As filed with the Securities and Exchange Commission on February 8, 2005
Registration No. 333-120120
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4- Amendment No. 3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BINGO.COM, LTD.
(Exact name of registrant as specified in its charter)
Anguila, B.W.I.
(State or other jurisdiction of
incorporation or organization)
7900
(Primary Standard Industrial
Classification Code Number)
98-0206369
(I.R.S. Employer
Identification No.)
Spencer House, Box 821
The Valley, Anguilla, British West Indies
Telephone: (264) 497 - 8129
(Address including zip code and telephone number, including area code of registrant's principal executive offices)
Gerald R. Tuskey, Personal Law Corporation
Suite 1000, 409 Granville Street
Vancouver, B.C.
V6C 1T2 Canada
(604) 681-9588
(Name, address, including zip code and telephone number including area code, of agent for service)
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective (but no sooner than 20 business days after such effectiveness) and all other conditions to the merger contemplated by the Agreement and Plan of Merger dated as of October 15, 2004 described in the enclosed Prospectus have been satisfied or waived. No meeting of stockholders will be held with respect to the merger. Corporate action is being taken with the written consent of the majority of stockholders.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [____]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [___]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [___]
CALCULATION OF REGISTRATION FEE
Title of each
Class of
Securities to
Be Registered
Amount to be
Registered (1)
Proposed
Maximum Offering
Price per Share (1)
Proposed
Maximum Aggregate
Offering Price
Amount of
Registration
Fee
Common Stock,
Par value $0.001
24,399,086 shares
$0.13
$3,171,881.18
$401.87
(1) The Registration Statement covers the maximum number of shares of Bingo.com Ltd. common stock that are expected to be issued in connection with the transactions described herein in the proposed merger of Bingo.com, Inc. with and into Bingo.com Ltd.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENTS SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The information in this information statement/prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This information statement/prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.
Subject to completion, dated February 8, 2005.
BINGO.COM, INC.
We are not asking you for a proxy and you are requested not to send us a proxy.
Dear Stockholders:
I am pleased to inform you that after careful consideration, the Boards of Directors of Bingo.com, Inc. ("Bingo Florida") and Bingo Anguilla ("Bingo Anguilla") have approved the merger of Bingo Florida and Bingo Anguilla The merger will be effected pursuant to an agreement and plan of merger, dated as of October 15, 2004, a copy of which is included as Exhibit 2.1 to this information statement/prospectus. The merger agreement has been adopted by the requisite vote of stockholders of Bingo Florida, acting by written consent, as described below. Accordingly, your vote on the merger is not being solicited.
Bingo Florida common stock is traded on the OTC Bulletin Board under the symbol "BIGR." The closing price for Bingo Florida common stock reported on the OTC Bulletin Board on October 15, 2004, was $0.17 per share. If the merger is completed, Bingo Anguilla will be the surviving corporation. The shares of Bingo Anguilla will be quoted on the OTC Bulletin Board in substitution for the shares of Bingo Florida. Given that Bingo Anguilla has minimal assets, has not conducted business and that it will be assuming all of the assets and liabilities of Bingo Florida upon completion of the merger, it is not anticipated that the merger of the two companies will positively or negatively affect the market for Bingo Anguilla's shares. Bingo Anguilla was incorporated in Anguilla, British West Indies on September 30, 2004. To date, it has not conducted any business. It is a wholly owned subsidiary of Bingo Florida and has minimal assets of $2,000 cash. Bingo Anguilla has been incorporated solely for the purpose of merging with Bingo Florida to facilitate Bingo Florida's re-incorporation in Anguilla, British West Indies For a full description of the merger, please see page 16 of the prospectus/information statement.
This information statement/prospectus contains detailed information about the merger and related matters. We encourage you to review this document carefully, including the matters referred to under "Risk Factors" starting on page 7.
Under the terms of the Florida Business Corporation Law, the requisite number of stockholders of Bingo Florida have acted by written consent to approve and adopt the merger and the merger agreement. Each of the foregoing written consent actions became effective on October 15, 2004. . We will not actually complete the merger until a minimum of 20 days after this information statement/prospectus is sent to our stockholders. Your approval of the merger and the amendment to our certificate of incorporation is not required and we are not requesting you to vote on these matters. Under applicable Securities and Exchange Commission rules, Bingo Florida may first take corporate action in accordance with the stockholder approval of the merger by written consent 20 days after this information statement/prospectus is first mailed to stockholders. This letter and the remainder of this information statement/prospectus constitutes notice of the actions taken that we are required to provide under the Florida Business Corporation Law to the stockholders who did not execute these written consents.
We look forward to closing the merger and appreciate your continued interest in Bingo Florida
On Behalf of the Board of Directors,
/s/T.M. Williams
T.M. Williams,
President and Chief Executive Officer
Prospectus dated February 8, 2005
First mailed to stockholders on or about February t, 2005
Neither the Securities and Exchange Commission nor any state securities regulator has approved or disapproved of these securities or passed upon the adequacy or accuracy of this information statement/prospectus. Any representation to the contrary is a criminal offense.
TABLE OF CONTENTS
This prospectus/information statement incorporates important business and financial information about the Company that is not included in or delivered with the prospectus/information statement. This information is available without charge to stockholders upon written or oral request from the Company at Suite 1405, 1166 Alberni Street, Vancouver, B.C., V6E 3Z3, telephone: (604) 694-0300. In order to obtain timely delivery, stockholders must request the information from the Company no later than five business days before the date they must make their investment decision which is February *, 2005.
PAGE
PART I 3
INFORMATION REQUIRED IN THE PROSPECTUS 3
A. INFORMATION ABOUT THE TRANSACTIONS 3
SUMMARY 3
SUMMARY SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF BINGO FLORIDA 6
RISK FACTORS 7
THE MERGER 16
TERMS OF THE MERGER AGREEMENT AND RELATED TRANSACTIONS 23
PRO FORMA FINANCIAL INFORMATION 26
MATERIAL CONTRACTS WITH THE COMPANY BEING ACQUIRED. 28
INTERESTS OF NAMED EXPERTS AND COUNSEL. 28
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES 28
THE COMPANIES WHICH ARE MERGING 28
B. INFORMATION ABOUT BINGO FLORIDA 28
SELECTED FINANCIAL DATA. 36
SUPPLEMENTARY FINANCIAL INFORMATION 38
Management's Discussion and Analysis of Financial Condition and Results of Operation 39
Quantitative and Quantitative Disclosures About Market Risk. 47
INFORMATION ABOUT BINGO ANGUILLA 48
C. COMPARISON OF STOCKHOLDER RIGHTS 48
General 48
Capitalization 49
Voting Rights 49
Number of Directors 49
Election of Directors 50
Removal of Directors 50
Filling Vacancies on the Board of Directors. 50
Amendments to Certificate of Incorporation 51
Amendments to Bylaws 51
Action by Written Consent. 51
Notice of Stockholder Actions 51
Right to Call Special Meeting of Stockholders
51
Dividends 51
Liquidation Rights 52
Loans to Directors 52
Rights and Options 52
Indemnification of Officers and Directors 53
Shareholders' Consent to Action 53
Vote Required for Merger 53
D. VOTING AND MANAGEMENT INFORMATION 53
OTHER MATTERS 59
Legal Matters 59
Experts 59
Market for Common Equity and Related Stockholder Matters 59
Changes In and Disagreements with Accountants on Accounting and Financial Disclosure 60
WHERE YOU CAN FIND MORE INFORMATION 61
PART II 62
INFORMATION NOT REQUIRED IN PROSPECTUS 62
Page 1
Indemnification of Directors and Officers 62
Exhibits and Financial Statement Schedules 63
Undertakings 64
SIGNATURES 66
Page 2
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
A. INFORMATION ABOUT THE TRANSACTIONS
SUMMARY
This summary highlights selected information from this information statement/prospectus. It does not contain all of the information that is important to you. You should carefully read this information statement/prospectus and the other documents incorporated by reference into this information statement/prospectus. See "Where You Can Find More Information" on page 61. In this information statement/prospectus, "we," "us" and "our" may refer to either Bingo.com, Inc. ("Bingo Florida") or Bingo.com, Ltd. ("Bingo Anguilla"), depending on the context in which they are used, and "you" and "your" refer to stockholders of Bingo Florida.
Bingo.com, Ltd. is the Registrant under this S-4 information statement/prospectus because it will be the shares of Bingo.com, Ltd. which are issued and outstanding following the merger between Bingo.com, Ltd. and Bingo.com, Inc. and Bingo.com, Ltd. will continue as the surviving corporation.
The Companies Which are Merging (page 28)
The Florida Company's address and telephone number is:
Bingo.com, Inc.
Suite 1405
1166 Alberni Street
Vancouver, B.C.
V6E 3Z3
Telephone: (604) 694-0300
Bingo Florida is in the business of developing and operating a Bingo based web portal designed to provide a variety of free games and other forms of entertainment, including an online community, chat rooms, contests, sweepstakes, tournaments and more. Bingo Florida envisions becoming the pre-eminent Bingo based web portal on the internet using its Bingo.com domain name and incorporating a variety of games and content to attract and retain a large number of subscribers.
The Anguilla B.W.I. Company's address and telephone number is:
Bingo.com Ltd.
Spencer House
The Valley
Anguilla, British West Indies
Telephone: (264) 497-8129
Bingo Anguilla is a wholly owned subsidiary of Bingo Florida Bingo Anguilla was incorporated in Anguilla, British West Indies on September 30, 2004, specifically for the purpose of completing a merger with Bingo Florida and becoming the surviving corporation of that merger and redomiciling the Bingo.com business to Anguilla, British West Indies.
Page 3
The Merger (page 16)
The merger agreement provides that Bingo Florida will merge with and into Bingo Anguilla and Bingo Anguilla will be the surviving corporation. The merger agreement and the merger with Bingo Anguilla contemplated thereby were approved by both the Board of Directors of Bingo Florida and the stockholders of Bingo Florida on October 15, 2004.
The merger agreement is included as Exhibit 2.1 to this information statement/prospectus. It is the legal document that governs the merger.
Reasons for the Merger (page 16)
The Bingo Florida board of directors has unanimously determined that the merger is advisable and in the best interests of Bingo Florida and its stockholders. The primary purpose of the merger is that it will allow our business to operate in a corporate tax free jurisdiction. The Company also considered other low tax jurisdictions such as The Channel Islands, Bermuda and the Isle of Man, and found Anguilla to be the most cost effective location for the Company's operations.
See "The Merger - Bingo Florida Reasons for the Merger" for the reasons supporting the Bingo Florida board of directors' approval of the merger.
What You Will Receive in the Merger - Treatment of Stock, Options and Warrants
At the effective time of the merger, each issued and outstanding share of Bingo Florida capital stock will be converted into one common share of Bingo Anguilla in accordance with the terms of the merger agreement.
Bingo Anguilla will assume each option or warrant to acquire Bingo Florida common stock granted under Bingo Florida's stock plans or otherwise issued by Bingo Florida and that is outstanding and unexercised immediately prior to the effective time of the merger. At the effective time of the merger, Bingo Anguilla will replace these Bingo Florida options and warrants with options or warrants, respectively, to purchase Bingo Anguilla common stock. The duration and other terms of each such Bingo Anguilla option or warrant, including the vesting schedule, will be the same as the Bingo Florida option or warrant assumed.
Appraisal Rights of Dissenting Stockholders (page 19)
If you object to the merger, the Florida Business Corporation Act, or FBCA, permits you to seek relief as a dissenting stockholder and have the "fair value" of your shares of Bingo Florida common stock determined by a court and paid to you in cash.
If you are a Bingo Florida stockholder who did not execute the written consent resolution approving the merger and wish to dissent to the merger, you must deliver to Bingo Florida, before t, 2005, a written demand for appraisal of your shares.
As discussed under the heading "Appraisal Rights of Dissenting Stockholders of Bingo Florida", any stockholder who opposes the Merger may exercise dissent and appraisal rights under the Florida Business Corporation Act. The Merger contemplated hereby has been submitted to the
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stockholders for approval by written consent. The Merger has been approved by a majority of our stockholders. If a stockholder wishes to exercise dissent and appraisal rights, the stockholder must send to the company a written notice demanding payment, and deposit the stockholder's share certificates of the company with our attorneys at Suite 1000, 409 Granville Street, Vancouver, British Columbia, Canada V6C 1T2. The procedure for dissent and appraisal is described in Sections 607.1301 to 607.1333 of the Florida Business Corporation Act, which are attached as Exhibit 4.1 to this prospectus/information statement. We require strict adherence to the procedures set forth therein, and failure to do so may result in the loss of all dissenters' appraisal rights. Accordingly, each stockholder who might desire to exercise dissenter's appraisal rights should carefully consider and comply with the provisions of those sections and consult his or her legal advisor. A form of Dissenter's Appraisal Notice is attached as Exhibit 4.2 to this prospectus/information circular.
What is Needed to Complete the Merger
Several customary contractual conditions set forth in the merger agreement must be satisfied before the merger will be completed. If the law permits, Bingo Florida or Bingo Anguilla may each waive conditions for their benefit and their stockholders' benefit and complete the merger even though one or more of these conditions has not been met. Neither Bingo Florida nor Bingo Anguilla can assure you that the conditions will be satisfied or waived or that the merger will occur.
In order for Bingo Florida and Bingo Anguilla to complete their merger, Bingo Florida needs to receive an effective date for this information statement/prospectus from the Securities and Exchange Commission. The Company must then mail the effective registration statement to its stockholders. The Company must wait a minimum of 20 days after it has mailed the effective registration statement to its stockholders before the merger between Bingo Florida and Bingo Anguilla can be effected. The merger will be effected in Anguilla, B.W.I. once articles of merger are filed with the Anguillan Registrar of Corporations under the Anguilla International Business Companies Act.
U.S. Federal Income Tax Consequences (page 18)
Tax Consequences for Bingo Florida
The transfer would be treated for U.S. federal tax purposes as though we had transferred our assets from a U.S. corporation to an Anguilla B.W.I. corporation. We would be subject to U.S. federal tax upon our transfer to the extent that the fair market value of our property exceeds the historic basis, for U.S. tax purposes, in the property. After we become an Anguilla B.W.I. corporation, we will be subject to U.S. withholding tax on any dividends paid to us by a U.S. corporation, as well as a 10% withholding tax on interest we get from our investments in U.S. debt securities.
Tax consequences for Bingo Florida shareholders.
Tax matters are often complicated and the tax consequences to you from the transfer will depend in part on the facts of your own situation. You should consult your tax advisors, as you think appropriate, for a full understanding of the tax consequences to you from the transfer. If you are
Page 5
a U.S. resident shareholder, the transfer of shares will generally result in no recognized gain for U.S. federal income tax purposes.
For a further discussion of the U.S. federal income tax consequences of these transactions, see "The Merger - United States Income Tax Consequences of the Transfer to Anguilla, B.W.I.". Different tax consequences may apply to you because of your individual circumstances or because special tax rules apply to you.
You should consult your tax advisor for a full explanation of the tax consequences of the merger to you.
Bingo Florida Stockholder Approval of Merger by Written Consent
Pursuant to Bingo Florida's bylaws and applicable law, holders of Bingo Florida common stock are entitled to one vote per share on all matters voted upon by Bingo Florida stockholders. On October 15, 2004, certain Bingo Florida stockholders who are directors and officers, and their respective affiliates, representing the requisite number of shares of Bingo Florida capital stock, executed and delivered a written consent resolution approving the merger and adopting the merger agreement. As of that date, Bingo Florida had outstanding 24,249,086 shares of common stock. As of the date of execution, the holders executing the written consent represented approximately 58% of the common stock outstanding.
Even though a majority of the voting shares of Bingo Florida have been voted in favor of the merger by written consent resolution, Bingo Florida will actually not proceed with the merger with Bingo Anguilla until the following procedures have taken place:
The final form of this information statement has been mailed to all shareholders of Bingo Florida,
a 20 day minimum waiting period has elapsed after the Company has mailed the effective registration statement to its stockholders and,
the articles of merger have been filed with the Anguillan Registrar of Corporations.
Accounting Treatment (page 25)
The merger is expected to be accounted for as a reverse merger transaction, with Bingo Anguilla being the surviving company for financial reporting purposes. As a result, the consolidated financial statements will be issued under the name of Bingo Anguilla but are considered a continuation of the consolidated financial statements of Bingo Florida and therefore the assets and liabilities are recorded in Bingo Anguilla financial statements at their historical value.
SUMMARY SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF BINGO FLORIDA
The following historical results are not necessarily indicative of results to be expected in any future period. The following selected consolidated financial data for the year ended December 31, 2003 and 2002 has been derived from audited consolidated financial statements as filed in the Company's Form 10K on March 26, 2004. The interim unaudited consolidated statement of operations data for the period ended September 30, 2004, and the unaudited consolidated balance sheet data as of September 30, 2004, as filed in the Company's Form 10-QSB on November 15, 2004.
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Nine Months ended
September 30
Year Ended December 31,
2004
2003
2002
Consolidated Statement of Operations
Revenue
$
768,699
$
888,888
$
717,192
Cost of revenue
164,701
211,253
351,207
Gross profit
603,998
677,635
365,985
Operating expenses
467,753
689,800
1,087,579
Interest expense
54,710
172,174
181,789
Interest expense - warrant debenture discount
259,823
112,913
110,360
Interest and other income
(43,056)
(61,761)
(45,035)
Net loss
$
(135,232)
$
(235,491)
$
(968,708)
Basic and diluted net loss per share
$
(0.01)
$
(0.02)
$
(0.09)
Weighted average common shares Outstanding
18,813,622
11,104,608
10,953,238
Nine Months Ended
September 30
Year Ended December 31,
2004
2003
2002
Consolidated Balance Sheet Data:
Cash
$
55,993
$
34,046
$
14,682
Working capital (deficit)
(794,330)
(1,368,002)
(1,299,148)
Total assets
1,471,148
1,477,173
1,469,185
Total liabilities
918,336
2,619,691
2,376,212
Long term obligations
-
1,395,000
1,395,000
Total stockholders' equity (deficit)
552,812
(1,142,518)
(907,027)
RISK FACTORS
Our business is subject to a number of risks due to the nature and the present state of development of our business. An investment in our securities is speculative in nature and involves a high degree of risk. You should read carefully and consider the following risk factors.
Risks Related to Our Business
We have a limited operating history and a history of losses and expect future losses, and there can be no assurances that we will achieve and sustain profitability, which makes our ability to continue as a going concern questionable.
We have incurred significant net losses and negative cash flow from operations since our inception. We incurred net losses of $1,955,200 in fiscal 2001, $968,708 in fiscal 2002, $235,491 in fiscal 2003 and $135,232 for the nine months ended September 30, 2004. As of December 31, 2003, we had an accumulated deficit of $9,409,734, and during the year ended December 31, 2003, we provided cash of $58,749 in operating activities (2002 - used cash of
Page 7
$95,275, and 2001 - used cash of $646,717). As of September 30, 2004, we had an accumulated deficit of $9,544,966, and during the nine months ended September 30, 2004, we provided cash of $104,680 in operating activities. Although we reduced our operating costs and our cash utilization rate significantly during the 2003 fiscal year and the nine months ended September 30, 2004, we will continue to incur sales and marketing and general and administrative expenses in the future. As a result, we may incur losses in the future and will need to generate higher revenues in order to achieve sustainable profitability.
Our financial statements have been prepared on a going concern basis, which presumes the realization of assets and the settlement of liabilities in the normal course of operations. The application of the going concern principle is dependent upon the Company achieving profitable operations to generate sufficient cash flows to fund continued operations, or, in the absence of adequate cash flows from operations, obtaining additional financing. If the Company is unable to achieve profitable operations or obtain additional financing, we may be required to reduce or to limit operations, or cease operations altogether. The auditors' report on the December 31, 2003, consolidated financial statements contains an explanatory paragraph that states that the Company has suffered losses and negative cash flows from operations that raise substantial doubt about the Company's ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
We may not be able to generate sufficient revenue to entirely support our operations in fiscal 2005 due to a number of factors including, among others:
- the cost of promoting and marketing our bingo portal;
- the general demand for online advertising may decrease, as may advertising rates, which would impact our advertising revenue;
- the costs associated with developing our software and technologies, installing equipment and expanding our facilities;
- the costs associated with hiring and retaining experienced management and staff for our operations.
- the impact of government legislation on our advertisers.
We are subject to risks and challenges frequently encountered by early stage companies engaged in early stage enterprises and Internet commerce.
We face risks, uncertainties, expenses and difficulties frequently encountered by companies in their early stages of development that may be using new and unproven business models, particularly companies engaged in Internet commerce.
These risks include :
- our revenue forecasts may be incorrect because of our limited experience selling our products and services;
- our ability to generate revenues will depend on selling advertising on a website focused on bingo entertainment;
- as our business grows and the expectations of our customers increase, we must develop and upgrade our infrastructure, including internal controls, transaction processing capacity, data storage and retrieval systems and website to remain competitive. We may not have the capital resources to do so;
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- we compete with a number of larger competitors, such as Electronic Arts (Pogo.com) and Yahoo!, with greater financial, capital, technical, marketing and human resources and experience than us;
- we may not be able to continue to offer new and exciting content that is attractive and compelling to existing users;
- our business is dependent upon the Internet for commerce and growth;
- general economic conditions could change and adversely affect our business.
We are substantially dependent on third parties for most aspects of our business.
We have chosen to pursue a strategy whereby we have outsourced many of our mission-critical business functions, including website hosting, and serving, and web server collocation. Most of these functions are performed by a limited number of small companies. As a result, we face increased risk that our business could be interrupted by the failure of any one of our key vendors or suppliers, and such an interruption could have a material impact on our financial position and results of operations.
We will need additional capital to continue to operate our business.
We have just recently achieved profitable operations but are not ensured of a long-term source of consistent and reliable revenue. As of September 30, 2004, we had $55,993 in cash (December 31, 2003, $34,046). Although our cash flow is improving, we may need to obtain additional financing to grow our operations for the duration of 2005. The Company is constantly looking for new sources of revenue that will help fund our business. There can be no assurances that this will be achieved.
If we successfully raise additional funds through the issuance of debt, we will be required to service that debt and are likely to become subject to restrictive covenants and other restrictions contained in the instruments governing that debt, which may limit our operational flexibility. If we raise additional funds through the issuance of equity securities, then those securities may have rights, preferences or privileges senior to the rights of holders of our common stock, and holders of our common stock will experience dilution.
We cannot be certain that such additional debt or equity financing will be available to us on favorable terms when required, or at all. If we cannot raise funds in a timely manner, or on acceptable terms, we may not be able to promote our brand, develop or enhance our products and services, take advantage of future opportunities or respond to competitive pressures or unexpected requirements, and we may be required to reduce or limit operations.
If our key personnel leave the Company, our ability to succeed will be adversely affected
The future success of the Company will depend on certain key management, marketing, sales and technical personnel. We are currently dependent on our President and Chief Executive Officer, T. M. Williams, for the success of the business. We also rely upon consultants and advisors who are not employees. The loss of key personnel could have a material adverse effect on our operations. We do not maintain key-man life insurance on any of our key personnel. The inability to attract, retain and motivate highly skilled personnel required for expansion of operations and development of technologies could adversely affect our business, financial
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condition and results of operations. We cannot assure you that we will be able to retain our existing personnel or attract additional, qualified persons when required and on acceptable terms.
The effect of the proposed "Unlawful Internet Gambling Funding Prohibition Act."
During the 2003 fiscal year, the House Judiciary Committee of the US Government approved HR21 "Unlawful Internet Gambling Funding Prohibition Act". This bill creates a new crime of accepting financial instruments, such as credit cards or electronic fund transfers, for debts incurred in illegal Internet gambling. The bill enables state and federal Attorneys General to request that injunctions be issued to any party, such as financial institutions and Internet Service Providers, to assist in the prevention or restraint of illegal Internet gambling. This bill still needs to be ratified by the Senate before it becomes passed as law. Many of our advertisers will be affected by this bill and therefore the Company's revenue stream may be affected.
The effect of United States Government Action against Websites publishing advertising for Internet gambling operators.
Current anti-Internet gambling sentiment in the United States appears to be expanding to include taking action against "publisher" websites based in the United States. Any website which accepts advertising from Internet gambling websites is potentially at risk. In 2003, the United States government started a grand jury investigation, led by the United States attorney's office in St. Louis, to look into American companies working with offshore casinos. In April 2004, United States marshals seized approximately $3 million in advertising proceeds paid by an offshore casino to Discovery Networks under an "aiding and abetting" legal theory. The Discovery Networks is contesting the case against it and we will follow the case closely.
We have capacity constraints and system development risks that could damage our customer relations or inhibit our possible growth, and we may need to expand our management systems and controls quickly, which may increase our cost of operations
Our success and our ability to provide high quality customer service largely depends on the efficient and uninterrupted operation of our computer and communications systems and the computers and communication systems of our third party vendors in order to accommodate any significant numbers or increases in the numbers of consumers and advertisers using our service. Our success also depends upon our and our vendors' abilities to rapidly expand transaction-processing systems and network infrastructure without any systems interruptions in order to accommodate any significant increases in use of our service.
We and our service providers may experience periodic systems interruptions and infrastructure failures, which we believe will cause customer dissatisfaction and may adversely affect our results of operations. Limitations of technology infrastructure may prevent us from maximizing our business opportunities.
We cannot assure you that our and our vendors' data repositories, financial systems and other technology resources will be secure from security breaches or sabotage, especially as technology changes and becomes more sophisticated. In addition, many of our and our vendors' software systems are custom-developed and we and our vendors rely on employees and certain third-party
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contractors to develop and maintain these systems. If certain of these employees or contractors become unavailable, we and our vendors may experience difficulty in improving and maintaining these systems. Furthermore, we expect that we and our vendors may continue to be required to manage multiple relationships with various software and equipment vendors whose technologies may not be compatible, as well as relationships with other third parties to maintain and enhance their technology infrastructures. Failure to achieve or maintain high capacity data transmission and security without system downtime and to achieve improvements in their transaction processing systems and network infrastructure could have a materially adverse effect on our business and results of operations.
Increased security risks of online commerce may deter future use of our website, which may adversely affect our ability to generate revenue
Concerns over the security of transactions conducted on the Internet and the privacy of consumers may also inhibit the growth of the Internet and other online services generally, and online commerce in particular. Failure to prevent security breaches could significantly harm our business and results of operations. We cannot be certain that advances in computer capabilities, new discoveries in the field of cryptography, or other developments will not result in a compromise or breach of the algorithms used to protect our transaction data. Anyone who is able to circumvent our or our vendors' security measures could misappropriate proprietary information, cause interruptions in our operations or damage our brand and reputation. We may be required to incur significant costs to protect against security breaches or to alleviate problems caused by breaches. Any well-publicized compromise of security could deter people from using the Internet to conduct transactions that involve transmitting confidential information or downloading sensitive materials, which would have a material adverse effect on our business.
We face the risk of system failures, which would disrupt our operations
A disaster could severely damage our business and results of operations because our services could be interrupted for an indeterminate length of time. Our operations depend upon our ability to maintain and protect our computer systems.
Our systems and operations are vulnerable to damage or interruption from fire, floods, earthquakes, hurricanes, power loss, telecommunications failures, break-ins, sabotage and similar events. The occurrence of a natural disaster or unanticipated problems at our principal business headquarters or at a third-party facility could cause interruptions or delays in our business, loss of data or render us unable to provide our services. In addition, failure of a third-party facility to provide the data communications capacity required by us, as a result of human error, natural disaster or other operational disruptions, could cause interruptions in our service. The occurrence of any or all of these events could adversely affect our reputation, brand and business.
We face risks of claims from third parties for intellectual property infringement that could adversely affect our business
Our services operate in part by making Internet services and content available to our users. This creates the potential for claims to be made against us, either directly or through contractual indemnification provisions with third parties. These claims might, for example, be made for
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defamation, negligence, copyright, trademark or patent infringement, personal injury, invasion of privacy or other legal theories. Any claims could result in costly litigation and be time consuming to defend, divert management's attention and resources, cause delays in releasing new or upgrading existing services or require us to enter into royalty or licensing agreements.
Litigation regarding intellectual property rights is common in the Internet and software industries. We expect that Internet technologies and software products and services may be increasingly subject to third-party infringement claims as the number of competitors in our industry segment grows and the functionality of products in different industry segments overlaps. There can be no assurance that our services do not or will not in the future infringe the intellectual property rights of third parties. Royalty or licensing agreements, if required, may not be available on acceptable terms, if at all. A successful claim of infringement against us and our failure or inability to license the infringed or similar technology could adversely affect our business.
Our success and ability to compete are substantially dependent upon our technology and data resources, which we intend to protect through a combination of patent, copyright, trade secret and/or trademark law. We currently have no patents or trademarks issued to date on our technology and there can be no assurances that we will be successful in securing them when necessary.
We may not be able to protect our Internet domain name, which is important to our branding strategy
Our Internet domain name, www.bingo.com, is an extremely important part of our business. Governmental agencies and their designees generally regulate the acquisition and maintenance of domain names. The regulation of domain names in the United States and in foreign countries may be subject to change. Governing bodies may establish additional top-level domains, appoint additional domain name registrars or modify the requirements for holding domain names. As a result, we may be unable to acquire or maintain relevant domain names in all countries in which we conduct business. Furthermore, the relationship between regulations governing domain names and laws protecting trademarks and similar proprietary rights is unclear. Therefore, we may be unable to prevent third parties from acquiring domain names that are similar to, infringe upon or otherwise decrease the value of our trademarks and other proprietary rights. Third parties have acquired domain names that include "bingo" or variations thereof both in the United States and elsewhere, which may result in an erosion of our user base.
If we are unable to maintain our popularity with third party Search engines then our customer base, and therefore, our advertising revenue will not continue to grow.
Due to our limited capital we do not run large advertising campaigns. We are, therefore, reliant on third party Search engines such as Google and Yahoo! to provide prospective customers with links to facilitate traffic to www.bingo.com. Historically, the Company's Website has been listed first when users have searched for the word "bingo" on many third party search engines. This ranking continues today but, given the increasing competition for rankings, including the trend towards paid rankings, there can be no guarantees that the Company's Website will continue to maintain such a ranking. The high ranking levels that the Company's Website has maintained has resulted in Bingo.com obtaining between 800 to 1200 new registrations per day which, is
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highly attractive to our advertisers. We believe that these search engines are important in order to facilitate broad market acceptance of our service and thus enhance our sales. We continue to look for new methods to optimize our ranking position with various Internet Search Engines, including the maintenance of reciprocal links with complementary third party sites.
Our financial position and results of operations will vary depending on a number of factors, most of which are out of our control
We anticipate that our operating results will vary widely depending on a number of factors, some of which are beyond our control. These factors are likely to include :
- demand for our online services by registered users, advertisers and consumers;
- prices paid by advertisers using our service, which fluctuate with the changing market;
- costs of attracting consumers to our website, including costs of receiving exposure on third-party websites and advertising costs;
- costs related to forming strategic relationships;
- loss of strategic relationships;
- our ability to significantly increase our distribution channels;
- competition from companies offering same or similar products and services and from companies with much deeper financial, technical, marketing and human resources;
- the amount and timing of operating costs and capital expenditures relating to expansion of our operations;
- costs and delays in introducing new services and improvements to existing services;
- changes in the growth rate of Internet usage and acceptance by consumers of electronic commerce;
- changes and introduction of new software e.g. Pop up blockers.
Because we have a limited operating history, it is difficult to accurately forecast the revenues that will be generated from our current and proposed future product offerings.
Risks Related to Our Industry
If we are unable to meet the changing needs of our industry, our ability to compete will be adversely affected
We operate in an intensely competitive industry. To remain competitive, we must be capable of enhancing and improving the functionality and features of our online services. The Internet portal, the online advertising industry and the Internet gaming industry are rapidly changing. If competitors introduce new products and services embodying new technologies, or if new industry standards and practices emerge, our existing services, technology and systems may become obsolete. There can be no assurances that we will be successful in responding quickly, cost effectively and adequately to new developments or that funds will be available to respond at all. Any failure by us to respond effectively would significantly harm our business, operating results and financial condition.
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Our future success will depend on our ability to accomplish the following:
- license and develop leading technologies useful in our business;
- develop and enhance our existing products and services;
- develop new services and technologies that address the increasingly sophisticated and varied needs of prospective consumers; and
- respond to technological advances and emerging industry standards and practices on a cost-effective and timely basis.
Developing Internet services and other proprietary technology entails significant technical and business risks, as well as substantial costs. We may use new technologies ineffectively, or we may fail to adapt our services, transaction processing systems and network infrastructure to user requirements or emerging industry standards. If our operations face material delays in introducing new services, products and enhancements, our users may forego the use of our services and use those of our competitors. These factors could have a material adverse effect on our financial position and results of operations.
If our web portal is unable to achieve and maintain a critical mass of registered users, advertisers and consumers, we may be unable to sell advertising or to generate revenue
The success of our web portal is dependent upon achieving significant market acceptance of our site by registered users, advertisers and consumers. Internet advertising in general is at an early stage of development and most potential advertisers have only limited experience advertising on the Internet and have not devoted a significant portion of their advertising expenditures to Internet advertising. Our competitors and potential competitors may offer more cost-effective advertising solutions, which could damage our business. In addition, our website may not achieve significant acceptance by registered users and consumers. Failure to achieve and maintain a critical mass of registered users; advertisers and consumers would seriously harm our business.
Our business may be subject to government regulation and legal uncertainties that may increase the costs of operating our web portal, limit our ability to sell advertising, or interfere with future operations of the Company
There are currently few laws or regulations directly applicable to access to, or commerce on, the Internet. Due to the increasing popularity and use of the Internet, it is possible that laws and regulations may be adopted, covering issues such as user privacy, defamation, pricing, taxation, content regulation, quality of products and services, and intellectual property ownership and infringement. Such legislation could expose the Company to substantial liability as well as dampen the growth in use of the Internet, decrease the acceptance of the Internet as a communications and commercial medium, or require the Company to incur significant expenses in complying with any new regulations.
The applicability to the Internet of existing laws governing issues such as gambling, property ownership, copyright, defamation, obscenity and personal privacy is uncertain. The Company may be subject to claims that our services violate such laws. Any new legislation or regulation in the United States, Canada or abroad or the application of existing laws and regulations to the Internet could damage our business. In addition, because legislation and other regulations
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relating to online games vary by jurisdiction, from state to state and from country to country, it is difficult for us to ensure that our players are accessing our portal from a jurisdiction where it is legal to play our games. We therefore, cannot ensure that we will not be subject to enforcement actions as a result of this uncertainty and difficulty in controlling access.
In addition, our business may be indirectly affected by our suppliers or customers who may be subject to such legislation. Increased regulation of the Internet may decrease the growth in the use of the Internet or hamper the development of Internet commerce and online entertainment, which could decrease the demand for our services, increase our cost of doing business or otherwise have a material adverse effect on our business, results of operations and financial condition.
Risks Associated With our Common Stock
Our shares are considered Penny Stock and are subject to the Penny Stock rules, which may adversely affect your ability to sell your shares
Rules 15g-1 through 15g-9 promulgated under the Exchange Act impose sales practice and disclosure requirements on certain brokers-dealers who engage in certain transactions involving Penny Stock. Subject to certain exceptions, a Penny Stock generally includes any non-NASDAQ equity security that has a market price of less than $5.00 per share. We anticipate that our shares are deemed to be Penny Stock for the purposes of the Exchange Act. The additional sales practice and disclosure requirements imposed upon brokers-dealers may discourage broker-dealers from effecting transactions in our shares, which could severely limit the market liquidity of our shares and impede the sale of our shares in the secondary market.
Under the Penny Stock regulations, a broker-dealer selling Penny Stock to anyone other than an established customer or Accredited Investor (generally, an individual with net worth in excess of $1,000,000 or an annual income exceeding $200,000, or $300,000 together with his or her spouse) must make a special suitability determination for the purchaser and must receive the purchaser's written consent to the transaction prior to sale, unless the broker-dealer or the transaction is otherwise exempt. In addition, the Penny Stock regulations require the broker-dealer to deliver, prior to any transaction involving a Penny Stock, a disclosure schedule prepared by the Commission relating to the Penny Stock market, unless the broker-dealer or the transaction is otherwise exempt. A broker-dealer is also required to disclose commissions payable to the broker-dealer and the registered representative and current quotations for the securities. Finally, a broker-dealer is required to send monthly statements disclosing recent price information with respect to the Penny Stock held in a customer's account and information with respect to the limited market in Penny Stocks.
Substantial sales of our common stock could cause our stock price to fall.
If our stockholders sell substantial amounts of our common stock, including shares issued upon the exercise of outstanding options and warrants, the market price of our common stock could decline. We have the following outstanding:
24,399,086 shares of common stock, currently trading at $0.54 on February 7, 2005.
580,000 warrants to purchase shares of common stock exercisable at $0.25.
4,325,000 stock options to purchase shares of common stock with exercise prices ranging from $0.05 to $0.30.
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Of the 24,399,086 outstanding shares, 13,144,478 shares are held under Rule 144 of the Securities and Exchange Act of 1933 and are therefore not freely tradable.
We have not declared dividends and may never declare dividends, which may affect the value of your shares
We have never declared or paid any dividends on our common stock and do not expect to pay any dividends in the near future.
THE MERGER
To complete the merger, this information statement/prospectus must be declared effective by the Securities and Exchange Commission. The Company must then wait a minimum of 20 days after it has mailed the effective registration statement to its stockholders before the merger between Bingo Florida and Bingo Anguilla can be effected. The merger will be effected in Anguilla, B.W.I. once articles of merger are filed with the Anguillan Registrar of Corporations under the Anguilla International Business Companies Act. Other than these regulatory approvals, completion of the merger between Bingo Florida and Bingo Anguilla is not conditional on any federal or state regulatory approvals or compliance with any federal or state regulatory requirements.
Bingo Florida's Reasons for the Merger
Bingo Florida has been domiciled in the State of Florida since January 12, 1987, the date of its incorporation as Progressive General Lumber Corp. For the past three fiscal years, Bingo Florida has been operating out of principal offices in Vancouver, British Columbia, Canada. Bingo Florida's client base consists of advertisers located in Canada, United States, Europe and the Caribbean. In essence, Bingo Florida is involved in a global business and as such does not need to be geographically tied to any particular city or region. For the past four fiscal years, Bingo Florida has steadily decreased its operating expenses and decreased its net loss. For the quarter ended September 30, 2004, the Company became profitable for the first time in its history. Management expects this trend to continue. Management will continue to operate Bingo Florida in a manner designed to minimize operating expenses and maximize revenue and profit.
Bingo Anguilla's Reasons for the Merger
Bingo Anguilla is a wholly owned subsidiary of Bingo Florida. Bingo Anguilla was incorporated on September 30, 2004, specifically for the purpose of facilitating Bingo Florida's reincorporation in Anguilla, British West Indies. Bingo Anguilla has assets of only $2,000 cash and has conducted no business since the date of its incorporation on September 30, 2004.
The Management of the Company has considered the following in the merger decision:
The major reason for the merger is that Anguilla is a tax free jurisdiction. This is considered beneficial considering the Company's increased profitability.
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Anguilla is a British Protectorate and therefore has very close ties with the United Kingdom. The Company identifies the United Kingdom as potential future market in which to expand and therefore to grow it's business.
Anguilla has modern corporation laws, enabling the Company to operate in an efficient manner.
The Company has in addition looked at other low tax locations (eg. The Channel Islands, Bermuda and the Isle of Man) and found that Anguilla is the most cost effective location for the Company's operations.
The management of the Company has familiarity and long time experience of operating in Anguilla and will therefore believes it will be able to find the necessary staff in Anguilla, where there is often a shortage of skilled personnel.
Anguilla does not currently have an efficient online banking system but there are plans by the various banks in Anguilla to set up an internet banking system, which the Company prefers to use its operation.
Reincorporation in Anguilla, B.W.I.
Bingo Florida is organized under the laws of the State of Florida and is therefore subject to the Florida General Corporations Law. Bingo Anguilla is organized under the International Business Companies Act of Anguilla, British West Indies. There are some material differences between the State of Florida and Anguilla, British West Indies with respect to stockholder rights. A comparison of stockholder rights is set out under the heading "Comparison of Stockholders Rights" on page 48 of this information statement/prospectus. Bingo Anguilla has adopted bylaws virtually identical to those adopted by Bingo Florida. The certificates of incorporation of the two corporations contain few differences.
Interest of Executive Officers and Directors in the Merger
Bingo Florida stockholders should be aware that some Bingo Florida directors and executive officers have interest in the merger and related arrangements that are different from, or in addition to, their interests as Bingo Florida's stockholders. These interests may create potential conflicts of interest for these directors and officers because they may be more likely to approve the merger than Bingo Florida stockholders generally. The Bingo Florida board of directors was aware of these interests and took these interests into account in its deliberations of the merits of the merger and in approving the merger and the transactions contemplated by the merger agreement.
Accounting Treatment
The merger is expected to be accounted for as a reverse merger transaction, with Bingo Anguilla being the surviving company for financial reporting purposes. As a result, the consolidated financial statements will be issued under the name of Bingo Anguilla but are considered a
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continuation of the consolidated financial statements of Bingo Florida and therefore the assets and liabilities are recorded in Bingo Anguilla financial statements at their historical value.
Listing on OTC BB
The shares of Bingo Florida are currently quoted on the OTC Bulletin Board under the symbol "BIGR". Following the merger between Bingo Florida and Bingo Anguilla and the survival of Bingo Anguilla as the surviving corporation, the shares of Bingo Anguilla will be quoted on the OTC BB in substitution for the shares of Bingo Florida. It is anticipated that listing of the shares of Bingo Florida on the OTC Bulletin Board will continue uninterrupted up to and through the closing of the merger. Given that Bingo Anguilla will be assuming the business, the assets and liabilities of Bingo Florida upon completion of the merger, it is not anticipated that the merger of the two companies will positively or negatively affect the market for Bingo Anguilla's securities.
U.S. Federal Income Tax Consequences
United States Income Tax Consequences of the Transfer to Anguilla B.W.I.
The following is a summary of United States federal income tax consequences generally applicable to a U.S. holder of our common shares with respect to the transfer to Anguilla, B.W.I. This summary addresses all material United States federal income tax matters but does not take into account or anticipate any state, local or foreign tax considerations.
The following summary is based upon the sections of the Internal Revenue Code of 1986, U.S. Treasury Regulations, published Internal Revenue Service rulings, published administrative positions of the IRS and court decisions that are currently applicable, any or all of which could be materially and adversely changed, possibly on a retroactive basis, at any time.
This commentary is generally applicable to a holder of our common shares who is a U.S. citizen or U.S. resident individual, a U.S. domestic corporation or partnership, or a U.S. trust or estate. This summary does not address the tax consequences to persons subject to highly specialized provisions of United States federal income tax law. This summary is applicable to our shareholders who hold their shares as capital property and who deal at arm's length with us.
THIS SUMMARY OF U.S. TAX CONSEQUENCES IS NOT INTENDED TO BE LEGAL OR TAX ADVICE TO ANY HOLDER OR PROSPECTIVE HOLDER OF OUR COMMON SHARES. ACCORDINGLY, HOLDERS AND PROSPECTIVE HOLDERS OF OUR COMMON SHARES SHOULD CONSULT THEIR OWN TAX ADVISORS ABOUT THE FEDERAL, STATE, LOCAL, AND FOREIGN TAX CONSEQUENCES OF THE TRANSFER TO ANGUILLA, B.W.I.
Consequences to the Company
General
Our transfer to Anguilla B.W.I. from the United States would be treated, for tax purposes only, as a transfer by us of all of our property to our newly incorporated wholly-owned Anguillan B.W.I. subsidiary in exchange for the subsidiary's shares. Immediately following that exchange,
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there would be a deemed distribution of the subsidiary's shares to our shareholders and an exchange by them of their shares of Bingo Florida for the subsidiary's shares. The final result would be that the subsidiary would have all our assets and liabilities and the same shareholders as we have but would, for U.S. tax purposes, be an Anguilla B.W.I. corporation rather than a U.S. corporation.
Generally, the exchange of property by a corporation solely for stock or securities in another corporation would not require the recognition of gain or loss to the exchanging corporation, pursuant to the U.S. tax code. However, the tax code renders the exchange of our assets for the shares of our subsidiary taxable in the U.S. because our subsidiary is a foreign corporation. As a result, we would be taxable on the disposition of our property to the extent that the fair market value of the property exceeds our historic basis, for U.S. tax purposes, in the property.
There are no exceptions from the U.S. emigration tax which apply to a U.S. corporation emigrating from the United States. Consequently, we would be taxable in the U.S. on our emigration to the extent that the fair market value of our property exceeds its basis, for U.S. tax purposes, in the property. We would pay tax on the amount of any gain at regular U.S. corporate tax rates.
Dividend and Interest Withholding Tax
After we emigrate from the United States and become an Anguilla B.W.I. corporation we would be subject to a U.S. withholding tax on any dividends paid to us by another U.S. corporation. The withholding tax of 15% is reduced to 5% if we hold 10% or more of the voting shares of the corporation paying the dividend. In addition, a 10% U.S. withholding tax would apply to interest received from our investments in U.S. debentures.
Consequences to Shareholders
Our transfer to Anguilla B.W.I. from the United States would be treated for tax purposes as if we had transferred all of our property to our wholly-owned Anguilla, B.W.I. subsidiary. Our shareholders would be considered to have exchanged their shares for the shares of that subsidiary. The fair market value of the subsidiary's shares should equal the fair market value of property transferred to the subsidiary, net of liabilities.
No gain or loss will be recognized by the shareholders of Bingo Florida as a result of exchange of their shares to the Anguilla, B.W.I. subsidiary, except that gain or loss will be recognized on the receipt of cash, if any, received in lieu of fractional shares. Any capital gain on the Bingo Florida shares would be taxable to the U.S. resident individual shareholders at the then prevailing capital gains tax rates. U.S. corporate shareholders would be taxable in the U.S. at regular U.S. corporate tax rates. Refer to Exhibit 8.1 for the opinion on the taxation effects on the Bingo Florida shareholders.
Appraisal Rights of Dissenting Stockholders of Bingo Florida
A copy of the dissent and appraisal rights provided in Sections 607.1301 to 607.1333 of the Florida Business Corporation Act is attached as Exhibit 4.1 to this Information Statement.
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Under Section 607.1302, our stockholders will be entitled to dissent from, seek appraisal for, and obtain payment of the fair value of his or her shares of our common stock if the Merger is consummated. For this purpose, the "fair value" of a dissenter's shares will be the value of the shares immediately before the effectuation of the Merger, excluding any appreciation or depreciation in anticipation of the Merger unless exclusion would be inequitable. A stockholder who is entitled to so dissent and obtain such payment may not challenge the Merger, unless the action is unlawful or fraudulent with respect to him or the company.
A stockholder of record may assert dissenter's appraisal rights as to fewer than all of our shares registered in his or her name only if he or she dissents with respect to all shares beneficially owned by any one person and notifies us in writing of the name and address of each person on whose behalf he or she asserts dissenter's appraisal rights. The rights of a partial dissenter will be determined as if the shares as to which he or she dissents, and his or her other shares were registered in the names of different stockholders.
A beneficial stockholder may assert dissenter's appraisal rights as to our shares held on his or her behalf only if:
- the beneficial stockholder submits to the company the written consent of the stockholder of record to the dissent and appraisal not later than the time the beneficial stockholder asserts dissenter's appraisal rights; and
- the beneficial stockholder does so with respect to all shares of which he or she is the beneficial stockholder or over which he or she has power to direct the vote.
If a stockholder of record of our company (the "Dissenting Stockholder") wishes to exercise his, her or its dissent and appraisal rights, we are to provide to such Dissenting Stockholder a dissenter's appraisal notice of advising them of their appraisal rights as contemplated by Section 607.1320. The form of dissenter's appraisal notice is attached as Exhibit 4.2 to this Information Statement. Section 607.1322 provides, among other things, that the dissenter's appraisal notice must be sent no later than 10 days after the effectuation of the corporate action. The merger will not be effected for a minimum of 20 days following mailing of this information statement to stockholders of Bingo Florida. The dissenter's appraisal notice must:
- state where the demand for payment must be sent and where and when certificates, if any, for shares must be deposited;
- include our company's balance sheet as of the end of a fiscal year ending not more than 15 months before the date of the dissenter's appraisal notice, a statement of income for that year, a statement of changes in the stockholders' equity for that year and the latest available interim financial statements, if any;
- contain a statement of our company's estimate of the fair value of the shares and our offer to pay such estimated fair value;
- set a date by which we must receive the demand for payment, which may not be less than 40 nor more than 60 days after the date the notice is delivered;
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- set a date by which a notice to withdraw the demand for payment must be received, which date must be within 20 days after the date the demand for payment must be received;
- if requested in writing by the stockholder, provide to the stockholder so requesting within 10 days after the demand for payment must be received, the number of stockholders and the total number of shares held by them who have returned a demand for payment by the date specified; and
- be accompanied by a copy of Sections 607.1301 to 607.1333, inclusive.
The dissenter's appraisal notice must provide for the stockholder to state:
- their name and address;
- the number, class and series of shares to which they assert appraisal rights;
- that the stockholder did not vote for the Merger;
- whether the stockholder accepts our offer as set forth in the notice; and
- if our offer is not accepted, the stockholder's estimated fair value of the shares and a demand for payment of this estimated value plus interest.
Section 607.1321 and Section 607.1323 provide that a stockholder to whom a dissenter's appraisal notice is sent must:
- demand payment within 20 days after receiving the dissenter's appraisal notice;
- not vote, or cause or permit to be voted, any of their shares in favor of the Merger; and
- deposit his certificates, if any, in accordance with the terms of the notice.
Any stockholder who demands payment and deposits his or her certificates, if any, before the proposed corporate action is taken loses all rights as a stockholder, unless the stockholder withdraws their demand by the date specified in the dissenter's appraisal notice.
Any stockholder who does not demand payment or deposit his, her or its certificates where required, each by the date set forth in the dissenter's appraisal notice, will not be entitled to payment for his, her or its shares under the Florida Business Corporation Act.
Subject to certain exceptions, within 90 days after receipt of a demand for payment from a dissenting stockholder, we will be required by Section 607.1324 to pay to the dissenter the amount that we estimated to be the fair value of his shares and accrued interest. The obligation that we have in this regard may be enforced by the appropriate court of the county in the State of Florida.
If a dissenter believes that the amount offered by the company pursuant to Section 607.1322 is less than the fair value of the dissenter's shares, the dissenter may under Section 607.1326 notify the company in writing of his or her own estimate of the fair value of the shares and the amount of interest due; and demand payment of such estimate and interest.
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A dissenter will be deemed to have waived his or her right to demand payment pursuant to Section 607.1326 unless the dissenter notifies the company of his or her demand in writing within the time set forth on the dissenter's appraisal notice after the company has made or offered payment for the shares.
Under Section 607.1330, if a dissenter's demand for payment remains unsettled, we will be required to commence a proceeding in the appropriate court of the county where our registered office is located within 60 days after receiving the demand, and to petition the court to determine the fair value of the shares and accrued interest. If we do not commence the proceeding within the 60 day period, any dissenter may commence the proceeding in the name of the company.
All dissenters, whether or not residents of Florida, whose demands remain unsettled, will be named as parties to the proceeding as in an action against their shares. All parties must be served with a copy of the petition. Non-residents may be served by registered or certified mail or by publication as provided by Florida law.
The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The dissenting appraisers will be entitled to the same discovery rights as parties in other civil proceedings.
Each dissenter who is made a party to the proceeding is entitled to a judgment for the amount, if any, by which the court finds is the fair value of his or her shares, plus interest.
The court in a proceeding to determine fair value is required by Florida law to determine all of the costs of the proceeding, including the reasonable compensation and expenses of any appraisers appointed by the court. The court will assess the costs against the company, but retains discretion to assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment.
Exercising Dissent Rights
If a stockholder wishes to exercise his, her or its dissent and appraisal rights, the stockholder must send to the company (at the address set out below) a written notice (a form of which is attached as Exhibit 4.2 demanding payment.
The stockholder must also send any certificates representing our shares to the address set out below.
All written notices and share certificates should be sent to:
Gerald R. Tuskey, Personal Law Corporation
Suite 1000
409 Granville Street
Vancouver, B.C.
V6C 1T2 Canada
Telephone: (604) 681-9588
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Any stockholder who does not demand payment or deposit his, her or its certificates by the date set forth in the dissenter's appraisal notice will not be entitled to payment for his, her or its shares under the Florida Business Corporation Act.
TERMS OF THE MERGER AGREEMENT AND RELATED TRANSACTIONS
General
The terms of our merger are set out in detail in the agreement and plan of merger attached as Exhibit 2.1 to this information statement/prospectus. The following is a summary of the principal terms of the agreement and plan of merger.
Each common share of Bingo Florida issued and outstanding immediately before the effective date of the merger other than shares of Bingo Florida for which appraisal rights are perfected, will, by virtue of the merger and without any action by Bingo Florida stockholders, be converted into and exchanged for one fully paid and non-assessable common share of the surviving corporation which will be Bingo Anguilla. Bingo Anguilla, as the surviving corporation of the merger, will continue to be governed by the laws of Anguilla, British West Indies. The separate corporate existence of Bingo Anguilla with all of its assets and liabilities will continue unaffected and unimpaired by the merger. On the effective date of the merger, the existence of Bingo Florida as a distinct entity shall cease.
Bingo Anguilla is a wholly owned subsidiary of Bingo Florida Bingo Anguilla was incorporated on September 30, 2004, in Anguilla, B.W.I. specifically for the purpose of completing a merger with Bingo Florida and becoming the surviving corporation of that merger and redomiciling the Bingo.com business to Anguilla, B.W.I. Anguilla, B.W.I. is a corporate tax free jurisdiction. The International Business Companies Act of Anguilla is modern corporate legislation which protects existing Bingo Florida stockholder rights and allows our company continued flexibility to operate its internet based business.
Management and Operations After the Merger
There will be no changes in management or operations of our company following the merger. The management and operations which are currently those of Bingo Florida will become the management and operations of Bingo Anguilla following the merger. The directors are elected at each Annual General Meeting and their term of office is for the year until the next Annual General Meeting. Our officers and directors are as follows:
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Name Age Position
T. M. Williams
64
President and Chief Executive Officer and Chairman of our Board of Directors
P. A. Crossgrove
66
Director
H. W. Bromley
34
Chief Financial Officer
T. M. Williams has served as our President, Chief Executive Officer, Chairman and Director since August 20, 2001. Since 1984, Mr. Williams has served as a principal of Tarpen Research Corporation, a private consulting firm, and since 1993, he has been an Adjunct Professor, Faculty of Commerce and Business Administration at the University of British Columbia. From
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1988 to 1991, he was President and Chief Executive Officer of Distinctive Software, Inc. in Vancouver, BC, and, upon the acquisition of that company by Electronic Arts Inc., North America's largest developer of entertainment software, he became President and Chief Executive Officer of Electronic Arts (Canada) Inc., where he continued until 1993. Since 1993, Mr. Williams has also been the Managing Partner of CEG, AVC and PEG Partnerships, created to invest in entertainment software worldwide. Mr. Williams is a director of YM Biosciences, Inc. (a biotechnology company), CellStop Systems, Inc. (a security manufacturing company) and Infowave Software Inc. (an enterprise software company) and several other private corporations.
P. A. Crossgrove has served as one of our Directors since September 2001. Mr. Crossgrove is currently the Chairman of Masonite International Corp. (previously Premdor Inc.) (a door manufacturing company), a position he has held since June 1997. From 1994 to 1997, he was the President and Chief Executive Officer of Southern Africa Minerals (an investment holding company). Mr. Crossgrove was also the President and Chief Executive Officer of Itco Properties Ltd. (a real estate development and management company) from 1982 to 1992 and Vice-Chairman of Placer Dome Inc. (a mining company) in 1993 and 1994. Mr. Crossgrove is a director of a number of other Canadian and U.S. public companies, including: QLT Inc. (a biotechnology and pharmaceutical company), American Barrick Gold Corp. (a mining company), Dundee ReIT (a Real Estate Income Trust) and Philex Gold Inc. (a gold mining company). In May 2003, he was granted the Order of Canada.
H. W. Bromley, has served as our Chief Financial Officer since July 2002. From 2000 to 2001, Mr. Bromley was a Director and the Group Financial Officer for Agroceres & Co. Ltd. From 1995 - 1999, he was an employee of Ernst & Young working in South Africa and in the United States of America. Mr. Bromley has in addition worked for CitiBank, Unilever PLC and Gerrard. Mr. Bromley is the Chief Financial Officer for CellStop Systems, Inc. (a security manufacturing company). Mr. Bromley is a Chartered Accountant.
Bingo Anguilla will continue Bingo Florida's current business of developing and operating a Bingo based web portal designed to provide a variety of free games and other forms of entertainment including an online community, chat rooms, contests, sweepstakes and tournaments.
What You Will Receive In the Merger - Treatment of Stock, Options and Warrants
Each share of common stock of Bingo Florida issued and outstanding prior to the effective date of the merger other than shares for which appraisal rights are perfected, shall by virtue of the merger and without any action by Bingo Florida or the holders of Bingo Florida shares be converted into and exchanged for one fully paid and non-assessable common share of the surviving corporation Bingo Anguilla. All options and warrants of Bingo Florida which are outstanding as at the effective date of the merger will automatically be converted into options and warrants of Bingo Anguilla on exactly the same terms and conditions and with exactly the same rights and privileges.
Exchange of Certificates; Fractional Shares
Each outstanding share certificate representing shares of Bingo Florida common stock that are not dissenting shares, will be deemed for all purposes to represent the number of whole shares of
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