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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2002
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________ to _________________.
Commission file number 000-32783
WIN OR LOSE ACQUISITION CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 59-3685745
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1268 Bayshore Boulevard
Dunedin, Florida 34698
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (727) 734-7346
Securities Registered pursuant to Section 12(g) of the Act
Common Stock, par value $.001 per share
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days. Yes X No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. X
State the aggregate market value of the voting and non-voting common equity
held by non-affiliates computed by reference to the price at which the common
equity was last sold, or the average bid and asked price of such common equity,
as of the last business day of the registrant's most recently completed fiscal
quarter. N/A ---
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date.
Title of Class Outstanding at March 15, 2002
Common Stock, $0.001 Par Value 2,400,000 Shares
No documents are incorporated by reference in this Form 10-K.
TABLE OF CONTENTS
PART I .......................................................................................................... 3
ITEM 1-- BUSINESS ...........................................................................................3
ITEM 2-- PROPERTIES ..........................................................................................
ITEM 3-- LEGAL PROCEEDINGS .................................................................................23
ITEM 4-- SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ...............................................23
PART II ........................................................................................................ 23
ITEM 5-- MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS ..........................................23
ITEM 6-- SELECTED FINANCIAL DATA .............................................................................
ITEM 7-- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND PLAN OF OPERATIONS ................25
ITEM 7A-- QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS .....................................N/A
ITEM 8-- FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA .......................................................31
ITEM 9-- CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE ..............31
PART III ........................................................................................................32
ITEM 10-- DIRECTORS AND EXECUTIVE OFFICERS .................................................................32
ITEM 11-- EXECUTIVE COMPENSATION ...........................................................................32
ITEM 12-- SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS ...32
ITEM 13-- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS ...................................................32
ITEM 14-- CONTROLS AND PROCEDURES ............................................................................
ITEM 15-- EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K ..................................32
SIGNATURES ......................................................................................................34
INDEX TO EXHIBITS ...............................................................................................35
FINANCIAL STATEMENTS ...........................................................................................F-1
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
"Forward-looking" statements have been included throughout this report on
Form 10-K. These statements arise most frequently in connection with our attempt
to predict future events. The words "may," "will," "expect," "believe," "plan,"
"intend," "anticipate," "estimate," "continue," and similar expressions, as well
as discussions of our strategy, are intended to identify forward-looking
statements. Although we believe that these forward-looking statements are based
on reasonable assumptions, we can give no assurance that our expectations will
in fact occur and caution that actual results may differ materially from those
in the forward-looking statements. The important factors listed in the section
entitled "Risk Factors," as well as any cautionary language in this report on
Form 10-K, provide examples of risks, uncertainties and events that may cause
our actual results to differ materially from the expectations described in any
forward-looking statements. You should be aware that the occurrence of the
events described in this Report could have an adverse effect on our business or
financial condition. You should also be aware that the "forward-looking"
statements are subject to a number of risks, assumptions and uncertainties, such
as:
o......Our goals, our business plan and the availability of suitable targets;
o Our ability to locate a suitable target, conduct an adequate due
diligence investigation and negotiate a reasonable business combination;
o Our ability to execute our business plan in compliance with the
requirements of Rule 419;
o The potential development of a public trading market for the combined
companies' shares;
o Changes in general business and market conditions and our ability to
react to these changes;
o Our status as a blank check company with an evolving and unpredictable
business model;
o Our ability to satisfy our future capital requirements and react to
business opportunities;
o Complex regulations that apply to us as a blank check company;
o Other factors including those detailed in this report on Form 10-K under
the heading "Risk Factors."
You should not unduly rely on forward-looking statements, which speak
only as of the date of this report. Except as required by law, we are not
obligated to publicly release any revisions to these forward-looking statements
to reflect events or circumstances occurring after the date of this report or to
reflect the occurrence of unanticipated events. All subsequent written and oral
forward-looking statements attributable to us, or persons acting on our behalf,
are expressly qualified in their entirety by the forward-looking statements in
this report.
PART I
ITEM 1 -- BUSINESS
Introduction
We are a blank check company that was incorporated in Delaware on
December 1, 2000, for the purpose of conducting a public distribution of
securities and then effecting a merger, acquisition or other business
combination transaction with an unidentified private company that wants to be
publicly held. We refer to merger and acquisition transactions as "business
combinations" and we refer to business combination candidates as "targets." Our
business plan may be described as a "blind pool" because we do not know what the
business of our company will be.
The IPO market has been very weak since the spring of 2000 and many
proposed IPO's have been delayed or abandoned. Despite uncertain market
conditions, we believe that a substantial number of adequately financed private
companies want to become publicly held in order to satisfy the requirements of
their early-stage investors or implement other growth strategies. We believe our
blank check company structure may present a viable alternative for certain
private companies that want to be publicly held, but have been unable to conduct
an IPO.
Our goal is to effect a business combination on terms that will give our
stockholders a reasonable share of the increased value that ordinarily arises
when a private company makes the transition to public ownership. To date, our
business activities have been limited to conducting our public offering and
evaluating a number of potential targets. We have not yet selected a suitable
target. We have no plans to engage in any particular business in the future and
we will not limit our search to a particular industry.
Rule 419
Blank check companies have been used as vehicles for fraud and
manipulation in the penny stock market. In response to a Congressional mandate,
the SEC adopted Rule 419, which requires blank check companies like ours to
implement certain safekeeping, disclosure and reconfirmation procedures in their
public offerings, including:
o Depositing at least 90% of any net offering proceeds in escrow until
the requirements of Rule 419 have been satisfied and an acquisition
has been completed;
o Depositing all stock certificates for shares distributed to the public
in escrow until the requirements of Rule 419 have been satisfied and an
acquisition has been completed;
o Conducting a reconfirmation offering for the purpose of giving public
stockholders an opportunity to review and consider detailed prospectus
disclosure concerning a proposed acquisition;
o Giving each public stockholder an opportunity to either approve the
proposed acquisition and retain his shares, or reject the proposed
acquisition and unwind his share acquisition transaction;
o Unwinding transactions with individual stockholders that fail to
approve the reconfirmation offering; and
o Unwinding all transactions if a specified percentage of the public
stockholders do not approve the reconfirmation offering in writing, or
if a suitable acquisition is not closed within 18 months.
Rule 419 applies to every registration statement filed by a blank check
company and regulates both issuer transactions and the resale of outstanding
securities.
While Rule 419 is principally designed to regulate the conduct of blank
check companies and their promoters in connection with public securities
offerings, the requirements of Rule 419 will directly or indirectly impact
substantially all of our planned business activities. There is no assurance we
will be able to select a target, negotiate a business combination and comply
with the reconfirmation requirements of Rule 419 before December 7, 2003. If we
are unsuccessful, the only alternative will be to unwind our public stock
distribution and liquidate our company. Even if we attain our goal of effecting
a business combination with a private company that wants to be public, there is
no assurance that the business of the combined companies will be successful or
that an active, stable and sustained trading market will develop. Therefore,
there is no assurance that our stock will ever have any value.
Our public offering
Our registration statement under the Securities Act of 1933 (the
"Securities Act") describes a continuous offering of securities that commenced
on June 7, 2002 and will terminate on the earlier of (i) the completion of a
business combination, or (ii) December 7, 2003.
The following securities were included in and registered by our
registration statement:
o 400,000 shares that our officers would transfer as gifts to 800 donees
selected by them;
o 1,600,000 shares that our officers would offer to sell to our advisors,
the owners of a target and other participants in a business combination;
and
o 12,600,000 shares that our company would offer to issue in connection
with a business combination.
Our officers completed the gift share distribution on August 2, 2002. In
connection with the distribution, our officers gave a total of 400,000 gift
shares and 3,000 founders' shares to 806 family members, personal friends and
business acquaintances selected by them. We refer to the gift share recipients
as "donees." Each donee received 500 gift shares and will be subject to the
resale restrictions described in our prospectus. Our officers did not receive
any money, property or other consideration from any donee in connection with the
gift share distribution.
In August of 2002, our company and our officers entered into consulting
agreements with seven advisors who have provided and/or will provide personal
services to our company. Under the contracts, our company will agreed to pay
certain cash compensation to the advisors and our officers agreed to grant the
advisors a conditional right to purchase an aggregate of 80,000 founders' shares
at a price of $0.25 per share. Our advisors may not exercise their conditional
stock purchase rights until we negotiate a business combination and deliver a
complete prospectus to our stockholders in connection with a Rule 419
reconfirmation offering. If we successfully complete our reconfirmation offering
and the advisors decide to exercise their conditional purchase rights and, the
advisors will have up to 30 days after the closing date to pay for their
founders' shares.
We selected Global Securities Transfer, Inc., Denver, Colorado to act as
the transfer agent and registrar for our common stock. Our officers delivered
2,400,000 shares to the transfer agent, with instructions that require the
transfer agent to hold the shares in uncertificated form pending further
instruction. Upon completion of the gift share distribution, our officers
instructed the transfer agent to prepare physical certificates for 403,000
shares registered in the names of the individual donees. Those certificates were
then deposited in our Rule 419 escrow account at First Union Bank. The founders'
shares that are reserved for sale to advisors upon the exercise of their
conditional stock purchase rights will remain on deposit with the transfer agent
in uncertificated form until we conduct our Rule 419 reconfirmation offering and
the advisors exercise their stock purchase rights.
Overview of Shell Transactions
The two most common ways for a private company to "go public" are a
traditional IPO, or a business combination with a public shell. Most private
companies that decide to go public do so because they need to raise capital. But
financing is not the only reason that private companies decide to go public.
Other reasons include:
o Increasing total stockholder value by transforming a private company
into a public company;
o Creating an "alternative currency" (i.e. publicly traded shares) that
can be used for acquisitions;
o Facilitating equity-based compensation for employees and management;
o Providing investment liquidity for investors and minority stockholders;
and
o Preparing a foundation for future financing activities.
We believe an IPO is usually preferable to a shell transaction. But in
cases where an adequately financed private company wants to go public for
reasons other than a current need for additional capital, we believe it is
important for the management and owners to carefully consider the pros and cons
of each alternative. The following table highlights some of the differences we
believe the management and owners of a private company should consider before
deciding between an IPO and a shell transaction.
Characteristics of IPO Market Characteristics of Business Combination Market
An IPO usually generates substantial cash proceeds and Business combinations do
not usually generate dilutes the ownership interest of insiders. substantial
cash proceeds or dilute ownership.
The IPO market can be "trendy," and if a company is not in The business
combination market is frequently less a "hot" industry it can be difficult or
impossible to concerned with current market trends. conduct an IPO.
Secondary markets develop rapidly, the markets are Secondary markets develop
slowly, liquidity is often a generally liquid and there is usually a good
balance problem and there are frequently more sellers than between sellers and
buyers. buyers.
The IPO market is very sensitive to current market The business combination
market has less sensitivity to conditions and deals are frequently aborted or
delayed at current market conditions and deals are less likely to a relatively
late stage in the process. be aborted or delayed in their final stages.
The IPO market has a high degree of visibility and The business combination
market has relatively low companies that complete an IPO find it relatively easy
to visibility and companies frequently find it difficult develop "institutional"
interest in their stock. to develop "institutional" interest in their stock.
Because of the competition and due diligence associated Companies that engage in
shell transactions are with the IPO process, companies that complete an IPO are
generally viewed with skepticism for an extended period often perceived as more
substantial and credible. of time.
The generic term "public shell" can be used to describe any existing
company that has no substantial business activities, a relatively large
stockholder base and outstanding stock that may be lawfully resold by the
holders. Within this broad definition, there are substantial variations in the
structure, value and overall utility of public shells. The factors that are
typically considered when evaluating a public shell include:
Control Status Public shells that can offer a controlling
interest to the owners of a target are generally more
desirable than shells that cannot implement a change
in control.
`33 Act Registration Public shells that can issue
registered stock in connection with a business
combination are generally more desirable than shells
that can only issue restricted stock.
`34 Act Registration Public shells that are registered
under the Exchange Act are generally more desirable
than shells that will be required to register at some
future date.
Available Resources Public shells that have available
resources, particularly cash resources, are generally
more desirable than shells that have no available
resources.
Prior Operations Public shells that have no prior operations are
generally more desirable than shells that have prior
operations.
Material Liabilities Public shells that have no material
liabilities are generally more desirable than shells
that have fixed or contingent liabilities that must
be assumed by the target.
Stock Distribution Public shells that have a substantial
number of existing stockholders and a relatively even
distribution of stock ownership are generally more
desirable than shells that have a small number of
stockholders, or a few stockholders who control large
blocks of stock.
Trading Status Public shells that are listed for trading or
eligible for immediate listing are generally more
desirable than shells that will be required to pursue
a listing at a future date.
In developing a structure for our blank check company, we have endeavored
to maximize our competitive advantages and minimize our competitive
disadvantages. We believe our company will enjoy a strong competitive position
when compared with other available public shells. We can provide no assurances,
however, that potential targets will find our structure more desirable than
competitive shells.
Information Requirements for Targets
We must file a post effective amendment to our registration statement and
conduct a reconfirmation offering before we close a business combination. Rule
419(e)(1) requires that the amendment contain:
o The information specified by Form S-1 and the applicable Industry Guides;
o Audited balance sheets as of the end of the two most recently completed
fiscal years and unaudited interim balance sheets for the dates
specified in Regulation S-X;
o Audited statements of income and cash flow for the three most recently
completed fiscal years and unaudited interim statements of income and
cash flow for the periods specified in Regulation S-X; and
o Unaudited pro forma financial information on the combined companies.
We cannot enter into a business combination with a target that cannot
provide the foregoing information. Our future SEC filings must comply with the
requirements of Regulations S-K and S-X, which can be more complex than their
counterparts under Regulation S-B. Therefore, the owners of a potential target
may decide that added cost of regulatory compliance will make our company less
desirable than a competing public shell.
Nasdaq Listing Standards
We believe the most likely business combination structure will involve a
"reverse takeover" where we issue acquisition shares in exchange for the assets
or outstanding stock of the target. Upon the completion of a reverse takeover,
we expect that the former stockholders of the target will likely own a
substantial majority interest in the combined companies. Since the ongoing costs
and expenses associated with reporting under the Exchange Act can be a
significant burden for a small company, we believe that larger established
companies are better suited to shell transactions than small entrepreneurial
companies. Moreover, a substantial business combination transaction will be
required to satisfy the minimum listing standards for Nasdaq.
The following table summarizes the recently adopted quantitative listing
standards for companies that want to list their securities on Nasdaq:
[GRAPHIC OMITTED]
We have 810 record stockholders at the date of this report on Form 10-K.
We will not negotiate a business combination transaction on terms that would
result in the combined companies having a public float of less than 1,000,000
shares. While we will endeavor to negotiate a business combination with a target
that has sufficient operating history, stockholders' equity and net income to
satisfy the Nasdaq listing standards, there is no assurance that our efforts
will be successful. Moreover, Nasdaq requires an established trading history of
90 days at a price that exceeds the minimum bid price requirement before it will
consider a listing application. Therefore, the combined companies' shares will
have to begin trading on the OTC Bulletin Board, the Pink Sheets or the proposed
BBX, and wait to apply for a Nasdaq listing until all applicable listing
standards are met. Under the circumstances, there is no assurance the combined
companies' shares will ever qualify for Nasdaq.
Selecting a Target and Structuring a Business Combination
We anticipate that our officers and a variety of unaffiliated sources
will bring potential targets to our attention. Potential lead sources include
broker-dealers, investment bankers, venture capitalists, attorneys and other
members of the financial community, who may present solicited or unsolicited
proposals. We will not enter into exclusive relationships with professional
firms that specialize in business acquisitions. We may, however, agree to work
with such firms on a non-exclusive basis.
In evaluating potential targets, our officers will ordinarily consider
the following factors, among others:
o The target's liquidity, financial condition and results of operation;
o The target's growth potential and future capital requirements;
o The nature, competitive position and market potential of the target's
products, processes or services;
o The relative strengths and weaknesses of the target's intellectual
property protection;
o The education, experience and abilities of the target's management
and key personnel;
o The regulatory environment within the target's industry; and
o The market performance of the equity securities of similar public
companies in the target's industry.
The foregoing is not an exhaustive list of the factors we may consider in
our evaluation of potential targets. We will also consider other factors that
our officers deem relevant under the circumstances. In evaluating a potential
target, we intend to conduct a due diligence review that will include, among
other things, meetings with management and key staff, inspection of properties
and facilities, reviews of material contracts, financial statements and
projections, and any other matters that we believe are relevant under the
circumstances.
Our registration statement includes 12,600,000 acquisition shares that we
may issue in connection with a business combination. It also includes 1,600,000
founders' shares that our officers may offer to our advisors, owners of a target
and other participants in the business combination. Within these limits, our
officers will have unlimited flexibility to structure a business combination and
establish terms for the resale the founders' shares.
The time, effort and expense required to evaluate a target and negotiate
a business combination cannot be predicted with any degree of accuracy. We do
not have any full-time employees. Our officers act as part-time employees but
are not required to devote any specific amount of time to our business. If our
officers do not devote adequate time to investigation, due diligence and
negotiations, we may be unable to identify a suitable target, negotiate a
business combination and comply with the requirements of Rule 419 in a timely
manner.
Limited Ability to Evaluate Successor Management
We intend to evaluate the management of a potential target when
considering the desirability of a business combination. We cannot assure you
that our assessment will prove to be correct or that a target's management will
possess the particular skills, qualifications and abilities required to
effectively manage a public company.
We may require the target to recruit additional personnel to supplement
its current management team. We cannot assure you that a target will have the
ability to recruit additional managers, or that any new management team members
that are recruited will have the requisite skills, knowledge or experience.
While it is possible that one or more of our officers will remain
involved in the affairs of the combined companies, it is unlikely that any of
them will have ongoing executive or board level authority. While our officers
have significant experience in a variety of industries, we cannot assure you
that our officers will have significant experience or knowledge relating to the
operations of a particular target. The prospectus for our reconfirmation
offering will include summary information on the identity, education and
experience of the officers, directors and key personnel of the target.
Valuation of Targets
Our board of directors intends to rely on established metrics that are
generally used in the financial community to determine the value of a target and
negotiate the terms of a business combination. Our board of directors will
ordinarily begin its evaluation of a target using the following objective
factors, among others:
o The target's audited balance sheet;
o The target's historical and projected sales; and
o The target's historical and projected results of operations and cash flow.
In most cases, our board of directors will also consider a variety of
subjective factors that can have a positive or negative impact on valuation
decisions, including:
o Overall conditions in the target's industry and the target's competitive
position within its industry;
o The relative strengths and weaknesses of the target's business
development plans;
o The market capitalization of similarly situated public companies; and
o The relative strengths and weaknesses of the target, compared with
similarly situated public companies.
Based on their analysis, our board of directors will reach a conclusion
concerning the fair market value of a target. It will then attempt to negotiate
a business combination that maximizes stockholder value. The board of directors
may retain independent experts to assist in the evaluation of a target but it is
not required to do so.
The valuation of a potential target is an inherently subjective process
that is subject to a substantial degree of risk and uncertainty. Our directors
are not experts in investment banking or the evaluation of businesses. We can
give you no assurance that our directors will be able to accurately assess the
fair market value of a particular target. We can give you no assurance that our
directors will be able to negotiate a business combination on terms that are
advantageous to our stockholders. If a business combination is concluded, we can
give you no assurance that the combined companies' shares will ever achieve a
market price that is in line with the value determined by our board of
directors.
No Right to Approve Specific Terms
We do not intend to provide information to our stockholders regarding our
evaluation of potential targets or the progress of negotiations. Our officers
will have the necessary executive and equity voting power to unilaterally
approve all corporate actions until we close a business combination. As a
result, gift share donees will have no effective voice in decisions made by
management and will be entirely dependent on management's judgment in the
selection of a target and the negotiation of the specific terms of a business
combination.
Under Delaware law, the stockholders of a corporation are not entitled to
vote with respect to a stock issuance transaction that does not involve a
statutory merger, even if the transaction will result in a change in control. We
presently intend to structure a business combination as an exchange of stock in
our company for the assets or outstanding stock of a target. Since we do not
intend to conduct a statutory merger with a target, we do not intend to seek
prior stockholder approval of the terms of a proposed business combination.
Rule 419 will not give stockholders voting rights that they do not
otherwise possess under Delaware law. If we successfully negotiate a business
combination, the transaction will be presented to our stockholders as an
integrated whole. Each gift share donee will then be required to make an
independent decision about whether he wants to remain a stockholder. If a donee
does not approve our reconfirmation offering in writing, Rule 419 requires us to
treat the failure to act as a rejection of our reconfirmation offering. If the
requisite percentage of donees does not reconfirm their subscriptions in
writing, we will not close a proposed business combination.
Rule 419 does not require that a specific percentage of the gift share
donees accept our reconfirmation offering. Instead, Rule 419 leaves that issue
to negotiations between our company and the target. If the terms of our
reconfirmation offering establish a relatively low reconfirmation threshold,
gift share donees will not necessarily be able to rely on the collective
business judgment others in making their decisions.
We will endeavor to structure a business combination so as to achieve the
most favorable tax treatment to us, the target and the stockholders of both
companies. We cannot assure you, however, that the Internal Revenue Service or
any state tax authority will agree with our tax treatment of the business
combination.
Business Diversification is Unlikely
Rule 419 will require us to conduct our reconfirmation offering as soon
as we negotiate a transaction where the fair value of the business or assets to
be acquired exceeds $2,920,000, calculated as 80% of the estimated value of the
maximum number of shares included in our registration statement. Since we intend
to issue acquisition shares in exchange for the stock or assets of a target, any
material acquisition is almost certain to result in a change in control.
We will probably not be able to diversify our operations or benefit from
the spreading of risks or offsetting of losses. We will probably be dependent
upon the development or market acceptance of a single or limited number of
products, processes or services. Our probable lack of diversification may
subject us to a variety of economic, competitive and regulatory risks, any or
all of which may have a substantial adverse impact on our future business.
Accordingly, there is no assurance that our future operations will be
commercially viable.
Finders' Fees
If our company or the target agrees to pay cash finders' fees, the
payments will reduce the cash resources of the combined companies. If our
company or the target agrees to pay stock-based finders' fees, the share
issuances will reduce the number of shares that would otherwise be available to
the owners of a target. Therefore, we believe the target should participate in
all decisions respecting the payment of finders' fees. Accordingly, we will not
agree to pay any finder's fees or similar compensation without the express
consent of the target.
We will not pay finders' fees, commissions or similar compensation to our
officers or their respective affiliates. Our company and our officers will not
pay any finders' fees, commissions or similar compensation to persons who are
not duly licensed broker-dealers without first obtaining an opinion of legal
counsel that registration is not required under the circumstances.
Our reconfirmation offering prospectus will disclose the material terms
of any agreements for the direct or indirect payment of finders' fees,
commissions or similar compensation by our company and/or our officers.
Competition
We expect to encounter intense competition from other entities that have
a similar business objective. Some potential competitors have significant cash
resources that will be available for use following a business combination.
Others have outstanding warrants that can be expected to generate substantial
cash for future operations. In addition, many of our potential competitors may
possess more experienced management teams and greater technical, human and other
resources than we do. The inherent limitations on our competitive position may
give others an advantage in pursuing the acquisition of a target. Further, our
obligation to file a post-effective amendment and conduct a reconfirmation
offering will probably delay the completion of a transaction. This may be viewed
as a competitive disadvantage in negotiations with potential targets.
Employees and Administration
We do not have any full-time employees. Our four executive officers act
as part-time employees but they are not required to devote any specific amount
of time to our business. We do not intend to hire any full-time employees until
we complete a business combination.
Sally A. Fonner, our president, will provide certain facilities and
administrative services for our company. Under the terms of her employment
agreement, Ms. Fonner will provide all necessary office facilities and
equipment, manage our day-to-day operations and manage our accounting and
reporting functions in return for an overhead allowance of $1,000 per month. If
we require facilities or services that are beyond the capabilities of Ms.
Fonner, they will be contracted for and paid by our company. We believe that the
facilities and services to be provided by Ms. Fonner will be adequate for our
needs until we complete a business combination.
Periodic Reporting and Audited Financial Statements
Rule 419(f)(1) will require the combined companies to furnish
stockholders audited financial statements for the first full fiscal year of
operations following the consummation of a business combination. Moreover, we
have registered our common stock under the Exchange Act. Therefore, the combined
companies will be required to file annual and quarterly reports, proxy
statements and other reports with the SEC. Until we complete a business
combination, all registration statement amendments, reports and other filings we
make with the SEC will be available on our corporate website at
WWW.WINORLOSE.INFO.
Risk Factors
Readers of this report on Form 10-K should consider carefully the
following risk factors in evaluating our company and its prospects. Any of the
following risks, as well as other risks and uncertainties that are not yet
identified or that we currently believe are immaterial, could harm our business,
financial condition and operating results, and could result in the liquidation
of our company.
Even if we negotiate and close a business combination, an active, stable,
liquid and sustained public market for the combined companies' shares may never
develop.
Sally A. Fonner, our president, has previously served as the sole officer
and director of five inactive public shells that effected business combinations
with private companies. In each of these transactions, the combined companies
have only qualified for quotation on the OTC Bulletin Board, trading has not
been active, liquid or sustained and the market prices have been volatile. Even
if we negotiate and close a business combination, an active, liquid, stable and
sustained public market for the combined companies' shares may never develop.
Stockholders are encouraged to independently review the available information on
Ms. Fonner's prior transactions.
Our officers do not have any experience with Rule 419 transactions.
Transactions under Rule 419 are considerably more complex than other
shell transactions. Our officers do not have any experience with Rule 419
transactions and their experience in simple shell transactions may not be a
reliable indicator of their ability to complete a business combination that is
subject to the stringent requirements of Rule 419. There is no assurance that we
will negotiate or close a business combination.
Donees will be required to retain ownership of at least 100 gift shares
for up to nine months after we complete a business combination.
Each donee will be required to retain ownership of at least 100 gift
shares until the earlier of nine months after the completion of a business
combination or the listing of the combined companies' shares on Nasdaq. A simple
quotation on the OTC Bulletin Board, the Pink Sheets or the proposed BBX will
not satisfy this listing requirement. When the gift shares are released from the
Rule 419 escrow, each donee will receive two certificates: one for 100 shares
and a second for 400 shares. The certificate for 100 shares will be imprinted
with a restrictive legend that describes the applicable limitations on transfer.
We are likely to run out of cash and we may be forced to liquidate.
Our available cash resources will probably not be sufficient to pay our
anticipated operating and offering expenses through December 7, 2003. We will be
unable to obtain funds by selling additional securities. If we spend all our
available cash, our officers will be faced with a decision to either abandon our
business plan and liquidate our company, or advance additional cash to our
company. If we spend our available cash and our officers are unwilling to
provide additional financing, we will be forced to abandon our business and
liquidate.
Time pressures may increase the risk that we will truncate our due
diligence, lower our expectations or liberalize our selection standards.
If we conclude that we will be unable to negotiate a suitable business
combination, comply with Rule 419 and close the proposed transaction before
December 7, 2003, we will be forced to liquidate our company. This will increase
the risk that we will truncate our due diligence, lower our expectations or
liberalize our selection standards.
Our reconfirmation offering will be a "take it or leave it" proposition.
We must conduct our reconfirmation offering as soon as we negotiate a
transaction where the fair value of the target exceeds $2,920,000. If we select
a target and make a reconfirmation offering that is not accepted by the
requisite percentage of donees, Rule 419 will require us to unwind the gift
share distribution and return the gift shares to our officers. Therefore, our
reconfirmation offering will be a "take it or leave it" proposition.
Stockholders may not be able to rely on the collective business judgment
of others.
Rule 419 does not establish a fixed percentage of donees that must
approve our reconfirmation offering. Instead, it only requires that our
prospectus disclose the reconfirmation threshold negotiated by the parties. If a
proposed transaction provides for a relatively low reconfirmation threshold,
stockholders may not be able to rely on the collective business judgment of the
other donees. Conversely, if a proposed transaction provides for a relatively
high reconfirmation threshold, the other donees may have the power to overrule
individual decisions.
We do not intend to comply with the corporate governance standards that
would be required under Nasdaq or BBX rules until we complete a business
combination.
We do not have any independent directors or an audit committee to review
related party transactions. We do not intend to solicit stockholder approval for
a business combination. We do not intend to comply with the corporate governance
standards that would be required under Nasdaq or BBX rules until we complete a
business combination. Our officers own approximately 83% of our voting stock and
they have both the executive and voting power to approve all corporate actions
without your consent.
We expect a business combination to result in a change in control and our
officers will not have any power to influence future decisions of the combined
companies.
We will issue up to 12,600,000 acquisition shares in connection with a
business combination. Therefore we expect a business combination to result in a
change in control. After a change in control, the owners of the target will have
the right to appoint their own management team and our current officers will not
be able to influence future decisions, seek a listing for the combined
companies' shares or take any other action to promote a public market. There can
be no assurance that we will be able to negotiate appropriate after-market
support agreements or that any terms we negotiate will be effective. If
successor management does not devote sufficient time and resources to developing
and promoting a public market, stockholders may be unable to sell our shares at
any price.
The personal pecuniary interests of our officers may conflict with their
fiduciary duties.
Our registration statement includes 1,600,000 founders' shares that our
officers may resell to our advisors, owners of a target and other participants
in the business combination. While our officers will not resell founders' shares
at a price that represents a premium to the comparable per share value received
by our company, it is likely that a business combination and the related resale
of founders' shares will result in the transfer of property to our company and
the payment of cash to our officers. Therefore, the personal pecuniary interests
of our officers may conflict with their fiduciary duties. We will not receive
any proceeds from the resale of the founders' shares.
Ms. Fonner and Mr. Petersen are officers, directors and principal
stockholders of other public shells that may compete with our company for
targets.
Ms. Fonner is an officer; director and principal stockholder of The
Enchanted Village, Inc. Ms. Fonner and Mr. Petersen are officers, directors and
principal stockholders of Tamboril Cigar Company. Both of these companies are
public shells that are registered under the Exchange Act and intend to pursue
acquisition strategies that are similar to ours. Since neither company has an
effective registration under the Securities Act, they are not expected to be
directly competitive with us. However, there is no assurance that a particular
target will prefer our structure, or that our company will enjoy any particular
competitive advantage over the other companies.
All of our officers are engaged in other business activities and will
face conflicts of interest in allocating their time among their various business
affairs.
Our officers are not required to devote any specific amount of time to
our business. Each of our officers is actively involved in other business
pursuits and they will all face conflicts in allocating their time among their
various business interests. Such conflicts may cause delays or prevent us from
effecting a business combination.
If we lose the services of Mr. Petersen, we may be unable to pay the fees
of outside legal counsel.
We expect that John L. Petersen, our general counsel, will represent our
company in connection with a business combination and assist in drafting the
post-effective amendment to our registration statement. We will not pay any cash
fees to Mr. Petersen for these services. If Mr. Petersen fails to provide the
required services in a timely manner, we may have insufficient cash to retain
outside legal counsel to perform the required work.
We have registered the bulk of our outstanding shares and all of the
shares we plan to issue.
We have registered the bulk of our outstanding shares and all of the
shares we plan to issue. If we close a business combination, all shares held by
donees, our advisors and other stockholders who are not affiliates of the
combined companies will be eligible for immediate resale. If a substantial
number of shares are offered for sale at the same time, the market price is
likely to decline and such declines may be permanent.
Our regulatory status may make a business combination more complex and
expensive.
This initial public offering was registered on Form S-1. Our decision to
use this form may make compliance with the disclosure and reconfirmation
requirements of Rule 419 more difficult. All our future SEC filings must comply
with the requirements of Regulations S-K and S-X, which can be more complex than
their counterparts under Regulation S-B. Therefore, the owners of a potential
target may decide that added cost of regulatory compliance will make our company
less desirable than a competing public shell.
There has never been a public market for our shares and such a market may
never develop.
There has never been a public market for our shares and such a market may
never develop. No market makers have expressed any interest in our company and
we do not intend to engage in discussions with potential market makers until we
have negotiated a business combination. If an active public market for the
shares of the combined companies does not develop, stockholders may be unable to
resell our shares at any price.
The combined companies' shares are likely to be subject to the SEC's
penny stock regulations, which may discourage brokers from effecting
transactions in those shares.
Shares that are issued by a company that has less than $5,000,000 in net
tangible assets, have a market price of less than $5 and are not listed on
Nasdaq or a stock exchange are classified as "penny stock." The SEC's penny
stock regulations impose significant restrictions on brokers who sell penny
stock to persons other than established customers and accredited investors. The
combined companies' shares are likely to be subject to the penny stock rules,
which may discourage brokers from effecting transactions in those shares. This
would decrease market liquidity, adversely affect market price and make it
difficult for stockholders to use our stock as collateral.
A business combination with our company will probably not be less
expensive than an IPO.
We do not have access to any substantial financial resources.
Accordingly, a business combination with our company will probably not be less
expensive than an IPO. Potential targets will expend substantial sums for:
o The fees of their lawyers and accountants who will bear primary
responsibility for preparing the information that must be included in
the prospectus for our reconfirmation offering;
o The costs of preparing any additional registrations and applications
necessary to facilitate the closing of a business combination, comply
with state law or facilitate the development of a trading market; and
o The costs of preparing, filing and distributing regular reports under
the Exchange Act, together with the specific stockholder reports
required by Rule 419.
We believe that an IPO is usually a better alternative than a business
combination with a public shell. If a potential target has the ability to
conduct an IPO, we encourage you to do so. If a potential target is not in a
position to conduct an IPO and still wants to go public, management should be
aware that the process of effecting a business combination with a public shell
is difficult, expensive and subject to numerous substantial risks that will make
it very difficult to develop an active, liquid, stable and sustained trading
market for the combined companies' shares.
Potential targets should not consider a business combination with our
company if they need additional capital or will require additional capital
within 12 to 18 months.
A business combination with our company will not give our target
immediate access to the capital markets. Potential targets should not consider a
business combination with us if they need additional capital or will require
additional capital within 12 to 18 months. Until the combined companies have
been active for a sufficient period of time to demonstrate credible operating
performance, it will be very difficult, if not impossible, for the combined
companies to raise additional capital. Potential targets cannot assume that
additional capital will ever be available.
Potential targets should expect increased regulatory scrutiny and a high
degree of skepticism from the financial community if they enter into a business
combination with our company.
Potential targets should expect more regulatory scrutiny at the Federal
and state level than they might otherwise encounter if they simply filed a
registration statement for an IPO. Moreover, the financial community views shell
transactions with a high degree of skepticism until the combined companies have
been active for a sufficient period of time to demonstrate credible operating
performance. Increased regulatory scrutiny may increase future compliance costs
and market skepticism may make it more difficult to establish and maintain an
active, liquid, stable and sustained trading market for the combined companies'
shares.
Potential targets should not consider a business combination with our
company if they are seeking short-term investment liquidity for corporate
insiders.
While the acquisition and founders' shares have been registered under the
Securities Act, all shares held by persons who are affiliates of the combined
companies will be classified as "restricted securities" that were issued on the
closing date of the business combination. These shares will not be eligible for
resale for a period of one year after the closing date unless the resale is
registered under the Securities Act. Potential targets should not consider a
business combination with our company if they are seeking short-term investment
liquidity for corporate insiders.
The combined companies' shares will not qualify for an immediate Nasdaq
listing.
The combined companies will satisfy Nasdaq's record holder and public
float standards. Even if a potential target satisfies Nasdaq's operating
history, stockholders' equity, net income and market capitalization standards,
the combined companies must also have three active market makers and satisfy
Nasdaq's minimum bid price standards. Nasdaq ordinarily requires an established
trading history of 90 days at a price that exceeds the minimum bid price
standard before it will consider a listing application. Therefore, the combined
companies' shares will have to begin trading on the OTC Bulletin Board, the Pink
Sheets or the proposed BBX, and wait to apply for a Nasdaq listing until all of
the applicable listing standards have been satisfied. There can be no assurances
that the combined companies' shares will ever qualify for a Nasdaq listing.
The donees are likely to be "sellers" and the availability of large
quantities of gift shares may impede the development of a trading market or
increase market volatility.
The donees have no money at risk in our company. If a potential target
enters into a business combination with us, the donees are likely to be willing
to sell their shares at a price that is significantly less than the minimum bid
price required for a Nasdaq listing. In such an event, the market may have to
absorb a substantial percentage of the gift shares before the prevailing market
price stabilizes.
If the combined companies are successful, there may not be enough shares
available.
Our capital structure has been designed to foster the development of an
orderly trading market. However, if the combined companies are successful, the
relatively small number of freely transferable shares may make it difficult to
satisfy market demand. Our existing stockholders can be expected to maximize
their personal benefit and if substantial quantities of our shares are withheld
from the market, the resulting supply and demand imbalances may drive the market
price of the combined companies' shares to unsustainable levels.
We are not investment bankers and our target will need to devote
substantial time, effort and expense to developing and maintaining an active
trading market.
We are not investment bankers and we have no ability to promote a market
for the combined companies' shares. Therefore, our target will need to devote
substantial time, effort and expense to developing and maintaining a trading
market. If the management of our target fails to devote adequate time and
resources to that effort, any market that does develop is likely to be
short-lived and volatile. If an active and liquid trading market does not
develop, the market price for the combined companies' shares will decline and
such declines are likely to be permanent.
ITEM 2 -- PROPERTIES
We do not have any material properties.
ITEM 3 -- LEGAL PROCEEDINGS
We are not a party to any legal proceedings.
ITEM 4 -- SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted for a vote of security holders during the year
ended December 31, 2003.
ITEM 5 -- MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
We have never paid cash dividends on our common stock and do not intend
to pay cash dividends in the foreseeable future. Our company is not likely to
pay cash dividends for an extended period of time, if ever.
There has never been a public market for our shares. Even if we complete
a business combination, the combined companies' shares will not qualify for an
immediate Nasdaq listing. At present, the securities of public companies that do
not qualify for a Nasdaq listing are either quoted on the OTC Bulletin Board or
listed in the Pink Sheets. The markets for OTC Bulletin Board and Pink Sheet
securities are frequently illiquid and volatile.
While we believe the combined companies' shares are likely to qualify for
listing on the proposed BBX, final listing standards have not yet been adopted
and we can offer no assurance that the combined companies' shares will
ultimately qualify for a BBX listing. In addition, we can offer no assurance
that the BBX will ultimately provide the improved efficiency, liquidity and
transparency that are presently anticipated by the NASD. Market transition
issues arising from the launch of the BBX may increase the risks associated with
the lack of a public market for our shares. There is no assurance that a market
for our shares will ever develop.
We have not engaged in discussions or negotiations with potential market
makers. We will not approach any market makers until a business combination is
completed. We will not use consultants or advisors to negotiate with potential
market makers. Our officers and their respective affiliates will not recommend,
encourage or advise donees to open brokerage accounts with any broker-dealer.
Donees will have the exclusive authority to make their own decisions regarding
whether to hold or sell their gift shares. We will not attempt to influence
those decisions.
ITEM 6 -- SELECTED FINANCIAL DATA
Summary Statement of Operations Data
The following table presents summary information on our results of
operations for the period from December 1, 2000 (Inception) through December 31,
2000, and the years ended December 31, 2001 and 2002. This data is qualified in
its entirety by our financial statements.
Year ended December 31,
-----------------------
2002 2001 2000 (1)
Organization costs (2) $7,215
Operating expenses (3) $16,120 $3,072 $1,000
Net income (loss) ($16,120) ($3,072) ($8,215)
Net Income (loss) per share ($0.01) ($0.00) ($0.00)
Number of shares outstanding (4) 2,400,000 2,400,000 2,400,000
(1) Period from December 1, 2000 (inception) through December 31, 2000.
(2) Our officers paid $6,715 of organization costs on our behalf during the year
ended December 31, 2000. (3) Our officers paid $3,000 of operating costs on our
behalf during the year ended December 31, 2001. (4) Gives retroactive effect to
a three share for five stock dividend that we implemented in December 2001.
Summary Balance Sheet Data
The following table presents summary information on our financial
condition at December 31, 2000, 2001 and 2002. This data is qualified in its
entirety by our financial statements.
As of December 31,
2002 2001 2000
Cash in banks $ 10,120 $ 38,426 $44,000
Deferred offering costs (1) 174,212 110,349 18,540
-------- -------- -------
Total assets $184,332 $148,775 $62,540
======== ======== =======
Total Liabilities $ 2,837 $-- $--
======= === ===
Common stock $ 2,400 $ 2,400 $ 1,500
Additional paid-in capital 206,591 157,662 65,255
-
Deficit accumulated during
the development stage ($27,407) (11,287) (8,231)
---------- --------- ------- -
Total stockholders' equity $181,584 $148,775 $62,540
======== =======
(1) Deferred offering costs will be carried as an asset until we complete a
business combination or abandon our business and liquidate. At that time,
deferred offering costs will be offset against additional paid-in capital.
ITEM 7 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
PLAN OF OPERATIONS
Financial Condition
We were incorporated in Delaware on December 1, 2000. Our business plan
was based on the assumption that our company would need an indeterminate amount
of cash to finance the registration process, plus $45,000 in cash to finance our
proposed operations. Therefore, our officers bought 2,400,000 shares of our
common stock for $45,000, and agreed to contribute additional cash to our
company from time to time to pay our organization costs, operating costs and the
costs of preparing our registration statement. On June 7, 2002, our officers
contributed and additional $7,574 in cash to our company.
Between December 1, 2000 (inception) and December 31, 2002, we incurred
$7,215 in organization costs, $20,192 in operating costs and $174,212 in
offering costs. Our officers paid $156,417 of these costs and company paid
$45,202. At December 31, 2002, we had $10,210 in cash and $2,837 in current
liabilities consisting of expense reimbursements due to officers and directors.
Therefore, our net working capital available to pay future operating expenses is
only $7,373.
Plan of Operations
We will use our available cash resources to pay the costs of operating
our company, investigating business opportunities, negotiating a business
combination and preparing the required post-effective amendment to our
registration statement. Our president will receive a cash overhead allowance of
$1,000 per month. We will not pay any other compensation to our officers, but we
will reimburse any out-of-pocket expenses they incur on our behalf.
We intend to request a reasonable due diligence fee before we begin a
detailed investigation into the affairs of a potential target. There can be no
assurance that any potential target will be willing to pay a due diligence fee,
or that any due diligence fees we receive will be sufficient to offset the
out-of-pocket costs incurred.
Rule 419 will require us to unwind the gift share distribution and cancel
the advisors' stock purchase rights if we fail to negotiate a business
combination, complete a reconfirmation offering and close the transaction before
December 7, 2003. If we conclude that we will be unable to meet this deadline,
we will promptly liquidate.
Our net working capital will probably not be sufficient to pay our
anticipated operating and offering expenses through December 7, 2003. Moreover,
the SEC's integration and general solicitation doctrines will preclude private
placement transactions until we complete our reconfirmation offering and close
the associated business combination. Therefore, we will be unable to obtain
funds by selling additional securities. If we spend all our available cash, our
officers will be faced with a decision to either abandon our business plan and
liquidate our company, or advance additional cash to our company. If our
officers decide to continue with the implementation of our business plan and
advance additional funds to our company, such advances will be in the form of
stockholder loans that bear interest at reasonable commercial rates. If we spend
our available cash and our officers are unwilling to provide additional
financing, we will be forced to abandon our business and liquidate.
ITEM 7A -- QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
Substantially all of our resources consist of cash in banks and we are
not subject to any of the market risks specified in Item 305 of Regulation S-K.
ITEM 8 -- FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by Item 8 is set forth in the Company's
Financial Statements and Notes thereto beginning at page F-1 of this report on
Form 10-K.
ITEM 9 -- CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There have been no changes in or disagreements with our independent
public accountants on accounting and financial disclosure.
ITEM 10 -- DIRECTORS AND EXECUTIVE OFFICERS
The following table identifies our directors and executive officers.
Name Age Position
Sally A. Fonner 54 President
Mark R. Dolan 51 Executive Vice President, Director
John L. Petersen 51 General Counsel, Director
Rachel A. Fefer 39 Secretary/Treasurer, Director
The following is a brief account of the business experience of each of
our directors and executive officers.
Ms. Sally A. Fonner is a principal stockholder of our company and has
served as our president since inception. It is anticipated that Ms. Fonner will
continue to serve as an officer of our company until we complete a business
combination. Ms. Fonner is not a full-time employee of our company and is not
required to devote any specific amount of time to our business.
In June of 2002, Ms. Fonner became the president and sole director of The
Enchanted Village, Inc., an inactive and insolvent public company that has
restructured its affairs and intends to pursue an acquisition strategy as a
public shell. In February of 2003, Ms. Fonner became the president and a member
of the board of directors of Tamboril Cigar Company, an inactive public company
that is attempting to restructure its affairs and intends to pursue an
acquisition strategy as a public shell. While Enchanted Village and Tamboril
Cigar intend to pursue business strategies that are similar to ours, they are
not expected to be directly competitive.
Ms. Fonner graduated from Stephens University in 1969 with a Bachelor of
Arts in Social Systems. After a stint in the private sector, she returned to
further her education and earned her MBA degree from the Executive Program of
the University of Illinois in 1979. During the past five years Ms. Fonner has
served as an officer and director and managed the business affairs of five
inactive and insolvent public companies that ultimately engaged in business
combination transactions with privately held companies. The following table
identifies the five public companies that have been managed by Ms. Fonner during
the last five years and provides summary information on the time periods for
which she served as an officer and director.
Company Name Term as an officer Term as a director
eNote.com, Inc. June 1998 to April 1999 June 1998 to November 1999
Telemetrix, Inc. July 1997 to April 1999 July 1997 to April 1999
Dupont Direct Financial Holdings, Inc. June 1998 to April 1999 June 1998 to March 2000
Liberty Group Holdings, Inc. March 1997 to November 1999 March 1997 to December 1999
Yifan Communications, Inc. March 2000 to July 2000 March 2000 to March 2001
Ms. Fonner is not an officer, director or affiliate of any other company
with a class of securities registered under section 12 of the Exchange Act or
subject to the requirements of section 15(d) thereof.
Mr. Mark R. Dolan is a principal stockholder of our company and has
served as executive vice president and a member of our board of directors since
inception. It is anticipated that Mr. Dolan will continue to serve as an officer
and director until we complete a business combination. Mr. Dolan is not a
full-time employee of our company and is not required to devote any specific
amount of time to our business. Mr. Dolan has been actively engaged in the
practice of law for 15 years. He is a member of the Florida Bar Association and
practices in the areas of corporate and intellectual property law, First
Amendment law and commercial litigation. Mr. Dolan has been an employee of Mark
R. Dolan, PA, Tampa, Florida, since June 1998. From April 1996 to June 1998, Mr.
Dolan was an employee and stockholder of Lirot-Dolan, P.A., of Tampa, Florida.
Since April 2001, Mr. Dolan has served as secretary and general counsel of
Yseek, Inc., a publicly held Internet technology company based in Tampa,
Florida. Mr. Dolan is also a member of Yseek's board. Mr. Dolan is a 1983
graduate of the Wayne State University College of Law and a 1977 honors graduate
of Michigan State University.
Mr. John L. Petersen is a principal stockholder of our company and has
served as general counsel and a member of our board of directors since
inception. It is anticipated that Mr. Petersen will continue to serve as an
officer and director of our company until we complete a business combination.
Mr. Petersen is not a full-time employee of our company and is not required to
devote any specific amount of time to our business.
Mr. Petersen has been principally engaged in the practice of law for 22
years and has been a resident of Barbereche, Switzerland since January 1998. He
is a member of the Texas Bar Association and practices in the areas of
securities and corporate law where he focuses on the needs of entrepreneurial
companies. Since April 1999, Mr. Petersen has been a partner in the law firm of
Petersen & Fefer, Barbereche, Switzerland. From January 1995 to April 1999, he
was a self-employed solo practitioner in Houston, Texas and Barbereche,
Switzerland. Mr. Petersen is a 1976 graduate of the College of Business
Administration at Arizona State University and a 1979 graduate of the Notre Dame
Law School. Mr. Petersen was admitted to the State Bar of Texas in May 1980 and
received his license to practice as a Certified Public Accountant in March 1981.
In February of 2003, Mr. Petersen became the chief financial officer and
a member of the board of directors of Tamboril Cigar Company, an inactive public
company that is attempting to restructure its affairs and intends to pursue an
acquisition strategy as a public shell. Mr. Petersen is not an officer, director
or principal stockholder of any other company with a class of securities
registered under section 12 of the Exchange Act or subject to the requirements
of section 15(d) thereof.
Ms. Rachel A. Fefer is a principal stockholder of our company and has
served as secretary/treasurer and a member of our board of directors since
inception. It is anticipated that Ms. Fefer will continue to serve as a director
until we complete a business combination. Ms. Fefer has been a resident of
Barbereche, Switzerland since April 1999 and is not a full-time employee of our
company. Ms. Fefer is not required to devote any specific amount of time to our
business. Ms. Fefer has been actively engaged in the practice of law for 12
years. She is a member of the Texas Bar Association and specializes in corporate
law and commercial litigation. Ms. Fefer has been a partner in the law firm of
Petersen & Fefer since April 1999. From September 1997 to April 1999, Ms. Fefer
was the sole employee of Rachel A. Fefer, PC, Houston, Texas. Previously, she
worked for 9 years as an associate in the law firm of Fouts & Moore, LLP,
Houston, Texas. Ms. Fefer is a 1988 Graduate of the University of Texas Law
School and a 1985 graduate (magna cum laude) of the School of Computer Science
at the University of North Texas.
John L. Petersen and Rachel A. Fefer are husband and wife.
Board Structure
Our certificate of incorporation provides that the board of directors may
fix the number of directors by resolution. Our current board consists of three
members. All of our current directors were elected in connection with the
organization of our company. The terms of our current directors will expire on
the date of our next annual meeting of stockholders, which is scheduled for June
11, 2003. Until we effect a business combination, our current board members will
have sufficient voting power to re-elect themselves as directors without the
approval or consent of the other stockholders.
Corporate Governance
We do not currently comply with all of the corporate governance standards
that would be required if our shares were listed on Nasdaq or the proposed BBX.
In particular, we do not have any independent directors, we have not created an
audit committee to review related party transactions and we do not intend to
require formal stockholder approval of a proposed business combination
transaction.
In connection with the negotiation of a business combination, we will
endeavor to negotiate corporate governance requirements that comply with the
applicable listing requirements of the proposed BBX and Nasdaq. Nevertheless,
the implementation of corporate governance standards is a matter that will fall
within the exclusive authority of successor management and there can be no
assurance that any terms we are able to negotiate will be properly implemented.
If successor management fails to implement appropriate corporate governance
standards, the combined companies' shares will not qualify for a listing on the
proposed BBX or Nasdaq.
Potential Conflicts of Interest
Ms. Fonner is a principal stockholder, officer and director of two other
public shells and Mr. Petersen is a principal stockholder, officer and director
of one of those companies. While the other shells are not expected to be
directly competitive with our company, these activities give rise to a variety
of potential conflicts of interest. The potential conflicts of interest include,
but are not limited to the following:
o Our officers have fiduciary obligations to multiple entities that are
pursuing similar business strategies and they may be obligated to
present a single opportunity to more than one entity.
o Our officers are actively involved in other business pursuits and will
face conflicts of interest in allocating their time between our affairs
and their other business interests.
o Our officers are not full-time employees of our company and they are
not required to devote any specific amount of time to our business.
o Each of our officers is also an owner of founders' shares that will be
offered for sale to third parties in connection with a business
combination. Therefore, it is likely that:
o A business combination will result in a series of related
transactions where our company receives property for the
acquisition shares but our officers receive cash for their
founders' shares; and
o Our officers may face a significant conflict of interest if the
owners of two similarly situated targets offer different prices
for the founders' shares, or if the owners of a relatively weak
target are willing to pay a higher price for the founders' shares
than the owners of a stronger target.
We do not have an audit committee to review related party transactions
and we cannot assure you that any of the potential conflicts mentioned above
would be resolved in our favor.
In general, officers and directors of a Delaware corporation are
obligated to act in a manner that is in, or not opposed to, the best interests
of the stockholders. In particular, under the Delaware corporate opportunity
doctrine, officers and directors are required to bring business opportunities to
the attention of a corporation if:
o The corporation could financially undertake the opportunity;
o The opportunity is within the corporation's line of business; and
o It would be unfair to the corporation and the stockholders if the
officers and directors failed to bring the opportunity to the attention
of the corporation.
To minimize potential conflicts of interest arising from multiple
corporate affiliations that involve similar business strategies, our officers
intend to provide information on all entities under their control to the
representatives of a potential target and then leave the due diligence and
selection process to the potential target and its advisors.
ITEM 11 -- EXECUTIVE COMPENSATION
In December 2001, Mr. Dolan, Mr. Petersen and Ms. Fefer each transferred
125,000 shares of our common stock to Ms. Fonner as compensation for services
she rendered to us during the year ended December 31, 2001. Since June 2003, Ms.
Fonner has received an overhead allowance of $1,000 per month. With the
exception of Ms. Fonner's overhead allowance, no cash compensation was awarded
to, earned by or paid to any of our officers or directors during the three years
ended December 31, 2002. The following table summarizes the foregoing.
Name and principal position Year Salary Bonus All other compensation
Sally A. Fonner, president 2002 $7,000 (1)
2001 -- -- $11,250 (2)
2000 -- -- --
(1) Ms. Fonner will continue to receive a cash overhead allowance of $1,000 per month until we close a business combination or
liquidate our company.
(2) Represents the contract value of 375,000 shares of our common stock that were transferred to Ms. Fonner by Mr. Dolan, Mr.
Petersen and Ms. Fefer in December 2001.
Each of our officers will be reimbursed for the out-of-pocket expenses
they incur on our behalf. There is no limit on the amount of allowable expense
reimbursements and there will be no review of the reasonableness of such
expenses by anyone other than our board of directors.
Each of our officers will offer to resell a portion of their founders'
shares in connection with a business combination.
Except for Ms. Fonner's cash overhead allowance, the expense
reimbursements and the potential profit from the resale of founders' shares, no
compensation will be awarded to, earned by or paid to any officer until we
complete a reconfirmation offering. Our officers and their respective affiliates
may not receive any direct or indirect compensation from a target, or any
officer, director, affiliate or associate of a target in connection with a
business combination. A detailed accounting of all overhead allowances, expense
reimbursements and other related party transactions will be included in the
prospectus for our reconfirmation offering.
ITEM 12 -- SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
The following table contains information on the ownership of our shares
at December 31, 2002. The table also presents pro forma information that gives
immediate effect to the issuance of 12,600,000 acquisition shares and the resale
of 1,600,000 founders' shares in connection with a business combination. All
persons named in the table have sole voting and investment power with respect to
the shares owned by them. The table identifies:
o Each of our officers, directors and 5% stockholders; and
o All our officers and directors as a group.
Name and Address December 31, 2002 (1) After Combination (2)
--------------------- ---------------------
of Beneficial Owner Shares Percent Shares Percent
Sally A. Fonner (3) 499,500 20.81% 100,000 0.67%
Mark R. Dolan (4) 499,000 20.79% 100,000 0.67%
John L. Petersen (5)(6) 998,500 41.60% 200,000 1.33%
Rachel A. Fefer (5)(6) 998,500 41.60% 200,000 1.33%
All officers and directors
as a group (four persons) 1,997,000 83.21% 400,000 2.67%
(1) Reflects the distribution of 403,000 shares to donees but does not give
effect to the conditional stock purchase rights of certain advisors who
may purchase up to 80,000 founders' shares at a price of $0.25 per share.
(2) Assumes that all 1,600,000 founders' shares will ultimately be sold to
unaffiliated third parties. (3) 1268 Bayshore Boulevard., Dunedin, Florida
34698. (4) 112 East Street, Suite B, Tampa, Florida 33602.
(5) Chateau de Barbereche, Switzerland 1783 Barbereche.
(6) Mr. Petersen and Ms. Fefer are husband and wife and each may be deemed to
be the beneficial owner of any shares held by the other. Mr. Petersen and
Ms. Fefer have sole investment power and sole voting power over the shares
registered in their name and each disclaims beneficial ownership of shares
held by the other.
Each of our officers is a "promoter" of our company as that term is
defined in Rule 12b-2 of the General Rules of the Securities and Exchange
Commission promulgated under the Securities Exchange Act of 1934.
ITEM 13 -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In connection with the organization of our company, Mr. Dolan, Mr.
Petersen and Ms. Fefer each purchased 500,000 shares of common stock for cash at
a price of $0.03 per share. Concurrently, they engaged Capston Network Company,
a corporation owned by Ms. Fonner, to administer our day-to-day business affairs
and provide office facilities and administrative services. A tri-lateral
administration agreement between our company, our founding stockholders and
Capston provided that each of our founding stockholders would pay Capston a
portion of any cash proceeds received from the resale of their founders' shares.
In December 2001, we renegotiated Ms. Fonner's employment agreement and
terminated the agreement with Capston. Concurrently, Mr. Dolan, Mr. Petersen and
Ms. Fefer each transferred 125,000 shares of our common stock to Ms. Fonner.
Since Capston and Ms. Fonner had a fixed and determinable economic interest in
the founders' shares that was expected to exceed 25% of the sale proceeds, the
transferred shares were valued at $0.03 per share for accounting purposes. We
recognized $3,000 in non-cash general and administrative expense and $8,250 in
non-cash deferred offering costs for the year ended December 31, 2001.
Immediately after the transfer of the founders' shares to Ms. Fonner, we
adjusted our capitalization by implementing three share for five stock dividend
that increased the number of outstanding shares to 2,400,000, or 600,000 shares
for each of our officers.
John L. Petersen is the author of our registration statement, which was
substantially complete and reduced to a tangible medium of expression before our
company was incorporated. Accordingly, the law firm of Petersen & Fefer has
claimed copyright ownership with respect to our registration statement and
prospectus. In addition, the law firm of Petersen & Fefer has filed a
preliminary business processes patent application relating to the legal
structure of our Rule 419 offering and the associated contracts included in our
registration statement.
Petersen & Fefer has granted our company a non-exclusive, royalty-free
license that gives us the right to use their copyright, patent and other
intellectual property rights for the purpose preparing our registration
statement and certain derivative works, including this prospectus, future
amendments to the registration statement, and our subsequent reports under the
Exchange Act. The license includes the unrestricted right to reproduce and
distribute copies of any of the foregoing documents to the extent required by
law or permitted by established practice in the securities industry. All other
intellectual property rights are reserved.
We have not paid Petersen & Fefer in connection for the intellectual
property license. Nevertheless, all parties believe that our attempt to
implement the underlying business plan developed by Mr. Petersen may give rise
to substantial indirect value by establishing the validity and proving the
utility of a previously unproven legal structure. Petersen & Fefer and our board
of directors have determined that the license agreement represents a fair and
reasonable exchange of intangible values.
Between December 1, 2000 (inception) and December 31, 2002, our officers
and directors paid or agreed to pay $6,715 in organization costs, $4,250 in
operating costs and $145,452 in costs associated with the preparation of our
registration statement. A total of $46,701 in offering costs assumed by our
officers and directors remained unpaid at December 31, 2002. We are not
contingently liable for the unpaid balances or not obligated to reimburse the
prior advances. All such payments have been accounted for as additional capital
contributions.
If the founders' shares are sold in connection with a business
combination, the selling stockholders intend to pool their cash proceeds,
reimburse their respective out of pocket investments and then share the
remaining proceeds, if any, on a proportional basis. This settle-up procedure
will have no impact on our company.
All future transactions between us and any of our officers or their
respective affiliates will be on terms that we believe are no less favorable
than the terms that could have been negotiated with unaffiliated third parties.
All related party transactions will require prior approval from a majority of
our disinterested directors.
ITEM 14 -- CONTROLS AND PROCEDURES
As of March 18, 2003, an evaluation was completed under the supervision
and with the participation of the Company's management, including the Company's
President and Chief Financial Officer, of the effectiveness of the design and
operation of the Company's disclosure controls and procedures. Based on that
evaluation, the Company's management including the President and Chief Financial
Officer, concluded that the Company's disclosure controls and procedures were
effective as of March 18, 2003. There have been no significant changes to the
Company's internal controls or other factors that could significantly affect
internal controls subsequent to March 18, 2003.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Date March 24, 2003 WIN OR LOSE ACQUISITION CORPORATION
By /s/ Sally A. Fonner
---------------------------------------------------
Sally Fonner, Chief Executive Officer and Director
By /s/ John L. Petersen
---------------------------------------------------
John L. Petersen, Chief Financial Officer and Director
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I Sally A. Fonner,
Chief Executive Officer of Win or Lose Acquisition Corporation certify that:
1. I have reviewed this annual report on Form 10-KSB of Win or Lose
Acquisition Corporation;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officers and I, are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and
we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of
the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation, to the registrant's auditors and the
audit committee of registrant's board of directors (or persons
performing the equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
/s/ Sally A. Fonner
Sally A. Fonner, Chief Executive Officer
March 24, 2003
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I John L. Petersen,
Chief Financial Officer of Win or Lose Acquisition Corporation certify that:
1. I have reviewed this annual report on Form 10-K of Win or Lose
Acquisition Corporation;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officers and I, are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and
we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of
the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation, to the registrant's auditors and the
audit committee of registrant's board of directors (or persons
performing the equivalent function):
d) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
e) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
annual report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
/s/ John L. Petersen
John L. Petersen, Chief Financial Officer
March 24, 2003
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Audited Financial Statements: Page
Report of the Independent Auditors F-2
Balance Sheet as of December 31, 2002, 2001 and 2000 F-3
Statement of Changes in Stockholders' Equity for the years
ended December 31, 2002 and 2001 and the period from
December 1, 2000 (inception) through December 31, 2000 F-4
Statement of Operations for the years ended
December 31, 2002 and 2001 and the period from
December 1, 2000 (inception) through December 31, 2000 F-5
Statement of Cash Flow for the years ended
December 31, 2002 and 2001 and the period from
December 1, 2000 (inception) through December 31, 2000 F-6
Notes to Financial Statements F-7
REPORT OF INDEPENDENT AUDITORS
To the Board of Directors and Stockholders
Win or Lose Acquisition Corporation
We have audited the accompanying balance sheet of Win or Lose Acquisition
Corporation (a Delaware corporation in the development stage) as of December 31,
2002, 2001 and 2000, and the related statements of operations, changes in
stockholders' equity and cash flows for the years ended December 31, 2002 and
2001, and the period from inception (December 1, 2000) through December 31,
2000. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Win or Lose
Acquisition Corporation as of December 31, 2002, 2001 and 2000, and the results
of its operations and its cash flows for the years ended December 31, 2002 and
2001, and the period from inception (December 1, 2000) through December 31,
2000, in conformity with generally accepted accounting principles.
Want & Ender CPA PC
By Martin Ender, CPA
New York, New York
March 24, 2003
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
BALANCE SHEETS
AS OF DECEMBER 31, 2002, 2001 AND 2000
ASSETS
December 31,
-------------------------------------------------------
-------------------------------------------------------
2002 2001 2000
-------------------------------------------------------
Current Assets:
Cash $ 10,210 $ 38,426 $ 44,000
- --------- --------- --------
Total current assets 10,210 38,426 44,000
--------- --------- ---------
Deferred Offering Costs
Filing fees 2,502 2,502 1,000
Miscellaneous offering costs 62,382 13,250
Legal fees 109,328 94,597 17,540
-------- ------- ------
Total deferred offering costs 174,212 110,349 18,540
-------- -------- ------
Total Assets $ 184,422 $ 148,775 $ 62,540
========== ========== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ - $ - $ 4,000
Due to affiliates 2,837 -
-------- ------ ------
Total current liabilities 2,837 - 4,000
--------- ------- -------
Long-term Debt
Total long-term debt - - -
------------- --------- --------
Total Liabilities 2,837 - 4,000
-------------- ---------- ---------
Stockholders' Equity
Common stock, $0.001 par value, 25,000,000 shares authorized, 1,500,000 shares
outstanding at December 31, 2000 and 2,400,000 shares outstanding at December
31,
2001 and 2002 $ 2,400 $ 2,400 $ 1,500
Preferred, $0.001 par value, 5,000,000 shares authorized,
no shares outstanding - - -
Additional paid in capital 206,591 157,662 65,255
Deficit accumulated during development stage (27,407) (11,287) (8,215)
-------- -------- --------
Total Stockholder's Equity 181,584 148,775 58,540
-------- -------- -------
Total Liabilities and Stockholders' Equity $ 184,421 $ 148,775 $ 62,540
========== ========== ========
The accompanying notes are an integral part of this Balance Sheet.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
Deficit
Accumulated
Additional During The
Common Stock Paid-In Development
Shares Par Value Capital Stage Total
Issuance of stock to founders for cash 1,500,000 $ 1,500 $ 43,500 $ - $ 45,000
Direct payment of certain costs by affiliates
Organization costs paid by affiliates $ 6,715 $ 6,715
Offering costs paid by affiliates - $ 15,040 $ - $ 15,040
Net Income (Loss)
For the period from December 1, 2000
(Inception) through December 31, 2000 - $ - $ - $ (8,215) $ (8,215)
--------- -------- -------- --------- ----------
BALANCE, December 31, 2000 1,500,000 $ 1,500 $ 65,255 $ (8,215) $ 58,540
----------- --------- ---------- ----------- --------
Direct payment of certain costs by affiliates
Operating costs paid by stock transfer $ 3,000
Offering costs paid by stock transfer $ 8,250
Additional offering costs paid by affiliates - $ - $82,057 $ - $ 93,307
Three share for five stock dividend 900,000 $ 900 $ (900) $ - $ -
Net Income (Loss)
For the year ended December 31, 2001 - $ - $ - $ (3,072) $ (3,072)
------------ -------- -------- ---------- ---------
BALANCE, December 31, 2001 2,400,000 $ 2,400 $ 157,662 $ (11,287) $148,775
----------- --------- ----------- ------------ --------
Additional cash capital contribution $ 7,574 $ 7,574
Direct payment of certain costs by affiliates
Operating costs paid by affiliates $ 1,250
Additional offering costs paid by
affiliates - $ - $ 40,105 $ - $ 40,105
For the year ended December 31, 2002 - $ - $(16,120) $ - $(16,120)
------------ -------- -------- ---- ----------
BALANCE, December 31, 2001 2,400,000 $ 2,400 $ 206,591 $ (27,407) $180,334
=========== ========= =========== ============ ========
The accompanying notes are an integral part of this Statement
of Changes in Stockholders' Equity.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
December 1, 2000
Year Ended December 31, (Inception) through
-----------------------------------
---------------- ---------------
2002 2001 December 31, 2000
- -----------------
---------------- ---------------
Revenue $ - $ - $ -
Expenses
Organization Costs
- 7,215
General and administrative 16,120 3,072 1,000
-------------- -------- -----
Total Expenses 16,120 3,072 8,215
-------------- -------- -----
Net Income (Loss) $ (16,120) $ (3,072) $ (8,215)
========== ========== ==========
Net Income (Loss) Per Common Share $ (0.01) $ (0.00) $ (0.00)
========= ========= =========
Number of common shares issued
and outstanding during period 2,400,000 2,400,000 1,500,000
========== ========== =========
Number of common shares used in
calculation of earnings per share 2,400,000 2,400,000 2,400,000
========== ========== =========
The accompanying notes are an integral part of this
Statement of Operations.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
STATEMENTS OF CASH FLOW
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
December 1, 2000
Year Ended December 31, (Inception) through
-----------------------------------
---------------- ---------------
2002 2001 December 31, 2000
-----------------
---------------- ---------------
Cash flows from operating activities
Net income (loss) $ (16,120) $ (3,072) $ (8,215)
Less operating costs paid by affiliates $ 1,250 $ 3,000 $ 6,715
--------- --------- --------
Net cash operating loss $ (14,870) $ (72) $ (1,500)
---------- -------- ----------
Change in operating assets and liabilities:
Increase (decrease) in current liabilities $ 2,837 $ (4,000) $ 4,000
--------- ---------- --------
Net cash provided by (used in) operating activities $ 2,837 $ (4,000) $ 4,000
--------- ---------- --------
Cash flows from financing activities
Proceeds from issuance of common stock $ 45,000
Additional cash capital contribution $ 7,574
(Increase) in offering costs incurred by the company $ (23,758) $ (1,502) $ (3,500)
---------- ---------- ----------
Net cash provided by (used in) financing activities $ (16,184) $ (1,502) $ 41,500
---------- ---------- --------
Net increase (decrease) in cash $ (28,217) $ (5,574) $ 44,000
Cash balance, beginning of period $ 38,426 $ 44,000 $ -
--------- --------- -----
Cash balance, end of period $ 10,210 $ 38,426 $ 44,000
========= ========= ========
Supplemental disclosure of non-cash transactions
involving direct payment of certain costs by affiliates
Direct payment of operating costs by affiliates $ 1,250 $ 3,000 $ 6,715
Direct payment of offering costs by affiliates $ 40,105 $ 90,307 $ 15,040
--------- - --------- --------
Total non-cash transactions involving direct $ 41,355 $ 93,307 $ 21,755
========= ========= ========
payments of certain costs by affiliates
The accompanying notes are an integral part of this Statement of Cash Flows
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
1. Organization and Operations
Win or Lose Acquisition Corporation (the "Company") was incorporated in
Delaware on December 1, 2000, for the purpose of raising capital through a
public offering of securities (the "Proposed Offering), which will be used to
effect a merger, acquisition or other business combination transaction (a
"Business Combination") with an unidentified privately-held company (a
"Target"). Since the Company has not yet identified Target, investors in the
Proposed Offering will have virtually no substantive information available for
advance consideration of any specific Target. The Company's business strategy
may also be referred to as a "blind pool" because neither the management of the
Company nor the investors in the Proposed Offering know what the business of the
Company will be.
The Company's business goal is to increase stockholder value by
concluding a Business Combination with a suitable Target where the expected
market value of the stock of the combined companies will be greater than the
offering price of the Company's shares in the Proposed Offering.
The Company is currently in the development stage. All activity of the
Company to date relates to its organization and financing activities.
The Company has not engaged in any substantive business activities to
date and has no specific plans to engage in any particular business in the
future. The Company's ability to commence operations is contingent upon
completion of the Proposed Offering described in Note 2.
2. Distribution of Securities
On June 7, 2002, the Securities and Exchange Commission granted an order
of effectiveness with respect to the Company's Form S-1 registration statement
under the Securities Act of 1933. The Company's registration statement includes
the following securities:
o 400,000 shares that the Company's officers will transfer to a total of
800 donees selected by them;
o 1,600,000 shares that the Company's officers will offer to sell to
advisors to the Company, the owners of a target and other participants
in a business combination; and
o 12,600,000 shares that the Company will offer to issue in connection
with a business combination.
The Distribution is subject to and will be conducted in compliance with
Rule 419, which was adopted to strengthen the regulation of securities offered
by "blank check" companies. Rule 419 defines a blank check company as a
development stage company (a) that has no specific business plan or has
indicated that its business plan is to engage in a merger or acquisition with an
unidentified company and (b) is proposing to issue a "penny stock." For purposes
of Rule 419, penny stocks include all shares that have a price of less than $5
per share and are not listed on Nasdaq or a stock exchange.
The Company's officers completed the gift share distribution on August 2,
2002. In connection with the Distribution, the Company's officers have
distributed a total of 400,000 gift shares and 3,000 founders' shares to 806
individual donees selected by them. Each donee received 500 gift shares and will
be subject to the resale restrictions described in the prospectus.
The Company has retained Global Securities Transfer, Inc., Denver,
Colorado to act as the transfer agent and registrar for its common stock. The
Company's officers have delivered a total of 2,400,000 shares to the transfer
agent, together with instructions that authorize the transfer agent to hold such
shares in un-certificated form pending completion of the Distribution.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
2. Distribution of Securities (continued)
The Company's officers have delivered instructions to the transfer agent
with respect to the 400,000 gift shares and 3,000 founders' shares that were
distributed to donees. The transfer agent has issued stock certificates for the
403,000 shares that were distributed to donees and delivered those stock
certificates to First Union National Bank, the escrow agent for the Company's
Rule 419 escrow. The stock certificates on deposit in the Rule 419 escrow will
be held in trust for the sole benefit of the donees until the shares are either
released from escrow or returned to the Company's officers in compliance with
Rule 419.
In connection with the Company's reconfirmation offering, each Donee must
approve the proposed transaction in writing and elect to accept delivery of his
gift shares. In the absence of an affirmative election by a Donee, the escrow
agent will surrender the Donee's stock certificates to the officer who made the
original gift.
The Company's business plan was based on the assumption that it will
require $45,000 in cash to finance its operations during the period between the
effective date of the registration statement and the completion of its
reconfirmation offering. Since the Company had $37,426 in cash at June 7, 2002,
the officers subsequently contributed $7,574 to the Company for the purpose of
increasing its' available cash balance to $45,000.
As a result of its limited resources, the Company will, in all
likelihood, have the ability to affect only a single Business Combination.
Accordingly, the prospects for the Company's success will be entirely dependent
upon the future performance of a single business.
The Company is unlikely to enter into an agreement with a Target that
does not have sufficient net tangible assets or operating income to satisfy the
minimum listing standards of the Nasdaq stock market. Therefore management
expects a business combination to result in a change in control. After a change
in control, the owners of the Target will have the right to appoint their own
officers and directors, and the Company's current officers will have no ability
to influence future business decisions.
The Company may not qualify for a Nasdaq listing upon completion of a
Business Combination. In such an event, the Company's common stock will be
traded on the over-the-counter market. It is anticipated that the common stock
will qualify for quotation on the OTC Bulletin Board; a NASD sponsored and
operated inter-dealer automated quotation system for equity securities that are
not included in Nasdaq. It is also anticipated that the company's common stock
will qualify for inclusion in the National Quotation Bureau "OTC Pink Sheets."
There can be no assurance that the liquidity and prices of the Company's common
stock in the secondary market will not be adversely affected.
There is no assurance that the Company will be able to affect a Business
Combination. If the Company is unable to close a transaction before December 7,
2003, Rule 419 will require that all gift share transactions be unwound and all
certificates for gift shares be returned to the Company's officers. In that
event, the Donees will receive nothing.
At the date of this report, the Company has 810 stockholders, including
its four officers and the 806 donees.
3. Summary of Significant Accounting Policies
Use of 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.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
3. Summary of Significant Accounting Policies (continued)
Fiscal Year
The Company's fiscal year begins on January 1 and ends on December 31 of
each year. For the period ended December 31, 2000, the Company's Statements of
Operations and Cash Flow reflect all transactions that arose between December 1,
2000, the inception date of the Company, and December 31, 2000.
Net Income (Loss) Per Common Share
The Company computes net income (loss) per common share in accordance with
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per
Share" and SEC Staff Accounting Bulletin No. 98 ("SAB No. 98"). Under the
provisions of SFAS No. 128 and SAB No. 98, basic net income (loss) per common
share ("Basic EPS") is computed by dividing net income (loss) by the weighted
average number of common shares outstanding.
The Company's net income (loss) per common share has been calculated on
the basis of 2,400,000 shares issued and outstanding, which gives retroactive
effect to a three share for five stock dividend implemented on December 28,
2001. There were no warrants outstanding at either December 31, 2000 or December
31, 2001.
Income Taxes
Income taxes are accounted for in accordance with SFAS No. 109,
"Accounting for Income Taxes." Under this method, deferred income taxes are
determined based on differences between the tax bases of assets and liabilities
and their financial reporting amounts at each year-end, and are measured based
on enacted tax rates and laws that will be in effect when the differences are
expected to reverse. Valuation allowances are established, when necessary, to
reduce deferred tax assets to the amount expected to be realized.
4. Capital Stock
The Company's Certificate of Incorporation authorizes the issuance of
25,000,000 shares of Common Stock. The Company's Board of Director's has the
power to issue any or all of the authorized but unissued Common Stock without
stockholder approval. The Company currently has no commitments to issue any
shares of Common Stock other than as described in the Proposed Offering;
however, the Company will, in all likelihood, issue a substantial number of
additional shares in connection with a Business Combination. To the extent that
additional shares of Common Stock are issued, dilution to the interests of the
Company's stockholders participating in the Proposed Offering will occur.
The Board of Directors of the Company is empowered, without stockholder
approval, to issue up to 5,000,000 shares of "blank check" preferred stock (the
"Preferred Stock") with dividend, liquidation, conversion, voting or other
rights that could adversely affect the voting power or other rights of the
holders of the Company's Common Stock. There are no shares of preferred stock
issued or outstanding.
In December 2000, the Company's original founders purchased 1,500,000
shares of common stock for cash at a price of $0.03 per share. On December 28,
2001, the board of directors implemented a three share for five stock dividend
that increased the number of issued and outstanding shares from 1,500,000 to
2,400,000 shares. In connection therewith, additional paid in capital was
decreased by $900 and capital stock was increased by $900.
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
5. Organization and Start-up Costs
During the period ended December 31, 2000, the Company incurred a total
of $7,215 in organization costs and $1,000 in audit fees, all of which were
accounted for as start-up costs. Of this total, the Company paid $1,500 and the
founders of the Company paid or agreed to pay $6,715 from their personal funds.
In accordance with FASB Statement of Position 98-5, all organization and
start-up costs were charged to expense on a current basis during the period
ended December 31, 2000.
6. Deferred Offering Costs
Deferred offering costs will be carried as an asset until the Company
completes a business combination or abandons its business and liquidates. Upon
the occurrence of either event, deferred offering costs will be offset against
additional paid-in capital. The cumulative deferred offering costs incurred
through December 31, 2002 were $174,212, including:
Expense Class Amount
Filing fees $ 2,502
Legal fees 119,328
Document preparation and printing 17,667
Travel, lodging and publicity 17,457
Transfer agent fees 2,758
Website development and support 14,500
--------------
Total deferred offering costs $ 174,212
=========
Of this total, the Company paid $28,760 and the founders of the Company
paid or agreed to pay $145,452 from their personal funds.
7. Non-cash Capital Contributions
The Company has no obligation to reimburse organization, operating and
offering costs paid by its founders. The following table presents summary
information on the total organization, operating and offering costs incurred as
of December 31, 2002 and allocation of such costs between the Company and its
founders:
Paid by Paid by Total costs
company founders incurred
Organization costs 500 6,715 7,215
Operating costs
Year ended December 31, 2000 1,000 1,000
Year ended December 31, 2001 72 3,000 3,072
Year ended December 21, 2002 14,870 1,250 16,120
Offering costs
Year ended December 31, 2000 3,500 15,040 18,540
Year ended December 31, 2001 1,502 90,307 91,809
23,758 40,105 63,863
-------------- ------- -------------
Year ended December 21, 2002
Totals $ 45,202 $ 156,417 $ 201,619
========= ========== =========
WIN OR LOSE ACQUISITION CORPORATION
(A DEVELOPMENT STAGE ENTITY)
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000
8. Unpaid Organization and Offering Costs
The following table summarizes differences between the organization,
operating and offering costs that the Company's founders had agreed to pay as of
December 31, 2002 and the amounts actually paid prior to that date.
Expense Class Amount
Organization costs $ 6,715
Operating costs through December 31, 2002 4,250
Offering costs through December 31, 2002 145,452
Less: payments made through December 31, 2001 109,716
-------
Unpaid balance at December 31, 2002 $ 46,701
========
Subsequent to year-end, the Company's founders paid $15,000 of the
outstanding offering cost invoices.
The Company is not contingently liable for the unpaid balance of the
offering costs that its founders have agreed to pay.
9. Stock-Based Compensation Paid by Affiliates.
In connection with the renegotiation of Ms. Fonner's employment agreement
and the termination of the Administration Agreement, the Company's founders each
transferred 125,000 shares to Ms. Fonner. Since Capston and Ms. Fonner had a
fixed and determinable economic interest in the founders' shares that was
expected to exceed 25% of the total resale proceeds, the transferred shares were
valued at $0.03 per share for accounting purposes. The Company recognized $3,000
in general and administrative expense and $8,250 in deferred offering costs for
the year ended December 31, 2001 as a result of these transactions.
10. Incentive Stock Plan
The Company's 2000 Incentive Stock Plan was adopted and approved in
connection with the organization of the Company. The common stock reserved for
issuance under the plan will be the lesser of 750,000 shares, or 10% of the
total number of shares outstanding after the closing of a Business Combination.
The class of persons eligible to participate in the plan includes all
full-time and part-time employees of the Company, provided that the eligible
participants do not include employees who are eligible to receive awards under
the terms of any employment contract or specialty plan adopted by us in the
future. The plan permits the grant of a variety of incentive awards including
(i) non-qualified stock options, (ii) incentive stock options, (iii) shares of
restricted stock, (iv) shares of phantom stock, and (v) stock bonuses. In
addition, the plan allows us to grant cash bonuses that will be payable when an
employee is required to recognize income for federal income tax purposes because
of the vesting of shares of restricted stock or the grant of a stock bonus.
The exercise price of all Incentive Stock Options granted under the Plan
must be at least equal to the fair market value of such shares on the date of
grant or, in the case of Incentive Stock Options granted to the holder of 10% or
more of the Company's Common Stock, at least 110% of the fair market value of
such shares on the date of grant. The exercise period for which incentive awards
may be granted is ten years from the date of grant (five years in the case of
Incentive Stock Options granted to an individual owning more than 10% of the
Company's Common Stock). The aggregate fair market value (determined at the date
of the grant) of such shares with respect to which Incentive Stock Options are
exercisable for the first time by the holder of the option during any calendar
year shall not exceed $100,000.