UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION
Securities Exchange Act of 1934
Release No. 48467 / September 10, 2003
Administrative Proceeding
File No. 3-11182
_________________________________________________________________
In the Matter of
XAIBE, INC. and
LOWELL NICHOLAS,
Respondent
_________________________________________________________________
ORDER MAKING FINDINGS AND IMPOSING SANCTION BY DEFAULT AGAINST XAIBE,
INC.
The Securities and Exchange Commission (Commission) initiated this
proceeding on July 16, 2003, with an Order Instituting Proceedings
(OIP). On August 18, 2003, the Commission accepted an Offer of
Settlement from Respondent Lowell Nicholas (Nicholas).
On July 22, 2003, Respondent Xaibe, Inc. (Xaibe), was served with the
OIP by certified mail on Respondent Nicholas's counsel. Respondent
Nicholas is the director and chief executive officer (CEO) of Xaibe.
17 C.F.R. §§ 201.141, .150. Additionally, Respondent Xaibe was served
with the OIP via certified mail on August 19, 2003. As of September
10, 2003, Respondent Xaibe has failed to file an answer, due within
twenty days after service of the OIP. 17 C.F.R. § 201.220. Xaibe also
failed to appear at the telephonic prehearing conference held on
August 19, 2003. On August 20, 2003, the Division of Enforcement
(Division) filed a motion for default against Respondent Xaibe. In a
separate Order issued on August 21, 2003, I ordered Respondent Xaibe
to show cause, on or by September 5, 2003, why it should not be held
in default and why the registration of its stock should not be revoked
pursuant to Section 12(j) of the Securities Exchange Act of 1934
(Exhange Act).
Respondent Xaibe has failed to show cause why it should not be held in
default. Pursuant to Rules 155(a) and 220(f) of the Commission's Rules
of Practice, 17 C.F.R. §§ 201.155(a), .220(f), Respondent Xaibe is in
default for failing to file an answer to the OIP within twenty days
SNIPPETS:
ORDER MAKING FINDINGS AND IMPOSING SANCTION BY DEFAULT AGAINST XAIBE,
The Securities and Exchange Commission initiated this proceeding on July 16, 2003, with an
On August 18, 2003, the Commission accepted an Offer of Settlement from Respondent Lowell
On July 22, 2003, Respondent Xaibe, Inc., was served with the OIP by certified mail on
Xaibe also failed to appear at the telephonic prehearing conference held on August 19,
In a separate Order issued on August 21, 2003, I ordered Respondent Xaibe to show cause, on
Pursuant to Rules 155and 220of the Commission's Rules of Practice, 17 C.F.R. §§ 201.155,
Nicholas, a resident of Sherwood, Arkansas, was appointed chief operating officer and
The Form 10-KSB filed by Nicholas was materially false and misleading because it purported to
At the time Nicholas caused Xaibe to file the Form 10-KSB, Xaibe's independent auditing firm
By filing the materially false and misleading Form 10-KSB, Xaibe failed to comply with
Nicholas was a cause of Xaibe's failure to comply with these provisions.
The auditing firm thereafter sent a letter to Xaibe resigning from the engagement, but Xaibe
Xaibe thereby failed to comply with, and Nicholas was a cause of Xaibe's failure to comply
On the basis of the foregoing, it is necessary and appropriate for the protection of
IT IS ORDERED, pursuant to Section 12of the Securities Exchange Act of 1934, that the
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