UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT
PURSUANT TO SECTION 14(c) OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2))
[ ] Definitive Information Statement
AVAILENT FINANCIAL, INC.
(Name of Registrant As Specified In Its Charter)
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[X] No Fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
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pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials
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[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
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AVAILENT FINANCIAL, INC.
2720 STEMMONS FREEWAY
SOUTH TOWER, SUITE 600
DALLAS, TEXAS 75207
DECEMBER ___, 2002
To Our Stockholders:
The enclosed Information Statement is provided on or about December
___, 2002 to the stockholders of record as of 5:00 P.M., Delaware time, on
December 5, 2002 (the "RECORD DATE") of Availent Financial, Inc., a Delaware
corporation (the "CORPORATION"), by the board of directors of the Corporation
(the "BOARD OF DIRECTORS") in connection with the authorization and approval of
corporate action by the holders of a majority of the issued and outstanding
shares of common stock, par value $0.01 per share, of the Corporation ("COMMON
STOCK") as of the Record Date without a meeting by less than unanimous written
consent regarding an amendment (the "REVERSE STOCK SPLIT AMENDMENT") to the
Amended Certificate of Incorporation of the Corporation, as amended on December
4, 2002 (the "CERTIFICATE OF INCORPORATION"), to effect a one-for-ten reverse
stock split of the issued and outstanding shares of Common Stock as contemplated
by the enclosed Information Statement.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
On December 4, 2002, the Board of Directors unanimously approved,
subject to the approval of the stockholders of the Corporation, the Reverse
Stock Split Amendment. On December 4, 2002, the holders of approximately
33,699,030 shares (or 55.9%) of the issued and outstanding shares of Common
Stock entitled to vote on or consent to the Reverse Stock Split Amendment as of
the Record Date authorized, approved, and adopted the Reverse Stock Split
Amendment by written consent of the stockholders of the Corporation pursuant to
and in accordance with Section 228 of the General Corporation Law of the State
of Delaware (the "DGCL").
Because the written consent of the stockholders of the Corporation
satisfies the stockholder voting and approval requirements under the DGCL, the
Certificate of Incorporation, and the bylaws of the Corporation with respect to
the Reverse Stock Split Amendment and allows the Corporation to take corporate
action to effect the Reverse Stock Split Amendment, the Corporation is not
asking any stockholders of the Corporation for a proxy and stockholders of the
Corporation are requested not to send the Corporation a proxy. However, under
federal law, the Corporation may not take corporate action to effect the Reverse
Stock Split Amendment until at least twenty (20) calendar days after the
enclosed Information Statement has been sent or given to the stockholders of the
Corporation entitled to vote on or consent to the Reverse Stock Split Amendment
as of the Record Date. The Corporation expects to send or give the enclosed
Information Statement to the stockholders of the Corporation entitled to vote on
or consent to the Reverse Stock Split Amendment as of the Record Date on or
about December ___, 2002 and expects to take corporate action to effect the
Reverse Stock Split Amendment by filing the Reverse Stock Split Amendment with
the Secretary of State of the State of Delaware on or about January ___, 2003.
THIS IS NOT A NOTICE OF A MEETING OF THE STOCKHOLDERS OF THE
CORPORATION AND NO MEETING OF THE STOCKHOLDERS OF THE CORPORATION SHALL BE HELD
IN CONNECTION WITH THE REVERSE STOCK SPLIT AMENDMENT. THE CORPORATION DOES NOT
INTEND TO SOLICIT ANY PROXIES OR CONSENTS FROM ANY STOCKHOLDERS OF THE
CORPORATION IN CONNECTION WITH THE REVERSE STOCK
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SPLIT AMENDMENT. THE CORPORATION IS NOT REQUESTING ANY ACTION ON THE PART OF ANY
STOCKHOLDERS OF THE CORPORATION.
The enclosed Information Statement is provided to the stockholders of
the Corporation only for information purposes in connection with the Reverse
Stock Split Amendment pursuant to and in accordance with Rule 14c-2 of the
Securities Exchange Act of 1934, as amended, and to serve as written notice to
the stockholders of the Corporation of the taking of corporate action without a
meeting by less than unanimous written consent pursuant to and in accordance
with Section 228 of the DGCL. Please read the enclosed Information Statement
carefully.
By Order of the Board of Directors,
/s/ Patrick A. McGeeney
-------------------------------------
Patrick A. McGeeney
President
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AVAILENT FINANCIAL, INC.
2720 STEMMONS FREEWAY
SOUTH TOWER, SUITE 600
DALLAS, TEXAS 75207
INFORMATION STATEMENT
DECEMBER ___, 2002
This Information Statement is provided on or about December ___, 2002
to the stockholders of record as of 5:00 P.M., Delaware time, on December 5,
2002 (the "RECORD DATE") of Availent Financial, Inc., a Delaware corporation
(the "CORPORATION"), by the board of directors of the Corporation (the "BOARD OF
DIRECTORS") in connection with the authorization and approval of corporate
action by the holders of a majority of the issued and outstanding shares of
common stock, par value $0.01 per share, of the Corporation ("COMMON STOCK") as
of the Record Date without a meeting by less than unanimous written consent
regarding an amendment (the "REVERSE STOCK SPLIT AMENDMENT") to the Amended
Certificate of Incorporation of the Corporation, as amended on December 4, 2002
(the "CERTIFICATE OF INCORPORATION"), in substantially the form attached as
Exhibit A hereto, to effect a one-for-ten reverse stock split of the issued and
outstanding shares of Common Stock as contemplated by this Information
Statement; provided, however, that the text of the form of Reverse Stock Split
Amendment attached hereto is subject to modification, including, without
limitation, such changes as may be required by the office of the Secretary of
State of the State of Delaware and as the Board of Directors deems necessary
and/or advisable in order to effect the Reverse Stock Split Amendment,
including, without limitation, changes to the Effective Time (as defined below).
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
On December 4, 2002, the Board of Directors unanimously approved,
subject to the approval of the stockholders of the Corporation, the Reverse
Stock Split Amendment. On December 4, 2002, the holders of approximately
33,699,030 shares (or 55.9%) of the issued and outstanding shares of Common
Stock entitled to vote on or consent to the Reverse Stock Split Amendment as of
the Record Date authorized, approved, and adopted the Reverse Stock Split
Amendment by written consent of the stockholders of the Corporation pursuant to
and in accordance with Section 228 of the General Corporation Law of the State
of Delaware (the "DGCL").
Because the written consent of the stockholders of the Corporation
satisfies the stockholder voting and approval requirements under the DGCL, the
Certificate of Incorporation, and the bylaws of the Corporation with respect to
the Reverse Stock Split Amendment and allows the Corporation to take corporate
action to effect the Reverse Stock Split Amendment, the Corporation is not
asking any stockholders of the Corporation for a proxy and stockholders of the
Corporation are requested not to send the Corporation a proxy. However, under
federal law, the Corporation may not take corporate action to effect the Reverse
Stock Split Amendment until at least twenty (20) calendar days after this
Information Statement has been sent or given to the stockholders of the
Corporation entitled to vote on or consent to the Reverse Stock Split Amendment
as of the Record Date. The Corporation expects to send or give this Information
Statement to the stockholders of the Corporation entitled to vote on or consent
to the Reverse Stock Split Amendment as of the Record Date on or about December
___, 2002 and expects to take corporate action to effect the Reverse Stock Split
Amendment by filing the Reverse Stock Split Amendment with the Secretary of
State of the State of Delaware on or about January ___, 2003. For purposes of
this Information Statement, the term "EFFECTIVE TIME" shall mean 5:00 P.M.,
Delaware time,
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on the date that the Reverse Stock Split Amendment is filed with the Secretary
of State of the State of Delaware.
THIS IS NOT A NOTICE OF A MEETING OF THE STOCKHOLDERS OF THE
CORPORATION AND NO MEETING OF THE STOCKHOLDERS OF THE CORPORATION SHALL BE HELD
IN CONNECTION WITH THE REVERSE STOCK SPLIT AMENDMENT. THE CORPORATION DOES NOT
INTEND TO SOLICIT ANY PROXIES OR CONSENTS FROM ANY STOCKHOLDERS OF THE
CORPORATION IN CONNECTION WITH THE REVERSE STOCK SPLIT AMENDMENT. THE
CORPORATION IS NOT REQUESTING ANY ACTION ON THE PART OF ANY STOCKHOLDERS OF THE
CORPORATION.
This Information Statement is provided to the stockholders of the
Corporation only for information purposes in connection with the Reverse Stock
Split Amendment pursuant to and in accordance with Rule 14c-2 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and to serve as written
notice to the stockholders of the Corporation of the taking of corporate action
without a meeting by less than unanimous written consent pursuant to and in
accordance with Section 228 of the DGCL. Please read this Information Statement
carefully.
REVERSE STOCK SPLIT AMENDMENT
GENERAL
At the Effective Time, pursuant to the Reverse Stock Split Amendment,
and subject to any adjustment(s) to such number(s) that may result in connection
with the fractional share adjustment provisions contemplated by this Information
Statement, (i) every ten (10) shares of Common Stock (including, without
limitation, shares of Common Stock held by the Corporation as treasury shares)
issued and outstanding immediately prior to the Effective Time ("PRE-EFFECTIVE
STOCK") shall be deemed for all purposes to represent one (1) share of Common
Stock ("POST-EFFECTIVE STOCK"), (ii) each holder of any shares of Pre-Effective
Stock shall be deemed for all purposes to be the holder of a number shares of
Post-Effective Stock approximately equal to the number of shares of
Pre-Effective Stock held by such holder divided by ten (10), and (iii) each
stock certificate representing and evidencing ownership of any shares of
Pre-Effective Stock shall be deemed for all purposes to represent and evidence
ownership of a number of shares of Post-Effective Stock approximately equal to
the number of shares of Pre-Effective Stock represented and evidenced by such
stock certificate divided by ten (10).
At the Effective Time, pursuant to the Reverse Stock Split Amendment,
and subject to any adjustment(s) to such number(s) that may result in connection
with the fractional share adjustment provisions contemplated by this Information
Statement, (i) each issued, outstanding, and unexercised security, option,
warrant, right, call, commitment, plan, contract, or other agreement of any
character granted or issued by the Corporation which provide(s) for the
purchase, sale, issuance, or transfer of any shares of the Common Stock, shall
be automatically converted into an economically equivalent security, option,
warrant, right, call, commitment, plan, contract, or other agreement by dividing
the number of shares of Common Stock underlying such security, option, warrant,
right, call, commitment, plan, contract, or other agreement by ten (10) and
multiplying the per share exercise price of such security, option, warrant,
right, call, commitment, plan, contract, or other agreement by ten (10), (ii)
each issued and outstanding security granted or issued by the Corporation that
is convertible into or exchangeable for any shares of Common Stock, if any,
shall be automatically converted into an economically equivalent security by
dividing the number of convertible or exchangeable shares of Common Stock
underlying such security by ten (10) and multiplying the conversion or exchange
price of such security by ten (10).
PURPOSE OF THE REVERSE STOCK SPLIT AMENDMENT
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The purpose of the Reverse Stock Split Amendment is to decrease the
public float of shares of Common Stock and increase the fair market value per
share of Common Stock in connection with the efforts of the Corporation to list
and trade the Common Stock on a national securities exchange or a quotation
system. The Board of Directors believes that the current number of outstanding
shares of Common Stock is undesirable and that the current fair market value per
share of Common Stock has reduced the effective marketability of the shares of
Common Stock because institutional investors and investment funds are generally
reluctant to invest in lower priced stocks and many brokerage firms are
generally reluctant to recommend lower priced stocks to their clients.
The Board of Directors believes that the fair market value per share of
Common Stock may not appeal to brokerage firms that are generally reluctant to
recommend lower priced securities to their clients. Investors may also be
dissuaded from purchasing lower priced stocks because the brokerage commissions,
as a percentage of the total transaction, tend to be higher for such stocks.
Moreover, the analysts at many brokerage firms do not monitor the trading
activity or otherwise provide research coverage of lower priced stocks. In
addition, a variety of brokerage house policies and practices tend to discourage
individual brokers within those firms from dealing in low priced stocks. Some of
those policies and practices pertain to the payment of broker commissions and to
time consuming procedures that function to make the handling of low priced
stocks unattractive to brokers from an economic standpoint.
In addition, the Board of Directors has concluded that reducing the
current number of outstanding shares of Common Stock may support a higher fair
market value per share of Common Stock based on the current market
capitalization of the Corporation. In order to reduce the current number of
outstanding shares of Common Stock and thereby attempt to raise the fair market
value per share of Common Stock, the Board of Directors unanimously approved,
subject to the approval of the stockholders of the Corporation, the Reverse
Stock Split Amendment. The Board of Directors believes that a decrease in the
current number of outstanding shares of Common Stock as a consequence of the
Reverse Stock Split Amendment should increase the fair market value per share of
Common Stock, which may encourage greater interest in shares of Common Stock and
possibly promote greater liquidity for the stockholders of the Corporation. The
Board of Directors believes that the fair market value per share of the Common
Stock is currently at a level that may cause potential investors to view an
investment in the Corporation as unduly speculative and that the fair market
value per share of Common Stock is currently lower than it would be if the
number of issued and outstanding shares of Common Stock were decreased. Although
the increase in the fair market value per share of Common Stock as a consequence
of the Reverse Stock Split Amendment may be proportionately less than the
decrease in the number of shares outstanding and any increased liquidity due to
any increased per share price could be partially or entirely offset by the
reduced number of shares outstanding after the Effective Date, the Board of
Directors believes that the Reverse Stock Split Amendment could result in a per
share price that adequately compensates for the adverse impact of the market
factors noted above and that any increase in the fair market value per share of
the Common Stock may make the shares of Common Stock more attractive to
potential investors if the potential investors associate a higher stock price
with greater stability.
Although the Corporation intends to apply to list the Common
Stock on the Over the Counter Bulletin Board, there can be no assurance that any
application of the Corporation will be granted and there can be no assurance
that an active market will develop for the Common Stock. There has been no
trading market for shares of Common Stock and there is no assurance that one
will develop following the Reverse Stock Split Amendment nor is there any
assurance that a trading market will ever exist.
CERTAIN RISKS ASSOCIATED WITH THE REVERSE STOCK SPLIT
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THERE CAN BE NO ASSURANCE THAT THE FAIR MARKET VALUE PER SHARE OF
COMMON STOCK AFTER THE REVERSE STOCK SPLIT AMENDMENT WILL INCREASE AND/OR REMAIN
HIGHER THAN THE CURRENT FAIR MARKET VALUE PER SHARE OF COMMON STOCK AT ANY TIME
OR FOR ANY PERIOD OF TIME AFTER THE REVERSE STOCK SPLIT AMENDMENT OR THAT THE
TOTAL MARKET CAPITALIZATION OF THE CORPORATION AFTER THE REVERSE STOCK SPLIT
AMENDMENT WILL BE EQUAL TO OR GREATER THAN THE TOTAL MARKET CAPITALIZATION
BEFORE THE REVERSE STOCK SPLIT AMENDMENT.
There can be no assurance that the fair market value per share of
Common Stock after the Reverse Stock Split Amendment will be ten (10) times
higher than the fair market value per share of Common Stock immediately prior to
the Reverse Stock Split Amendment, increase at all, or remain constant in
proportion to the reduction in the number of outstanding shares of Common Stock
immediately prior to the Reverse Stock Split Amendment or any increase in the
fair market per share of Common Stock after the Reverse Stock Split Amendment
Stock at any time or for any period of time after the Reverse Stock Split
Amendment. Accordingly, the total market capitalization of the Corporation after
the Reverse Stock Split Amendment could be lower than the total market
capitalization of the Corporation before the Reverse Stock Split Amendment and,
in the future, the fair market value per share of Common Stock after the Reverse
Stock Split Amendment may not exceed and/or remain higher than the current fair
market value per share of Common Stock immediately prior to the Reverse Stock
Split Amendment. In many cases, the total market capitalization of a company
immediately after a reverse stock split is lower than the total market
capitalization immediately prior to the reverse stock split.
THERE CAN BE NO ASSURANCE THAT THE REVERSE STOCK SPLIT AMENDMENT WILL
RESULT IN A FAIR MARKET VALUE PER SHARE OF COMMON STOCK THAT WILL ATTRACT
INSTITUTIONAL INVESTORS, INVESTMENT FUNDS, OR BROKERS.
Although the Board of Directors believes that a higher stock price may
help generate investor interest, there can be no assurance that the Reverse
Stock Split Amendment will result in a fair market value per share of Common
Stock that will attract institutional investors, investment funds, or brokers.
A DECLINE IN THE FAIR MARKET VALUE PER SHARE OF COMMON STOCK AFTER THE
REVERSE STOCK SPLIT AMENDMENT MAY RESULT IN A GREATER PERCENTAGE DECLINE THAN
WOULD OCCUR IN THE ABSENCE OF A REVERSE STOCK SPLIT, AND THE LIQUIDITY OF THE
COMMON STOCK COULD BE ADVERSELY AFFECTED FOLLOWING A REVERSE STOCK SPLIT.
The fair market value per share of Common Stock is based on the
performance of the Corporation and certain other factors that are not related to
the number of outstanding shares of Common Stock. If the Reverse Stock Split
Amendment is effected and the fair market value per share of Common Stock
declines for any reason or no reason, the percentage decline as an absolute
number and as a percentage of the overall market capitalization of the
Corporation may be greater than would occur in the absence of a reverse stock
split. In many cases, both the total market capitalization of a company and the
market price per share of the common stock of such company following a reverse
stock split are lower than they were before the reverse stock split.
Furthermore, the liquidity of the shares of Common Stock could be adversely
affected by the reduced number of shares that would be outstanding after the
Reverse Stock Split Amendment.
THERE CAN BE NO ASSURANCE THAT THE PURPOSE OR DESIRED OR FAVORABLE
EFFECTS OF THE REVERSE STOCK SPLIT AMENDMENT, AS CONTEMPLATED BY THIS
INFORMATION STATEMENT OR OTHERWISE, WILL OCCUR AT ALL OR THAT ANY DESIRED OR
FAVORABLE EFFECT THAT OCCURS AS A RESULT OF THE REVERSE STOCK SPLIT AMENDMENT
WILL BE SUSTAINED FOR ANY PERIOD OF TIME AFTER THE REVERSE STOCK SPLIT
AMENDMENT.
Although the Board of Directors believes that the Reverse Stock Split
Amendment is advisable and in the best interests of the Corporation and the
stockholders of the Corporation, there can be no
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assurance that the purpose or desired or favorable effects of the Reverse Stock
Split Amendment, as contemplated by this Information Statement or otherwise,
will occur at all or that any desired or favorable effect that occurs as a
result of the Reverse Stock Split Amendment will be sustained for any period of
time after the Reverse Stock Split Amendment.
THERE IS NO MARKET FOR THE SHARES OF COMMON STOCK AND YOU MAY NOT BE
ABLE TO SELL THEM.
There has been no trading market for shares of Common Stock and there
is no assurance that one will develop following the Reverse Stock Split
Amendment nor is there any assurance that a trading market will ever exist.
Because the Corporation does not meet the qualifications for the New York Stock
Exchange, NASDAQ, or the other national exchanges or quotation systems, the
Corporation intends to apply for listing of the Common Stock on the Over the
Counter Bulletin Board. Although the Corporation intends to apply to list the
Common Stock on the Over the Counter Bulletin Board, there can be no assurance
that any application of the Corporation will be granted and there can be no
assurance that an active market will develop for the Common Stock.
The Corporation must obtain a market maker in order to be listed on the
Over the Counter Bulletin Board and there can be no assurance that any broker
will be interested in listing or trading the Common Stock. Accordingly, it may
be difficult to sell shares of the Common Stock even after the Reverse Stock
Split Amendment and after the Common Stock is listed on the Over the Counter
Bulletin Board, if ever. Even if the Corporation is successful in being listed
on the Over the Counter Bulletin Board, the market price of the Common Stock may
fluctuate significantly due to a number of factors, some of which may be beyond
the control of the Corporation, including, without limitation, the following
factors:
- the absence of securities analysts covering the Corporation
and distributing research and recommendations about the
Corporation;
- the liquidity of the Common Stock will be low because very few
shares of Common Stock will be held by non-affiliates of the
Corporation or otherwise non-restricted and such shares will
not be eligible for sale under exemptions from registration
under the Securities Act of 1933, amended;
- the operating results and stock price performance of other
comparable companies;
- low trading volume because so many shares of Common Stock are
closely held; and
- overall stock market fluctuations; and other economic
conditions generally.
PRINCIPAL EFFECTS OF THE REVERSE STOCK SPLIT
General. The Reverse Stock Split Amendment shall be effected
simultaneously for all shares of Common Stock and the one-for-ten reverse stock
split ratio shall be the same for all shares of Common Stock. The Reverse Stock
Split Amendment shall affect all of the stockholders of the Corporation
uniformly and shall not affect the percentage ownership interest, proportional
voting power, voting rights, or other preferences or privileges of any
stockholder of the Corporation, except for any adjustment to such percentage
ownership interest, proportional voting power, voting rights, or other
preferences or privileges that may result in connection with the fractional
share adjustment provisions contemplated by this Information Statement. Shares
of Common Stock issued pursuant to the reverse stock split shall remain fully
paid and nonassessable. The Corporation shall continue to be subject to the
periodic reporting requirements of the Exchange Act.
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Fractional Shares. No scrip or fractional shares of Common Stock shall
be issued to the stockholders of the Corporation in connection with the Reverse
Stock Split Amendment. Each holder of shares of Pre-Effective Stock otherwise
entitled to a fractional share of Common Stock shall be entitled, upon surrender
of the stock certificate(s) representing the Pre-Effective Stock, to receive a
cash payment (without interest) in lieu of such fractional share of Common Stock
in an amount approximately equal to (i) such fractional share of Common Stock
multiplied by the average of the high and low trading prices of the Common Stock
as reported on the Over the Counter Bulletin Board for the five (5) trading days
immediately prior to the Effective Time if shares of Common Stock have traded on
the Over the Counter Bulletin Board during regular trading hours on each of the
five (5) business days immediately prior to the Effective Time, (ii) such
fractional share of Common Stock multiplied by the average of the high and low
trading prices of the Common Stock as reported on the Over the Counter Bulletin
Board for the first five (5) consecutive trading days on which the shares of
Common Stock have traded if shares of Common Stock have not traded on the Over
the Counter Bulletin Board during regular trading hours on each of the five (5)
business days immediately prior to the Effective Time, but have traded on the
Over the Counter Bulletin Board during regular trading hours on each of any five
(5) consecutive business days at any time prior to the tenth (10th) business day
after the Effective Time, or (iii) such fractional share of Common Stock
multiplied by the fair market value per share of Common Stock as determined by
the Board of Directors in good faith if shares of Common Stock have not traded
on the Over the Counter Bulletin Board during regular trading hours on each of
the five (5) business days immediately prior to the Effective Time or during
regular trading hours on each of any five (5) consecutive business days at any
time prior to tenth (10th) business day after the Effective Time.
The ownership of a fractional share of Common Stock shall not give the
holder thereof any voting, dividend, or other rights except to receive a cash
payment as contemplated by this Information Statement. The cash payments
contemplated by this Information Statement may reduce the number of stockholders
of the Corporation to the extent that there are stockholders holding fewer than
up to ten (10) shares of Common Stock immediately prior the Effective Time;
provided, however, that this is not the purpose for which the Corporation is
effecting the Reverse Stock Split Amendment.
Stockholders should be aware that, under the escheat laws of the
various jurisdictions where stockholders may reside, where the Corporation is
domiciled and where the funds will be deposited, sums due for fractional
interests that are not timely claimed after the effective time may be required
to be paid to the designated agent for each such jurisdiction. Thereafter,
stockholders otherwise entitled to receive such funds may have to seek to obtain
them directly from the state to which they were paid.
Authorized Shares. Although the Reverse Stock Split Amendment shall
affect the number of issued and outstanding shares of Common Stock in accordance
with and as contemplated by this Information Statement, the Reverse Stock Split
Amendment shall not affect the powers, designations, preferences, or rights of
the shares of Common Stock or preferred stock, par value $0.01 per share, of the
Corporation ("PREFERRED STOCK"). Accordingly, at the Effective Time, the number
of authorized shares of Common Stock that are not issued or outstanding shall
increase due to the reduction in the number of outstanding shares of Common
Stock as contemplated by the Reverse Stock Split Amendment. Authorized but
unissued shares of Common Stock shall be available for issuance, and the
Corporation may issue such shares in financings or otherwise. If the Corporation
issues additional shares of Common Stock, the ownership interests of holders of
shares of Common Stock may also be diluted. Also, the shares of Common Stock
issued by the Corporation may have rights, preferences, or privileges senior to
those of the shares of Common Stock.
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If the Reverse Stock Split Amendment were to be effected on December
___, 2002, the Reverse Stock Split Amendment would reduce the outstanding shares
of Common Stock approximately as indicated in the table below.
- ------------------------- ---------------------------------------------- ---------------------------------------------
PRE-EFFECTIVE TIME POST-EFFECTIVE TIME
- ------------------------- ---------------------------------------------- ---------------------------------------------
CLASS OF CAPITAL STOCK AUTHORIZED OUTSTANDING AUTHORIZED OUTSTANDING
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock 100,000,000 88,591,684 100,000,000 8,859,168
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Preferred Stock 10,000,000 0 10,000,000 0
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Accounting Matters. The Reverse Stock Split Amendment shall not affect
the number of authorized shares of Common Stock or Preferred Stock, the par
value per share of the Common Stock or Preferred Stock. The change in the number
of outstanding shares of Common Stock due to the Reverse Stock Split Amendment
shall, however, result in accounting adjustments to the balance sheet and
financial statements of the Corporation. Accordingly, at the Effective Time, the
balance sheet of the Corporation shall be adjusted by decreasing the stated
capital on the balance sheet of the Corporation attributable to the outstanding
shares of Common Stock in proportion to the Reverse Stock Split Amendment and
increasing the additional paid-in capital account by the amount by which the
stated capital is decreased and the financial statements of the Corporation
shall be adjusted by restating the per share net income (or loss) and net book
value of the shares of Common Stock because of the decrease in the number of
outstanding shares of Common Stock.
Potential Anti-Takeover Effect. Although the increased proportion of
unissued authorized shares of Common Stock to issued shares of Common Stock
could, under certain circumstances, have an anti-takeover effect (for example,
by permitting issuances that would dilute the stock ownership of a person
seeking to effect a change in the composition of the Board of Directors or
contemplating a tender offer or other transaction for the combination of the
Corporation with another company), the Reverse Stock Split Amendment is not
being effected in response to any effort of which the Corporation is aware to
accumulate shares of Common Stock or obtain control of the Corporation, nor is
it part of a plan by management of the Corporation to recommend a series of
similar amendments to the Board of Directors and stockholders of the
Corporation. Other than the Reverse Stock Split Amendment, the Board of
Directors does not currently contemplate recommending the adoption of any other
amendments to the Certificate of Incorporation that could be construed to affect
the ability of third parties to take over or change the control of the
Corporation.
Odd-Lots. The Reverse Stock Split Amendment may result in the ownership
by certain stockholders of "odd lots" of less than 100 shares of Common Stock.
Brokerage commissions and other costs of transactions in odd lots are generally
somewhat higher than the costs of transactions in "round lots" of even multiples
of 100 shares of Common Stock.
PROCEDURE FOR EFFECTING THE REVERSE STOCK SPLIT AMENDMENT AND EXCHANGE OF STOCK
CERTIFICATES
The Corporation expects to take corporate action to effect the Reverse
Stock Split Amendment by filing the Reverse Stock Split Amendment with the
Secretary of State of the State of Delaware on or about January ___, 2003. At
the Effective Time, each stock certificate representing and evidencing ownership
of any issued and outstanding shares of Pre-Effective Stock shall be deemed for
all purposes to represent and evidence ownership of a number of issued and
outstanding shares of Post-Effective Stock.
IT SHALL NOT BE NECESSARY FOR STOCKHOLDERS OF THE CORPORATION TO
EXCHANGE STOCK CERTIFICATES REPRESENTING SHARES OF PRE-EFFECTIVE STOCK.
STOCKHOLDERS OF THE CORPORATION SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND
SHOULD NOT SUBMIT ANY STOCK CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
11
Stock certificates representing shares of Pre-Effective Stock shall not
have to be surrendered in exchange for new stock certificates representing
shares of Pre-Effective Stock in connection with the Reverse Stock Split
Amendment and, except as otherwise requested by stockholders of the Corporation,
new stock certificates reflecting the Reverse Stock Split Amendment shall be
issued only as necessary and as currently outstanding shares of Common Stock are
transferred. Any and all shares of Common Stock submitted for transfer, whether
pursuant to a sale, other disposition, or otherwise, shall automatically be
exchanged for shares of Post-Effective Stock.
As soon as practicable after the Effective Time, the stockholders of
the Corporation shall be notified of the Effective Time and encouraged, and
instructed as to how and when, to surrender stock certificates representing
shares of Pre-Effective Stock in exchange for stock certificates representing
shares of Post-Effective Stock. No stock certificates representing shares of
Post-Effective Stock shall be issued to any stockholder of the Corporation until
such stockholder has surrendered the outstanding stock certificate(s) held by
such stockholder, together with the properly completed and executed letter of
transmittal, to the exchange agent. The Corporation intends to use Signature
Stock Transfer, Inc. as the exchange agent in connection with the exchange of
stock certificates pursuant to the Reverse Stock Split Amendment and will obtain
a new CUSIP number for the shares of Common Stock.
RIGHTS OF DISSENTING STOCKHOLDERS
The stockholders of the Corporation are not entitled to any rights of
appraisal or similar rights under Delaware law with respect to the matters to be
acted upon and contemplated by this Information Statement, including, without
limitation, the Reverse Stock Split Amendment.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT AMENDMENT
The following discussion summarizing certain federal income tax
consequences and is based on the Internal Revenue Code of 1986, as amended (the
"CODE"), the applicable Treasury Regulations promulgated thereunder, judicial
authority, and current administrative rulings and practices in effect on the
date of this Information Statement. This discussion is for general information
only and does not discuss the specific tax consequences which may apply to
special classes of taxpayers. As a result, stockholders of the Corporation are
urged to consult their own tax advisors to determine the particular tax
consequences to them.
The Board of Directors believes that the Reverse Stock Split Amendment
will not be a taxable transaction to the Corporation because the transaction
qualifies as a recapitalization under the Code. With regard to the holders of
Post-Effective Stock, the Board of Directors also believes that such holders
will not recognize gain or loss as a result of the Reverse Stock Split
Amendment. In the aggregate, each stockholder's basis in the Post-Effective
Stock will equal the stockholder's basis in the Pre-Effective Stock.
Furthermore, a stockholder's holding period for shares of Post-Effective Stock
will be the same as the holding period of the shares of Pre-Effective Stock
exchanged therefor.
With regard to holders of fractional shares of Common Stock as a result
of the Reverse Stock Split Amendment, cash received by such stockholder in lieu
of a fractional share interest may be treated as having been received in
exchange for such fractional share interest, and gain or loss will generally be
recognized for U.S. federal income tax purposes. This gain or loss will be
measured by the difference between the amount of cash received and the portion
of such stockholder's tax basis allocable to such fractional share interest.
Such gain or loss may be treated as capital gain or loss if the cash received is
not essentially equivalent to a dividend. For taxpayers who are individuals, if
their fractional share interest
12
has a holding period of more than one year for U.S. federal income tax purposes,
such capital gain or loss will be long-term capital gain or loss.
Under the Code, if you receive cash in lieu of a fractional share
interest, you may be subject, under certain circumstances, to backup withholding
at a 30% rate with respect to such cash unless you provide proof of an
applicable exemption or a correct taxpayer identification number, and otherwise
comply with applicable requirements of the backup withholding rules. Any amounts
withheld under the backup withholding rules are not an additional tax and may be
refunded or credited against your U.S. federal income tax liability, provided
you furnish the required information to the Internal Revenue Service.
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The Corporation is authorized to issue up to 100,000,000 shares of
Common Stock. All issued and outstanding shares of Common Stock are fully paid
and nonassessable. Each issued and outstanding share of Common Stock is entitled
to participate equally in dividends as and when declared by the Board of
Directors and any distribution of net assets made to the stockholders of the
Corporation upon the liquidation of the Corporation. There are no redemption,
sinking fund, conversion, or preemptive rights with respect to any issued and
outstanding shares of Common Stock. All shares of Common Stock have equal rights
and preferences. Each holder of any shares of Common Stock is entitled to one
(1) vote per share for each share of Common Stock held of record by such holder
on any and all matters voted upon or consented to by the stockholders of the
Corporation and may not cumulate votes in connection with the election of
directors of the Corporation.
PREFERRED STOCK
The Corporation is authorized to issue up to 10,000,000 shares of
Preferred Stock. No shares of Preferred Stock of the Corporation have been
issued. The Board of Directors is authorized, without any further action by or
approval of the stockholders of the Corporation, to issue up to 10,000,000
shares of Preferred Stock in one (1) or more series and to fix the voting
rights, designations, powers, preferences and the relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred Stock, and to
fix the number of shares constituting such series, and to increase or decrease
the number of shares of any such series; provided, however, that the Board of
Directors may not decrease the number of shares of any such series below the
number of shares thereof then outstanding. The issuance of Preferred Stock could
materially adversely affect the voting power of the holders of shares of Common
Stock and could have the effect of delaying or preventing a change of control of
the Corporation. The Corporation has no present plan or intention to issue any
shares of Preferred Stock.
BENEFICIAL OWNERSHIP OF CAPITAL STOCK
COMMON STOCK
The following table sets forth information regarding the approximate
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of shares
of Common Stock, as of December 5, 2002, of the directors and officers of the
Corporation, the directors and executive officers of the Corporation as a group,
and each holder of shares of Common Stock known by the Corporation to
beneficially own five percent (5%) or more of the issued and outstanding shares
of Common Stock. The following table also sets forth information regarding the
beneficial ownership of shares of Common Stock, as adjusted to
13
reflect the Reverse Stock Split Amendment as if the Reverse Stock Split
Amendment was effective on December 5, 2002.
The Corporation has relied, in connection with the preparation of the
following table and the calculation of beneficial ownership, upon information
furnished by each director, executive officer, and 5% or more stockholder of the
Corporation included in the following table, with respect to the beneficial
ownership of such director, executive officer, and 5% or more stockholder of the
Corporation. Unless otherwise indicated, the mailing address for each director,
executive officer, or stockholder of the Corporation included in the following
table is c/o Availent Financial, Inc., 2720 Stemmons Freeway, South Tower, Suite
600, Dallas, Texas 75207.
Beneficial ownership in the following table has been calculated based
on the number of issued and outstanding shares as of December 5, 2002 (excluding
shares of Common Stock held by or for the account of the Corporation or its
subsidiaries plus securities deemed to be outstanding pursuant to Rule
13d-3(d)(1) under the Exchange Act) and determined in accordance with the rules
of the Securities and Exchange Commission, which generally attribute beneficial
ownership of securities to persons who possess sole or shared voting power or
investment power with respect to those securities and includes, without
limitation, shares of common stock issuable pursuant to the exercise of options
or warrants that are immediately exercisable or exercisable within sixty (60)
days of the date of determination of beneficial ownership. Such shares of common
stock are deemed to be outstanding and to be beneficially owned by the person
holding those options or warrants for the purpose of computing the percentage
ownership of that person, but are not treated as outstanding for the purpose of
computing the percentage ownership of any other person. Unless otherwise
indicated, the persons included in the following table have sole voting and
investment power with respect to all shares of Common Stock shown as
beneficially owned by them, subject to applicable community property laws.
14
- --------------------------------------------------- -------------------------------- -----------------------------
PRE-EFFECTIVE TIME POST-EFFECTIVE TIME
- --------------------------------------------------- -------------------------------- -----------------------------
NUMBER OF SHARES PERCENT NUMBER OF SHARES PERCENT
BENEFICIALLY OWNED OF BENEFICIALLY OF
NAME AND ADDRESS OF BENEFICIAL OWNER: TOTAL OWNED TOTAL
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
DIRECTORS AND EXECUTIVE OFFICERS:
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Patrick A. McGeeney (1) 20,693,852 23.3% 2,069,385 23.3%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Michael L. Banes (2) 16,849,515 19.0% 1,684,951 19.0%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Woody Conradt 0 0.0% 0 0.0%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
All directors and officers as a group
(3 persons).................................. 37,543,367 42.4% 3,754,336 42.4%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
OTHER 5% STOCKHOLDERS:
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Jerry L. Armstrong (3) 7,037,443 7.9% 703,744 7.9%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
C. M. Ball (4)
17846 Tacoma Circle
Villa Park, CA 92681............................. 7,252,500 8.2% 725,250 8.2%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Consolidated American Energy Resources, Inc.
12015 De Or Drive
Dallas, Texas 75230 7,087,335 8.0% 708,733 8.0%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Consolidated American Financial Services Group,
L.C.C.
12015 De Or Drive 7,087,335 8.0% 708,733 8.0%
Dallas, Texas 75230
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
Meadow Holdings Corp.
59 Terapin Street
Mastic, New York 11950 7,087,335 8.0% 708,733 8.0%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
S.O.S. Resource Services
403 East Main Street
Port Jefferson, New York 11777 7,087,335 8.0% 708,733 8.0%
- --------------------------------------------------- ---------------------- --------- ------------------ ----------
- ----------
(1) Includes (a) 3,744,337 (4.2%) and 374,433 (4.2%) shares of
Pre-Effective Stock and Post-Effective Stock, respectively, held by
Michele McGeeney, the spouse of Mr. McGeeney, of which Mr. McGeeney
disclaims beneficial ownership, (b) presently exercisable warrants to
purchase 100,000 (0.1%) and 10,000 (0.1%) shares of Pre-Effective Stock
and Post-Effective Stock, respectively, held by Ms. McGeeney, of which
Mr. McGeeney disclaims beneficial ownership, and (c) 16,849,515 (19.0%)
and 1,684,951 (19.0%) shares of Pre-Effective Stock and Post-Effective
Stock, respectively, held by Mr. McGeeney and pledged by Mr. McGeeney
to Bergstrom Investment Management L.L.C. ("BIM") to secure
indebtedness in the aggregate amount of $280,000 owed by the
Corporation to BIM.
(2) Includes 16,849,515 (19.0%) and 1,684,951 (19.0%) shares of
Pre-Effective Stock and Post-Effective Stock, respectively, held by Mr.
Banes and pledged by Mr. Banes to BIM to secure indebtedness in the
aggregate amount of $280,000 owed by the Corporation to BIM.
(3) Includes presently exercisable warrants to purchase 37,443 (less than
1%) and 3,744 (less than 1%) shares of Pre-Effective Stock and
Post-Effective Stock, respectively, held by Mr. Armstrong.
(4) Includes 252,500 (0.3%) and 25,250 (0.3%) shares of Pre-Effective Stock
and Post-Effective Stock, respectively, held by Mr. Ball and pledged by
Mr. Ball to BIM to secure indebtedness in the aggregate amount of
$500,000 owed by the Corporation to BIM.
PREFERRED STOCK
No shares of Preferred Stock of the Corporation have been issued. The
Corporation has no present plan or intention to issue any shares of Preferred
Stock.
STOCKHOLDER VOTING AND APPROVAL REQUIREMENTS
As of the Record Date, 60,242,344 shares of Common Stock were issued
and outstanding and entitled to vote on or consent to the Reverse Stock Split
Amendment. Each holder of any issued and outstanding shares of Common Stock is
entitled to one (1) vote per issued and outstanding share of
15
Common Stock held. As of the Record Date, the favorable vote or consent of the
holders of a majority, approximately 30,723,595 (or 50.1%), of the issued and
outstanding shares of Common Stock was required to authorize, approve, and adopt
the Reverse Stock Split Amendment. On December 4, 2002, the holders of
approximately 33,699,030 shares (or 55.9%) of the issued and outstanding shares
of Common Stock authorized, approved, and adopted the Reverse Stock Split
Amendment by written consent of the stockholders of the Corporation pursuant to
and in accordance with Section 228 of the DGCL. Accordingly, all stockholder
voting and approval requirements regarding the Reverse Stock Split Amendment
have been satisfied.
DELIVERY OF DOCUMENTS TO STOCKHOLDERS SHARING AN ADDRESS
Certain stockholders who share an address are being delivered only one
copy of this Information Statement unless the Corporation or one of its mailing
agents has received contrary instructions. Upon the written or oral request of a
stockholder at a shared address to which a single copy of the Information
Statement was delivered, the Corporation shall promptly deliver a separate copy
of such documents to such stockholder. Written requests should be made to
Availent Financial, Inc., Attention: Investor Relations, 2720 Stemmons Freeway,
South Tower, Suite 600, Dallas, TX 75207 and oral requests may be made by
calling the Department of Investor Relations of the Corporation at (214)
637-2972. In addition, if such a stockholder wishes to receive a separate copy
of this Information Statement in the future, such stockholder should notify the
Corporation either in writing addressed to the foregoing address or by calling
the foregoing telephone number. Stockholders sharing an address who are
receiving multiple copies of the information and proxy statements of the
Corporation may request delivery of a single copy of the information and proxy
statements of the Corporation by writing to the address above or calling the
telephone number above.
WHERE YOU CAN FIND MORE INFORMATION
The Corporation is subject to the Exchange Act and is required to
file reports, proxy statements, and other information with the Securities and
Exchange Commission regarding the business, financial condition, and other
matters of the Corporation pursuant to and in accordance with the Exchange Act.
You may read and copy the reports, proxy statements, and other information filed
by the Corporation at the public reference facilities maintained by the
Securities and Exchange Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the Securities and Exchange Commission at 1-800-SEC-0330 for
additional information about the public reference facilities. The reports, proxy
statements, and other information filed with the Securities and Exchange
Commission are also available to the public over the internet at
http://www.sec.gov, the internet website of the Securities and Exchange
Commission. The internet website of the Corporation is
http://www.availentfinancial.com. All inquiries regarding the Corporation should
be addressed to the principal executive offices of the Corporation at Availent
Financial, Inc., 2720 Stemmons Freeway, South Tower, Suite 600, Dallas, TX
75207.
INCORPORATION BY REFERENCE
The Securities and Exchange Commission allows the Corporation to
"incorporate by reference" the information filed by the Corporation with the
Securities and Exchange Commission, which means that the Corporation can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
Information Statement, and information that filed later by the Corporation with
the Securities and Exchange Commission will automatically update and supersede
this information. The Corporation incorporates by reference the documents listed
below:
16
The Annual Report on Form 10-K of the Corporation for the fiscal year
ended September 30, 2001 as filed with the Securities and Exchange Commission on
October 3, 2002 is incorporated in its entirety by reference into this
Information Statement.
Amendment No. 1 to the Annual Report on Form 10-K of the Corporation
for the fiscal year ended September 30, 2001 as filed with the Securities and
Exchange Commission on November 14, 2002 is incorporated in its entirety by
reference into this Information Statement.
The financial statements and information in the definitive information
statement on Schedule 14C of the Corporation as filed with the Securities and
Exchange Commission on November 14, 2002 are incorporated in their entirety by
reference into this Information Statement.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Availent Financial, Inc., Attention:
Investor Relations, 2720 Stemmons Freeway, South Tower, Suite 600, Dallas, TX
75207 or (214) 637-2972. Any statement contained in a document that is
incorporated by reference shall be modified or superseded for all purposes to
the extent that a statement contained in this Information Statement (or in any
other document that is subsequently filed with the Securities and Exchange
Commission and incorporated by reference) modifies or is contrary to such
previous statement. Any statement so modified or superseded shall not be deemed
a part of this Information Statement except as so modified or superseded.
This Information Statement is provided to the stockholders of the
Corporation only for information purposes in connection with the Reverse Stock
Split Amendment pursuant to and in accordance with Rule 14c-2 of the Exchange
Act and to serve as written notice to the stockholders of the Corporation of the
taking of corporate action without a meeting by less than unanimous written
consent pursuant to and in accordance with Section 228 of the DGCL. Please read
this Information Statement carefully.
By Order of the Board of Directors,
Dated: December ___, 2002 /s/ Patrick A. McGeeney
-------------------------------------------
Patrick A. McGeeney
President
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
INDEX OF EXHIBITS
Exhibit A - Certificate of Amendment of the Certificate of Incorporation of
the Corporation
18
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF AMENDED CERTIFICATE OF INCORPORATION OF
AVAILENT FINANCIAL, INC.
JANUARY ___, 2003
Availent Financial, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"CORPORATION"), DOES HEREBY CERTIFY:
FIRST: That the board of directors of the Corporation, by the unanimous
written consent of its members, filed with the minutes of the board, adopted a
resolution proposed and declaring advisable the following amendment to the
Amended Certificate of Incorporation of the Corporation, as amended on December
4, 2002 (the "CERTIFICATE OF INCORPORATION"):
RESOLVED, that the Certificate of Incorporation be amended by
changing the Fourth Article thereof so that, as amended, said Article
shall be and read as follows:
"FOURTH: At 5:00 p.m., Delaware time, on the filing date of this
Certificate of Amendment of Amended Certificate of Incorporation (the
"EFFECTIVE TIME"), a one-for-ten reverse stock split of the common
stock, par value $0.01 per share, of the Corporation ("COMMON STOCK")
shall become effective, pursuant to which each ten (10) shares of
common stock outstanding and held of record by each stockholder of the
Corporation (including treasury shares) immediately prior to the
Effective Time (the "OLD COMMON STOCK") shall be reclassified and
combined (the "REVERSE SPLIT") into one share of common stock
automatically and without any action by the holder thereof upon the
Effective Time and shall represent one share of common stock from and
after the Effective Time (the "NEW COMMON STOCK").
No scrip or fractional shares of Common Stock shall be issued to the
stockholders of the Corporation in connection with the Reverse Stock
Split Amendment. Each holder of shares of Pre-Effective Stock otherwise
entitled to a fractional share of Common Stock shall be entitled, upon
surrender of the stock certificate(s) representing the Pre-Effective
Stock, to receive a cash payment (without interest) in lieu of such
fractional share of Common Stock in an amount approximately equal to
(i) such fractional share of Common Stock multiplied by the average of
the high and low trading prices of the Common Stock as reported on the
Over the Counter Bulletin Board for the five (5) trading days
immediately prior to the Effective Time if shares of Common Stock have
traded on the Over the Counter Bulletin Board during regular trading
hours on each of the five (5) business days immediately prior to the
Effective Time, (ii) such fractional share of Common Stock multiplied
by the average of the high and low trading prices of the Common Stock
as reported on the Over the Counter Bulletin Board for the first five
(5) consecutive trading days on which the shares of Common Stock have
traded if shares of Common Stock have not traded on the Over the
Counter Bulletin Board during regular trading hours on each of the five
(5) business days immediately prior to the Effective Time, but have
traded on the Over the Counter Bulletin Board during regular trading
hours on each of any five (5) consecutive business days at any time
prior to the tenth (10th) business day after the Effective Time, or
(iii) such fractional share of Common
19
Stock multiplied by the fair market value per share of Common Stock as
determined by the Board of Directors in good faith if shares of Common
Stock have not traded on the Over the Counter Bulletin Board during
regular trading hours on each of the five (5) business days immediately
prior to the Effective Time or during regular trading hours on each of
any five (5) consecutive business days at any time prior to tenth
(10th) business day after the Effective Time.
The corporation shall be authorized to issue two classes of shares of
stock to be designated, respectively, "Preferred Stock" and "Common
Stock"; the total number of shares of stock which the corporation shall
have authority to issue is One Hundred Ten Million (110,000,000) and
the par value of each of such shares is No and 01/100 ($0.01) Dollars,
amounting in the aggregate to One Million One Hundred Thousand and
no/100 ($1,100,000.00) Dollars; the total number of shares of Preferred
Stock shall be Ten Million (10,000,000); the total number of shares of
Common Stock shall be One Hundred Million (100,000,000).
Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix the
voting rights, designations, powers, preferences and the relative,
participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock; and to fix the number of shares
constituting such series, and to increase or decrease the number of
shares of any such series (but not below the number of shares thereof
then outstanding)."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment has been given as
provided in Section 228 of the General Corporation Law of the State of Delaware
to every stockholder entitled to such notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
FOURTH: That this Certificate of Amendment of the Certificate of
Incorporation shall be effective as of January ___, 2003.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.
20
IN WITNESS WHEREOF, Availent Financial, Inc. has caused this
certificate to be signed by Patrick A. McGeeney, its President, and attested by
Woody Conradt, its Secretary, effective as of this ___ day of January 2003.
By:
---------------------------------
Name: Patrick McGeeney
Title: President
ATTEST:
By:
---------------------------------
Name: Woody Conradt
Title: Secretary