UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
July 31, 2009
INCOMING, INC.
(Exact name of registrant as specified in its charter)
| NEVADA | 333-152012 |
| (State or other jurisdiction of incorporation) | (Commission File No.) |
1635 N. Cahuenga
Los Angeles, CA 90028
(Address of principal executive offices and Zip Code)
(323) 460-6161
(Registrant’s telephone number, including area code)
8300 N. Hayden Road, Suite 207
Scottsdale, AZ 85258
(Former name or former adress, if changed since last report)
Copy of Communication to:
Befumo & Schaeffer, PLLC
2020 Pennsylvania Ave., NW # 840
Washington, DC 20006
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| | |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| | |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement
On July 31, 2009, Yury Nesterov, a shareholder and affiliate of Incoming, Inc. (the "Registrant"), consummated one Affiliate Stock Purchase Agreement with Aaron West. Pursuant to the Affiliate Agreement, which is attached to this Form 8-K Current Report as Exhibit 10.1, Aaron West acquired from Yury Nesterov a total 3,000,000 restricted shares of common stock of the Registrant for a total price of Twenty Thousand Dollars ($20,000).
Also on July 31, 2009, Elena Djafarova, a major shareholder and affiliate of the Registrant, consummated one Affiliate Stock Purchase Agreement with Elaina Watley. Pursuant to the Affiliate Agreement, which is attached to this Form 8-K Current Report as Exhibit 10.2, Elaina Watley acquired from Ms. Djafarova a total of 1,500,000 restricted shares of common stock of the Registrant for a total price of Ten Thousand Dollars ($10,000).
As a result, under the terms and conditions of the Affiliate Stock Purchase Agreements, West and Watley acquired from Nesterov and Djafarova a total of 4,500,000 shares of common stock of the Registrant representing approximately 52.5% of the total issued and outstanding shares of the Registrant.
Item 3.02 Unregistered Sale of Securities
As described in Item 1.01, on July 31, 2009, West and Watley acquired from Nesterov and Djafarova a total of 4,500,000 shares of common stock of the Registrant, representing approximately 52.5% of the total issued and outstanding shares of the Registrant for a total price of Thirty Thousand Dollars ($30,000.00).
Item 5.01 Changes in Control of Registrant
As described in Item1.01, on July 31, 2009, West and Watley acquired from Nesterov and Djafarova a total of 4,500,000 shares of common stock of the Registrant (the sale of common stock to West and Watley hereinafter referred to as the “Transaction”), representing approximately 52.5% of the total issued and outstanding shares of the Registrant resulting in a change in control of the Registrant on July 31, 2009.
Each share of common stock acquired by West and Watley is entitled to one vote on all matters upon which such shares can vote. All shares of common stock are equal to each other with respect to the election of directors and cumulative voting is not permitted. There are no preemptive rights. In the event of liquidation or dissolution, holders of common stock are entitled to receive, pro rata, the assets remaining, after creditors, and holders of any class of stock having liquidation rights senior to holders of shares of common stock, have been paid in full. All shares of common stock are entitled to such dividends as the Registrant’s Board of Directors may declare from time to time. There are no provisions in the articles of incorporation or bylaws that would delay, defer or prevent a change of control. The Registrant does not have any other classes of issued and outstanding capital stock.
Immediately prior to the closing of the Transaction, Yury Nesterov served as the Registrant’s President, Chief Executive Officer, Principal Executive Officer and Director of the Company and Elena Djafarova served as the Registrant’s Chief Financial Officer, Secretary, Treasurer, Principal Accounting Officer and Director. Immediately following the closing of the Transaction, Elaina Watley was appointed by the Board of Directors as Registrant’s President to serve until her successors shall be elected and qualified until the earlier of death, resignation or removal in the manner provided for in the Company’s by-laws, and Aaron West was appointed by the Board of Directors as Director to serve until his successors shall be elected and qualified until the earlier of death, resignation or removal in the manner provided for in the Company’s by-laws. Following the appointment of Aaron West and Elaina Watley, Yury Nesterov and Elena Djafarova tendered their resignations from all positions as officer and director of the Company.
The Registrant was a "shell company" (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (17 CFR 240.12b-2)) immediately before the Transaction. Accordingly, pursuant to the requirements of Item 5.01(a)(8), set forth below is the information that would be required if the Registrant was filing a general form for registration of securities on Form 10-SB (17 CFR 249.210b) under the Exchange Act, reflecting the Registrant's common stock, which is the only class of its securities subject to the reporting requirements of Section 13 (15 U.S.C. 78m) or Section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act upon consummation of the change in control, with such information reflecting the Registrant and its securities upon consummation of the Transaction.
Pursuant to Item 5.01(a)(8), the information contained in Items 1, 1A, 2, 3 and 4 of Part I; Items 5, 7, 9 and 9A of Part II; Items 10, 11, 13 and 14 of part III; and Item 15 of Part IV of the Registrant's Annual Report on Form 10-K for the fiscal year ended November 30, 2008; and
Items 1, 2, 3 and 4 of Part I; and Items 1, 1A, 2, 3, 4 and 6 of Part II of Registrant's Quarterly Report on Form 10-Q for the period ended May 31, 2009 are hereby incorporated by reference into this Current Report on Form 8-K under Item 5.01 hereof.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information, as of May 31, 2009 prior to the Transaction, concerning shares of common stock of the Registrant, the only class of its securities that are issued and outstanding, held by (1) each shareholder known by the Registrant to own beneficially more than five percent of the common stock, (2) each director of the Registrant, (3) each executive officer of the Registrant, and (4) all directors and executive officers of the Registrant as a group:
| | Amount of Direct Ownership | | Position | | | |
| | | | | | | | |
| Yury Nesterov | | | 3,000,000 | | President, CEO, Director | | | 35.00 | % |
| | | | | | | | | | |
| Elena Djafarova | | | 1,500,000 | | Secretary, CFO, Treasurer and Director | | | 17.50 | % |
| | | | | | | | | | |
| All Directors/ Officers | | | 4,500,000 | | --------------- | | | 52.50 | % |
(1) Unless otherwise indicated in the footnotes to the table, each shareholder shown on the table has sole voting and investment power with respect to the shares beneficially owned by him or it.
(2) Based on 8,570,000 shares of Common Stock issued and Outstanding.
Directors, Executive Officers, Promoters and Control Persons
Our directors serve until his or her successor is elected and qualified. Each of our officers is elected by the board of directors to a term of one (1) year and serves until his or her successor is duly elected and qualified, or until he or she is removed from office. The board of directors has no nominating, auditing or compensation committees.
The name and position of our officers and directors prior to the consummation of the Transaction are set forth below:
| Name | | Position Held |
| | | |
| Yury Nesterov | | President, CEO |
| Elena Djafarova | | Secretary, CFO, Treasurer, and Director |
Directors serve until our next annual meeting of the stockholders or unless they resign earlier. The board of directors elects officers and their terms of office are at the discretion of the board of directors.
Background of Officers and Directors
Since December 22, 2006, Mr. Nesterov has been our President, Chief Executive Officer, and a director of the Company. In the past he worked as a manager at a shoe manufacturing company in Toronto. In the past five years, Mr. Nesterov held various contract positions with private companies in North America and Russia. Mr. Nesterov is not an officer or director of any other reporting company.
Elena Djafarova holds a position as a merchandiser at Avangard-Moda closthing store in Moscow, Russia. In the past, Ms. Djafarova owned and operated a clothing boutique store in Kishinev, Moldova.
During the past five years, Mr. Nesterov and Ms. Djafarova have not been the subject of the following events:
1. Any bankruptcy petition filed by or against any business of which Yury Nesterov or Elena Djafarova was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time.
2. Any conviction in a criminal proceeding or being subject to a pending criminal proceeding.
3. An order, judgment, or decree, not subsequently reversed, suspended or vacated, or any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting Yury Nesterov or Elena Djafarova’s involvement in any type of business, securities or banking activities.
4. Found by a court of competent jurisdiction (in a civil action), the Securities and Exchange Commission or the Commodity Future Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated.
Executive Compensation
The following table sets forth the compensation paid by us for the last two fiscal years ending November 30, 2008 for our officers and previously resigned officers. This information includes the dollar value of base salaries, bonus awards and number of stock options granted, and certain other compensation, if any. The compensation discussed addresses all compensation awarded to, earned by, or paid or named executive officers.
Executive Officer Compensation Table
| | | | | | | Non- | Nonqualified | | |
| | | | | | | Equity | Deferred | All | |
| Name | | | | | | Incentive | Compensa- | Other | |
| and | | | | Stock | Option | Plan | tion | Compen- | |
| Principal | | Salary | Bonus | Awards | Awards | Compensation | Earnings | sation | Total |
| Position | Year | (US$) | (US$) | (US$) | (US$) | (US$) | (US$) | (US$) | (US$) |
| (a) | (b) | (c) | (d) | (e) | (f) | (g) | (h) | (i) | (j) |
| Yury Nesterov | 2008 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| President, CEO | 2007 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| | 2006 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| | | | | | | | | | |
| Elaina Djafarova | 2008 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| Secretary, CFO, Treasurer | 2007 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| | 2006 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| | | | | | | | | | |
We did not pay any salaries in fiscal year 2009. We do not anticipate paying salaries in the near future.
Compensation of Directors
The sole member of our board of directors is not compensated for his services as sole director. The board has not implemented a plan to award options to any directors. There are no contractual arrangements with any member of the board of directors. We have no director's service contracts.
Director’s Compensation Table
| | Fees | | | | | | |
| | Earned | | | | Nonqualified | | |
| | or | | | Non-Equity | Deferred | | |
| | Paid in | Stock | Option | Incentive Plan | Compensation | All Other | |
| | Cash | Awards | Awards | Compensation | Earnings | Compensation | Total |
| Name | (US$) | (US$) | (US$) | (US$) | (US$) | (US$) | (US$) |
| (a) | (b) | (c) | (d) | (e) | (f) | (g) | (h) |
| Yury Nesterov | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
| Elaina Djafarova | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Option/SAR Grants
There are no stock option, retirement, pension, or profit sharing plans for the benefit of our officers and directors.
Long-Term Incentive Plan Awards
We do not have any long-term incentive plans.
Certain Relationships and Related Transactions
There have not been any transactions, or proposed transactions, during the last two years, to which the Registrant was or is to be a party, in which any director or executive officer of the Registrant, any nominee for election as a director, any security holder owning beneficially more than five percent of the common stock of the Registrant, or any member of the immediate family of the aforementioned persons had or is to have a direct or indirect material interest.
Indemnification
We may indemnify an officer or director who is made a party to any proceeding, including a law suit, because of his position, if he acted in good faith and in a manner he reasonably believed to be in our best interest. We may advance expenses incurred in defending a proceeding. To the extent that the officer or director is successful on the merits in a proceeding as to which he is to be indemnified, we must indemnify him against all expenses incurred, including attorney's fees. With respect to a derivative action, indemnity may be made only for expenses actually and reasonably incurred in defending the proceeding, and if the officer or director is judged liable, only by a court order. The indemnification is intended to be to the fullest extent permitted by the laws of the State of Nevada.
Regarding indemnification for liabilities arising under the Securities Act of 1933, which may be permitted to directors or officers under Nevada law, we are informed that, in the opinion of the Securities and Exchange Commission, indemnification is against public policy, as expressed in the Act and is, therefore, unenforceable.
Item 5.02 Departure of Directors or Certain Officers; Election fo Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Election of Elaina Watley as Officer
On July 31, 2009 Elaina Watley was nominated and elected by the Board of Directors as Registrant’s President to serve until her successors shall be elected and qualified until the earlier of death, resignation or removal in the manner provided for in the Company’s by-laws.
Elaina Watley graduated from FIU with a bachelors degree in international relations. She started her career in finance working at Ameriprise for 4 years until her love for sports pushed her to start her own financial planning business to help newly signed players manage their money. A few years later Ms. Watley moved to California to work for Creative Artists Agency in the entertainment marketing division where she helped to develop campaigns for Gap, Starbucks, Harley Davidson, and more.
Appointment of Aaron West to the Board of Directors
On July 31, 2009, Aaron West was appointed as a member of the Board of Directors of the Company to serve until his successors shall be elected and qualified on the earlier of death, resignation or removal in the manner provided for in the Company’s by-laws.
Aaron West holds a bachelors degree in marketing from Lehigh University. Mr. West has served as business manager for NFL player Dwight Freeney since his signing to the Colts as the highest paid defensive player in 2002. Mr. West assembled and leads a team of financial advisors, agents, and lawyers to handle Dwight's personal and business matters. West has secured real estate acquisitions in Beverly Hills and Miami in addition to business ventures with Starbucks and Rolling Stone.
Neither Ms. Elaina Watley nor Mr. Aaron West have been involved in any of the following proceedings during the past five years:
| | 1. | any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time; |
| | | |
| | 2. | any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); |
| | | |
| | 3. | being subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; or |
| | | |
| | 4. | being found by a court of competent jurisdiction (in a civil action), the SEC or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated. |
There are no employment agreements between the Registrant and Elaina Watley or Aaron West.
Departure of Yury Nesterov as the President, Principal Executive Officer, Chief Executive Officer and Director
Immediately following the closing of the Transaction on July 31, 2009, Yury Nesterov resigned as Registrant’s President, Principal Executive Officer, Chief Executive Officer and Director and Elena Djafarova resigned as Registrant’s Chief Financial Officer, Secretary, Treasurer, Principal Accounting Officer and Director.
Departure of Elena Djafarova as the Chief Financial Officer, Secretary, Treasurer, Principal Accounting Officer and Director
Immediately following the closing of the Transaction on July 31, 2009, Elena Djafarova resigned as Registrant’s Chief Financial Officer, Secretary, Treasurer, Principal Accounting Officer and Director
Change of Principal Place of Business
Effective July 31, 2009, the address of our principal place of business is:
1635 N. Cahuenga, Los Angeles, CA 90028
Telephone number of the new principal place of business: (323) 460-6161
Item 9.01 Financial Statements and Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: August 31, 2009 | | INCOMING, INC. |
| | | |
| | | By: | |
| | | Name: | Elaina Watley |
| | | Title: | President |
