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
UNITED RACEWAYS, INC.
----------------------------------------------
(Name of Small Business Issuer in its charter)
Delaware 95-4695878
- ------------------------------- -----------------
(State or other jurisdiction of (I.R.S. I.D. No.)
incorporation or organization)
860 Via de la Paz, Suite E-1, Pacific Palisades, CA 90272
- --------------------------------------------------- ----------
(Address of principal executive offices) (zip code)
Issuer's telephone number (310) 230-6100
--------------
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
------------------- ------------------------------
None
=================== ==============================
Securities to be registered under Section 12(g) of the Act:
Common Stock $.01 par value
---------------------------
(Title of class)
<PAGE>
UNITED RACEWAYS, INC.
Form 10-SB
Table of Contents Page
PART 1
Item 1. Description of Business .......................... 1
Item 2. Management's Discussion and Analysis
of Financial Conditions and Results of Operation.. 2
Item 3. Description of Property........................... 2
Item 4. Security Ownership of Certain Beneficial
Owners and Management............................. 3
Item 5. Directors, Executive Officers, Promoters
and Control Persons............................... 3
Item 6. Executive Compensation............................ 5
Item 7. Certain Relationships and Related Transactions.... 5
Item 8. Description of Securities......................... 5
PART II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and other Stockholder Matters....... 6
Item 2. Legal Proceedings................................. 6
Item 3. Changes in and Disagreements with Accountants..... 6
Item 4. Recent Sales of Unregistered Securities........... 7
Item 5. Indemnification of Directors and Officers......... 7
PART F/S
Financial Statements................................................ F-1
PART III
Item 1 & 2. Index to Exhibits and Description of Exhibits..... 8
Signature Page...................................................... 9
i
<PAGE>
PART 1
CAUTION REGARDING FORWARD-LOOKING INFORMATION
This registration statement contains certain forward-looking statements and
information relating to United Raceways, Inc., (the "Company") that are based on
the beliefs of the Company or management as well as assumptions made by and
information currently available to the Company and management. When used in this
document, the words "anticipate", "believe", "estimate", "expect" and "intend"
and similar expressions, as they relate to the Company or its management, are
intended to identify forward-looking statements. Such statements reflect the
current view of the Company regarding future events and are subject to certain
risks, uncertainties and assumptions, including the risks and uncertainties
noted, should one or more of these risks or uncertainties materialize, or should
the underlying assumptions prove incorrect, actual results may vary materially
from those described herein as anticipated, believed, estimated, expected or
intended. In each instance, forward-looking information should be considered in
light of the accompanying meaningful cautionary statements herein.
Item 1. Description of Business.
United Raceways, Inc. (the "Company") was incorporated on May 29, 1998 in
the State of Delaware. The Company's principal business is in the motor car
sports industry. The Company's principal objective is to acquire independently
owned motor car race tracks in the United States and Canada. The Company plans
to acquire and refurbish motor sports facilities throughout the United States
and Canada. The Company intends to increase overall patronage by utilizing its
promotional and marketing expertise to take advantage of opportunities in
attractive new markets. The Company intends to create a national chain of high
quality, family oriented raceways with brand-name recognition. The Company
intends to take advantage of a fragmented sporting sub-industry and employ an
aggressive consolidation scheme. Operations will remain at the local management
level, but the holding company management will be responsible for mergers and
acquisitions and nationwide marketing.
The Company intends to see that the highest standards for safety and track
maintenance will be enforced so as to foster a corporate reputation for safety
and well groomed, state-of-the- art facilities, and intends to increase customer
patronage by sponsoring regional and national championship events and televised
celebrity races, as well as non-stock car related entertainment events.
The Company intends to attract major advertising sponsors. The Company believes
that the promotional and advertising expenditures of major sponsors will provide
it with a wide variety of indirect marketing and other benefits. Accordingly,
the Company plans to invest significant resources to develop long-term
1
<PAGE>
relationships with leading consumer products and manufacturing companies.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion of the results of operations and financial
condition should be read in conjunction with the audited financial statements
and related notes appearing subsequently under the caption "Financial
Statements".
Cautionary Statement on Forward-Looking Statements
From time to time, the Company makes oral and written statements that may
constitute "forward-looking statements" as defined in the Private Securities
Litigation Reform Act of 1995 (the "PSLRA") or by the Commission in its rules,
regulations and releases. The Company desires to take advantage of the "safe
harbor" provisions in the PSLRA for forward-looking statements made from time to
time, including, but not limited to, the forward-looking statements relating to
the Company contained in this Form 10-SB registration statement.
The Company cautions readers that any such forward-looking statements made
by or on behalf of the Company are based on management's current expectations
and beliefs but are not guarantees of future performance. Actual results could
differ materially from those expressed or implied in the forward-looking
statements.
The Company was formed on May 29, 1998 and is in the development stage. To
date, the Company has not conducted any business operations or had any sales
revenue. To accomplish its business objectives, the Company intends to locate
and enter into strategic business combinations in the motor car race tract
industry. The Company has no plans to purchase or sell any significant
equipment. There will be no change in the number of employees.
Liquidity and Capital Resources
The Company currently believes that it has adequate cash resources to fund
current operations. There can be no assurance, however, that the Company's
actual capital needs will not exceed anticipated levels, or that the Company
will generate sufficient revenues to fund its operations in the absence of other
sources.
In July 1998, the Company received $7,000 from the sale of 718,400 shares
of common stock in an offering which was exempt from registration pursuant to
Regulation D, Rule 504 of the Securities Act of 1933, as amended (the "Act").
Item 3. Description of Property
The Company leases executive offices at 860 Via de la Paz,
2
<PAGE>
Suite E-1, Pacific Palisades, California, pursuant to a month to month lease, at
a monthly rental of $500.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
As of April 30, 1999, the Company had 718,400 issued and outstanding shares
of Common Stock. The following table sets forth as of April 30, 1999, certain
information regarding beneficial ownership of the Common Stock by (i) those
persons beneficially holding more than five percent of the Company's Common
Stock, (ii) the Company's directors who beneficially own shares of the Common
Stock, (iii) the officers named in the Summary Compensation table below, and
(iv) all of the Company's directors and officers as a group.
<TABLE>
<CAPTION>
Name and Address Amount of Shares Percent
of Beneficial Owner (1) of Beneficial Owner of Class
- ----------------------- ------------------- --------
<S> <C> <C>
Appletree Investment Company Ltd. ............. 336,791 46.88
Anglo Irish Trust (I.O.M.)
69 Athol Street
Douglas, Isle of Man IM1 1JE
Kevin Welch ................................... 75,000 10.44
626 Santa Monica Blvd .........................
Santa Monica, CA 90401
Deremie Enterprises Ltd. ...................... 50,000 6.96
Aluminum Tower, 5th Floor
2 Limasol Ave .................................
Nicosia 2003, Cypress
George Todt ................................... 4,053 *
23741 Harbor Vista
Malibu, CA 90265
James Walters ................................. 2,908 *
14724 Ventura Blvd
Sherman Oaks, CA 91423
All officers and directors .................... 6,961 *
as a group (2 persons)
*Less than one (1%).
</TABLE>
(1) For purposes of the table, a person is considered to "beneficially own" any
shares with respect to which he/she directly or indirectly has or shares voting
or investment power or of which he or she has the right to acquire the
beneficial ownership within 60 days. Unless otherwise indicated and subject to
applicable community property law, voting power and investment power are
exercised solely by the person named above or shared with members of his or her
household.
3
<PAGE>
Item 5. Directors, Executive Officers, Promoters and Control Persons.
The directors and executive officers of the Company and their ages as of
the date of this document are as follows:
Name Age Position
- ---- --- --------
Larry Todt(1) 47 President, Director
George Todt(1) 46 Secretary, Director
James Walters 46 Vice President, Treasurer & Director
Larry Todt owned and operated a construction company in the Midwest from
1975 to December 1996. During that time was involved in multi-million dollar
projects and managed the activities of more than two hundred personnel. He has
held the position of Vice President of Business Development for ISPI, Inc., a
privately held internet company, from January, 1997 to the present.
George Todt, has been Managing Member of PageOne Business Productions, LLC
since its formation in March 1996. PageOne is an internet based financial and
consulting form specializing in high-tech start-up and emerging growth
companies. Mr. Todt's experience over the past 15 years includes working with 10
start-up companies, raising venture capital, and arranging strategic
partnerships and initial public offerings. He has researched, developed and
implemented marketing and sales training programs in several industries. Mr.
Todt also gained extensive experience in management in various companies. He was
Chief Executive Officer of Todt Companies, Cape Girardeau, Missouri, from 1987
to 1990. During this time, his company grew from 29 to 130 employees, and annual
sales grew from $2 million to $8 million. Mr. Todt also has been an
international consultant in the areas of technology exchanges and rights.
James Walters is President of Kellogg & Andelson, Los Angeles' largest
local privately owned accounting firm. Mr. Walters began his business career in
1976 as an accountant at Kellogg & Andelson. In 1980 he was elected partner and
was promoted to Managing Partner in 1984. In 1995 Mr. Walters was elected
Chairman of the Board and is currently responsible for the overall management of
the 100 person firm. In addition to managing Kellogg & Andelson, he has assisted
the firm's clients with the preparation for their Initial Public Offerings, as
well as with their acquisition and consolidation strategies. He has extensive
experience in the planning, design, installation and review of financial
management information systems. In addition, Mr. Walters has consulted with many
middle-sized companies in several different industries. Mr. Walters has founded,
owned and managed companies in Commercial Photography, Corporate Events, Auto
Repair and Concrete Molding industries.
(1) Larry Todt and George Todt are cousins
4
<PAGE>
Item 6. Executive Compensation.
Compensation for the officers of the Company is presented below. There are
no other benefits or compensation provided.
Larry Todt, President and James Walters, Vice President each receive a salary of
$5,000 per month for an annual salary of $60,000, payment of which has been
deferred until proceeds are available for payment. In addition, each of them has
an option to purchase 100,000 shares of the Company's common stock, par value
$.01 at an option exercise price of $1.00 per share, exercisable commencing July
1, 1999, and terminating June 30, 2001.
Aggregated Option Exercises In Last Fiscal Year and Fiscal
Year-End Option Value
The Company does not have any officer or director stock option plan. The
Company intends to incorporate one after a public offering. The Company does not
have an employee stock option plan (ESOP). The Company intends to incorporate
one after a public offering.
The following table shows all the cash compensation paid by the Company as
well as certain other compensation paid during the fiscal years indicated. No
Executive Officer received total annual salary and bonus in excess of $100,000.
<TABLE>
<CAPTION>
Long Term Compensation
Annual Compensation Awards Payouts
- ------------------------------------------------------------------- ------------------------- -----------------------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Other
Name and Annual Restricted All Other
Principal Compen- Stock Options LTIP Compen-
Position Year Salary($) Bonus($) sation($) Awards($) SARs Payouts($) sation($)
- ------------------------------------------------------------------- ------------------------- -----------------------
<S> <C>
None.
</TABLE>
Option/SAR Grants in Last Fiscal Year. There were no option/SAR
Grants in the last fiscal year.
Compensation of Directors
The Company's directors serve without compensation.
5
<PAGE>
Item 7. Certain Relationships and Related Transactions.
The Company has engaged in no "Related Transactions" within the meaning of
Item 404 of Regulation S-B during the last two years.
Item 8. Description of Securities.
Common Stock
The Company has authorized 10,000,000 shares of Common Stock par value
$.01. Each outstanding Share of Common Stock is entitled to one vote, either in
person or by proxy, on all matters that may be voted upon by the owners thereof
at meetings of the stockholders.
The holders of Common Stock (i) have equal ratable rights to dividends from
funds legally available therefor, when, and if declared by the Board of
Directors of the Company; (ii) are entitled to Share ratably in all of the
assets of the Company available for distribution to holders of Common Stock upon
liquidation, dissolution or winding up of the affairs of the Company; (iii) do
not have preemptive, subscription or conversion rights, or redemption or sinking
fund provisions applicable thereto; and (iv) are entitled to one non-cumulative
vote per Share on all matters on which stockholders may vote at all meetings of
stockholders.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Other Shareholder Matters
(a) Market Information
The Company's Common Stock ($.01 par value), all of which are one class, is
not publicly traded.
(b) Holders
The approximate number of record holders of the Company's Common Stock as
of April 30, 1999 was 311, inclusive of those brokerage firms and/or clearing
houses holding the Company's common shares for their clientele (with each such
brokerage house and/or clearing house being considered as one holder). The
aggregate number of shares of Common Stock outstanding as of April 30, 1999 was
718,400 shares.
(c) Dividends
The Company has not paid or declared any dividends upon its Common Stock
since its inception and, by reason of its present financial status and its
contemplated financial requirements, does not contemplate or anticipate paying
any dividends upon its Common Stock in the foreseeable future.
6
<PAGE>
Item 2. Legal Proceedings
The Company is not presently a party to any material litigation in the
regular course of its business, nor to the Company's knowledge is such
litigation threatened.
Item 3. Changes in and Disagreements with Accountants
The Company has had no changes in or disagreements with accountants on
accounting or financial disclosure.
Item 4. Recent Sales of Unregistered Securities.
The following unregistered securities of the Company have been issued in
the past three years:
1. On June 24, 1998, the Company issued 18,400 restricted shares to two
affiliates. The shares were exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended (the "Act").
2. On July 17, 1998, the Company issued 75,000 restricted shares to an
affiliate. The shares were exempt from registration pursuant to Section
4(2) of the Act.
3. On July 18, 1998, the Company issued 425,000 restricted shares to an
affiliate. The shares were exempt from registration pursuant to Section
4(2) of the Act.
4. On July 19, 1998, the Company issued 75,000 restricted shares to an
affiliate. The shares were exempt from registration pursuant to Section
4(2) of the Act.
5. On August 5, 1998, the Company issued 50,000 free-trading shares to
each of two non-affiliates pursuant to an exemption from registration
under Regulation D, Rule 504 of the Act.
6. On August 5, 1999, the Company issued 50,000 restricted shares to an
affiliate. The shares were exempt from registration pursuant to Section
4(2) of the Act.
Item 5. Indemnification of Directors and Officers
The Certificate of Incorporation and Bylaws of the Company contain
provisions limiting or eliminating the liability of directors of the Company to
the Company or its stockholders to the fullest extent permitted by the General
Corporation law of Delaware and indemnifying officers and directors of the
Company to the fullest extent permitted by the General Corporation Law of
Delaware. Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act, and will
be governed by the final adjudication of such issue.
7
<PAGE>
PART F/S
The Financial Statements of United Raceways, Inc. required by
Regulation S-X commence on page F-1 hereof in response to Part F/S of the
Registration Statement on Form 10-SB, and are incorporated herein by reference.
PART III
Items 1 & 2. Index to Exhibits and Description of Exhibits
2.a Articles of Incorporation with Amendments
2.b By-Laws
8
<PAGE>
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.
UNITED RACEWAYS, INC.
Date: August 25, 1999 By: /s/ Larry Todt
---------------- ---------------------
Larry Todt, President
9
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENT
AS OF DECEMBER 31, 1998
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
-----------------------------------------------
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF DECEMBER 31, 1998
PAGE 3 - STATEMENT OF OPERATIONS FOR THE
PERIOD FROM MAY 29, 1998
(INCEPTION) TO DECEMBER 31, 1998
PAGE 4 - STATEMENT OF CHANGES IN STOCKHOLDERS'
DEFICIENCY FOR THE PERIOD FROM MAY 29,1998
(INCEPTION) TO DECEMBER 31, 1998
PAGE 5 - STATEMENT OF CASH FLOWS FOR THE PERIOD
FROM MAY 29, 1998 (INCEPTION) TO
DECEMBER 31, 1998
PAGES 6 - 7 - NOTES TO FINANCIAL STATEMENTS AS OF
DECEMBER 31, 1998
<PAGE>
[Logo] Weinberg & Company, P.A.
Certified Public Accountants
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
United Raceways, Inc.
(A Development Stage Company)
We have audited the accompanying balance sheet of United Raceways, Inc. (a
development stage company) as of December 31, 1998 and the related statements of
operations, changes in stockholders' deficiency and cash flows for the period
from May 29, 1998 (inception) to December 31, 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 balance sheet is free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We believe that our
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 United Raceways, Inc. (a
development stage company) as of December 31, 1998 and the results of its
operations and its cash flows for the period from May 29, 1998 (inception) to
December 31, 1998, in conformity with generally accepted accounting principles.
/s/ Weinberg & Company, P.A.
----------------------------
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
July 19, 1999
Town Executive Center - 6100 Glades Road - Suite 314 - Boca Raton, Florida 33434
Telephone (561) 487-5765 - Telefax (561) 487-5766
Email: [email protected] - Website: www.cpaweinberg.com
Members: American Institute of CPA's/
Division of Firms Florida Institute of CPA's
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF DECEMBER 31, 1998
ASSETS
Cash $ 242
----------
TOTAL ASSETS $ 242
==========
LIABILITIES AND STOCKHOLDERS' DEFICIENCY
LIABILITIES
Accounts payable and accrued expenses $ 941
----------
Total liabilities 941
----------
STOCKHOLDERS' DEFICIENCY
Common Stock, $.01 par value, 10 million
shares authorized 718,400 issued and
outstanding 7,184
Accumulated deficit during development stage (7,883)
----------
Total Stockholders' Deficiency (699)
----------
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIENCY $ 242
==========
See accompanying notes to financial statements.
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIOD FROM MAY 29, 1998
(INCEPTION) TO DECEMBER 31, 1998
Income $ -
Expenses
Consulting fees 2,500
Organization expense 184
Professional fees 4,129
Transfer agent fees 876
Corporate filing fees 124
Bank service fees 70
--------------
Total expenses 7,883
--------------
NET LOSS $ (7,883)
==============
See accompanying notes to financial statements.
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDERS' DEFICIENCY
FOR THE PERIOD FROM MAY 29, 1998
(INCEPTION) TO DECEMBER 31, 1998
Deficit
Additional Accumulated
Common Paid-In During Devel-
Stock Capital opment Stage Total
------- ---------- ------------- -------
Common stock issuance $ 7,184 $ - $ - $ 7,184
Net loss for the
period ended
December 31, 1998 - - (7,883) (7,883)
------- --------- ----------- -------
BALANCE AT
DECEMBER 31, 1998 $ 7,184 $ - $ (7,883) $ (699)
======= ========= =========== =======
See accompanying notes to financial statements.
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM MAY 29, 1998
(INCEPTION) TO DECEMBER 31,1998
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ (7,883)
----------
Adjustments to
reconcile net loss
to net cash used
by operating activities:
Increase in accounts payable/
accrued expenses 941
----------
Net cash used in
operating activities (6,942)
----------
CASH FLOWS FROM INVESTING
ACTIVITIES -
----------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from issuance
of common stock 7,184
----------
Net cash provided by
financing activities 7,184
----------
INCREASE IN CASH AND
CASH EQUIVALENTS 242
CASH AND CASH EQUIVALENTS -
BEGINNING OF PERIOD -
----------
CASH AND CASH EQUIVALENT -
END OF PERIOD $ 242
------------- ==========
See accompanying notes to financial statements.
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
United Raceways, Inc. (a development stage company) ("the Company")
was incorporated in Delaware on May 29, 1998 to engage in, conduct or
promote any lawful business activity for which corporations may be
organized under Delaware Law. At December 31, 1998, the Company had
not yet commenced any formal business operations, and all activity to
date relates to the Company's formation and proposed fund raising. The
Company's fiscal year end is December 31.
The Company's ability to commence operations is contingent upon its
ability to achieve its business plan and raise the capital it will
require through the issuance of equity securities, debt securities,
bank borrowings or a combination thereof.
B. Use of Estimates
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
C. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers all
highly liquid investments purchased with an original maturity of three
months or less to be cash equivalents.
D. Income Taxes
The Company accounts for income taxes under the Financial Accounting
Standards Board of Financial Accounting Standards No. 109, AAccounting
for Income Taxes@ (AStatement 109"). Under Statement 109, deferred tax
assets and liabilities are recognized for the future tax
<PAGE>
UNITED RACEWAYS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - (CONT'D)
- --------------------------------------------------------------
D. Income Taxes - (CONT'D)
consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and
their respective tax basis. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable income
in the years in which those temporary differences are expected to be
recovered or settled. Under Statement 109, the effect on deferred tax
assets and liabilities of a change in tax rates is recognized in
income in the period that includes the enactment date. There were no
current or deferred income tax expense or benefits due to the Company
not having any material operations for the period ending December 31,
1998.
NOTE 2 - STOCKHOLDERS' DEFICIENCY
The Company is authorized to issue 10,000,000 shares of common stock
at $.01 par value. The Company issued 700,000 shares for cash and
18,400 shares for organizational expenses.
On July 14, 1998, the Company's Board of Directors authorized the
Company to issue and sell up to 1,000,000 shares of common stock
pursuant to Rule 504 of Regulation D under the Securities Act of 1933.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 06/01/1998
981210960 - 2903239
State of Delaware
Certificate of Incorporation
United Raceways, Inc.
FIRST: The name of this Delaware corporation is:
United Raceways, Inc.
SECOND: The name and address of the Corporation's Registered Agent is:
Corporate Creations Enterprises Inc.
686 North Dupont Boulevard #302
Milford, DE 19963
Kent County
THIRD: The purpose of the Corporation is to conduct or promote any lawful
business or purposes.
FOURTH: The Corporation shall have the authority to issue 2,000 shares of
common stock, par value $.01 per share.
FIFTH: The directors shall be protected from personal liability to the fullest
extent permitted by law.
SIXTH: The name and address of the incorporator is:
Corporate Creations International Inc.
941 Fourth Street #200
Miami Beach, FL 33139
SEVENTH: This Certificate of Incorporation shall become effective on the date
shown below.
/s/ Greg K. Kuroda
- ---------------------------
Greg K. Kuroda Vice President
Date: May 29, 1998
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNITED RACEWAYS, INC.
UNITED RACEWAYS, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify that:
FIRST: That resolutions setting forth an amendment of the Certificate of
Incorporation of said Corporation declaring said amendment to be advisable and
in the best interests of the Corporation and its stockholders were adopted by
joint writing consent of the majority of the shares entitled to vote and the
entire board of directors of United Raceways, Inc. on June 24, 1998. The
resolution setting forth the amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be
amended by changing Article Fourth thereof so that, as amended said
Article shall be and read as follows:
FOURTH: the aggregate number of shares of capital stock which the
Corporation shall have authority to issue is Ten Million (10,000,000).
$0.01 par value. All of such authorized shares are hereby classified
and designated as common stock.
SECOND: That said amendment was duly adopted in accordance with Section 228
of the General Corporation Law of the State of Delaware by written consent of
the stockholders in lieu of a meeting where the necessary number of shares as
required by statute, the certificate of incorporation and by-laws of the
Corporation were voted in favor of the amendment.
THIRD: That the said amendment was duly adopted in accordance with the
provisions of Section 242 of The General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said UNITED RACEWAYS, INC. has caused this certificate
to be signed by its President, this 24th day of June, 1999.
UNITED RACEWAYS, INC.
By: /s/ George Todt
-----------------------
George Todt, President
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 06/25/1998
981248993 - 2903239
BYLAWS OF UNITED RACEWAYS, inc.
ARTICLE I
OFFICES
Section 1. The registered office of the corporation shall be in the
City of Milford, County of Kent, State of Delaware.
Section 2. The corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, shall be held on the second
Tuesday of May if not a legal holiday, and if a legal holiday, then on the next
business day following, at 10:00 a.m., or at such other date and time as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which the stockholders shall elect one or more
directors and transact such other business as may properly be brought before the
meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise brought before the meeting by or at the direction of
the Board of Directors, or (c) otherwise properly brought before the meeting by
a stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the secretary of the corporation. To be timely, a stockholder's notice must be
received at the principal executive offices of the corporation not less than 120
days nor more than 150 days prior to the date of the notice to stockholders of
the previous year's annual meeting. A stockholder's notice to the secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting: (a) a brief description of the proposal or business desired to
be brought before the annual meeting and the reasons for presenting the proposal
or conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation which are
beneficially owned b~ the stockholder, and (d) any material interest of the
stockholder in such proposal or business. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at any annual meeting
except in accordance with the procedures set forth in this Section 2. The
chairman of the annual meeting shall, if the facts warrant, determine and
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declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 2, and if he should so
determine and declare to the meeting, any such business not properly brought
before the meeting shall not be transacted.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders entitled to vote, for
any purpose or purposes, may be called only by the president or the Board of
Directors.
Section 6. Written notice of a special meeting of the stockholders
entitled to vote, stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at the meeting.
Section 7. Business transacted at a special meeting of the stockholders
entitled to vote shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the issued and outstanding
stock which is entitled to vote, whether present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such a quorum shall not be present or
represented at a meeting, except as otherwise provided in Article VI, Section 5,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting in accordance with the original notice thereof. If the adjournment
is for more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting in
accordance with Section 3 and/or Section 6 of this Article II.
Section 9. When a quorum is present at any meeting, the affirmative
vote of a majority of the votes cast shall decide any question brought before
the meeting, unless the question is one upon which, by the express provision of
statute, the Certificate of Incorporation of the corporation or these Bylaws, a
different vote is required in which case such express provision shall govern and
control the decision of such question.
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Section 10. When determining the presence of a quorum at any meeting,
all shares held by (a) any stockholder, or represented by a holder of a proxy
therefor, who is present but voluntarily decides not to vote, or (b) a broker or
nominee who lacks authority to vote such shares, shall be deemed present.
However, such shares shall not be deemed cast on any matter unless properly
voted and, therefore, shall have no effect on the outcome of the matter in
question.
Section 11. Unless otherwise provided in the Certificate of
incorporation of the corporation, each stockholder shall at every meeting of the
stockholders be entitled to cast one vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after eleven (11) months from its date, unless the proxy
provides for a longer period.
Section 12. Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is 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 be
voted were present and voted, and is delivered to the corporation to its
registered office in this State, its principal place of business, or to an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
ARTICLE III
DIRECTORS
Section 1. (a) The number of directors constituting the entire Board
shall be not less than three (3) nor more than nine (9) as fixed from time to
time by vote of a majority of the entire Board, provided, however, that the
number of directors shall not be reduced so as to shorten the term of any
director then in office, and provided further, that the number of directors
constituting the entire Board shall be three (3) until otherwise fixed by a
majority of the entire Board.
(b) The Board of Directors shall be divided into three
classes. Directors shall be elected and/or appointed to one of the following
classes:
CLASS EXPIRATION OF TERM
----- -------------------
I Annual meeting date of the stockholders in 1997 and
every 3 years thereafter
II Annual meeting date of the stockholders in 1998 and
every 3 years thereafter
III Annual meeting date of the stockholders in 1999 and
every 3 years thereafter
Directors shall be elected and/or appointed to classes so that the total number
of directors shall be divided as equally as possible between the three classes
of directors. Any vacancies in the Board of Directors for any reason, and any
created directorships resulting from any- increase in the directors, may be
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filed by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successors shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director. Notwithstanding the foregoing, and except as otherwise required by
law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors of
the Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of stockholders. Subject to
the foregoing, at each annual meeting of stockholders the successors to the
class of directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting.
(c) Notwithstanding any other provisions of the Certificate of
Incorporation of the Corporation or these Bylaws (and notwithstanding the fact
that some lesser percentage may be specified or permitted by law, the
Certificate of Incorporation or the Bylaws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time, but
only for cause and only by the affirmative vote of the holders of eighty percent
(80%) or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors cast at a meeting of the
stockholders called for that purpose. Notwithstanding the foregoing, and except
as otherwise required by law, whenever the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the provisions of this subsection (c)
shall not apply with respect to the director or directors elected by such
holders of Preferred Stock.
Section 2. The business of the corporation shall be managed by or under
the direction of its Board of Directors, which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation of the Corporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The annual meeting of the Board of Directors shall be held
immediately following the annual meeting of stockholders at the place at which
the meeting of the stockholders is held, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum of the Board of Directors is present.
Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
Section 7. Special meetings of the Board of Directors may be called by
the president on three (3) days' notice to each director, either personally or
by mail or by facsimile; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two or
more directors unless the Board of Directors consists of only one director.
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Section 8. At all meetings of the Board of Directors, a majority of
directors shall constitute a quorum for the transaction of business and the vote
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
Section 9. Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a
meeting, without prior notice and without a meeting, if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or committee.
Section 10. Members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting of the Board
of Directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
Any such committee, to the extent provided in resolutions of the Board
of Directors, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority to amend the Certificate of Incorporation of the Corporation (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors,
as provided in Section 151(a) of the General Corporation Law of Delaware, fix
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation, or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the corporation), to adopt an agreement of merger or consolidation, to
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or to amend the Bylaws of the corporation; and, unless the resolution of the
Board of Directors or the Certificate of Incorporation of the Corporation
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock or to adopt a
certificate of ownership and merger.
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Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. The Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors or committee thereof and
may be paid, either in cash or in securities of the corporation, a fixed sum for
attendance at each meeting of the Board of Directors or committee thereof or a
stated salary as director or committee member. No such payment shall preclude
any director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
NOTICES
Section 1. Whenever notice is required or permitted to be given to any
director or stockholder, it shall not be construed to require personal notice,
but such notice may be given in writing, by mail, addressed to such director or
stockholder, at his or her address as it appears on the records of the
corporation, with first class postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given personally, by facsimile or
by next business day courier delivery and shall be deemed to be given when
personally given or so sent.
Section 2. Whenever any notice is required to be given, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the Board
of Directors at its first meeting after each annual meeting of stockholders and
shall be a chairman of the Board of Directors, president, one or more
vice-presidents (who may have further descriptive designations thereof, such as
executive vice-president, senior vice-president, vice-president, finance, etc.),
a secretary and a treasurer. The Board of Directors may also choose additional
vice-presidents, and one or more assistant secretaries and assistant treasurers.
Any number of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.
Section 2. The Board of Directors may appoint such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
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Section 3. The salaries of all executive officers of the corporation
shall be fixed by the Board of Directors.
Section 4. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of 2the
corp6ra49nmay be filled by the Board of Directors.
THE CHAIRMAN OF THE BOARD OF DIRECTORS
Section 5. The chairman of the Board of Directors shall have general
supervision over the policies, affairs and finances of the corporation. He shall
keep the Board of Directors fully informed and shall freely consult with the
Board of Directors concerning the business of the corporation and shall perform
such other duties as are incident to his office and are properly required of him
by the Board of Directors. The chairman of the Board of Directors shall preside
at all meetings of the stockholders and the Board of Directors. Except where by
law the signature of the president is required and except as otherwise provided
by the Board of Directors, the chairman may sign all certificates, contracts,
documents and other instruments on behalf of the corporation. Unless otherwise
provided by resolution of the Board of Directors, the chairman of the Board of
Directors also shall be entitled to vote all stock and other interests having
voting rights which are owned by the corporation; in the absence of a contrary
resolution adopted by the Board of Directors, the chairman of the Board of
Directors shall vote such stock and other interests in a manner which he deems
appropriate.
THE VICE CHAIRMAN OF THE BOARD OF DIRECTORS
Section 6. The vice chairman of the Board of Directors shall be the
chief executive officer of the corporation and shall have general supervision
over the policies, affairs and finances of the corporation. Except where by law
the signature of the president is required and except as otherwise provided by
the Board of Directors, the vice chairman may sign all certificates, contracts,
documents and other instruments on behalf of the corporation.
THE PRESIDENT
Section 7. The president shall have general supervision over the
day-to-day operating affairs of the corporation. The president shall keep the
Board of Directors fully informed, shall freely consult with the Board of
Directors concerning the business of the corporation and shall perform such
other duties and have such other powers as the Board of Directors may from time
to time prescribe. In the absence of the chairman of the Board of Directors or
in the event of the chairman's inability or refusal to act, the president shall
perform all the duties of the chairman of the Board of Directors, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the chairman. The president may sign all certificates, deeds, mortgages, bonds,
contracts, documents and other instruments on behalf of the corporation, except
where by law the signature of another officer or agent of the corporation is
required, and except as otherwise provided by the Board of Directors.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of the
president's inability or refusal to act, the vice-president (or in the event
there is more than one vice-president, the vice-presidents in the order
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designated by the directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. The vice-presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
such meetings in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. The secretary shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or chairman of the Board of Directors.
The secretary shall have custody of the corporate seal of the corporation and
shall have authority to affix the same to any instrument requiring it and, when
so affixed, it may be attested by the secretary's signature. The Board of
Directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by the secretary's signature.
Section 10. The assistant secretary, if any, or if there be more than
one, the assistant secretaries in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall be the chief financial officer of the
corporation and shall have the custody of the corporate funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and upon request shall render to the chairman of the Board of
Directors and the Board of Directors, an account of all transactions as
treasurer and of the financial condition of the corporation.
Section 13. If required by the Board of Directors, the treasurer shall
give the corporation and maintain in effect a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of the office of treasurer and for the
restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the possession or under the control of the treasurer belonging
to the corporation.
Section 14. The assistant treasurer, if any, or if there shall be more
than one, the assistant treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the treasurer or in the event of the
inability or refusal to act of the treasurer, perform the duties and exercise
the powers of the treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
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ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by one or
more certificates. Certificates shall be signed, in the name of the corporation,
by the chairman of the Board of Directors, the president or a vice-president and
the treasurer or an assistant treasurer or the secretary or an assistant
secretary of the corporation.
Upon the face or back of each stock certificate issued to represent any
partly paid shares shall be set forth the total amount of the consideration to
be paid therefor and the amount paid thereon.
If the corporation is authorized to issue more than one class of stock
or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized or referenced
on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, provided that, if summarized or
referenced, there shall also be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
thereof who so requests a copy of the powers, designations, preferences and
relative, participating, optional or other special rights of the class of stock
or series and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. If any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his or
her legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
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the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
subject, however to restrictions imposed either by applicable federal or state
securities laws or by agreements by or among the stockholders.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to vote as such owner, and to hold liable for calls and assessments,
and shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not the corporation
shall have express or other notice thereof.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock of the corporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
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FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation and the words "Corporate Seal, Delaware". The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
Section 1. (a) 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, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust,
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement, actually and reasonably incurred by such
person in connection with such action, suit, or proceeding if such person acted
in good faith and in a manner such person 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 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 such person 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 reasonable cause to believe that such
conduct was unlawful.
(b) 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 or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation, as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation and 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 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.
(c) To the extent that a director or officer of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subparagraphs (a) and (b), or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith.
Page 11
<PAGE>
(d) Any indemnification under subparagraphs (a) and (b)
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because such person has met the
applicable standard of conduct set forth in subparagraphs (a) and (b). Such
determination shall be made (i) 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 (ii) 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 (iii) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending a civil, criminal, administrative or
investigative action, suit, or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit, or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized herein.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, other subsections of this section shall not be
deemed exclusive of any other rights to which officers or directors seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office.
(g) The corporation also shall have the authority to indemnify
employees and agents of the corporation, but only to the extent provided by a
majority vote of disinterested directors on a case-by-case basis, after full
disclosure to the directors of all relevant facts and circumstances.
(h) The corporation shall have the power to purchase and
maintain insurance on behalf of any person who 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 any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of his or her status as such, whether or not the corporation
would have the power to indemnify such person against such liability under the
provisions of this section.
(i) For the purposes of this section, references to "the
corporation" include all constituent corporations (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers, employees or agents, as well as the resulting or surviving
corporation, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this section with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
(j) For purposes of this section, references to "other
enterprises" 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"
Page 12
<PAGE>
shall include any service as a director or officer of the corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner such person 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 section.
(k) The indemnification and advancement of 'expenses provided
by, or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent, including, but not limited to, a person who ceases
to be a director, officer, employee or agent due to the resignation of such
person prior to the initiation of any action, suit or proceeding referred to in
subparagraphs (a) and (b), and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 2. The corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented from time to time, indemnify all officers and
directors whom it shall have the power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section, or any successor section thereto.
ARTICLE IX
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors (when
such power is conferred upon the Board of Directors by the Certificate of
Incorporation), at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
Bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the
Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal Bylaws.
Page 13
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