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 (g) of the Securities Exchange Act of 1934
MESA COUNTY BREWING CO.
(Name of Small Business Issuer in its charter)
COLORADO 84-1191355
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4155 E. Jewell Ave., Ste. 909, Denver, CO 80222
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (303) 691-6163
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON
------
(Title of class)
(Title of class)
<PAGE>
PART I
Alternative 1.
--------------
The Company has elected to furnish the information required by Questions 1,
3, 4, 11, 14-20, 28-43, 45, and 47-50 of Model A of Form 1-A, as follows:
THE COMPANY
1. Exact corporate name: Mesa County Brewing Co.
State and date of incorporation: Colorado - September 16, 1991.
Street address of principal office: 4155 East Jewell Avenue, Suite 909,
Denver, Colorado 80222
Company Telephone Number: 303-691-6163 Fiscal Year: February 28.
Person(s) to contact at Company: Edward H. Hawkins
Telephone Number (if different from above:) N/A
BUSINESS AND PROPERTIES/
3. With respect to the business of the Company and its properties:
(a) Describe in detail what business the Company does and proposes to do,
including what products or goods are or will be produced or services that are or
will be rendered.
The Company is a small organization, just beginning its operation,
despite the fact the Company was incorporated in 1991. The officers
and directors as well as some of the shareholders are admirers of
various types of beers being brewed by small breweries, and have
observed that, although each brewing facility distributes information
about its organization and products, there is no consolidated printed
information which can be distributed to the general beer drinking
public by microbreweries and brewpubs as promotional materials.
Information by trade associations is slanted toward brewers rather
than the beer drinking public. As a result the Company believes that
is a niche that can be filled in disbursing information about craft
beers and the people and organizations who brew them.
The Company produces and proposes to produce consolidated information
and data relating to brewpubs and microbreweries located in the area
generally described as the Rocky Mountain area, comprised of the
states of Montana, Wyoming, Utah, Colorado, Arizona and New Mexico,
and the various beers which are brewed by these establishments.
(b) Describe how these products or services are to be produced or rendered
and how and when the Company intends to carry out its activities. If the Company
plans to offer a new product(s), state the present stage of development,
<PAGE>
including whether or not a working prototype(s) is in existence. Indicate if
completion of development of the product would require a material amount of the
resources of the Company, and the estimated amount. If the Company is or is
expected to be dependent upon one or a limited number of suppliers for essential
raw materials, energy or other items, describe. Describe any major existing
supply contracts.
Information and data about brewpubs and microbreweries are collected
and assembled in part from public state and federal data banks
relating to liquor and restaurant licensing. In addition, the Company
acquires information and retail documentation from various trade
associations and organizations. This information is compiled,
catalogued and disbursed in several ways including printed brochures,
pamphlets, promotional items, and through internet sites.
Preliminarily, the acquisition and assemblage of the information and
data will not require a material amount of resources of the Company.
(c) Describe the industry in which the Company is selling or expects to
sell its products or services and, where applicable, any recognized trends
within that industry. Describe that part of the industry and the geographic area
in which the business competes or will compete.
Indicate whether competition is or is expected to be by price, service, or
other basis. Indicate (by attached table if appropriate) the current or
anticipated prices or price ranges for the Company's products or services, or
the formula for determining prices, and how these prices compare with those of
competitors' products or services, including a description of any variations in
product or service features. Name the principal competitors that the Company has
or expects to have in its area of competition. Indicate the relative size and
financial and market strengths of the Company's competitors in the area of
competition in which the Company is or will be operating. State why the Company
believes it can effectively compete with these and other companies in its area
of competition.
According to numerous sources, there are approximately thirty-three
specialty breweries in the United States, four hundred fifty
microbreweries, and eight hundred, fifty brewpubs. A specialty brewery
is defined in the brewing industry as a brewery which specializes in
an all-malt, specialty, proprietary beer. A microbrewery is defined as
a brewery which brews its beer in small amounts, less than 15,000
barrels per year and distributes only in its local area. A brewpub is
a brewery which is self contained within, or adjacent to, a restaurant
and is generally designed to mimic a British or Irish pub. Brewers of
these types are generally lumped together in a term known as "craft-
brewers."
Additionally there are approximately 142 contract brewers that brew or
sell private label beer for their clients. These brewers may or may
not brew one or more specialty beers with their own label. The
Institute for Brewing Studies, a division of the Association of
Brewers reports that the total craft-brewing industry dollar volume
for 1996 was $2.867 trillion.
<PAGE>
In the Company's target sales area, there are approximately 145
microbrewers and brewpubs in the State of Colorado with the largest
grouping in metropolitan Denver numbering 54. The next largest
grouping is north of Denver encompassing Boulder and Ft. Collins, each
being college towns and numbering in total 31. There are approximately
14 of such establishments in Arizona, 14 in Montana, 3 in Wyoming, 11
in Utah, and 13 in New Mexico. The exact number of establishments
changes frequently as some organizations founder and close, others
consolidate and merge, while other new ones emerge from time to time.
The Company sees this fluctuating number of microbrewers and brewpubs
as an advantage to its business as the documentation of these
organizations and the products they produce will, of necessity, need
to be updated monthly or quarterly.
Exact data for microbreweries and brewpubs from trade associations and
other data banks have been, and will likely continue to be, difficult
to obtain and the most recent reliable information is for the product
year 1996. The Company has been able to generate only a smattering of
national information for the years 1997 and 1998. Although the
craft-brewing industry does not attempt to discourage the gathering of
such information, the units of the industry are so wide-spread,
fast-growing and diversified that the industry associations may quite
possibly find it difficult to keep up with the facts.
The Company does not intend to become a gathering or source depository
for industry data, but will report such data to media and promotional
organizations. The primary thrust of the Company is the coordinate a
listing of microbrews and brewpubs for release to the general public
as an encouragement to patronize these establishments and products. To
facilitate this publishing effort, the Company will rely on
advertising revenue for space sales in printed and internet media. The
printed materials will be made available to advertisers for free
handouts at various public events, gatherings, concerts, etc.
Competition from other companies which may or may not be engaged in
the same or similar business is difficult to ascertain at the present
time. General circulation newspapers publish local restaurant and bar
information from time to time in restaurant and entertainment guides,
but the Company has determined that these listings are infrequent and
often times obsolete after several months. Some data are disbursed by
industry associations but this information is usually of a technical
nature and of small use to retail customers of microbrewery products
and brewpubs. The Company believes it can compete successfully as it
has determined that although the information and data are available
from many scattered sources in numerous forms, no company to the
Company's knowledge has yet compiled such information in an organized
and useful manner with the thrust to the retail customer and beer
affectionados.
(d) Describe specifically the marketing strategies the Company is employing
or will employ in penetrating its market or in developing a new market. Set
<PAGE>
forth in response to Question 4 below the timing and size of the results of this
effort which will be necessary in order for the Company to be profitable.
Indicate how and by whom its products or services are or will be marketed (such
as by advertising, personal contact by sales representatives, etc.), how its
marketing structure operates or will operate and the basis of its marketing
approach, including any market studies. Name any customers that account for, or
based upon existing orders will account for a major portion (20% or more) of the
Company's sales. Describe any major existing sales contracts.
The Company intends to market its products to microbreweries and
brewpubs as advertisers in its printed and other media. The Company
will use its officers to accomplish the commencement of its sales
advertising efforts and may, at the Company's option, employ
independent advertising sales organizations to sell its advertising on
a commission basis. The Company does not have any contracts at the
time of this registration.
(e) State the backlog of written firm orders for products and/or services
as of a recent date (within the last 90 days) and compare it with the backlog of
a year ago from that date:
As of: 01/ 01/99 $ -0-
(a recent date)
As of: ___/___/___ $ -0-
(one year earlier)
Explain the reason for significant variations between the two figures, if
any. Indicate what types and amounts of orders are included in the backlog
figures. State the size of typical orders. If the Company's sales are
seasonal or cyclical, explain. NOT APPLICABLE
(f) State the number of the Company's recent employees and the number of
employees it anticipates it will have within the next 12 months. Also, indicate
the number of type of employee (i.e., clerical, operations, administrative,
etc.) The Company will use, whether or not any of them are subject to collective
bargaining agreements, and the expiration date(s) of any collective bargaining
agreement(s). If the Company's employees are on strike, or have been in the past
three years, or are threatening to strike, describe the dispute. Indicate any
supplemental benefits or incentive arrangements the Company has or will have
with its employees.
The only employees of the Company are its President and Secretary. The
Company has made no determination about additional employees. If the
revenues of the Company are obtained through its advertising sales,
the Company estimates that it may need to hire up to three staff
employees in a clerical jobs. Additionally, the Company may, as noted
above, employ contract sales persons or organizations on a commission
basis to assist in its marketing of advertising.
(g) Describe generally the principal properties (such as real estate, plant
and equipment, patents, etc.) That the Company owns, indicating also what
<PAGE>
properties it leases and a summary of the terms under those leases, including
the amount of payments, expiration dates and the terms of any renewal options.
Indicate what properties the Company intends to acquire in the immediate future,
the cost of such acquisitions and the sources of financing it expects to use in
obtaining these properties, whether by purchase, lease or otherwise.
The Company owns no properties and does not contemplate any such
ownership in the near future.
(h) Indicate the extent to which the Company's operations depend or are
expected to depend upon patents, copyrights, trade secrets, know-how or other
proprietary information and the steps undertaken to secure and protect this
intellectual property, including any use of confidentiality agreements,
covenants-not-to-compete and the like. Summarize the principal terms and
expiration dates of any significant license agreements. Indicate the amounts
expended by the Company for research and development during the last fiscal
year, the amount expected to be spent this year and what percentage of revenues
research and development expenditures were for the last fiscal year.
The Company does not depend on patents, copyrights, trade secrets,
proprietary know-how. The Company anticipates that some of its printed
and other materials will be copyrighted. The Company expended no
monies for research and development in previous years.
(i) If the Company's business, products, or properties are subject to
material regulation (including environmental regulation) by federal, state, or
local governmental agencies, indicate the nature and extent of regulation and
its effects or potential effects upon the Company.
The Company is not subject to governmental regulation in its
publishing efforts other than local state and municipal sales tax
licenses.
(j) State the names of any subsidiaries of the Company, their business
purposes and ownership, and indicate which are included in the Financial
Statements attached hereto. If not included, or if included by not consolidated,
please explain.
NONE
(k) Summarize the material events in the development of the Company
(including any material mergers or acquisitions) during the past five years, or
for whatever lesser period the Company has been in existence. Discuss any
pending or anticipated mergers, acquisitions, spin-offs or recapitalizations. If
the Company has recently undergone a stock split, stock dividend or
recapitalization in anticipation of this offering, describe (and adjust
historical per share figures elsewhere in this Offering Circular accordingly).
The Company is unable to ascertain what this last sentence means as this is not
an offering. Shares have already been sold.
The Company is substantially a start-up company which, although having
been incorporated in 1991, has had no operations to this date other
than the preparatory efforts by its officers and directors in the work
of identifying and gathering of information preliminary to designing
its advertising campaigns.
<PAGE>
4.
(a)If the Company was not profitable during its last fiscal year, list
below in chronological order the events which in management's opinion must or
should occur or the milestones which in management's opinion the Company must or
should reach in order for the Company to become profitable, and indicate the
expected manner of occurrence or the expected method by which the Company will
achieve the milestones.
- --------------------------------------------------------------------------------
Date or number of months
Expected manner of occurrence after receipt of proceeds
Event of Milestone or method of achievement when should be accomplished
- --------------------------------------------------------------------------------
Continued gathering Officers' efforts 3 months
of data
Design of product Officers' efforts 4 months
Selling of advertising Officers' efforts 5 months
And commission
Sales persons
Publication of data Officers' efforts 6 months
(b) State the probable consequences to the Company of delays in achieving
each of the events or milestones within the above time schedule, and
particularly the effect of any delays upon the Company's liquidity in view of
the Company's then anticipated level of operating costs. (See Question No. 11)
If the Company is unable to meet its deadline in the accomplishments
of the above milestones, the Company may be faced with the raising of
additional equity funds to continue its business plan. In this case
there is no assurance whatsoever that the Company will have these
funds available. If not, the Company may not be able to continue its
operation.
11. Indicate whether the Company is having or anticipates having within the
next 12 months any cash flow or liquidity problems and whether or not it is
in default or in breach of any note, loan, lease or other indebtedness or
financing arrangement requiring the Company to make payments. Indicate if a
significant amount of the Company's trade payables have not been paid
within the stated trade term. State whether the Company is subject to any
unsatisfied judgments, liens or settlement obligations and the amounts
thereof. Indicate the Company's plans to resolve any such problems.
<PAGE>
The Company has no debt and no judgements pending or otherwise.
DESCRIPTION OF SECURITIES
14. The securities being registered hereby are:
[x] Common Stock
[ ] Preferred or Preference Stock
[ ] Notes or Debentures
[ ] Units of two or more types of securities composed of:
[ ] Other:
These securities have:
15. Yes No
--- --
[ ] [x] Cumulative voting rights
[ ] [x] Other special voting rights
[ ] [x] Preemptive rights to purchase in new issues of shares
[ ] [x] Preference as to dividends or interest
[ ] [x] Preference upon liquidation
Other special rights or preferences (specify):
Explain: NOT APPLICABLE
16. Are the securities convertible? [ ] Yes [x] No
If so, state conversion price or formula. NOT APPLICABLE
Date when conversion becomes effective: ______/______/______
Date when conversion expires: ______/______/______
17. (a) If securities are notes or other types of debt securities: NOT
APPLICABLE
1. What is the interest rate? ________%
If interest rate is variable or multiple rates, describe:
2. What is the maturity date? ______/______/______
If serial maturity dates, describe:
3. Is there a mandatory sinking fund? [ ] Yes [x] No
Describe:
4. Is there a trust indenture? [ ] Yes [x] No
Name, address and telephone number of Trustee:
5. Are the securities callable or subject to redemption?
[ ] Yes [x] No Describe, including redemption prices:
6. Are the securities collateralized by real or personal property?
[ ] Yes [x] No
Describe:
<PAGE>
7. If these securities are subordinated in right of payment of
interest or principal, explain the terms of such subordination.
NOT APPLICABLE
How much currently outstanding indebtedness of the Company is
senior to the securities in right of payment of interest or
principal? $ NONE
How much indebtedness shares in right of payment on an equivalent
(pari passu) basis? $ NONE
How much indebtedness is junior (subordinated) to the securities?
$ NONE
(b) If notes or other types of debt securities are being offered and the
Company had earnings during its last fiscal year, show the ratio of
earnings to fixed charges on an actual and pro forma basis for that
fiscal year. "Earnings" means pretax income from continuing operations
plus fixed charges and capitalized interest. "Fixed charges" means
interest (including capitalized interest), amortization of debt
discount, premium and expense, preferred stock dividend requirements
of majority owned subsidiary, and such portion of rental expense as
can be demonstrated to be representative of the interest factor in the
particular case. The pro forma ratio of earnings to fixed charges
should include incremental interest expense as a result of the
offering of the notes or other debt securities.
The following is not applicable as this is not a debt offering and the
Company has not had a debt offering and does not contemplate such.
- --------------------------------------------------------------------------------
Last Fiscal Year
--------------------------
Actual Pro Forma
------------------
Minimum Maximum
- --------------------------------------------------------------------------------
"Earnings" = _____________ ________ ________
"Fixed Charges"
If no earnings
show "Fixed
Charges" Only _____________ ________ ________
18. If securities are Preference or Preferred stock: NOT APPLICABLE
Are unpaid dividends cumulative? |_| Yes |_| No
Are securities callable? |_| Yes |_| No
Explain:
<PAGE>
19. If securities are capital stock of any type, indicate restrictions on
dividends under loan or other financing arrangements or otherwise:
There are no such restrictions on the Common Stock.
Current amount of assets available for payment of dividends (if deficit
must be first made up, show deficit in parenthesis): $ NONE.
DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS
28. If the Company has within the last five years paid dividends, made
distributions upon its stock or redeemed any securities, explain how much
and when:
NONE
OFFICERS AND KEY PERSONNEL OF THE COMPANY
29. Chief Executive Officer: Title: President
Name: Robert R. Turner Age: 52
Office Street Address: 4155 E. Jewell Avenue Telephone No: 303-691-6163
Denver, CO 80222
Name of employers, titles and dates of positions held during past five
years with an indication of job responsibilities:
ROBERT R. TURNER has been the Secretary and Director of the Company since
January 15, 1998. Mr. Turner is also the manager of Accoustic Music Revival, a
musical instrument retail store. Additionally, since 1965, Mr. Turner has been,
and currently is, the President of Turner Company, a privately owned
communications company based in Denver, Colorado and Unicorn Publishing Co., a
privately held music recording and publishing company. Mr. Turner is a
performing artist and musician with 30 years experience as a marketing,
communications and advertising executive in record and audio-visual production,
entertainment performing and management, public relations; and a professional
composer, writer, producer, artist in music, television, and motion pictures. As
a professional entertainer he has appeared at Hollywood Bowl, Hollywood,
California; Harrah's Club, Lake Tahoe (Andy Griffith Show); Sands Hotel, Las
Vegas (Jerry Lewis Show); Showboat Hotel, Las Vegas; London House, Chicago; Ice
House, Pasadena, California; College concerts and nightclubs across the country
and special concerts in England, Switzerland and France. He has received the
following awards for his creative work in advertising production: Grand ALFIE
AWARD, Denver Advertising Federation, "Colorado Department of Tourism" 1985;
ALFIE AWARD, D.A.F. "Wood Bros. Homes" 1985; ALFIE AWARD, D.A.F. "Colorado
Better Air" 1985; ALFIE AWARD, D.A.F. "J. C. Penney" 1981; and National Art
Directors, "J. C. Penney" 1981. Mr. Turner was also the Secretary of Pub Singin'
<PAGE>
Inc., a private publishing company from January 15, 1997 to March 1 1998. Mr.
Turner attended the University of Colorado, Boulder, Colorado 1961-1964, Major:
Business Administration, Minor: Economics, and Colorado School of Mines, 1965,
Engineering. He has been a Guest Lecturer at Metro State College, Denver,
Colorado and the University of Colorado-Denver. Mr. Turner holds memberships in
the National Academy of Recording Arts and Science (NARAS), Screen Actors Guild
(SAG), American Federation of Television and Radio Artists (AFTRA), American
Federation of Musicians (AF of M), and Alpha Tau Omega Fraternity.
Education (degrees, school, and dates): Mr. Turner is a graduate of Lakewood,
Colorado High School. He attended the University of Colorado, Boulder, Colorado
1961-1964, Major: Business Administration, Minor: Economics, and Colorado School
of Mines, 1965, Engineering. He has been a Guest Lecturer at Metro State
College, Denver, Colorado and the University of Colorado-Denver.
Also a Director of the Company? [x] Yes [ ] No
Indicate amount of time to be spend on Company matters if less than full time:
Two days per month until fully operational.
31. Chief Financial Officer: Title: Secretary
Name: Edward H. Hawkins Age: 74
Office Street Address: 4155 E. Jewell Avenue Telephone No: 303-691-6163
Denver, CO 80222
Name of employers, titles and dates of position held during past five years
with an indication of job responsibilities:
EDWARD H. HAWKINS has been the Secretary of the Company since January 15,
1998. Mr. Hawkins is a management and financial consultant employed by RH
Consulting Group, Inc., Denver, Colorado. He is also a published author of three
novels and a motion picture screenwriter, producer and director, having produced
over 100 motion pictures and television programs. He is also the Secretary of
Sheffield Rounds, Ltd., a private publisher of archery information.
Education (degrees, schools, and dates): Mr. Hawkins is a graduate of
Osawatomie, Kansas High School. He attended University of California - San
Francisco Art College and adult education classes at Colorado University. He has
been a guest media instructor at Arapahoe Community College, Littleton,
Colorado.
Also a Director of the Company? [X] Yes [ ] No
Indicate amount of time to be spend on Company matters if less than full
time: Four days a month until fully operational.
<PAGE>
DIRECTORS OF THE COMPANY
33. Number of Directors: 2.
If Directors are not elected annually, or are elected under a voting trust
or other arrangement, explain: NOT APPLICABLE.
34. Information concerning outside or other Directors (i.e., those not
described above): NOT APPLICABLE.
1. Name: Age:
Office Street Address: Telephone No:
Names of employers, titles and dates of positions held during past
five years with an indication of job responsibilities:
Education (degrees, schools, and dates):
2. Name: Age:
Office Street Address: Telephone No:
Names of employers, titles and dates of positions held during past
five years with an indication of job responsibilities:
Education (degrees, schools, and dates):
35. (a) Have any of the Officers or Directors ever worked for or managed a
company (including a separate subsidiary or division of a larger
enterprise) in the same business as the Company? [ ] Yes [x] No
Explain:
(b) If any of the Officers, Directors or other key personnel have ever
worked for or managed a company in the same business or industry as
the Company or in a related business or industry, describe what
precautions, if any, (including the obtaining of releases or consents
from prior employers) have been taken to preclude claims by prior
employers for conversion or theft of trade secrets, know-how or other
proprietary information.
The officers and directors have never worked for or been involved in
the operation of a company which assembles and publishes information
and date pertaining to the microbrew and brewpub industries.
(c) If the Company has never conducted operations or is otherwise in the
development stage, indicate whether any of the Officers or Directors
has ever managed any other company in the start-up or development
stage and describe the circumstances, including relevant dates.
The officers and directors of the Company have never managed any other
<PAGE>
company in the development stage similar to the operations of the
Company.
(d) If any of the Company's key personnel are not employees but are
consultants or other independent contractors, state the details of
their engagement by the Company.
NONE
(e) If the Company has key man life insurance policies on any of its
Officers, Directors or key personnel, explain, including the names of
the persons insured, the amount of insurance, whether the insurance
proceeds are payable to the Company and whether there are arrangements
that require the proceeds to be used to redeem securities or pay
benefits to the estate of the insured person or a surviving spouse.
NONE
36. If a petition under the Bankruptcy Act or any State insolvency law was
filed by or against the Company or its Officers, Directors or other key
personnel, or a receiver, fiscal agent or similar officer was appointed by
a court for the business or property of any such persons, or any
partnership in which any of such persons was a general partner at or within
the past five years, or any corporation or business association of which
any such person was an executive officer at or within the past five years,
set forth below the name of such persons, and the nature and date of such
actions.
NOT APPLICABLE.
PRINCIPAL STOCKHOLDERS
37. Principal owners of the Company (those who beneficially own directly or
indirectly 10% or more of the common and preferred stock presently
outstanding) starting with the largest common stockholder. Include
separately all common stock issuable upon conversion of convertible
securities (identifying them by asterisk) and show average price per share
as if conversion has occurred. Indicate by footnote if the price paid was
for a consideration other than cash and the nature of any such
consideration.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Average No. of Shares
Class Price No. of % Held After %
of Per Shares of Offering if All of
Shares Share Now Held Total Securities Sold Total
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Name: Robert R. Turner Common $0005 60,000 3% 3% 3%
---------------- ------ ----- ------ -- -- --
Office Street Address:
4155 E. Jewell Avenue
Denver, CO 80222
Telephone No:
303.691-6163
Principal occupation:
Writer, Muscian
Name: Edward H. Hawkins Common $.0005 60,000 3% 3% 3%
----------------- ------ ------ ------ -- -- --
Office Street Address:
4155 E. Jewell Avenue
Denver, CO 80222
Telephone No:
303-691-6163
Principal occupation:
Multi-Media Consultant
</TABLE>
<PAGE>
38. Number of shares beneficially owned by Officers and Directors as a group:
(Note: This is not an offering. But Alternative 1, requires this item)
Before offering 120,000 shares (6% of total outstanding)_
After offering: a) Assuming minimum securities sold:
120,000 shares (6 % of total outstanding)
b) Assuming maximum securities sold:
120,000 shares (6% of total outstanding)
(Assume all options exercised and all convertible securities converted.)
NOT APPLICABLE
MANAGEMENT RELATIONSHIPS, TRANSACTIONS AND REMUNERATION
39. (a) If any of the Officers, Directors, key personnel or principal
stockholders are related by blood or marriage, please describe. NOT
APPLICABLE
2. If the Company has made loans to or is doing business with any of its
Officers, Directors, key personnel or 10% stockholders, or any of
their relatives (or any entity controlled directly or indirectly by
any such persons) within the last two years, or proposes to do so
within the future, explain. (This includes sales or lease of goods,
property or services to or from the Company, employment or stock
purchase contracts, etc.) State the principal terms of any significant
loans, agreements, leases, financing or other arrangements.
NONE
3. If any of the Company's Officers, Directors, key personnel or 10%
stockholders has guaranteed or co-signed any of the Company's bank
debt or other obligations, including any indebtedness to be retired
from the proceeds of this offering, explain and state the amounts
involved.
NONE.
40. (a) List all remuneration by the Company to Officers, Directors and key
personnel for the last fiscal year:
No remuneration was paid to the officers or directors of the Company
during the past fiscal year.
<PAGE>
- --------------------------------------------------------------------------------
41. (a) Number of shares subject to issuance under presently outstanding stock
purchase agreements, stock options, warrants or rights: shares ( % of
total shares to be outstanding after the completion of the offering if
all securities sold, assuming exercise of options and conversion of
convertible securities). Indicate which have been approved by
shareholders. State the expiration dates, exercise prices and other
basic terms for these securities:
NOT APPLICABLE.
2. Number of common shares subject to issuance under existing stock
purchase or option plans but not yet covered by outstanding purchase
agreements, options or warrants: shares.
NOT APPLICABLE.
3. Describe the extent to which future stock purchase agreements, stock
options, warrants or rights must be approved by shareholders.
NOT APPLICABLE.
42. If the business is highly dependent on the services of certain key
personnel, describe any arrangements to assure that these persons will
remain with the Company and not compete upon any termination.
The business of the company is highly dependent upon the services of the
officers and directors of the Company. If these persons were not available
for any reason, the Company feels it would not be difficult to find other
persons with like-in-kind abilities, but it is undetermined whether the
Company could attract such persons at the price or salary which the Company
might be able to pay. The Company has no non-compete agreements with its
officers and directors and in the absence of such agreements, the Company
is at risk with respect to the competitiveness of its officers and
directors if such persons decide to leave the employ of the Company and
seek other employment with companies which may be in a position to compete.
After reviewing the above, potential investors should consider whether or
not the compensation to management and other key personnel directly or
indirectly, is reasonable in view of the present stage of the Company's
development.
LITIGATION
43. Describe any past, pending or threatened litigation or administrative
action which has had or may have a material effect upon the Company's
business, financial condition, or operations, including any litigation or
action involving the Company's Officers, Directors or other key personnel.
State the names of the principal parties, the nature and current status of
the matters, and amounts involved. Give an evaluation by management or
<PAGE>
counsel, to the extent feasible, of the merits of the proceedings or
litigation and the potential impact on the Company's business, financial
condition, or operations.
The Company is not engaged in any litigation of any kind and none is
anticipated.
MISCELLANEOUS FACTORS
45. Describe any other material factors, either adverse or favorable, that will
or could affect the Company or its business (for example, discuss any
defaults under major contracts, any breach of bylaw provisions, etc.) or
which are necessary to make any other information in this Offering Circular
[registration statement in this case as this is not an offering circular]
not misleading or incomplete.
The Company is just entering into an enterprise which may be designated as
a start-up business. The Company has never engaged in this type of business
and the members of management have had no experience in the business of the
Company, but have similar experience in publication and media. At the time
of this registration the Company has no contracts and has had no revenues
or profits. The Company is registering its common stock under the
Securities Exchange Act of 1934, as amended, with the prospect that in the
future, if the Company is successful in its endeavors as described in its
business plan, the common stock of the Company will be traded on one or
more of the national exchanges and one of the major requirements of such
exchanges is that the Company must be a reporting company under the
provisions of the Securities Exchange Act of 1934, as amended. Therefore,
the directors of the Company have determined that it is in the best
interest of the shareholders of the Company that the Company undertake to
register the shares of common stock to facilitate any future trading on one
or more of the U.S. stock exchanges, so the sale of the shares of the the
Company held by the shareholders will not be impeded or delayed by reason
of any restrictions attributable to the lack of registration by the
Company.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CERTAIN RELEVANT FACTORS
47. If the Company's financial statements show losses from operations, explain
the causes underlying these losses and what steps the Company has taken or
is taking to address these causes.
The Company has had no revenues or profits since its commencement. This is
due primarily to the Company's activities encompassing only the design,
collection and organization of information and data pursuant to its
business plan. The Company expects to continue this mode of operation until
it has completed its organization of material assemblage which will further
its business plan and make ready for sale of such information and data to
its expected customers.
<PAGE>
48. Describe any trends in the Company's historical operating results. Indicate
any changes now occurring in the underlying economics of the industry or
the Company's business which, in the opinion of Management, will have a
significant impact (either favorable or adverse) upon the Company's results
of operations within the next 12 months, and give a rough estimate of the
probable extent of the impact, if possible.
The Company has ascertained that information and data pertaining to
microbreweries and brewpubs are available but is diverse and hard to
assemble. It is the belief of the Company that this situation will persist
for the immediate future . The Company knows of no other company in the
six-state Rocky Mountain area designated by the Company as its marketing
area which is currently engaged in a similar business to the Company. If
another company sees fit to engaged in a similar business and is better
equipped and better financed that the Company, the Company will be at a
serious disadvantage in its marketing efforts. On the other hand, the
Company may have found a marketing nicheuntil some company structures its
operation to resemble the business plan of the Company to supply a
coordinated assemblage of information which will be useful to the general
retail public and attractive to the industry.
49. If the Company sells a product or products and has had significant sales
during its last fiscal year, state the existing gross margin (net sales
less cost of such sales as presented in accordance with generally accepted
accounting principals) as a percentage of sales for the last fiscal year:
%. What is the anticipated gross margin for next year of operations?
Approximately %. If this is expected to change, explain. Also, if
reasonably current gross margin figures are available for the industry,
indicate these figures and the source or sources from which they are
obtained.
The Company has had no sales or revenues.
50. Foreign sales as a percent of total sales for last fiscal year:
%. Domestic government
sales as a percent of total domestic sales for last fiscal year:
%. Explain the nature of
these sales, including any anticipated changes:
The Company has had no foreign sales or revenues therefrom and does not
contemplate any such sales or revenues in the future.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Other shareholder matters.
Information required by Item 201 of Regulation S-B.
(a) Market Information. There is no market price on the Company's common
stock as the shares are not trading at the time of this registration
statement.
<PAGE>
(b) Holders. At the date of January 25, there are 33 holders of the common
equity of the Company.
(c) Dividends. The Company has paid no dividends and does not contemplate
any dividends during the next two fiscal years.
Item 2. Legal Procedings
If the registrant uses either Alternative 2 or Alternative 3 of this form,
furnish the information required by Item 103 of Regulation S-B.
Not Applicable. The registrant is using Alternative 1.
Item 3. Changes in and Disagreements with Accountants
Furnish the information required by Item 304 of Regulation S-B.
There have been no changes of and no disagreement with accountants on
accounting and financial disclosure.
Item 4. Recent sales of Unregistered Securities
Furnish the information required by Item 701 of Regulation S-B.
On February 5, 1998, the Company sold 45,000 shares of its no par Preferred
Stock under the exemption provided by Section 4(2) of the Securities Act of
1933 as amended (the "Act"). The shares were sold in a private offering to
one shareholder and such shares were and are restricted from sale and only
may be sold under an exemption available under Rule 144.
Commencing on February 4, 1998, and closing on May 20, 1998, the Company
sold 2,240,000 shares of its no par Common Stock under the exemption
provided by Regulation D, Rule 504 of the Securities Act of `1933, as
amended, as set forth in the Notice of Sale of Securities Pursuant to
Regulation D, Section 4(6), and/or Uniform Limited Offering Exemption on
Form D as filed with the U.S. Securities and Exchange Commission on
February 4, 1998 and the Colorado Division of Securities. 120,000 shares of
this sale are "restricted" shares by reason of being held by "affiliates"
as defined under rules of the Act..
No underwriter was involved in either offering.
With respect to an opinion from the Company's securities counsel, the
Company believes, and has relied upon the belief that, the 2,240,000 shares
of its no par Common Stock as offered and sold are exempt from registration
under the Securities Act of 1933, as amended, by reason that (i) such
reliance and the offers and sales were not a part of any plan to evade any
<PAGE>
otherwise applicable registration provisions of the Act or Colorado
statutes; (ii) the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended;
(iii) the Company is not an investment company within the meaning of the
Investment Company Act of 1940, as amended; and at no time his the Company
been a development company that either has no specific business plan or
purpose or had indicated that its business plan is to engage in a merger or
acquisition with an unidentified company or companies, or other entity of
person, and (iv) the Company did not exceed, at the time of or preceding
its offering or has not and will not exceed following such offering for a
period of one year, the dollar limitation of $1,000,000 in the sale of its
common shares.
Item 5. Indemnification of Directors and Officers
Furnish the information required by Item 702 of Regulation S-B.
So far as permitted by the Colorado Business Corporation Act, the Company's
Articles of Incorporation provide that the Company will indemnify its
directors and officers against expenses and liabilities they incur to
defend, settle or satisfy any civil or criminal action brought against them
on account of their being or having been Company directors or officers
unless, in any such action, they are adjudged to have acted with gross
negligence or to have engaged in willful misconduct. Insofar as
indemnification for liabilities arising under the Securities Act of 1933,
as amended, and the Securities Exchange Act of 1934, as amended,
(collectively, the "Acts") may be permitted to directors, officers or
controlling persons pursuant to foregoing provisions, the Company has been
informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Acts and
is, therefore, unenforceable.
PART F/S
Furnish the information required by Item 310 of Regulation S-B.
The audited financial statements for the fiscal year ended February 28,
1998, and the unaudited quarterly financial statements for the quarter-years
ended November 30, 1998, follow:
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Balance Sheet
- --------------------------------------------------------------------------------
Unaudited Audited
November February
30, 1998 28, 1998
-------- --------
ASSETS
Current Assets - Cash $ 2,121 $ 3,895
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES $ 0 $ 0
------- -------
SHAREHOLDERS' EQUITY
Preferred Stock, No Par Value,
Non Voting, Authorized 5,000,000 shares;
Issued And Outstanding 40,000 Shares 4,000 4,000
Common Stock, No Par Value
Authorized 50,000,000 shares;
Issued and Outstanding 200,000 Shares
February 28, 1998 and 2,240,000 Shares
Issued and Outstanding (Unaudited) 1,120 100
Deficit Accumulated During
The Development Stage (2,999) (205)
------- -------
TOTAL SHAREHOLDERS' EQUITY 2,121 3,895
------- -------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 2,121 $ 3,895
======= =======
The Accompanying Notes Are An Integral Part
Of These Unaudited Financial Statements.
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Unaudited Statement Of Operations
- --------------------------------------------------------------------------------
Unaudited Unaudited
3 Month 3 Month
Period Ended Period Ended
November November
30, 1998 30, 1997
---------- ----------
Revenue $ 0 $ 0
---------- ----------
Fees 0 0
Total Expenses 0 0
Net (Loss) $ 0 $ 0
========== ==========
Basic (Loss) Per Common Share $ 0.00 $ 0.00
========== ==========
Weighted Average Common Shares Outstanding 1,220,000 0
========== ==========
The Accompanying Notes Are An Integral Part
Of These Unaudited Financial Statements.
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Unaudited Statement Of Operations
- -----------------------------------------------------------------------------------------------------------------
Unaudited
September
Unaudited Unaudited 16, 1991
9 Month 9 Month (Inception)
Period Ended Period Ended Through
November November November
30, 1998 30, 1997 30, 1998
<S> <C> <C> <C>
Revenue $ 0 $ 0 $ 0
----------- ----------- -----------
Accounting 1,250 0 1,250
Bank Charges 18 0 18
Office 0 0 205
Legal 1,526 0 1,526
----------- ----------- -----------
Total Expenses 2,794 0 2,999
----------- ----------- -----------
Net (Loss) ($ 2,794) $ 0 (2,999)
=========== =========== ===========
Basic (Loss) Per Common Share ($ 0.00) $ 0.00
=========== ===========
Weighted Average Common Shares Outstanding 1,220,000 0
=========== ===========
The Accompanying Notes Are An Integral Part Of These Unaudited Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Unaudited Statement Of Cash Flow
- ------------------------------------------------------------------------------------------------------
Unaudited
September
Unaudited Unaudited 16, 1991
9 Month 9 Month (Inception)
Period Ended Period Ended Through
November November November
30, 1998 30, 1997 30, 1998
-------- -------- --------
<S> <C> <C> <C>
Net (Loss) ($2,794) $ 0 ($2,999)
------- ------- -------
Plus Items Not Affecting Cash Flow: 0 0 0
0 0 0
------- ------- -------
Net Cash Flows From Operations (2,794) 0 (2,999)
------- ------- -------
Cash Flows From Investing Activities:
Net Cash Flows From Investing: 0 0 0
Cash Flows From Financing Activities:
Common Stock Issued For Cash 1,020 1,120
Preferred Stock Issued For Cash 0 0 4,000
------- ------- -------
Net Cash Flows From Financing: 1,020 0 5,120
------- ------- -------
Net Increase (Decrease) In Cash (1,774) 0 2,121
Cash At Beginning Of Period 3,895 0 0
------- ------- -------
Cash At End Of Period $ 2,121 $ 0 $ 2,121
======= ======= =======
Summary Of Non-Cash Investing
And Financing Activities: $ 0 $ 0 $ 0
======= ======= =======
The Accompanying Notes Are An Integral Part Of These Unaudited Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Statement Of Shareholders' Equity
- ------------------------------------------------------------------------------------------------------------------------------------
Net (Loss)
Accumulated
Number Of Number Of During The
Shares Shares Preferred Common Development
Preferred Common Stock Stock Stage Total
--------- ------ ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Balance At September 16, 1991 and
February 28, 1992, 1993, 1994, 1995
1996 and 1997 0 0 $ 0 $ 0 $ 0 $ 0
February 3, 1998 issued
200,000 Shares Of No Par Value
Common Stock for cash of $100
or $.0005 per share 200,000 100 100
February 5, 1998 issued
40,000 Shares Of No Par Value
Preferred Stock for cash of $4,000
or $.10 per share 40,000 4,000 4,000
Net (Loss) (205) (205)
--------- --------- ---------- ---------- ---------- ---------
Balance At February 28, 1998 40,000 200,000 4,000 100 (205) 3,895
May 1998 issued 2,040,000 Shares
of No Par Value Common Stock
for Cash of $1,120 or $.0005 Per Share 2,040,000 1,020 1,020
Net (Loss) (2,794) (2,794)
--------- --------- ---------- ---------- ---------- ---------
Unaudited Balance At November 30, 1998 40,000 2,240,000 $ 4,000 $ 1,120 ($ 2,999) $ 2,121
========= ========= ========== ========== ========== =========
The Accompanying Notes Are An Integral Part Of These Unaudited Financial Statements.
</TABLE>
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Notes To Unaudited Financial Statements
For The Nine Month Period Ended November 30, 1998
- -------------------------------------------------
Note 1 - Unaudited Financial Information
- ----------------------------------------
The unaudited financial information included for the three month and nine month
periods ended November 30, 1998 and November 30, 1997 were taken from the books
and records without audit. However, such information reflects all adjustments
(consisting only of normal recurring adjustments, which are of the opinion of
management, necessary to reflect properly the results of interim periods
presented). The results of operations for the three month and nine month periods
ended November 30, 1998 are not necessarily indicative of the results expected
for the year ended February 28, 1999.
<PAGE>
Mesa County Brewing Co.
TABLE OF CONTENTS
Page
----
Independent Auditors' Report F - 1
Financial Statements
Balance Sheet F - 2
Statement of Operations F - 3
Statement of Cash Flows F - 4
Statement of Shareholder's Equity F - 5
Notes to the Financial Statements F- 6-9
<PAGE>
INDEPENDENT AUDITOR'S REPORT
We have audited the accompanying balance sheet of Mesa County Brewing Co. (a
Developmental Stage Company), at February 28, 1998 , and the related statement
of operations, shareholders' equity, and cash flows for the fiscal year ended
February 28, 1998 and 1997 and the period September 16, 1991 (inception) through
February 28, 1998.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 audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit 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 the overall financial statement
presentation. We believe that our audit provides 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 Mesa County Brewing Co. at
February 28, 1998 and the results of its operations and its cash flows for the
fiscal years ended February 28, 1998 and 1997 and the period September 16, 1991
(inception) through February 28, 1998 , in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming the Company
will continue as a going concern. As discussed in Note 5 to the financial
statements, the Company is in the development stage and has no operations as of
February 28, 1998. The lack of sufficient working capital to operate as of
February 28, 1998 raises substantial doubt about its ability to continue as a
going concern. Management's plans concerning these matters are also described in
Note 5. The financial statements do not include any adjustments that might
result from the outcome of these uncertainties.
Kish, Leake & Associates, P.C.
Certified Public Accountants
Englewood, Colorado
March 2, 1998
F-1
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Balance Sheet
- --------------------------------------------------------------------------------
February
28, 1998
--------
ASSETS
Current Assets - Cash $ 3,895
=======
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES $ 0
-------
SHAREHOLDERS' EQUITY
Preferred Stock, No Par Value,
Non Voting, Authorized 5,000,000 shares;
Issued And Outstanding 40,000 Shares 4,000
Common Stock, No Par Value
Authorized 50,000,000 shares;
Issued and outstanding 200,000 Shares 100
Deficit Accumulated During
The Development Stage (205)
-------
TOTAL SHAREHOLDERS' EQUITY 3,895
-------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $ 3,895
=======
The Accompanying Notes Are An Integral Part
Of These Financial Statements.
F-2
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Statement Of Operations
- -----------------------------------------------------------------------------------------------------
September
16, 1991
Fiscal Fiscal (Inception)
Year Ended Year Ended Through
February February February
28, 1998 28, 1997 28, 1998
-------- -------- --------
<S> <C> <C> <C>
Revenue $ 0 $ 0 $ 0
-------- -------- --------
Fees 205 0 205
Total Expenses 205 0 205
======== ======== ========
Net (Loss) ($ 205) $ 0 (205)
======== ======== ========
Basic (Loss) Per Common Share ($ 0.01) $ 0.00 ($ 0.01)
======== ======== ========
Weighted Average Common Shares Outstanding 16,667 0 16,667
======== ======== ========
The Accompanying Notes Are An Integral Part Of These Financial Statements.
F-3
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Statement Of Cash Flow
- -----------------------------------------------------------------------------------------------------------
September
16, 1991
Fiscal Fiscal (Inception)
Year Ended Year Ended Through
February February February
28, 1998 28, 1997 28, 1998
-------- -------- --------
<S> <C> <C> <C>
Net (Loss) ($ 205) $ 0 ($ 205)
------- ------- -------
Plus Items Not Affecting Cash Flow: 0 0 0
0 0 0
Net Cash Flows From Operations (205) 0 (205)
------- ------- -------
Cash Flows From Investing Activities:
Net Cash Flows From Investing: 0 0 0
Cash Flows From Financing Activities:
Common Stock Issued For Cash 100 100
Preferred Stock Issued For Cash 4,000 0 4,000
------- ------- -------
Net Cash Flows From Financing: 4,100 0 4,100
------- ------- -------
Net Increase (Decrease) In Cash 3,895 0 3,895
Cash At Beginning Of Period 0 0 0
------- ------- -------
Cash At End Of Period $ 3,895 $ 0 $ 3,895
======= ======= =======
Summary Of Non-Cash Investing
And Financing Activities: $ 0 $ 0 $ 0
======= ======= =======
The Accompanying Notes Are An Integral Part Of These Financial Statements.
F-4
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mesa County Brewing Co.
(A Development Stage Company)
Statement Of Shareholders' Equity
- --------------------------------------------------------------------------------------------------------------------------------
Net (Loss)
Accumulated
Number Of Number Of During The
Shares Shares Preferred Common Development
Preferred Common Stock Stock Stage Total
--------- ------ ----- ----- ----- -----
Balance At September 16, 1991 and
February 28, 1992, 1993, 1994, 1995
<S> <C> <C> <C> <C> <C> <C> <C>
1996, and 1997 0 0 $ 0 $ 0 $ 0 $ 0
February 3, 1998 issued 200,000 Shares
Of No Par Value Common Stock for cash
of $100 or $.0005 per share 200,000 100 100
February 5, 1998 issued 40,000 Shares
Of No Par Value Preferred Stock for cash
of $4,000 or $.10 per share 40,000 4,000 4,000
Net (Loss) (205) (205)
-------- -------- -------- -------- -------- --------
Balance At February 28, 1998 40,000 200,000 $ 4,000 $ 100 ($ 205) $ 3,895
======== ======== ======== ======== ======== ========
The Accompanying Notes Are An Integral Part Of These Financial Statements.
F-5
</TABLE>
<PAGE>
Mesa Valley Brewing Co.
(A Development Stage Company)
Notes to Financial Statements
At February 28, 1998
- --------------------
Note 1 - Organization and Summary of Significant Accounting Policies
organization:
- ---------------------------------------------------------------------
On September 16, 1991, Mesa County Brewing, Inc. ("the Company") was
incorporated under the laws of Colorado, to engage in the business of publishing
and marketing books about breweries in the Rocky Mountain Area. The Company may
also engage in any business which is permitted by the Colorado Business
Corporation Act, as designated by the board of directors of the Company.
Developmental Stage:
The Company is currently in the developmental stage and has no significant
operations to date.
Statement of Cash Flows:
For purposes of the statement of cash flows, the Company considers demand
deposits and highly liquid-debt instruments purchased with a maturity of three
months or less to be cash equivalents.
Cash paid for interest and taxes in the period ended February 28, 1998 and 1997
was $-0-.
Fiscal Year End:
The Company has chosen February 28th as its fiscal year end.
Revenue Recognition:
When operations commence the Company will recognize revenue when the published
works are sold.
Use of 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. Actual results could differ from those estimates.
F-6
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Notes to Financial Statements
At February 28, 1998
- --------------------
Note 2 - Capital Stock
- ----------------------
Common Stock:
The Company initially authorized 1,000,000 shares of no par value common stock.
On January 29, 1997 the Company amended its articles of incorporation to
increase the authorized shares to 50,000,000. On February 3, 1998 the Company
issued 200,000 shares of no par common stock for cash of $100 or $.0005 per
share.
Preferred Stock
On January 29, 1997 the Company amended its articles of incorporation to
increase the authorized shares to 5,000,000 shares of no par, non-voting
preferred stock where the Directors of the Company have the right to assign
preferences.
On February 5, 1998, the Company issued 40,000 shares of its no par value
preferred stock for $4,000 or $.10 per share. The Directors have assigned the
following preferences to the issued and outstanding shares of Preferred Stock:
(I) the Preferred Stock shall be non-voting, (ii) the holders of the stock as a
group have the right to receive, prorata, upon dissolution or winding up of the
Company, 10% of the assets of the Company prior to division and distribution of
assets to the holders of the Company's Common Stock.
The Company has declared no dividends through February 28, 1998.
Note 3 - Income Taxes
- ---------------------
Income taxes are provided for the tax effects of transactions reported in the
financial statements and consist of taxes currently due plus deferred taxes
related primarily to differences between the recorded book basis and tax basis
of assets and liabilities for financial and income tax reporting. The deferred
tax assets and liabilities represent the future tax return consequences of those
differences, which will either be taxable or deductible when the assets and
liabilities are recovered or settled. Deferred taxes are also recognized for
operating losses that are available to offset future taxable income and tax
credits that are available to offset federal income taxes. Due to the Company's
net operating loss there are no income taxes currently due. Also, there were no
material differences between recorded book basis and tax basis at February 28,
1998.
F-7
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Notes to Financial Statements
At February 28, 1998
- --------------------
Note 3 - Income Taxes (continued)
- ---------------------------------
The Company follows Financial Accounting Standards Board Statement No. 109,
"Accounting for Income Taxes" (SFAS #109), which requires, among other things,
an asset and liability approach to calculating deferred income taxes. As of
February 28, 1998 the Company has a deferred tax asset of $41 primarily for its
net operating loss carry forward which has been fully reserved through a
valuation allowance. The change in the valuation allowance for February 28, 1997
is $-0-.
Note 4 - Related Party Events
- -----------------------------
The Company presently maintains its principal offices at an address provided by
a related party at a monthly rental of $100 per month, plus any expenses of
telephone, fax, and secretarial services, commencing March 1, 1998. The office
is located at 4155 E. Jewell Ave - Suite 909, Denver, CO 80222.
Note 5 - Basis Of Presentation
- ------------------------------
In the course of its development activities, the Company has sustained losses
and expects such losses to continue in the foreseeable future. The Company plans
to continue financing its operations with stock sales and in the longer term,
revenues from its operations. The Company's ability to continue as a going
concern is dependent upon the successful completion of its offering of common
stock, additional financing and, ultimately, upon achieving profitable
operations.
Note 6 - New Accounting Pronouncement
- -------------------------------------
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, Earnings Per Share ("SFAS No. 128").
SFAS No. 128 specifies the computation, presentation , and disclosure
requirements of earnings per share and supersedes Accounting Principles Board
Opinion No. 15, Earnings Per Share. SFAS No. 128 requires dual presentation of
basic and diluted earnings per share. Basic earnings per share, which excludes
the impact of common stock equivalents, replaces primary earnings per share.
Diluted earnings per share, which utilizes the average market price per share as
opposed to the greater of the average market price per share or ending market
price per share when applying the treasury stock method in determining common
stock equivalents, replaces fully-diluted earnings per share. SFAS No. 128 is
effective for the Company in 1997. However, the Company has a simple capital
structure for the periods presented and therefore, there is no affect on the
earnings per share presented due to the Company's adoption of SFAS No. 128.
F-8
<PAGE>
Mesa County Brewing Co.
(A Development Stage Company)
Notes to Financial Statements
At February 28, 1998
- --------------------
Note 7 - Subsequent Events
- --------------------------
The Company plans to offer for sale up to 4,000 units (the "Units") at $2.50 per
Unit, or $.0005 per share, based on a best efforts basis to Colorado residents
and non-United States citizens only. Each Unit is comprised of 5,000 shares of
no par value common stock. The minimum purchase is 5 Units for a total offering
of $10,000. The shares of common stock contained in the Units are to be issued
pursuant to an exemption from registration under Section 3(b) and Regulation D,
Rule 504, of the Securities Act of 1933, as amended, and to an exemption to
registration provided by Section 11-51-308(l)(p) of the Colorado Securities Act.
F-9
<PAGE>
PART III
Item 1. Index to Exhibits
Exhibits required in Part III of Form 1-A and/or Item 601 of Regulation S-B.
<PAGE>
<TABLE>
<CAPTION>
Exhibit Number: Description
- --------------- -----------
<S> <C> <C>
Exhibit No. 3. Charter and Bylaws Attached
Exhibit No. 4. Instruments defining the rights of security holders Attached
Exhibit No. 5. Voting trust agreement Not applicable
Exhibit No. 6. Material contracts Not applicable
Exhibit No. 7. Material foreign patents Not applicable
Exhibit No. 11. Statement re: computation of per share earnings Not applicable
Exhibit No. 24. Power of attorney Not applicable
Exhibit No. 27. Financial Data Schedule Attached
- ---------------------------------------------------------------------------------------
</TABLE>
Signatures
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
MESA COUNTY BREWING CO.
-----------------------
(Registrant)
Date: January 26, 1999
- ----------------------
/s/ Edward H. Hawkins
------------------------------
Edward H. Hawkins, Secretary
EXHIBIT 3
(i) Articles of Incorporation
(i) Articles of Amendment and Restatement of the Articles of Incorporation
(ii) Bylaws
<PAGE>
ARTICLES OF INCORPORATION
I/We the undersigned natural person(s) of the age of eighteen years or
more, acting as incorporator(s) of a corporation under the Colorado Corporation
Code, adopt the following Articles of Incorporation for such corporation:
FIRST: The name of the corporation is MESA COUNTY BREWING CO.
SECOND: The period of duration if other than perpetual: Perpetual.
THIRD: The Corporation is organized for Any Legal and Lawful Purpose
Pursuant to the Colorado Corporation Code. A more specific purpose may be
stated: n/a
FOURTH: The aggregate number of shares which the corporation shall have the
authority to issue is one million and the par value of each share shall be no
par.
FIFTH: Cumulative voting shares of stock is not authorized.
SIXTH: Provisions limiting or denying to shareholders the preemptive right
to acquire additional or treasury shares of the corporation, if any, are:
SEVENTH: The address of the initial registered office of the corporation is
3055 E 1/4 Rd., Grand Junction, Colorado 81504 and the name of its initial
registered agent at such address is William R. Barber.
EIGHTH: Address of the place of business: same
NINTH: The number of directors constituting the initial board of directors
of the corporation is 2, and the names of and addresses of the persons who are
to serve as directors until the first annual meeting of shareholders or until
their successors are elected and shall qualify are:
The number of directors of a corporation shall be not less than three;
except that there need be only as many directors as there are, or initially
will be, shareholders in the event that the outstanding shares are, or
initially will be, held of record by fewer than three shareholders.
NAME ADDRESS
---- -------
William R. Barber 3055 E 1/4 Rd.
Grand Junction, CO 81504
Gayle Barber 3055 E 1/4 Rd.
Grand Junction, CO 81504
TENTH: The name and address of each incorporator is:
NAME ADDRESS
---- -------
William R. Barber 3055 E 1/4 Rd.
Grand Junction, CO 81504
Gayle Barber 3055 E 1/4 Rd.
Grand Junction, CO 81504
Signed: /s/ William R. Barber
-------------------------------------
Signed: /s/ Gayle Barber
-------------------------------------
FILED SECRETARY OF STATE
STATE OF COLORADO: (authorized date stamp) Date: September 16, 1991
<PAGE>
ARTICLES OF AMENDMENT AND RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
MESA COUNTY BREWING CO.
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following amended and restated Articles of
Incorporation. These Articles set forth the provisions of the Articles of
Incorporation, as amended, and supercedes the original Articles of Incorporation
and all amendments thereto.
FIRST: The name of the corporation is Mesa County Brewing Co.
SECOND: The following amended and restated Articles of Incorporation were
adopted by a vote of the board of directors and the shareholders. The
number of shares voted for the amended and restated Articles of
Incorporation was sufficient for approval.
ARTICLE I
Name
----
The name of the Corporation is Mesa County Brewing Co.
ARTICLE II
Period of Duration
------------------
This Corporation shall exist in perpetuity, from and after the date of
filing these Articles of Incorporation with the Secretary of State of Colorado
unless and until dissolved according to the laws of the State of Colorado.
ARTICLE III
Purpose
-------
This Corporation is organized for the purpose of transacting any and all
lawful activities or business for which corporations may be formed under
Articles 101 to 117 of Title 7 of the Colorado Revised Statues, known and cited
as the Colorado Business Corporation Act, to have and exercise all powers,
privileges and immunities now or hereafter conferred upon or permitted to
corporations by the laws of the State of Colorado, and to do any and all things
herein set forth to the same extent as natural persons could do insofar as
permitted by the laws of the State of Colorado.
ARTICLE IV
Powers
------
The powers of the Corporation shall be those powers granted by the Colorado
Business Corporation Act under which this Corporation is formed. /In addition,
the Corporation shall have the following specific powers:
--3--
<PAGE>
Section 1. Officers. The Corporation shall have the power to elect or
appoint officers and agents of the Corporation and to fix their compensation.
Section 2. Capacity. The Corporation shall have the power to act as an
agent for any individual, association, partnership, corporation or other legal
entity, and to act as general partner for any limited partnership.
Section 3. Acquisitions. The Corporation shall have the power to receive,
acquire, hold, exercise rights arising out of the ownership or possession
thereof, sell, or otherwise dispose of, shares or other interests in, or
obligations of, individuals, associations, partnerships, corporations or
governments.
Section 4. Earned Surplus. The Corporation shall have the power to receive,
acquire, hold, pledge, transfer, or otherwise dispose of shares of the
Corporation, but such shares may only be purchased, directly or indirectly, out
of earned surplus.
Section 5. Gifts. The Corporation shall have the power to make gifts or
contributions for the public welfare or for charitable, scientific or
educational purposes.
ARTICLE V
Capital Structure
-----------------
Section 1. Authorized Capital. The aggregate number of shares and the
amount of the total authorized capital of said Corporation shall consist of
50,000,000 shares of common stock, no par value per share, and 5,000,000 shares
of preferred stock, no par value per share. The preferred shares shall have the
preference of upon dissolution or winding up of the company, the preferred
shareholders as a group shall receive 10% of the assets of the company to be
distributed pro rata prior to the distribution of assets to the holders of
common stock.
Section 2. Share Status. All common shares will be equal to each other, and
when issued, shall be fully paid and nonassessable, and the private property of
shareholders shall not be liable for corporate debts. Preferred shares shall
have such preferences and voting rights as the Directors may assign to them
prior to issuance. Each holder of a common share of record shall have one vote
for each share of stock outstanding in his name on the books of the Corporation
and shall be entitled to vote said stock. Each holder of a preferred share of
record shall have one vote for each share of stock outstanding in his name on
the books of the Corporation, if such voting right was assigned by the Board of
Directors upon issuance.
Section 3. Consideration for Shares. The stock of the Corporation shall be
issued for such consideration as shall be fixed from time to time by the Board
of Directors. In the absence of fraud, the judgment of the Directors as to the
value of any property or services received in full or partial payment for shares
shall be conclusive. When shares are issued upon payment of the consideration
fixed by the Board of Directors, such shares shall be taken to be fully paid
stock and shall be nonassessable.
Section 4. Pre-Emptive Rights. Except as may otherwise be provided by the
Board of Directors, holders of shares of stock of the Corporation shall have no
pre-emptive right to purchase, subscribe for or otherwise acquire shares of
stock of the Corporation, rights, warrants or options to purchase stocks or
securities of any kind convertible into stock of the Corporation.
Section 5. Dividends. Dividends in cash, property or shares of the
Corporation may be paid, as and when declared by the Board of Directors, out of
funds of the Corporation to the extent and in the manner permitted by law.
--4--
<PAGE>
Section 6. Distribution in Liquidation. Upon any liquidation, dissolution
or winding up of the Corporation, and after paying or adequately providing for
the payment of all its obligations, the remainder of the assets of the
Corporation shall be distributed, either in cash or in kind, pro rata to the
holders of the common stock, subject to preferences, if any, granted to holders
of the preferred shares. The Board of Directors may, from time to time,
distribute to the shareholders in partial liquidation from stated capital of the
Corporation, in cash or property, without the vote of the shareholders, in the
manner permitted and upon compliance with limitations imposed by law.
ARTICLE VI
Voting by Shareholders
----------------------
Section 1. Voting Rights; Cumulative Voting. Each outstanding share of
common stock is entitled to one vote and each fractional share of common stock
is entitled to a corresponding fractional vote on each matter submitted to a
vote of shareholders. Cumulative voting shall not be allowed in the election of
Directors of the Corporation and every shareholder entitled to vote at such
election shall have the right to vote the number of shares owned by him for as
many persons as there are Directors to be elected, and for whose election he has
a right to vote. Preferred shares are to have the same voting rights as common
shares if so designated by the Board of Directors upon issuance.
Section 2. Majority Vote. Except as otherwise provided herein, when, with
respect to any action to be taken by the Shareholders of the Corporation, the
Colorado Business Corporation Act requires the vote or concurrence of the
holders of two-thirds of the outstanding shares entitled to vote thereon, or of
any class or series, any and every such action shall be taken, notwithstanding
such requirements of the Colorado Business Corporation Act, by the vote or
concurrence of the holders of a majority of the outstanding shares entitled to
vote thereon, or of any class or series.
--5--
<PAGE>
ARTICLE VII
Registered and Initial Principal Office and Registered Agent
------------------------------------------------------------
The registered office and initial principal office of the Corporation is
located at 3055 E. 1/4 Road, Grand Junction, CO 81504, and the name of the
registered agent of the Corporation at such address is William R. Barber.
ARTICLE VIII
Incorporator
------------
The name and address of the Incorporators are William R. Barber, 3055 E.
1/4 Road, Grand Junction, CO 81504; and Gayle Barber, 3055 E. 1/4 Road, Grand
Junction, CO 81504.
ARTICLE IX
Board of Directors
------------------
Section 1. The corporate powers shall be exercised by a majority of the
Board of Directors. The number of individuals to serve on the Board of Directors
shall be set forth in the Bylaws of the Corporation; provided, however, that the
initial Board of Directors shall consist of one person below- named to manage
the affairs of the Corporation until such time as he resigns or his successor is
/appointed by him or elected by a majority vote of the Shareholders:
Name of Director Address
---------------- -------
William R. Barber 3055 E. 1/4 Road, Grand Junction, CO 81504;
Section 2. If in the interval between the annual meetings of shareholders
of the Corporation, the Board of Directors of the Corporation deems it desirable
that the number of Directors be increased, additional Directors may be elected
by a unanimous vote of the Board of Directors of the Corporation then in office,
or as otherwise set forth in the Bylaws of the Corporation.
Section 3. The number of Directors comprising the whole Board of Directors
may be increased or decreased from time to time within such foregoing limit as
set forth in the Bylaws of the Corporation.
ARTICLE X
Powers of the Board of Directors
--------------------------------
In furtherance and not in limitation of the powers conferred by the State
of Colorado, the Board of Directors is expressly authorized and empowered:
Section 1. Bylaws. To make, alter, amend and repeal the Bylaws, subject to
the power of the shareholders to alter or repeal the Bylaws made by the Board of
Directors.
Section 2. Books and Records. Subject to the applicable provisions of the
Bylaws then in effect, to determine, from time to time, whether and to what
extent, and at what times and places, and under what conditions and regulations,
the accounts and books of the Corporation or any of them, shall be open to
shareholder inspection. No shareholder shall have any right to inspect any of
the accounts, books, or documents of the Corporation, except as permitted by
law, unless and until authorized to do so by resolution of the Board of
Directors or of the shareholders of the Corporation.
Section 3. Power to Borrow. To authorize and issue, without shareholder
consent, obligations of the Corporation, secured and unsecured, under such terms
--6--
<PAGE>
and conditions as the Board, in its sole discretion, may determine, and to
pledge, or mortgage, as security therefor, any real or personal property of the
Corporation, including after-acquired property.
Section 4. Dividends. To determine whether any and, if so, what part, of
the earned surplus of the Corporation shall be paid in dividends to the
shareholders, and to direct and determine other use and disposition of any such
earned surplus.
Section 5. Profits. To fix, from time to time, the amount of the profits of
the Corporation to be reserved as working capital or for any other lawful
purposes.
Section 6. Employees' Plans. From time to time to provide and carry out and
to recall, abolish, revise, amend, alter, or change a plan or plans for the
participation by all or any of the employees, including Directors and officers
of this Corporation or of any corporation in which or in the welfare of which
the Corporation has any interest, and those actively engaged in the conduct of
this Corporation's business, in the profits of this Corporation or of any branch
or division thereof, as a part of this Corporation's legitimate expenses, and
for the furnishing to such employees and persons, or any of them, at this
Corporation's expense, of medical services, insurance against accident,
sickness, or death, pensions during old age, disability, or unemployment,
education, housing, social services, recreation, or other similar aids for their
relief or general welfare, in such manner and upon such terms and conditions as
may be determined by the Board of Directors.
Section 7. Warrants and Options. The Corporation, by resolution or
resolutions of its Board of Directors, shall have power to create and issue,
whether or not in connection with the issue and sale of any shares of any other
securities of the Corporation, warrants, rights, or options entitling the
holders thereof to purchase from the Corporation any shares of any class or
classes of any other securities of the Corporation, such warrants, rights or
options to be evidenced by or in such instrument or instruments as shall be
approved by the Board of Directors. The terms upon which, the time or times
(which may be limited or unlimited in duration), and the price or prices (not
less than the minimum amount prescribed by law, if any) at which any such
warrants, rights, or options may be issued and any such shares or other
securities may be purchased from the Corporation upon the exercise of such
warrant, right, or option shall be such as shall be fixed and stated in the
resolution or resolutions of the Board of Directors providing for the creation
and issue of such warrants, rights or options. The Board of Directors is hereby
authorized to create and issue any such warrants, rights or options from time to
time for such consideration, and to such persons, firms, or corporations, as the
Board of Directors may determine.
Section 8. Compensation. To provide for the reasonable compensation of its
own members, and to fix the terms and conditions upon which such compensation
will be paid.
Section 9. Not in Limitation. In addition to the powers and authority
hereinabove, or by statute expressly conferred upon it, the Board of Directors
may 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 laws
of the State of Colorado, of these Articles of Incorporation and of the Bylaws
of the Corporation.
ARTICLE XI
Right of Directors to Contract with Corporation
-----------------------------------------------
No contract or other transaction between this Corporation and one or more
of its Directors or any other corporation, firm, association, or entity in which
one or more of its Directors are directors or officers or are financially
interested shall be either void or voidable solely because of such relationship
or interest or solely because such directors are present at the meeting of the
--7--
<PAGE>
Board of Directors or a committee thereof which authorizes, approves, or
ratifies such contract or transaction or solely because their votes are counted
for such purpose if:
A. The fact of such relationship or interest is disclosed or known to the
Board of Directors or committee which authorizes, approves, or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes of consents of such interested Directors; or
B. The fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve, or ratify such
contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the Corporation.
ARTICLE XII
Corporate Opportunity
---------------------
The officers, Directors and other members of management of this Corporation
shall be subject to the doctrine of "corporate opportunities" only insofar as it
applies to business opportunities in which this Corporation has expressed an
interest as determined from time to time by this Corporation's Board of
Directors as evidenced by resolutions appearing in the Corporation's minutes.
Once such areas of interest are delineated, all such business opportunities
within such areas of interest which come to the attention of the officers,
Directors, and other members of management of this Corporation shall be
disclosed promptly to this Corporation and made available to it. The Board of
Directors may reject any business opportunity presented to it and thereafter any
officer, Director or other member of management may avail himself of such
opportunity. Until such time as this Corporation, through its Board of
Directors, has designated an area of interest, the officers, Directors and other
members of management of this Corporation shall be free to engage in such areas
of interest on their own and this doctrine shall not limit the right of any
officer, Director or other member of management of this Corporation to continue
a business existing prior to the time that such area of interest is designated
by the Corporation. This provision shall not be construed to release any
employee of this Corporation (other than an officer, Director or member of
management) from any duties which he may have to this Corporation.
ARTICLE XIII
Indemnification of Officers, Directors and Others
-------------------------------------------------
The Board of Directors of the Corporation shall have the power to:
A. 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 (other than 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, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in the best interests of the Corporation and, with
respect to any criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent shall 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 the best interests of the Corporation and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
--8--
<PAGE>
B. 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 the Corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
the best interests of the Corporation; but no indemnification shall be made in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court in which such action or
suit was brought determines upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnification for such expenses which such court
deems proper.
C. Indemnify a Director, officer, employee or agent of the Corporation to
the extent that such person has been successful on the merits in defense of any
action, suit or proceeding referred to in Subparagraph A or B of this Article or
in defense of any claim, issue, or matter therein, against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
D. Authorize indemnification under Subparagraph A or B of this Article
(unless ordered by a court) in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Subparagraph A or B. Such determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or, if such a quorum is not
obtainable or even if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or by the shareholders.
E. Authorize payment of expenses (including attorney's fees) incurred in
defending a civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding as authorized in Subparagraph D
of this Article upon receipt of an undertaking by or on behalf of the Director,
officer, employee or agent to repay such amount unless it is ultimately
determined that he is entitled to be indemnified by the Corporation as
authorized in this Article.
F. Purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or who 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 any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the provision
of this Article.
The indemnification provided by this Article shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under these
Articles of Incorporation, and the Bylaws, agreement, vote of shareholders or
disinterested directors or otherwise, and any procedure provided for by any of
the foregoing, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of heirs, executors and administrators of such a person.
ARTICLE XIV
Right to Amend or Restate
-------------------------
--9--
<PAGE>
The right is expressly reserved to amend, restate, alter, change, or repeal
any provision or provisions contained in these Article of Incorporation or any
Article herein by a majority vote of the members of the Board of Directors and a
majority vote of the shareholders of the Corporation in accordance with Article
110 of the Colorado Business Corporation Act.
ARTICLE XV
Change of Corporate Name
------------------------
Inasmuch as both the Colorado Business Corporation Act and these Articles
of Incorporation both require shareholder action to amend these Articles of
Incorporation, should the directors of this corporation amend these Articles
whereby the name of this corporation is changed without actual notice to the
shareholders, each officer and each director present at the meeting whereby such
action is taken and voting therefor shall be personally, jointly and severally
liable per se to each shareholder for breach of fiduciary duty (notwithstanding
any language to the contrary herein). The damages shall accrue as to the date of
such action taken, and shall be computed as follows: each shareholder shall be
entitled to recover an amount equal the highest price per share at which this
corporation's stock is publicly quoted at any time six months prior to such
action taken to six months after such action taken, if this corporation's stock
is publicly traded; and if the corporation's stock is not so publicly traded, an
amount of five dollars ($5.00) per share. Although the purpose of this Article
is to strictly prevent the officers and directors from taking action to harm any
or all of this corporation's shareholders, it shall be no defense to any
shareholder action brought pursuant to this Article that the shareholder(s) was
not harmed by such action.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this 28th day
of January, 1997.
/s/ William R. Barber
---------------------
William R. Barber, Initial Director
CONTINUING CONSENT OF AGENT
The undersigned hereby consents to continue acting as agent for this
corporation under Article 105 of the Colorado Business Corporation Act, until
such time as he resigns such position.
/s/ William R. Barber
---------------------
William R. Barber, Agent, 3055 E. 1/4 Road, Grand Junction, CO 81504;
--10--
<PAGE>
BYLAWS
OF
MESA COUNTY BREWING CO.
ARTICLE I
Offices
-------
The principal office of the Corporation in Colorado shall initially be
located in Denver, Colorado. The Corporation may have such other offices, either
within or outside the State of Colorado, as the Board of Directors may
designate, or as the business of the Corporation may require from time to time.
The registered office of the Corporation required by the Colorado Business
Corporation Act to be maintained in the State of Colorado may be, but need not
be, identical with the principal office, and the address of the registered
office may be changed from time to time by the Board of Directors.
ARTICLE II
Shareholders
------------
Section 1. Annual Meeting.
--------------------------
The annual meeting of the shareholders shall be held pursuant to notice
given by the Board of Directors for the purpose of electing directors and for
the transaction of such other business as may come before the meeting.
Section 2. Special Meetings.
----------------------------
Special meetings of the shareholders, for any purpose, unless otherwise
prescribed by statute, may be called by the President or by the Board of
Directors, and shall be called by the President at the request of the holders of
not less than ten (10%) percent of all the outstanding shares of the Corporation
entitled to vote at the meeting. Such request shall state the purposes of the
proposed meeting.
Section 3. Adjournment.
-----------------------
a. When the annual meeting is convened, or when any special meeting is
convened, the presiding officer may adjourn it for such period of time as may be
reasonably necessary to reconvene the meeting at another place and another time.
b. The presiding officer shall have the power to adjourn any meeting of the
shareholders for any proper purpose, including, but not limited to, lack of a
quorum, to secure a more adequate meeting place, to elect officials to count and
tabulate votes, to review any shareholder proposals or to pass upon any
challenge which may properly come before the meeting.
c. When a meeting is adjourned to another time or place, it shall not be
necessary to give any notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and any business may be transacted at the adjourned
meeting that might have been transacted on the original date of the meeting. If,
however, after the adjournment the Board fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given in
compliance with Subsection (4)(a) of this Article II to each shareholder of
record on the new record date entitled to vote at such meeting.
<PAGE>
Section 4. Notice of Meeting; Purpose of Meeting; Waiver
--------------------------------------------------------
a. Each shareholder of record entitled to vote at any meeting shall be
given in person, or by first class mail, postage prepaid, written notice of such
meeting which, in the case of a special meeting, shall set forth the purpose(s)
for which the meeting is called, not less than ten (10) or more then fifty (50)
days before the date of such meeting. If mailed, such notice is to be sent to
the shareholder's address as it appears on the stock transfer books of the
Corporation unless the shareholder shall have requested of the Secretary in
writing at least fifteen (15) days prior to the distribution of any required
notice that any notice intended for him to be sent to some other address, in
which case the notice may be sent to the address so designated. Notwithstanding
any such request by a shareholder, notice sent to a shareholder's address as it
appears on the stock transfer books of this Corporation as of the record date
shall be deemed properly given. Any notice of a meeting sent by the United
States mail shall be deemed delivered when deposited with proper postage thereon
with the United States Postal Service or in any mail receptacle under its
control.
b. A shareholder waives notice of any meeting by attendance, either in
person or by proxy, at such meeting or by waiving notice in writing either
before, during or after such meeting. Attendance at a meeting for the express
purpose of objecting that the meeting was not lawfully called or convened,
however, will not constitute a waiver of notice by a shareholder stating at the
beginning of the meeting, his objection that the meeting is not lawfully called
or convened.
c. Whenever the holders of at least eighty (80%) percent of the capital
stock of the Corporation having the right to vote shall be present at any annual
or special meeting of shareholders, however called or notified, and shall sign a
written consent thereto on the minutes of such meeting, the meeting shall be
valid for all purposes.
d. A Waiver of Notice signed by all shareholders entitled to vote at a
meeting of shareholders may also be used for any other proper purpose including,
but not limited to, designating any place within or without the State of
Colorado as the place for holding such a meeting.
e. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of shareholders need be specified in any written
Waiver of Notice.
Section 5. Closing of Transfer Books; Record Date; Shareholders' List.
----------------------------------------------------------------------
a. In order to determine the holders of record of the capital stock of the
Corporation who are entitled to notice of meetings, to vote at a meeting or
adjournment thereof, or to receive payment of any dividend, or for any other
purpose, the Board of Directors may fix a date not more than fifty (50) days
prior to the date set for any of the above-mentioned activities for such
determination of shareholders.
b. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting.
c. In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the date for such determination of shareholders, such
date in any case to be not more than fifty (50) days and, in case of a meeting
of shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
d. If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders.
<PAGE>
e. When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date under this section for the adjourned meeting.
f. The officer or agent having charge of the stock transfer books of the
Corporation shall make, as of a date at least ten (10) days before each meeting
of shareholders, a complete list of the shareholders entitled to vote at such
meeting or any adjournment thereof, with the address of each shareholder and the
number and class and series, if any, of shares held by each shareholder. Such
list shall be kept on file at the registered office of the Corporation or at the
office of the transfer agent or registrar of the Corporation for a period of ten
(10) days prior to such meeting and shall be available for inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of any meeting of shareholders and
shall be subject to inspection by any shareholder at any time during the
meeting.
g. The original stock transfer books shall be prima facie evidence as to
the shareholders entitled to examine such list or stock transfer books or to
vote at any meeting of shareholders.
h. If the requirements of Subsection 5(f) of this Article II have not been
substantially complied with then, on the demand of any shareholder in person or
by proxy, the meeting shall be adjourned until such requirements are complied
with.
I. If no demand pursuant to Section 5(h) is made, failure to comply with
the requirements of this Section shall not affect the validity of any action
taken at such meeting.
j. Subsection 5(g) of this Article II shall be operative only at such
time(s) as the Corporation shall have six (6) or more shareholders.
Section 6. Quorum.
------------------
a. At any meeting of the shareholders of the Corporation, the presence, in
person or by proxy, of shareholders owning a majority of the issued and
outstanding shares of the capital stock of the Corporation entitled to vote
thereat shall be necessary to constitute a quorum for the transaction of any
business. If a quorum is present the affirmative vote of a majority of the
shares represented at such meeting and entitled to vote on the subject matter
shall be the act of the shareholders. If there shall not be a quorum at any
meeting of the shareholders of the Corporation, then the holders of a majority
of the shares of the capital stock of the Corporation who shall be present at
such meeting, in person or by proxy, may adjourn such meeting from time to time
until holders of a majority of the shares of the capital stock shall attend. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as originally
scheduled.
b. The shareholders at a duly organized meeting having a quorum may
continue to transact business until adjournment notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 7. Presiding Officer; Order of Business.
------------------------------------------------
a. Meetings of the shareholders shall be presided over by the Chairman of
the Board, or, if he is not present, by the President or, if he is not present,
by a Vice President or, if none of the Chairman of the Board, the President, or
<PAGE>
a Vice President is present, the meeting shall be presided over by a Chairman to
be chosen by a plurality of the shareholders entitled to vote at the meeting who
are present, in person or by proxy. The presiding officer of any meeting of the
shareholders may delegate the duties and obligations of the presiding officer of
the meeting as he sees fit.
b. The Secretary of the Corporation, or, in his absence, an Assistant
Secretary shall act as Secretary of every meeting of shareholders, but if
neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall choose any person present to act as Secretary of
the meeting.
c. The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous shareholders meeting or a
Waiver thereof.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Regular and miscellaneous business.
8. Special matters.
9. Adjournment.
d. Notwithstanding the provisions of Article II, Section 7, Subsection c,
the order and topics of business to be transacted at any meeting shall be
determined by the presiding officer of the meeting in his sole discretion. In no
event shall any variation in the order of business or additions and deletions
from the order of business as specified in Article II, Section 7, Subsection c,
invalidate any actions properly taken at any meeting.
Section 8. Voting.
------------------
a. Unless otherwise provided for in the Certificate of Incorporation, each
shareholder shall be entitled, at each meeting and upon each proposal to be
voted upon, to one vote for each share of voting stock recorded in his name on
the books of the Corporation on the record date fixed as provided for in Article
II, Section 5.
b. The presiding officer at any meeting of the shareholders shall have the
power to determine the method and means of voting when any matter is to be voted
upon. The method and means of voting may include, but shall not be limited to,
vote by ballot, vote by hand or vote by voice. However, no method of voting may
be adopted which fails to take account of any shareholder's right to vote by
proxy as provided for in Section 10 of this Article II. In no event may any
method of voting be adopted which would prejudice the outcome of the vote.
Section 9. Action Without Meeting.
----------------------------------
a. Any action required to be taken at any annual or special meeting of
shareholders of the Corporation, or any action which may be taken at any annual
or special meeting of such shareholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. If any class of shares is
entitled to vote thereon as a class, such written consent shall be required of
the holders of a majority of the shares of each class of shares entitled to vote
thereon.
<PAGE>
b. Within ten (10) days after obtaining such authorization by written
consent, notice must be given to those shareholders who have not consented in
writing. The notice shall fairly summarize the material features of the
authorized action and, if the action be a merger, consolidation or sale or
exchange of assets for which dissenters' rights are provided under the Colorado
Business Corporation Act, the notice shall contain a clear statement of the
right of the shareholders dissenting therefrom to be paid the fair value of
their shares upon compliance with further provisions of the Colorado Business
Corporation Act regarding the rights of dissenting shareholders.
c. In the event that the action to which the shareholders' consent is such
as would have required the filing of a certificate under the Colorado Business
Corporation Act if such action had been voted on by shareholders at a meeting
thereof, the certificate filed under such other section shall state that written
consent has been given in accordance with the provisions of this Article II,
Section 9.
Section 10. Proxies.
--------------------
a. Every shareholder entitled to vote at a meeting of shareholders or to
express consent or dissent without a meeting, or his duly authorized
attorney-in-fact may authorize another person or persons to act for him by
proxy.
b. Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided in
this Article II, Section 10.
c. The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the shareholder who executed the proxy unless,
before the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the corporate officer responsible
for maintaining the list of shareholders.
d. Except when other provisions shall have been made by written agreement
between the parties, the record holder of shares held as pledges or otherwise as
security or which belong to another, shall issue to the pledgor or to such owner
of such shares, upon demand therefor and payment of necessary expenses thereof,
a proxy to vote or take other action thereon.
e. A proxy which states that it is irrevocable is irrevocable when it is
held by any of the following or a nominee of any of the following: (I) a
pledgee; (ii) a person who has purchased or agreed to purchase the shares; (iii)
a creditor or creditors of the Corporation who extend or continue to extend
credit to the Corporation in consideration of the proxy, if the proxy states
that it was given in consideration of such extension or continuation of credit,
the amount thereof, and the name of the person extending or continuing credit;
(iv) a person who has contracted to perform services as an officer of the
Corporation, if a proxy is required by the contract of employment, if the proxy
states that it was given in consideration of such contract of employment and
states the name of the employee and the period of employment contracted for; and
(v) a person designated by or under an agreement as provided in Article XI
hereof.
f. Notwithstanding a provision in a proxy stating that it is irrevocable,
the proxy becomes revocable after the pledge is redeemed, or the debt of the
Corporation is paid, or the period of employment provided for in the contract of
<PAGE>
employment has terminated, or the agreement under Article XII hereof, has
terminated and, in a case provided for in Subsection 10(e)(iii) or Subsection
10(e)(iv) of this Article II becomes irrevocable three years after the date of
the proxy or at the end of the period, if any, specified therein, whichever
period is less, unless the period of irrevocability is renewed from time to time
by the execution of a new irrevocable proxy as provided in this Article II,
Section 10. This Subsection 10(f) does not affect the duration of a proxy under
Subsection 10(b) of this Article II.
g. A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the existence of the
provision unless the existence of the proxy and its irrevocability is noted
conspicuously on the face or back of the certificate representing such shares.
h. If a proxy for the same shares confers authority upon two (2) or more
persons and does not otherwise provide a majority of such persons present at the
meeting, or if only one is present, then that one may exercise all the powers
conferred by the proxy. If the proxy holders present at the meeting are equally
divided as to the right and manner of voting in any particular case, the voting
of such shares shall be prorated.
I. If a proxy expressly so provides, any proxy holder may appoint in
writing a substitute to act in his place.
Section 11. Voting of Shares by Shareholders.
---------------------------------------------
a. Shares standing in the name of another corporation, domestic or foreign,
may be voted by the officer, agent, or proxy designated by the Bylaws of the
corporate shareholder; or, in the absence of any applicable Bylaw, by such
person as the Board of Directors of the corporate shareholder may designate.
Proof of such designation may be made by presentation of a certified copy of the
Bylaws or other instrument of the corporate shareholder. In the absence of any
such designation, or in case of conflicting designation by the corporate
shareholder, the Chairman of the Board, President, any vice president, secretary
and treasurer of the corporate shareholder, in that order shall be presumed to
possess authority to vote such shares.
b. Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
c. Shares standing in the name of a receiver may be voted by such receiver.
Shares held by or under the control of a receiver but not standing in the name
of such receiver, may be voted by such receiver without the transfer thereof
into his name if authority to do so is contained in an appropriate order of the
court by which such receiver was appointed.
d. A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledge.
e. Shares of the capital stock of the Corporation belonging to the
Corporation or held by it in a fiduciary capacity shall not be voted, directly
or indirectly, at any meeting, and shall not be counted in determining the total
number of outstanding shares.
ARTICLE III
Directors
---------
Section 1. Board of Directors; Exercise of Corporate Powers.
------------------------------------------------------------
<PAGE>
a. All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be managed under the
direction of the Board of Directors except as may be otherwise provided in the
Articles of Incorporation. If any such provision is made in the Articles of
Incorporation, the powers and duties conferred or imposed upon the Board of
Directors shall be exercised or performed to such extent and by such person or
persons as shall be provided in the Articles of Incorporation.
b. Directors need not be residents of the state of incorporation unless the
Articles of Incorporation so require.
c. The Board of Directors shall have authority to fix the compensation of
Directors unless otherwise provided in the Articles of Incorporation.
d. A Director shall perform his duties as a Director, including his duties
as a member of any committee of the Board upon which he may serve, in good
faith, in a manner he reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
e. In performing his duties, a Director shall be entitled to rely on
information, opinions, reports or statements, including financial data, in each
case prepared or presented by: (I) one or more officers or employees of the
Corporation whom the Director reasonably believes to be reliable and competent
in the matters presented; (ii) counsel, public accountants or other persons as
to matters which the Director reasonably believes to be within such persons'
professional or expert competence; or (iii) a committee of the Board upon which
he does not serve, duly designated in accordance with a provision of the
Articles of Incorporation or the Bylaws, as to matters within its designated
authority, which committee the Director reasonably believes to merit confidence.
f. A Director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance
described in Subsection 1(e) of this Article III to be unwarranted.
g. A person who performs his duties in compliance with this Article III,
Section 1 shall have no liability by reason of being or having been a Director
of the Corporation.
h. A Director of the Corporation who is present at a meeting of the Board
of Directors at which action on any corporate matter is taken consents thereto
unless he votes against such action or abstains from voting in respect thereto
because of an asserted conflict of interest.
Section 2. Number; Election; Classification of Directors; Vacancies.
--------------------------------------------------------------------
a. The Board of Directors of this Corporation shall consist of not less
than two (2) nor more than seven (7) members, unless the number of shareholders
is less than two, in which the Corporation shall one director until such time as
the number of shareholders increase to two or more. The number of directors
shall be fixed by the initial Board of Directors. The number of directors
constituting the initial Board of Directors shall be fixed by the Articles of
Incorporation. The number of directors may be increased from time to time by the
Board of directors, but no decrease shall have the effect of shortening the term
of any incumbent director.
b. Each person named in the Articles of Incorporation as a member of the
initial Board of Directors, shall hold office until the first annual meeting of
shareholders, and until his successor shall have been elected and qualified or
until his earlier resignation, removal from office or death.
<PAGE>
c. At the first annual meeting of shareholders and at each annual meeting
thereafter the shareholders shall elect directors to hold office until the next
succeeding annual meeting, except in case of the classification of directors as
permitted by the Colorado Business Corporation Act. Each director shall hold
office for the term for which he is elected and until his successor shall have
been elected and qualified or until his earlier resignation, removal from office
or death.
d. The shareholders, by amendment to these Bylaws, may provide that the
directors be divided into not more than four classes, as nearly equal in number
as possible, whose terms of office shall respectively expire at different times,
but no such term shall continue longer than four (4) years, and at least
one-fifth (l/5) in number of the directors shall be elected annually.
e. If directors are classified and the number of directors is thereafter
changed, any increase or decrease in directorships shall be so apportioned among
the classes as to make all classes as nearly equal in number as possible.
f. Any vacancy occurring in the Board of Directors including any vacancy
created by reason of an increase in the number of directors, may be filled by
the affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a vacancy shall
hold office only until the next election of directors by the shareholders.
Section 3. Removal of Directors.
--------------------------------
a. At a meeting of shareholders called expressly for that purpose,
directors may be removed in the manner provided in this Article III, Section 3.
Any director or the entire Board of Directors may be removed, with or without
cause, by a vote of the holders of a majority of the shares then entitled to
vote at an election of directors.
b. If the Corporation has cumulative voting, if less than the entire Board
is to be removed, no one of the directors may be removed if the votes cast
against his removal would be sufficient to elect him if then cumulatively voted
at an election of the entire Board of Directors, or, if there be classes of
directors, at an election of the class of directors of which he is a member.
Section 4. Director Quorum and Voting.
--------------------------------------
a. A majority of the number of directors fixed in the manner provided in
these Bylaws shall constitute a quorum for the transaction of business unless a
greater number if required elsewhere in these Bylaws.
b. A majority of the members of an Executive Committee or other committee
shall constitute a quorum for the transaction of business at any meeting of such
Executive Committee or other committee.
c. The act of the majority of the directors present at a Board meeting at
which a quorum is present shall be the act of the Board of Directors.
d. The act of a majority of the members of an Executive Committee present
at an Executive Committee meeting at which a quorum is present shall be the act
of the Executive Committee.
e. The act of a majority of the members of any other committee present at a
committee meeting at which a quorum is present shall be the act of the
committee.
Section 5. Director Conflicts of Interest.
------------------------------------------
<PAGE>
a. No contract or other transaction between this Corporation and one or
more of its directors or any other Corporation, firm, association or entity in
which one or more of its directors are directors or officers or are financially
interested, shall be either void or voidable because of a relationship or
interest or because such director or directors are present at the meeting of the
Board of Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction or because his or their votes are counted for such
purpose, if:
(I) The fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested directors; or
(ii) The fact of such relationship or interest is disclosed or known
to the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
(iii) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a committee, or the
shareholders.
b. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
Section 6. Executive and Other Committees; Designation; Authority.
------------------------------------------------------------------
a. The Board of Directors, by resolution adopted by a majority of the full
Board of Directors, may designate from among its members an Executive Committee
and one or more other committees each of which, to the extent provided in such
resolution or in the Articles of Incorporation or these Bylaws, shall have and
may exercise all the authority of the Board of Directors, except that no such
committee shall have the authority to: (I) approve or recommend to shareholders
actions or proposals required by the Colorado Business Corporation Act to be
approved by shareholders; (ii) designate candidates for the office of director
for purposes of proxy solicitation or otherwise; (iii) fill vacancies on the
Board of Directors or any committee thereof; (iv) amend the Bylaws; or (v)
authorize or approve the issuance or sale of, or any contract to issue or sell,
shares or designate the terms of a series of class of shares, unless the Board
of Directors, having acted regarding general authorization for the issuance or
sale of shares, or any contract therefor, and, in the case of a series, the
designation thereof, has specified a general formula or method by resolution or
by adoption of a stock option or other plan, authorized a committee to fix the
terms upon which such shares may be issued or sold, including, without
limitation, the price, the rate or manner of payment of dividends, provisions
for redemption, sinking fund, conversion, and voting preferential rights, and
provisions for other features of a class of shares, or a series of class of
shares, with full power in such committee to adopt any final resolution setting
forth all the terms thereof and to authorize the statement of the terms of a
series for filing with the Secretary of State under the Colorado Business
Corporation Act.
b. The Board, by resolution adopted in accordance with Article III,
Subsection 6(a) may designate one or more directors as alternate members of any
such committee, who may act in the place and stead of any absent member or
members at any meeting of such committee.
c. Neither the designation of any such committee, the delegation thereto of
authority, nor action by such committee pursuant to such authority shall alone
constitute compliance by any member of the Board of Directors, not a member of
the committee in question, with his responsibility to act in good faith, in a
manner he reasonably believes to be in the best interests of the Corporation,
and with such care as an ordinarily prudent person in a like position would use
under similar circumstances.
<PAGE>
Section 7. Place, Time, Notice, and Call of Directors' Meetings.
----------------------------------------------------------------
a. Meetings of the Board of Directors, regular or special, may be held
either within or without this state.
b. A regular meeting of the Board of Directors of the Corporation shall be
held for the election of officers of the Corporation and for the transaction of
such other business as may come before such meeting as promptly as practicable
after the annual meeting of the shareholders of this Corporation without the
necessity of other notice than this Bylaw. Other regular meetings of the Board
of Directors of the Corporation may be held at such times and at such places as
the Board of Directors of the Corporation may from time to time resolve without
other notice than such resolution. Special meetings of the Board of Directors
may be held at any time upon call of the Chairman of the Board or the President
or a majority of the Directors of the Corporation, at such time and at such
place as shall be specified in the call thereof. Notice of any special meeting
of the Board of Directors must be given at least two (2) days prior thereto, if
by written notice delivered personally; or at least five (5) days prior thereto,
if mailed; or at least two (2) days prior thereto, if by telegram; or at least
two (2) days prior thereto, if by telephone. If such notice is given by mail,
such notice shall be deemed to have been delivered when deposited with the
United States Postal Service addressed to the business address of such director
with postage thereon prepaid. If notice be given by telegram, such notice shall
be deemed delivered when the telegram is delivered to the telegraph company. If
notice is given by telephone, such notice shall be deemed delivered when the
call is completed.
c. Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection to
the transaction of business because the meeting is not lawfully called or
convened.
d. Neither the business to be transacted at, nor the purpose of any regular
or special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
e. A majority of the directors present, whether or not a quorum exists, may
adjourn any meeting of the Board of Directors to another time and place. Notice
of any such adjourned meeting shall be given to the directors who were not
present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
f. Members of the Board of Directors may participate in a meeting of such
Board by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at a meeting.
Section 8. Action by Directors Without a Meeting.
-------------------------------------------------
Any action required by the Colorado Business Corporation Act to be taken at
a meeting of the directors of the Corporation, or a committee thereof, may be
taken without a meeting if a consent in writing, setting forth the action so to
<PAGE>
be taken, signed by all of the directors, or all of the members of the
committee, as the case may be, is filed in the minutes of the proceedings of the
Board or of the committee. Such consent shall have the same effect as a
unanimous vote.
Section 9. Compensation.
------------------------
The directors and members of the Executive and any other committee of the
Board of Directors shall be entitled to such reasonable compensation for their
services and on such basis as shall be fixed from time to time by resolution of
the Board of Directors. The Board of Directors and members of any committee of
the Board of Directors shall be entitled to reimbursement for any reasonable
expenses incurred in attending any Board or committee meeting. Any director
receiving compensation under this section shall not be prevented from serving
the Corporation in any other capacity and shall not be prohibited from receiving
reasonable compensation for such other services.
Section 10. Resignation.
------------------------
Any Director of the Corporation may resign at any time without acceptance
by the Corporation. Such resignation shall be in writing and may provide that
such resignation shall take effect immediately or on any future date stated in
such notice.
Section 11. Removal.
--------------------
Any Director of the Corporation may be removed for cause by a majority vote
of the other members of the Board of Directors as then constituted or with or
without cause by the vote of the holders of a majority of the outstanding shares
of capital stock shareholders of the Corporation called for such purpose.
Section 12. Vacancies.
----------------------
In the event that a vacancy shall occur on the Board of Directors of the
Corporation whether because of death, resignation, removal, an increase in the
number of directors or any other reason, such vacancy may be filled by the vote
of a majority of the remaining directors of the Corporation even though such
remaining directors represent less than a quorum. An increase in the number of
directors shall create vacancies for the purpose of this section. A director of
the Corporation elected to fill a vacancy shall hold office for the unexpired
term of his predecessor, or in the case of an increase in the number of
directors, until the election and qualification of directors at the next annual
meeting of the shareholders.
ARTICLE IV
Officers
--------
Section 1. Election; Number; Terms of Office.
---------------------------------------------
a. The officers of the Corporation shall consist of a Chairman of the
Board, a President, a Secretary and a Treasurer, each of whom shall be elected
by the Board of Directors at such time and in such manner as may be prescribed
by these Bylaws. Such other officers and assistant officers and agents as may be
deemed necessary may be elected or appointed by the Board of Directors.
b. All officers and agents, as between themselves and the Corporation,
shall have such authority and perform such duties in the management of the
Corporation as are provided in these Bylaws, or as may be determined by
resolution of the Board of Directors not inconsistent with these Bylaws.
<PAGE>
c. Any two (2) or more offices may be held by the same person except the
offices of the President and Secretary.
d. A failure to elect a Chairman of the Board, President, a Secretary and a
Treasurer shall not affect the existence of the Corporation.
Section 2. Removal.
-------------------
An officer of the Corporation shall hold office until the election and
qualification of his successor; however, any officer of the Corporation may be
removed from office by the Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of any officer shall not of itself create any contract
right to employment or compensation.
Section 3. Vacancies.
---------------------
Any vacancy in any office from any cause may be filled for the unexpired
portion of the term of such office by the Board of Directors.
Section 4. Powers and Duties.
-----------------------------
a. The Chairman of the Board shall be the Chief Executive Officer of the
Corporation. The Chairman of the Board shall preside at all meetings of the
shareholders and of the Board of Directors. Except where by law the signature of
the President is required or unless the Board of Directors shall rule otherwise,
the Chairman of the Board shall possess the same power as the President to sign
all certificates, contracts and other instruments of the Corporation which may
be authorized by the Board of Directors. Unless a Chairman of the Board is
specifically elected, the President shall be deemed to be the Chairman of the
Board.
b. The President shall be the Chief Operating Officer of the Corporation.
He shall be responsible for the general day-to-day supervision of the business
and affairs of the Corporation. He shall sign or countersign all certificates,
contracts or other instruments of the Corporation as authorized by the Board of
Directors. He may, but need not, be a member of the Board of Directors. In the
absence of the Chairman of the Board, the President shall be the Chief Executive
Officer of the Corporation and shall preside at all meetings of the shareholders
and the Board of Directors. He shall make reports to the Board of Directors and
shareholders. He shall perform such other duties as are incident to his office
or are properly required of him by the Board of Directors. The Board of
Directors will at all times retain the power to expressly delegate the duties of
the President to any other officer of the Corporation.
c. The Vice-President(s), if any, in the order designated by the Board of
Directors, shall exercise the functions of the President during the absence,
disability, death, or refusal to act of the President. During the time that any
Vice-President is properly exercising the functions of the President, such
Vice-President shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice-President shall have such other
duties as are assigned to him from time to time by the Board of Directors or by
the President of the Corporation.
d. The Secretary of the Corporation shall keep the minutes of the meetings
of the shareholders of the Corporation and, if so requested, the Secretary shall
keep the minutes of the meetings of the Board of Directors of the Corporation.
The Secretary shall be the custodian of the minute books of the Corporation and
such other books and records of the Corporation as the Board of Directors of the
Corporation may direct. The Secretary shall make or cause to be made all proper
<PAGE>
entries in all corporate books that the Board of Directors of the Corporation
may direct. The Secretary shall have the general responsibility for maintaining
the stock transfer books of the Corporation, or of supervising the maintenance
of the stock transfer books of the Corporation by the transfer agent, if any, of
the Corporation. The Secretary shall be the custodian of the corporate seal of
the Corporation and shall affix the corporate seal of the Corporation on
contracts and other instruments as the Board of Directors of the Corporation may
direct. The Secretary shall perform such other duties as are assigned to him
from time to time by the Board of Directors or the President of the Corporation.
e. The Treasurer of the Corporation shall have custody of all funds and
securities owned by the Corporation. The Treasurer shall cause to be entered
regularly in the proper books of account of the Corporation full and accurate
accounts of the receipts and disbursements of the Corporation. The Treasurer of
the Corporation shall render a statement of cash, financial and other accounts
of the Corporation whenever he is directed to render such a statement by the
Board of Directors or by the President of the Corporation. The Treasurer shall
at all reasonable times make available the Corporation's books and financial
accounts to any Director of the Corporation during normal business hours. The
Treasurer shall perform all other acts incident to the office of the Treasurer
of the Corporation, and he shall have such other duties as are assigned to him
from time to time by the Board of Directors or the President of the Corporation.
f. Other subordinate or assistant officers appointed by the Board of
Directors or by the President, if such authority is delegated to him by the
Board of Directors, shall exercise such powers and perform such duties as may be
delegated to them by the Board of Directors or by the President, as the case may
be.
g. In case of the absence or disability of any officer of the Corporation
and of any person authorized to act in his place during such period of absence
or disability, the Board of Directors may from time to time delegate the powers
and duties of such officer to any other officer or any director or any other
person whom it may select.
Section 5. Salaries
-------------------
The salaries of all Officers of the Corporation shall be fixed by the Board
of Directors. No officer shall be ineligible to receive such salary by reason of
the fact that he is also a Director of the Corporation and receiving
compensation therefor.
ARTICLE V
Loans to Employees and Officers:
--------------------------------
Guaranty of Obligations of Employees and Officers
-------------------------------------------------
This Corporation may lend money to, guarantee any obligation of, or
otherwise assist any officer or other employee of the Corporation or of a
subsidiary, including any officer or employee who is a Director of the
Corporation or of a subsidiary, whenever, in the judgment of the Directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board of
Directors shall approve including, without limitation, a pledge of shares of
stock of the Corporation. Nothing in this Article shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of this Corporation at common law
or under any statute.
ARTICLE VI
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
--------------------------------------------
<PAGE>
Section 1. Certificates Representing Shares.
--------------------------------------------
a. Every holder of shares in this Corporation shall be entitled to one or
more certificates, representing all shares to which he is entitled and such
certificates shall be signed by the President or a Vice President and the
Secretary or an Assistant Secretary of the Corporation and may be sealed with
the seal of the Corporation or a facsimile thereof. The signatures of the
President or Vice President and the Secretary or Assistant Secretary may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar, other than the Corporation itself or an employee of the
Corporation. In case any officer who signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be used by the Corporation with the same
effect as if he were such officer at the date of its issuance.
b. Each certificate representing shares shall state upon the face thereof:
(I) the name of the Corporation; (ii) that the Corporation is organized under
the laws of this state; (iii) the name of the person or persons to whom issued;
(iv) the number and class of shares, and the designation of the series, if any,
which such certificate represents; and (v) the par value of each share
represented by such certificate, or a statement that the shares are without par
value.
c. No certificate shall be issued for any shares until such shares are
fully paid.
Section 2. Transfer Book.
-------------------------
The Corporation shall keep at its registered office or principal place of
business or in the office of its transfer agent or registrar, a book (or books
where more than one kind, class, or series of stock is outstanding) to be known
as the Stock Book, containing the names, alphabetically arranged, addresses and
Social Security numbers of every shareholder, and the number of shares of each
kind, class or series of stock held of record. Where the Stock Book is kept in
the office of the transfer agent, the Corporation shall keep at its office in
the State of Colorado copies of the stock lists prepared from said Stock Book
and sent to it from time to time by said transfer agent. The Stock Book or stock
lists shall show the current status of the ownership of shares of the
Corporation provided, if the transfer agent of the Corporation be located
elsewhere, a reasonable time shall be allowed for transit or mail.
Section 3. Transfer of Shares.
------------------------------
a. The name(s) and address(s) of the person(s) to whom shares of stock of
this Corporation are issued, shall be entered on the Stock Transfer Books of the
Corporation, with the number of shares and date of issuance.
b. Transfer of shares of the Corporation shall be made on the Stock
Transfer Books of the Corporation by the Secretary or the transfer agent, only
when the holder of record thereof or the legal representative of such holder of
record or the attorney-in-fact of such holder of record, authorized by power of
attorney duly executed and filed with the Secretary or transfer agent of the
Corporation, shall surrender the Certificate representing such shares for
cancellation. Lost, destroyed or stolen Stock Certificates shall be replaced
pursuant to Section 5 of this Article VI.
c. The person or persons in whose names shares stand on the books of the
Corporation shall be deemed by the Corporation to be the owner of such shares
for all purposes, except as otherwise provided pursuant to Section 10 and 11 of
Article II, or Section 4 of this Article VI.
Section 4. Voting Trusts.
-------------------------
<PAGE>
a. Any number of shareholders of the Corporation may create a voting trust
for the purpose of conferring upon a trustee or trustees the right to vote or
otherwise represent their shares, for a period not to exceed ten (10) years, by:
(I) entering into a written voting trust; (ii) depositing a counterpart of the
agreement with the Corporation at its registered office; and (iii) transferring
their shares to such trustee or trustees for the purposes of this Agreement.
Prior to the recording of the Agreement, the shareholder concerned shall tender
the stock certificate(s) described therein to the corporate secretary who shall
note on each certificate:
"This Certificate is subject to the provisions of a voting
trust agreement dated ___________________, recorded in Minute
Book __________________, of the Corporation.
_________________________
Secretary"
b. Upon the transfer of such shares, voting trust certificates shall be
issued by the trustee or trustees to the shareholders who transfer their share
in trust. Such trustee or trustees shall keep a record of the holders of the
voting trust certificates evidencing a beneficial interest in the voting trust,
giving the names and addresses of all such holders and the number and class of
the shares in respect of which the voting trust certificates held by each are
issued, and shall deposit a copy of such record with the Corporation at its
registered office.
b. Upon the transfer of such shares, voting trust certificates shall be
issued by the trustee or trustees to the shareholders who transfer their shares
in trust. Such trustee or trustees shall keep a record of the holders of the
voting trust certificates evidencing a beneficial interest in the voting trust,
giving the names and addresses of all such holders and the number and class of
the shares in respect of which the voting trust certificates held by each are
issued, and shall deposit a copy of such record with the Corporation at its
registered office.
c. The counterpart of the voting trust agreement and the copy of such
record so deposited with the Corporation shall be subject to the same right of
examination by a shareholder of the Corporation, in person or by agent or
attorney, as are the books and records of the Corporation, and such counterpart
and such copy of such record shall be subject to examination by any holder of
record of voting trust certificates either in person or by agent or attorney, at
any reasonable time for any proper purpose.
d. At any time before the expiration of a voting trust agreement as
originally fixed or as extended one or more times under this Article VI,
Subsection 4(d) one or more holders of voting trust certificates may, by
agreement in writing, extend the duration of such voting trust agreement,
nominating the same or substitute trustee or trustees, for an additional period
not exceeding ten (10) years. Such extension agreement shall not affect the
rights or obligations of persons not parties to the agreement, and such persons
shall be entitled to remove their shares from the trust and promptly to have
their stock certificates reissued upon the expiration date of the original term
of the voting trust agreement. The extension agreement shall in every respect
comply with and be subject to all the provisions of this Article VI, Section 4
applicable to the original voting trust agreement except that the ten (10) year
maximum period of duration shall commence on the date of adoption of the
extension agreement.
e. The trustees under the terms of the agreements entered into under the
provisions of this Article VI, Section 4 shall not acquire the legal title to
the shares but shall be vested only with the legal right and title to the voting
power which is incident to the ownership of the shares.
Section 5. Lost, Destroyed, or Stolen Certificates.
---------------------------------------------------
<PAGE>
No certificate representing shares of the stock in the Corporation shall be
issued in place of any Certificate alleged to have been lost, destroyed, or
stolen except on production of evidence, satisfactory to the Board of Directors,
of such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount (but not to exceed twice
the fair market value of the shares represented by the Certificate) and with
such terms and with such surety as the Board of Directors may, in its
discretion, require.
ARTICLE VII
Books and Records
-----------------
a. The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its shareholders, Board of
Directors and committees of Directors.
b. Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
c. Any person who shall have been a holder of record of one quarter of one
percent of all shares or of voting trust certificates therefor at least six
months immediately preceding his demand or shall be the holder of record of, or
the holder of record of voting trust certificates for, at least five (5%)
percent of the outstanding shares of any class or series of the Corporation,
upon written demand stating the purpose thereof, shall have the right to
examine, in person or by agent or attorney, at any reasonable time or times, for
any proper purpose, its relevant books and records of account, minutes and
record of shareholders and to make extracts therefrom.
d. No shareholder who within two (2) years has sold or offered for sale any
list of shareholders or of holders of voting trust certificates for shares of
this Corporation or any other Corporation; has aided or abetted any person in
procuring any list of shareholders or of holders of voting trust certificates
for any such purpose; or has improperly used any information secured through any
prior examination of the books and records of account, minutes, or record of
shareholders or of holders of voting trust certificates for shares of the
Corporation or any other Corporation; shall be entitled to examine the documents
and records of the Corporation as provided in Subsection (C) of this Article
VII. No shareholder who does not act in good faith or for a proper purpose in
making his demand shall be entitled to examine the documents and records of the
Corporation as provided in Subsection (C) of this Article VII.
e. Unless modified by resolution of the shareholders, this Corporation
shall prepare not later than four (4) months after the close of each fiscal
year:
(I) A balance sheet showing in reasonable detail the financial
conditions of the Corporation as of the date of its fiscal year.
(ii) A profit and loss statement showing the results of its operation
during its fiscal year.
f. Upon the written request of any shareholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail to such
shareholder or holder of voting trust certificates a copy of its most recent
balance sheet and profit and loss statement.
g. Such balance sheets and profit and loss statements shall be filed and
kept for at least five (5) years in the registered office of the Corporation in
this state and shall be subject to inspection during business hours by any
shareholder or holder of voting trust certificates.
<PAGE>
ARTICLE VIII
Dividends
---------
The Board of Directors of the Corporation may, from time to time, declare
and the Corporation may pay dividends on its shares in cash, property or its own
shares, except when the Corporation is insolvent or when the payment thereof
would render the Corporation insolvent subject to the following provisions:
a. Dividends in cash or property may be declared and paid, except as
otherwise provided in this Article VIII, only out of the unreserved and
unrestricted earned surplus of the Corporation or out of capital surplus,
however arising, but each dividend paid out of capital surplus shall be
identified as a distribution of capital surplus, and the amount per share paid
from such capital surplus shall be disclosed to the shareholders receiving the
same concurrently with the distribution.
b. Dividends may be declared and paid in the Corporation's treasury shares.
c. Dividends may be declared and paid in the Corporation's authorized but
unissued shares out of any unreserved and unrestricted surplus of the
Corporation upon the following conditions:
(I) If a dividend is payable in the Corporation's own shares having a
par value, such shares shall be issued at not less than the par value thereof
and there shall be transferred to stated capital at the time such dividend is
paid an amount of surplus equal to the aggregate par value of the shares to be
issued as a dividend.
(ii) If a dividend is payable in the Corporation's own shares without
par value, such shares shall be issued at such stated value as shall be fixed by
the Board of Directors by resolution adopted at the time such dividend is
declared, and there shall be transferred to stated capital at the time such
dividend is paid an amount of surplus equal to the aggregate stated value so
fixed in respect of such shares; and the amount per share so transferred to
stated capital shall be disclosed to the shareholders receiving such dividend
concurrently with the payment thereof.
d. No dividend payable in shares of any class shall be paid to the holders
of shares of any other class unless the Articles of Incorporation so provide or
such payment is authorized by the affirmative vote or written consent of the
holders of at least a majority of the outstanding shares of the class in which
the payment is to be made.
e. A split up or division of the issued shares of any class into a greater
number of shares of the same class without increasing the stated capital of the
Corporation shall not be construed to be a stock dividend within the meaning of
this Article VIII.
ARTICLE IX
Indemnification
---------------
Section 1. Action, etc. Other Than by or in the Right of the Corporation.
-------------------------------------------------------------------------
The Corporation shall 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 or investigation, whether civil, criminal or administrative,
and whether external or internal to the Corporation, (other than a judicial
action or suit brought 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 that, being or having been such a director, officer, employee or
<PAGE>
agent, he is or was serving at the request of the Corporation as a director,
officer, employee, or trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise (all such persons being referred to
hereafter as an "Agent"), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding, or any appeal
therein, if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe such conduct was unlawful. The termination of any action, suit or
proceeding -- whether by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent -- shall 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 or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his conduct was unlawful.
Section 2. Action, etc., by or in the Right of the Corporation.
---------------------------------------------------------------
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed judicial
action or suit brought 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 an Agent (as
defined above) against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense, settlement or appeal
of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for gross
negligence or willful misconduct in the performance of his or her duty to the
Corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 3. Determination of Right of Indemnification.
-----------------------------------------------------
Any indemnification under Section 1 or 2 (unless ordered by a court) shall
be made by the Corporation unless a determination is reasonably and promptly
made (I) by the Board by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe that his conduct was unlawful.
Section 4. Indemnification Against Expenses of Successful Party.
----------------------------------------------------------------
Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice or the settlement of an
action without admission of liability, in defense of any proceeding or in
defense of any claim, issue or matter therein, or on appeal from any such
proceeding, action, claim or matter, such Agent shall be indemnified against all
expenses incurred in connection therewith.
Section 5. Advances of Expenses.
--------------------------------
Except as limited by Section 6 of this Article, costs, charges and expenses
(including attorneys' fees) incurred in any action, suit, proceeding or
investigation or any appeal therefrom shall be paid by the Corporation in
<PAGE>
advance of the final disposition of such matter, if the Agent shall undertake to
repay such amount in the event that it is ultimately determined, as provided
herein, that such person is not entitled to indemnification. Notwithstanding the
foregoing, no advance shall be made by the Corporation if a determination is
reasonably and promptly made by the Board of Directors or if a majority vote of
a quorum of disinterested directors cannot be obtained, then by independent
legal counsel in a written opinion, that, based upon the facts known to the
Board or counsel at the time such determination is made, such person acted in
bad faith and in a manner that such person did not believe to be in or not
opposed to the best interest of the Corporation, or, with respect to any
criminal proceeding, that such person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any advance be made in
instances where the Board or independent legal counsel reasonably determines
that such person deliberately breached his duty to the Corporation or its
shareholders.
Section 6. Right of Agent to Indemnification Upon Application; Procedure
- --------------------------------------------------------------------------------
Upon Application.
- -----------------
Any indemnification under Sections 1, 2 and 4 or advance under Section 5 of
this Article, shall be made promptly, and in any event within ninety (90) days,
upon the written request of the Agent, unless with respect to applications under
Sections 1, 2 or 5, a determination is reasonably and promptly made by the Board
of Directors by a majority vote of a quorum of disinterested directors that such
Agent acted in a manner set forth in such Sections as to justify the
Corporation's not indemnifying or making an advance to the Agent. In the event
no quorum of disinterested directors is obtainable, the Board of Directors shall
promptly direct that independent legal counsel shall decide whether the Agent
acted in the manner set forth in such Sections as to justify the Corporation's
not indemnifying or making an advance to the Agent. The right to indemnification
or advances as granted by this Article shall be enforceable by the Agent in any
court of competent jurisdiction, if the Board or independent legal counsel
denies the claim, in whole or in part, or if no disposition of such claim is
made within ninety (90) days. The Agent's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by the Corporation.
Section 7. Contribution.
------------------------
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Article is held by a court of
competent jurisdiction to be unavailable to an indemnitee in whole or part, the
Corporation shall, in such an event, after taking into account, among other
things, contributions by other directors and officers of the Corporation
pursuant to indemnification agreements or otherwise, and, in the absence of
personal enrichment, acts of intentional fraud or dishonesty or criminal conduct
on the part of the Agent, contribute to the payment of Agent's losses to the
extent that, after other contributions are taken into account, such losses
exceed: (I) in the case of a director of the Corporation or any of its
subsidiaries who is not an officer of the Corporation or any of such
subsidiaries, the amount of fees paid to him for serving as a director during
the 12 months preceding the commencement of the suit, proceeding or
investigation; or (ii) in the case of a director of the Corporation or any of
its subsidiaries who is also an officer of the Corporation or any of such
subsidiaries, the amount set forth in clause (I) plus 5% of the aggregate cash
compensation paid to said director for service in such office(s) during the 12
months preceding the commencement of the suit, proceeding or investigation; or
(iii) in the case of an officer of the Corporation or any of its subsidiaries,
5% of the aggregate cash compensation paid to such officer of service in such
office(s) during the 12 months preceding the commencement of such suit,
proceeding or investigation.
Section 8. Other Rights and Remedies.
-------------------------------------
<PAGE>
The indemnification provided by this Article shall not be deemed exclusive
of, and shall not affect, any other rights to which an Agent seeking
indemnification may be entitled under any law, Bylaw, or charter provision,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be an
Agent and shall inure to the benefit of the heirs, executors and administrators
of such a person. All rights to indemnification under this Article shall be
deemed to be provided by a contract between the Corporation and the Agent who
serves in such capacity at any time while these Bylaws and other relevant
provisions of the general corporation law and other applicable law, if any are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
Section 9. Insurance.
---------------------
Upon resolution passed by the Board, the Corporation may purchase and
maintain insurance on behalf of any person who is or was an Agent against any
liability asserted against such person and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of this Article. The Corporation may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
to ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
Section 10. Constituent Corporation.
------------------------------------
For the purposes of this Article, references to the "Corporation" include
all constituent corporations absorbed in a consolidation or merger as well as
the resulting or surviving corporation, so that any person who is or was a
director, officer, employee, agent or trustee of such a constituent corporation
or who, being or having been such a director, officer, employee or trustee, is
or was serving at the request of such constituent corporation as a director,
officer, employee, agent or trustee of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as such person would if he had served the resulting or surviving
corporation in the same capacity.
Section 11. Other Enterprises, Fines and Serving at Corporation's Request.
--------------------------------------------------------------------------
For purposes of this Article, references to "other enterprise" in Sections
1 and 10 shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service by Agent as director, officer, employee, trustee or
agent of the Corporation which imposes duties on, or involves services by, such
Agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
Section 12. Savings Clause.
---------------------------
If this Article or any portion thereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each Agent as to expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement with respect to any action, suit, appeal,
proceeding or investigation, whether civil, criminal or administrative, and
whether internal or external, including a grand jury proceeding and an action or
suit brought by or in the right of the Corporation, to the full extent permitted
by any applicable portion of this Article that shall not have been invalidated,
or by any other applicable law.
<PAGE>
ARTICLE X
Amendment of Bylaws
-------------------
a. The Board of Directors shall have the power to amend, alter, or repeal
these Bylaws, and to adopt new Bylaws, from time to time.
b. The shareholders of the Corporation, may, at any annual meeting of the
shareholders of the Corporation or at any special meeting of the shareholders of
the Corporation called for the purpose of amending these Bylaws, amend, alter,
or repeal these Bylaws, and adopt new Bylaws, from time to time.
c. The Board of Directors shall not have the authority to adopt or amend
any Bylaw if such new Bylaw of such amendment would be inconsistent with any
Bylaw previously adopted by the shareholders of the Corporation. The
shareholders may prescribe in any Bylaw made by them that such Bylaw shall not
be altered, amended or repealed by the Board of Directors.
ARTICLE XI
Shareholder Agreements
----------------------
Unless the shares of this Corporation are listed on a national securities
exchange or are regularly quoted by licensed securities dealers and brokers, all
the shareholders of this Corporation may enter into agreements relating to any
phase of business and affairs of the Corporation and which may provide for,
among other things, the election of directors of the Corporation in a manner
determined without reference to the number of shares of capital stock of the
Corporation owned by its shareholders, the determination of management policy,
and division of profits. Such agreement may restrict the discretion of the Board
of Directors and its management of the business of the Corporation or may treat
the Corporation as if it were a partnership or may arrange the relationships of
the shareholders in a manner that would be appropriate only among partners. In
the event such agreement shall be inconsistent in whole or in part with the
Articles of Incorporation and/or Bylaws of the Corporation, the terms of such
agreement shall govern. Such agreement shall be binding upon any transferee of
shares of this corporation provided such transferee has actual notice thereof or
a legend referring to such agreement is noted on the face or back of the
certificate or certificates representing the shares transferred to such
transferee.
ARTICLE XII
Fiscal Year
-----------
The Fiscal Year of this Corporation shall be determined by the Board of
Directors.
Date: September 20, 1991
/s/ William R. Barber
---------------------
Secretary
[S E A L]
BYLAWS
EXHIBIT 4. Under Item 601(4) of Regulation S-B of the Securities Act of 1933.
Instruments defining the rights of security holders, including indentures.
- --------------------------------------------------------------------------
ARTICLE V AND VI OF THE ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF MESA COUNTRY BREWING CO.
ARTICLE V
Capital Structure
-----------------
Section 1. Authorized Capital. The aggregate number of shares and the
amount of the total authorized capital of said Corporation shall consist of
50,000,000 shares of common stock, no par value per share, and 5,000,000 shares
of preferred stock, no par value per share. The preferred shares shall have the
preference of upon dissolution or winding up of the company, the preferred
shareholders as a group shall receive 10% of the assets of the company to be
distributed pro rata prior to the distribution of assets to the holders of
common stock.
Section 2. Share Status. All common shares will be equal to each other, and
when issued, shall be fully paid and nonassessable, and the private property of
shareholders shall not be liable for corporate debts. Preferred shares shall
have such preferences and voting rights as the Directors may assign to them
prior to issuance. Each holder of a common share of record shall have one vote
for each share of stock outstanding in his name on the books of the Corporation
and shall be entitled to vote said stock. Each holder of a preferred share of
record shall have one vote for each share of stock outstanding in his name on
the books of the Corporation, if such voting right was assigned by the Board of
Directors upon issuance.
Section 3. Consideration for Shares. The stock of the Corporation shall be
issued for such consideration as shall be fixed from time to time by the Board
of Directors. In the absence of fraud, the judgment of the Directors as to the
value of any property or services received in full or partial payment for shares
shall be conclusive. When shares are issued upon payment of the consideration
fixed by the Board of Directors, such shares shall be taken to be fully paid
stock and shall be nonassessable.
Section 4. Pre-Emptive Rights. Except as may otherwise be provided by the
Board of Directors, holders of shares of stock of the Corporation shall have no
pre-emptive right to purchase, subscribe for or otherwise acquire shares of
stock of the Corporation, rights, warrants or options to purchase stocks or
securities of any kind convertible into stock of the Corporation.
Section 5. Dividends. Dividends in cash, property or shares of the
Corporation may be paid, as and when declared by the Board of Directors, out of
funds of the Corporation to the extent and in the manner permitted by law.
Section 6. Distribution in Liquidation. Upon any liquidation, dissolution
or winding up of the Corporation, and after paying or adequately providing for
<PAGE>
the payment of all its obligations, the remainder of the assets of the
Corporation shall be distributed, either in cash or in kind, pro rata to the
holders of the common stock, subject to preferences, if any, granted to holders
of the preferred shares. The Board of Directors may, from time to time,
distribute to the shareholders in partial liquidation from stated capital of the
Corporation, in cash or property, without the vote of the shareholders, in the
manner permitted and upon compliance with limitations imposed by law.
ARTICLE VI
Voting by Shareholders
----------------------
Section 1. Voting Rights; Cumulative Voting. Each outstanding share of
common stock is entitled to one vote and each fractional share of common stock
is entitled to a corresponding fractional vote on each matter submitted to a
vote of shareholders. Cumulative voting shall not be allowed in the election of
Directors of the Corporation and every shareholder entitled to vote at such
election shall have the right to vote the number of shares owned by him for as
many persons as there are Directors to be elected, and for whose election he has
a right to vote. Preferred shares are to have the same voting rights as common
shares if so designated by the Board of Directors upon issuance.
Section 2. Majority Vote. Except as otherwise provided herein, when, with
respect to any action to be taken by the Shareholders of the Corporation, the
Colorado Business Corporation Act requires the vote or concurrence of the
holders of two-thirds of the outstanding shares entitled to vote thereon, or of
any class or series, any and every such action shall be taken, notwithstanding
such requirements of the Colorado Business Corporation Act, by the vote or
concurrence of the holders of a majority of the outstanding shares entitled to
vote thereon, or of any class or series.
- - - - - - - - -
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