Confidential Offering Summary
Up to 2,000,000 Shares of Common Stock in
Golf Played Inc.
A Delaware Corporation
______
Minimum Investment $5,000 (6,400 Shares @ $0.78125 / share)
June 1, 2017
THIS CONFIDENTIAL OFFERING SUMMARY (“SUMMARY”) IS SUBMITTED TO YOU ON A CONFIDENTIAL BASIS SOLELY IN CONNECTION WITH YOUR CONSIDERATION OF AN INVESTMENT IN SHARES OF COMMON STOCK (THE “SHARES”) IN GOLF PLAYED INC., A DELAWARE CORPORATION (THE “COMPANY”). DUE TO THE CONFIDENTIAL NATURE OF THIS SUMMARY, ITS USE FOR ANY OTHER PURPOSE MIGHT INVOLVE SERIOUS LEGAL CONSEQUENCES. AS A RESULT, THIS SUMMARY MAY NOT BE DELIVERED TO ANY PERSON (OTHER THAN YOUR PROFESSIONAL ADVISORS) WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. Summary # ______
Notice: ______
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (“SEC”) NOR ANY OTHER GOVERNMENTAL AUTHORITY HAS PASSED UPON THE MERITS OF PARTICIPATING IN THIS OFFERING OF THE SHARES NOR HAS THE SEC OR ANY SUCH OTHER AUTHORITY PASSED UPON THE ADEQUACY OR ACCURACY OF THIS SUMMARY. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE OFFER AND SALE OF THE SHARES HEREBY HAS NOT BEEN REGISTERED WITH THE SEC OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND UNDER ANALOGOUS EXEMPTIONS IN EACH STATE; ACCORDINGLY, THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND MAY NOT BE OFFERED, TRANSFERRED, OR RESOLD EXCEPT WITH THE COMPANY’S PRIOR WRITTEN CONSENT. PROSPECTIVE INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION, PROSPECTIVE INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY, THE SHARES, AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. EACH PROSPECTIVE INVESTOR SHOULD CONSULT THEIR OWN ADVISERS CONCERNING LEGAL, TAX, AND RELATED MATTERS CONCERNING AN INVESTMENT IN THE SHARES. AN INVESTMENT IN THE SHARES INVOLVES SIGNIFICANT RISKS. SEE “RISK FACTORS” BELOW.
NO REPRESENTATIONS OR WARRANTIES OF ANY KIND ARE INTENDED OR SHOULD BE INFERRED WITH RESPECT TO THE ECONOMIC RETURN OR THE TAX CONSEQUENCES FROM AN INVESTMENT IN THE SHARES. PROSPECTIVE INVESTORS ARE NOT TO CONSTRUE THIS SUMMARY AS LEGAL OR TAX ADVICE.
PURCHASES OF SHARES ARE SUITABLE ONLY FOR PERSONS OF SUBSTANTIAL FINANCIAL MEANS WHO CAN MAKE A LONG- TERM INVESTMENT, CAN BEAR THE RISK OF LOSS IN THEIR ENTIRE INVESTMENT IN THE SHARES, AND HAVE NO NEED FOR IMMEDIATE LIQUIDITY IN THEIR INVESTMENT. ACCORDINGLY, SHARES WILL BE SOLD ONLY TO INVESTORS WHO MEET CERTAIN SUITABILITY REQUIREMENTS.
THIS SUMMARY IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE ARTICLES OF INCORPORATION, BYLAWS, AND OTHER GOVERNING DOCUMENTS OF THE COMPANY. STATEMENTS IN THIS SUMMARY ARE MADE AS OF THE DATE HEREOF UNLESS STATED OTHERWISE HEREIN, AND NEITHER THE DELIVERY OF THIS SUMMARY AT ANY TIME, NOR ANY SALE HEREUNDER, SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO SUCH DATE. THE COMPANY RESERVES THE RIGHT TO MODIFY ANY OF THE TERMS OF THE OFFERING AND THE SHARES DESCRIBED HEREIN PRIOR TO ANY PURCHASE.
A PROSPECTIVE INVESTOR SHOULD NOT SUBSCRIBE FOR THE SHARES UNLESS SATISFIED THAT HE AND/OR HIS REPRESENTATIVES HAVE ASKED FOR AND RECEIVED ALL INFORMATION WHICH WOULD ENABLE THEM TO EVALUATE THE MERITS AND RISKS OF THE SHARES. THE COMPANY WILL MAKE AVAILABLE TO EACH INVESTOR AND THEIR REPRESENTATIVE(S) THE OPPORTUNITY TO OBTAIN ANY ADDITIONAL MATERIAL INFORMATION CONCERNING THE COMPANY AND ITS BUSINESS TO THE EXTENT THE COMPANY POSSESSES SUCH INFORMATION OR CAN ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE, PROVIDED THAT IT IS NOT CONFIDENTIAL OR NON-DISCLOSABLE. INQUIRIES MAY BE DIRECTED TO ANDREW GEORGIOU: (706) 289-1035 / [email protected].
THIS SUMMARY DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY THE SHARES IN ANY STATE OR OTHER JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH STATE OR JURISDICTION. PROSPECTIVE INVESTORS SHOULD INFORM THEMSELVES AS TO THE LEGAL REQUIREMENTS AND TAX CONSEQUENCES WITHIN THE COUNTRIES OF THEIR CITIZENSHIP, RESIDENCE, DOMICILE, AND PLACE OF BUSINESS WITH RESPECT TO THE ACQUISITION, HOLDING, OR DISPOSAL OF THE SHARES.
FOR FLORIDA INVESTORS:
IF SALES OF THE SHARES ARE CONSUMMATED WITH FIVE OR MORE PERSONS IN THE STATE OF FLORIDA, ANY SUCH PERSON MAY, AT SUCH PERSON’S OPTION, VOID ANY PURCHASE HEREUNDER WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE PERSON TO THE COMPANY, AN AGENT OF THE COMPANY, OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO THE PERSON, WHICHEVER OCCURS LATER.
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Note Regarding Forward-Looking Statements ______
This Summary contains statements that constitute “forward-looking” statements that may involve future events, the Company’s future performance, and expected future operations and actions. Such forward-looking statements may be identified by the use of words such as “may,” “should,” “anticipate,” “believe,” “expect,” “plan,” “future,” “intend,” “could,” “estimate,” “predict,” “hope,” “potential,” “continue,” or the negative of these terms or other similar expressions. These forward-looking statements are only the Company’s views of possible future events, performance, operations, and actions and involve numerous assumptions, risks, and uncertainties. The Company’s actual results or actions may differ materially from these forward-looking statements for many reasons, including the acumen of the Company’s management, regional, national, and global economic and political trends and events, and changes in the laws and regulations under which the Company operates.
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Table of Contents ______
Investment Summary ...... 5 Management ...... 7 Risk Factors ...... 8 Privacy Policy ...... 14
Exhibits ______
Business Plan ...... Exhibit A Subscription Agreement ...... Exhibit B Articles of Incorporation ...... Exhibit C Bylaws ...... Exhibit D
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Investment Summary
The following investment summary is qualified in its entirety by, and must be read in conjunction with, the Articles of Incorporation, Bylaws, other corporate documents of Golf Played Inc., and the Subscription Agreement; a copy of each document is attached hereto or will be provided to prospective investors upon written request. A subscription to purchase the Shares should only be considered after carefully reading this Summary in its entirety.
An investment in the Shares should be viewed as being of limited liquidity and involves a high degree of risk. There can be no assurance that the Company will be profitable or will avoid incurring substantial losses.
The Company ...... Golf Played Inc. (the “Company”) is a Delaware corporation organized on February 8, 2017. The Company’s main office is located at 3445 Stratford Road, Atlanta, Georgia 30326; telephone: (706) 289-1035. Business of the Company ...... The Company is developing a proprietary smartpho...... ne (IOS / Android) application “app” platform that will allow golfers to create a global golf network by recording, tracking and sharing their golf experiences and performance with their friends and contacts. For a full description of the anticipated business of the Company, including financial projections, please see the Business Plan attached hereto as Exhibit A. Management ...... The Company is managed by its directors and officers. Andrew Georgiou and Antony “Tony” Georgiou are the Directors of the Company. Andrew also serves as the CEO, with Tony serving as President, CFO, and Secretary. Between them, Andrew and Tony exercise all authority over the Company’s day-to-day management and operations. The officers currently own a majority of the issued and outstanding Shares in the Company; even if all of the Shares available in this Offering are sold, Andrew and Tony will continue to hold a majority of the issued and outstanding Shares of the Company. See “Management,” below. Capitalization ...... The Company cu rrently has a single authorized class of Common Stock consisting of 50,000,000 Shares (the “Shares”) having a par value of $0.0001 per Share. Of the authorized Shares, up to 12,400,000 Shares comprise the “founder block” and are anticipated to be fully issued at the discretion of the Directors and outstanding by of December 31, 2017 to the founders and other strategic partners of the Company. All shares have the voting rights set forth in the Company’s Bylaws, attached hereto as Exhibit D. The Offering ...... The Company is offering up to 2,000,000 Shares at the offering price of $0.78125 per Share for a total offering amount of up to $1,562,000 (the “Offering”), with a minimum investment amount of $5,000 or 6,400 Shares. The Offering is being made on a “best efforts” basis and there is no minimum number of Shares that must be placed in the Offering. The Company may suspend or terminate this Offering at any time in its sole discretion. The Company will accept subscription documents and proceeds from prospective investors until the close of the Offering; subscription proceeds will be accepted on a rolling basis and deposited into the Company’s operating account. Wiring instructions may be found in the Subscription Agreement, attached hereto as Exhibit B. Subscriptions may not be revoked except as provided by applicable law or with the consent of the Company. The Company may decline to accept any subscription for any reason.
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Use of Proceeds ...... To ...... date, management has maintained a lean, cash-conserving operation. All funding required by the Company up until April 30, 2017 has been provided by the founders in amounts sufficient to bring the Company’s operations to their present point. With the proceeds of this Offering, the Company plans to develop its app platform, build out and scale its operations, increase its marketing efforts, and hire new staff, all with the goal of expediting the Company’s growth. The Company may also use capital raised in this Offering to pay the costs of this Offering and for general corporate purposes, as the Company’s management may determine in its sole discretion. Investor Qualifications ...... To subscribe ...... for the Shares, each prospective investor must qualify as an “accredited investor” within the meaning of Regulation D adopted under the Securities Act (“Reg. D”) or otherwise meet certain suitability standards. The Company has discretion to modify investor qualifications in its sole discretion. Prior to admission as a shareholder (“Shareholder”) of the Company, each investor will be required to submit documentation demonstrating that the suitability requirements of the Offering have been met. Risk Factors ...... An investment in the Shares is subject to various risks as described herein. See “Risk Factors.” Transferability ...... The Shares may be transferred only with the Company’s prior written consent, which consent may be withheld in its sole discretion. No market exists, and no market is anticipated to develop, for the Shares; an investment in the Shares is illiquid and investors should not acquire the Shares with an intention of transferring or reselling the Shares. Investors will be required to hold their Shares for not less than one (1) year. See “Risk Factors.” Annual Reports ...... Within one hundred eighty (180) days after the end of eac...... h calendar year, the Company shall provide its Shareholders with with an annual report setting forth (i) the year-end balance sheet of the Company and (ii) an income statement for the prior calendar year. Annual reports may be delivered to the Shareholders via electronic mail (e-mail) or other electronic communication. The Company shall also make any audited financial statements of the Company available to the Shareholders. Additional Information ...... Please contact Andrew Georgiou at (706) 289...... -1035 or at [email protected] if you would like additional information about the Company, the directors and officers, or the terms of this Offering. The Company will provide any requested information it can obtain without unreasonable effort or expense. How to Invest ...... All subscriptions are subject to the Company’s acceptance, and the Company may reject or reduce a subscription for any reason. To subscribe for the Shares, prospective investors must deliver to the Company: ○ a completed and executed Subscription Agreement (attached hereto as Exhibit B); and ○ any additional documentation necessary to establish your accredited investor or sophisticated investor status.
Golf Played Inc. 3445 Stratford Road Atlanta, Georgia 30326 (706) 289-1035
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Management
The Company and its day-to-day operations are managed by its directors and officers: Andrew Georgiou, Director and Chief Executive Officer, and Antony “Tony” Georgiou, Director, President, Chief Financial Officer, and Secretary.
Together, the officers have multiple decades of entrepreneurial experience in various industries, including technology, sport and leisure, real estate, publishing, and education, many of which are highly relevant to the business in which Golf Played Inc. operates.
The Company has recently been formed and its success will depend on the skill and acumen of its directors and officers. In the event that an officer retires, dies, or becomes incompetent or disabled (i.e., unable by reason of disease, illness, or injury to perform their functions as an officer of the Company), the Company may be unable to manage its affairs.
Outside of limited voting rights, the Shareholders have no right to participate in the management of the Company and will not be given an opportunity to select or evaluate any of the Company’s business strategies. Accordingly, you should only invest in the Shares if you are willing to entrust all aspects of the management of the Company and its operations to the discretion of the directors and officers.
The biographies of the officers are set forth below.
Andrew Georgiou. Director, Chief Executive Officer
A 4-time All-American golfer at Columbus State University in Georgia where he earned a BBA in marketing, Andrew has been a professional golfer since 2009 and has played the game at the highest level on various world tours over his career. As a native of South Africa and having played golf since the age of 10, Andrew has also represented his country as an amateur golfer prior to pursuing golf and his education in the United States.
Andrew founded a lawn games company in South Africa, introducing the game of “cornhole” to the country and was quick to identify the entrepreneurial opportunity for Golf Played Inc. and its app platform when asked by a friend about his experiences playing various courses across the world.
Andrew’s responsibilities with the Company include managing the day-to-day business activities and strategic vision of the Company.
Antony “Tony” Georgiou. Director, President, Chief Financial Officer, Secretary
Tony’s career has been entrepreneurial and concentrated primarily in the technology industry. After “retiring” at the age of 36, Tony became involved with a number of organizations in South Africa, providing restructuring and strategic advice. One major project Tony focused his efforts on was the restructuring of the thoroughbred horse racing industry in South Africa, an industry which employs approximately 100,000 people across the country. Tony spearheaded a team which successfully reorganized and rationalized the industry and played a pivotal role in forming the National Tote.
Tony also has experience with international real estate development, publishing (The Compleat Golfer and several other magazines in South Africa), and serving on the boards of various companies. Tony also spent 3 years working on the Cornerstone Institute project, where he restructured the operations of the Institute, expanded the Institute’s business focus, and repositioned the Institute from a marketing perspective, with a focus on technology-driven distance tertiary education in South Africa.
With the Company, Tony’s responsibilities include the strategic positioning, business development, and marketing of the Company’s app platform.
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Risk Factors
An investment in the Shares involves significant risks not associated with other investments and is suitable only for persons of adequate financial means who have no need for liquidity in their investment in the Shares.
The Shares may be deemed a speculative investment and should only be considered as a supplement to an overall investment program. There can be no assurances or guarantees that: (i) the Company’s business strategies and plans will prove successful or (ii) a Shareholder will not experience a significant or complete loss of their investment in the Shares. Accordingly, the acquisition of Shares should only be made by persons who are able to assume such risks and only after consulting with independent, experienced investment advisors. If you would like more information regarding any risk factor described below, please contact Andrew Georgiou, Chief Executive Officer.
Though the following list is by no means exhaustive, prospective investors should consider the following major risks prior to acquiring the Shares:
Business Risks
Creation and Engagement of User Base. The Company’s business model requires it to create a user base for its platform and then actively engage with the users, advertisers, and partners in the Company’s platform. If the Company fails to create a user base or, once created, add new users or retain current users, or if users engage with the platform less over time, the Company’s business would be seriously harmed. The Company views user engagement as the primary driver of future revenue growth. Adding, maintaining and engaging users will be critical to the Company’s performance. Additionally, the Company’s user growth rate may decline over time once the user base has reached a saturation level. Once the growth of users slows, the Company’s profitability will be increasingly dependent on the Company’s ability to elevate user engagement (i.e., the frequency and duration of engagement) or monetize its users.
Low Barriers to Entry. The Company anticipates having a “first mover” advantage with regard to the app platform in the English-speaking global market. However, to the extent the Company’s business plan is widely copied, competitors may arise with competing products, reducing the Company’s margins and/or harming the Company’s ability to retain existing users and customers and obtain new users and customers. The platform will be free and easy to join, the barriers to entry for new entrants is low, and the switching costs to another platform will also be low. These factors may lead users to switch to another platform, which would negatively affect the Company’s user retention, growth and engagement. There may be existing and future competition in the Company’s targeted markets, and these markets are subject to technological and regulatory change. The Company expects that the global popularity of golf and the target markets for the Company’s app platform will continue to develop and change rapidly and the Company’s future success will depend on management’s ability to develop and maintain a competitive position. Additionally, the Company may compete with firms which have substantially greater financial resources at their disposal.
Demographic Risks. The platform’s popularity will be dependent on the number of active golfers in the markets in which the platform is available. In recent years, the popularity of the game of golf with younger generations has been challenged by the availability of other forms of leisure and entertainment. Additionally, the demographic most likely to use the platform is the under-45 age group, which, while growing worldwide, may have fewer active golfers per capita than older age groups, such as retirees. The Company may not be able to penetrate older age groups in a meaningful manner.
Mobile Operating Systems. As the platform will be used primarily on mobile devices, the application must remain interoperable with popular mobile operating systems, Android and iOS, and related hardware, including but not limited to mobile-device cameras. The owners of such operating systems, Google and Apple, respectively, may provide consumers with products that compete with the Company. The Company has no control over these operating systems or hardware, and any changes to these systems or hardware that degrade the platform’s functionality, or give preferential treatment to competitive products, could seriously harm the platform’s usage on mobile devices.
Mobile malware, viruses, hacking and phishing attacks, spamming, and improper or illegal use of Platform. Mobile malware, viruses, hacking, and phishing attacks have become more prevalent in the technology industry and may occur on the Company’s systems in the future. Although it is difficult to determine what, if any, harm may directly result from an interruption or attack, any failure to maintain performance, reliability, security, and availability of Company products and technical infrastructure to the satisfaction of users may seriously harm the Company’s reputation and its ability to retain
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existing users and attract new users. In addition, spammers may attempt to use Company products to send targeted and untargeted spam messages to users, which may embarrass or annoy users and make the Company’s products less user friendly. The Company cannot be certain that the technologies that it may develop to repel spamming attacks will be able to eliminate all spam messages from Company products. Company actions to combat spam may also require diversion of significant time and focus of the engineering team from improving Company products. As a result of spamming activities, users may use Company products less or stop using them altogether, and result in continuing operational cost to the Company.
Data and Regulatory Risks. The Company’s platform will typically require high bandwidth data capabilities. Therefore, the majority of the platform’s users will be likely to live in countries with high-end mobile device penetration and high bandwidth capacity cellular networks with large coverage areas. The Company may not experience rapid user growth or engagement in countries with low smartphone penetration or low bandwidth capacity cellular networks. The Company may also not experience rapid user growth or engagement in countries where, even though smartphone penetration is high, due to the lack of sufficient cellular based data networks, consumers rely heavily on Wi-Fi and may not access the platform regularly. If the costs of data usage increase or access to cellular networks is limited, user growth, retention, and engagement may be seriously harmed. Additionally, to deliver high-quality video and other content over mobile cellular networks, the platform must work well with a range of mobile technologies, systems, networks, regulations, and standards that the Company does not control. In particular, any future changes to the iOS or Android operating systems may impact the accessibility, speed, functionality, and other performance aspects of the platform, which issues are likely to occur in the future from time to time. In addition, the adoption of any laws or regulations that adversely affect the growth, popularity, or use of the internet, including laws governing internet neutrality, could decrease the demand for the platform and increase the Company’s cost of doing business. Current Federal Communications Commission, or FCC, “open internet rules” prohibit mobile providers in the United States from impeding access to most content, or otherwise unfairly discriminating against content providers like the Company. These rules also prohibit mobile providers from entering into arrangements with specific content providers for faster or better access over their data networks. The European Union similarly requires equal access to internet content. Additionally, as part of its Digital Single Market initiative, the European Union may impose network security, disability access, or 911-like obligations on “over-the-top” services such as those provided by the Company, which could increase costs. If the FCC, Congress, the European Union, or the courts modify these open internet rules, mobile providers may be able to limit the users’ ability to access the platform or make the platform a less attractive alternative to competitive applications. Were that to happen, the Company’s business would be seriously harmed. While the Company seeks to develop and expand its business as discussed in the Business Plan, the Company may be precluded from acting in various activities by applicable law or without registering in various capacities beforehand. The Company cannot provide any assurance that it will not have to expend considerable time and resources to so register if the Company determines registration is required to enable the Company to pursue its Business Plan as set forth in Exhibit A. Therefore, the Company cannot accurately predict what impact any changes in such laws may have on the Company’s operations or results.
Privacy Risk and Regulation. The Company will be subject to a variety of laws and regulations in the United States and other countries that involve matters central to its business, including user privacy, rights of publicity, data protection, content, intellectual property, distribution, electronic contracts and other communications, competition, protection of minors, consumer protection, taxation, and online-payment services. These laws can be particularly restrictive in countries outside the United States. Both in the United States and abroad, these laws and regulations constantly evolve and remain subject to significant change. In addition, the application and interpretation of these laws and regulations are often uncertain, particularly in the new and rapidly evolving industry in which the Company operates. Because the Company stores, processes, and uses data, some of which contains personal information, the Company is subject to complex and evolving federal, state, and foreign laws and regulations regarding privacy, data protection, and other matters. Many of these laws and regulations are subject to change and uncertain interpretation, and could result in investigations, claims, changes to the Company’s business practices, increased cost of operations, and declines in user growth, retention, or engagement, any of which could seriously harm the Company’s business. Several proposals are pending before federal, state, and foreign legislative and regulatory bodies that could significantly affect the Company’s business.
Concentration Risk. It is currently anticipated that substantially all of the Company’s revenue will be derived from its app platform. To the extent various English-speaking global markets and smartphone users prove unreceptive to the Company’s platform and/or competitive apps are released, it may be difficult for the Company to find other avenues of revenue growth. Accordingly, an investment in the Shares is attended by concentration risk associated with the Company’s app platform.
Advertising. A portion of the Company’s revenue will be generated from third parties advertising on the platform and on the various communication pieces generated by the Company to registered users on the platform. Although the Company may attempt to establish longer-term advertising commitments with advertisers, most advertisers do not have long-term
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advertising commitments, and Company’s efforts to establish long-term commitments may not succeed. While no single advertiser or content partner will likely account for over 50% of the Company’s revenue, many advertisers spend a relatively small portion of their overall advertising budget with mobile applications. In addition, advertisers may view the platform as experimental and unproven. Advertisers will not continue to do business with the Company if it does not deliver advertisements in an effective manner, or if they do not believe that their investment in advertising with the Company will generate a competitive return relative to other alternatives. Moreover, the Company will rely heavily on its ability to collect and disclose data and metrics to advertisers to attract new advertisers and retain existing advertisers. Any restriction, whether by law, regulation, policy, or other reason, on the Company’s ability to collect and disclose data which its advertisers find useful would impede its ability to attract and retain advertisers. Other Income sources. The Company will derive a substantial portion of its revenue from the sale of goods and services to registered users on the platform. Although the Company will use its best endeavors to offer goods and services that it believes registered users would be interested in purchasing, there is no guarantee that registered users of the platform will in fact purchase the goods and services offered, and as such the revenue projections from the sale of these goods and services may not materialize and could result in the Company not being able to achieve its valuations. Further, if any of the goods or services offered on the platform fail to meet customer expectations, the business of the Company may suffer negative reviews and otherwise be negatively impacted. To a great extent, the quality of the goods and services offered by the Company through the platform will be determined by third parties over which the Company may not be able to effectively exert control.
Limited Operating History. Having been recently formed, the Company’s operations to date have been extremely limited and the Company has generated no revenue. Accordingly, the Company does not have a substantial history upon which investors may base an investment decision and it may be difficult to effectively assess the Company’s future prospects. As a result, you should consider carefully the Company’s Business Plan, attached hereto as Exhibit A, and the prior business and entrepreneurial experience of the Company’s management prior to investing in the Shares. As the Company was recently formed, no audited financial statements are being made available to prospective investors in connection with this Offering; however, certain limited financial projections have been included as an annex to the Business Plan in Exhibit A.
Substantial Discretion in Use of Proceeds. The Company intends to use the net proceeds of this Offering to develop its app platform, build out and scale its operations (including by hiring additional personnel), increase its marketing efforts, pay expenses associated with the Offering, and for working capital and general corporate purposes. Accordingly, the Company has significant flexibility in applying the net proceeds of this Offering.
Operating Losses and Profitability. The Company’s business model is predicated on a free-to-market app which is intended to establish a database of users during the first year of operation. Once a base of users has been secured, the Company will launch its offering of commercial goods and services. The Company has commenced commercial operations in 2017 and there will be no significant revenue generated before 2018 and as such the Company will experience net losses and negative cash flows from operations. The Company expects its operating expenses to increase in the future as the Company expands operations. If Company revenue does not grow at a greater rate than Company expenses, the Company will not be able to achieve and maintain profitability. The Company may incur significant losses in the future for many reasons, including without limitation the other risks and uncertainties described in this Summary. Additionally, the Company may encounter unforeseen expenses, operating delays, or other unknown factors that may result in losses in future periods. If Company expenses exceed revenue, the Company’s business may be seriously harmed and it may never achieve or maintain profitability.
Future Capital Needs. The Company’s business is dependent on the availability of adequate capital and the Company currently has significant operational developments to finance. To the extent the Company raises additional funds in the future, there can be no assurance that additional financing will be available on terms favorable to the Company.
Financial Forecasts. Management prepared the estimates and financial forecasts provided in the Business Plan without outside professional assistance. Given the difficulty in accurately estimating future financial sales, costs, revenues and other events, there is a material possibility that (i) management has not made sufficient provision for losses in this forecast or that expenses have been underestimated, profit margins have been overestimated, or the length of time it will take the Company to develop, market, and sell its services has been underestimated; (ii) management has overestimated future or current product acceptance, sales, markets, or market penetration; or (iii) management has identified potential markets where the Company’s current products and future products cannot be sold. Actual results of operations may materially differ from those forecasted and there can be no assurances or guarantees that the Company will be profitable. Any adverse assumption errors could have a substantial detrimental effect on the Company and its ability to operate profitably.
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General Economic Conditions. The Company’s operating performance is dependent upon economic conditions in various global markets in which the Company intends to operate. A general or localized economic downturn may cause customers to reduce their time spent playing golf and their leisure budget, which may in turn have a material adverse effect on the Company’s financial condition.
Dependence on Key Employees and Consultants. The Company depends on qualified personnel, who the Company may prove unable to retain or hire, to run and develop the Company’s specialized business. Due to the specialized nature of the business, the Company is highly dependent upon its ability to attract and retain qualified personnel. The loss of the services of existing personnel, as well as the failure to recruit key technical and managerial personnel in a timely manner would be detrimental to the Company’s development and could have an adverse impact upon the Company’s business affairs and finances. The Company’s anticipated growth and expansion into areas and activities requiring additional expertise, such as sales and marketing, may require the addition of new management personnel at competitive salaries. Competition for qualified personnel is intense and there can be no assurance that the Company will be able to continue to attract and retain qualified personnel necessary for the development of the Company’s business strategies or that the cost of doing so will be reasonable.
Third-Party Agreements. The Company has negotiated and executed contracts with various third parties that are material to the Company and its operations, including agreements related to equipment purchases, insurance, tax advice and legal counsel. The Company’s failure to identify appropriate partners or execute and abide by the terms of these agreements and other agreements in the future may have a material adverse effect on the Company and its prospects.
Intellectual Property Risks. The Company has taken steps to protect its confidential proprietary information (logos, trademarks, applications, software, etc.), in part by entering into confidentiality agreements with employees, consultants, advisors, and other third parties who access or contribute to our proprietary know-how, information, or technology. We will continue to rely on trademark, copyright, patent, trade secret, and domain-name protection laws to protect our proprietary rights. The Company has registered trademarks in the United States, Canada, and the European Union to protect its intellectual property. However, third parties may knowingly or unknowingly infringe our proprietary rights, third parties may challenge proprietary rights held by us, and pending and future trademark and patent applications may not be approved. In addition, effective intellectual property protection may not be available in every country in which we operate our business. In any of these cases, we may be required to expend significant time and expense to prevent infringement or to enforce our rights. Although we have taken measures to protect our proprietary rights, there can be no assurance that others will not offer products or concepts that are substantially similar to ours and compete with our business. In addition, the Company may contribute software source code under open-source licenses or make other technology the Company developed available under other open licenses, and the Company may include open-source software in its products. From time to time, the Company may face claims from third parties claiming ownership of, or demanding release of, the open-source software or derivative works that the Company has developed using such software, which could include the Company’s proprietary source code, or otherwise seeking to enforce the terms of the applicable open-source license. These claims could result in litigation and could require the Company to make its software source code freely available, seek licenses from third parties to continue offering its products for certain uses, or cease offering the products associated with such software unless and until the Company can re-engineer them to avoid infringement, which may be very costly. Likewise, the Company will feature materials and intellectual property on its website and application that may be subject to copyright or other protections; in the event the Company inadvertently uses protected materials, the owner may seek damages or other compensation from the Company. If the Company is unable to protect its proprietary rights or prevent unauthorized use or appropriation by third parties, the value of the Company’s brand and other intangible assets may be diminished, and competitors may be able to more effectively mimic the Company’s service and methods of operations. Further, if the Company needs to license or acquire new intellectual property, the Company may incur substantial costs. Any of these events could seriously harm the Company’s business.
Risks of the Shares
Co-Founders Control the Company. The Company has set aside a “founder block” comprising 12,400,000 Shares to be issued, at the discretion of the Directors, to the founders and other strategic partners of the Company. It is currently anticipated that these Shares will be fully issued and outstanding by the end of 2017. Accordingly, even if the maximum amount is raised in this Offering, the Founders will continue to hold a majority of the issued and outstanding shares of the Company. As a result, the Founders, and potentially Andrew Georgiou personally, will have the ability to control the outcome of all matters submitted to the Company’s Shareholders for approval for the foreseeable future. This concentrated control could delay, defer, or prevent a change of control, merger, consolidation, or sale of all or substantially all of the Company’s assets in a transaction that the other Shareholders may support; conversely, this concentrated control could allow the Founders to consummate such a
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transaction that the Shareholders do not support. In addition, the Founders may make long-term strategic decisions and take risks that may not be successful and may seriously harm the Company’s business.
No Management Authority. Investors have no right or power to participate in the management of the Company and will not be given the opportunity to select or evaluate any of the Company’s business strategies. Accordingly, prospective investors should only invest in the Shares if they are willing to entrust all aspects of the management of the Company to the discretion of the Company’s officers. The Company’s success will depend on the skill and acumen of the Company’s officers and in the event one or more officers retires, dies, becomes incompetent or disabled (i.e., unable by reason of disease, illness, or injury to perform their function as an officer of the Company), the Company may be unable to manage its affairs or continue its operations. As the Chief Executive Officer and President, Andrew Georgiou and Antony “Tony” Georgiou, respectively, have control over the Company’s day-to-day management and the implementation of major strategic investments of the Company. The Directors owe a fiduciary duty to the Company’s Shareholders and must act in good faith and in a manner they reasonably believe to be in the best interests of the Shareholders. However, as Shareholders, the Directors are entitled to vote their Shares, and Shares over which they have voting control, in their own interests, which may not always be in the interests of the Shareholders generally.
No Obligation of Full-Time Service. No officer or director has any obligation to devote their full time to the business of the Company. Instead, each officer and director is only required to devote such time and attention to the affairs of the Company as they decide, in their sole discretion, is appropriate and they may engage in other activities or ventures, including ventures competitive with the Company or unrelated employment, which result in various conflicts of interest between such persons and the Company.
No Protection from a Change of Control. The provisions contained in the corporate documents of the Company will not afford the Shareholders protection in the event of a change of control transaction that may adversely affect the Shareholders, including a reorganization, restructuring, merger or other similar transaction involving the Company. The corporate documents do not contain provisions that permit the Shareholders to require the Company to repurchase the Shares in the event of a takeover, recapitalization, or similar transaction.
Illiquid Shares. The Shares cannot be assigned, transferred, or otherwise encumbered except with the prior approval of the Directors. Accordingly, investors should only acquire the Shares with an expectation of holding the Shares for an indefinite period of time, but not less than one (1) year from the date of purchase. There currently is no public market for the Shares and none is currently expected to develop. Further, the Company is under no obligation to develop a market for the Shares at any time in the future.
Risks of the Shares
Illiquid Shares. Once issued, the Shares cannot be assigned, transferred, or otherwise encumbered except on the limited terms and conditions set forth in the Company’s Bylaws and other corporate documents, as amended. There currently is no public market for the Shares and none is currently expected to develop. Further, the Company is under no obligation to develop a market for the Shares at any time in the future.
Risk of Future Dilution. There is no chance of future dilutuion of the shares offered in terms of this offering as this tranche of the shareholding in the Company is non-diluting.
Indemnification. The Company’s officers and directors will not be liable for, and shall be indemnified and held harmless from, any loss or damage incurred by the Company or its Shareholders in connection with the Company’s business, if such officers and directors acted in good faith, which will not constitute gross negligence or willful misconduct, pursuant to the authority granted, to promote the Company’s interests. Any such indemnification is limited to the assets of the Company and will not impose any personal liability upon any Shareholder. Notwithstanding the foregoing, no term of the Company’s corporate documents may operate as a waiver of a Shareholder’s rights under applicable securities laws.
Possibility of No Dividends. As a newly formed entity with limited revenues, the Company is not likely to pay dividends to the Shareholders for the foreseeable future, and any revenues may be retained for growth and development or other corporate purposes. Therefore, investors may receive no income from their investment in the Shares and should only invest in the Shares if they anticipate that the Shares will appreciate in value over time.
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Lack of Independent Counsel; No Independent Verification. Investors should note that the Company is represented by Kowan & Cordon, LLC (“K&C”) with regard to this Offering and may use additional legal counsel in the future. In drafting this Summary, K&C has relied upon the representations of the Company’s officers and has not independently verified any claim or representation set forth in this Summary. None of the agreements, contracts, or arrangements between the Company, on the one hand, and the officers and directors, on the other hand, were or will be the result of arm’s-length negotiations. The attorneys, accountants, and others who have performed services for the Company in connection with the Offering, and who will perform services for the Company in the future, have been and will be selected by the Company. No separate counsel has been retained by the Company to act on behalf of the investors, and the corporate documents of the Company have not been reviewed by an attorney on their behalf. It is recommended that prospective investors obtain, at their own cost, separate legal counsel to review the terms of the Offering.
Operating Deficits. The expenses of the Company, including salaries, office space, and other overhead, may exceed the Company’s income, thereby requiring that the difference be paid out of the Company’s capital, reducing the Company’s ability to develop its Business Plan or capture new business opportunities. To the extent that operating deficits become unmanageable, the Company could be forced to raise additional capital or declare bankruptcy.
THE FOREGOING LIST OF RISK FACTORS AND OTHER CONSIDERATIONS DOES NOT PURPORT TO BE A COMPLETE EXPLANATION OF THE RISKS AND OTHER FACTORS INVOLVED IN THIS OFFERING AND THE SHARES. PROSPECTIVE INVESTORS SHOULD READ THIS SUMMARY IN ITS ENTIRETY BEFORE DECIDING TO INVEST IN THE COMPANY.
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Privacy Policy
This privacy policy explains the manner in which the Company collects, utilizes, and maintains nonpublic personal information about the Company’s investors, as required under recently enacted United States legislation. This privacy policy only applies to nonpublic information concerning investors who are individuals, not entities.
Collection of Investor Information
The Company collects personal information about investors mainly through subscription documents, investor questionnaires, other written documents provided by investors, personal meetings, telephone calls, electronically, and through transactions within the Company. This information may include names, addresses, nationalities, tax identification numbers, financial and investment qualifications, account balances, and investments.
Disclosure of Nonpublic Personal Information
The Company does not sell or rent investor information. The Company does not disclose nonpublic personal information about its investors to nonaffiliated third parties or to affiliated entities, except as permitted by law. For example, the Company may share nonpublic personal information in the following situations:
• To service providers in connection with the administration of the Company, which may include attorneys, accountants, auditors, and other professionals. The Company may also share information in connection with the servicing or processing of Company transactions;
• To respond to a subpoena or court order, judicial process or regulatory authorities;
• To protect against fraud, unauthorized transactions (such as money laundering), claims or other liabilities; and
• Upon the consent of an investor to release such information, including authorization to disclose such information to persons acting in a fiduciary or representative capacity on behalf of the investor.
Protection of Investor Information
The Company’s policy is to require that all employees and companies providing services on its behalf keep investor information confidential. Additionally, the Company maintains safeguards that comply with United States Federal standards to protect investor information. The Company restricts access to the personal and account information of investors to those employees who need to know that information in the course of their job responsibilities. Third parties with whom the Company shares investor information must agree to follow appropriate standards of security and confidentiality. The Company’s privacy policy applies to both current and former Shareholders. The Company may disclose nonpublic personal information about a former Shareholder to the same extent as for a current Shareholder.
Changes to Privacy Policy
Golf Played Inc. may make changes to its privacy policy after sending investors a revised privacy policy describing the change.
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Exhibit A
BUSINESS PLAN
Vision
The Ultimate Global Golf Community… Like minded individuals will record, recall and relive their golf experiences, share these with friends and track performance through stats, leaderboards and tailored reports.
Mission
To establish a platform which adds value to golfers wishing to record their golf experiences, share these with their buddies and create a global golf network, all premised on a financial model that ensures sustainability, whilst building a business attractive for acquisition.
Objectives
1. Establish the competition in the marketplace.
2. Specify the end user experience of the platform which will include a web interface as well as an app.
3. Establish the revenue model for the business.
4. Marketing Plan - Launch of the MVP
5. Specify and develop the MVP and establish the golf course database.
6. Resource the business financially by offering investment to select groups.
7. Establish the legal structure to hold the IP in an off-shore jurisdiction as well as to facilitate operation in the USA and globally.
8. Financial Projections.
Exhibit A
Fundamentals
- The App will be on IOS and on Android - There will be a web browser version for all major browsers - The App will be free and will have full functionality - There will be a Club established where members which will have added functionality and additional benefits - To be a member will require an annual subscription - There will be no in-App advertising on the App other than on the golf day walls - There will be some advertising space on the website but this will not be intrusive - The various email updates will carry advertising - There will be a Minimum Viable Product (“MVP”) version produced - The capital raise will take place after the MVP product is received for testing - In order for users to enter their courses/rounds played they need to register - Users must enter their names and a generic lookup tool must be included in the App which allows registered users to search for anyone on the database and to view their courses played, unless the user has chosen to hide the content from public view - Other than the name and email address every other field in the App must be optional - There must be a section where users can select privacy options and they can make their courses played information invisible to anyone other than their network buddies - When users register they will be asked for permission for the system to access their contacts
Strategies
Objective 1. Establish the competition in the marketplace.
After having scanned the web there is nothing that focuses on a user recording his golf experiences and logging the various golf courses that they have played as well as who they have played with.
There are a few Apps that record information about courses played like the footprint app which stores all locations visited by people. Golf Apps focus on other needs and in the process record which courses have been played like the handicapping apps. The closest Apps that have some of the functionality are golfgamebook and All Square, but there is no App that does what GolfPlayed.com does.
The footprint app sells for R79.99 which is likely to be $4.99 on the USA App Store. Where I’ve Been sells for R119.99. Golfgamebook is free.
Exhibit A
Golfing Stats
Global Golfers - 61 000 000
The total available market for the English version of the App is 42 mil with the following breakdown per continent:
USA & Canada 36,5 mil Europe 4.1 mil Australasia 1.7 mil Africa 330 k
English Global Golfing Stats Totals speaking
No of golfers 61 000 000 42 589 361
Population 7 247 240 850
Countries 239
Golfing countries 206
Golf facilities 34 011
Golf holes 576 534
18-hole equivalents 32 030
18HEQs under development 696
Private clubs 9 895
Public clubs 24 116
Exhibit A
Africa
No of golfers 500 000 331 928
Population 1 110 635 062
Countries 59
Golfing countries 50
Golf facilities 911
Golf holes 12 447
18-hole equivalents 692
18HEQs under development 65
Private clubs 81
Public clubs 830
South Africa 512
Nigeria 52
Kenya 41
Zimbabwe 39
Morocco 36
English Global Golfing Stats Totals speaking
Asia (minimal English)
No of golfers 13 600 000 0
Population 4 298 723 288
Countries 55
Golfing countries 53
Golf facilities 4 778
Golf holes 91 536
18-hole equivalents 5 085
18HEQs under development 207
Exhibit A
Private clubs 2 126
Public clubs 2 652
Japan 2 383
China 473
South Korea 447
India 270
Thailand 253
Europe (English in the UK)
No of golfers 6 900 000 4 104 768
Population 742 452 170
Countries 50
Golfing countries 40
Golf facilities 7 403
Golf holes 127 770
18-hole equivalents 7 098
18HEQs under development 159 English Global Golfing Stats Totals speaking
Europe (English in the UK) (continued)
Private clubs 2 936
Public clubs 4 467
England 2 084
Germany 747
France 648
Scotland 552
Sweden 491
North and Central America
Exhibit A
No of golfers 37 100 000 36 505 010
Population 561 072 904
Countries 48
Golfing countries 32
Golf facilities 18 145
Golf holes 303 999
18-hole equivalents 16 889
18HEQs under development 200
Private clubs 4 250
Public clubs 13 895
USA 15 372
Canada 2 363
Mexico 237
Caribbean 119
Central America 51
English Global Golfing Stats Totals speaking
Oceania
No of golfers 1 700 000 1 647 655
Population 38 303 620
Countries 25
Golfing countries 18
Golf facilities 2 111
Golf holes 31 632
18-hole equivalents 1 757
18HEQs under development 35
Private clubs 128
Public clubs 1 983
Exhibit A
Australia 1 628
New Zealand 418
Fiji 17
Papua New Guinea 15
No of golfers
South America
No of golfers 1 000 000 0
Population 410 932 390
Countries 14
Golfing countries 14
Golf facilities 663
Golf holes 9 150
18-hole equivalents 509 English Global Golfing Stats Totals speaking
South America (continued)
18HEQs under development 30
Private clubs 374
Public clubs 289
Argentina 319
Brazil 123
Chile 77
Colombia 60
Venezuela 25
Total English speaking market 42 589 361
Exhibit A
Golfing Stats in the USA
A golfer is defined as anyone having played an 18-hole round in the last 12-months Total number of golfers in the U.S. 29,000,000 Percent of the U.S. population who play golf 9.60%
Percent of golfers who are male 77.50% Percent of golfers who are female 22.50% Percent of golfers who are married 68%
Percent of golfer who attended or graduated college 67%
Percent who are employed in a white collar occupation 50% Percent who use the internet on a regular basis 90%
Age Breakdown Percent
Under 30 5% 30-39 12%
40-49 22% 50-59 24% 60-69 18%
70+ 19%
Household Income / Economics
Average household income of a golfer $95,000
Percent of golfers who have a net worth over $100,000 79% Percent who own securities 83% Percent who have life insurance 86%
Percent who own a credit or debit card 98% Percent who own a home 68% ADVERTISEMENT
Exhibit A
Golfer Purchasing Plans
Percent who plan to purchase within 12 months Golf equipment 53%
Automobile 47% Financial Planning 40% Computer hardware 46%
Furniture / Home furnishings 33% Office equipment 48% Vehicle Spending Spent $30,000+ on last vehicle 56%
Spent $40,000+ on last vehicle 28% Percent who own or lease 3+ vehicles 32% Dining Out
Percent who dine out once a week or more 73%
Percent who spend $3,000 or more annually dining out 32%
Facebook Stats
This statistic shows the number of Facebook users in the U.S. as of February 2016, sorted by age group.
32.1 million U.S. Facebook users were between 25 and 34 years old.
This distribution also closely mirrors the overall number of social network users in the United States, as 35.3 million U.S. social media users were aged 25 to 34 years. The total Facebook audience in the United States amounted to 156.5 million users. With more than 1.4 billion monthly active users, Facebook is the most popular social network worldwide. In 2014, U.S. users spent an average of 39 minutes on the site every day and the social network has become a part of daily online usage for millions of users. Facebook has hugely benefited from the mobile social growth in recent years with mobile users also showing strong engagement rates compared to other social media apps. Facebook was also the most popular social media app of Millennials in the United States as of June 2014 – more than three quarters of U.S. Millennials accessed the mobile app on their devices. According to a recent study, Facebook is also young peoples’ social network of choice for a dream employer – almost 15 percent of Millennials stated that they would want to work for the online company.
1. Worldwide, there are over 1.71 billion monthly active Facebook users (Facebook MAUs) which is a 15 percent increase year over year. (Source: Facebook as of 7/27/16) What this means for you: In case you had any lingering doubts, statistically, Facebook is too big to ignore. 2. 4.5 billion likes generated daily as of May 2013 which is a 67 percent increase from August 2012 (Source: Facebook)
Exhibit A
3. 1.13 billion people log on and are considered Facebook daily active users (Facebook DAU) for June 2016, which represents a 17% increase year over year (Source: Facebook as 7/27/16) The Implication: A huge and vastly growing number of Facebook users are active and consistent in their visits to the site, making them a promising audience for your marketing efforts. 4. There are 1.57 billion mobile active users (Mobile Facebook MAU) for June 2016 (Source: Facebook as of 7/27/16). An increase of 20 percent year-over-year. There are 1.03 billion Mobile Daily Active Users (Facebook DAU) for June 2016 which is an increase of 22% year-over-year. 5. On average, the Like and Share Buttons are viewed across almost 10 million websites daily. (Source: Facebook as of 10/2/2014) 6. In Europe, over 307 million people are on Facebook. (Source: Search Engine Journal) The Takeaway: This isn’t just a U.S. phenomenon – a worldwide market is available via Facebook. 7. Age 25 to 34, at 29.7% of users, is the most common age demographic. (Source: Emarketer 2012) What this means for you: This is the prime target demographic for many businesses’ marketing efforts, and you have the chance to engage these key consumers on Facebook. 8. Five new profiles are created every second. (Source: ALLFacebook 2012) The Implication: Your potential audience on Facebook is growing exponentially.
Facebook users are 76% female (out of 100% of all females) and 66% male (out of 100% of all males). This stat is one that you really have to think about because it’s comparing the percentage of all females against the percentage of all males who are on Facebook. Sorry for the confusion. To dig a little deeper take a look at this study which does a much better job at explaining the nuances – Source: Brandwatch – https://www.brandwatch.com/2015/01/men-vs-women-active-social-media/) The Takeaway: Since this isn’t a large statistical difference, you should be able to effectively reach both genders on Facebook.
Exhibit A
Strategies (continued)
Objective 2. Specify the end user experience of the platform which will include a web interface as well as an app.
Functionally the App needs to do the following:
Free Version - To record the experience - To create a community - Portal for tee time bookings and other services - Gamification, Leaderboards and Order of Merit
Club Members Version In addition to the above: - In-App messaging - Concierge service - Networking between members and all registered users - Preferential access - Potential for handicapping in the future
User Registration
To use the App a user needs to register.
- Each golfer will enter all of their details (with only their name, email and mobile number being compulsory). - The login details are to be a valid email address and in order to activate the account. - All fields are optional and if golfers fill in the field they have the option of displaying this to the database. Each field can have a slider that the golfer can flick to ’show’ or ‘hide’. - The fields to be entered will be on a form and will include the following: o Load up a profile pic (optional) o Title, First Name, Surname (compulsory) o Email address (compulsory required for verification) o Mobile number o Date of Birth, o M/F o Member of which club (must be allowed to choose multiple clubs from a drop down). We need to include the virtual clubs in this and allow for the playmoregolf, lastminute.com (non-club member) type of player o Handicap o Home address, including home state o Referred by! (this must be a lookup table of existing members and is needed for medallion credit purposes)
- All of the fields are visible and available to the system administrator.
Exhibit A
To record the experience
Simply allow the user to capture each course he has played. This will be done from a lookup menu as all courses will be pre-loaded. If a course is not in the table then there must be an option for the user to specify the course name and an email will be sent to the site administrator who must then research and load the course. Explore the option to load the courses played directly from the various handicapping systems being used.
Users will also be able to add each round that he has played at any of the courses together with salient information about the round.
Users must then have the option to add rich content to the course played log and the following is envisaged:
Every field is optional and the user can choose what he wants to add.
- A photo that is loaded from our library of the course. Initially the google earth image will be used but ultimately these photos will come off the websites of the courses themselves. This must happen automatically and without human involvement. This is likely to be a place marker which will be populated as we load content onto the database. - The course layout if available of each course. This will come off the website of the course linked. This must happen automatically and without human involvement. This is likely to be a place marker which will be populated as we load content onto the database. - The scorecard of the course played. The standard scorecard will have been preloaded and users (in subsequent versions) will have the option of adding their score for each hole or merely the total score for the round. In the MVP version the scorecard will be loaded as a pic taken with a phone. We may find a company that has the scorecards already available and will then try and do a deal with them to load these onto our database. - The user will enter his playing partners on a free format field. The system will then go and check if the playing partner is a registered user and link him to the users network and publish the loaded info on his wall. If the playing partner is not a registered user then the system will go to the users’ contacts on his system and find the playing partner and prompt the user to send him a text message or email to register on the platform. - The user will enter his own score and have the option of entering each of his playing partners’ scores. - The date of the round. - Conditions (weather) of play. This should be a drop down menu item. - The user will be able to upload a pic of his actual scorecard. In the MVP version this will be the only scorecard option. - The option for users to upload pics that they have taken on their cell phones of the course played. - The option for users to upload video files taken on their cell phones whilst playing. - The option for users to upload audio files recorded on the course. - The option for free format notes on the experience and memories that the player would like to record. - A rating system where users rate the course played on five or six criteria and allow for free format comments. We will publish the average rating next to the course name. (Much like tripadvisor). - A google map interface that allows users to get directions and to link to a google earth view of the course. - A link to the website of the course. - Users must be able to log multiple rounds played at the same course and to load each scorecard by date. - Allow users with multiple rounds at a single course to log as many rounds as they want and then to produce statistics. This probably is duplicating what the handicapping system does, but we could add rich content to this as well.
Exhibit A
To create a community
The success of the App will depend on the user’s ability to network with friends and to share golfing experiences. It is envisaged that a golfer will have multiple networks with some common friends in different networks. Ultimately we will create a global community of golfers, the aim being to create a LinkedIn of golfers.
The functionality of this element is seen as follows:
This element and all fields must be optional and the user can choose what he wants to add.
- To allow the golfer to set up his own networks which will also give his friends the opportunity to accept his ‘buddy’ request. When sending a buddy request perhaps it gives the sender and the recipient the option of loading this relationship at a different level. - The golfer can have unlimited networks (groups). Ideas of networks are as follows: o Your buddies, who will see your posts on your wall. o Golf Societies (Like Nomads). The golf society will have a page and the user can choose to follow this or not follow it. o Your golf club. The golf club will have a page and the user can choose to follow this or not follow it. o Golf days or different golf competitions. The golf day will have a page and the user can choose to follow this or not follow it. o Fourballs. Each player will then load stuff pertaining to the fourball and it will load to each of the profiles. A mini wall comments section will appear on each profile. - The golfer can have unlimited people in any one network. - The golfer would be able to share as much content with his network as he deems appropriate. - Sharing to facebook and other social media platforms must be a simple click of a button. - The network can accept to see as much or as little content as each person deems appropriate. The user must have the privacy settings option of deciding what content is visible to whom. Three settings will be incorporated: § Public (anyone) § Private (only my buddies) § Me Only - Each buddy will be able to post comments and to have likes on any posts that are loaded to the wall of that particular network. - The idea is that each person has their own wall which includes the posts of people that they are buddies with on their own wall. Don’t allow people to see posts from people that are not buddies. Allow the number of comments and likes to be displayed to an individual post and then the buddy can click through and go and check these. - From the wall the user must have full access to everything on the platform. - The system must allow the user to capture multiple rounds per course. - Look at integration with Facebook and the option of linking with your network there. - Look at integration with Instagram, Twitter and other social networks. - Buddies must be allowed to go through your individual courses played and to post comments on the dashboard newsfeed. The user then has the option to hide or delete those comments. - Buddies must be able to ‘Add this course to my list’ whilst browsing a buddies list. It must load with the same content and he can go and edit this (ideal if buddies played together). - Members who log multiple rounds at the same course should not have this information appear on the walls of their friends as this would irritate people. Golfers who want to log all of their rounds may do so but the newsfeed updates only apply to new courses played unless the user specifically posts a round to the newsfeed.
Exhibit A
Gamification, Leaderboards and Order of Merit
To ensure stickiness it is critical that there is an element of gamification and a competitive element is introduced to the platform.
The following concepts will be included in the platform: - Leaderboards for the platform o Most courses played cumulative o Most new courses played per month, per year o Most Top 100 courses played o Most different states played in o Most different countries played in o Played on all 6 continents gets a pin of some sort (no courses in Antartica) - Leaderboards by user network o Most courses played cumulative o Most new courses played per month, per year o Most Top 100 courses played o Most different states played in o Most different countries played in o Played on all 6 continents gets a pin of some sort (no courses in Antartica) - Order of Merit o How each user stacks up per category on the platform o How each user stacks up per category in his networks - Celebrity Challenges (publish their lists of courses played) o Capture each Major pro golfer’s courses and have challenges § Leaderboard of who has played most of the same courses as Rory Mcilroy o Capture major celebrity courses played and have challenges § Leaderboard of who has played most of the same courses as Justin Timberlake o Capture golf course designer courses played § Leaderboard of who has played most of the Nicklaus courses in the world, Palmer courses, etc § Annual challenges of who gets to play all of the Tiger Woods designed courses in a single year. Put up prizes. For any prizes to be won we would need to verify that the person has played the courses - Implement a status classification. Maybe look at the following pin/markerboard colours: o More than 50 courses Bronze o More than 100 courses Silver o More than 250 courses Gold o More than 500 courses Platinum o More than 1000 courses Californium - Course records. If the user holds the course record then this is shown and he gets a special pin. This would need to be verified by the golf club. - Introduce a virtual showcase with markers of all courses played o As a user registers he gets his online Marker Board o Each time he plays a new course he can purchase the course marker for $1 o For each person that he refers to the platform he gets a credit for 1 marker in his wallet o Each Top 100 country course gets a special marker o Each Top 100 global course gets an extra special marker o The markers off his display cabinet would hyperlink to the course played record - Hall of Fame. We will implement a Hall of Fame of our members.
Exhibit A
o Anyone who has played more than 90% of the Top 100 courses in the World would become a Hall of Fame Member of the International Hall of Fame. o Any members that have played more than 90 of the USA Top 100 courses would become a member of the USA Hall of Fame.
Membership Club (probably version 3 or 4, planned to launch after +-20 months or when we have 1 mil registered users)
In the subsequent version of the App we will introduce a club which will attract an annual membership, and members that join the club will have access to various premium services. The idea is that the club membership should cost around $30 per year and a user must be able to purchase a 5-year membership for under $100 on a special offer.
The major advantage of joining the Club will be to participate in a global network of golfers where club members will receive the following exclusive services:
To allow In-App messaging
The premium version of the App must activate In-App communications which would allow for the following:
- Each club member will have an inbox messaging facility where they can send messages (which are stored in a sent messages folder) or receive messages which are stored in an inbox. - The user that receives the message does not need to be a member and the message will pop up on their screen and this must then give them the option to ignore or respond. They must be able to respond and the system must invite them to join the Club. - Members will have a search facility which allows them to view fields more than the normal free version. - Members will have the opportunity to then search by golf club for example and then they can In-App message a member and request to go and play with that member or for that member to arrange for them to play at their course. - Members will be able to have full messaging with other members and will be able to send links and other information across the messaging platform. This platform should be a simple platform but if there is a plug-in to whatsapp or one of the other platforms that could be integrated then this would also work. - Stats reporting on rounds - Future handicapping services
Concierge Service
- Members will have access to a golf concierge service. This service will allow members to send requests to the App coordinator with requests for access to different courses and for a success fee we will arrange the game. Maybe a $10 booking fee to get someone onto an exclusive course will be acceptable if we are successful. - The Concierge Service will deal with booking of golf for any courses that the member wishes to play even if they can do so themselves at a booking fee of perhaps $10 - The Concierge Service will arrange golf games for groups on tour against other groups that they wish to play against for a fee. - The Concierge Service will arrange loan clubs and all other golf related facilities for golfers for a fee. - The Concierge Service will arrange Golf Lessons with registered service providers.
Exhibit A
- The Concierge Service will arrange Cart Hire or caddies and other golf related services all for a specified fee. - All concierge services will be driven by technology interaction with no facility for telephone calls.
Member Privileges and Discounts
In time a series of member privileges and discounts will be arranged. It will make sense to tie in with existing virtual golf clubs and leverage off their relationships in the following areas: - access to courses on a preferential booking basis - handicapping services - discounts on golf equipment - special deals on bucket list travel packages - Access to private facilities at golf tournaments - Special access privileges to golf trade shows and other events - and many more
Golf Match
Members will have the ability to interact with other registered users on the platform. As geolocation will be built in to the launch version of the App users will be able to see other registered users in their vicinity and will be able to initiate an in-app conversation where they will be able to set up golf games amongst each other.
In addition a bulletin board will be established at each club, and members will be able to post requests onto the bulletin boards seeking players to fill up empty spots or seeking an empty spot in a foursome to join.
Golf Match is a service that will be available to all users but a number of the features will only be available to Club Members. A comprehensive description of this service appears under Strategy Objective 3. in the document.
Exhibit A
Strategies (continued)
Objective 3. Establish the revenue model for the business.
The App is only ever going to be a free version with all of the basic functionality available to all registered users.
There will be no advertising on the standard pages in the App although there is an opportunity to include some banner adverts on specific pages and on email alerts.
A membership club will be created in the future which will attract an annual subscription and which will unlock some of the advanced content features, targeted service offerings and networking tools in the App.
The App will not show on the App store as an ‘In-App Purchases’ option as all of its functionality will be free to registered users.
We need to investigate the opportunities for sales to Members to be handled by the App Store although this is unlikely to make sense as they take a 30% commission off the top and when one looks at selling plaques and medallions then this level of rake is not doable.
In future versions there will be integration to e-commerce which will give the registered user the opportunity to purchase markers, plaques, medallions and other goods and services offered through the platform.
A number of services will be offered that will generate revenue for the business, and these are identified below.
Sale to users of golf related services
Online tee time bookings at listed courses. Generally these services charge the golf clubs a commission of between 10 – 25% depending on the course and whether there was any discount offered to the players.
GolfPlayed.com will be a portal for all users wishing to book golf related services, and an aggregator tool will be developed to search for all “offered tee times” available in a geographic area and to display these in a single view. A revenue share deal will be done with the tee time operators, and GolfPlayed.com will not look to have its own direct relationships with golf clubs offering discounted tee times.
Concierge service to offer golf set-ups where golfers asked the golfplayed.com staff to set up tee time bookings at courses.
Joint ventures where travel operators are offered the opportunity of listing their tours onto the App and any bookings generated would result in a commission being earned by golfplayed.com. This will also operate as a portal where all tours are offered in a consolidated view.
Premium Listings which would attract a small fee. Any tee time or other bookings that flow from premium listings would result in a commission being paid to golfplayed.com. Ideally the financial processing will be handled by golfplayed.com and then paid across to the Club.
A small insurance premium could be offered at the time of booking a tee time and this will be underwritten internally and the club will only be paid a small percentage of the fee if there is a no show for a legitimate reason.
Exhibit A
A listing service where operators offering any goods and services to golfers are able to list these on the database. This would include: - Travel companies - Accommodation establishments - Golf service organisations We can tie in with companies that do travel bookings if we feel this is appropriate.
Advertising income becomes an option for specific pages. This needs to be a subtle and appropriate advert aimed at golfers. Golf or travel ads are appropriate.
A golf course premium listing service where courses pay a small listing fee to showcase their course and to allow for an online or direct booking facility. The premium listing service will include all of the salient details about the course and also have advance search facilities plus a geolocating option for finding the courses in a specified area. These courses would showcase their honours boards and any other salient information that they wished to share with the database. Golf Clubs will maintain their own listings.
A premium search facility for golf courses.
A virtual golf game library that can be individually purchased by users on the platform.
A listings service for golf service providers, where we process the payment for the booking and retain 10% - 20% when we pay this across to the teaching pro. The teaching pro’s get a basic listing for free and if they want a full profile then they can load this up themselves and pay an annual listing fee of say $50.
Sale of markers that are loaded onto the virtual marker board.
Sale of physical plaques that golfers would hang up in their bars.
Sale of medallions which would populate the plaque.
Services to golfers like printing of albums for users showcasing the courses that they have played. We could offer all sorts of goods that golfers would want to buy.
Ideally we would position golfplayed.com at the top end of the market and members would be granted access to exclusive access courses.
Possibly we could set up that members request to play at restricted access courses and then the club pro decides if they offer the round to the member.
Club Member Version
Once the App has achieved traction and has around 1 million registered users then the Club will be launched to registered users of the App.
In order to become a member of the club a specified application process will need to be followed as the Club is envisaged as carrying prestige and in order to become a member a qualification system is required.
The Club will bring a number of benefits to the member including but not limited to: - In-App messaging
Exhibit A
- Access to certain areas of the database through an advanced search capability - Access to stats and reports of their captured rounds. The opportunity of capturing this information will be in the free version and users can see the information on a per-round basis, but the reports and stats across the database will only be available to members. - An exclusive Concierge Service - The ability to contact other members directly through In-App messaging and to facilitate hook-ups and meet-ups for golf at their respective clubs - The ability to access bulletin boards and to interact on these boards - Access to various courses which are restricted play facilities. - Access to a discount structure for green fees - Access to a discount structure on golfing equipment - Access to a discount structure on golf travel - Potential for handicapping services - Other privileges at various establishments that would welcome the caliber of Club Member of the golfplayed.com club - Exclusive access to bucket list type events (The Masters, The Open, etc.)
The Club Member will be required to pay an annual subscription of $30 but he will have the opportunity of purchasing a 5-year membership subscription for $100, paid up front.
Groups and Events Tool
This will be a chargeable service. The tool will be made available free of charge to Premium listed golf clubs as well as GolfPlayed.com club members wishing to set up their own groups. Events organizers and golf day administrators will pay for the use of the tool.
The tool will be launched in October 2017 for testing and will be rolled out from a chargeable perspective in April 2018.
The purpose is to provide a tool that can be used for the following:
• Users who want to create their own Groups • Golf Days/Corporate Days • Charity Day Organizers • Tournament Organizers • Golf Club group administrator • Pro Golfers who run internal competitions • Betting schools that play golf
Typical Groups
• A small group of friends that play regularly and wish to keep their scoring and communications in an organised manner on the platform. There are many of these groups within golf clubs. • A travelling golf group that wishes to plan and record the experience including the leaderboard and other group highlights • A golf day organizer that sets up the golf day, uses the platform to communicate with registered players, including the confirmation of participation much like any invitation system. Doing the draw, sending tee times to players, having a wall for group communications, loading media and scorecards, leaderboard (live as people update their scores. This could be entered on the course if necessary on a cell phone. Perhaps this is a step too far for the current version).
Exhibit A
• A golf society that wants to have all communications and scoring on the system. The Nomads is a good example and a sitting duck for this. • A golf club that wants to have all communications and scoring on the system • A professional golf tournament/Pro Am where communications and scoring are kept secret and only visible to the participants. • Small elite groups that want to keep communications and scoring details on the system. • Charity Day organizers that set up the group and can advertise available tee time slots to the general public. • Gambling groups. There is also the option to allow gambling groups to advertise on the platform and allow users to apply to join the group.
Functionality
The group need to have the following elements:
• Setup of the group. (Only the Group administrator is able to do the setup and make changes to the group) o Name of Group o Type of group o Menu with attributes of the Group § Golf Tour/golf group (frequency weekly/monthly/annually etc), etc § Start date/End date § No of courses played § Course names (select them plus a date). Must be able to change and update the list § Time sheet/Draw per outing o Enter Public (all can see), Private (me and my buddies), Secret (only the members of the group..not discoverable on the platform) o Enter a pic of the group ICON o Select members of the group (if they are not on the platform already then a special invitation is sent out by email or text message). The member is selected and captured onto the system and when the person hits the link then he is automatically accepted into the group o The format of the competition (must allow for multiple formats in a single competition). We need to have all of the different types of competition formats in SA, the USA and the UK entered onto the system o Save the date facility
• Adding invitees or members to the group. o System to allow multiple invites to go out from the organizer and for invitees to have the option to accept the invite or to decline the invite. o Must be able to invite players not already registered on the platform. o Our platform needs to get the invitee to register in order to accept of decline the invitation, and they must be encouraged to enter some of their details on the system (like home club and maybe handicap)
• Adding details o Once members have accepted then they are required to enter all of their details for the golf day (handicap, shirt size, preferred tee time, special dietary requirements, etc). o Payment received toggle with an amount. When we have an e-commerce facility then we could allow users to pay directly and we remit the money to the golf day o Users must also have a free format field to enter any special requests to the golf day/group organizer
• Time Sheet.
Exhibit A
o Group Organizer enters names on the time sheet and can drag names around the sheet. o The time sheet must work like a table with the Organizer selecting the start time on each nine and the interval, then the system prepares the blank sheet. o For a golf day there will only be a single time sheet. o For a golf tour there will be a time sheet for each course on the list. o The time sheets must be scalable and allow a minimum of 4 and no maximum number of players. o All names on the time sheet must be clickable and take you to the players profile on the platform. Once there are scores entered then the time sheet must be updated and players have the option to click on his profile or on his scorecard.
• Scoring o The Player (and the organizer has the same rights) adds in his gross score. o The Player (and the organizer has the same rights) adds in his points. o The Player (and the organizer has the same rights) adds in the results of the competition. If it is a betterball then both players have the option to enter their scores. If it is a 4-ball alliance then any one of the four can enter the result. The Organizer can edit anything that has been entered. o The organizer photographs the scorecard and loads it onto the fourball record. The system can give the player a question “Add to my record?’ o Each of the players can then tag the card onto their own records. Ghosts will only keep their own played in scorecards or results. o The organizer enters the stableford points o In future versions the player will be able to enter hole by hole scores.
• Pics, video and other media o The organizer loads up all media onto the newsfeed for the event. o Players can tag any media and save it to the round in their personal record. o Players can capture their own pics, scorecard, videos etc directly onto the round played
• Leaderboard (This is different to system Leaderboards. We should possibly call it Results) o The system produces an individual leaderboard showing gross and net score (Net score is after taking off handicap). o The system produces a competition leaderboard based on the criteria entered by the organizer o The organizer has the ability to drag and drop results based on count outs etc, o Where there is an extended tournament (like a 4 day tournament or a golf tour or a golf society) then there are daily leaderboards but also a progressive leaderboard. Extended tournaments are generally individual tournaments but in Pro/Am formats they are betterball competitions and the system must cater for each. o There are often two competitions in a single tournament. In a Pro/Am there is an individual for each of the Pro and the Am and a betterball for the two of them. There may be some tournaments that are a combined score. We need to have all of the different types of competition formats in SA, the USA and the UK entered onto the system o For a society we need to have an eclectic facility. This is a group that plays the same course over a year (or less) and each player in the group records their lowest score on every hole as the year progresses. The system must work this out.
• Prize Giving o The organizer has the option of posting up a prize giving results page, although this is unlikely. o They may want to just post up the pics of the winners. o The prize giving page must be a link from the newsfeed that takes you to a separate page.
Exhibit A
• Newsfeed o Each group has its own newsfeed and the organizer plus any of the confirmed group members are able to post to the newsfeed….The organizer has the ability to delete inappropriate posts and should be able to block a group member from posting. o The newsfeed stays with the group and is able to be visited by anyone who has access to the group. o Pics, scorecards, videos, etc can be posted up by group members to the newsfeed o Anything can be tagged by a user to his record of the round on his profile o The Newsfeed must have Advertising Real Estate on both the APP as well as the Webapp. Initially this will be free of charge and the Golf Day organizer must be able to load their sponsor banners to the Newsfeed. In time to come they will buy this options from GolfPlayed.com or we will run our own adverts on this Real Estate. o There is still the separate 4 ball newsfeed in the round.
• Charity Days/Corporate Golf Days
When you select a Charity/Corporate day you have the same menu items to select from and to set up the day, and the time sheet etc
o In addition to all of the above there needs to be the facility for Charity Days to be advertised ahead of the day happening. o This needs to be on a map or search engine where the user enters ‘Show me Charity Days in a ?mile radius) and then it lists the days in the order of closest date to furthest date. o Each of the charity days must be able to post an advert of the purpose of the day, the costs of playing, the format and other details, and any restrictions or requirements o Interested parties must be able to submit a request via the platform to play in the day and then the Organizer either enters the player onto the platform or alternatively he is declined. o In time to come we can process the payment for these days. o The ability to link charity golf days would be great. Els for autism may have 20 charity days per year and it would make sense to link them from a marketing perspective.
• Golf Clubs o Golf Clubs will want to use the tool for multiple purposes including: § to post up their ongoing competitions for a calendar year. § Communications via the news feed § Invitations through notifications to specific tournaments
o The golf club secretary captures all of the members of the club onto the system o The Golf club secretary is the only person able to delete member details, but members must have the ability to make their profiles secret (other than their name which can either be seen by other members or by the buddies of members or by the general public). The default must be members only can see the list of members and any details. To make it public must require a verification system which includes an email verification. o It would be a really nice facility for their members to see how the competition was played the year before and how individuals played, and who they played with. o They may not want to use the system for invites to competitions and events but they probably would. At the moment they do it by email and the member books online. For us to have a link to the online booking system from the App should be fairly simple. o Then each competition will be a sub group which has its own wall but which is viewable by all members of the club o The ability to integrate to their online time sheet would need to be investigated. There are a limited number of systems used in this industry.
Exhibit A
o We could charge for this as a premium service for golf clubs. We give it to the club for free for a year and after year two they pay a small amount per member per year.
• Communication platform o A large part of any group is the communication platform. At the moment groups set up a WhatsApp group and they communicate back and forth posting pics and jokes and chirping each other. o As a minimum we must allow the same chat facility that appears in a round to appear in the groups area. If we could just allow users to post media to this then it would be a great option. The administrator must be able to remove any media that they felt was inappropriate. o Only group members can post. If the setting is ‘public’ for the group then anyone can see the posts. If it is ‘private’ then only buddies of the group members can see the posts. If it is set to ‘secret’ then only the group members can see the posts. o We need to consider if there is a plugin of some sort that would facilitate this upgraded communication. We may want to consider In-App messaging as an option within groups. o NO EMAIL OR CELL PHONE NUMBERS MUST APPEAR IN GROUP RECORDS. We can’t allow anyone to see this information. Provided that the info cannot be scraped then we could consider unlocking these fields to Premium members. o Our current newsfeed only allows you to comment on a post that has been put up onto the system. o Perhaps we could allow the newsfeed (across the platform) to allow for users to enter random communications which are not comments on a post, much like a WhatsApp group. Probably a bad idea. o Users should also be able to post their own media directly onto the newsfeed which are not related to a round or course played.
• Long Term (Annual) Competitions/Events o Examples of this are the Sanlam Cancer Challenge and so many others o The ability to set up local and regional qualifiers which culminate in a national final would be required. o Full tracking of each regional event o This is a substantial revenue potential and would entrench GolfPlayed.com in the traditional golf markets as everyone would be required to register on the platform to participate in the event.
• Betting in golf o There is a large contingent of golfers that bet in golf and that are looking for money games. o This brings about another complexity but it really is a normal golf society with the added dimension of betting. o We would need to add a facility to record bets on the platform and in this instance we could charge a substantial fee to group members that wanted a system that displayed all players in the system who were betters and which displayed their individual rounds together with handicap information. o We need to consider keeping a record of handicap changes if we want to offer this facility.
The revenue potential from the Groups and Events tool is substantial, and a conservative income has been included in the financial projections of the company.
Exhibit A
Golfcoin
Currently users earn referral rewards in the form of virtual markers. These can be purchased and they can also be sent across the platform to friends. The markers are currently used for populating the markerboard.
It has been decided to launch an internal golf currency called golfcoin, and this will allow users to utilize the currency for purchasing markers, for purchasing other goods and services offered on the platform and also for betting with their golfing partners.
The platform will record all bets wagered on a round and will allow the user to pay his bet in golfcoins directly through the App. Reports will be available to users which will allow them to track their betting performance over the years.
Commissions will be earned on the use of this facility which will provide substantial income for GolfPlayed.com
The potential from this element has been ignored in the financial model as a full business plan is required ahead of development of the golfcoin currency commencing.
Recording Recreational Golf, Mini Golf and Practice Golf
The database currently has mashie courses, Top Golf facilities, Mini Golf (putt putt) facilities, stadium golf and a number of other facilities that are not seen as main stream golf facilities. These will be updated and missing facilities added over the next 12 months.
GolfPlayed.com will be expanded to allow users to record all of the visits that they have had to any of these facilities and allow them to load any media captured at the facility. In addition users will be able to record their scoring and build up a record of all of the recreational golf activities.
This will expand the global prospective market from 61 million to an estimated 600 million potential users, as this element of the golfing community appeals to all ages, all levels and has a low barrier to entry. A number of associations have been established around the world to legitimize this sector of the market, and these will work proactively to establish GolfPlayed.com as the platform to be used by their members and visitors.
The advertising potential in this sector of the market is huge and the user base of GolfPlayed.com would explode once this facility is launched.
This opportunity has been ignored in the financial forecasts of the company and a separate business plan will be developed for this sector.
Golf Match
Members will have the ability to interact with other registered users on the platform. As geolocation will be built in to the launch version of the App users will be able to see other registered users in their vicinity and will be able to initiate an in-app conversation where they will be able to set up golf games amongst each other.
In addition a bulletin board will be established at each club, and members will be able to post requests onto the bulletin boards seeking players to fill up empty spots or seeking an empty spot in a foursome to join.
Exhibit A
Golf Match is a service that will be available to all users but a number of the features will only be available to Club Members.
Golf match is a comprehensive in app messaging system with premium geolocating,
Chat Facility
• User-User messenger • This must allow for chat with buddies in much the same way as whatsapp/Facebook messenger o This must not rely on utilising an external app and will be integrated into the app itself • Required functionality o Chat option must be available to users in close proximity who have the feature turned on to message one another. However, this will generally also be used between buddies. § This will require the user to “search golfers near me” and should be only visible to those who have this enabled § Will need to adjust this based on the privacy settings relating to geolocation o All communication must be private between the 2 users. § This is essentially a group that only 2 members are a part of. o Will need to be able to adjust the background screen § Ideally, the user must be able to define this or be able to set it to an image of a course on their bucket list § Alternatively, this must default to an image chosen by us. o Users will need to be able to block other users o This will allow for players to communicate with those who they have set up a match with via the newsfeed or request/offer game feature • User must be able to access their buddies Golfplayed.com profile directly through golfmatch o Link to profile with the “View buddy’s profile” from within the chat o This should be able to be done by clicking on their name at the top of the page • Handicap search will require that the user has uploaded his handicap and has it visible on his/her profile
Bulletin Boards/ Newsfeed Boards
• This will allow for users to sell their goods, create bookings, Communicate with other members of the club • This club news feed should be added at top of feed o In the case of multiple home clubs the user will need to select a primary club. • This “Board” should be Accessible via the newsfeed • Moderation button (report, unhappy etc)
Golf Club Newsfeed
• We must create a blank newsfeed (bulletin board) for every golf club listed on the database. • At the time of registration, the user selects his/her home club.
As soon as they select this then it must subscribe the user to that newsfeed.
• The newsfeed must operate in the same way as a whatsapp group where subscribed users are able to post comments and to post videos and pics.
Exhibit A
• The very first post on the newsfeed must be our video which we have prepared on how the facility works and every time a user logs in for the first time then this would be on the top of the newsfeed. • Users must be able to exit the group if they choose to. • The best way to handle this is the top post on the dashboard must be the Club Newsfeed and when the user clicks on this it opens the entire screen as the club newsfeed. • The club newsfeed will have a window link back to the main newsfeed or dashboard. • Users will probably keep this view of the newsfeed open on their phones more than the traditional newsfeed.
In future versions of the App we would like to add the following:
• The club must verify that the user is a member of the club in order for them to be subscribed to the newsfeed. The way to do this is to have a table of users which the secretary can go through and tick as verified, and if they are not verified then they must have to enter a comment. • There must be a facility for a moderator (club secretary) to delete content • The moderator must be able to ban users from the newsfeed for posting inappropriate content. • The club secretary must be able to add users from a dashboard on the CMS (or of the App if that is better) where they enter the person’s email address and they are automatically registered onto the platform and an invitation is sent to the users email address. • This newsfeed must be available on a web interface so that users who do not have smartphones can still access the newsfeed via a browser.
Request a Game
• This is a feature that should be housed within each of the club pages • This will allow club members/ non-members (club dependent) to request a game or join a game o It will require that the person that is requesting to join a game have their profile available to the host prior to them being accepted to join (suspended privacy settings/ akin to a temporary buddy). This should essentially work much in the same way as the request buddy tool. • There should be a search option that will allow for users to search for/host matches o on a specific date o In a specified region (or geolocated radius) o At a specific club o By Request/Offer o host will need additional options § for a tee time § Invitation open to (must be able to check multiple boxes) • International • Buddies • Public • Handicap (select range)
The revenue potential from Golf Match is substantial and this has been excluded from the financial projections of the company, as a full business plan needs to be developed for this facility, prior to development of this element of the platform commencing.
Exhibit A
Strategies (continued)
Objective 4. Marketing Plan - Launch of the MVP
The testing of the App will be handled in SA. This will form part of the initial launch of the MVP.
South Africa will be launched during the test phase and there will be minimal marketing budget allocated to this market. The South African launch will form part of broadened testing of the App.
Andrew Georgiou will be the public face of golfplayed.com and he will handle the bulk of the media interviews and public appearances.
The App will firstly be launched in the USA and this will be followed by a launch in the UK.
Timetable
The timetable for testing and the launch is as follows:
1st April Internal UI Testing begins
1st May Small Group Testing to SA friends and family (300 users)
27th May Medium Group Testing to SA friends and family (1 000 users)
19th Jun SA Large Group Test (5 000 users)
19th Jul Launch GolfPlayed.com to the SA market.
31st Jul Launch GolfPlayed.com to the USA market.
15th Aug Launch GolfPlayed.com to the U.K. Market
1st Sept Launch GolfPlayed.com to select markets in Europe
1st Oct Launch GolfPlayed.com to the Australia and New Zealand markets
Marketing tools and collateral
Various tools are required to effectively raise the capital and to launch the MVP as follows: • Videos showcasing the App. We have two versions, one of 2.5 mins and one of 4.5 mins both showcasing the App. • A Brochure with the salient points summarized.
Exhibit A
• An Investor website. • A PowerPoint presentation of the investment opportunity • A features and benefits video presentation for golf clubs • Electronic/printed collateral backing up the various presentations • There would be short 20 – 30 second videos showcasing the various features in of the App. • Mailshots, tweets, posts, notifications, etc.
Launch Marketing
The launch strategy will be to utilize as much of the free press available as possible and back this up with a campaign of paid for editorial, adverts, PPC, mailshots, etc.
The cornerstone of the marketing campaign will be email and collaborative marketing. The following will be rolled out: • Email address of lists of golf clubs, golf coaches, golf directors, etc. will be compiled and purchased, which will be sent an initial email introducing the App and inviting the clubs to update their information thereby ensuring that there is buy-in and commitment to the platform. • A database of the college golf market will be compiled and the college golfers will be invited and incentivised to become early adopters and to test the App. A number of incentives will be provided including golf travel, access tickets to major golfing events and free rounds at courses in their area. • Emails will be sent to various groups of golf professionals that can be identified and accessed through the purchase of lists. These include: o Club Presidents o Club Captains o Teaching Pros o Golf Directors o Greenkeepers o The NGF o The PGA • Email lists of golfers will be compiled and swapped with the existing lists that we have access to. • These lists will be sent emails with information about new Apps using credibleappreviews.com as the platform where reviews will showcase golfplayed.com and golfweather.com as ‘Hot new Apps’. • Collaborative marketing will be done wherever possible and GolfPlayed will do deals with non-competing sites and Apps which appeal to the same market. These would include golfweather.com tee time booking sites, golf content purveyors, etc. The handicapping systems represent a major opportunity for collaborative marketing. • Investigate the possibility of downloading information from the handicapping systems automatically and doing push notifications to their members inviting them to update the missing information on each round played. • Golf Digest will be secured as a marketing partner. We will use their Top 100 lists and give them exposure on our site and we will get exposure in their printed magazine and especially on their digital platforms. • Playing Pros and celebrities will be approached to record their courses played and then to tweet their followers and invite them to access golfplayed.com and keep tabs on their golf. This would be gamified with leaderboards. • PR campaigns with various golf newsletters and blogs to showcase golfplayed.com as the hottest new thing to hit the market. • Look at opportunities with the Golf Channel and what can be done. • Andrew to appear on radio and television stations and to have printed and electronic articles written on him and how the golfplayed.com App came to life. • Affiliate and referral marketing will be investigated as an opportunity to get early traction for the App.
Exhibit A
• A vibrant social media campaign will be implemented. • Ensure that SEO is done for the website and that App Store placement is as high as possible. • Actively promote ratings so that App store placement is high and seek to get an App Store review of the App. • Look at other collaborative marketing opportunities including: o Widgets o QR Code placement o Golf Club support on their website especially their tee time booking systems which should give golfers the opportunity to register on the App at the time that they book their round o Mutual reviews • Various paid for adverts will be placed in the online media space including: o Facebook ads o Twitter ads o Google PPC o App reviews will be sent to App review sites o Online ads in strategic media
Referral Campaigns
The major area of growth in registrations will be through the referral incentives offered. Initially the online markers will be offered as the primary referral tool and this needs to be backed up with free rounds of golf on achieving specified targets and also with high profile event access for the super-performers in terms of the most people referred leaderboard.
The top 10 on this leaderboard should be offered substantial prizes with the overall winner receiving a trip including flights to play golf in Scotland and possibly to play in the Dunhill or a similar event.
Smaller incentive prizes must be offered for referring 100 users for example.
Marketing to Groups
A number of large groups of golfers exists and the potential to market to these groups by means of collaborative marketing is ideal. This would include: • Club Corp • Nomads • College Golf Bodies • Golf Societies • Golf Clubs • Online Golf Clubs • Golf Travel Groups
A seed database of users must be created by collaborating with handicapping systems where 1 000 users are captured onto golfplayed and their records are created. They will then be invited to update their records. This can be done as an initial test and then rolled out widely.
Exhibit A
360 degree Marketing Strategy
Exhibit A
Initial testing will be done in the South African market. The approximate launch schedule is set out in the table below.
Various tools are required to effectively raise the capital and to launch the MVP:
• An automated marketing tracking system will be used to nurture potential investors along the investor-sales funnel. This will ensure leads are well managed and comprehensive stats are available for each potential investor’s journey – from e- mail click-throughs, to forms filled in and finally investment. • Videos showcasing the App. • PowerPoint presentation of the investment opportunity • Electronic/printed collateral supporting the presentations • Mailshots, tweets, posts, notifications, etc • A website/webpage with an investors focus showcasing the app, the target market and the investment opportunity. • Broad reach via applicable social media channels
Exhibit A
Virality
The main goal for the early stages of the launch is to get as many user signups as possible. All marketing efforts will underpin the potential for viral growth of the App.
Viral sharing tactics will be executed outside the tool and complemented by viral sharing tactics that exist within the tool (or at least originate there, like integration with major social networks and in-app sign-ups of golf round buddies).
Incorporating features that make GolfPlayed.com highly-sharable from the get-go has been of paramount importance and these features - such as integration with pre-existing, well-known social tools and referral rewards such as ‘Electronic Markers’ - will contribute significantly to sustainable, long-term growth.
Incentives will be offered to registered users encouraging them to refer their centers of influence to GolfPlayed.com and a number of competitions will be run offering high value, not generally accessible prizes.
Launch Marketing
• The cornerstone of the marketing campaign will be email, collaborative and event based marketing. This includes the college golfer market, golf professionals and club member campaigns. • Collaborative and affiliate marketing will be done wherever possible and golfplayed.com will do deals with non-competing sites and Apps which appeal to the same market. • Event based marketing will see the roll out of the Groups and Events tool at various charity and other golf days where golfers will be captured onto the platform and experience the power of the system. • An Ambassador Program for pro golfers and celebrities has been established where ongoing incentives are paid for referring users to the platform. • A strong and targeted PR campaign will be backed by Social Media and Search Engine spend. Andrew Georgiou is the public face of golfplayed.com and he will handle the bulk of the media interviews and public appearances.
The comprehensive digital marketing strategy is available in a separate document.
Exhibit A
Strategies (continued)
Objective 5. Specify and develop the MVP and establish the golf course database.
Initially it has been decided to produce an MVP of the App on all three platforms.
4 organisations were approached and 3 quotes were received. - Empire State - Global Connect - Blue Line Development
After much deliberation and research it was decided to go with the hybrid development option and the App will be developed using a combination of tools including Ionic, Cordova, Angular JS, PHP, and HTML.
The major justification for not selecting the native development option was the ongoing cost of development and maintenance of three independent platforms, even though the performance in this environment may be marginally better.
The database will be housed in Mysql.
Empire State, a Johannesburg based development house was selected to handle the App development.
The initial golf course database has been secured from golfweather.com and currently a scraping and data enhancement project is underway to add missing information to the current database.
It may be prudent to purchase a commercial database that has the missing information. Golfcoursedatabase.com appears to have a comprehensive database and the cost of purchasing the database would be around $3 000.
The current database is being populated with golf club logos and where possible email addresses.
The MVP of the App is available for download on both the Apple App Store and the Google Play Store.
.
Exhibit A
Strategies (continued)
Objective 6. Resource the business financially by offering investment to select groups.
We require funding for the first 24 months of operation and this is to be raised via a funding initiative where participants are offered a share of the equity in the company in return for making an investment.
It is initially envisaged that we will register three companies:
• IP holding company which has been registered in Ireland as an offshore entity as this is an ideal and credible tax haven.
• The main operating company has been registered in Delaware to operate in North America as well as the bulk of the rest of the world.
• Operating company for the U.K. and Europe in the future which will be registered in England. This is to take advantage of the SEIS and EIS tax incentive schemes on offer to U.K. registered tax payers.
The reason for the above is to make sure that we can raise the capital as efficiently as possible and also that we can build a large value in the IP company which would effectively be tax efficient income (12.5% corporate tax rate) to shareholders.
Initially the market capitalization of the business is $20 000 000.
We would raise the following capital in our Angel Investor funding drive:
Angel investors in the USA and abroad would receive non-diluting shares equivalent to 8% of the business for an investment of $1 250 000. This represents an instant discount of 21.88% off the company capitalization value.
The following represents the capital structure of the business:
50 million shares authorized $0.0001 par value per share 20 million shares issued allocated as follows:
Angel Investor shares USA and abroad (8%) 1 600 000 ($1 250 000) Angel Investor shares UK and abroad (2%) 400 000 ($312 500) Series A funding (8%) 1 600 000 Series B funding (8%) 1 600 000 Strategic Staff/partners (8%) 1 600 000 Founder Shareholder Block (62%) 12 400 000 Staff Share Trust (4%) 800 000
The founder block of shares includes a number of founder members, as follows:
Andrew Georgiou Antony Georgiou Moshe Adir
Exhibit A
Ed Wrede Tyler Fraser Duke Mowrer Michael van den Heerik
The 2 mil shares offered now will raise $1,562,500 which ties back to the financial forecast.
The investor will receive the same shareholding in each of the Irish registered IP company as well as in the Delaware registered company. This will be structured to avoid double taxation.
In the future it is envisaged that a UK based company will be established to operate the European Union. In the event that a decision is made to go this route, then the Angel Investors will receive free shares in this company which represents the value of the EU market that has been taken out of the Delaware company and which ensure that investors are in the same position from an equity ownership perspective.
The value calculation will be based on the following numbers:
No of Golfers by Region Totals Eng. speaking
No of golfers - Global 61 000 000 42 589 361
No of golfers – EU incl. the U.K. 6 900 000 4 104 768
The above two sets of figures represent the following percentages:
6 900 000/61 000 000 = 11.31% 4 104 768/42 589 361 = 9.63%
As these figures are all estimate figures it has been determined by the founders that the EU market is 10% of the global market.
As such, for every $1 000 that has been invested in the Delaware company the investor will receive free shares to the value of $100 in the U.K. registered company.
2% of the equity base of the structure will be offered to the UK investor base who will invest £250 000 ($312 500) and 2% of the total equity will be allocated to this tranche of investment.
The reason for not having cross shareholding is determined by double taxation. Shares will be sold in the Delaware company and investors will receive the same percentage shareholding in the Irish company at no cost.
An extended Angel Investor capital raise will be undertaken in the UK as this is required by the business which takes advantage of the SEIS and EIS incentive schemes.
Exhibit A
Strategies (continued)
Objective 7. Establish the legal structure to hold the IP in an off-shore jurisdiction as well as to facilitate operation in the USA and globally.
Discussions have been had with five entities at this stage as follows:
Yavan Brar Partner, Head of Corporate and Commercial Department Corporate & Commercial Department Herrington Carmichael LLP Tel: 0118 977 4045 | DDI: 0118 989 9713 | Mobile: 07971 588364 | Fax: 0118 977 4560
Harry Catrakilis, CPA Catrakilis Kraitzick Hrabova 303 Perimeter Center North, Suite 200, Atlanta, GA 30346. Office: (770)495-9077 | Fax: (770)495-9013 | [email protected]
Greg Gregory Arnall, Golden, Gregory 171 17th Street NW Suite 2100 Atlanta, Georgia 30363 404.873.8634 phone 404.873.8635fax [email protected]
Paul Dillon Duignan, Carthy, O’Neill 84 Northumberland Road, Ballsbridge, Dublin 4, Ireland Tel + 353 (1) 668 2404 [email protected]
Devlin H. Dwyer, Esq. Kowan | Cordon 75 Fourteenth Street Suite 2250 Atlanta, Georgia 30309 Direct 404-389-9043 [email protected]
It is initially envisaged that we will register three companies:
Exhibit A
• Golf Played Inc. has been registered in Delaware to operate the USA, Canada as well as the rest of the world.
• Golf Played Limited has been registered in Ireland as an offshore entity as this is an ideal and credible tax haven. This entity holds the IP for GolfPlayed.com
• An operating company for the U.K. and Europe will be registered in England. This is to take advantage of the SEIS and EIS tax incentive schemes on offer to U.K. registered tax payers.
The reason for the above is to make sure that we can raise the capital as efficiently as possible and also that we can build a large value in the IP company which would effectively be tax efficient income (12.5% corporate tax rate) to shareholders.
Initially the shareholding in the structure is envisaged as follows:
Founder Shareholder Block 62% Staff Share Trust 4% Strategic staff/partners 8% (warehoused) Angel Investor funding (USA) 8% (non-diluting) Angel Investor funding (UK) 2% (non-diluting) Series A funding 8% (unallocated) Series B funding 8% (unallocated)
The accountants will determine how to deal with unallocated and warehoused shares.
Trademark Registration
A trademark registration process has commenced and the following organization is handling the global trademark registrations:
Marcaria
Frederic Chopinet Trademarks Account Manager [email protected] www.marcaria.com
+1.888.886.1034 (Toll Free) +1.646.351.8648
8345 NW 66 ST #B1673 MIAMI, FL 33166, U.S.A
372 Old Street, BPM 195143 London, EC1V 9AU, United Kingdom
Exhibit A
Applications have been made for the words and logo in each of the following jurisdictions:
Service : Comprehensive Study
Trademark : Golf Played
Country : USA
Classes : -
Order No. : 1379251
Service : Comprehensive Study Service : Comprehensive Study
Trademark : Golf Played Trademark : Golf Played
Country : Canada Country : European Union
Classes : - Classes : -
Order No. : 1379255 Order No. : 1379256
Exhibit A
Strategies (continued)
Objective 8. Financial Projections
The detailed forecasts can be accessed in a separate Excel spreadsheet.
Exhibit A
Valuation
Valuing app-based pre-revenue businesses, is a formidable challenge. Some would say more art than science. Valuing mature companies is far simpler. All one would do is consider valuation multiples based on a selection of comparable companies and employ accepted methods such as DCF or PE ratios. For pre-revenue consumer driven apps, such as GolfPlayed.com one needs to triangulate the value taking into account a variety of different factors. The most acceptable way to triangulate a valuation for a venture of this nature is to consider the equity value per user of comparable consumer apps. Most commonly, acquisitions of companies of this nature are based on a value per user.
It is thus clear, that whilst having a sustainable revenue model – companies need to aggressively accumulate a large user base to underpin the valuation that determines the overall valuation.
Considering the table below showing comparable companies on a per user valuation method. The value per user is determined working back from the Market Cap and determining a per user value based on Monthly Active Users (MAU).
Average Value per User 83.30 Forbes
Median Value per User 39.50
The valuations range from $302/user to $20/user.
Whilst we don’t profess to be a LinkedIn or a Facebook, we do need to recognize the inherent value of the golfing community. The golf market is widely recognized as one of the highest LSM, significantly sized, addressable markets. Golfers have disposable income, have common interests and are reachable via multiple channels.
Exhibit A
Given our research and independent advice we have based the GolfPlayed.com valuation on the median value of $39/user.
Active Users 24 months 60 months 94 months 130 months 144 months
No of users GolfPlayed.com 1 mil 4 mil 10 mil 20 mil 26 mil
$40 175 56 $155 231 05 $386 214 25 $772 428 50 $1 004 157 05 Market Cap 6 4 0 0 0
No of users 1 040 240 4 019 299 10 000 000 20 000 000 26 000 000
Revenue (year 5 act other yrs calc) 3 493 527 13 498 353 33 583 848 67 167 696 87 318 004
Per User Valuation - market norm $39 $39 $39 $39 $39
ARPU calculated in year 5 $3.36 $3.36 $3.36 $3.36 $3.36
Exhibit A
Exhibit B Subscription Agreement
Golf Played Inc. 3445 Stratford Road Atlanta, Georgia 30326 Telephone: (706) 289-1035
SUBSCRIPTION AGREEMENT FOR SHARES Ladies and Gentlemen:
Subject to the terms and conditions of this Subscription Agreement (“Agreement”), the undersigned (the “Investor”) hereby subscribes for and agrees to purchase shares of Common Stock (the “Shares”) of Golf Played Inc., a Delaware corporation (the “Company”), at a purchase price of $0.78125 per Share, totaling that amount reflected on the signature page below (the “Purchase Price”).
The offer and sale of the Shares to the Investor has not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any similar state or foreign law (collectively, the “Acts”), but rather is being made privately by the Company pursuant to the private placement exemption from registration provided in Section 4(a)(2) of the Securities Act and Regulation D (“Regulation D”) promulgated thereunder by the Securities and Exchange Commission (the “SEC”) on the basis of the Company’s Confidential Offering Summary dated May 1, 2017 (the “Memorandum”) and its Exhibits, and pursuant to similar state exemptions from registration under the Acts.
The information requested in this Agreement is needed in order to ensure compliance with the foregoing regulations and to determine whether the Investor meets certain minimum net worth tests to be deemed an “accredited investor” as defined in Regulation D.
Upon submission of this Agreement by the Investor and its acceptance by the Company, the Investor will be obligated to deliver to the Company the Investor’s payment via check or wire in the amount of the Purchase Price (the “Subscription Payment”).
The Investor understands and agrees that, although the Company will use its best efforts to keep the information provided in this Agreement confidential, the Company may present this Agreement and the information provided to such parties as it deems advisable if called upon to establish the availability under any applicable law of an exemption from registration of the Shares or if the contents thereof are relevant to any issue in any action, suit, or proceeding to which the Company is a party or by which the Company is or may be bound. Please carefully review the Company’s Privacy Policy as set forth in the Memorandum.
Exhibit B-1
The undersigned Investor and the Company hereby agree as follows:
I. ELECTRONIC DELIVERY OF REPORTS AND OTHER COMMUNICATIONS
The Company may provide statements, reports, and other communications relating to the Company or the Shares in electronic form, such as e-mail. E-mail messages are not secure and may contain computer viruses or other defects, may not be accurately replicated on other systems, or may be intercepted, deleted, or interfered with without the knowledge of the sender or the intended recipient. The Company makes no warranties in relation to these matters. If you have any doubts about the authenticity of an email purportedly sent by the Company, contact the purported sender immediately.
Do you consent to the sending of such statements, reports, and other communications regarding the Company in lieu of or in addition to separate mailing of paper copies?
Please send me electronic notices Yes No Please send me hard copies Yes No
II. ACCREDITED INVESTOR STATUS OF THE INVESTOR
Initial all appropriate spaces on the following pages indicating the basis upon which the Investor qualifies as an accredited investor.
For Individual Investors Only
______(1) I certify that I am an accredited investor because I have an individual net worth, or my spouse and I (Initial) have a combined net worth, in excess of $1,000,000. For purposes of this questionnaire, (i) “net worth” means the excess of total assets at fair market value, including home furnishings and automobiles, over total liabilities; (ii) Investor may not count the value of Investor’s primary residence in net worth, and if the amount of debt on Investor’s primary residence exceeds its value, Investor must count the excess against net worth; and (iii) Investor does not need to count as a liability debt secured by the Investor’s primary residence up to the value of the residence, unless the amount of such debt exceeds the amount that was outstanding 60 days prior, other than debt resulting from the acquisition of the primary residence).
If the Investor qualifies as an accredited investor under this Section (B)(1), Investor agrees to deliver to the Company such documents as may be requested by the Company to verify such accredited investor status.
(2) I certify that I am an accredited investor because I had individual income (exclusive of any income ______attributable to my spouse) of more than $200,000 in each of the past two years, or joint income with (Initial) my spouse of more than $300,000 in each of those years, and I reasonably expect to reach the same income level in the current year.1
1 For purposes of this Agreement, “individual income” means adjusted gross income, as reported for Federal income tax purposes, less any income attributable to a spouse or to property owned by a spouse, increased by the following amounts (but not including any amounts attributable to a spouse or to property owned by a spouse): (i) the amount of any tax-exempt interest income under Section 103 of the Internal Revenue Code of 1986, as amended (the “Code”); (ii) the amount of losses claimed as a limited partner in a limited partnership as reported on Schedule E of Form 1040; (iii) the amount of any deduction, including the allowance for depletion, under Section 611 et seq. of the Code; (iv) amounts contributed to an Individual Retirement Account (as defined in the Code) or Keogh retirement plan; (v) alimony paid; and (vi) any elective contributions to a cash or deferred arrangement under Section 401(k) of the Code. For purposes of this Agreement, “joint income” means adjusted gross income, as reported for Federal income tax purposes, including any income attributable to a spouse or to property owned by a spouse, increased by the foregoing items (i) through (vi), (including any amounts attributable to a spouse or to property owned by a spouse).
Exhibit B-2
If the Investor qualifies as an accredited investor under this Section (B)(2), such Investor agrees to deliver to the Company such documents as may be requested by the Company to verify such accredited investor status. For All Others
______(3) The Investor hereby certifies that it is an accredited investor because it is a bank as defined in (Initial) §3(a)(2) of the Securities Act or a savings and loan association or other institution as defined in §3(a)(5)(A) of the Securities Act, acting in its individual or fiduciary capacity.
______(4) The Investor hereby certifies that it is an accredited investor because it is a broker-dealer registered (Initial) pursuant to §15 of the Securities Exchange Act of 1934 (the “1934 Act”).
______(5) The Investor hereby certifies that it is an accredited investor because it is an insurance company as (Initial) defined in §2(13) of the Securities Act.
______(6) The Investor hereby certifies that it is an accredited investor because it is an investment company (Initial) registered under the Investment Company Act of 1940 or a business development company as defined in §2(a)(48) of that act.
______(7) The Investor hereby certifies that it is an accredited investor because it is a Small Business (Initial) Investment Company licensed by the U.S. Small Business Administration under §301(c) or (d) of the Small Business Investment Act of 1958.
______(8) The Investor hereby certifies that it is an accredited investor because it is a plan established and (Initial) maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, and such plan has total assets in excess of $5,000,000.
______(9) The Investor hereby certifies that it is an accredited investor because it is an employee benefit plan (Initial) (“Plan”) within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the decision to invest in the Company was made by a plan fiduciary (as defined in §3(21) of ERISA), which is either a bank, savings and loan association, insurance company or registered investment adviser. The name of such plan fiduciary is:
______
______(10) The Investor hereby certifies that it is an accredited investor because it is an employee benefit plan (Initial) within the meaning of ERISA or a pension plan which is not a self-directed plan and has total assets in excess of $5,000,000.
______(11) The Investor hereby certifies that it is an accredited investor because it is a self-directed plan in (Initial) which investment decisions are made solely by persons that are accredited investors on the basis of (1) or (2) above. The Company, acting in its sole discretion, may request information regarding the basis on which such participants are accredited.
______(12) The Investor hereby certifies that it is an accredited investor because it is a private business (Initial) development company as defined in §202(a)(22) of the Investment Advisers Act of 1940 (the “Advisers Act”).
______(13) The Investor hereby certifies that it is an accredited investor because it is (i) a corporation, (Initial) Massachusetts or similar business trust, partnership, or an organization described in §501(c)(3) of
Exhibit B-3
the Code, (ii) was not formed for the specific purpose of acquiring the Shares offered, and (iii) has total assets in excess of $5,000,000.
______(14) The Investor hereby certifies that it is an accredited investor because it is an irrevocable trust (i) with (Initial) total assets in excess of $5,000,000, (ii) not formed for the specific purpose of acquiring the Shares offered, (iii) whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective investment.
______(15) The Investor hereby certifies that it is an accredited investor because all of its equity owners are (Initial) accredited investors. The Company, in its sole discretion, may request information regarding the basis on which such equity owners are accredited.
If none of the categories above is applicable, please contact the Company at (706) 289-1035 for further instructions.
III. INVESTOR REPRESENTATIONS AND WARRANTIES:
(A) The Investor shall not sell or otherwise transfer the Shares without registration under the Securities Act and applicable Acts or an exemption therefrom and without complying with this Agreement, and the Investor fully understands and agrees that it must bear the economic risk of its investment for an indefinite period of time because, among other reasons, the Shares have not been registered under the Securities Act or under the Acts, and, therefore, cannot be resold, pledged, assigned, or otherwise disposed of unless the transaction or the Shares are subsequently registered under the Securities Act and under applicable Acts or an exemption from such registration is available. The Investor understands that the Company is under no obligation to register the Shares on its behalf or to assist it in complying with any exemption from such registration under the Securities Act or any applicable Acts.
(B) The Investor has received and read a copy of the Memorandum, discussing among other things, the risks of an investment in the Shares and have been furnished with such financial and other information as the Investor considers necessary in connection with the Investor’s investment in the Shares. The Investor acknowledges that in making a decision to subscribe for Shares, the Investor has relied solely upon the Memorandum and independent investigations made by the Investor. The Investor’s investment in the Shares is consistent with the investment purposes and objectives and cash flow of the Investor and will not adversely affect the Investor’s overall need for diversification and liquidity.
(C) The Investor understands that the Memorandum has been prepared solely for the benefit of prospective investors interested in the proposed private placement of the Shares. The Investor has not distributed and will not distribute the Memorandum or any other information concerning the Company to any person other than those persons retained to advise the Investor with respect thereto, and agrees that reproduction of the Memorandum, in whole or in part, or the divulgence of any of its contents without the Company’s prior written consent is prohibited.
(D) The Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the Investor’s investment in the Shares and is able to bear such risks, and has obtained, in the Investor’s judgment, sufficient information from the Company or its authorized representatives to evaluate the merits and risks of such investment. The Investor has evaluated the risks of investing in the Shares and has determined that the Shares are a suitable investment for the Investor. The Investor can afford a complete loss of the investment in the Shares, can afford to hold the investment in the Shares for an indefinite period of time, and acknowledges that no dividends or distributions on the Shares are expected to be paid in the foreseeable future.
(E) The Investor (i) does not have an overall commitment to investments which are not readily marketable that is disproportionate to his, her or its net worth, and his, her or its investment in the Shares will not cause such overall commitment to become excessive; and (ii) has adequate net worth and means of providing for his, her or its current needs and personal contingencies to sustain a complete loss of his, her or its investment in the Shares at the time of investment, and has no need for liquidity in his, her or its investment in the Shares.
Exhibit B-4
(F) The Investor is acquiring the Shares subscribed for herein for its own account, for investment purposes only and not with a view to, or for sale in connection with, any distribution of the Shares within the meaning of the Securities Act, or any rule or regulation under the Securities Act.
(G) The Investor acknowledges that the Investor has been given no assurances with respect to the future performance of the Company. Further, the Investor acknowledges that the projections and other forward-looking information contained in the Memorandum are based on assumptions made by the Company which are inherently uncertain, and it is likely, for many reasons, that actual results will differ materially from those contemplated by the projections and forward-looking statements. The Investor represents that the Investor has not placed undue reliance on the projections and forward- looking information in the Memorandum. The Investor is aware of the foregoing uncertainties in making an investment in the Shares. (H) The execution, delivery and performance by the Investor of this Agreement are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under, or conflict with, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and, if the Investor is not an individual, will not violate any provisions of the incorporation papers, by-laws, indenture of trust or partnership agreement, as may be applicable, of the Investor. The signature on this Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same, or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and this Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable in accordance with its terms.
(I) The Investor understands and agrees that the Memorandum supersedes any and all other information concerning the Company and the Shares that may have previously been provided to the Investor and that the Investor has not been furnished any other offering literature except for the Memorandum and other materials which the Company may have subsequently provided at the request of the prospective investor. The prospective investor agrees that it has relied only on the information contained in the Memorandum and any information subsequently furnished or made available to the Investor by the Company.
(J) The Company has suggested to the Investor that he or she should consult with legal and financial professionals in connection with making his or her investment in the Shares.
(K) All information which the Investor has provided to the Company concerning the Investor, the financial position and knowledge of the Investor as to financial and business matters or, in the case of a corporation, partnership, trust or other entity, the knowledge of financial and business matters of the person making the investment decision on behalf of such entity, including all information contained herein, is true and complete as of the date set forth at the end hereof, and if there should be any adverse change in such information, whether prior to or after this subscription being accepted, the Investor agrees immediately to provide the Company with accurate and complete information concerning any such change.
(L) The Investor’s investment in the Shares has not been solicited in any way by anyone other than the Company’s management, and the Investor has been given no assurances with respect to the Company’s future performance.
(M) The Investor understands and agrees that the Shares are not transferable.
IV. ADDITIONAL INFORMATION
The Company may request from the Investor such additional information as the Company deems necessary to evaluate the eligibility of the Investor to acquire the Shares, and may request from time to time such information as it may deem necessary to determine the eligibility of the Investor to hold the Shares or to enable the Company to determine its compliance with applicable regulatory requirements, and the Investor shall provide such information as may reasonably be requested.
[Signature page follows]
Exhibit B-5
IN WITNESS WHEREOF, the Investor has executed this Agreement as of the date set forth below.
Date: , 2017
Purchase Price: $
Permanent Residence Address:
Email Address:
For Individual Investors: For Investors other than Individuals:
______(Please type or print name of Investor) (Please type or print name of Investor)
______By: ______Signature of Investor or Authorized Signatory Signature
Title: ______Title of Authorized Signatory (if applicable)
______Date of Birth
To be completed by the Company:
The foregoing Agreement is hereby accepted by the Company this _____ day of ______, 2017.
GOLF PLAYED INC.
By: ______
Name: ______
Title: ______
Exhibit B-6
WIRING INSTRUCTIONS
GOLF PLAYED INC.
Bank Account Details:
Wells Fargo Third Avenue & 58th Street NYC United States of America Tel: +19173226703
Account Name Golf Played Inc. 3445 Stratford Road Atlanta, Georgia 30326 USA
Premium Business Account: 7638 420 948 Swift Code/BIC WFBIUS6S Routing #: 061000227
Exhibit B-7
Exhibit C Certificate of Incorporation
Exhibit C
Exhibit D
BYLAWS
OF
GOLF PLAYED INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, 19808 or in such other location as the Board of Directors may from time to time determine or the business of the corporation may require..
Section 2. Other Offices. The corporation shall also have and maintain an office or principal place of business at such place as may be fixed by the Board of Directors, and may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The Board of Directors may adopt a corporate seal. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS’ MEETINGS
Section 4. Place of Meetings. Meetings of the stockholders of the corporation may be held at such place, either within or without the State of Delaware, as may be determined from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the Delaware General Corporation Law (“DGCL”).
Section 5. Annual Meeting.
(a) The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may lawfully come before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors. Nominations of persons for election to the Board of Directors of the corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders: (i) pursuant to the corporation’s notice of meeting of stockholders; (ii) by or at the direction of the Board of Directors; or (iii) by any stockholder of the corporation who was a stockholder of record at the time of giving of notice provided for in the following paragraph, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section.
(b) At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this Section, (i) the stockholder must have given timely notice thereof in writing to the Secretary of the corporation, (ii) such other business must be a proper matter for stockholder action under the DGCL and applicable law, (iii) if the stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the corporation with a Solicitation Notice (as defined in this paragraph), such stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the corporation’s voting shares reasonably believed by such stockholder or beneficial owner to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials the Solicitation Notice, and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section, the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one Exhibit D
hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth: (A) as to each person whom the stockholder proposed to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and Rule 14a-4(d) thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, (ii) the class and number of shares of the corporation that are owned beneficially and of record by such stockholder and such beneficial owner, and (iii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of the proposal, at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).
(c) Notwithstanding anything in the second sentence of paragraph (b) of this Section to the contrary, in the event that the number of directors to be elected to the Board of Directors of the corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the corporation at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the corporation.
(d) Only such persons who are nominated in accordance with the procedures set forth in this Section (or elected or appointed pursuant to Article IV of these Bylaws) shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. Except as otherwise provided by law, the Chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposal or nomination shall not be presented for stockholder action at the meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholders’ meeting, stockholders must provide notice as required by the regulations promulgated under the 1934 Act. Nothing in these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation proxy statement pursuant to Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14 or 15(d) of the 1934 Act.
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation may be called, for any purpose or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, (iii) the Board of Directors pursuant to a resolution adopted by directors representing a quorum of the Board of Directors or (iv) by the holders of shares entitled to cast not less than 50% of the votes at the meeting, and shall be held at such place, on such date, and at such time as the Board of Directors shall fix.
At any time or times that the corporation is subject to Section 2115(b) of the California General Corporation Law (“CGCL”), stockholders holding five percent (5%) or more of the outstanding shares shall have the right to call a special meeting of stockholders as set forth in Section 18(b) of these Bylaws.
(b) If a special meeting is properly called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the general nature of the business proposed to be transacted, and shall be delivered personally or sent by certified or registered mail, return receipt requested, or by telegraphic or other facsimile transmission to the Chairman of the Board of Directors, the Chief Executive Officer, or the Secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The Board of Directors shall determine the time and place of such special meeting, which shall be held not less than thirty-five (35) nor more than one hundred twenty (120) days after the date of the receipt of the request. Upon determination of the time and place of the meeting, the officer receiving the request shall cause notice to be given to the stockholders entitled to vote, in accordance with the provisions of Section 7 of these Bylaws. Nothing contained in this paragraph (b) shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held.
Section 7. Notice of Meetings. Except as otherwise provided by law, notice, given in writing or by electronic transmission, of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting, such notice to specify the place, if any, date and hour, in the case of special meetings, the purpose or purposes of the meeting, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at any such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation. Notice of the time, place, if any, and purpose of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof or by electronic transmission by such person, either before or after such meeting, and will be waived by any stockholder by his or her attendance thereat in person, by remote communication, if applicable, or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by statute, or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of a majority of shares present in person, by remote communication, if applicable, or represented by proxy duly authorized at the meeting and entitled to vote generally on the subject matter shall be the act of the stockholders. Except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, directors shall be elected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy duly authorized at the meeting and entitled to vote generally on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, a majority of the outstanding shares of such class or classes or series, present in person, by remote communication, if applicable, or represented by proxy duly authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter. Except where otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, the affirmative
vote of the majority (plurality, in the case of the election of directors) of shares of such class or classes or series present in person, by remote communication, if applicable, or represented by proxy at the meeting shall be the act of such class or classes or series.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time to time either by the chairman of the meeting or by the vote of a majority of the shares present in person, by remote communication, if applicable, or represented by proxy. When a meeting is adjourned to another time or place, if any, notice need not be given of the adjourned meeting if the time and place, if any, thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting pursuant to the Certificate of Incorporation, these Bylaws or applicable law. If the adjournment is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 10. Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwise provided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided in Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person entitled to vote or execute consents shall have the right to do so either in person, by remote communication, if applicable, or by an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of creation unless the proxy provides for a longer period.
Section 11. Joint Owners of Stock. If shares or other securities having voting power stand of record in the names of two (2) or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting (including giving consent pursuant to Section 13) shall have the following effect: (a) if only one (1) votes, his or her act binds all; (b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or may apply to the Delaware Court of Chancery for relief as provided in the DGCL, Section 217(b). If the instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split for the purpose of subsection (c) shall be a majority or even-split in interest.
Section 12. List of Stockholders. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. The list shall be open to examination of any stockholder during the time of the meeting as provided by law.
Section 13. Action Without Meeting.
(a) Unless otherwise provided in the Certificate of Incorporation, any action required by statute to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, or by electronic transmission setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
(b) Every written consent or electronic transmission shall bear the date of signature of each stockholder who signs the consent, and no written consent or electronic transmission shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the corporation
in the manner herein required, written consents or electronic transmissions signed by a sufficient number of stockholders to take action are delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
(c) Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing or by electronic transmission and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take action were delivered to the corporation as provided in Section 228(c) of the DGCL. If the action to which the stockholders consent is such as would have required the filing of a certificate under any section of the DGCL if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written consent has been given in accordance with Section 228 of the DGCL.
(d) An electronic mail, facsimile or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section, provided that any such electronic mail, facsimile or other electronic transmission sets forth or is delivered with information from which the corporation can determine (i) that the electronic mail, facsimile or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such electronic mail, facsimile or electronic transmission. The date on which such electronic mail, facsimile or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic mail, facsimile or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the state of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by electronic mail, facsimile or other electronic transmission may be otherwise delivered to the principal place of business of the corporation or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the board of directors of the corporation. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 14. Organization.
(a) At every meeting of stockholders, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the Chief Executive Officer, or, if the Chief Executive Officer is absent, a chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in his or her absence, an Assistant Secretary directed to do so by the Chief Executive Officer, shall act as secretary of the meeting.
(b) The Board of Directors shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and constituted proxies and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall
be announced at the meeting. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. Number and Term of Office. The authorized number of directors of the corporation shall be fixed by the Board of Directors from time to time. Directors need not be stockholders unless so required by the Certificate of Incorporation. If for any cause, the directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient.
Section 16. Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by statute or by the Certificate of Incorporation.
Section 17. Term of Directors.
(a) Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, directors shall be elected at each annual meeting of stockholders to serve until the next annual meeting of stockholders and his or her successor is duly elected and qualified or until his or her death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
(b) No person entitled to vote at an election for directors may cumulate votes to which such person is entitled, unless, at the time of such election, the corporation is subject to Section 2115(b) of the CGCL. During such time or times that the corporation is subject to Section 2115(b) of the CGCL, every stockholder entitled to vote at an election for directors may cumulate such stockholder’s votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such stockholder’s shares are otherwise entitled, or distribute the stockholder’s votes on the same principle among as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder’s votes unless (i) the names of such candidate or candidates have been placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting, prior to the voting, of such stockholder’s intention to cumulate such stockholder’s votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected.
Section 18. Vacancies.
(a) Unless otherwise provided in the Certificate of Incorporation, and subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director; provided, however, that whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class or classes or series shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist under this Bylaw in the case of the death, removal or resignation of any director.
(b) At any time or times that the corporation is subject to Section 2115(b) of the CGCL, if, after the filling of any vacancy, the directors then in office who have been elected by stockholders shall constitute less than a majority of the directors then in office, then
(i) any holder or holders of an aggregate of five percent (5%) or more of the total number of shares at the time outstanding having the right to vote for those directors may call a special meeting of stockholders; or
(ii) the Superior Court of the proper county shall, upon application of such stockholder or stockholders, summarily order a special meeting of the stockholders, to be held to elect the entire board, all in accordance with Section 305(c) of the CGCL, the term of office of any director shall terminate upon that election of a successor.
Section 19. Resignation. Any director may resign at any time by delivering his or her notice in writing or by electronic transmission to the Secretary, such resignation to specify whether it will be effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If no such specification is made, it shall be deemed effective at the pleasure of the Board of Directors. When one or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold office for the unexpired portion of the term of the Director whose place shall be vacated and until his successor shall have been duly elected and qualified.
Section 20. Removal.
(a) Subject to any limitations imposed by applicable law, the Board of Directors or any director may be removed from office at any time (i) with cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the corporation entitled to vote generally at an election of directors or (ii) without cause by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the corporation, entitled to elect such director.
(b) During such time or times that the corporation is subject to Section 2115(b) of the CGCL, the Board of Directors or any individual director may be removed from office at any time without cause by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote on such removal; provided, however, that unless the entire Board is removed, no individual director may be removed when the votes cast against such director’s removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of such director’s most recent election were then being elected.
Section 21. Meetings
(a) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of Directors may be held at any time or date and at any place within or without the State of Delaware which has been designated by the Board of Directors and publicized among all directors, either orally or in writing, including a voice-messaging system or other system designated to record and communicate messages, facsimile, or by electronic mail or other electronic means. No further notice shall be required for a regular meeting of the Board of Directors.
(b) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of Directors may be held at any time and place within or without the State of Delaware whenever called by the Chairman of the Board, the Chief Executive Officer (if a director), the President (if a director) or any director.
(c) Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
(d) Notice of Special Meetings. Notice of the time and place of all special meetings of the Board of Directors shall be orally or in writing, by telephone, including a voice messaging system or other system or technology
designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, during normal business hours, at least twenty-four (24) hours before the date and time of the meeting. If notice is sent by US mail, it shall be sent by first class mail, postage prepaid at least three (3) days before the date of the meeting. Notice of any meeting may be waived in writing or by electronic transmission at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
(e) Waiver of Notice. The transaction of all business at any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present who did not receive notice shall sign a written waiver of notice or shall waive notice by electronic transmission. All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting.
Section 22. Quorum and Voting.
(a) Unless the Certificate of Incorporation requires a greater number, a quorum of the Board of Directors shall consist of a majority of the total number of directors then serving; provided, however, that such number shall never be less than one-third (1/3) of the total number of directors except that when one director is authorized, then one director shall constitute a quorum. At any meeting, whether a quorum be present or otherwise, a majority of the directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice other than by announcement at the meeting. If the Certificate of Incorporation provides that one or more directors shall have more or less than one vote per director on any matter, every reference in this Section to a majority or other proportion of the directors shall refer to a majority or other proportion of the votes of the directors.
(b) At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined by the affirmative vote of a majority of the directors present, unless a different vote be required by law, the Certificate of Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and such writing or writings or transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 24. Fees and Compensation. Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors, including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
Section 25. Committees.
(a) Executive Committee. The Board of Directors may appoint an Executive Committee to consist of one (1) or more members of the Board of Directors. The Executive Committee, to the extent permitted by law and provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any bylaw of the corporation.
(b) Other Committees. The Board of Directors may, from time to time, appoint such other committees as may be permitted by law. Such other committees appointed by the Board of Directors shall consist of one
(1) or more members of the Board of Directors and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees, but in no event shall any such committee have the powers denied to the Executive Committee in these Bylaws.
(c) Term. The Board of Directors, subject to any requirements of any outstanding series of Preferred Stock and the provisions of paragraphs (a) or (b) of this Section may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of his or her death or voluntary resignation from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee appointed pursuant to this Section shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at any place which has been determined from time to time by such committee, and may be called by any director who is a member of such committee, upon notice to the members of such committee of the time and place of such special meeting given in the manner provided for the giving of notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing at any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends such special meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Unless otherwise provided by the Board of Directors in the resolutions authorizing the creation of the committee, a majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee.
Section 26. Organization. At every meeting of the directors, the Chairman of the Board of Directors, or, if a Chairman has not been appointed or is absent, the Chief Executive Officer (if a director), or if the Chief Executive Officer is not a director or is absent, the President (if a director), or if the President is not a director or is absent, the most senior Vice President (if a director) or, in the absence of any such person, a chairman of the meeting chosen by a majority of the directors present, shall preside over the meeting. The Secretary, or in his or her absence, any Assistant Secretary directed to do so by the Chief Executive Officer or President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. Officers Designated. The officers of the corporation shall include, if and when designated by the Board of Directors, the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer, the Treasurer and the Controller, all of whom shall be elected at the annual organizational meeting of the Board of Directors. The Board of Directors may also appoint one or more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed by or in the manner designated by the Board of Directors.
Section 28. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected and qualified, unless sooner removed. Any officer elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors, or by the Chief Executive Officer or other officer if so authorized by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of the Board of Directors, when present, shall preside at all meetings of the stockholders and the Board of Directors. The Chairman of the Board of Directors shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. If there is no Chief Executive Officer and no President, then the Chairman of the Board of Directors shall also serve as the Chief Executive Officer of the corporation and shall have the powers and duties prescribed in paragraph (c) of this Section.
(c) Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the stockholders and (if a director) at all meetings of the Board of Directors, unless the Chairman of the Board of Directors has been appointed and is present. The Chief Executive Officer shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. The Chief Executive Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time.
(d) Duties of President. In the absence or disability of the Chief Executive Officer or if the office of Chief Executive Officer is vacant, the President shall preside at all meetings of the stockholders and (if a director) at all meetings of the Board of Directors, unless the Chairman of the Board of Directors has been appointed and is present. If the office of Chief Executive Officer is vacant, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. The President shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time.
(e) Duties of Vice Presidents. The Vice Presidents may assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
(f) Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of the Board of Directors and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the stockholders and of all meetings of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties provided for in these Bylaws and other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors shall designate from time to time. The Chief Executive Officer may direct any Assistant Secretary to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer shall designate from time to time.
(g) Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the Chief Executive Officer. The Chief Financial Officer, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation. The Chief Financial Officer shall perform other duties commonly incident to his or her office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer shall designate from time to time. The Chief Executive Officer may direct the Treasurer or any Assistant Treasurer, or the Controller or any Assistant Controller to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and Assistant Treasurer and each Controller and Assistant Controller shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer shall designate from time to time.
Section 29. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
Section 30. Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission notice to the Board of Directors or to the Chief Executive Officer or to the President or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract with the resigning officer.
Section 31. Removal. Any officer may be removed from office at any time, either with or without cause, by the affirmative vote of a majority of the directors in office at the time, or by the unanimous written or electronic consent of the directors in office at the time, or by any committee or superior officers upon whom such power of removal may have been conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 32. Execution of Corporate Instruments. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument or document, or to sign on behalf of the corporation the corporate name, or to enter into contracts on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such execution or signature shall be binding upon the corporation. All checks and drafts drawn on banks or other depositaries of funds to the credit of the corporation or on special accounts of the corporation shall be signed by such person or persons as the Board of Directors shall authorize so to do. Unless authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
Section 33. Voting of Securities Owned by the Corporation. All stock and other securities of other corporations owned or held by the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence of such authorization, by the Chairman of the Board of Directors, the Chief Executive Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 34. Form and Execution of Certificates. The shares of the corporation shall be represented by certificates, or shall be uncertificated. Certificates for the shares of stock, if any, of the corporation shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of shares of stock in the corporation represented by certificate shall be entitled to have a certificate signed by or in the name of the corporation by any two authorized officers, including but not limited to the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of shares owned by him or her in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he or she were such officer, transfer agent, or registrar at the date of issue.
Section 35. Lost Certificates. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to agree to indemnify the corporation in such
manner as it shall require or to give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 36. Restrictions on Transfer.
(a) No holder of any of the shares of stock of the corporation may sell, transfer, assign, pledge, or otherwise dispose of or encumber any of the shares of stock of the corporation or any right or interest therein, whether voluntarily or by operation of law, or by gift or otherwise (each, a “Transfer”) without the prior written consent of the corporation, upon duly authorized action of its Board of Directors. The corporation may withhold consent for any legitimate corporate purpose, as determined by the Board of Directors. Examples of the basis for the corporation to withhold its consent include, without limitation, (i) if such Transfer to individuals, companies or any other form of entity identified by the corporation as a potential competitor or considered by the corporation to be unfriendly; or (ii) if such Transfer increases the risk of the corporation having a class of security held of record by two thousand (2,000) or more persons, or five hundred (500) or more persons who are not accredited investors (as such term is defined by the SEC), as described in Section 12(g) of the 1934 Act and any related regulations, or otherwise requiring the corporation to register any class of securities under the 1934 Act; or (iii) if such Transfer would result in the loss of any federal or state securities law exemption relied upon by the corporation in connection with the initial issuance of such shares or the issuance of any other securities; or (iv) if such Transfer is facilitated in any manner by any public posting, message board, trading portal, internet site, or similar method of communication, including without limitation any trading portal or internet site intended to facilitate secondary transfers of securities; or (v) if such Transfer is to be effected in a brokered transaction; or (vi) if such Transfer represents a Transfer of less than all of the shares then held by the stockholder and its affiliates or is to be made to more than a single transferee.
(b) If a stockholder desires to Transfer any shares, then the stockholder shall first give written notice thereof to the corporation. The notice shall name the proposed transferee and state the number of shares to be transferred, the proposed consideration, and all other terms and conditions of the proposed transfer. Any shares proposed to be transferred to which Transfer the corporation has consented pursuant to paragraph (a) of this Section will first be subject to the corporation’s right of first refusal located in Section 46 of these Bylaws.
(c) Any Transfer, or purported Transfer, of shares not made in strict compliance with this Section shall be null and void, shall not be recorded on the books of the corporation and shall not be recognized by the corporation.
(d) The foregoing restriction on Transfer shall terminate upon the date securities of the corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the SEC under the Securities Act of 1933, as amended (the “1933 Act”).
(e) The certificates representing shares of stock of the corporation shall bear on their face the following legend so long as the foregoing Transfer restrictions are in effect:
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A TRANSFER RESTRICTION, AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”
Section 37. Fixing Record Dates.
(a) In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, subject to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day immediately preceding the day on which notice is given, or if notice is waived, at the close of business on the day immediately preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request the Board of Directors to fix a record date. The Board of Directors shall promptly, but in all events within ten (10) days after the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the Board of Directors within ten (10) days of the date on which such a request is received, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 38. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39. Execution of Other Securities. All bonds, debentures and other corporate securities of the corporation, other than stock certificates (covered in Section 34 of these Bylaws), may be signed by the Chairman of the Board of Directors, the Chief Executive Officer, the President or any Vice President, or such other person as may be authorized by the Board of Directors, and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate security shall be authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the corporation or such other person as may be authorized by the Board of Directors, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
Section 40. Declaration of Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and applicable law.
Section 41. Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 42. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. Indemnification of Directors, Executive Officers, Employees and Other Agents.
(a) Directors and Executive Officers. The corporation shall indemnify its directors and executive officers (for the purposes of this Article, “executive officers” shall have the meaning defined in Rule 3b-7 promulgated under the 1934 Act) to the fullest extent not prohibited by the DGCL or any other applicable law; provided, however, that the corporation may modify the extent of such indemnification by individual contracts with its directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law or (iv) such indemnification is required to be made under paragraph (d) of this Section.
(b) Other Officers, Employees and Other Agents. The corporation shall have power to indemnify its other officers, employees and other agents as set forth in the DGCL or any other applicable law. The Board of Directors shall have the power to delegate the determination of whether indemnification shall be given to any such person except executive officers to such officers or other persons as the Board of Directors shall determine.
(c) Expenses. The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or executive officer of the corporation, or is or was serving at the request of the corporation as a director or executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with such proceeding; provided, however, that, if the DGCL requires, an advancement of expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this Section or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this Section, no advance shall be made by the corporation to an executive officer of the corporation (except by reason of the fact that such executive officer is or was a director of the corporation, in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of a quorum consisting of directors who were not parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority of such directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation. (d) Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and executive officers under this Section shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the director or executive officer. Any right to indemnification or advances granted by this Section to a director or executive officer or officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount claimed. In connection with any claim by an executive officer of the corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise as a defense as to any such action clear and convincing evidence that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his or her conduct was lawful. Neither the failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.
(e) Non-Exclusivity of Rights. The rights conferred on any person by this Section shall not be exclusive of any other right which such person may have or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL or any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this Section shall continue as to a person who has ceased to be a director or executive officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL, or any other applicable law, the corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Section.
(h) Amendments. Any repeal or modification of this Section shall only be prospective and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.
(i) Saving Clause. If this Section or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and executive officer to the full extent not prohibited by any applicable portion of this Bylaw that shall not have been invalidated, or by any other applicable law. If this Section shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify each director and executive officer to the full extent under applicable law.
(j) Certain Definitions. For the purposes of this Section, the following definitions shall apply:
(1) The term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
(2) The term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding.
(3) The term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
(4) References to a “director,” “executive officer,” “officer,” “employee,” or “agent” of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as, respectively, a director, executive officer, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(5) References to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Section.
ARTICLE XII
NOTICES
Section 44. Notices.
(a) Notice to Stockholders. Written notice to stockholders of stockholder meetings shall be given as provided in Section 7 of these Bylaws. Without limiting the manner by which notice may otherwise be given effectively to stockholders under any agreement or contract with such stockholder, and except as otherwise required by law, written notice to stockholders for purposes other than stockholder meetings may be sent by United States mail or nationally recognized overnight courier, or by facsimile, telegraph or telex or by electronic mail or other electronic means.
(b) Notice to Directors. Any notice required to be given to any director may be given by the method stated in paragraph (a) of this Section, or as provided for in Section 21 of these Bylaws. If such notice is not delivered personally, it shall be sent to such address as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known post office address of such director.
(c) Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation or its transfer agent appointed with respect to the class of stock affected or other agent, specifying the name and address or the names and addresses of the stockholder or stockholders, or director or directors, to whom any such notice or notices was or were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein contained.
(d) Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients of notice, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others.
(e) Notice to Person with Whom Communication Is Unlawful. Whenever notice is required to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
(f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under DGCL, any notice given under the provisions of DGCL, the Certificate of Incorporation or the Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Such consent shall have been deemed to have been given if such stockholder fails to object in writing to the corporation within 60 days of having been given notice by the corporation of its intention to send the single notice. Any consent shall be revocable by the stockholder by written notice to the corporation.
ARTICLE XIII
AMENDMENTS
Section 45. Amendments. The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the corporation. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the corporation required by law or by the Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class.
ARTICLE XIV
RIGHT OF FIRST REFUSAL
Section 46. Right of First Refusal. No stockholder shall Transfer any of the shares of stock of the corporation, except by a Transfer which meets the requirements set forth in Section 36 and below:
(a) If the stockholder desires to Transfer any of his shares of stock, then the stockholder shall first give the notice specified in Section 36(b) of these Bylaws and comply with the provisions therein.
(b) For thirty (30) days following receipt of such notice, the corporation shall have the option to purchase of the shares specified in the notice at the price and upon the terms set forth in such notice; provided, however, that, with the consent of the stockholder, the corporation shall have the option to purchase a lesser portion of the shares specified in said notice at the price and upon the terms set forth therein. In the event of a gift, property settlement or other Transfer in which the proposed transferee is not paying the full price for the shares, and that is not otherwise exempted from the provisions of this Section, the price shall be deemed to be the fair market value of the stock at such time as determined in good faith by the Board of Directors. In the event the corporation elects to purchase all of the shares or,
with consent of the stockholder, a lesser portion of the shares, it shall give written notice to the transferring stockholder of its election and settlement for said shares shall be made as provided below in paragraph (d) of this Section.
(c) The corporation may assign its rights hereunder.
(d) In the event the corporation and/or its assignee(s) elect to acquire any of the shares of the transferring stockholder as specified in said transferring stockholder’s notice, the Secretary of the corporation shall so notify the transferring stockholder and settlement thereof shall be made in cash within thirty (30) days after the Secretary of the corporation receives said transferring stockholder’s notice; provided that if the terms of payment set forth in said transferring stockholder’s notice were other than cash against delivery, the corporation and/or its assignee(s) shall pay for said shares on the same terms and conditions set forth in said transferring stockholder’s notice.
(e) In the event the corporation and/or its assignees(s) do not elect to acquire all of the shares specified in the transferring stockholder’s notice, said transferring stockholder may, subject to the corporation’s approval and all other restrictions on Transfer located in Section 36 of these Bylaws, within the sixty-day period following the expiration or waiver of the option rights granted to the corporation and/or its assignees(s) herein, Transfer the shares specified in said transferring stockholder’s notice which were not acquired by the corporation and/or its assignees(s) as specified in said transferring stockholder’s notice. All shares so sold by said transferring stockholder shall continue to be subject to the provisions of this bylaw in the same manner as before said Transfer.
(f) Anything to the contrary contained herein notwithstanding, the following transactions shall be exempt from the right of first refusal in paragraph (a) of this Section:
(1) A stockholder’s Transfer of any or all shares held either during such stockholder’s lifetime or on death by will or intestacy to such stockholder’s immediate family or to any custodian or trustee for the account of such stockholder or such stockholder’s immediate family or to any limited partnership of which the stockholder, members of such stockholder’s immediate family or any trust for the account of such stockholder or such stockholder’s immediate family will be the general or limited partner(s) of such partnership. “Immediate family” as used herein shall mean spouse, lineal descendant, father, mother, brother, or sister of the stockholder making such Transfer;
(2) A stockholder’s bona fide pledge or mortgage of any shares with a commercial lending institution, provided that any subsequent Transfer of said shares by said institution shall be conducted in the manner set forth in this bylaw;
(3) A stockholder’s Transfer of any or all of such stockholder’s shares to the corporation or to any other stockholder of the corporation;
(4) A stockholder’s Transfer of any or all of such stockholder’s shares to a person who, at the time of such Transfer, is an officer or director of the corporation;
(5) A corporate stockholder’s Transfer of any or all of its shares pursuant to and in accordance with the terms of any merger, consolidation, reclassification of shares or capital reorganization of the corporate stockholder, or pursuant to a sale of all or substantially all of the stock or assets of a corporate stockholder;
(6) A corporate stockholder’s Transfer of any or all of its shares to any or all of its stockholders; or
(7) A Transfer by a stockholder which is a limited or general partnership to any or all of its partners or former partners in accordance with partnership interests.
In any such case, the transferee, assignee, or other recipient shall receive and hold such stock subject to the provisions of this Section and the transfer restrictions in Section 36, and there shall be no further Transfer of such stock except in accord with this Section and the transfer restrictions in Section 36. (g) The provisions of this bylaw may be waived with respect to any Transfer either by the corporation, upon duly authorized action of its Board of Directors, or by the stockholders, upon the express written
consent of the owners of a majority of the voting power of the corporation (excluding the votes represented by those shares to be transferred by the transferring stockholder). This bylaw may be amended or repealed either by a duly authorized action of the Board of Directors or by the stockholders, upon the express written consent of the owners of a majority of the voting power of the corporation.
(h) Any Transfer, or purported Transfer, of securities of the corporation shall be null and void unless the terms, conditions, and provisions of this bylaw are strictly observed and followed.
(i) The foregoing right of first refusal shall terminate upon the date securities of the corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the SEC under the Securities Act of 1933, as amended.
(j) The certificates representing shares of stock of the corporation shall bear on their face the following legend so long as the foregoing right of first refusal remains in effect:
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S), AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”
(k) To the extent this Section conflicts with any written agreements between the Company and the stockholder attempting to Transfer shares, such agreement shall control.
ARTICLE XV
LOANS TO OFFICERS
Section 47. Loans to Officers. Except as otherwise prohibited under applicable law, the corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a Director of the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.
ARTICLE XVI
MISCELLANEOUS
Section 48. Annual Report.
(a) Subject to the provisions of paragraph (b) of this Section, during such time or times that the corporation is subject to Section 1501 of the CGCL, the Board of Directors shall cause an annual report to be sent to each stockholder of the corporation not later than one hundred twenty (120) days after the close of the corporation’s fiscal year. Such report shall include a balance sheet as of the end of such fiscal year and an income statement and statement of changes in financial position for such fiscal year, accompanied by any report thereon of independent accountants or, if there is no such report, the certificate of an authorized officer of the corporation that such statements were prepared without audit from the books and records of the corporation. When there are more than 100 stockholders of record of the corporation’s shares, as determined by Section 605 of the CGCL, additional information as required by Section 1501(b) of the CGCL shall also be contained in such report, provided that if the corporation has a class of securities registered under Section 12 of the 1934 Act, the 1934 Act shall take precedence. Such report shall be sent to stockholders at least fifteen (15) days prior to the next annual meeting of stockholders after the end of the fiscal year to which it relates.
(b) If and so long as there are fewer than one hundred (100) holders of record of the corporation’s shares, the requirement of sending of an annual report to the stockholders of the corporation is hereby expressly waived.
Section 49. Forum. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation; (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders; (iii) any action asserting a claim against the corporation or any director or officer or other employee of the corporation arising pursuant to any provision of the DGCL, the certificate of incorporation or the Bylaws of the corporation; or (iv) any action asserting a claim against the corporation or any director or officer or other employee of the corporation governed by the internal affairs doctrine.