U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF
SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) Or 12(g) Of The Securities Act Of 1934
Casino Management of America, Inc.
(Name of Small Business Issuer in Its Charter)
Nevada 33-0581224
(State or Other Jurisdictions of (I.R.S. Employer Identification No.)
Incorporation or Organization)
4695 MacArthur Court, #530, Newport Beach, California 92660
(Address of Principal Executive Offices) (Zip Code)
(949) 833-2094
(Issuer's Telephone Number, Including Area Code)
Securities to be registered under Section 12(b) of the Act: None
Securities to be registered under Section 12(g) of the Act:
Common Stock, par value $.01
(Title of Class)
[H:\CMA\10SB\1999-6.wpd]
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INFORMATION STATEMENT
CASINO MANAGEMENT OF AMERICA INC.
COMMON STOCK, PAR VALUE $.01
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
THIS INFORMATION STATEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES. ANY SUCH
OFFERING MAY ONLY BE MADE BY MEANS OF A SEPARATE PROSPECTUS
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND OTHERWISE
IN COMPLIANCE WITH APPLICABLE LAW.
The date of this Information Statement is March 6, 2000.
[H:\CMA\10SB\1999-6.wpd]
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PART I
ITEM 1. DESCRIPTION OF BUSINESS.
Business Development
Casino Management of America, Inc., a Nevada corporation ("CMA") was
incorporated in Utah on June 23, 1993. On February 28, 1998, pursuant to a
Merger Agreement, CMA merged with Casino Management of America, Inc., a Nevada
corporation, for the purpose of changing the corporate domicile from Utah to
Nevada.
Resorts was originally organized in 1989 to succeed the business of the
Nona Morelli Limited Partnership which operated a restaurant from 1986 through
1989 and manufactured and marketed specialty Italian food products. During its
fiscal year ended June 30, 1993 as a result of a number of acquisitions and
investments in the areas of food, gaming and real estate, Resorts was
restructured to operate as a holding company. During fiscal 1994, all of
Resort's food, gaming and real estate investments were assigned to and operated
by newly formed subsidiaries. CMA received all of Resort's domestic gaming
investments and related assets.
Business of Issuer
CMA's historical domestic gaming related assets and operations have been
conducted by a former subsidiary, Group V Corporation (currently,
TotalAxcess.com, Inc. and formerly, NuOasis Gaming, Inc.), a Delaware
corporation ("GRPV"), formerly E.N. Phillips Company ("ENP"), which is a
publicly-held company whose shares are traded on the Electronic Bulletin Board.
During fiscal 1997, CMA sold the majority of its equity and voting control of
GRPV, consisting of common and preferred stock of GRPV. At the close of its
fiscal year ended June 30, 1997 ("fiscal 1997"), CMA held approximately 10%
voting control of GRPV. Subsequent to the close of fiscal 1997, CMA entered into
an agreement to sell its remaining interest in the common stock, preferred stock
and certain warrants to purchase common stock of GRPV.
CMA is presently inactive and has not conducted any business since 1997. On
or about September 1999, the directors determined that CMA should become active
and began seeking potential operating businesses and business opportunities with
the intent to acquire or merge with such businesses. CMA is considered a
development stage company, and due to its status as a "shell" corporation, its
principal business purpose is to locate and consummate a merger or acquisition
with a private entity. No representation is made or intended that CMA will be
able to carry out its activities profitably.
CMA is voluntarily filing its registration statement on Form 10-SB to make
information concerning itself more readily available to the public. Management
believes that being a reporting company under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), could provide a prospective merger or
acquisition candidate with additional information concerning CMA. In addition,
management believes that this may make CMA more attractive to an operating
business opportunity as a potential business combination candidate. As a result
of filing its registration statement, CMA is obligated to file with the
Commission certain interim and periodic reports including an annual report
containing audited financial statements. CMA intends to continue to voluntarily
file these periodic reports under the Exchange Act even if its obligation to
file such reports is suspended under applicable provisions of the Exchange Act.
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Any target acquisition or merger candidate of CMA will become subject to
the same reporting requirements as CMA upon consummation of any such business
combination. Thus, in the event that CMA successfully completes an acquisition
or merger with another operating business, the resulting combined business must
provide audited financial statements for at least the two most recent fiscal
year, or in the event that the combined operating business has been in business
less than two years, audited financial statements will be required from the
period of inception of the target acquisition or merger candidate.
Source of Business Opportunities
CMA intends to use various sources in its search for potential business
opportunities including its officers and directors, consultants, special
advisors, securities broker-dealers, venture capitalists, members of the
financial community and others who may present management with unsolicited
proposals. CMA may investigate and ultimately acquire a venture that is it its
preliminary or development stage, is already in operation, or in various stages
of its corporate existence or development. Management cannot predict at this
time the status or nature of any venture in which CMA may participate. The most
likely scenario for a possible business arrangement would involve the
acquisition of or merger with an operating business which does not need
additional capital, but which merely desires to establish a public trading
market for its shares. Management believes that CMA could provide a potential
public vehicle for a private entity interested in becoming a publicly held
corporation without the time and expense typically associated with an initial
public offering.
Evaluation Criteria
Once CMA has identified a particular entity as a potential acquisition or
merger candidate, management will seek to determine whether acquisition or
merger is warranted or whether further investigation is necessary. Such
determination will generally be based on management's knowledge and experience,
or with the assistance of outside advisors and consultants evaluating the
preliminary information available to them. Management may elect to engage
outside independent consultants to perform preliminary analyses of potential
business opportunities. However, because of CMA's lack of capital it may not
have the necessary funds for a complete and exhaustive investigation of any
particular opportunity. Further, no member of management is a professional
business analyst and management will rely on its own business judgment in
formulating the types of businesses that CMA may acquire. It is quite possible
that management will not have any business experience or expertise in the type
of business engaged in by any potential acquisition or merger candidate.
In evaluating such potential business opportunities, CMA will consider, to
the extent relevant to the specific opportunity, several factors including
potential benefits to CMA and its shareholders; working capital, financial
requirements and availability of additional financing; history of operation, if
any; nature of present and expected competition; quality and experience of
management; need for further research, development or exploration; potential for
growth and expansion; potential for profits; and other factors deemed relevant
to the specific opportunity. Because CMA has not located or identified any
specific business opportunity to date, there are certain unidentified risks that
cannot be adequately expressed prior to the identification of a specific
business opportunity. There can be no assurance following consummation of any
acquisition or merger that the business venture will develop into a going
concern or, if the business is already operating, that it will continue to
operate successfully. Many of the potential business opportunities available to
CMA may involve new and untested products, processes or market strategies, which
may not ultimately prove successful.
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Presently, CMA cannot predict the manner in which it might participate in a
prospective business opportunity. Each separate potential opportunity will be
reviewed and, upon the basis of that review, a suitable legal structure or
method of participation will be chosen. The particular manner in which CMA
participates in a specific business opportunity will depend upon the nature of
that opportunity, the respective needs and desires of CMA and management of the
opportunity, and the relative negotiating strength of the parties involved.
Actual participation in a business venture may take the form of an asset
purchase, lease, joint venture, license, partnership, stock purchase,
reorganization, merger or consolidation. CMA may act directly or indirectly
through an interest in a partnership, corporation, or other form of
organization, however, CMA does not intend to participate in opportunities
through the purchase of minority stock positions.
Because CMA has not yet identified any potential acquisition or merger
candidate, it is unable to evaluate the type and extent of its likely
competition. CMA is aware that there are several other public companies with
only nominal assets that are also searching for operating businesses and other
business opportunities as potential acquisition or merger candidates. CMA will
be in direct competition with these other public companies in its search for
business opportunities and, due to CMA's lack of funds, it may be difficult to
successfully compete with these other companies.
As of this date, CMA does not have any employees and has no plans for
retaining employees until such time as CMA's business warrants the expense, or
until CMA successfully acquires or merges with an operating business.
CMA's office is located at 4695 MacArthur Court, Suite 530, Newport Beach,
CA 92660.
CMA will voluntarily send an annual report, including audited financial
statements, to its security holders.
CMA will file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (SEC). The public
may read and copy materials we file with the SEC at the SEC's Public Reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549. The public may obtain
information on the operation of the Public Reference room by calling the SEC at
1-800-SEC-0330. The SEC maintains an internet site that contains reports, proxy
and information statements, and other information regarding issuers that file
electronically with the SEC. The address of the website is http://www.sec.gov.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
Plan of Operation
During the next twelve months, CMA will actively seek out and investigate
possible opportunities with the intent to acquire and merge with one or more
business ventures. In its search for business opportunities, management will
follow the procedures outlined in Item 1 above. Because CMA lacks funds, it may
be necessary for the officers and directors to either advance funds to CMA or to
accrue expenses until such time as a successful business consolidation can be
made. Management intends to hold expenses to a minimum and to obtain services on
a contingency basis when possible.
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Management's discretion is unrestricted, and CMA may participate in any
business whatsoever that may in the opinion of management meet the business
objectives discussed herein. Indeed, CMA may effectuate a business combination
with another business outside the United States. CMA has not limited the scope
of its search to a particular region. CMA does not intend to utilize any notices
or advertisements in its search for business opportunities.
CMA's officers and directors will be primarily responsible for searching
for an appropriate merger or acquisition candidate. However, to the extent that
the existing stockholders are aware of any potential business acquisition
candidates, they will also refer these to CMA. CMA recognizes that as a result
of its limited financial, managerial or other resources, the number of suitable
potential businesses that may be available to it will be extremely limited.
CMA's principal business objective will be to seek long-term growth potential in
the business in which it participates rather than immediate, short-term
earnings. In seeking to attain its business objectives CMA will not restrict its
search to any particular industry. Rather, CMA may investigate businesses of
essentially any kind or nature, including but not limited to finance, high
technology, manufacturing, service, research and development, communications,
insurance, brokerage, transportation and others. Management may also seek to
become involved with other development stage companies or companies that could
be categorized as "financially troubled." At the present time, CMA has not
chosen the particular area of business in which it proposes to engage and has
not conducted any market studies with respect to business property or industry.
As of the date hereof, CMA has not made any arrangements or definitive
agreements to use outside advisors or consultants to raise any capital. In the
event CMA does need to raise capital most likely the only method available to
CMA would be the private sale of its securities. Because of the nature of CMA as
a development stage company, it is unlikely it could make a public sale of
securities or be able to borrow any significant sum, from either a commercial or
private lender. There can be no assurance that CMA will be able to obtain
additional funding when and if needed, or that such funding, if available, can
be obtained on terms acceptable to CMA.
CMA does not intend to use any employees, with the exception of part-time
clerical assistance on an as- needed basis. Outside advisors, attorneys or
consultants will only be used if they can be obtained for a minimal cost or for
a deferred payment basis. Management is confident that it will be able to
operate in this manner and to continue its search for business opportunities
during the next twelve months.
ITEM 3. DESCRIPTION OF PROPERTY.
Although CMA does not own or control any material property, CMA will
maintain its business address at 4695 MacArthur Ct., Ste. 530, Newport Beach, CA
92660. CMA currently subleases these offices from an affiliate, NuVen Advisors,
LP ("NuVen"), as part of the Advisory and Management Agreement with NuVen.
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ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Security Ownership of Beneficial Owners
(1) Title of Class (2) Name and Address (3) Amount and Nature (4) Percent
of Beneficial Owner of Beneficial Ownership of Class
Common Stock NuOasis Resorts, Inc. 812,000 shares of 100%
4695 MacArthur Ct., $.01 par value
Suite 530
Newport Beach, CA
92660
Preferred Stock NuOasis Resorts, Inc. 300,000 shares of 100%
4695 MacArthur Ct., $.01 par value
Suite 530
Newport Beach, CA
92660
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
Identification of Directors and Executive Officers
CMA, pursuant to its Bylaws is authorized to maintain a one to nine (1-9)
member Board of Directors, and executive officers as needed. The directors and
officers for fiscal 1999 were as follows:
Position
Name Held with CMA Age Dates of Service
- ---------------- --------------------- ----- ----------------------------
Fred G. Luke Director 53 June 14, 1993 to present
President
Jon L. Lawver Director 61 June 29, 1998 to present
Secretary
All directors of CMA hold office until the next annual meeting of
shareholders and until their successors have been elected and qualified.
Vacancies in the Board of Directors are filled by the remaining members of the
Board until the next annual meeting of shareholders. The officers of CMA are
elected by the Board of Directors at its first meeting after each annual meeting
of CMA's shareholders and serve at the discretion of the Board of Directors or
until their earlier resignation or death.
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Business Experience
The following is a brief account of the business experience during the past
five years of each director, director nominee and executive officer of CMA, and
the members of its Advisory Board, including principal occupations and
employment during that period and the name and principal business of any
corporation or other organization in which such occupation and employment were
carried on.
Fred G. Luke
Mr. Fred G. Luke has been a director and an officer of CMA since June 1993.
Mr. Luke has more than twenty-nine years of experience in domestic and
international financing and management of private and publicly held companies.
Since 1982, Mr. Luke has provided consulting services and has served, for brief
periods lasting usually not more than six months, as Chief Executive Officer
and/or Chairman of the Board of various publicly held and privately held
companies in conjunction with financial and corporate restructuring services. In
addition to his position with CMA, Mr. Luke currently serves as Chairman and
President of NuVen, an affiliate. Mr. Luke received a Bachelor of Arts Degree in
Mathematics from California State University, San Jose in 1969.
Jon L. Lawver
Mr. Lawver has served as Secretary of CMA since June 1998. Mr. Lawver has
been President and director of the Fantastic Foods International, Inc., a wholly
owned subsidiary of NuOasis Resorts, Inc., since June 1993. Mr. Lawver has
twenty-two (22) years of experience in the area of bank financing where he has
assisted companies in locating financing for small to medium size companies
primarily for expansion requirements. While assisting companies with their
financing requirements, Mr. Lawver has been under consulting contracts through
J. L. Lawver, Corp., a financial consulting firm, which he formed in 1973, after
an 11-year career with Bank of America, NT&SA (the "Bank"). He began his
employment with the Bank in l961 and ended his employment in 1972 as Branch
Manager of three of the Bank's offices. Since 1988, Mr. Lawver has also served
as president and director of Eurasia Finance & Development Corp., a private
finance and equipment leasing company and has served as officer and director of
Virtual Enterprises, Inc. (formerly The Toen Group, Inc.), a transitional stage
of the multimedia industry. Mr. Lawver has a Bachelor of Science degree from the
Widener University and has completed graduate courses with the American
Institute of Banking and University of California at Los Angeles.
Involvement in Certain Legal Proceedings
During the past five years, no director or officer of CMA has:
(1) Filed or has filed against him a petition under the fede al bankruptcy laws
or any state insolvency law, nor has a receiver, fiscal agent or similar
officer been appointed by a court for the business or property of such
person, or any partnership in which he was a general partner, or any
corporation or business association of which he was an executive officer at
or within two years before such filings.
(2) Been convicted in a criminal proceeding.
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(3) Been the subject of any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competant jurisdiction,
permanently or temporarily enjoining such person from,or otherwise limiting
his involvement in any type of business, securities or banking activities.
(4) Been found by a court of competent jurisdiction in a civil action, the SEC
or the Commodity Futures Trading Commission ("FTC") to have violated any
federal or state securities or commodities law, which judgment has not been
reversed, suspended, or vacated.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
requires CMA's directors and officers and persons who own more than 10 percent
of CMA's equity securities, to file reports of ownership and changes in
ownership with the SEC. Directors, officers and greater than ten-percent
shareholders are required by SEC regulation to furnish CMA with copies of all
Section 16(a) reports filed.
Based solely on its review of the copies of the reports it received from
persons required to file, CMA believes that during fiscal 1999, all filing
requirements applicable to its officers, directors and greater than ten-percent
shareholders were complied with.
ITEM 6. EXECUTIVE COMPENSATION.
Summary Compensation Table
Officers do not receive compensation for their service.
Stock Options
N/A
Compensation of Directors
CMA has no standard arrangement for the compensation of directors or their
committee participation or special assignments. CMA has established an Advisory
Board to assist the Board of Directors. Members of the Advisory Board are
typically compensated at the approximate rate of $1,000 per month.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
In January 1998, the Company entered into an Advisory and Management
Agreement (the "Agreement") with NuVen Advisors, Inc., an entity owned by
officers of the Company and officers of NuOasis. Pursuant to the terms of the
Agreement, the Company is required to pay $3,000 per month, plus expenses, in
exchange for NuVen Advisors, Inc.'s assistance in the formulation of possible
acquisition strategies, and the management of financial and general and
administrative matters. In addition, the Company is required to pay a fee equal
to 5% of the value of each business opportunity (as defined) introduced by NuVen
Advisors, Inc. The Agreement had an initial term of five years, but was canceled
effective July 1, 1999 and was replaced with a revised agreement described
below. In connection with the Agreement, the Company has recorded $36,000 and
$39,000 of consulting expenses during the years ended June 30, 1999 and 1998,
respectively. The Agreement was terminated by written mutual consent on or about
June 30, 1999.
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Effective July 1, 1999, CMA entered into an Advisory and Management
Agreement (the "Agreement") with NuVen Advisors, LP, an entity owned by Fred G.
Luke and Jon L. Lawver, officers of CMA and officers of NuOasis. Pursuant to the
terms of the Agreement, CMA is required to pay $3,500 per month, plus expenses,
in exchange for NuVen Advisors, LP's assistance in the formulation of possible
acquisition strategies, and the management of financial and general and
administrative matters. In addition, CMA is required to pay a fee equal to 10%
of the asset value or investment made in CMA resulting from NuVen Advisors LP's
efforts, and a fee equal to 5% of the proceeds received by CMA in connection
with a sale of its assets. In addition, CMA granted a fully vested option to
NuVen Advisors, LP to purchase 500,000 shares of CMA's common stock at $0.50
per share. The Agreement has an initial term of five years, but shall be
automatically extended on an annual basis, unless terminated by either party.
As of June 30, 1999, the Company had an aggregate of $1,287,345 due from
its parent NuOasis and affiliates of the parent. These entities are affiliated
to NuOasis through common ownership. Such amounts do not bear interest, are
uncollateralized and have no stated repayment terms, except for the note
receivable due from NuOasis.
As of June 30, 1999, the Company also had $39,200 due from an officer,
which includes accrued interest of $4,200. Such amount was due on June 30, 1998,
bears interest at 12% per annum, and is not collateralized.
In addition, the Company has an aggregate of $188,510 due to NuOasis and
NuVen Advisors, Inc., an entity owned by officers of NuOasis and the Company.
During the year ended June 30, 1999, the Company exchanged 200,000 shares
of NuOasis common stock with NuVen Advisors, Inc. for a reduction of amounts
owed of $6,420.
ITEM 8. DESCRIPTION OF SECURITIES.
The capitalization of CMA is, as of the date hereof, comprised of
70,000,000 shares of $.01 par value common stock and 5,000,000 shares of $.01
par value preferred stock, of which approximately 812,500 shares of common stock
are presently issued and outstanding, and owned beneficially and of record by
NuOasis Resorts, Inc.
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PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON
EQUITY AND OTHER SHAREHOLDER MATTERS.
There is currently no public market for CMA common stock.
ITEM 2. LEGAL PROCEEDINGS.
CMA is not and has not been a party to any legal proceedings, nor is aware
of any disputes that may result in legal proceedings.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
CMA has had no changes in and/or disagreements with its accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
N/A
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Nevada law, a corporation may indemnify its officers, directors,
employees and agents under certain circumstances, including indemnification of
such person against liability under the Securities Act of 1933. A true and
correct copy of Section 78.7502 of Nevada Revised Statutes that addresses
indemnification of officers, directors, employees and agents is attached hereto
as Exhibit 12.
In addition, Section 78.037 of the Nevada Revised Statutes and CMA's
Articles of Incorporation and Bylaws provide that a director of this corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages due to breach of fiduciary duty as a director except for
liability (a) for acts or omissions which involve intentional misconduct, fraud
or a knowing violation of law; or (b) for the payments of distribution in
violation of Nevada Revised Statute 78.300.
The effect of these provisions may be to eliminate the rights of CMA and
its stockholders (through stockholders' derivative suit on behalf of CMA) to
recover monetary damages against a director for breach of fiduciary duty as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (a) - (b) of the
preceding paragraph.
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PART F/S
The following financial statements are attached to this report and filed as a
part thereof:
Index to Financial Statements.......................................F-1
Independent Auditors' Report........................................F-2
Balance Sheets......................................................F-3
Statements of Operations and Comprehensive Income (Loss)............F-4
Statements of Stockholder's Equity (Deficit)........................F-5
Statements of Cash Flows............................................F-6
Notes to Financial Statements.......................................F-7
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PART III
Item 1. Index to Exhibits
3.1 Articles of Incorporation of Casino Management of America, Inc.
3.2 By-laws of Casino Management of America, Inc.
4.1 Form of Common Stock Certificate
10.1 Advisory Agreement with NuVen Advisors, Limited Partnership
23.1 Consent of Independent Auditors
27. Financial Data Schedule
99.1 Additional Exhibits [Nevada Revised Statutes Section 78.7502]
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, CMA has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
Casino Management of America, Inc.
Date: March 6, 2000 By: /s/ Fred G. Luke
Name: Fred G. Luke
Title: President, Director
By: /s/ Jon Lawver
Name: Jon L. Lawver
Title: Secretary, Principal Accounting
Officer and Director
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CASINO MANAGEMENT OF AMERICA, INC.
Index to Financial Statements
Description Page
Independent Auditors' Report.................................................F-2
Balance Sheets as of December 31, 1999 (unaudited) and June 30, 1999.........F-3
Statements of Operations and Comprehensive Income (Loss) for the
Six Months Ended December 31, 1999 and 1998 (unaudited), and
the Years Ended June 30, 1999 and 1998....................................F-4
Statements of Stockholder's Equity (Deficit) for the Six Months Ended
December 31, 1999 (unaudited), and the Years Ended
June 30, 1999 and 1998....................................................F-5
Statements of Cash Flows for the Six Months Ended December 31, 1999
and 1998 (unaudited), and the Years Ended June 30, 1999 and 1998..........F-6
Notes to Financial Statements................................................F-7
F-1
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INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholder
Casino Management of America, Inc.
Newport Beach, California
We have audited the accompanying balance sheet of Casino Management of
America, Inc. (the "Company") as of June 30, 1999, and the related statements of
operations and comprehensive income (loss), stockholder's equity (deficit) and
cash flows for each of the years in the two-year period then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of the Company as of June 30,
1999, and the results of its operations and its cash flows for each of the years
in the two-year period then ended, in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has no operations and limited liquid
resources. Such matters raise substantial doubt about the Company's ability to
continue as a going concern. Management's plans regarding those matters are also
described in Note 1. The financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/s/ HASKELL & WHITE LLP
HASKELL & WHITE LLP
Newport Beach, California
November 18, 1999
F-2
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CASINO MANAGEMENT OF AMERICA, INC.
Balance Sheets
<TABLE>
<CAPTION>
December 31, 1999
ASSETS (unaudited) June 30, 1999
<S> <C> <C>
Current assets:
Cash $ 45 $ 45
Due from officer (Note 2) 39,200 39,200
TOTAL ASSETS $ 39,245 $ 39,245
LIABILITIES AND STOCKHOLDER'S EQUITY
(DEFICIT)
Current liabilities:
Accounts payable and accrued expenses $ 150 $ 150
Due to affiliates (Notes 2 and 5) 209,510 188,510
Total current liabilities 209,660 188,660
Commitments and contingencies (Note 5)
Stockholder's equity (deficit) (Note 3):
Common stock, $.01 par value;
70,000,000 shares authorized;
812,500 shares issued and outstanding 8,125 8,125
Preferred stock, $.01 par value;
5,000,000 shares authorized;
300,000 shares issued and outstanding 3,000 3,000
Additional paid-in-capital 7,530,032 7,530,032
Due from affiliates (Note 2) (1,202,408) (1,202,408)
Receivable from stockholder (84,937) (84,937)
Accumulated deficit (6,424,227) (6,403,227)
Total stockholder's equity (deficit) (170,415) (149,415)
TOTAL LIABILITIES AND STOCKHOLDER'S
EQUITY (DEFICIT) $ 39,245 $ 39,245
</TABLE>
See accompanying notes to financial statements.
F-3
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CASINO MANAGEMENT OF AMERICA, INC.
Statements of Operations and Comprehensive Income (Loss)
<TABLE>
<CAPTION>
For the Six Months Ended
December 31,
1999 1998 For the Years Ended June 30,
(unaudited) (unaudited) 1999 1998
<S> <C> <C> <C> <C>
Operating expenses:
Legal and professional fees $ - $ - $ - $ 84,683
Management and consulting fees (Note 5) 21,000 25,047 43,047 39,000
General and administrative expenses - 122 122 390
Total operating expenses 21,000 25,169 43,169 124,073
Other expenses (income):
Loss on sale of marketable equity securities - 104,230 104,230 -
Interest income - (9,136) (9,136) (30)
Interest expense - - - 47
Total other expenses (income) - 95,094 95,094 17
Loss before income tax provision (21,000) (120,263) (138,263) (124,090)
Income tax provision - - - -
Net loss (21,000) (120,263) (138,263) (124,090)
Other comprehensive (loss) income:
Unrealized holding loss arising during the period - - - (53,000)
Reclassification adjustment - 53,000 53,000 -
Comprehensive loss $(21,000) $ (67,263) $ (85,263) $(177,090)
Weighted average number of common shares
outstanding 812,500 812,500 812,500 812,500
Basic and diluted loss per common share $ (0.03) $ (0.15) $ (0.17) $ (0.15)
</TABLE>
See accompanying notes to financial statements.
F-4
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Statements of Stockholder's Equity (Deficit)
For the Six Months Ended December 31, 1999 (unaudited)
and For the Years Ended June 30, 1999 and 1998
<TABLE>
<CAPTION>
Accumulated
Common Common Preferred Preferred Additional Due Receivable Comprehensive
Stock Stock Stock Stock Paid-In from from Income Accumulated
Shares Amount Shares Amount Capital Affiliates Stockholder (Loss) Deficit Total
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at June 30, 1997 812,500 $8,125 - $ - $7,325,032 $(1,244,208) - $ - $(6,140,874)$ (51,925)
Issuance of stock for
marketable equity securities
and note receivable - - 300,000 3,000 205,000 - (80,000) - - 128,000
Unrealized loss on marketable
equity securities - - - - - - - (53,000) - (53,000)
Net repayment by affiliates
- - - - - 41,800 - - - 41,800
Net loss for the year ended
June 30, 1998 - - - - - - - - (124,090) (124,090)
Balance at June 30, 1998 812,500 8,125 300,000 3,000 7,530,032 (1,202,408) (80,000) (53,000) (6,264,964) (59,215)
Reclassification adjustment
related to disposition of
marketable equity securities - - - - - - - 53,000 - 53,000
Accrued interest receivable - - - - - - (4,937) - - (4,937)
Net loss for the year ended
June 30, 1999 - - - - - - - - (138,263) (138,263)
Balance at June 30, 1999 812,500 8,125 300,000 3,000 $7,530,032 (1,202,408) (84,937) - (6,403,227) (149,415)
Net loss for the six months
ended December 31, 1999
(unaudited) - - - - - - - - (21,000) (21,000)
Balance at December 31, 1999
(unaudited) 812,500 $8,125 300,000 $3,000 $7,530,032 $(1,202,408)$(84,937) $ - $(6,424,227)$(170,415)
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Statements of Cash Flows
<TABLE>
<CAPTION>
For the Six Months
Ended December 31,
1999 1998 For the Years Ended June 30,
(unaudited) (unaudited) 1999 1998
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(21,000) $(120,263) $(138,263) $(124,090)
Adjustment to reconcile net loss to
net cash used by operating activities:
Loss on disposition of marketable equity securities - 104,230 104,230 -
Consulting services received in exchange for marketable
equity securities - 9,360 9,360 -
Increases (decreases) from changes in assets
and liabilities:
Due from officer - - - (35,000)
Accounts payable and accrued expenses - - - 150
Net cash used by operating activities (21,000) (15,810) (33,810) (158,940)
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from disposition of marketable
equity securities - 8,170 8,170 -
Net cash provided by investing activities - 8,170 8,170 -
CASH FLOWS FROM FINANCING ACTIVITIES:
Decrease in due from affiliates - - - 41,800
Increase in due to affiliates 21,000 7,640 25,625 117,040
Net cash provided by financing activities 21,000 7,640 25,625 158,840
Net decrease in cash - - (15) (100)
Cash, beginning of period 45 60 60 160
Cash, end of period $ 45 $ 60 $ 45 $ 60
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the year for:
Interest $ - $ - $ - $ -
Income taxes - - - -
Non-cash investing and financing activities:
Marketable equity securities, net of unrealized loss,
and note receivable received for preferred
stock (Note 3) - - - 155,000
Marketable equity securities exchanged for reduction
in amounts owed to affiliates (Note $) $ - $ 6,240 $ 6,240 $ -
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Notes to Financial Statements
December 31, 1999 (unaudited)
and June 30, 1999
(1) Description of Business and Summary of Significant Accounting Policies
Description of Business and Basis of Presentation
Casino Management of America, Inc. (the "Company") was incorporated in Utah
in June 1993. In February 1998, the Company was merged into a newly formed
Nevada corporation with the same name. The Company is a wholly owned subsidiary
of NuOasis Resorts, Inc. ("NuOasis"), a publicly held company.
During the years ended June 30, 1999 and 1998, the Company's activities
have focused primarily on the identification of potential operating
opportunities or acquisitions targets.
Unaudited Financial Information
The accompanying interim financial statements as of December 31, 1999 and
the six months ended December 31, 1999 and 1998 are unaudited but include all
adjustments, consisting of only normal recurring adjustments, which management
considers necessary to present fairly, in all material respects, the financial
position and results of operations and cash flows for the six months ended
December 31, 1999 and 1998. Certain information and footnote disclosures
normally included in the annual financial statements prepared in accordance with
generally accepted accounting principles have been omitted. Results of the six
months ended December 31, 1999 are not necessarily indicative of the results for
the entire year.
Management Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Marketable Equity Securities
As of June 30, 1998, the Company owned 1,000,000 shares of restricted
common stock of its parent, NuOasis (Note 3). Management classified these equity
securities as available-for-sale based on its intent to exchange the equity
securities for other assets. In accordance with SFAS No. 115, these equity
securities were presented in the June 30, 1998 balance sheet as current assets
at their estimated fair market values. At June 30, 1998, the Company recorded an
unrealized loss on these securities of $53,000, as their carrying values
exceeded the equity securities' estimated fair market value, which was
determined by considering factors such as the closing price of NuOasis' common
stock on June 30, 1998, and trading restrictions on the securities. During the
year ended June 30, 1999, the Company disposed of all of its shares of
restricted common stock of NuOasis, and recorded a loss on sale of marketable
equity securities aggregating $104,230.
F-7
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Notes to Financial Statements (continued)
December 31, 1999 (unaudited)
and June 30, 1999
1. Description of Business and Summary of Significant Accounting Policies
(continued)
Loss Per Share
SFAS No. 128, "Earnings Per Share," requires the disclosure of "basic" and
"diluted" earnings (loss) per share. Basic earnings (loss) per share are
computed by dividing net income (loss) by the weighted average number of common
shares outstanding during each period. Diluted earnings (loss) per share is
similar to basis earnings (loss) per share except that the weighted average
number of common shares outstanding is increased to reflect the dilutive effect
of potential common shares, such as those issuable upon the exercise of stock
options or warrants, and the conversion of preferred stock, as if they had been
issued.
For both of the years ended June 30, 1999 and 1998, there is no difference
between basic and diluted loss per common share as the Company incurred a net
loss in each of these periods.
Income Taxes
The Company accounts for income taxes in accordance with SFAS No. 109,
"Accounting for Income Taxes," which requires the use of the "liability method"
of accounting for income taxes. Accordingly, deferred tax assets and
liabilities, are determined based on the difference between the financial
statement and tax bases of assets and liabilities, using enacted tax rates in
effect for the year in which the differences are expected to reverse. Current
income taxes are based on the year's income taxable for federal and state income
tax reporting purposes.
Recent Accounting Standards
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income." This Statement establishes standards for the reporting and display of
comprehensive income and its components (revenues, expenses, gains and losses)
in an entity's financial statements. This statement requires an entity to
classify items of other comprehensive income by their nature in a financial
statement and display the accumulated balance of other comprehensive income
separately from retained earnings and additional paid-in-capital in the equity
section of a statement of financial position. In accordance with the provisions
of this statement, the Company has adopted SFAS No. 130 in the accompanying
financial statements.
F-8
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Notes to Financial Statements (continued)
December 31, 1999 (unaudited)
and June 30, 1999
1. Description of Business and Summary of Significant Accounting Policies
(continued)
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information." This statement requires public
enterprises to report financial and descriptive information about its reportable
operating segments, and establishes standards for related disclosures about
products and services, geographic areas, and major customers. As of June 30,
1999 and 1998, management determined that the Company had only one reportable
operating segment.
Going Concern and Management's Plans
The Company has not commenced significant operations, and has limited
liquid resources. Such matters raise substantial doubt about the Company's
ability to continue as a going concern. Management's plans with respect to these
conditions are to continue searching for additional sources of capital and new
operating opportunities. In the interim, the Company will continue operating
with minimal overhead, and key administrative and management functions will be
provided by consultants, NuOasis or NuVen Advisors, Inc. (Note 5). Accordingly,
the accompanying financial statements have been presented under the assumption
the Company will continue as a going concern.
2. Related Party Transactions
As of June 30, 1999, the Company had an aggregate of $1,287,345 due from
its parent NuOasis and affiliates of the parent. These entities are affiliated
to NuOasis through common ownership. Such amounts do not bear interest, are
uncollateralized and have no stated repayment terms, except for the note
receivable due from NuOasis discussed in Note 3.
As of June 30, 1999, the Company also had $39,200 due from an officer,
which includes accrued interest of $4,200. Such amount was due on June 30, 1998,
bears interest at 12% per annum, and is not collateralized.
In addition, the Company has an aggregate of $188,510 due to NuOasis and
NuVen Advisors, Inc., an entity owned by officers of NuOasis and the Company.
Such amounts do not bear interest, are uncollateralized and have no stated
repayment terms. The Company also has an Advisory and Management Agreement with
NuVen Advisors, Inc. (Notes 5 and 6).
During the year ended June 30, 1999, the Company exchanged 200,000 shares
of NuOasis common stock with NuVen Advisors, Inc. for a reduction of amounts
owed of $6,240.
3. Equity Transactions
Issuance of Preferred Stock
In March 1998, the Company issued 300,000 shares of its undesignated
Preferred Stock to NuOasis. In exchange for the 300,000 shares of undesignated
Preferred Stock, the Company received 1,000,000 shares of NuOasis' common stock
and an $80,000 note receivable. As of June~30, 1999, the note receivable
outstanding, plus accrued interest of $4,937, aggregated $84,937. The note
receivable bears interest at 6%, is uncollateralized and is due in April 2001.
F-9
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Notes to Financial Statements (continued)
December 31, 1999 (unaudited)
and June 30, 1999
3. Equity Transactions (continued)
Stock Split
In April 1998, the Company effected a 9.23 for one reverse common stock
split. Related common stock and per share amounts have been retroactively
adjusted in the accompanying financial statements.
4. Income Taxes
Because the Company has substantially no assets or liabilities at June 30,
1999 or 1998, and presently has conducted no significant operations, the Company
has recorded no deferred tax assets or liabilities, and has recorded no
provision for income taxes in the accompanying financial statements. As of June
30, 1999, the Company has approximately $262,000 and $260,000 each of federal
and state net operating loss carryforwards, which begin to expire in 2013 and
2003, respectively.
The Tax Reform Act of 1986 contains certain provisions which may
substantially limit the availability of the net operating loss carryforwards if
there is a greater than 50% change in ownership during a three-year period. The
limitation is based on the value of the Company on the date that the change in
ownership occurs, and the ultimate realization of any loss carryforwards is
dependent on the extent of the limitation, and the future profitability of the
company.
5. Commitments and Contingencies
Year 2000
The Company does not believe that the impact of the year 2000 computer
issue will have a significant impact on its operations or financial position.
Furthermore, the Company does not believe that it will be required to
significantly modify its internal computer systems. However, if internal systems
do not correctly recognize date information in the year 2000, there could be an
adverse impact on the Company's operations. Furthermore, there can be no
assurance that another entity's failure to ensure year 2000 capability would not
have an adverse effect on the Company.
Advisory and Management Agreement
In July 1994, and amended in January 1998, the Company entered into an
Advisory and Management Agreement (the "Agreement") with NuVen Advisors, Inc.,
an entity owned by officers of the Company and officers of NuOasis. Pursuant to
the terms of the Agreement, the Company is required to pay $3,000 per month,
plus expenses, in exchange for NuVen Advisors, Inc.'s assistance in the
formulation of possible acquisition strategies, and the management of financial
and general and administrative matters. In addition, the Company is required to
pay a fee equal to 5% of the value of each business opportunity (as defined)
introduced by NuVen Advisors, Inc. The Agreement had an initial term of five
years, but was canceled effective July 1, 1999 and was replaced with a revised
agreement described in Note 6. In connection with the Agreement, the Company has
recorded $36,000 and $39,000 of consulting expenses during the years ended June
30, 1999 and 1998, respectively. The Agreement was terminated by written mutual
consent on or about June 30, 1999.
F-10
<PAGE>
CASINO MANAGEMENT OF AMERICA, INC.
Notes to Financial Statements (continued)
December 31, 1999 (unaudited)
and June 30, 1999
6. Subsequent Event
Effective July 1, 1999, the Company entered into a revised Advisory and
Management Agreement (the "Revised Agreement") with NuVen Advisors, Limited
Partnership, an entity owned by officers of the Company and officers of NuOasis.
Pursuant to the terms of the Revised Agreement, the Company is required to pay
$3,500 per month, plus expenses, in exchange for NuVen Advisors, LP's assistance
in the formulation of possible acquisition strategies, and the management of
financial and general and administrative matters. In addition, the Company is
required to pay a fee equal to 10% of the asset value or investment made in the
Company resulting from NuVen Advisors, Limited Partnership's efforts, and a
fee equal to 5% of the proceeds received by the Company in connection with a
sale of its assets. In addition, the Company granted a fully vested option to
NuVen Advisors, Limited Partnership to purchase 500,000 shares of the Company's
common stock at $0.50 per share. The Revised Agreement has an initial term of
five years, but shall be automatically extended on an annual basis, unless
terminated by either party.
F-11
EXHIBITS
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
CASINO MANAGEMENT OF AMERICA, INC.
*****
FIRST: The name of the corporation is:
CASINO MANAGEMENT OF AMERICA, INC.
SECOND: Its registered office in the State of Nevada is located at 4001
South Decatur Blvd., Las Vegas Nevada 89103. The name if its resident agent at
that address is Fred G. Luke.
THIRD: The aggregate number of shares of all classes of stock, which the
Corporation shall have authority to issue is Seventy Five Million (75,000,000)
of which Seventy Million (70,000,000) shares will be designated Common Stock,
with $.01 par value, and Five Million (5,000,000) shares shall be designated
$.01 par value "Preferred Stock." Without further authorization from the
shareholders, the Board of Directors shall have the authority to divide and
issue from time to time any or all of the Five Million (5,000,000) shares of
such Preferred Stock into one or more series with such designations, preferences
and relative, participating, optional or other special rights, or qualification,
limitations or restrictions thereof, as may be designated by the Board of
Directors, prior to the issuance of such series, and the Board of Directors is
hereby expressly authorized to fix by resolution or resolutions only and without
further action or approval, prior to such issuance, such designations,
preferences and relative, participating, optional or other special rights, or
qualifications, limitations or restrictions, including, without limitation the
date and times at which, and the rate, if any, or rates at which dividends on
such series of Preferred Stock shall be paid; the rights, if any, of the holders
of shares of such series of the Preferred Stock to vote and the manner of
voting, except as otherwise provided by the law, the rights, if any, of the
holders of shares of such series of Preferred Stock to convert the same into, or
exchange the sarne for, other classes of stock of the Corporation, and the terms
and conditions for such conversion
[H:\CMA\MIN\ArtofInc3]
<PAGE>
or exchange; the redemption price or prices and the time at which, and the
terms and conditions of which, the shares of such series of Preferred Stock may
be redeemed; the rights of the holders of shares of such series of Preferred
Stock upon the voluntary or involuntary liquidation, distribution or sale of
assets, dissolution or winding up of the Corporation, and the terms of the
sinking fund or redemption or purchase account, if any, to be provided for such
series of Preferred Stock. The designations, preferences, and relative,
participating, optional or other special rights, the qualifications, limitations
or restrictions thereof, of each additional series, if any, may differ from
those of any and all other series already outstanding. Further, the Board of
Directors shall have the power to fix the number of shares constituting any
classes or series and thereafter to increase or decrease the number of shares of
any such class or series subsequent to the issue of shares of that class or
series but not below the number of shares of that class or series then
outstanding.
FOURTH: The governing Board of this Corporation shall be known as
directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the by-laws of this
Corporation. The name and address of the first Board of Directors, which shall
be two (2) in number, is as follows:
NAME ADDRESS
Fred G. Luke 2 Park Plaza, Suite 470
Irvine, California 92714
John D. Desbrow 2 Park Plaza, Suite 470
Irvine, California 92714
[H:\CMA\MIN\ArtofInc3]
<PAGE>
FIFTH: The name and address of each of the incorporators signing the
Articles of Incorporation are as follows:
NAME ADDRESS
John D. Desbrow 2 Park Plaza, Suite 470
Irvine, California 92714
SIXTH: To the fullest extent permitted by Nevada Revised Statute 78.037 as
the same exists or may hereafter be amended, an officer or director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary damages due to breach of fiduciary duty as such
officer or director.
SEVENTH: The purpose of this Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Nevada.
EIGHTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The Board of Directors shall have power without the assent or vote of
the stockholders:
(a) To make, alter, amend, change, add to or repeal the by-laws of the
Corporation; to fix and vary the amount to be reserved for any
proper purpose;to authorize and cause to be executed mortgages and
liens upon all or any part of the property of the Corporation; to
determine the use and disposition of any surplus or net profits;
and to fix the times for the declaration and payment of dividends.
[H:\CMA\MIN\ArtofInc3]
<PAGE>
(b) To determine from tirne to time whether, and to what times and
places, and under what conditions the accounts and books of the
Corporation (other than the stock (ledger) or any of them, shall
be open to the inspection of the stockholders.
(2) The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and as binding upon the Corporation and upon all the
stockholders as though it has been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interest, or for any other reason.
(3) In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation; subject, nevertheless, to the provisions of the statutes of
Nevada, of this certificate, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-laws so made shall invalidate any
prior act of the directors which would have been valid if such by-law had not
been made.
(4) The holders of one-third of the voting power of the shares entitled to
vote at a meeting, represented either in person or by proxy, shall constitute a
quorum for the transaction of business at any regular or special meeting of
shareholders.
(5) Cumulative voting by the shareholders of this Corporation shall not be
permitted in any election of directors.
[H:\CMA\MIN\ArtofInc3]
<PAGE>
IN WITNESS WHEREOF, the undersigned, John D. Desbrow, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of
Nevada, does make and file these Articles of Incorporation, hereby declaring and
certifying that the facts herein stated are true; and accordingly I have
hereunto set my hand this 1st day of July, 1994.
/s/ John D. Desbrow
John D. Desbrow, Incorporator
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
I, Lynelle Wettersten, Notary Public hereby certify that on the 1st day of
JuIy, 1994, personally appeared before me John D. Desbrow, who being by me first
duly sworn, declared that he is the person who signed the foregoing document as
Incorporator, and that the statement therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1st day of
July, 1994.
My commission expires May 2, 1997.
/s/ Lynelle Wettersten
Notary Public
CERTIFICATE OF ACCEPTANCE OF APPOINTMENT
BY RESIDENT AGENT
I, Fred G. Luke hereby accept the appointment as Resident Agent of the
above-named corporation.
DATE: July 1, 1994 /s/ Fred G. Luke
Fred G. Luke
EXHIBIT 3.2
BYLAWS
OF
CASINO MANAGEMENT OF AMERICA, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in Las Vegas, Nevada.
Section 2. The corporation may also have offices at such other places both
within and without the State of Nevada as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section l. All annual meetings of the stockholders shall be held in the
City of Las Vegas, State of Nevada. Special meetings of the stockholders may be
held at such time and place within or without the State of Nevada as shall be
stated in the notice of the meeting, or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held on October 26th,
if not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00~A.M., at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
<PAGE>
Section 3. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 4. Notices of meetings shall be in writing and signed by the
president or a vice president, or the secretary, or an assistant secretary, or
by such other person or persons as the directors shall designate. Such notice
shall state the purpose or purposes for which the meeting is called and the time
when and the place where it is to be held. A copy of such notice shall be either
delivered personally to or shall be mailed, postage prepaid, to each stockholder
of record entitled to vote at such meeting not less than ten nor more than sixty
days before such meeting. If mailed, it shall be directed to a stockholder at
his address as it appears upon the records of the corporation and upon such
mailing of any such notice, the service thereof shall be complete, and the time
of the notice shall begin to run from the date upon which such notice is
deposited in the mail for transmission to such stockholder. Personal delivery of
any such notice to any officer of a corporation or association, or to any member
of a partnership shall constitute delivery of such notice to such corporation,
association or partnership. In the event of the transfer of stock after delivery
or mailing of the notice of and prior to the holding of the meeting it shall not
be necessary to deliver or mail notice of the meeting to the transferee.
Section 5. Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 6. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
Section 7. When a quorum is present or represented at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the articles of incorporation a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 8. Every stockholder of record of the corporation shall be entitled
at each meeting of stockholders to one vote for each share of stock standing in
his name on the books of the corporation.
Section 9. At any meeting of the stockholders, any stockholder may be
represented and vote by a proxy or proxies appointed by an instrument in
writing. In the event that any such instrument in writing shall designate two or
more persons to act as proxies, a majority of such persons present at the
meeting, or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by such written instrument upon all of the
persons so designated unless the instrument shall otherwise provide. No such
proxy shall be valid after the expiration of six months from the date of its
execution, unless coupled with an interest, or unless the person executing it
specifies therein the length of time for which it is to continue in force, which
in no case shall exceed seven years from the date of its execution. Subject to
the above, any proxy duly executed is not revoked and continues in full force
and effect until an instrument revoking it or a duly executed proxy bearing a
later date is filed with the secretary of the corporation.
<PAGE>
Section 10. Any action, which may be taken by the vote of the stockholders
at a meeting, may be taken without a meeting if authorized by the written
consent of stockholders holding at least a majority of the voting power, unless
the provisions of the statutes or of the articles of incorporation require a
greater proportion of voting power to authorize such action in which case such
greater proportion of written consents shall be required.
ARTICLE III
DIRECTORS
Section l. The number of directors shall be neither more than 5 nor less
than 3. The number of directors is to be fixed by vote of the shareholders. The
directors shall be elected at the annual meeting of the stockholders, and except
as provided in Section 2 of this article, each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies, including those caused by an increase in the number
of directors, may be filled by a majority of the remaining directors though less
than a quorum. When one or more directors shall give notice of his or their
resignation to the board, effective at a future date, the board shall have power
to fill such vacancy or vacancies to take effect when such resignation or
resignations shall become effective, each director so appointed to hold office
during the remainder of the term of office of the resigning director or
directors.
Section 3. The business of the corporation shall be managed by its board of
directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the articles of incorporation
or by these by-laws directed or required to be exercised or done by the
stockholders.
<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Nevada.
Section 5. The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event of the failure of the stockholders to fix
the time or place of such first meeting of the newly elected board of directors,
or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
Section 6. Regular meetings of the board of directors may be held without
notice at such time and place as shall from time to time be determined by the
board.
Section 7. Special meetings of the board of directors may be called by the
president or secretary on the written request of one director. Written notice of
special meetings of the board of directors shall be given to each director at
least 3 days before the date of the meeting.
Section 8. A majority of the board of directors, at a meeting duly
assembled, shall be necessary to constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the articles of
incorporation. Any action required or permitted to be taken at a meeting of the
directors may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the directors entitled to vote
with respect to the subject matter thereof.
<PAGE>
COMMITTEES OF DIRECTORS
Section 9. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation, which, to the extent
provided in the resolution, shall have and may exercise the powers of the board
of directors in the management of the business and affairs of the corporation,
and may have power to authorize the seal of the corporation to be affixed to all
papers on which the corporation desires to place a seal. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors.
Section 10. The committees shall keep regular minutes of their proceedings
and report the same to the board when required.
COMPENSATION OF DIRECTORS
Section 11. The directors may be paid their expenses, if any, of attendance
at each meeting of the board of directors and may be paid a fixed sum for
attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
ARTICLE IV
NOTICES
Section l. Notices to directors and stockholders shall be in writing and
delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the corporation. Notice by mail shall be
deemed to be given at the time when the same shall be mailed. Notice to
directors may also be given by facsimile telecommunication.
Section 2. Whenever all parties entitled to vote at any meeting, whether of
directors or stockholders, consent, either by a writing on the records of the
meeting or filed with the secretary, or by presence at such meeting and oral
consent entered on the minutes, or by taking part in the deliberations at such
meeting without objection, the doings of such meeting shall be as valid as if
had at a meeting regularly called and noticed, and at such meeting any business
may be transacted which is not excepted from the written consent or to the
consideration of which no objection for want of notice is made at the time, and
if any meeting be irregular for want of notice or of such consent, provided a
quorum was present at such meeting, the proceedings of said meeting may be
ratified and approved and rendered likewise valid and the irregularity or defect
therein waived by a writing signed by all parties having the right to vote at
such meetings; and such consent or approval of stockholders may be by proxy or
attorney, but all such proxies and powers of attorney must be in writing.
Section 3. Whenever any notice whatever is required to be given under the
provisions of the statutes, of the articles of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
<PAGE>
ARTICLE V
OFFICERS
Section l. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice president, a secretary and a
treasurer. Any person may hold two or more offices.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a president, a vice president, a secretary
and a treasurer, none of whom need be a member of the board.
Section 3. The board of directors may appoint additional vice presidents,
and assistant secretaries and assistant treasurers and such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall
be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
by death, resignation, removal or otherwise shall be filled by the board of
directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation, and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
<PAGE>
THE VICE PRESIDENT
Section 8. The vice president shall, in the absence or disability of the
president, perform the duties and exercise the powers of the president and shall
perform such other duties as the board of directors may from time to time
prescribe.
THE SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall keep in safe custody
the seal of the corporation and, when authorized by the board of directors,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the treasurer or an assistant
secretary.
<PAGE>
THE TREASURER
Section 10. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 11. He shall disburse the funds of the corporation as may be
ordered by the board of directors taking proper vouchers for such disbursements,
and shall render to the president and the board of directors, at the regular
meetings of the board, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 12. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
ARTICLE VI
CERTIFICATES OF STOCK
Section l. Every stockholder shall be entitled to have a certificate,
signed by the president or a vice president and the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by him in the corporation. If the
corporation is authorized to issue shares of more than one class or more than
one series of any class, there shall be set forth upon the face or back of the
certificate, or the certificate shall have a statement that the corporation will
furnish to any stockholders upon request and without charge, a full or summary
statement of the designations, preferences and relative, participating, optional
or other special rights of the various classes of stock or series thereof and
the qualifications, limitations or restrictions of such rights, and, if the
corporation shall be authorized to issue only special stock, such certificate
shall set forth in full or summarize the rights of the holders of such stock.
<PAGE>
Section 2. Whenever any certificate is countersigned or otherwise
authenticated by a transfer agent or transfer clerk, and by a registrar, then a
facsimile of the signatures of the officers or agents of the corporation may be
printed or lithographed upon such certificate in lieu of the actual signatures.
In case any officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such certificate or
certificates shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the corporation, such certificate or
certificates may nevertheless be adopted by the corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be an officer or officers of such corporation.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the board of directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost or destroyed.
<PAGE>
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The directors may prescribe a period not exceeding sixty days
prior to any meeting of the stockholders during which no transfer of stock on
the books of the corporation may be made, or may fix a day not more than sixty
days prior to the holding of any such meeting as the day as of which
stockholders entitled to notice of and to vote at such meeting shall be
determined; and only stockholders of record on such day shall be entitled to
notice or to vote at such meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
<PAGE>
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section l. Dividends upon the capital stock of the corporation, subject to
the provisions of the articles of incorporation, if any, may be declared by the
board of directors at any regular or special meeting pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the articles of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserves in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its incorporation and the words "Corporate Seal,
Nevada."
ARTICLE VIII
AMENDMENTS
Section l. These by-laws may be altered or repealed at any regular meeting
of the stockholders or of the board of directors or at any special meeting of
the stockholders or of the board of directors if notice of such alteration or
repeal be contained in the notice of such special meeting.
I, THE UNDERSIGNED, being the secretary of Casino Management of America,
Inc., DO HEREBY CERTIFY the foregoing to be the by-laws of said corporation, as
adopted at a meeting of the directors held on the 10th day of July, 1994.
/s/ Jon L. Lawver
Jon L. Lawver
EXHIBIT 4.1
Number Shares
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
CASINO MANAGEMENT OF AMERICA, INC.
AUTHORIZED TO ISSUE 75,000,000 SHARES
70,000,000 COMMON SHARES 5,000,000 PREFERRED SHARES
PAR VALUE $0.01 EACH PAR VALUE $0.01 EACH
This Certifies that is the owner of
fully paid and non-assessable Shares
of the Common Shares of CASINO MANAGEMENT OF AMERICA, INC.
transferable only on the books of the Corporation by the holder hereof in
person or by duly authorized Attorney upon surrender of this Certificate
properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and to be sealed with the Seal of the
Corporation
this day of A.D.
SECRETARY PRESIDENT
<PAGE>
EXHIBIT 10.1
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made effective the 1st day of July
1999, by and between NuVen Advisors, Limited Partnership, a Nevada Limited
Partnership ("Advisor") and Casino Management of America, Inc., a Utah
corporation (the "Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have experience
in evaluating and effecting mergers and acquisitions, supervising corporate
management, and in performing general administrative duties for publicly-held
companies and development stage investment ventures; and
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in its development on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and Advisor
agree as follows:
1. Engagement
The Company hereby retains Advisor, effective the date hereof and
continuing until termination, as provided herein, to assist the Company in
its effecting the purchase of businesses and assets relative to its
business and growth strategy (the "Services"). The Services are to be
provided on a "best efforts" basis directly and through Advisor's officers
or others employed or retained and under the direction of Advisor
("Advisor's Personnel"); provided, however, that the Services shall
expressly exclude capital raising activities of any nature and all legal
advice, accounting services or other services which require licenses or
certification which Advisor may not have.
2. Term
This Agreement shall have an initial term of five (5) years (the
"Primary Term") from the effective date of July 1, 1999. At the
conclusion of the Primary Term this Agreement will automatically be
extended on an annual basis (the "Extension Period") unless Advisor or the
Company shall serve written notice on the other party terminating the
Agreement. Any notice to terminate given hereunder shall be in writing
and shall be delivered at least thirty (30) days prior to the end of the
Primary Term or any subsequent Extension Period.
<PAGE>
3. Time and Effort of Advisor
Advisor shall allocate time and Advisors Personnel as it deems
necessary to provide the Services. The particular amount of time may vary
from day to day or week to week. Except as otherwise agreed, Advisor's
monthly statement identifying, in general, tasks performed for the
Company shall be conclusive evidence that the Services have been ]
performed. Additionally, in the absence of willful misfeasance, bad
faith, negligence or reckless disregard for the obligations or duties
hereunder by Advisor, neither Advisor nor Advisor's Personnel shall be
liable to the Company or any of its shareholders for any act or omission
in the course of or connected with rendering the Services, including
but not limited to losses that may be sustained in any corporate
act in any subsequent Business Opportunity (as defined herein)
undertaken by the Company as a result of advice provided by Advisor
or Advisor's Personnel.
4. Compensation
The Company agrees to pay Advisor a fee for the service provided by
Advisor pursuant to this Agreement, as follows:
A. Advisory Fee: The Company shall pay Advisor a monthly fee ("Advisory
Fee") equal to Three Thousand Five Hundred Dollars ($3,500), payable
monthly in advance, in cash or shares of the Company's common stock,
at the Company's election, with such shares to be registered as set
forth herein;
B. Merger Fee: As to Services provided by Advisor related to the
introduction of Business Opportunities which results in a Merger
Transaction or which the Company acquires or otherwise obtain an
equity interest or interest as a creditor, the Company agrees to
pay Advisor a transaction fee (the "Merger Fee"). The Merger Fee
shall be equal to ten percent (10%) of the asset value or investment
made in the Company (including assumed debt) in such Business
Opportunity as a result of Advisor's introduction or efforts. One
third (1/3) of the Merger Fee shall be due and payable upon
completion of the definitive agreements related to each transaction,
and the balance shall be issued upon closing;
C. Transaction Fee: As to Services provided by Advisor related to the
sale of the Company's assets, the Company agrees to pay Advisor a fee
("Transaction Fee") equal to five percent (5%) of the net proceeds
received by the Company.
As additional incentive to execute this Agreement, the Company hereby
grants to Advisor an option to purchase Five Hundred Thousand (500,000)
shares of its common stock (the "Option"), exercisable at a price per
share of fifty cents ($.50) per share, which represents more than one
hundred ten percent (110%) of the fully diluted net book value of such
shares as of the date of the Company's last quarterly financial
statement. The Option shall be evidenced by an Option Agreement in
form and substance, with a stated exercise price, as that attached
hereto as Exhibit "B" and incorporated herein by reference. The right of
Advisor to exercise the Option will vest to Advisor upon execution hereof.
<PAGE>
5. Other Services
If the Company subsequent to the date hereof enters into a merger or
purchases the assets or enters into a joint venture with, or makes an
investment in a company (a "Business Opportunity") introduced by
Advisor, the Company agrees to pay Advisor a fee equal to five percent
(5%) of the value of each Business Opportunity introduced by Advisor
(collectively referred to herein, in each instance, as the "Transaction
Fee"), which shall be payable upon the closing date each such
transaction in cash or in shares of the Company's common stock on the same
basis as the Fee Shares.
The Company and Advisor acknowledge that in the event Advisor, as a
result of this Agreement, receives shares of the Company's common stock
it may be considered an affiliate subject to Section 16(b) of the
Securities Exchange Act of 1934 (the "'34 Act"). In this regard the
Company and Advisor agree, that for purposes of any "profit" computation
under Section 16(b) of the '34 Act, the price paid for such shares is
equal to the Advisory Fee or the Transaction Fee, as the case may be.
6. Registration of Shares
No later than ten (10) days following the date hereof as to the Fee Shares,
the Advisory Fee (if paid in shares), the Option Shares and, as to an event
giving use to the obligation by the Company to pay a Transaction Fee, the
shares comprising the Transaction Fee shall be registered by the Company
with the Securities and Exchange Commission under a Form S-8 or other
applicable registration statement, and the Company shall cause such
registration statement to remain effective at all times while Advisor holds
such shares. At Advisor's election, such shares may be issued prior to
registration in reliance on exemptions from registration provided by
Section 4(2) of the Securities Act of 1933 (the "'33 Act"), Regulation D of
the '33 Act, and applicable state securities laws. Such issuance or
reservation of shares shall be in reliance on representations and
warranties of Advisor set forth herein. Failing to register such shares, or
maintain the effectiveness of the applicable registration statement, the
Company shall satisfy any Advisory Fee, Transaction Fee or Advisory Fee in
cash within ten (10) days of receipt of Advisor's statement setting out the
amount and type of fee then due and payable.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Advisor in the
performance of the Services shall be paid by the Company, or Advisor shall
be reimbursed if paid by Advisor on behalf of the Company, within ten (10)
days of receipt of written notice by Advisor, provided that the Company
must approve in advance all such expenses in excess of $500 per month.
8. Place of Services
The Services provided by Advisor or Advisor's Personnel hereunder will be
performed at Advisor's offices except as otherwise mutually agreed by
Advisor and the Company.
<PAGE>
9. Independent Contractor
Advisor and Advisor's Personnel will act as an independent contractor in
the performance of its duties under this Agreement. Accordingly, Advisor
will be responsible for payment of all federal, state, and local taxes on
compensation paid under this Agreement, including income and social
security taxes, unemployment insurance, and any other taxes due relative to
Advisor's Personnel, and any and all business license fees as may be
required. This Agreement neither expressly nor impliedly creates a
relationship of principal and agent, or employee and employer, between
Advisor's Personnel and the Company. Neither Advisor nor Advisor's
Personnel are authorized to enter into any agreements on behalf of the
Company. The Company expressly retains the right to approve, in its sole
discretion, each Business Opportunity introduced by Advisor, and to make
all final decisions with respect to effecting a transaction on any Business
Opportunity.
10. Rejected Business Opportunity
If, during the Primary Term of this Agreement or any Extension Period, the
Company elects not to proceed to acquire, participate or invest in any
Business Opportunity identified and/or selected by Advisor, notwithstanding
the time and expense the Company may have incurred reviewing such
transaction, such Business Opportunity shall re-vest back to and become
proprietary to Advisor, and Advisor shall be entitled to acquire or broker
the sale or investment in such rejected Business Opportunity for its own
account, or submit such assets or Business Opportunity elsewhere. In such
event, Advisor shall be entitled to any and all profits or fees resulting
from Advisor's purchase, referral or placement of any such rejected
Business Opportunity, or the Company's subsequent purchase or financing
with such Business Opportunity in circumvention of Advisor.
11. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship of
principal and agent between the Company and Advisor, or employee and
employer as between Advisor's Personnel and the Company.
12. Termination
The Company and Advisor may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice with
mutual written consent. Failing to have mutual consent, without prejudice
to any other remedy to which the terminating party may be entitled, if any,
either party may terminate this Agreement with thirty (30) days written
notice under the following conditions:
(A) By the Company.
(i) If during the Primary Term of this Agreement or any Extension
Period, Advisor is unable to provide the Services as set forth
herein for thirty (30) consecutive business days because of
illness, accident, or other incapacity of Advisor's Personnel;
or,
(ii) If Advisor willfully breaches or neglects the duties required
to be performed hereunder; or,
<PAGE>
(B) By Advisor.
(i) If the Company breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If the Company ceases business or, other than in the Initial
Merger, sells a controlling interest to a third party, or
agrees to a consolidation or merger of itself with or into
another corporation, or enters into such a transaction outside
of the scope of this Agreement, or sells substantially all of
its assets to another corporation, entity or individual outside
of the scope of this Agreement; or,
(iii) If the Company has a receiver appointed for its business or
assets, or otherwise becomes insolvent or unable to timely
satisfy its obligations in the ordinary course of business,
including but not limited to the obligation to pay the Advisory
Fee, the Transaction Fee, or the Advisory Fee; or,
(iv) If the Company institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy
proceeding for reorganization for rearrangement of its
financial affairs, files a petition in a court of bankruptcy,
or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by
the Company to Advisor are determined to be materially false or
misleading.
In the event Advisor elects to terminate without cause or this Agreement
is terminated prior to the expiration of the Primary Term or any
Extension Period by mutual written agreement, or by the Company for the
reasons set forth in A(i) and (ii) above, the Company shall only be
responsible to pay Advisor for unreimbursed expenses, Advisory Fee and
Transaction Fee accrued up to and including the effective date of
termination. If this Agreement is terminated by the Company for any
other reason, or by Advisor for reasons set forth in B(i) through (v)
above, Advisor shall be entitled to any outstanding unpaid portion of
reimbursable expenses, Transaction Fee, if any, and the balance
of the Advisory Fee for the remainder of the unexpired portion of the
applicable term (Primary Term or Extension Period) of the Agreement.
13. Indemnification
Subject to the provisions herein, the Company and Advisor agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of any
representation, warranty, covenant, condition, or agreement of the other
party to this Agreement. In addition, the Company agrees to indemnify
Advisor, its officers, directors and general partner for expenses and the
payment of profits arising from the purchase and sale by Advisor of
securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute.
14. Remedies
Advisor and the Company acknowledge that in the event of a breach of this
Agreement by either party, money damages would be inadequate and the
non-breaching party would have no adequate remedy at law. Accordingly,
in the event of any controversy concerning the rights or obligations
under this Agreement, such rights or obligations shall be enforceable in
a court of equity by a decree of specific performance. Such remedy,
however, shall be cumulative and non-exclusive and shall be in addition
to any other remedy to which the parties may be entitled.
<PAGE>
15. Miscellaneous
(A) Subsequent Events. Advisor and the Company each agree to notify
the other party if, subsequent to the date of this Agreement, either
party incurs obligations which could compromise its efforts and
obligations under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any time
and in any manner only by an instrument in writing executed by the
parties hereto.
(C) Further Actions and Assurances. At any time and from time to time,
each party agrees, at its or their expense, to take actions and to
execute and deliver documents as may be reasonably necessary to
effectuate the purposes of this Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
The failure of any party to this Agreement to enforce at any time
any of the provisions of this Agreement shall in no way be construed
to be a waiver of any such provision or a waiver of the right of
such party thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this Agreement shall
be held to be a waiver of any other or subsequent breach or
non-compliance.
(E) Assignment. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other.
(F) Notices. Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party,
when deposited in the United States mails for transmittal by
certified or registered mail, postage prepaid, or when deposited
with a public telegraph company for transmittal, or when sent by ]
facsimile transmission charges prepared, provided that the
communication is addressed:
<PAGE>
(i) In the case of the Company:
Casino Management of America, Inc.
4695 MacArthur Court, Suite 530
Newport Beach, California 92660
Telephone: (949) 833-5381
Facsimile: (949) 833-7854
(ii) In the case of Advisor:
NuVen Advisors, Limited Partnership
4001 So. Decatur, Suite 37-130
Las Vegas, Nevada 89103
Telephone: (702) 871-9080
Telefax: (702) 871-5945
With copy to:
Richard O. Weed
Weed & Co. L.P.
4695 MacArthur Court, Suite #530
Newport Beach, CA 92660
Telephone: (949) 833-5363
Telefax: (949) 833-5384
or to such other person or address designated in writing by the Company or
Advisor to receive notice.
(G) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
(H) Governing Law. This Agreement was negotiated and is being
contracted for in the state of Nevada and shall be governed by
the laws of the state of Nevada, notwithstanding any
conflict-of-law provision to the contrary.
(I) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes and renders null and
void any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter
of this Agreement including but not limited to the Advisory and
Management Agreement dated October 1, 1997 and January 1, 1998.
No oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been made by any
party.
(K) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full
force and effect.
<PAGE>
(L) Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument,
by one or more parties hereto and such executed copy may be
delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on
behalf of such party can be seen. In this event, such execution
and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
(M) Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
"Advisor"
NuVen Advisors, Limited Partnership
a Nevada Limited Partnership
By: /s/ Fred G. Luke
Name: Fred G. Luke
Title: General Partner
The "Company"
Casino Management of America, Inc.
a Nevada corporation
By: /s/ Jon L. Lawver
Name: Jon L. Lawver
Title: Director
<PAGE>
EXHIBIT "A"
to the
Advisory Agreement
dated July 1, 1999
THE OPTION
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is entered into effective the 1st day
of July 1999, by and between Fred G. Luke, individually and on behalf of NuVen
Advisor Limited Partnership, a Nevada Limited Partnership (collectively
"NuVen"), and Casino Management of America, Inc., a Nevada corporation (the
"Company").
WHEREAS, the Company has agreed to issue to NuVen the option to purchase
shares of the Company's common stock (the "Common Stock") to induce NuVen to
execute the Advisory Agreement of even date between the Company and NuVen, such
agreement incorporated herein by reference (the "Advisory Agreement").
NOW, THEREFORE, for and in consideration of the mutual promises herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and subject to the terms and conditions set forth
below, NuVen and the Company agree as follows:
1. The Option
The Company hereby grants to NuVen the option to acquire Five Hundred
Thousand (500,000) shares of the Company's Common Stock (the "Option"),
subject to adjustment as set forth herein (such shares, as adjusted, are
hereinafter referred to as the "Option Shares"), at a purchase price of
Fifty Cents ($.50) per share ("Option Price").
2. Term and Exercise of Option
A. Term of Option. Subject to the terms of this Agreement, Holder shall
have the right to exercise the Option in whole or in part, commencing
the date hereof through the close of business on July 1, 2004.
B. Exercise of the Option. The Option may be exercised upon written
notice to the Company at its principal office setting out the number of
Option Shares to be purchased, together with payment of the Option
Price.
C. Issuance of Option Shares. Upon such notice of exercise and payment of
the Option Price, the Company shall issue and cause to be delivered
within five (5) business days following the written order of Holder,
or its successor as provided for herein, and in such name or names as
the Holder may designate, a certificate or certificates for the number
of Option Shares so purchased. The rights of purchase represented by
the Option shall be exercisable, at the election of the Holder thereof,
either in full or from time to time in part, and in the event the
Option is exercised in respect of less than all of the Option Shares
purchasable on such exercise at any time prior to the date of
expiration hereof, the remaining Option Shares shall continue to be
subject to adjustment as set forth in paragraph 4 hereof. The Company
irrevocably agrees to reconstitute the Option Shares as provided
herein.
<PAGE>
3. Reservation of Option Shares
The Company shall at all times keep reserved and available, out of its
authorized Common Stock, such number of shares of Common Stock sufficient to
provide for the exercise of the Option represented by this Agreement. The
transfer agent for the Company's Common Stock and any successor transfer
agent for any shares of the Company's capital stock issuable upon the
exercise of any of such Option rights, will be irrevocably authorized and
directed at all times by the Company in writing to reserve such number of
shares. The Company will cause a copy of this Agreement to be kept on file
with the Company's current transfer agent or its successors.
4. Adjustment of Option Shares
The number of Option Shares purchasable pursuant to this Agreement shall be
subject to adjustment from time to time upon the occurrence of certain
events, as follows:
A. Adjustment for Recapitalization. In the event the Company shall
(a) subdivide its outstanding shares of Common Stock, or (b) issue
or convert by a reclassification or recapitalization of its shares of
Common Stock into, for, or with other securities (a
"Recapitalization"), the number of Option Shares purchasable hereunder
immediately following such Recapitalization shall be adjusted so that
the Holder shall be entitled to receive the kind and number of Option
Shares or other securities of the Company measured as a percentage of
the total issued and outstanding shares of the Company's Common Stock
as of the date hereof, which it would have been entitled to receive
immediately preceding such Recapitalization, had such Option been
exercised immediately prior to the happening of such event or any
record date with respect thereto; provided however that, in the event
of any change in the Company's Common Stock by reason of a reverse
stock split, neither the number nor the Option Price of the shares
subject to this Option shall be changed or be adjusted.
B. Preservation of Purchase Rights Under Consolidation. Subject to
paragraph 4 above, in case of any Recapitalization or any other
consolidation of the Company with or merger of the Company into another
corporation, or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or
substantially as an entirety, the Company shall prior to the closing of
such transaction, cause such successor or purchasing corporation, as
the case may be, to acknowledge and accept responsibility for the
Company's obligations hereunder and to grant the Holder the right
thereafter upon payment of the Option Price to purchase the kind and
amount of shares and other securities and property which he would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance. The provisions of this
paragraph shall similarly apply to successive consolidations, mergers,
sales or conveyances.
C. Notice of Adjustment. Whenever the number of Option Shares purchasable
hereunder is adjusted, as herein provided, the Company shall mail by
first class mail, postage prepaid, to the Holder notice of such
adjustment or adjustments, and shall deliver to Holder setting forth
the adjusted number of Option Shares purchasable and a brief statement
of the facts requiring such adjustment, including the computation by
which such adjustment was made.
5. Failure to Deliver Option Shares Constitutes Breach Under Advisory Agreement
Failure by the Company, for any reason, to deliver the certificates
representing any shares purchased pursuant to this Option within the five
(5) business day period set forth in paragraph 2 above, or the placement of
a Stop Transfer order by the Company on any Option Shares once issued, shall
<PAGE>
constitute a "Breach" under the Advisory Agreement and, for the purpose of
determining the terms of this Agreement, shall automatically toll the
expiration of this Agreement for a period of time equal to the delay in
delivering the subject shares or term of the Stop Transfer order.
6. Indemnification for Section 16 (b) Violation
The Company agrees to indemnify NuVen for expenses and the payment of
profits arising from the exercise of the Option and sale by NuVen of Option
Shares in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
7. Assignment
The Option represented by this Agreement may only be assigned or transferred
by NuVen to an Affiliate or subsidiary, or as the result of a corporate
reorganization or recapitalization. For the purpose of this Option the term
"Affiliate" shall be defined as a person or enterprise that directly, or
indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with the Company otherwise, this Agreement
and the rights hereunder shall not be assigned by either party hereto.
8. Counterparts
A facsimile, telecopy or other reproduction of this instrument may be
executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all parties
agree to execute an original of this instrument as well as any facsimile,
telecopy or other reproduction hereof.
9. Further Documentation
Each party hereto agrees to execute such additional instruments and take
such action as may be reasonably requested by the other party to affect the
transaction, or otherwise to carry out the intent and purposes of this
Agreement.
10. Notices
All notices and other communications hereunder shall be in writing and shall
be sent by prepaid first class mail to the parties at the following
addresses, as amended by the parties with written notice to the other:
To NuVen: Fred G. Luke
NuVen Advisor Limited Partnership
4695 MacArthur Court, Suite #530
Newport Beach, CA 92660
Telephone: (949) 833-2094
Telefax: (949) 833-7854
With copy to: Weed & Co. L.P.
4695 MacArthur Court, Suite 530
Newport Beach, California 92660
Telephone: (949) 833-5363
Facsimile: (949) 833-5384
<PAGE>
To the Company: Casino Management of America, Inc.
4695 MacArthur Court, Suite 530
Newport Beach, California 92660
Telephone: (949) 833-5358
Facsimile: (949) 833-7854
11. Counterparts
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. Governing Law
This Agreement was negotiated, and shall be governed by the laws of Nevada
notwithstanding any conflict-of-law provision to the contrary.
13. Entire Agreement
This Agreement sets forth the entire understanding between the parties
hereto and no other prior written or oral statement or agreement shall be
recognized or enforced.
14. Severability
If a court of competent jurisdiction determines that any clause or
provision of this Agreement is invalid, illegal or unenforceable, the other
clauses and provisions of the Agreement shall remain in full force and
effect and the clauses and provision which are determined to be void,
illegal or unenforceable shall be limited so that they shall remain in
effect to the extent permissible by law.
15. Amendment or Waiver
Every right and remedy provided herein shall be cumulative with every other
right and remedy, whether conferred herein, at law, or in equity, and may
be enforced concurrently herewith, and no waiver by any party of the
performance of any obligation by the other shall be construed as a waiver
of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to Closing, this Agreement may be
amended by a writing signed by all parties hereto.
16. Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first written above.
"NuVen"
Fred G. Luke, dba
NuVen Advisor Limited Partnership
By: /s/ Fred G. Luke
Name: Fred G. Luke
Title: General Partner
The "Company"
Casino Management of America, Inc.
a Nevada corporation
By: /s/ Jon L. Lawver
Name: Jon L. Lawver
Title: Director
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We agree to the inclusion in this Form 10-SB of our report, dated November 18,
1999, on our audit of the financial statements of Casino Management of America,
Inc. as of June 30, 1999 and for each of the years in the two-year period then
ended.
/s/ HASKELL & WHITE LLP
Haskell & White LLP
Irvine, California
March 6, 2000
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
EXHIBIT 27
FINANCIAL DATA SCHEDULE
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 12-MOS
<FISCAL-YEAR-END> JUN-30-1999 JUN-30-1999
<PERIOD-START> JUL-1-1999 JUL-1-1998
<PERIOD-END> DEC-31-1999 JUN-30-1999
<CASH> 45 45
<SECURITIES> 0 0
<RECEIVABLES> 39,200 39,200
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 39,245 39,245
<PP&E> 0 0
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 39,245 39,245
<CURRENT-LIABILITIES> 209,660 188,660
<BONDS> 0 0
0 0
3,000 3,000
<COMMON> 8,125 8,125
<OTHER-SE> (181,540) (160,540)
<TOTAL-LIABILITY-AND-EQUITY> 39,245 39,245
<SALES> 0 0
<TOTAL-REVENUES> 0 0
<CGS> 0 0
<TOTAL-COSTS> 21,000 138,263
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> (21,000) (138,263)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (21,000) (138,263)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 53,000
<NET-INCOME> (21,000) (138,263)
<EPS-BASIC> (0.03) (0.17)
<EPS-DILUTED> (0.03) (0.17)
</TABLE>
EXHIBIT 99.1
Nevada Revised Statutes
78.7502. Discretionary and mandatory indemnification of officers, directors,
employees and agents:
General provisions.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer or
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgment, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in and not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in and not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matters to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit was
brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnify for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
