is participating in a distribution. Regulation M prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security, except as specifically permitted by Rule 104 of Regulation M. These stabilizing transactions may cause the price of our common stock to be more than it would otherwise be in the absence of these transactions. We have informed the selling security holders that stabilizing transactions permitted by Regulation M allow bids to purchase our common stock if the stabilizing bids do not exceed a specified maximum. Regulation M specifically prohibits stabilizing that is the result of fraudulent, manipulative, or deceptive practices. Selling security holders and distribution participants are required to consult with their own legal counsel to ensure compliance with Regulation M. 11 Legal Proceedings - ----------------- There are no legal actions pending against us nor are any legal actions contemplated by us at this time. Directors, Executive Officers, Promoters and Control Persons - ------------------------------------------------------------ Executive Officers and Directors. We are dependent on the efforts and abilities of certain of our senior management. The interruption of the services of key management could have a material adverse effect on our operations, profits and future development, if suitable replacements are not promptly obtained. We anticipate that we will enter into employment agreements with each of our key executives. We cannot guaranty that each executive will remain with us during or after the term of his or her employment agreement. In addition, our success depends, in part, upon our ability to attract and retain other talented personnel. Although we believe that our relations with our personnel are good and that we will continue to be successful in attracting and retaining qualified personnel, we cannot guaranty that we will be able to continue to do so. Our officers and directors will hold office until their resignations or removal. Our directors and principal executive officers are as specified on the following table: ============================ =============== =================================== Name Age Position - ---------------------------- --------------- ----------------------------------- Cynthia A. Bergendahl 36 president, secretary, director - ---------------------------- --------------- ----------------------------------- Matthew A. Bergendahl 39 treasurer, director ============================ =============== =================================== Cynthia A. Bergendahl. Mrs. Bergendahl has been our president, secretary and one of our directors since our inception. Mrs. Bergendahl manages all aspects of our operations, including product development and marketing and sales of our products. From 1998 to April 2001, Mrs. Bergendahl has worked as a freelance journalist, and has been a columnist writing dining reviews and other features for the Orange County Business Digest. She has been involved in the retail food industry for many years. From 1988 to 1991, she and her husband, Matthew Bergendahl, were the owners and operators of an upscale, trendy cafe in Marina del Rey, California. From 1986 to 1993, they also owned and operated a successful chain of 24-hour donut shops in the greater Los Angeles area. Mrs. Bergendahl and her husband also have teamed together since 1991 to cater numerous private parties, banquets, community and charitable events. Mrs. Bergendahl graduated with a Bachelor of Arts degree in broadcast journalism, which she earned from California State University, Long Beach, in 1986. Mrs. Bergendahl has not been a director of any other reporting company. Matthew A. Bergendahl. Mr. Bergendahl is our treasurer and one of our directors since our inception. Mr. Bergendahl has been involved in the retail food industry since 1986. Since 2000, Mr. Bergendahl has been the executive chef and kitchen manager at the Cheesecake Factory located in Irvine, California. From 1997 to 2000, he was the executive chef and manager of Spaghettini Cucina, an upscale eatery in Long Beach, California, and in 1996, a chef at the Ritz Carlton, located in Marina del Rey, California. From 1991 to 1995, Mr. Bergendahl provided services as a private chef and caterer in the Los Angeles area, at numerous private parties, banquets and other events, including community and charitable functions. Mr. Bergendahl was also the owner and operator of Cafe del Rey. From 1986 to 1993, Mr. Bergendahl worked with his wife as the owner and operators of a chain of 24-hour donut shops in the greater Los Angeles area. Mr. Bergendahl was trained at the Southern California School of Culinary Arts in Pasadena, California, the Los Angeles Culinary Institute in Burbank, California, and at the Culinary Institute of America at Greystone, located in Napa Valley, California. He also possesses certificates in Hospitality Supervision and Basic Sanitation from the American Hotel and Motel Association, a certificate in Nutrition from The Los Angeles Culinary Institute, and is certified as a Servsafe Food Protection Manager by the National Restaurant Association. Mr. Bergendahl has not been a director of any other reporting company. Cynthia Bergendahl is the spouse of Matthew Bergendahl. There are no orders, judgments, or decrees of any governmental agency or administrator, or of any court of competent jurisdiction, revoking or suspending for cause any license, permit or other authority to engage in the securities business or in the sale of a particular security or temporarily or permanently restraining any of our officers or directors from engaging in or continuing any conduct, practice or employment in connection with the purchase or sale of securities, or convicting such person of any felony or misdemeanor involving a security, or any aspect of the securities business or of theft or of any felony, nor are any of the officers or directors of any corporation or entity affiliated with us so enjoined. 12 Security Ownership of Certain Beneficial Owners and Management - -------------------------------------------------------------- The following table sets forth certain information regarding the beneficial ownership of our common stock as of August 15, 2001 by each person or entity known by us to be the beneficial owner of more than 5% of the outstanding shares of common stock, each of our directors and named executive officers, and all of our directors and executive officers as a group.
======================= ======================================== ==================================== ============================= Title of Class Name of Beneficial Owner Amount of Beneficial Owner Percent of Class - ----------------------- ---------------------------------------- ------------------------------------ ----------------------------- Common Stock Cynthia A. Bergendahl 280 White Cap Lane 3,000,000 shares, president, 49.25% Newport Coast, CA 92657 secretary, director - ----------------------- ---------------------------------------- ------------------------------------ ----------------------------- Common Stock Matthew A. Bergendahl 280 White Cap Lane 600,000 shares, treasurer, 9.85% Newport Coast, CA 92657 director - ----------------------- ---------------------------------------- ------------------------------------ ----------------------------- Common Stock Thomas E. Stepp, Jr. 1301 Dove Street, Suite 460 Newport Beach, CA 92660 400,000 shares 6.57% - ----------------------- ---------------------------------------- ------------------------------------ ----------------------------- Common Stock Michael Muellerleile 1301 Dove Street, Suite 460 Newport Beach, CA 92660 400,000 shares 6.57% - ----------------------- ---------------------------------------- ------------------------------------ ----------------------------- Common Stock All directors and named executive officers as a group 3,640,000 shares 59.10% ======================= ======================================== ==================================== =============================
Cynthia A. Bergendahl is the spouse of Matthew A. Bergendahl. Thomas E. Stepp, Jr. and Michael J. Muellerleile are employees of Stepp Law Group, which serves as our legal counsel. Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting or investment power with respect to securities. In accordance with Securities and Exchange Commission rules, shares of our common stock which may be acquired upon exercise of stock options or warrants which are currently exercisable or which become exercisable within 60 days of the date of the table are deemed beneficially owned by the optionees. Subject to community property laws, where applicable, the persons or entities named in the table above have sole voting and investment power with respect to all shares of our common stock indicated as beneficially owned by them. Changes in Control. Our management is not aware of any arrangements which may result in "changes in control" as that term is defined by the provisions of Item 403(c) of Regulation S-B. Description Of Our Securities - ----------------------------- Description of Capital Stock We are authorized to issue 50,000,000 shares of $.001 par value common stock and 5,000,000 shares of $.001 par value preferred stock. As of August 15, 2001, 6,091,250 shares of our common stock were issued and outstanding. Each shareholder of our common stock is entitled to a pro rata share of cash distributions made to shareholders, including dividend payments. The holders of our common stock are entitled to one vote for each share of record on all matters to be voted on by shareholders. There is no cumulative voting with respect to the election of our directors or any other matter. Therefore, the holders of more than 50% of the shares voted for the election of those directors can elect all of the directors. The holders of our common stock are entitled to receive dividends when, as and if declared by our Board of Directors from funds legally available therefor. Cash dividends are at the sole discretion of our Board of Directors. In the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably in all assets remaining available for distribution to them after payment of our liabilities and after provision has been made for each class of stock, if any, having any preference in relation to our common stock. Holders of shares of our common stock have no conversion, preemptive or other subscription rights, and there are no redemption provisions applicable to our common stock. 13 Dividend Policy. We have never declared or paid a cash dividend on our capital stock. We do not expect to pay cash dividends on our common stock in the foreseeable future. We currently intend to retain our earnings, if any, for use in our business. Any dividends declared in the future will be at the discretion of our Board of Directors and subject to any restrictions that may be imposed by our lenders. Interest of Named Experts and Counsel - ------------------------------------- No expert or our counsel was hired on a contingent basis, or will receive a direct or indirect interest in us, except as specified below, or was a promoter, underwriter, voting trustee, director, officer, or employee of the company, at any time prior to the filing of this Registration Statement. Thomas E. Stepp, Jr., Michael J. Muellerleile, Deron M. Colby, Richard C. Reincke, Amy M. Pontillas, Sandie M. Williams, Myra E. Capoccia, and Lan P. Nguyen are employees of Stepp Law Group, which serves as our legal counsel. Thomas E. Stepp, Jr. owns 400,000 shares of our common stock. Michael J. Muellerleile owns 400,000 shares of our common stock. Deron M. Colby owns 300,000 shares of our common stock. Richard C. Reincke owns 300,000 shares of our common stock. Amy M. Pontillas owns 70,000 shares of our common stock. Sandie M. Williams, Myra E. Capoccia, and Lan P. Nguyen each own 10,000 shares of our common stock. Disclosure of Commission Position on Indemnification for Securities Act Liabilities - ------------------------------------------------------------------------ Article Seventh of our Articles of Incorporation provides, among other things, that our directors shall not be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except for liability: o for any breach of such director's duty of loyalty to us or our security holders; o for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; o liability for unlawful payments of dividends or unlawful stock purchase or redemption by us; or o for any transaction from which such director derived any improper personal benefit. Accordingly, our directors may have no liability to our shareholders for any mistakes or errors of judgment or for any act of omission, unless the act or omission involves intentional misconduct, fraud, or a knowing violation of law or results in unlawful distributions to our shareholders. Section 10 of our Bylaws also provides that our officers and directors shall be indemnified and held harmless by us to the fullest extent permitted by the provisions of Section 78.7502 of the Nevada Revised Statutes. Indemnification Agreements. We will enter into indemnification agreements with each of our executive officers. We will agree to indemnify each such person for all expenses and liabilities, including criminal monetary judgments, penalties and fines, incurred by such person in connection with any criminal or civil action brought or threatened against such person by reason of such person being or having been our officer or director or employee. In order to be entitled to indemnification by us, such person must have acted in good faith and in a manner such person believed to be in our best interests. With respect to criminal actions, such person must have had no reasonable cause to believe his or her conduct was unlawful. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in that act and is, therefore, unenforceable. 14 Organization Within Last Five Years - ----------------------------------- Transactions with Promoters. Cynthia A. Bergendahl was issued 3,000,000 shares of our common stock in exchange for his services as our promoter. The value of the services performed by Mrs. Bergendahl was approximately $3,000. Description of Business - ----------------------- Our Background. We were incorporated in Nevada on April 9, 2001. Our Business. We are a specialty gourmet grocery retailer. We intend to offer our products and product selection advice services over the Internet. We currently market and distribute specialty gourmet coffee under our Too Gourmet label. We intend to offer a unique array of the finest in specialty and hard-to-find foods and spirits, coupled with expert, personalized service to our customers to assist in their gourmet shopping needs. We believe we will create an efficient, personable, proprietary system that will enable us to cater to the discriminating tastes of our customers. If we generate significant revenues, we plan to develop a traditional retail store located in Orange County, California, and if successful, plan to replicate our business model in other markets. Our Website www.toogourmet.com. Our current website displays our corporate logo and contact information and provides a general description of our business. Our website is under development to display our featured products and recipes as well as an online message board where visitor can seek culinary advise from our executive chef. We are also developing our website to offer visitors guidance on food and wine pairings. Visitors are currently able to order our gourmet coffee products by sending their requests to us via electronic mail. We anticipate that we may adopt an automated online ordering system in the future. By offering superior quality products along with expert information and resources via the Internet, we hope to provide our customers with easy accessibility to a wide range of high-end lifestyle products and services. Our website will serve as the primary vehicle for our business activities. We anticipate that users can view the contents of the website and use our proposed online ordering system to purchase gourmet grocery items planned for our website, including, but not limited to, specialty and hard-to-find gourmet food products and spirits. We intend to develop our site so that users will be able to provide us with delivery and credit card information directly on our website, which will allow us to process such orders immediately and ship the items ordered. Our Proposed Website www.mycheftoys.com. Through our proposed website www.mycheftoys.com, we intend to will sell chef tools, such as cutlery, cookware, chef gear and kitchen tools, to chefs. It will be marketed to executive chefs of restaurants. Our Target Markets and Marketing Strategy. We believe that our primary target market will consist of individuals in the greater Southern California area. We intend offer an easy-to-use, personable and convenient service whereby shoppers in search of unique gourmet products can have their specialty grocery requirements met by using our website or by visiting our proposed retail location. We believe that customer acceptance of our business concept will depend on our knowledge of the lifestyles of our target customers. Our target customers will consist of middle-to upper-income families in densely populated communities. We also will market and promote our services on the Internet. Our marketing strategy is to promote our services and attract individual households and businesses to our website. We hope to build our www.toogourmet.com and www.mycheftoys.com web sites' reputation on our commitment to the highest levels of product and service quality. While many e-commerce web sites stress their ability to offer tens of thousands of products, we intend to focus on a limited number of premium products in each product category. We are currently seeking to establish business relationships and co-marketing partnerships with several providers of fine gourmet foods and beverages. If we are successful in establishing these relationships, we believe that we will be able to offer a broader range of gourmet products, including wines, chocolates, cigars, coffee and specialty kitchenware. Our marketing initiatives include: o utilizing direct response print advertisements placed primarily in local print media; o limited advertising on television, radio, banners, affiliated marketing and direct mail in the Southern California area; and o word of mouth advertising based on the customer loyalty and high quality service. 15 Our strategy will include two main components: o focusing on the gourmet specialty food needs of middle to high income households with a emphasis on consumers who seek unique products; and o providing a unique, service-based experience for our customers. Our Competition. The gourmet grocery retailing market is extremely competitive. Many of our competitors charge membership, delivery or service fees, and often offer their goods at a premium to traditional supermarkets. The principal competitive factors that affect our business are location, breadth of product selection, convenience, quality, service, price, available technology, and consumer loyalty to traditional and online grocery retailers. We believe that we will compete favorably with respect to each of these factors although many traditional grocery retailers may have substantially greater levels of consumer loyalty, longer operating histories, and serve many more locations than we currently do. If we fail to effectively compete in any one of these areas, we may lose existing and potential customers which would have a material adverse effect on our business, financial condition and results of operation. In the past few years, the online grocery market has been marked by great instability as several leading online grocery suppliers have discontinued operations. Accordingly, as the market for online grocery providers has been extremely unstable, we may find it difficult to initiate our business model and sustain growth, which may have a material adverse effect on our business and results of operation. If we generate significant revenues or raise additional capital, we intend to open and operate a specialty gourmet grocery retail store to serve the area of Orange County, California. The specialty grocery industry is highly competitive, and we will compete with other gourmet grocery retail stores that are either independent markets or part of large regional or national retail chains such as Bristol Farms. Specialty grocery businesses are especially affected by changes in consumer tastes, as well as national, regional and local economic conditions, demographic trends, and the type, number and location of competing grocery stores. Such businesses are also subject to the risk that shortages or interruptions in supply caused by adverse weather or other conditions could negatively affect the availability, quality, and cost of food products. Also, factors such as inflation, increased food and labor costs, and the availability and cost of suitable sites and the availability of experienced management and hourly employees may also adversely affect the retail grocery industry in general, and our results of operations and financial condition in particular. Government Regulation. Online commerce is new and rapidly changing, and federal and state regulations relating to the Internet and online commerce are relatively new and evolving. Due to the increasing popularity of the Internet, it is possible that laws and regulations may be enacted to address issues such as user privacy, pricing, content, copyrights, distribution, antitrust matters and the quality of products and services. The adoption of these laws or regulations could reduce the rate of growth of the Internet, which could potentially decrease the usage of our website and could otherwise harm our business. In addition, the applicability to the Internet of existing laws governing issues such as property ownership, copyrights and other intellectual property issues, libel, obscenity and personal privacy is uncertain. Most of these laws were adopted prior to the advent of the Internet and do not contemplate or address the unique issues of the Internet. New laws applicable to the Internet may impose substantial burdens on companies conducting online commerce. In addition, the growth and development of online commerce may prompt calls for more stringent consumer protection laws in the United States and abroad. Our Intellectual Property. We do not presently own any patents, trademarks, licenses, concessions or royalties, although we have filed a state trademark application for our corporate logo with the California trademark office. Our success may depend in part upon our ability to preserve our trade secrets, obtain and maintain patent protection for our technologies, products and processes, and operate without infringing the proprietary rights of other parties. However, we may rely on certain proprietary technologies, trade secrets, and know-how that are not patentable. Although we may take action to protect our unpatented trade secrets and our proprietary information, in part, by the use of confidentiality agreements with our employees, consultants and certain of our contractors, we cannot guaranty that 16 o these agreements will not be breached; o we would have adequate remedies for any breach; or o our proprietary trade secrets and know-how will not otherwise become known or be independently developed or discovered by competitors. We cannot guaranty that our actions will be sufficient to prevent imitation or duplication of either our products and services by others or prevent others from claiming violations of their trade secrets and proprietary rights. We own the Internet domain names www.toogourmet.com and www.mycheftoys.com. Under current domain name registration practices, no one else can obtain an identical domain name, but someone might obtain a similar name, or the identical name with a different suffix, such as ".org", or with a country designation. The regulation of domain names in the United States and in foreign countries is subject to change, and we could be unable to prevent third parties from acquiring domain names that infringe or otherwise decrease the value of our domain names. Our Research and Development. We are not currently conducting any research and development activities other than the development of our website. We do not anticipate conducting such activities in the near future. Employees. As of August 15, 2001, we have one full time employee and one part time employee. We believe that our relations with our employees are good. We are not a party to any collective bargaining agreements. We anticipate entering into an employment contract with Cynthia A. Bergendahl, our president, secretary and one of our directors. Facilities. Our administrative offices are located at 280 White Cap Lane, Newport Coast, California 92657. We believe that our facilities are adequate for our needs. We do not own any real estate. Management's Discussion and Analysis of Financial Condition and Results of Operations - --------------------------------------------------------------------------- Our Plan of Operation for the Next Twelve Months. We have not generated any revenues from our operations. To effectuate our business plan during the next three to six months, we must continue to develop our website, market our products and services and develop our brand image. We are currently marketing, under our Too Gourmet label, specialty coffee. We intend to continue to develop and expand our line of gourmet grocery products. We are also in the process of developing our website to facilitate customer orders and delivery. Our plan of operation is materially dependent on our ability to generate revenues. Our operations to date have been focused on developing our brand name and establishing strategic relationships with providers of gourmet grocery foods and beverages. As a result of developing strategic relationships, we have been able to commence the marketing of our gourmet coffee. We believe that we will be able to generate revenues in the next three months and any revenues generated will be used to increase our products offerings as well as expand our operations. We have cash of $19,825 as of June 30, 2001. In the opinion of management, available funds will satisfy our working capital requirements through December 2001. Our forecast for the period for which our financial resources will be adequate to support our operations involves risks and uncertainties and actual results could fail as a result of a number of factors. We anticipate that we may need to raise additional capital to expand our operations. Such additional capital may be raised through public or private financing as well as borrowings and other sources. We cannot guaranty that additional funding will be available on favorable terms, if at all. If adequate funds are not available, then our ability to expand our operations may be adversely affected. If adequate funds are not available, we believe that our officers and directors will contribute funds to pay for our expenses. Therefore, we have not contemplated any plan of liquidation in the event that we do not generate revenues. We are not currently conducting any research and development activities, other than the development of our website. We do not anticipate conducting such activities in the near future. We do not anticipate that we will purchase or sale of any significant equipment. In the event that we generate significant revenues and expand our operations, then we may need to hire additional employees or independent contractors as well as purchase or lease additional equipment. 17 Description of Property - ----------------------- Property held by us. As of the date specified in the following table, we held the following property: =================================== ======================================= Property June 30, 2001 - ----------------------------------- --------------------------------------- Cash $19,825 - ----------------------------------- --------------------------------------- Property and Equipment, net $0 =================================== ======================================= Our Facilities. Our headquarters are located at 280 White Cap Lane, Newport Coast, California 92657. We believe that our facilities are adequate for our needs and that additional suitable space will be available on acceptable terms as required. We do not own any real estate. Certain Relationships and Related Transactions - ---------------------------------------------- Cynthia A. Bergendahl, our president, secretary and one of our directors, currently provides office space to us at no charge. Mrs. Bergendahl does not expect to be paid or reimbursed for providing office facilities. Matthew A. Bergendahl, our treasurer, director and a shareholder, is the spouse of Cynthia A. Bergendahl, our president, secretary, director and a founding shareholder. Cynthia A. Bergendahl is the brother of Michael J. Muellerleile, one of our shareholders and an employee of Stepp Law Group, which serves as our legal counsel. With regard to any future related party transaction, we plan to fully disclose any and all related party transactions, including, but not limited to, the following: o disclosing such transactions in prospectus' where required; o disclose in any and all filings with the Securities and Exchange Commission, where required; o obtain uninterested directors consent; and o obtain shareholder consent where required. Market for Common Equity and Related Stockholder Matters - -------------------------------------------------------- Reports to Security Holders. Our securities are not listed for trading on any exchange or quotation service. We are not required to comply with the timely disclosure policies of any exchange or quotation service. The requirements to which we would be subject if our securities were so listed typically include the timely disclosure of a material change or fact with respect to our affairs and the making of required filings. Although we are not required to deliver an annual report to security holders, we intend to provide an annual report to our security holders, which will include audited financial statements. When this registration statement becomes effective, we will be a reporting company pursuant to the Securities Exchange Act of 1934. We will be required file annual, quarterly and periodic reports with the Securities and Exchange Commission. The public may read and copy any materials filed with the Securities and Exchange Commission at the Security and Exchange Commission's Public Reference Room at 450 Fifth Street N.W., Washington, D.C. 20549. The public may also obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the Securities and Exchange Commission. The address of that site is http://www.sec.gov. There are no shares that can be sold pursuant to Rule 144 promulgated pursuant to the Securities Act of 1933. There are no outstanding options or warrants to purchase, or securities convertible into, shares of our common stock. There are no outstanding shares of our common stock that we have agreed to register under the Securities Act for sale by security holders. The approximate number of holders of record of shares of our common stock is twenty-eight. 18 There have been no cash dividends declared on our common stock. Dividends are declared at the sole discretion of our Board of Directors. Penny Stock Regulation. Shares of our common stock are subject to rules adopted by the Securities and Exchange Commission that regulate broker-dealer practices in connection with transactions in "penny stocks". Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on the Nasdaq system, provided that current price and volume information with respect to transactions in those securities is provided by the exchange or system. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from those rules, deliver a standardized risk disclosure document prepared by the Securities and Exchange Commission, which contains the following: o a description of the nature and level of risk in the market for penny stocks in both public offerings and secondary trading; o a description of the broker's or dealer's duties to the customer and of the rights and remedies available to the customer with respect to violation to such duties or other requirements of securities' laws; o a brief, clear, narrative description of a dealer market, including "bid" and "ask" prices for penny stocks and the significance of the spread between the "bid" and "ask" price; o a toll-free telephone number for inquiries on disciplinary actions; o definitions of significant terms in the disclosure document or in the conduct of trading in penny stocks; and o such other information and is in such form including language, type, size and format, as the Securities and Exchange Commission shall require by rule or regulation. Prior to effecting any transaction in penny stock, the broker-dealer also must provide the customer the following: o the bid and offer quotations for the penny stock; o the compensation of the broker-dealer and its salesperson in the transaction; o the number of shares to which such bid and ask prices apply, or other comparable information relating to the depth and liquidity of the market for such stock; and o monthly account statements showing the market value of each penny stock held in the customer's account. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser's written acknowledgment of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitably statement. These disclosure requirements may have the effect of reducing the trading activity in the secondary market for a stock that becomes subject to the penny stock rules. Holders of shares of our common stock may have difficulty selling those shares because our common stock will probably be subject to the penny stock rules. Executive Compensation - ---------------------- Any compensation received by our officers, directors, and management personnel will be determined from time to time by our Board of Directors. Our officers, directors, and management personnel will be reimbursed for any out-of-pocket expenses incurred on our behalf. Summary Compensation Table. The table set forth below summarizes the annual and long-term compensation for services in all capacities to us payable to our Chief Executive Officer and our other executive officers whose total annual salary and bonus are anticipated to exceed $50,000 during the year ending December 31, 2001. Our Board of Directors may adopt an incentive stock option plan for our executive officers which would result in additional compensation.
======================================= ======== ============ ============== ===================== ===================== Name and Principal Position Year Annual Bonus ($) Other Annual All Other Salary ($) Compensation ($) Compensation - --------------------------------------- -------- ------------ -------------- --------------------- --------------------- Cynthia A. Bergendahl - president, 2001 None None None None secretary - --------------------------------------- -------- ------------ -------------- --------------------- --------------------- Matthew A. Bergendahl - treasurer 2001 None None None None ======================================= ======== ============ ============== ===================== =====================
19 Compensation of Directors. Our directors who are also our employees receive no extra compensation for their service on our board of directors. Employment Contracts. We anticipate that we will enter into an employment agreement with Cynthia A. Bergendahl. Stock Option Plan. We anticipate that we will adopt a stock option plan, pursuant to which shares of our common stock will be reserved for issuance to satisfy the exercise of options. The stock option plan will be designed to retain qualified and competent officers, employees, and directors. Our board of directors, or a committee thereof, shall administer the stock option plan and will be authorized, in its sole and absolute discretion, to grant options thereunder to all of our eligible employees, including officers, and to our directors, whether or not those directors are also our employees. Options will be granted pursuant to the provisions of the stock option plan on such terms, subject to such conditions and at such exercise prices as shall be determined by our board of directors. Options granted pursuant to the stock option plan shall not be exercisable after the expiration of ten years from the date of grant. Financial Statements - -------------------- TOO GOURMET, INC. (A Development Stage Company) REPORT AND FINANCIAL STATEMENTS JUNE 30, 2001 20 TOO GOURMET, INC. (a development stage company) CONTENTS PAGE ------- Independent Auditor's Report 22 Financial Statements: Balance Sheet 23 Statement of Operations 24 Statement of Changes in Stockholders' Equity 25 Statement of Cash Flows 26 Notes to Financial Statements 27-30 21 Independent Auditor's Report To the Stockholders of Too Gourmet, Inc. I have audited the accompanying balance sheet of Too Gourmet, Inc. (a development stage company) as of June 30, 2001, and the related statements of operations, changes in stockholders' equity, and cash flows for the period April 9, 2001 (inception) through June 30, 2001. These financial statements are the responsibility of the Company's management. My responsibility is to express an opinion on these financial statements based on my audit. I conducted my audit in accordance with generally accepted auditing standards. Those standards require that I plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. I believe that my audit provides a reasonable basis for my opinion. In my opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Too Gourmet, Inc. (a development stage company) as of June 30, 2001, and the results of its operations and its cash flows for the period April 9, 2001 (inception) through June 30, 2001 in conformity with generally accepted accounting principles. /s/ Quintanilla A Professional Accountancy Corporation Laguna Niguel, California August 10, 2001 22 TOO GOURMET, INC. (a development stage company) BALANCE SHEET JUNE 30, 2001 ASSETS ------ Current assets Cash $ 19,825 Other current assets --- ---------------- Total current assets 19,825 Other assets --- ---------------- Total assets $ 19,825 ================ LIABILITIES AND STOCKHOLDERS' EQUITY ------------------------------------ Current liabilities Accounts payable and accrued expenses $ 4,605 ---------------- Total current liabilities 4,605 ---------------- Contingencies Stockholders' Equity Preferred stock, $.001 par value; Authorized shares-- 5,000,000 Issued and outstanding shares-- 0 --- ---------------- Common stock, $.001 par value; Authorized shares-- 50,000,000 Issued and outstanding shares-- 6,091,250 6,091 Additional paid-in capital 18,834 Deficit accumulated during the development stage (9,705) ----------------- Total stockholders' equity 15,220 ---------------- Total liabilities and stockholders' equity $ 19,825 ================ See accompanying notes to financial statements. 23 TOO GOURMET, INC. (a development stage company) STATEMENT OF OPERATIONS APRIL 9, 2001 (INCEPTION) THROUGH JUNE 30, 2001 Revenues Sales $ --- Less: returns and allowances --- ----------------- Net revenues --- ---------------- Operating expenses Consulting services 3,600 Legal and professional fees 6,070 Office expense 35 ----------------- Total operating expenses 9,705 ----------------- Loss from operations (9,705) ------------------ Provision for income tax expense (benefit) --- ----------------- Net loss/Comprehensive loss $ (9,705) ================= Net income per common share-- basic and diluted $ .002 ================== Weighted average of common shares-- basic and diluted 5,137,381 ================= See accompanying notes to financial statements. 24 TOO GOURMET, INC. (a development stage company) STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY PERIOD APRIL 9, 2001 (INCEPTION) THROUGH JUNE 30, 2001
Common Stock Additional --------------------------- Paid-In Accumulated Shares Amount Capital Deficit Total ------------ ----------- ----------- --------------- ------------ Balance, April 9, 2001 --- $ --- $ --- $ --- $ --- Issuance of common stock, April 10, 2001 3,600,000 3,600 --- --- 3,600 Issuance of common stock, April 11, 2001 1,500,000 1,500 --- --- 1,500 Issuance of common stock, June 17, 2001 250,000 250 4,750 --- 5,000 Issuance of common stock, June 28, 2001 741,250 741 14,084 --- 14,825 Net loss/Comprehensive loss --- --- --- (9,705) (9,705) ------------ ----------- ----------- --------------- ------------ Balance, June 30, 2001 6,091,250 $ 6,091 $ 18,834 $ (9,705) $ 15,220 ============= ============ =========== =============== ===========
See accompanying notes to financial statements. 25 TOO GOURMET, INC. (a development stage company) STATEMENT OF CASH FLOWS APRIL 9, 2001 THROUGH JUNE 30, 2001
CASH FLOWS FROM OPERATING ACTIVITIES Net loss $ (9,705) Adjustments to reconcile net loss to net cash used in operating activities Cost of consulting services paid with common stock 3,600 Cost of legal services paid with common stock 1,500 Changes in operating assets and liabilities Increase in accounts payable and accrued expenses 4,605 ----------------- Net cash provided by operating activities --- ----------------- CASH FLOWS FROM INVESTING ACTIVITIES --- ----------------- Net cash provided by investing activities --- ----------------- CASH FLOWS FROM FINANCING ACTIVITIES Proceeds from issuance of common stock 19,825 ----------------- Net cash provided by financing activities 19,825 ----------------- NET INCREASE IN CASH AND CASH EQUIVALENTS 19,825 CASH AND CASH EQUIVALENTS, beginning of period --- ----------------- CASH AND CASH EQUIVALENTS, end of period $ 19,825 ================= SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION Income taxes paid --- ---------------- Interest paid --- ----------------
Non-cash financing activities During the period April 9, 2001 (inception) through June 30, 2001, the Company issued 5,100,000 to its President, Secretary and third parties for Services valued at $5,100. See accompanying notes to financial statements. 26 TOO GOURMET, INC. (a development stage company) NOTES TO FINANCIAL STATEMENTS JUNE 30, 2001 Note 1 - BUSINESS DESCRIPTION AND SIGNIFICANT ACCOUNTING POLICIES Business Description - Too Gourmet, Inc. (the "Company") was incorporated in the state of Nevada on April 9, 2001. The Company is an Internet based gourmet grocery retailer for specialty and hard-to-find foods and spirits. The Company is headquartered in Newport Coast, California. Cash and Cash Equivalents - For purposes of the balance sheet and statement of cash flows, the Company considers all highly liquid debt instruments purchased with maturity of three months or less to be cash equivalents. Fair Value of Financial Instruments - The carrying value of cash and accounts payable and accrued expenses approximate their fair value due to the short period to maturity of these instruments. Recognition of Revenues and Costs of Goods Sold - The Company records revenues upon shipment to its customers and collectibility is reasonably assured The Company will also provide an allowance for returns when experience is established. Cost of goods sold consists of the payroll and related expenses of personnel used and the purchase price of products sold including inbound and outbound shipping charges. Income Taxes - The Company recognizes deferred tax assets and liabilities based on differences between the financial reporting and tax bases of assets and liabilities using the enacted tax rates and laws that are expected to be in effect when the differences are expected to be recovered. The Company provides a valuation allowance for deferred tax assets for which it does not consider realization of such assets to be more likely than not. Net Loss per Common Share - The Company has adopted the provisions of Statement of Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128"). SFAS 128 requires the reporting of basic and diluted earnings/loss per share. Basic loss per share is calculated by dividing net loss by the weighted average number of outstanding common shares during the period. Accounting Estimates - The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. 27 TOO GOURMET, INC. (a development stage company) NOTES TO FINANCIAL STATEMENTS JUNE 30, 2001 Note 1 - BUSINESS DESCRIPTION AND SIGNIFICANT ACCOUNTING POLICIES (CONT'D) New Accounting Pronouncements - In March 2000, the Emerging Issues Task Force (EITF) of the FASB reached a consensus on EITF Issue 00-2, "Accounting for Web Site Development Costs." This consensus provides guidance on what types of costs incurred to develop Web sites should be capitalized or expensed. Upon incorporation in March 2000, the Company adopted this consensus. Such capitalized costs, when applicable, are to be included in "Fixed assets, net" and will be depreciated over a period of two years. In September 2000, the EITF reached a final consensus on EITF Issue 00-10, "Accounting for Shipping and Handling Fees and Costs." This consensus requires that all amounts billed to a customer in a sale transaction related to shipping and handling, if any, represent revenue and should be classified as revenue. NOTE 2 - CONTINGENCIES As shown in the accompanying financial statements, the Company has incurred a net operating loss of $9,705 since inception through June 30, 2001. The Company is subject to those risks associated with development stage companies. The Company has sustained losses since inception and additional financing will be required by the Company to fund its development activities and to support operations. However, there is no assurance that the Company will be able to obtain additional financing. Furthermore, there is no assurance that rapid technological changes, changing customer needs and evolving industry standards associated with the Internet marketplace (e-commerce) will enable the Company to introduce new products and services on a continual and timely basis so that profitable operations can be attained. NOTE 3 - ACCRUED EXPENSES Accrued Wages and Compensated Absences - The Company currently does not have any employees. The majority of development costs and services have been provided to the Company by outside, third party vendors. As such, there is no accrual for wages or compensated absences as of June 30, 2001. 28 TOO GOURMET, INC. (a development stage company) NOTES TO FINANCIAL STATEMENTS JUNE 30, 2001 NOTE 4 - COMMON STOCK On April 10, 2001, the Company issued 3,600,000 shares of its common stock to its officers and founders for consulting services rendered in connection with the initial organization costs incurred. Since there was no readily available market value at the time the services were rendered, par value of $0.001 per share was considered as a reasonable estimate of fair value by the parties. On April 11, 2001, the Company issued 1,500,000 shares of its common stock to various individuals for legal services rendered in connection with the initial organization costs incurred. Since there was no readily available market value at the time the services were rendered, par value of $0.001 per share was considered as a reasonable estimate of fair value by the parties. On June 30, 2001, the Company completed a "best efforts" offering of its common stock pursuant to the provisions of Section 4(2) of the Securities Act of 1933 and Rule 506 of Regulation D promulgated by the Securities and Exchange Commission. In accordance with the Private Placement Memorandum Offering, which was initiated on June 11, 2001, the Company issued 991,250 shares of its common stock at $0.02 per share for a total of $19,825 from June 17th - June 30th 2001. NOTE 5 - INCOME TAXES At June 30, 2001, the Company has available for federal income tax purposes a net operating loss carryforward of approximately $9,705, expiring 2016, that may be used to offset future taxable income. Therefore, no provision for income taxes has been provided. In addition, the Company has deferred tax assets of approximately $2,300 at June 30, 2001. The Company has not recorded a benefit from its net operating loss carryforward because realization of the benefit is uncertain and, therefore, a valuation allowance of ($2,300) has been provided for the deferred tax assets. NOTE 6 - RELATED PARTY TRANSACTIONS On April 9, 2001, the Company issued 3,600,000 shares of its common stock to it current officers for services as described in Note 4. 29 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure - ------------------------------------------------------------------------- In June 2001, our Board of Directors appointed Quintanilla Accountancy Corporation, independent accountant, to audit our financial statements for the period from April 9, 2001, our date of formation, through June 30, 2001. Prior to our appointment of Quintanilla Accountancy Corporation as our auditor, our financial statements had not been audited. There have been no disagreements with our accountant since our formation required to be disclosed pursuant to Item 304 of Regulation S-B. LEGAL MATTERS The validity of the issuance of the shares of common stock offered by the selling security holders has been passed upon by Stepp Law Group, located in Newport Beach, California. EXPERTS Our financial statements for the period from April 9, 2001, our date of formation, through June 30, 2001, appearing in this prospectus which is part of a Registration Statement have been audited by Quintanilla Accountancy Corporation, and are included in reliance upon such reports given upon the authority of Quintanilla Accountancy Corporation, as experts in accounting and auditing. ADDITIONAL INFORMATION We have filed a Registration Statement on Form SB-2 with the Securities and Exchange Commission pursuant to the Securities Act of 1933 with respect to the common stock offered by the selling security holders. This prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules to the Registration Statement. For further information regarding us and our common stock offered hereby, reference is made to the Registration Statement and the exhibits and schedules filed as a part of the Registration Statement. 30 PART II - INFORMATION NOT REQUIRED IN PROSPECTUS Indemnification of Directors and Officers - ----------------------------------------- Article Seventh of our Articles of Incorporation provides, among other things, that our directors shall not be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except for: o any breach of such director's duty of loyalty to us or our security holders; o acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; o liability for unlawful payments of dividends or unlawful stock purchase or redemption by us; or o any transaction from which such director derived any improper personal benefit. Accordingly, our directors may have no liability to our shareholders for any mistakes or errors of judgment or for any act of omission, unless such act or omission involves intentional misconduct, fraud, or a knowing violation of law or results in unlawful distributions to our shareholders. Our Articles of Incorporation provides that we will indemnify our directors to the extent permitted by Nevada Revised Statutes, including circumstances in which indemnification is otherwise discretionary under the Nevada Revised Statutes. Our Articles of Incorporation also provides that to the extent that Nevada Revised Statutes is amended to permit further indemnification, we will so indemnify our directors. Section 78.7502 of the Nevada Revised Statutes provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to or is involved in any pending, threatened, or completed civil, criminal, administrative, or arbitration action, suit, or proceeding, or any appeal therein or any inquiry or investigation which could result in such action, suit, or proceeding, because of his or her being or having been our director, officer, employee, or agent or of any constituent corporation absorbed by us in a consolidation or merger or by reason of his or her being or having been a director, officer, trustee, employee, or agent of any other corporation or of any partnership, joint venture, sole proprietorship, trust, employee benefit plan, or such enterprise, serving as such at our request or of any such constituent corporation, or the legal representative of any such director, officer, trustee, employee, or agent, from and against any and all reasonable costs, disbursements, and attorney's fees, and any and all amounts paid or incurred in satisfaction of settlements, judgments, fines, and penalties, incurred or suffered in connection with any such proceeding. Section 10 of our Bylaws also provides that our officers and directors shall be indemnified and held harmless by us to the fullest extent permitted by the provisions of Section 78.7502 of the Nevada Revised Statutes. Indemnification Agreements. We anticipate that we will enter into indemnification agreements with each of our executive officers pursuant to which we will agree to indemnify each such officer for all expenses and liabilities, including criminal monetary judgments, penalties and fines, incurred by such person in connection with any criminal or civil action brought or threatened against such person by reason of such person being or having been our officer or director or employee. To be entitled to indemnification by us, such officer must have acted in good faith and in a manner such officer believed to be in our best interests and, with respect to criminal actions, such person must have had no reasonable cause to believe his or her conduct was unlawful. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. Other Expenses of Issuance and Distribution - ------------------------------------------- We will pay all expenses in connection with the registration and sale of the common stock by the selling security holders. The estimated expenses of issuance and distribution are set forth below. ========================================= ==================== ================ Registration Fees Approximately $78.96 - ----------------------------------------- -------------------- ---------------- Transfer Agent Fees Approximately $650.00 - ----------------------------------------- -------------------- ---------------- Costs of Printing and Engraving Approximately $500.00 - ----------------------------------------- -------------------- ---------------- Legal Fees Approximately $5,000.00 - ----------------------------------------- -------------------- ---------------- Accounting Fees Approximately $3,500.00 ========================================= ==================== ================ 31 Recent Sales of Unregistered Securities - --------------------------------------- There have been no sales of unregistered securities within the last three years which would be required to be disclosed pursuant to Item 701 of Regulation S-B, except for the following: In June 2001, we issued 991,250 shares of our common stock to twenty-six investors for $0.02 per share. The shares were issued in a transaction which we believe satisfies the requirements of that exemption from the registration and prospectus delivery requirements of the Securities Act of 1933, which exemption is specified by the provisions of Section 4(2) of that act and Rule 506 of Regulation D promulgated pursuant to that act by the Securities and Exchange Commission. Specifically, the offer was made to "accredited investors", as that term is defined under applicable federal and state securities laws, and no more than 35 non-accredited investors. We believe that each purchaser who was not an accredited investor has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the prospective investment. Each investor was given adequate access to sufficient information about us to make an informed investment decision. There were no commissions paid on the sale of these shares. The net proceeds to us were $19,825. On April 11, 2001, we issued 1,500,000 shares of our common stock to Thomas E. Stepp, Jr., Michael Muellerleile, Deron Colby, Richard Reincke, Amy Pontillas, Sandie M. Williams, Myra E. Capoccia, and Lan P. Nguyen, in a transaction which we believe satisfies the requirements of that certain exemption from the registration and prospectus delivery requirements of the Securities Act of 1933, which exemption is specified by the provisions of Section 4(2) of the Securities Act of 1933, as amended. The shares were issued in exchange for services provided to us, which were valued at $1,500. On April 10, 2001, we issued 3,000,000 shares of our common stock to Cynthia A. Bergendahl, our president, secretary, and one of our directors and 600,000 shares of our common stock to Matthew A. Bergendahl, our treasurer and one of our directors. The shares were issued in a transaction which we believe satisfies the requirements of that certain exemption from the registration and prospectus delivery requirements of the Securities Act of 1933, which exemption is specified by the provisions of Section 4(2) of the Securities Act of 1933, as amended. The shares were issued in exchange for services provided to us, which were valued at $3,600. Exhibits - -------- Copies of the following documents are filed with this Registration Statement as exhibits: Exhibit No. - ----------- 1. Underwriting Agreement (not applicable) 3.1 Articles of Incorporation 3.2 Bylaws 5. Opinion Re: Legality 8. Opinion Re: Tax Matters (not applicable) 11. Statement Re: Computation of Per Share Earnings* 15. Letter on unaudited interim financial information (not applicable) 23.1 Consent of Auditors 23.2 Consent of Counsel** 24. Power of Attorney is included on the Signature Page of the Registration Statement 32 * Included in Financial Statements ** Included in Exhibit 5 Undertakings - ------------ A. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities, other than the payment by us of expenses incurred or paid by our director, officer or controlling person in the successful defense of any action, suit or proceeding, is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. B. We hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a) (3) of the Securities Act of 1933; (ii) To specify in the prospectus any facts or events arising after the effective date of the Registration Statement or most recent post-effective amendment thereof which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered, if the total dollar value of securities offered would not exceed that which was registered, and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b), Section 230.424(b) of Regulation S-B, if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any additional or changed material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 33 SIGNATURES In accordance with the requirements of the Securities Act of 1933, as amended, we certify that we have reasonable grounds to believe that we meet all of the requirements of filing on Form SB-2 and authorized this Registration Statement to be signed on our behalf by the undersigned, in the city of Newport Beach, California, on August 15, 2001. Too Gourmet, Inc. a Nevada corporation By: /s/ Cynthia A. Bergendahl ------------------------------------- Cynthia A. Bergendahl Its: president, secretary and a director In accordance with the requirements of the Securities Act of 1933, this Registration Statement was signed by the following persons in the capacities and on the dates stated: /s/ Cynthia A. Bergendahl August 15, 2001 - -------------------------------------------- Cynthia A. Bergendahl president, secretary and a director /s/ Matthew A. Bergendahl August 15, 2001 - -------------------------------------------- Matthew A. Bergendahl treasurer, principal financial officer and a director EX-3.(I) 3 artofincp.txt ARTICLES OF INCORPORATION OF TOO GOURMET, INC. I, the undersigned, for the purposes of incorporating and organizing a corporation pursuant to the General Corporation Law of the State of Nevada, do execute these Articles of Incorporation and do hereby certify as follows: FIRST. The name of this corporation is Too Gourmet, Inc. ----------------- SECOND. The address of this corporation's registered office in the State of Nevada is 502 East John Street, Carson City, Nevada 89706. The name of its resident agent at such address is CSC Services of Nevada, Inc. THIRD. The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized pursuant to the General Corporation Law of the State of Nevada. FOURTH. The total number of shares of capital stock which this corporation shall have authority to issue is fifty five million (55,000,000) with a par value of $.001 per share amounting to $55,000.00. Fifty million (50,000,000) of those shares are Common Stock and five million (5,000,000) of those shares are Preferred Stock. Each share of Common Stock shall entitle the holder thereof to one vote, in person or by proxy, on any matter on which action of the stockholders of this corporation is sought. The holders of shares of Preferred Stock shall have no right to vote such shares, except (i) determined by the Board of Directors of this corporation in accordance with the provisions of Section (3) of ARTICLE FIFTH of these Articles of Incorporation, or (ii) as otherwise provided by the Nevada General Corporation Law, as amended from time to time. FIFTH. The Board of Directors of this corporation shall be, and hereby is, authorized and empowered, subject to limitations prescribed by law and the provisions of the Article FOURTH of these Articles of Incorporation, to provide for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Nevada, to establish from time to time the number of shares to be included in each such series, and to fix the designations, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions of each such series. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following: 1 (1) The number of shares constituting such series and the distinctive designation of such series; (2) The dividend rate on the shares of such series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of such series; (3) Whether such series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights; (4) Whether such series shall have conversion privileges, and, if so, the terms and conditions of such conversion privileges, including provision for adjustment of the conversion rate, in such events as the Board of Directors shall determine; (5) Whether or not the shares of such series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or date upon or after which those shares shall be redeemable, and the amount per share payable in the event of redemption, which amount may vary in different circumstances and at different redemption dates; (6) Whether that series shall have a sinking fund for the redemption or purchase of shares of such series, and, if so, the terms and amount of such sinking fund; (7) The rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding up of this corporation, and the relative rights of priority, if any, of payment of shares of such series; and (8) Any other relative rights, preferences and limitations of such series. Dividends on issued and outstanding shares of Preferred Stock shall be paid or declared and set apart for payment prior to any dividends shall be paid or declared and set apart for payment on the shares of Common Stock with respect to the same dividend period. If, upon any voluntary or involuntary liquidation, dissolution or winding up of this corporation, the assets of this corporation available for distribution to holders of shares of Preferred Stock of all series shall be insufficient to pay such holders the full and complete preferential amount to which such holders are entitled, then such assets shall be distributed ratably among the shares of all series of Preferred Stock in accordance with the respective preferential amounts, including unpaid cumulative dividends, if any, payable with respect thereto. SIXTH. The incorporator of this corporation is Michael J. Muellerleile, whose mailing address is 1301 Dove Street, Suite 460, Newport Beach, California 92660. The powers of the incorporator are to terminate upon the filing of these Articles of Incorporation. SEVENTH. No director or officer of this corporation shall have any personal liability to this corporation or its stockholders for damages for breach of fiduciary duty as a director or officer, except that this Article Seventh shall not eliminate or limit the liability of a director or officer for (i) acts or omissions which involve intentional misconduct, fraud or a knowing violation of law, or (ii) the payment of dividends in violation of the Nevada General Corporation Law. Any repeal or modification of this article by the stockholders of this corporation shall not adversely affect any right or protection of any director of this corporation existing at the time of such repeal or modification. 2 EIGHTH. This corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision specified in these Articles of Incorporation, and other provisions authorized by the laws of the State of Nevada at any such time then in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in their present form or as hereafter amended are granted subject to the rights reserved in this article. NINTH. Capital stock issued by this corporation after the amount of the subscription price or par value therefor has been paid in full shall not be subject to pay debts of this corporation, and no capital stock issued by this corporation and for which payment has been made shall ever be assessable or assessed. TENTH. (a) The affairs of this corporation shall be governed by a Board of Directors of not more than fifteen (15) persons nor less than one (1) person, as determined from time to time by vote of a majority of the Board of Directors of this corporation; provided, however, that the number of directors shall not be reduced so as to reduce the term of any director at the time in office. The name and address of the initial member of the Board of Directors, which shall initially consist of one director, are: 1. Cynthia Bergendahl 1301 Dove Street, Suite 460 Newport Beach, California 92660 (b) The Board of Directors of this corporation shall be divided into three (3) classes, as nearly equal in numbers as the then total number of directors constituting the entire Board of Directors permits, with the term of office of one class expiring each year. At the first annual meeting of stockholders of this corporation directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting of those stockholders, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting, and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting of those stockholders. Any vacancies in the Board of Directors for any reason, and any directorships resulting from any increase in the number of directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall be elected and qualified. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of this corporation, the terms of the director or directors elected by such holders shall expire at the next succeeding annual meeting of stockholders. Subject to the foregoing, at each annual meeting of stockholders the successors to the class of directors whose terms shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting of stockholders. 3 (c) Notwithstanding any other provisions of these Articles of Incorporation or the bylaws of this corporation (and notwithstanding the fact that some lesser percentage may be specified by law, these Articles of Incorporation or the bylaws of this corporation), any director or the entire Board of Directors of this corporation may be removed at any time, but only for cause and only by the affirmative vote of the holders of seventy-five percent (75%) or more of the outstanding shares of capital stock of this corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders of this corporation called for that purpose. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a class, to elect one or more directors of this corporation, the provisions of section (c) of this article shall not apply with respect to the director or directors elected by such holders of Preferred Stock. ELEVENTH. The period of existence of this corporation shall be perpetual. TWELFTH. No contract or other transaction between this corporation and any other corporation, whether or not a majority of the shares of the capital stock of such other corporation is owned by this corporation, and no act of this corporation shall in any way be affected or invalidated by the fact that any of the directors of this corporation are pecuniarily or otherwise interested in, or are directors or officers of such other corporation. Any director of this corporation, individually, or any firm of which such director may be a member, may be a party to, or may be pecuniarily or otherwise interested in any contract or transaction of this corporation; provided, however, that the fact that he or such firm is so interested shall be disclosed or shall have been known to the Board of Directors of this corporation, or a majority thereof; and any director of this corporation who is also a director or officer of such other corporation, or who is so interested, may be counted in determining the existence of a quorum at any meeting of the Board of Directors of this corporation that shall authorize such contract or transaction, and may vote thereat to authorize such contract or transaction, with the same force and effect as if he or she were not such director or officer of such other corporation or not so interested. 4 THIRTEENTH. Subject to the provisions of any series of Preferred Stock of this corporation which may at the time be issued and outstanding and convertible into shares of Common Stock of this corporation, the affirmative vote of at least two-thirds (2/3) of the outstanding shares of Common Stock held by stockholders of this corporation other than the "related person" (as defined later in these Articles of Incorporation), shall be required for the approval or authorization of any "business combination" (as defined later in these Articles of Incorporation) of this corporation with any related person; provided, however, that such voting requirement shall not be applicable if: (1) The business combination was approved by the Board of Directors of this corporation either (A) prior to the acquisition by such related person of the beneficial ownership of twenty percent (20%) or requisition the outstanding shares of the Common Stock of this corporation, or (B) after such acquisition, but only during such time as such related person has sought and obtained the unanimous approval by the Board of Directors of this corporation of such acquisition of more than 20% of the Common Stock prior to such acquisition being consummated; or (2) The business combination is solely between this corporation and another corporation, fifty percent (50%) or more of the voting stock of which is owned by a related person; provided, however, that each stockholder of this corporation receives the same type of consideration in such transaction in proportion to his or her stockholdings; or (3) All of the following conditions are satisfied: (A) The cash or fair market value of the property, securities or other consideration to be received per share by holders of Common Stock of this corporation in the business combination is not less than the higher of (i) the highest per share price (including brokerage commissions, soliciting dealers fees, dealer-management compensation, and other expenses, including, but not limited to, costs of newspaper advertisements, printing expenses and attorneys' fees) paid by such related person in acquiring any of its holdings of this corporation's Common Stock or (ii) an amount which has the same or a greater percentage relationship to the market price of this corporation's Common Stock immediately prior to the commencement of acquisition of this corporation's Common Stock by such related person, but in no event in excess of two (2) times the highest per share price determined in clause (i), above; and (B) After becoming a related person and prior to the consummation of such business combination, (i) such related person shall not have acquired any newly issued shares of capital stock, directly or indirectly, from this corporation (except upon conversion of convertible securities acquired by it prior to becoming a related person or upon compliance with the provision of this article or as a result of a pro rata 5 stock dividend or stock split) and (ii) such related person shall not have received the benefit, directly or indirectly, (except proportionately as a stockholder) of any loans, advances, guarantees, pledges or other financial assistance or tax credits provided by this corporation, or made any major changes in this corporation's business or equity capital structure; and (C) A proxy statement complying with the requirements of the Securities Exchange Act of 1934, whether or not this corporation is then subject to such requirements, shall be mailed to the public stockholders of this corporation for the purpose of soliciting stockholder approval of such business combination and shall contain at the front thereof, in a prominent place (i) any recommendations as to the advisability (or inadvisability) of the business combination which the continuing directors, or any outside directors, may determine to specify, and (ii) the opinion of a reputable national investment banking firm as to the fairness (or not) of the terms of such business combination, from the point of view of the remaining public stockholders of this corporation (such investment banking firm to be engaged solely on behalf of the remaining public stockholders, to be paid a reasonable fee for its services by this corporation upon receipt of such opinion, to be a reputable national investment banking firm which has not previously been associated with such related person and, if there are at the time any such directors, to be selected by a majority of the continuing directors and outside directors). For purposes of this article: (1) The term "business combination" shall be defined as and mean (a) any merger or consolidation of this corporation with or into a related person; (b) any sale, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or any other security device, of all or any substantial part of the assets of this corporation, including, without limitation, any voting securities of a subsidiary, or of a subsidiary, to a related person; (c) any merger or consolidation of a related person with or into this corporation or a subsidiary of this corporation; (d) any sale, lease, exchange, transfer or other disposition of all or any substantial part of the assets of a related person to this corporation or a subsidiary of this corporation; (e) the issuance of any securities of this corporation or a subsidiary of this corporation to a related person; (f) the acquisition by this corporation or a subsidiary of this corporation of any securities of a related person; (g) any reclassification of Common Stock of this corporation, or any recapitalization involving Common Stock of this corporation, consummated within five (5) years after a related person becomes a related person, and (h) any agreement, contract or other arrangement providing for any of the transactions described in this definition of business combination. 6 (2) The term "related person" shall be defined as and mean and include any individual, corporation, trust, association, partnership or other person or entity which, together with their "affiliates" and "associates" (defined later in these Articles of Incorporation), "beneficially" owns (as this term is defined in Rule 13d-3 of the General Rules and Regulations pursuant to the Securities Exchange Act of 1934), in the aggregate 20% or more of the outstanding shares of the Common Stock of this corporation, and any "affiliate" or "associate" (as those terms are defined in Rule 12b-2 pursuant to the Securities Exchange Act of 1934) of any such individual, corporation, trust, association, partnership or other person or entity; (3) The term "substantial part" shall be defined as and mean more than ten percent (10%) of the total assets of the corporation in question, as of the end of its most recent fiscal year ending prior to the time the determination is being made; (4) Without limitation, any shares of Common Stock of this corporation which any related person has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, shall be deemed beneficially owned by such related person; (5) For the purposes of this article, the term "other consideration to be received" shall include, without limitation, Common Stock of this corporation retained by its existing public stockholders in the event of a business combination with such related person pursuant to which this corporation is the surviving corporation; and (6) With respect to any proposed business combination, the term "continuing director" shall be defined as and mean a director who was a member of the Board of Directors of this corporation immediately prior to the time that any related person involved in the proposed business combination acquired twenty percent (20%) or more of the outstanding shares of Common Stock of this corporation, and the term "outside director" shall be defined as and mean a director who is not (a) an officer or employee of this corporation or any relative of an officer or employee, (b) a related person or an officer, director employee, associate or affiliate of a related person, or a relative of any of the foregoing, or (c) a person having a direct or indirect material business relationship with this corporation. FOURTEENTH. No action required to be taken or which may be taken at any annual or special meeting of stockholders of this corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. FIFTEENTH. All of the powers of this corporation, insofar as the same may be lawfully vested by these Articles of Incorporation in the Board of Directors, are hereby conferred upon the Board of Directors of this corporation. In furtherance and not in limitation of that power, the Board of Directors shall have the power to make, adopt, alter, amend and repeal from time to time bylaws of this corporation, subject to the right of the shareholders entitled to vote with respect thereto to adopt, alter, amend and repeal bylaws made by the Board of Directors; provided, however, that bylaws shall not be adopted, altered, amended or repealed by the stockholders of this corporation, except by the vote of the holders of not less than two thirds (2/3) of the outstanding shares of stock entitled to vote upon the election of directors. 7 The undersigned incorporator hereby acknowledges that the foregoing Articles of Incorporation is his act and deed. IN WITNESS WHEREOF, the undersigned incorporator has hereunto affixed his signature at Newport Beach, California this 7th day of April, 2001. Incorporator: /s/ Michael J. Muellerleile - ----------------------------- Michael J. Muellerleile EX-3.(II) 4 tooby-laws.txt BYLAWS OF TOO GOURMET, INC., a Nevada corporation SECTION 1. OFFICES The principal office of Too Gourmet, Inc., a Nevada corporation ("Corporation") shall be located at the principal place of business or such other place as the Board of Directors ("Board") may designate. The Corporation may have such other offices, either within or without the State of Nevada, as the Board may designate or as the business of the Corporation may require from time to time. SECTION 2. SHAREHOLDERS 2.1 Annual Meeting The annual meeting of the shareholders shall be held the first Friday of March in each year, or on such other day as shall be fixed by resolution of the Board, at the principal office of the Corporation, or such other place as fixed by the Board, for the purpose of electing directors and transacting such other business as may properly come before that meeting. If the day fixed for the annual meeting is a legal holiday at the place of that meeting, that meeting shall be held on the next succeeding business day. 2.2 Special Meetings The Board, the President, or the Chairperson of the Board, may call special meetings of the shareholders for any purpose. The holders of not less than ten percent (10%) of all the outstanding shares of the Corporation entitled to vote for or against any issue proposed to be considered at the proposed special meeting, if they date, sign and deliver to the Corporation's Secretary a written demand for a special meeting specifying the purpose or purposes for which it is to be held, may call a special meeting of the shareholders for such specified purpose. 2.3 Place of Meeting All meetings shall be held at the principal office of the Corporation, or at such other place as designated by the Board, by any persons entitled to call a meeting pursuant to the bylaws, or in a waiver of notice signed by all of the shareholders entitled to vote at that meeting. 1 2.4 Notice of Meeting (a) The Corporation shall cause to be delivered to each shareholder entitled to notice of, or to vote at, an annual or special meeting of shareholders, either personally or by mail, not less than ten (10) days nor more than sixty (60) days before that meeting, written notice stating the date, time and place of that meeting and, in the case of a special meeting, the purpose or purposes for which that meeting is called. (b) Notice to a shareholder of an annual or special shareholders meeting shall be in writing. Such notice, if in comprehensible form, is effective (a) when mailed, if it is mailed postpaid and is correctly addressed to that shareholder's address specified in the Corporation's then current record of shareholders, or (b) when received by that shareholder, if it is delivered by telegraph, facsimile transmission or private courier. (c) If an annual or special shareholders meeting is adjourned to a different date, time, or place, notice of the new date, time, or place shall not be required if the new date, time, or place is announced at that meeting before adjournment, unless a new record date for the adjourned meeting is, or must be, fixed pursuant to (i) Section 2.6(a) of these bylaws or (ii) the Nevada General Corporation Law. 2.5 Waiver of Notice (a) Whenever any notice is required to be given to any shareholder pursuant to the provisions of these bylaws, the Articles of Incorporation or the Nevada General Corporation Law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time specified in such notice, and delivered to the Corporation for inclusion in the minutes for filing with the corporate records, shall be deemed equivalent to the giving of such notice. (b) The attendance of a shareholder at a meeting shall be a waiver of each objection to lack of, or defect in, notice of such meeting or of consideration of a particular matter at that meeting, unless that shareholder, at the beginning of that meeting or prior to consideration of such matter, objects to holding that meeting, transacting business at that meeting, or considering the matter when presented at that meeting. 2.6 Fixing of Record Date for Determining Shareholders (a) For the purpose of determining shareholders entitled to notice of, or to vote at, any meeting of shareholders, or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or to make a determination of shareholders for any other purpose, the Board may fix in advance a date as the record date for any such determination. Such record date shall be not more than seventy (70) days, and in case of a meeting of 2 shareholders, not less than ten (10) days, prior to the date on which the particular action requiring such determination is to be taken. If no record date is fixed for the determination of shareholders entitled to notice of, or to vote at, a meeting, or to receive payment of a dividend, the date on which the notice of meeting is mailed or on which the resolution of the Board declaring such dividend is adopted, as the case may be, shall be the record date for such determination. Such determination shall apply to any adjournment of that meeting; provided, however, such adjournment is not set for a date more than one hundred twenty (120) days after the date fixed for the original meeting. (b) The record date for the determination of shareholders entitled to demand a special shareholders meeting shall be the date the first shareholder signs the demand. 2.7 Shareholders' List (a) Beginning two (2) business days after notice of a meeting of shareholders is given, a complete alphabetical list of the shareholders entitled to notice of that meeting shall be made, arranged by voting group, and within each voting group by class or series, with the address of and number of shares held by each shareholder. Such record shall be kept on file at the Corporation's principal office or at a place identified in that meeting notice in the city where the meeting will be held. On written demand, such record shall be subject to inspection by any shareholder at any time during normal business hours. Such record shall also be kept open at that meeting for inspection by any shareholder. (b) A shareholder may, on written demand, copy the shareholders' list at such shareholder's expense during regular business hours; provided, however, that: (i) Such shareholder's demand is made in good faith and for another purpose; (ii) Such shareholder has described with reasonable particularity such shareholder's purpose specified in the written demand; and (iii) The shareholders' list is directly related to such shareholder's purpose. 2.8 Quorum A majority of the votes entitled to be cast on a matter at a meeting by a voting group, represented in person or by proxy, shall constitute a quorum of that voting group for action on that matter at a meeting of the shareholders. If a quorum is not present for a matter to be acted upon, a majority of the shares represented at that meeting may adjourn that meeting from time to time without additional notice. If the necessary quorum is present or represented at a reconvened meeting following such an adjournment, any business may be transacted that might have been transacted at the meeting as originally called. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. 3 2.9 Manner of Acting (a) If a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the affirmative vote of a greater number is required by these bylaws, the Articles of Incorporation or the Nevada General Corporation Law. (b) If a matter is to be voted on by a single group, action on that matter is taken when voted upon by that voting group. If a matter is to be voted on by two (2) or more voting groups, action on that matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group entitled to vote on such matter. 2.10 Proxies A shareholder may vote by proxy executed in writing by that shareholder or by his or her attorney-in-fact. Such proxy shall be effective when received by the Secretary or other officer or agent authorized to tabulate votes at the meeting. A proxy shall become invalid eleven (11) months after the date of its execution, unless otherwise expressly provided in the proxy. A proxy for a specified meeting shall entitle the holder thereof to vote at any adjournment of that meeting, but shall not be valid after the final adjournment thereof. 2.11 Voting of Shares Each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders. 2.12 Voting for Directors Each shareholder may vote, in person or by proxy, the number of shares owned by such shareholder that are entitled to vote at an election of directors, for as many persons as there are directors to be elected and for whose election such shares have a right to vote. Unless otherwise provided in the Articles of Incorporation, directors are elected by a plurality of the votes cast by shares entitled to vote in the election at a meeting at which a quorum is present. 4 2.13 Voting of Shares by Corporations 2.13.1 Shares Held by Another Corporation Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the bylaws of such other corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine; provided, however, such shares are not entitled to vote if the Corporation owns, directly or indirectly, a majority of the shares entitled to vote for directors of such other corporation. 2.13.2 Shares Held by the Corporation Authorized but unissued shares shall not be voted or counted for determining whether a quorum exists at any meeting or counted in determining the total number of outstanding shares at any given time. Notwithstanding the foregoing, shares of its own stock held by the Corporation in a fiduciary capacity may be counted for purposes of determining whether a quorum exists, and may be voted by the Corporation. 2.14 Acceptance or Rejection of Shareholder Votes, Consents, Waivers and Proxy Appointments 2.14.1 Documents Bearing Name of Shareholders If the name signed on a vote, consent, waiver or proxy appointment corresponds to the name of a shareholder, the Secretary or other agent authorized to tabulate votes at the meeting may, if acting in good faith, accept such vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder. 2.14.2 Documents Bearing Name of Third Parties If the name signed on a vote, consent, waiver or proxy appointment does not correspond to the name of its shareholder, the Secretary or other agent authorized to tabulate votes at the meeting may nevertheless, if acting in good faith, accept such vote, consent, waiver or proxy appointment and give it effect as the act of the shareholder if: 5 (a) The shareholder is an entity and the name signed purports to be that of an officer or an agent of that entity; (b) The name signed purports to be that of an administrator, executor, guardian or conservator representing the shareholder and, if the Secretary or other agent requests, acceptable evidence of fiduciary status has been presented; (c) The name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder, and, if the Secretary or other agent requests, acceptable evidence of this status has been presented; (d) The name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Secretary or other agent requests, acceptable evidence of the signatory's authority to sign has been presented; or (e) Two or more persons are the shareholder as co-owners or fiduciaries and the name signed purports to be the name of at least one of the co-owners and the person signing appears to be acting on behalf of all co-owners. 2.14.3 Rejection of Documents The Secretary or other agent authorized to tabulate votes at the meeting is entitled to reject a vote, consent, waiver or proxy appointment if such agent, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the shareholder. SECTION 3. BOARD OF DIRECTORS 3.1 General Powers The business and affairs of the Corporation shall be managed by the Board, except as may be otherwise provided in these Bylaws, the Articles of Incorporation or the Nevada General Corporation Law. 6 3.2 Number, Tenure and Qualifications The Board of Directors shall consist of no less than one (1) and no more than fifteen (15) Directors, the specific number to be set by resolution of the Board of Directors. The number of directors may be changed from time to time by amendment to these Bylaws, but no decrease in the number of directors shall shorten the term of any incumbent director. The terms of the directors expire at the next annual shareholder's meeting following their election. Despite the expiration of a director's term, however, the director shall continue to serve until such director's successor is elected and qualifies or until there is a decrease in the number of directors. Directors need not be shareholders of the Corporation or residents of the State of Nevada. 3.3 Annual and Regular Meetings An annual meeting of the Board of Directors shall be held without additional notice immediately after and at the same place as the annual meeting of shareholders. By resolution the Board of Directors, or any committee thereof, may specify the time and place for holding regular meetings thereof without other notice than such resolution. 3.4 Special Meetings Special meetings of the Board of Directors or any committee designated by the Board of Directors may be called by or at the request of the Chair of the Board of Directors, or the President or any director and, in the case of any special meeting of any committee designated by the Board of Directors, by the Chair thereof. The person or persons authorized to call special meetings may fix any place either within or without the State of Nevada as the place for holding any special Board or committee meeting called by them. 3.5 Meetings by Telecommunications Members of the Board of Directors or any committee designated by the Board of Directors may participate in a meeting of the Board of Directors or such committee by use of any means of telecommunications equipment pursuant to which all persons participating may simultaneously hear each other during such meeting. Participation by such method shall be deemed presence in person at such meeting. 7 3.6 Notice of Special Meetings Notice of a special Board of Directors or committee meeting specifying the date, time and place of such meeting shall be given to a director in writing or orally by telephone or in person as specified below. Neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice of such meeting. 3.6.1 Personal Delivery If delivery is by personal service, the notice shall be effective if delivered at the address specified on the records of the Corporation at least one day before the meeting. 3.6.2 Delivery by Mail If notice is delivered by mail, the notice shall be deemed effective if deposited in the official government mail at least five (5) days before the meeting properly addressed to a director at his or her address specified on the records of the Corporation with postage prepaid. 3.6.3 Delivery by Telegraph If notice is delivered by telegraph, the notice shall be deemed effective if the content thereof is delivered to the telegraph company by such time that the telegraph company guarantees delivery at least one day before the meeting. 3.6.4 Oral Notice If notice is delivered orally, by telephone or in person, the notice shall be effective if personally given to a director at least one day before the meeting. 3.6.5 Notice by Facsimile Transmission If notice is delivered by facsimile transmission, the notice shall be deemed effective if the content thereof is transmitted to the office of a director, at the facsimile number specified on the records of the Corporation, at least one day before the meeting, and receipt is either confirmed by confirming transmission equipment or acknowledged by the receiving office. 3.6.6 Notice by Private Courier If notice is delivered by private courier, the notice shall be deemed effective if delivered to the courier, properly addressed and prepaid, by such time that the courier guarantees delivery at least one day before the meeting. 8 3.7 Waiver of Notice 3.7.1 Written Waiver Whenever any notice is required to be given to any director pursuant to the provisions of these Bylaws, the Articles of Incorporation or the Nevada General Corporation Law, a waiver thereof in writing, executed at any time, specifying the meeting for which notice is waived, signed by the person or persons entitled to such notice, and filed with the minutes or corporate records, shall be deemed equivalent to the giving of such notice. 3.7.2 Waiver by Attendance The attendance of a director at a Board of Directors or committee meeting shall constitute a waiver of notice of such meeting, unless such director, at the beginning of the meeting, or promptly upon such director's arrival, objects to holding the meeting or transacting any business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 3.8 Quorum A majority of the number of directors determined by or in the manner provided by these Bylaws shall constitute a quorum for the transaction of business at any Board of Directors meeting. 3.9 Manner of Acting The act of the majority of the directors present at a Board of Directors or committee meeting at which there is a quorum shall be the act of the Board of Directors or committee, unless the vote of a greater number is required by these Bylaws, the Articles of Incorporation or the Nevada General Corporation Law. 3.10 Presumption of Assent A director of the Corporation present at a Board of Directors or committee meeting at which action on any corporate matter is taken shall be deemed to have assented to the action taken unless such director objects at the beginning of the meeting, or promptly upon such director's arrival, to holding the meeting or transacting business at the meeting; or such director's dissent is entered in the minutes of the meeting; or such director delivers a written notice of dissent or abstention to such action with the presiding officer of the meeting before the adjournment thereof; or such director forwards such notice by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. A director who voted in favor of such action may not thereafter dissent or abstain. 9 3.11 Action by Board of Directors or Committee Without a Meeting Any action which could be taken at a meeting of the Board of Directors or of any committee appointed by the Board of Directors may be taken without a meeting, if a written consent setting forth the action so taken is signed by each Director or by each committee member. The action shall be effective when the last signature is placed on the consent, unless the consent specifies an earlier or later date. Such written consent, which shall have the same effect as a unanimous vote of the directors or such committee, shall be inserted in the minute book as if it were the minutes of a Board of Directors or committee meeting. 3.12 Resignation Any director may resign at any time by delivering written notice to the Chair of the Board of Directors, the Board of Directors, or to the registered office of the Corporation. Such resignation shall take effect at the time specified in the notice, or if no time is specified, upon delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors. 3.13 Removal One or more members of the Board of Directors (including the entire Board of Directors) may be removed at a meeting of shareholders called expressly for that purpose, provided that the notice of such meeting states that the purpose, or one of the purposes, of the meeting is such removal. A member of the Board of Directors may be removed with or without cause, unless the Articles of Incorporation permit removal for cause only, by a vote of the holders of a majority of the shares then entitled to vote on the election of the director. A director may be removed only if the number of votes cast to remove the director exceeds the number of votes cast to not remove the director. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove such director. 10 3.14 Vacancies Any vacancy occurring on the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by the shareholders, by the Board of Directors, by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office; except that the term of a director elected by the Board of Directors to fill a vacancy expires at the next shareholders' meeting at which directors are elected. Any directorship to be filled by reason of an increase in the number of directors may be filled by the affirmative vote of a majority of the number of directors fixed by the Bylaws prior to such increase for a term of office continuing only until the next election of directors by the shareholders. Any directorship not so filled by the directors shall be filled by election at the next annual meeting of shareholders or at a special meeting of shareholders called for that purpose. If the vacant directorship is filled by the shareholders and was held by a director elected by a voting group of shareholders, then only the holders of shares of that voting group are entitled to vote to fill such vacancy. A vacancy that will occur at a specific later date by reason of a resignation effective at such later date or otherwise may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs. 3.15 Minutes The Board of Directors shall keep minutes of its meetings and shall cause them to be recorded in books kept for that purpose. 3.16 Executive and Other Committees 3.16.1 Creation of Committees The Board of Directors, by resolution adopted by a majority of the number of Directors fixed in the manner provided by these Bylaws, may appoint standing or temporary committees, including an Executive Committee, from its own number. The Board of Directors may invest such committee(s) with such powers as it may see fit, subject to such conditions as may be prescribed by the Board of Directors, these Bylaws, the Articles of Incorporation and the Nevada General Corporation Law. 3.16.2 Authority of Committees Each committee shall have and may exercise all of the authority of the Board of Directors to the extent provided in the resolution of the Board of Directors designating the committee and any subsequent resolutions pertaining thereto and adopted in like manner, except that no such committee shall have the authority to (a) authorize distributions, except as may be permitted by Section 3.16.2 (g) of 11 these Bylaws; (b) approve or propose to shareholders actions required by the Nevada General Corporation Law to be approved by shareholders; (c) fill vacancies on the Board of Directors or any committee thereof; (d) adopt, amend or repeal these Bylaws; (e) amend the Certificate of Incorporation; (f) approve a plan of merger not requiring shareholder approval; or (g) authorize or approve reacquisition of shares, except within limits prescribed by the Board of Directors. 3.16.3 Quorum and Manner of Acting A majority of the number of Directors composing any committee of the Board of Directors, as established and fixed by resolution of the Board of Directors, shall constitute a quorum for the transaction of business at any meeting of such committee. 3.16.4 Minutes of Meetings All committees so appointed shall keep regular minutes of their meetings and shall cause them to be recorded in books kept for that purpose. 3.16.5 Resignation Any member of any committee may resign at any time by delivering written notice thereof to the Board of Directors, the Chair of the Board of Directors or the Corporation. Any such resignation shall take effect at the time specified in the notice, or if no time is specified, upon delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors. 3.16.6 Removal The Board of Directors may remove from office any member of any committee elected or appointed by it, but only by the affirmative vote of not less than a majority of the number of directors fixed by or in the manner provided by these Bylaws. 3.17 Compensation By Board of Directors resolution, directors and committee members may be paid their expenses, if any, of attendance at each Board of Directors or committee meeting, or a fixed sum for attendance at each Board of Directors or committee meeting, or a staled salary as director or a committee member, or a combination of the foregoing. No such payment shall preclude any director or committee member from serving the Corporation in any other capacity and receiving compensation therefor. 12 SECTION 4. OFFICERS 4.1 Number The Officers of the Corporation shall be a President and a Secretary, each of whom shall be appointed by the Board of Directors. One or more Vice Presidents, a Treasurer and such other Officers and assistant Officers, including a Chair of the Board of Directors, may be appointed by the Board of Directors; such officers and assistant officers to hold office for such period, have such authority and perform such duties as are provided in these Bylaws or as may be provided by resolution of the Board of Directors. Any Officer may be assigned by the Board of Directors any additional title that the Board of Directors deems appropriate. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authority and duties. Any two or more offices may be held by the same person. 4.2 Appointment and Term of Office The officers of the Corporation shall be appointed annually by the Board of Directors at the Board of Directors meeting held after the annual meeting of the shareholders. If the appointment of officers is not made at such meeting, such appointment shall be made as soon thereafter as a Board of Directors meeting conveniently may be held. Unless an officer dies, resigns, or is removed from office, he or she shall hold office until the next annual meeting of the Board of Directors or until his or her successor is appointed. 4.3 Resignation Any officer may resign at any time by delivering written notice to the Corporation. Any such resignation shall take effect at the time specified in the notice, or if no time is specified, upon delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board of Directors. 4.4 Removal Any officer or agent appointed by the Board of Directors may be removed by the Board of Directors, with or without cause, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of itself create contract rights. 13 4.5 Vacancies A vacancy in any office because of death, resignation, removal, disqualification, creation of a new office or any other cause may be filled by the Board of Directors for the unexpired portion of the term, or for a new term established by the Board of Directors. If a resignation is made effective at a later date, and the Corporation accepts such future effective date, the Board of Directors may fill the pending vacancy before the effective date, if the Board of Directors provides that the successor does not take office until the effective date. 4.6 Chair of the Board of Directors If appointed, the Chair of the Board of Directors shall perform such duties as shall be assigned to him or her by the Board of Directors from time to time and shall preside over meetings of the Board of Directors and shareholders unless another officer is appointed or designated by the Board of Directors as Chair of such meeting. 4.7 President The President shall be the chief executive officer of the Corporation unless some other Officer is so designated by the Board of Directors, shall preside over meetings of the Board of Directors and shareholders in the absence of a Chair of the Board of Directors and, subject to the Board of Directors' control, shall supervise and control all of the assets, business and affairs of the Corporation. The President shall have authority to sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation, or are required by law to be otherwise signed or executed by some other officer or in some other manner. In general, the President shall perform all duties incident to the office of President and such other duties as are prescribed by the Board of Directors from time to time. 4.8 Vice President In the event of the death of the President or his or her inability to act, the Vice President (or if there is more than one Vice President, the Vice President who was designated by the Board of Directors as the successor to the President, or if no Vice President is so designated, the Vice President first appointed to such office) shall perform the duties of the President, except as may be limited by resolution of the Board of Directors, with all the powers of and subject to all the restrictions upon the President. Vice Presidents shall have, to the extent authorized by the President or the Board of Directors, the same powers as the President to sign deeds, mortgages, bonds, contracts or other instruments. Vice Presidents shall perform such other duties as from time to time may be assigned to them by the President or by the Board of Directors. 14 4.9 Secretary The Secretary shall (a) prepare and keep the minutes of meetings of the shareholders and the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be responsible for custody of the corporate records and seal of the corporation; (d) keep registers of the post office address of each shareholder and Director; (e) have general charge of the stock transfer books of the Corporation; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. In the absence of the Secretary, an Assistant Secretary may perform the duties of the Secretary. 4.10 Treasurer If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such amount and with such surety or sureties as the Board of Directors shall determine. The Treasurer shall have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, and deposit all such moneys in the name of the Corporation in banks, trust companies or other depositories selected in accordance with the provisions of these Bylaws; and in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. In the absence of the Treasurer, an Assistant Treasurer may perform the duties of the Treasurer. 4.11 Salaries The salaries of the Officers shall be fixed from time to time by the Board of Directors or by any person or persons to whom the Board of Directors has delegated such authority. No officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director of the Corporation. 15 SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS 5.1 Contracts The Board of Directors may authorize any Officer or Officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation. Such authority may be general or confined to specific instances. 5.2 Loans to the Corporation No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances. 5.3 Loans to Directors The Corporation shall not lend money to or guarantee the obligation of a Director unless (a) the particular loan or guarantee is approved by a majority of the votes represented by the outstanding voting shares of all classes, voting as a single voting group, excluding the votes of the shares owned by or voted under the control of the benefitted director; or (b) the Board of Directors determines that the loan or guarantee benefits the Corporation and either approves the specific loan or guarantee or a general plan authorizing the loans and guarantees. The fact that a loan or guarantee is made in violation of this provision shall not affect the borrower's liability on the loan. 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, or agent or agents, of the Corporation and in such manner as is from time to time determined by resolution of the Board of Directors. 5.5 Deposits All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may select. 16 SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.1 Issuance of Shares No shares of the Corporation shall be issued unless authorized by the Board of Directors, which authorization shall include the maximum number of shares to be issued and the consideration to be received for each share. Before the Corporation issues shares, the Board of Directors shall determine that the consideration received or to be received for such shares is adequate. Such determination by the Board of Directors shall be conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. 6.2 Escrow for Shares The Board of Directors may authorize the placement in escrow of shares issued for a contract for future services or benefits or a promissory note, or may authorize other arrangements to restrict the transfer of shares, and may authorize the crediting of distributions in respect of such shares against their purchase price, until the services are performed, the note is paid or the benefits received. If the services are not performed, the note is not paid, or the benefits are not received, the Board of Directors may cancel, in whole or in part, such shares placed in escrow or restricted and such distributions credited. 6.3 Certificates for Shares Certificates representing shares of the Corporation shall be in such form as shall be determined by the Board of Directors Such certificates shall be signed by any two of the following officers: the Chair of the Board of Directors, the President, any Vice President, the Treasurer, the Secretary or any Assistant Secretary. Any or all of the signatures on a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar other than the Corporation itself or an employee of the Corporation. All certificates shall be consecutively numbered or otherwise identified. 6.4 Stock Records The stock transfer books shall be kept at the registered office or principal place of business of the Corporation or at the office of the Corporation's transfer agent or registrar. The name and address of each person to whom certificates for shares are issued, together with the class and number of shares represented by each such certificate and the date of issue thereof, shall be entered on the stock transfer books of the Corporation. The person in whose name shares stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. 6.5 Restriction on Transfer 6.5.1 Securities Laws Except to the extent that the Corporation has obtained an opinion of counsel acceptable to the Corporation that transfer restrictions are not required under applicable securities laws, or has otherwise satisfied itself that such transfer restrictions are not required, all certificates representing shares of the Corporation shall bear conspicuously on the front or back of the certificate a legend or legends describing the restriction or restrictions. 6.5.2 Other Restrictions In addition, the front or back of all certificates shall include conspicuous written notice of any further restrictions which may be imposed on the transferability of such shares. 17 6.6 Transfer of Shares Transfer of shares of the Corporation shall be made only on the stock transfer books of the Corporation pursuant to authorization or document of transfer made by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority to transfer, or by his or her attorney-in-fact authorized by power of attorney duly executed and filed with the Secretary of the Corporation. All certificates surrendered to the Corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificates for a like number of shares shall have been surrendered and cancelled. 6.7 Lost or Destroyed Certificates In the case of a lost, destroyed or mutilated certificate, a new certificate may be issued therefor upon such terms and indemnity to the Corporation as the Board of Directors may prescribe. 6.8 Transfer Agent and Registrar The Board of Directors may from time to time appoint one or more Transfer Agents and one or more Registrars for the shares of the Corporation, with such powers and duties as the Board of Directors shall determine by resolution. 6.9 Officer Ceasing to Act In case any officer who has signed or whose facsimile signature has been placed upon a stock certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if the signer were such officer at the date of its issuance. 6.10 Fractional Shares The Corporation shall not issue certificates for fractional shares. SECTION 7. BOOKS AND RECORDS The Corporation shall keep correct and complete books and records of account, stock transfer books, minutes of the proceedings of its shareholders and Board of Directors and such other records as may be necessary or advisable. 18 SECTION 8. FISCAL YEAR The fiscal year of the Corporation shall be the calendar year; provided, however, that the Board of Directors may select a different fiscal year at any time for purposes of federal income taxes, or otherwise. SECTION 9. SEAL The seal of the Corporation, if any, shall consist of the name of the Corporation and the state of its incorporation SECTION 10. INDEMNIFICATION 10.1 Right to Indemnification of Directors and Officers Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereafter a "proceeding"), by reason of the fact that he or she is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Nevada General Corporation Law, as the same exists or may hereafter be amended, (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorney's fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in Section 10.3 of these Bylaws or with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. 19 10.2 Right to Advancement of Expenses The right to indemnification conferred in Section 10.1 of these Bylaws shall include the right to be paid by the Corporation the expenses incurred in defending any proceeding for which such right to indemnification is applicable in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Nevada General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this section or otherwise. 10.3 Right of Indemnitee to Bring Suit The rights to indemnification and to the advancement of expenses conferred in Sections 10.1 and 10.2 of these Bylaws shall be contract rights. If a claim under Sections 10.1 and 10.2 of these Bylaws is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Nevada General Corporation Law. Neither the failure of the Corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in Nevada General Corporation Law, nor an actual determination by the Corporation (including its board of directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this section or otherwise shall be on the Corporation. 20 10.4 Non-Exclusivity of Rights The rights to indemnification and to the advancement of expenses conferred in this article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. 10.5 Insurance The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Nevada General Corporation Law. 10.6 Indemnification of Employees and Agents of the Corporation The Corporation may, to the extent authorized from time to time by the board of directors, grant rights to indemnification, and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. 10.7 No Presumption of Bad Faith The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of this Corporation, or, with respect to any criminal proceeding, that the person had reasonable cause to believe that the conduct was unlawful. 10.8 Survival of Rights The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a director, officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 21 10.9 Amendments to Law For purposes of this Bylaw, the meaning of "law" within the phrase "to the fullest extent not prohibited by law" shall include, but not be limited to, the Nevada General Corporation Law, as the same exists on the date hereof or as it may be amended; provided, however, that in the case of any such amendment, such amendment shall apply only to the extent that it permits the Corporation to provide broader indemnification rights than the Act permitted the Corporation to provide prior to such amendment. 10.10 Savings Clause If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, the Corporation shall indemnify each director, [officer or other agent] to the fullest extent permitted by any applicable portion of this Bylaw that shall not have been invalidated, or by any other applicable law. 10.11 Certain Definitions For the purposes of this Section, the following definitions shall apply: (a) The term "proceeding" shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement and appeal of any threatened, pending or completed action, suit or proceeding, whether brought in the right of the Corporation or otherwise and whether civil, criminal, administrative or investigative, in which the director or officer may be or may have been involved as a party or otherwise by reason of the fact that the director or officer is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. 22 (b) The term "expenses" shall be broadly construed and shall include, without limitation, all costs, charges and expenses (including fees and disbursements of attorneys, accountants and other experts) actually and reasonably incurred by a director or officer in connection with any proceeding, all expenses of investigations, judicial or administrative proceedings or appeals, and any expenses of establishing a right to indemnification under these Bylaws, but shall not include amounts paid in settlement, judgments or fines. (c) "Corporation" shall mean Too Gourmet, Inc. and any successor corporation thereof. (d) Reference to a "director" or "officer" of the Corporation shall include, without limitation, situations where such person is serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. (e) References to "other enterprises" shall include employee benefit plans. References to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan. References to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries. A person who acted in good faith and in a manner the person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Bylaw. SECTION 11. AMENDMENTS These Bylaws may be altered, amended or repealed and new Bylaws may be adopted by the Board of Directors at any regular or special meeting of the Board of Directors; provided, however, that the shareholders, in amending or repealing a particular Bylaw, may provide expressly that the Board of Directors may not amend or repeal that Bylaw. The shareholders may also make, alter, amend and repeal the Bylaws of the Corporation at any annual meeting or at a special meeting called for that purpose. All Bylaws made by the Board of Directors may be amended, repealed, altered or modified by the shareholders at any regular or special meeting called for that purpose. The foregoing Bylaws were adopted by the Board of Directors of the Corporation on April 10, 2001. /s/ Cynthia Bergendahl - -------------------------- Cynthia Bergendahl, Secretary EX-5 5 too_exh5.txt STEPP LAW GROUP A PROFESSIONAL CORPORATION 1301 DOVE STREET, SUITE 460 NEWPORT BEACH, CALIFORNIA 92660-2422 TELEPHONE: 949.660.9700 FACSIMILE: 949.660.9010 Opinion of Counsel and Consent of Counsel Board of Directors Too Gourmet, Inc. Re: Registration Statement on Form SB-2 Gentlemen: As counsel to Too Gourmet, Inc., a Nevada corporation (the "Company"), we have participated in the preparation of the Company's Registration Statement on Form SB-2 filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, relating to the registration of 2,991,250 shares of the Company's $.001 par value common stock owned by the selling security holders (the "Shares"). As counsel to the Company, we have examined such corporate records, certificates and other documents of the Company, and made inquiries of such officers of the Company, as we have deemed necessary or appropriate for purposes of this opinion. Based upon such examinations, we are of the opinion that the Shares have been and are duly authorized, validly issued, fully paid and non-assessable shares of the common stock of the Company. We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement on Form SB-2 filed by the Company and the reference to our firm contained therein under "Legal Matters." Sincerely, /s/ Stepp Law Group - -------------------------- Stepp Law Group Newport Beach, California August 16, 2001 EX-23 6 too_exh23.txt Consent of Independent Certified Public Accountant I consent to the use in this Registration Statement on Form SB-2 of my report dated August 10, 2001, relating to the financial statements of Too Gourmet, Inc., and to the reference to my firm under the caption "Experts" in the Prospectus. /s/ Quintanilla A Professional Accountancy Corporation Laguna Niguel, California August 16, 2001 -----END PRIVACY-ENHANCED MESSAGE-----