<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-SB
Registration Statement on 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
AMALGAMATED ENTERTAINMENT, INC.
------------------------
(Name of Small Business Issuer as specified in its charter)
DELAWARE 87-0633630
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5525 South 900 East, Suite 110
Salt Lake City, Utah 84117
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(Address of Principal Executive Office) (Zip Code)
Issuer's Telephone Number, including Area Code: (801) 262-8844
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered each class is to registered
NONE NONE
Securities registered pursuant to Section 12(g) of the Act:
$0.01 Par Value Common Voting Stock
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Title of Class
DOCUMENTS INCORPORATED BY REFERENCE: See the Exhibit Index herein.
PART I
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Item 1. Description of Business.
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Business Development.
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Organization and Charter Amendments
-----------------------------------
Amalgamated Entertainment, Inc. (the "Company") was organized under the
laws of the State of Utah on March 26, 1985 under the name Ace Investments
("ACE")., to create a small, publicly-held corporation to seek out and acquire
suitable acquisitions and mergers. ACE's initial securities offering was deemed
to be a "blind-pool" or "blank check" offering.
The Company's initial authorized capital was $50,000 consisting of
50,000,000 shares of One Mill ($0.001) par value common voting stock. A copy of
the Company's initial Articles of Incorporation is attached hereto and is
incorporated herein by reference. See Item 15.
On August 28, 1986, the Articles of Incorporation were amended to reflect a
name change from "ACE Investments" to "Matlock Communications, Inc." and to
change the authorized capital to 100,000,000 shares of $.001 par value common
stock. A copy of the Articles of Amendment to the Articles of Incorporation is
attached hereto and is incorporated herein by reference. See Item 15.
On May 16, 1989, the Articles of Incorporation were amended to reflect a
name change from "Matlock Communications, Inc." to "Persimmon Corporation" and
to change the authorized capital to 110,000,000 shares of stock comprised of;
10,000,000 shares of $.001 par value preferred stock and 100,000,000 shares of
$.015 par value common stock. The Company also reverse split its issued and
outstanding common stock on a basis of one for fifteen. A copy of the Articles
of Amendment to the Articles of Incorporation is attached hereto and is
incorporated herein by reference. See Item 15.
On December 20, 1991, Amalgamated Entertainment, Inc. was incorporated in
the State of Delaware for the sole purpose of changing the Company's domicile to
the State of Delaware. A copy of the Articles of Incorporation is attached
hereto and is incorporated herein by reference. See Item 15.
On January 28, 1992, Persimmon Corporation merged into Amalgamated
Entertainment, Inc., with Amalgamated Entertainment the surviving corporation. A
copy of the Certificate of Ownership and Merger is attached hereto and is
incorporated herein by reference. See Part III, Item 15. Unless otherwise
indicated, all future references to "the Company" shall refer to Amalgamated
Entertainment, a Delaware corporation.
On April 6, 1999, the Company effected a thirty to one reverse split of its
outstanding common stock. A copy of the Articles of Amendment to the Articles of
Incorporation is attached hereto and is incorporated herein by reference. See
Item 15.
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Material Changes of Control Since Inception and Related Business History
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In 1985, acting pursuant to Rule 504 of Regulation D of the Securities and
Exchange Commission, the Company commenced the offer and sale to the public of
7,500,000 shares of its common voting stock at a price of $0.01 per share, or
the total sum of $75,000.
In 1986, the Company changed its name to "Matlock Communications Companies,
Inc.", in connection with the acquisition of Boise Publishing. In connection
with the acquisition, the Company issued a total of 46,915,000 shares to acquire
Boise Publishing. These operations proved unsuccessful and Boise Publishing was
sold for the assumption of its liabilities. Of the shares issued in the
Company's acquisition of Boise Publishing, 44,434,500 were canceled.
From May 1989 to January of 1992, the Company was inactive except for the
continued search for potential acquisition and merger opportunities.
In January of 1992, the Company changed its name to "Amalgamated
Entertainment, Inc.", in connection with a transaction whreby the Company issued
a total of 2,541,492 shares of its common stock, calculated after a 1 for 2
reverse stock split to acquire all of the issued and outstanding shares of
Amalgamated Communications, Inc.,a Delaware Corporation ("Amalgamated
Communications"). The transaction was structured as a tax-free, stock-for-stock
exchange, which caused Amalgamated Communications, Inc., to become a
wholly-owned subsidiary of the Company.
The Company was unsuccessful and ceased all operations in 1993 and was
inactive until April 1999.
On April 6, 1999, pursuant to Rule 504 of Regulation D of the Securities
and Exchange Commission, the Company commenced the offer and sale to the public
of 800,000 shares of its common voting stock at a price of $0.03 per share, or
the total sum of $24,000. The offering was closed on April 6, 1999, following
the sale of all 800,000 shares.
The Company currently has two beneficial holders; Messrs. Duane S. Jenson,
Jeffrey D. Jenson, who collectively own a majority of the Company's outstanding
common stock . See the caption "Security Ownership of Certain Beneficial Owners
and Management," Item 4, and the Risk Factor "Voting Control Held by Two
People".
On April 20, 1998, Allan Bailey, the Company's President and a director who
owned a majority of the outstanding voting securities of the Company, designated
James Doolin as President and director; Steve Brand as Vice President and
director; and Travis Jenson as Secretary and director. These persons will serve
in these capacities until the next annual meeting of the stockholders of the
Company and until their successors are elected and qualified or until their
prior resignations or terminations. Information regarding these person
<PAGE>
is contained in Item 5.
Sales of "Unregistered" and "Restricted" Securities Over the Past Three
Years
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On January 9, 1999, the Company issued 3,000,000 shares to Jenson Services
in consideration of the payment of $3,000 of expenses incurred on behalf of the
Company.
On April 6, 1999, pursuant to rule 504 of Regulation D of the Securities
and Exchange Commission, the Company commenced the offer and sale to the public
of 800,000 shares of its common voting stock at a price of $0.03 per share, or
the total sum of $24,000. All 800,000 shares were sold and the offering closed
on April 6, 1999.
Business.
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The Company was originally formed in March of 1985 and after a number of
failed endeavors has only recently begun its new operations of seeking
Thoroughbred horses.
The purposes of the Company are to purchase Thoroughbred horses as
yearlings and train such horses for a period of approximately six months
followed by the reselling of such horses for purposes of racing or further
training. This type of business is commonly referred to as "Pin- Hooking"; a
term used to describe the practice of buying yearling horses at auction,
overseeing their breaking and training, and eventually bringing them back to the
auction ring to sell again as race-ready two-year-olds in training. The Company
intends to become active in national and local horse-racing associations to
develop networking contacts to market its horses.
The Company has not yet purchased any Thoroughbred's as of the date hereof.
See "Description of Business"; "Related Party Transaction"; and "Management's
Discussion and Analysis or Plan of Operation."
The auditor's discussion on the Company's liquidity, as contained in Note 2
of the audited financial statements herein, is as follows: "The Company has
accumulated losses through December 31, 1998 amounting to $1,265,779, and does
not anticipate generating sufficient cash flows from operations to meet the
Company's cash requirements. These factors raise substantial doubt about the
Company's ability to continue as a going concern."
Management has determined to file this Registration Statement on a
voluntary basis. In order to have stock quotations for its common stock on the
National Association of Securities Dealers' Automated Quotation System
("NASDAQ"), an issuer must have such securities registered under the Securities
and Exchange Act of 1934, as amended (the "1934 Act"). Upon the effective date
of this Registration Statement, the Company's common stock will become
registered for purposes of the 1934 Act. Management believes that this will make
the Company more desirable for raising capital. To the extent that management
deems it
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advisable or necessary to maintain a quotation of its common stock on any
securities market, the Company will voluntarily file periodic reports in the
event its obligation to file such reports is terminated under the 1934 Act.
Further, in January 1999, the Securities and Exchange Commission began requiring
that all companies for which stock quotations are maintained on the OTC Bulletin
Board of the National Association of Securities Dealers, Inc. ("NASD"), must be
subject to and in compliance the reporting requirements of the 1934 Act. See the
Risk Factors, "No Market for Common Stock, No Market for Shares."
In the event that the Company engages in any transaction resulting in a
change of control of the Company and/or the acquisition of a business, the
Company will be required to file with the Commission a Current Report on Form
8-K within 15 days of such transaction. A filing on Form 8-K also requires the
filing of audited financial statements of the business acquired, as well as pro
forma financial information consisting of a pro forma condensed balance sheet,
pro forma statements of income and accompanying explanatory notes.
Risk Factors.
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Early Stage of Development
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In any business venture, there are substantial risks specific to the
particular enterprise which cannot be ascertained until operations have
commenced; however, at a minimum, the Company's present and proposed business of
purchasing, training and reselling Thoroughbred horses will be highly
speculative and be subject to the same types of risks inherent in any new or
unproven venture, and will include those types of risk factors outlined below.
These risks include: the need for substantial capital to support its development
efforts;
the need to attract and retain qualified personnel and experienced
management;
animal health;
volatile supply and training costs;
losses associated with start-up;
competition;
dilution;
government regulation; and
the other risks described in this Registration Statement.
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Horse Health
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The health of the Company's horses, to be acquired in the future, will have
a great impact on its profits. If its horses contract a disease causing them to
become ill, or which kills one or more of its horses, the Company's business
operations will be damaged. In addition, many horses may be raised together,
which will make them more vulnerable to contagious disease. Horses are prone to
colic, strangles, and respiratory problems. The Company can not guarantee that
it will be able to avoid horse health problems. See "Description of Business."
Volatile Training Costs
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The Company's profitability is extremely sensitive to changes in the cost
of training because the cost of feed, lodging and veterinary and other supply
associated with training are a large part of the of the cost of raising horses.
Increased expense or a large decline in the availability of these resources
could have a negative effect on the Company. See "Description of Business."
Losses Associated with Start-Up
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The Company has recently begun these operations and has no successful
operating history. The purchase of one or more Thoroughbred horses requires "up
front" expenditures and working capital during the initial start-up period. The
Company can not guarantee that it will become profitable after it completes its
initial purchases. Nor can the Company guarantee that it will become profitable
after it completes its initial sales. See "Management's Discussion and Analysis
or Plan of Operation."
Competition
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There are literally dozens of current and potential competitors who have
much more financial, technical and personnel resources than the Company. The
company can not guarantee that its competitors will not be more successful in
selecting and training Thoroughbreds and consistently receive a higher profit
than the Company's Thoroughbreds. Also, as additional competitors begin
operations, the supply of horses may saturate the market and result in lower
prices for Thoroughbreds. The Company's competitive position in the pin-hooking
industry is extremely small.
Government Regulation
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The Company is subject to federal, state, provincial and local government
regulations, including those restricting certain types of investor-owned
livestock operations and those
<PAGE>
concerning occupational safety and health, and zoning. The Company will attempt
to comply with all applicable regulations. However, it can not guarantee that it
will satisfy all regulations or obtain all required approvals. Failure to comply
with applicable regulations can, among other things, result in fines,
suspensions of regulatory approvals, operating restrictions, and criminal
prosecution. Changes in or additions to applicable regulations could also have a
negative effect on the Company and its business. See "Description of Business."
Auditor's Going Concern Opinion
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The auditors discussion on the Company's liquidity, as contained in Note 2
of the audited financial statements herein, is as follows: "The Company has
accumulated losses through December 31, 1998 amounting to $1,265,779, and does
not anticipate generating sufficient cash flows from operations to meet the
Company's cash requirements. These factors raise substantial doubt about the
Company's ability to continue as a going concern."
Potential Dilution
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The Company is authorized to issued 25,000,000 shares of common stock. As
of May 25, 1999, only 1,015,153 shares were issued and outstanding. The issuance
of additional shares in connection with any acquisition, merger, reorganization
transaction or the raising of capital may result in substantial dilution of the
holdings of current stockholders. See the heading "Plan of Operation" Part I,
Item 2.
Limited Funds Available for Operating Expenses
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The Company currently has 23,268.30 in cash and no other assets. Management
anticipates that each horse will cost approximately $50,000 to purchase train
and subsequently sale. As a result, some funding necessary to meet the Company's
operating expenses in the next 12 months will likely be advanced by management
or principal stockholders as loans to the Company or the Company will have to
complete additional offerings. The Company will have to seek strategic alliances
with experience pin-hookers if operations are to commence in the near future.
See the heading "Plan of Operation" of the caption "Management's Discussion and
Analysis or Plan of Operation," Part I, Item 2.
Voting Control Held by Two People
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Due to Duane Jenson's and Jeffrey D. Jenson's ownership of a majority of
the shares of the Company's outstanding common stock (approximately 78% of the
outstanding voting securities of the Company are owned by the Jenson's. Jenson
and Jenson), these stockholders have the ability to elect all of the Company's
directors, who in turn elect all executive officers,
<PAGE>
without regard to the votes of other stockholders. See the caption "Security
Ownership of Certain Beneficial Owners and Management," Part I, Item 4.
No Market for Common Stock; No Market for Shares.
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Although the Company intends to submit for listing of its common stock on
the OTC Bulletin Board of the National Association of Securities Dealers, Inc.
(the "NASD"), there is currently no market for such shares; and there can be no
assurance that any such market will ever develop or be maintained. Any market
price for shares of common stock of the Company is likely to be very volatile,
and numerous factors beyond the control of the Company may have a significant
effect. In addition, the stock markets generally have experienced, and continue
to experience, extreme price and volume fluctuations which have affected the
market price of many small capital companies and which have often been unrelated
to the operating performance of these companies. These broad market
fluctuations, as well as general economic and political conditions, may
adversely affect the market price of the Company's common stock in any market
that may develop. Sales of "restricted securities" under Rule 144 may also have
an adverse effect on any market that may develop. See the caption "Recent Sales
of Unregistered Securities," Item 10.
In addition to the foregoing, in order to obtain a listing for its
securities on the OTC Bulletin Board, the Company will need to retain a
broker-dealer that is willing to act as a "market maker."
Only companies that report their current financial information to the
Securities and Exchange Commission may have their securities quoted on the OTC
Bulletin Board. Therefore, upon the effective date of this Registration
Statement, the Company may apply to have its securities quoted on the OTC
Bulletin Board. However, in the event that the Company loses this status as a
"reporting issuer," any future quotation of its common stock on the OTC Bulletin
Board may be jeopardized.
Risks of "Penny Stock."
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The Company's common stock may be deemed to be "penny stock" as that term
is defined in Rule 3a51-1 of the Securities and Exchange Commission. Penny
stocks are stocks (i) with a price of less than five dollars per share; (ii)
that are not traded on a "recognized" national exchange; (iii) whose prices are
not quoted on the NASDAQ automated quotation system (NASDAQ-listed stocks must
still meet requirement (i) above); or (iv) in issuers with net tangible assets
less than $2,000,000 (if the issuer has been in continuous operation for at
least three years) or $5,000,000 (if in continuous operation for less than three
years), or with average revenues of less than $6,000,000 for the last three
years.
There has been no "established public market" for the Company's common
stock during the last four years. At such time as the Company's operations
warrant or the Company completes a merger or acquisition
<PAGE>
transaction, if at all, it may attempt to qualify for listing on either NASDAQ
or a national securities exchange. However, at least initially, any trading in
its common stock will most likely be conducted in the over-the-counter market in
the "pink sheets" or the OTC Bulletin Board of the NASD.
Section 15(g) of the Securities Exchange Act of 1934, as amended, and Rule
15g-2 of the Securities and Exchange Commission require broker-dealers dealing
in penny stocks to provide potential investors with a document disclosing the
risks of penny stocks and to obtain a manually signed and dated written receipt
of the document before effecting any transaction in a penny stock for the
investor's account. Potential investors in the Company's common stock are urged
to obtain and read such disclosure carefully before purchasing any shares that
are deemed to be "penny stock."
Moreover, Rule 15g-9 of the Securities and Exchange Commission requires
broker-dealers in penny stocks to approve the account of any investor for
transactions in such stocks before selling any penny stock to that investor.
This procedure requires the broker-dealer to (i) obtain from the investor
information concerning his or her financial situation, investment experience and
investment objectives; (ii) reasonably determine, based on that information,
that transactions in penny stocks are suitable for the investor and that the
investor has sufficient knowledge and experience as to be reasonably capable of
evaluating the risks of penny stock transactions; (iii) provide the investor
with a written statement setting forth the basis on which the broker-dealer made
the determination in (ii) above; and (iv) receive a signed and dated copy of
such statement from the investor, confirming that it accurately reflects the
investor's financial situation, investment experience and investment objectives.
Compliance with these requirements may make it more difficult for investors in
the Company's common stock to resell their shares to third parties or to
otherwise dispose of them.
Year 2000.
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Because the Company is not presently engaged in any substantial business
operations, management does not believe that computer problems associated with
the change of year to the year 2000 will have any material effect on its
operations. The proposed pin-hooking operations will not require any significant
computer applications.
Principal Products and Services.
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Thoroughbreds are prominent throughout the world; however, the number of
Thoroughbreds that are typically available and which the Company would consider
owning during a one year period are estimated to be 1,000 horses.
Market research for 1999 pin-hooking sales of 2-year-old Thoroughbreds
shows an average rate of return of 91%, as apposed to 1998 returns of 77%. These
returns were calculated
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after including $10,000 in estimated cost of breaking and training. The Company
believes they can capitalize on the upward trending market. However, the Company
cannot guarantee that these rates of return can be realized.
The Company will seek to purchase one or two Thoroughbred yearlings through
partnerships or the raising of additional funds and will use the proceeds from
the sale to purchase a more expensive Thoroughbred or multiple Thoroughbreds.
However, the Company cannot guarantee that these operations will be profitable.
The limited business operations of the Company, as now contemplated,
involve those of a development stage company. The only activities to be
conducted by the Company are to manage its current limited assets and to seek
out strategic alliances and partnerships with proven yearling purchasers,
trainers and breeders. The Company may also seek to raise additional money to
purchase more expensive Thoroughbreds.
Distribution Methods of the Products or Services.
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The Company currently owns no horses. Once the animals are owned they can
transport the Thoroughbreds to various auctions that are held around the
country. The auctions are held monthly throughout the year. The Company is
required to pay a consignment fee whether the horses sell or not. Little to no
emphasis will be placed on selling the horses by appointment as the auctions
provide greater exposure.
Status of any Publicly Announced New Product or Service.
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None; not applicable.
Sources and Availability of Raw Materials and Names of Principal Suppliers.
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The Company will purchase the yearlings from any number of suppliers who
participate in various auctions around the country. The only determining
condition is the Company's ability to provide the sellers with the agreed upon
certified funds. The Company may be limited by its availability of quality
yearlings and market prices.
Breaking and training is the largest operating cost of the pin-hooking
operation. The Company will enter into an agreement with Du-Barb, a Utah
partnership directed by Duane S. Jenson, to provide the training and breaking
services. The agreement will be based on a per Thoroughbred basis as the
potential and needs of each animal differs. The Company does not foresee these
expenses exceeding $10,000 per horse. High grade feed along with a vitamin
supplement are used for the general nutrition of the
<PAGE>
Thoroughbreds. Other raw materials used in the pin-hooking industry include salt
and minerals, water, antibiotics, horse shoes and miscellaneous items to groom
and maintain the animals. Management believes that these materials will be
available in sufficient quantities. Du-Barb will provide feed for the Company's
Thoroughbreds along with the training. The Company will reimburse Du-Barb on a
pro-rata basis as they are able to purchase these supplies at quantity
discounts.
Dependence on One or a Few Major Customers.
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The Company is not limited to any number of customers outside of normal
market fluctuations and public interest in the horse racing industry. Management
believes that the pool of potential purchasers of its Thoroughbreds is large
because of the diffuse nature of horse industry. Thoroughbreds can be shipped
over long distances, so the market for the Company's animals will not
necessarily be limited to the western United States.
Patents, Trademarks, Licenses, Franchises, Concessions, Royalty
Agreements or Labor Contracts.
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The Company has not engaged in any labor contracts but expects to contract
the services of experienced trainers who will be responsible for negotiating
their own labor contracts. The Company will be required to register ownership
and pedigree of the Thoroughbreds with the appropriate agencies.
Research and Development.
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No research outside of the scope of an experienced trainer is required.
However, development methods of preparing a Thoroughbred to show well at an
auction may vary and will be the responsibility of the trainer. The Company does
not foresee any capital requirements for any research and development.
Number of Employees.
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The Company does not employ any non-officers who are expected to make a
significant contribution to its business. However, Duane S. Jenson, a majority
shareholder, has experience in the industry and management expects that he will
have a significant effect on the Company's business. The Company expects that
Mr. Jenson will consult with the Company informally to help it during the
start-up phase of operations. See "Description of Business.
Item 2. Management's Discussion and Analysis or Plan of Operation.
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<PAGE>
Plan of Operation.
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The Company has not engaged in any material operations or had any revenues
from operations during the last two fiscal years. The Company's plan of
operation for the next 12 months is to begin "Pin-Hooking" operations by seeking
Thoroughbreds, trainers and attending auctions and other business that may
benefit the Company and its stockholders. Because the Company has limited
resources, management anticipates that to may only be able to purchase one horse
and attend only a few auctions. Typically, a duration that a Thoroughbred will
be held by the Company will range from six to twelve months. The costs incurred
during this period will range from $5,000 to $10,000. The Company believes that
the highest rates of return in the pin- hooking industry can be realized with
the purchase of a Yearling around $40,000. The Company will begin attending
auctions in September of this year.
The Company will contract with Du-Barb Ranch, a Utah partnership, that
presently has operations in the Salt Lake area. Du-Barb Ranch has been in
operation for over ten years and currently trains and maintains an average of
five horses for the purposes of pin-hooking. The contract will limit the
expenses incurred by the Company to $10,000 per horse (a national average). It
is believed that Du-Barb will be able to provide the Company with experienced
trainers and that their experience in this industry will benefit the Company.
Du-Barb's majority stockholder is Duane S. Jenson, the Company's majority
stockholder.
On April 6, 1999, the Company completed the offer and sale of 800,000
shares of common stock at $0.03 per share, for gross proceeds of $24,000. During
the next 12 months, the Company's only foreseeable cash requirements will relate
to the obtaining, purchasing, training and resale of one or more Thoroughbreds,
along with maintaining the Company in good standing or the payment of expenses
associated with reviewing or investigating any potential business venture, which
may be advanced by management or principal stockholders as loans to the Company.
However, any such loan will not exceed $25,000 and will be on terms no less
favorable to the Company than would be available from a commercial lender in an
arm's length transaction. .
Results of Operations.
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The Company has had no material operations for over five years. Losses of
($0) and ($0), for the years ended December 31, 1998 and 1997, respectively. The
Company incurred losses of ($6,043) and ($0), for the six month period ended
June 30, 1999 and 1998, respectively.
Liquidity.
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The Company had no liquidity during the years ended December 31, 1998 and
1997. Except for the offer and sale of 800,000 shares under Rule 504 in April,
no contributions were made during the six month period ended June 30, 1999.
<PAGE>
Item 3. Description of Property.
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The Company has approximately $23,000 in cash and no other assets or
property; its principal executive office address and telephone number are the
office address and telephone number of James Doolin, the Company's President,
and are provided at no cost. Because the Company has not begun current business
operations, its activities have been limited to keeping itself in good standing
in the State of Delaware, and with preparing this Registration Statement and the
accompanying financial statements. These activities have consumed an
insignificant amount of management's time; accordingly, the costs to Mr. Doolin
of providing the use of his office and telephone have been minimal.
Once Thoroughbreds are purchased, Du-Barb Ranch will provide the stables.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
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Security Ownership of Certain Beneficial Owners.
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The following table sets forth the share holdings of those persons who own
more than five percent of the Company's common stock as of the date hereof, to
wit: <TABLE> <CAPTION>
Number of Shares Percentage
Name and Address Beneficially Owned of Class
- ---------------- ------------------ --------
<S> <C> <C>
Jenson Services* 100,000 9.9%
5525 S. 900 E. #110
Salt Lake City, UT 84117
Duane S. Jenson* 350,000 34.5%
5525 S. 900 E. #110
Salt Lake City, UT 84117
Jeffrey D. Jenson 350,000 34.5%
5525 S. 900 E. #110
Salt Lake City, UT 84117
* Mr. Duane S. Jenson can be deemed a beneficial holder of Jenson Services
shares as he is an officer and director and sole owner.
<PAGE>
</TABLE>
Security Ownership of Management.
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The following table sets forth the share holdings of the Company's
directors and executive officers as of the date hereof, to wit:
<TABLE>
Number of Shares
Beneficially Owned Percentage of
Name and Address as of 4/30/99 of Class
- ---------------- ------------------ -------------
<S> <C> <C>
James P. Doolin 0 0
5 Pepperwood Drive
Sandy, UT 84092
Travis T. Jenson 0 0
5525 S. 900 E. #110
Salt Lake City, UT 84117
Steven Brand 0 0
2255 E. Fort Union Blvd
Salt Lake City, UT 84070
</TABLE>
Changes in Control.
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There are no present arrangements or pledges of the Company's securities
which may result in a change in control of the Company.
Item 5. Directors, Executive Officers, Promoters and Control Persons.
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Identification of Directors and Executive Officers.
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The following table sets forth the names of all current directors and
executive officers of the Company. These persons will serve until the next
annual meeting of the stockholders (held in June of each year) or until their
successors are elected or appointed and qualified, or their prior resignations
or terminations.
<PAGE>
<TABLE>
Date of Date of
Positions Election or Termination
Name Held Designation or Resignation
- ---- ---- ----------- --------------
<S> <C> <C> <C>
James P. Doolin Director and 4/98 *
President
Travis T. Jenson Director and 4/98 *
Vice President
Steven Brand Director and 4/98 *
Secretary
Allan Bailey Director and 1/92 4/98
President
</TABLE>
* These persons presently serve in the capacities indicated.
Business Experience.
- --------------------
James P. Doolin, President and a director is 22 years of age. Mr. Doolin
received his Bachelor of Science degree in finance from the University of Utah
in 1998. Mr. Doolin has been an office manager for Hillside Tire and Service
since 1992. Mr. Doolin has also been working with Jenson Services as a Research
Analyst Intern since 1998.
Travis T. Jenson, Vice President and a director is 27 years of age. Mr.
Jenson graduated from Westminster College of Salt Lake with a Bachelor of
Science degree in 1995. Mr. Jenson has been working as an investment consultant
with Jenson Services since 1996.
Steven Brand, Secretary and a director is 54 years of age. Mr. Brand has
been employed and an owner of Hillside Tire and Service since 1991. Mr. Brand
studied at the University of Utah from 1965 to 1969.
Significant Employees.
- ----------------------
The Company has no employees who are not executive officers. See "Number of
Employees."
<PAGE>
Family Relationships.
- ---------------------
There are no family relationships between any director or executive
officer.
Involvement in Certain Legal Proceedings.
- -----------------------------------------
During the past five years, no present or former director, executive
officer or person nominated to become a director or an executive officer of the
Company:
(1) was a general partner or executive officer of any business against
which any bankruptcy petition was filed, either at the time of the bankruptcy or
two years prior to that time;
(2) was convicted in a criminal proceeding or named subject to a
pending criminal proceeding (excluding traffic violations and other minor
offenses);
(3) was subject to any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise limiting
his involvement in any type of business, securities or banking activities; or
(4) was found by a court of competent jurisdiction (in a civil action),
the Commission or the Commodity Futures Trading Commission to have violated a
federal or state securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
Item 6. Executive Compensation.
- --------------------------------
There has been no executive compensation paid by the Company for services
rendered in the last three years.
No cash compensation, deferred compensation or long-term incentive plan
awards were issued or granted to the Company's management during the calendar
years ended December 31, 1998 or 1997, or the period ending on the date of this
Registration Statement. Further, no member of the Company's management has been
granted any option or stock appreciation rights; accordingly, no tables relating
to such items have been included within this Item.
<PAGE>
Compensation of Directors.
- --------------------------
There are no standard arrangements pursuant to which the Company's
directors are compensated for any services provided as director. No additional
amounts are payable to the Company's directors for committee participation or
special assignments.
Employment Contracts and Termination of Employment and Change-in-Control
Arrangements.
- -------------
There are no employment contracts, compensatory plans or arrangements,
including payments to be received from the Company, with respect to any director
or executive officer of the Company which would in any way result in payments to
any such person because of his or her resignation, retirement or other
termination of employment with the Company or its subsidiaries, any change in
control of the Company, or a change in the person's responsibilities following a
change in control of the Company.
Item 7. Certain Relationships and Related Transactions.
- --------------------------------------------------------
Transactions with Management and Others.
- ----------------------------------------
There will be transactions between the Company and Du-Barb Ranch once one
or more Thoroughbreds are acquired. In addition to the proposed agreement
between the Company and Du-Barb, it is possible that Duane S. Jenson, a major
shareholder of the Company, who is also a principal of Du-Barb, may provide the
Company with additional opportunities through his firm Jenson Services. Jenson
Services, a Utah corporation, specializes in reverse mergers and may be able to
provide the Company with opportunities outside the scope of pin-hooking.
However, no other transaction have been contemplated by the Company.
There have been no material transactions, series of similar transactions,
currently proposed transactions, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeded $60,000 and in which any director or executive officer, or any
security holder who is known to the Company to own of record or beneficially
more than five percent of the Company's common stock, or any member of the
immediate family of any of the foregoing persons, had a material interest.
Certain Business Relationships.
- -------------------------------
There have been no material transactions, series of similar transactions,
currently proposed transactions, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeded $60,000 and in which any director or executive officer, or any
security holder who is known to the Company to own of record or beneficially
more than five percent of the Company's common stock, or any member of the
immediate family of any of the foregoing persons, had a material interest.
<PAGE>
Duane S. Jenson is a principal of Du-Barb Ranch and a major shareholder of
the Company. Mr. Jenson is also the sole owner of Jenson Services, a Utah
corporation specializing in reverse mergers.
Indebtedness of Management.
- ---------------------------
There have been no material transactions, series of similar transactions,
currently proposed transactions, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeded $60,000 and in which any director or executive officer, or any
security holder who is known to the Company to own of record or beneficially
more than five percent of the Company's common stock, or any member of the
immediate family of any of the foregoing persons, had a material interest. See
the caption "Transactions with Management and Others", above.
Parents of the Issuer.
- ----------------------
The Company has no parents, except to the extent that Messrs. Jenson and
Jenson may be deemed to be a parent by virtue of their stock holdings. See the
caption "Security Ownership of Certain Beneficial Owners and Management" Part I,
Item 4.
Transactions with Promoters.
- ----------------------------
There have been no material transactions, series of similar transactions,
currently proposed transactions, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeded $60,000 and in which any promoter or founder, or any member of
the immediate family of any of the foregoing persons, had a material interest.
See the caption "Transactions with Management and Others", above.
Item 8. Legal Proceedings.
- ---------------------------
The Company is not a party to any pending legal proceeding. To the
knowledge of management, no federal, state or local governmental agency is
presently contemplating any proceeding against the Company. No director,
executive officer or affiliate of the Company or owner of record or beneficially
of more than five percent of the Company's common stock is a party adverse to
the Company or has a material interest adverse to the Company in any proceeding.
<PAGE>
Item 9. Market Common Equity Stockholder Matters.
- --------------------------
Related Market Information.
- ----------------------------------
There has never been any established "public market" for shares of common
stock of the Company. The Company intends to submit for quotation of its common
stock on the OTC Bulletin Board of the NASD; however, management does not expect
any public market to develop unless and until the Company begins pin hooking
operations or completes an acquisition, reorganization or merger. In any event,
no assurance can be given that any market for the Company's common stock will
develop or be maintained. If a public market ever develops in the future, the
sale of "unregistered" and "restricted" shares of common stock pursuant to Rule
144 of the Commission by major shareholders may have a substantial adverse
impact on any such public market, and all of the current and former members of
management have already satisfied the "holding period" requirement of Rule 144.
See the caption "Recent Sales of Unregistered Securities," Item 10.
Holders.
- --------
The number of record holders of the Company's common stock as of the date
of this Registration Statement is approximately 215.
Dividends.
- ----------
The Company has not declared any cash dividends with respect to its common
stock, and does not intend to declare dividends in the foreseeable future. There
are no material restrictions limiting, or that are likely to limit, the
Company's ability to pay dividends on its securities.
Item 10. Recent Sales of Unregistered Securities.
- -------------------------------------------------
On January 9, 1999, the Company issued 3,000,000 shares to Jenson Services
in consideration of the payment of $3,000 of expenses incurred on behalf of the
Company.
On April 6, 1999, pursuant to rule 504 of Regulation D of the Securities
and Exchange Commission, the Company commenced the offer and sale to the public
of 800,000 shares of its common voting stock at a price of $0.03 per share, or
the total sum of $24,000. All 800,000 shares were sold and the offering closed
on April 6, 1999.
Item 11. Description of Securities.
- -----------------------------------
The Company has one class of securities authorized, consisting of
100,000,000 shares of $0.15 par value common voting stock. The holders of the
Company's common stock are entitled to one vote per share on each matter
submitted to a vote at a meeting of
<PAGE>
stockholders. The shares of common stock do not carry cumulative voting rights
in the election of directors.
Stockholders of the Company have no pre-emptive rights to acquire
additional shares of common or preferred stock. The common stock is not subject
to redemption rights and carries no subscription or conversion rights. All
shares of the common stock now outstanding are fully paid and non-assessable.
There are no preferred shares outstanding.
There are no outstanding options, warrants or calls to purchase any of the
authorized securities of the Company.
There is no provision in the Company's Articles of Incorporation, as
amended, or Bylaws, that would delay, defer, or prevent a change in control of
the Company.
Item 12. Indemnification of Directors and Officers.
- ------------------------------------------------------------
Subsection (b) (7) of Section 102 of the Delaware General Corporation Law
("the "DGCL") enables a corporation in its original certificate of incorporation
or amendment thereto to eliminate or limit the personal liability of a director
to the corporation or its stockholders for monetary damages for violations of
the director's fiduciary duty, except (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction for which a director derived an
improper personal benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, 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 the 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, officer, employee or agent 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 in connection with that action, suit or proceeding provided that the
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding , provided further that the director or
officer has no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, 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 the person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in
<PAGE>
connection with the defense or settlement of the action or suit provided that
the director or officer 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 may be made in respect of any claim, issue or
matter as to which the director or officer shall have adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or the
court in which the action or suit was brought shall determine upon application
that despite the adjudication of liability but in view of all of the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for the expenses which the Court of Chancery or other
court shall deem proper.
Section 145 further provides that (i) to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsection (a) and (b) or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; and (ii) indemnification and advancement of expenses provided for,
by, or granted pursuant to, Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled. In insurance on
behalf of any person
Item 13. Financial Statements.
- -----------------------------------
<PAGE>
AMALGAMATED ENTERTAINMENT, INC.
FINANCIAL STATEMENTS
December 31, 1998
[WITH INDEPENDENT AUDITORS' REPORT]
<PAGE>
AMALGAMATED ENTERTAINMENT, INC.
TABLE OF CONTENTS
Page
Independent Auditors' Report. . . . . . . . . . . . . 1
Balance Sheet - December 31, 1998 . . . . . . . . . . 2
Statements of Operations for the
years ended December 31, 1998 and
December 31, 1997 . . . . . . . . . . . . . . . . . . 3
Statements of Stockholders' Equity for
the years ended December 31, 1998 and
December 31, 1997 . . . . . . . . . . . . . . . . . . 4
Statements of Cash Flows for the
years ended December 31, 1998 and
December 31, 1997 . . . . . . . . . . . . . . . . . . 5
Notes to Financial Statements . . . . . . . . . . . . 6-9
<PAGE>
Independent Auditors' Report
The Board of Directors and Shareholders
Amalgamated Entertainment, Inc.:
We have audited the accompanying balance sheet of Amalgamated Entertainment,
Inc. as of December 31, 1998, and the related statements of operations,
stockholders' equity, and cash flows for the years ended December 31, 1998 and
December 31, 1997. 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 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 Amalgamated Entertainment, Inc.
as of December 31, 1998, and the results of their operations and their cash
flows for the years ended December 31, 1998 and December 31, 1997 in conformity
with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that
Amalgamated Entertainment, Inc. will continue as a going concern. As discussed
in Note 2 to the financial statements, the Company has accumulated losses from
operations and has minimal assets which raise substantial doubt about its
ability to continue as a going concern. Management's plans in regard to these
matters are also described in Note 2. The financial statements do not include
any adjustment that might result from the outcome of this uncertainty.
Mantyla McReynolds
Salt Lake City, Utah
January 15, 1999
<PAGE>
AMALGAMATED ENTERTAINMENT, INC.
Balance Sheet
December 31, 1998
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Assets
Current assets $ -0-
Total Assets $ -0-
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Current liabilities $ -0-
-----------
Total Liabilities -0-
Stockholders' Equity: (Notes 4,5)
Preferred stock, $.01 par value;
authorized 1,000,000 shares; issued
and outstanding 0 shares
-0-
Common stock, $.01 par value;
authorized 25,000,000 shares; issued
and outstanding 2,999,288 shares
29,993
Additional paid in capital 1,235,786
Accumulated deficit (1,265,779)
-----------
Total Stockholders' Equity -0-
Total Liabilities and
Stockholders' Equity $ -0-
</TABLE>
See accompanying notes to financial statements
2
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
Statements of Operations
For the Years Ended December 31, 1998 and December 31, 1997
<S> <C> <C>
1998 1997
---- ----
Revenue:
Revenues from operations $ -0- $ -0-
--------- ---------
Total Revenue -0- -0-
General and Administrative Expenses -0- -0-
Net Income Before Taxes -0- -0-
Income/franchise taxes -0- -0-
Net income $ -0- $ -0-
========== =========
Income per share $ -0- $ -0-
========== =========
Weighted Average Shares Outstanding 2,999,288 2,999,288
=========== ==========
</TABLE>
See accompanying notes to financial statements
3
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
Statements of Stockholders' Equity
For the Years Ended December 31, 1998 and December 31, 1997
<S> <C> <C> <C> <C> <C>
Additional Net
Common Common Paid in Accumulated Stockholders'
Shares Stock Capital Deficit Equity
Balance, December 31, 1996 2,999,288 $ 29,993 $ 1,235,786 $(1,265,779) $ -0-
Net loss for the year ended
December 31, 1997 ........ -0- -0-
----------- ----------- ----------- --- ---
Balance, December 31, 1997 2,999,288 29,993 1,235,786 (1,265,779) -0-
Net loss for the year ended
December 31, 1998 ........ -0- -0-
----------- ----------- ----------- --- ---
Balance, December 31, 1998 2,999,288 $ 29,993 $ 1,235,786 $(1,265,779) $ -0-
=========== =========== =========== =========== ===
</TABLE>
See accompanying notes to financial statements
4
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
Statements of Cash Flows
For the Years Ended December 31, 1998 and December 31, 1997
<S> <C> <C>
1998 1997
---- ----
Cash Flows Provided by
Operating Activities:
Net Income $ -0- $ -0-
--------- --------
Net Cash Used for Operating
Activities -0- -0-
Cash Flows Provided by
Financing Activities: -0- -0-
Net Increase/(decrease)in cash -0- -0-
Beginning Cash -0- -0-
Ending Cash $ -0- $ -0-
========= ========
Supplemental Disclosure of Cash Flow Information
Cash paid during the periods for:
Interest $ -0- $ -0-
========= ========
Taxes $ -0- $ -0-
========= ========
</TABLE>
See accompanying notes to financial statements
5
<PAGE>
AMALGAMATED ENTERTAINMENT, INC.
Notes to Financial Statements
December 31, 1998
Note 1 Organization and Summary of Significant Accounting Policies
-----------------------------------------------------------
(a) Organization
Amalgamated Entertainment, Inc. ("Company") was originally
formed under the name Ace Investments and incorporated under
the laws of the State of Utah in March, 1985. After several
name changes and share issuances between 1985 and 1992(See
Note 4), the Company changed its name to Amalgamated
Entertainment, Inc. The Company changed its domicile to
Delaware in 1992.
The Company was originally organized to seek out and acquire
suitable acquisitions and mergers which may have had long term
growth potential. Subsequent to its merger with Silver Screen
Video, Inc. in 1991, its primary purpose was to manufacture,
produce, and distribute pre-recorded video cassettes. Shortly
after the merger, the Company ceased operations and liquidated
its assets and liabilities. Since that time it has been
dormant.
(b) Income Taxes
Effective January 1, 1993, the Company adopted the provisions
of Statement of Financial Accounting Standards No. 109 [the
Statement], "Accounting for Income Taxes." The Statement
requires an asset and liability approach for financial
accounting and reporting for income taxes, and the recognition
of deferred tax assets and liabilities for the temporary
differences between the financial reporting bases and tax
bases of the Company's assets and liabilities at enacted tax
rates expected to be in effect when such amounts are realized
or settled. The cumulative effect of this change in accounting
for income taxes as of December 31, 1998 is $0 due to the
valuation allowance established as described below.
(c) Net Loss Per Common Share
Net loss per common share is based on the weighted average
number of shares outstanding.
(d) Statement of Cash Flows
For purposes of the statements of cash flows, the Company
considers cash on deposit in the bank to be cash. The Company
had $0 cash at December 31, 1998.
6
<PAGE>
Note 1 Organization and Summary of Significant Accounting Policies
-----------------------------------------------------------
[continued]
(e) Use of Estimates in Preparation of Financial Statements
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those
estimates.
Note 2 Liquidity
The Company has accumulated losses through December 31, 1998
amounting to $1,265,779, and does not anticipate generating
sufficient cash flows from operations to meet the Company's
cash requirements. These factors raise substantial doubt about
the Company's ability to continue as a going concern.
Management plans include finding a well-capitalized merger
candidate to commence operations. The financial statements do
not include any adjustments that might result from the outcome
of this uncertainty.
Note 3 Income Taxes
The Company adopted Statement No. 109 as of January 1, 1993.
Prior years' financial statements have not been restated to
apply the provisions of Statement No. 109. No provision has
been made in the financial statements for income taxes because
the Company has accumulated substantial losses from
operations.
The tax effects of temporary differences that give rise to
significant portions of the deferred tax asset at December 31,
1998 have no impact on the financial position of the Company.
A valuation allowance is provided when it is more likely than
not that some portion of the deferred tax asset will not be
realized.
7
<PAGE>
Note 3 Income Taxes [continued]
Because of the lack of taxable earnings history, the Company
has established a valuation allowance for all future
deductible temporary differences. The company has available
net operating loss (NOL) carry forwards of approximately
$1,265,779, the benefits of which will expire in various
amounts through 2013. NOLs will only be usable to the extent
that the Company is successful in obtaining future
profitability, or incurring profitable transactions.
Note 4 Company History
As indicated in Note 1, the Company's original predecessor was
Ace Investments ("Ace"). Ace's founders received 3,750,000
shares. Subsequently, Ace offered 7,500,000 shares of its
common stock at $.01 per share. This offering was fully
subscribed. In 1986, Ace changed its name to Matlock
Communications Companies, Inc. ("Matlock"), in connection with
an acquisition. In conjunction with this transaction the
Company issued 46,915,000 shares of its common stock to
acquire Boise Publishing. Matlock's operations were
unsuccessful and Boise Publishing was sold for the assumption
of its liabilities. With the failure of Boise Publishing,
44,434,500 shares issued in the Matlock transaction were
canceled. In May, 1989, the Company changed its named to
Persimmon Corporation and effected a 1 for 15 reverse split of
its outstanding common shares. During the period from 1989 to
January, 1992, the Company was inactive. On January 27, 1992
the Company merged with Amalgamated Entertainment, Inc., a
Delaware Corporation, formed on December 19, 1991. The purpose
of this merger was to change the domicile of the Company to
Delaware. At the same time, the Company changed its name to
its present title, Amalgamated Entertainment, Inc. On January
29, 1992, the Company effected a 1 for 2 reverse split of its
issued and outstanding common shares, and issued 2,541,492 of
the Company's post-split common shares in a transaction with
Amalgamated Communications, Inc., a Delaware corporation in a
reverse acquisition transaction accounted for as a purchase.
8
<PAGE>
Note 4 Company History [continued]
Amalgamated Communications, Inc. was formed in September, 1991
and shortly thereafter acquired certain of the assets and
liabilities of Silver Screen Video, Inc., an entity engaged in
the business of manufacturing producing and distributing pre-
recorded video cassettes. Silver Screen Video, Inc. was formed
in 1986.
The table below illustrates the Company's share transactions:
<TABLE>
<S> <C> <C> <C>
Date Purpose Amount Cumulative Balance
1985 Issued to Founders 3,750,000 3,750,000
1985 Issued to Public 7,500,000 11,250,000
1986 Issued in Matlock deal 46,915,000 58,165,000
1986 Canceled (44,434,832) 13,730,168
1989 Reverse - 1 for 15 (12,814,851) 915,317
1992 Reverse - 1 for 2 (457,521) 457,796
1992 Issued in Amal. Com. deal 2,541,492 2,999,288
</TABLE>
Note 5 Subsequent Event
On January 9, 1999 the Company issued 3,000,000 shares of the
Company's restricted and unregistered common stock to an
entity related to one of the Company's officers, in
consideration of expenses paid by such entity on the Company's
behalf.
9
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
BALANCE SHEETS
June 30, 1999 and December 31, 1998
<S> <C> <C>
6/30/99 12/31/98
----------------- -----------------
[Unaudited]
ASSETS
Assets $ 23,268 $ 0
----------------- -----------------
Total Assets $ 23,268 $ 0
================= =================
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Loans from stockholders $ 2,311 $ 0
Accounts Payable 0 0
Income Taxes Payable 0 0
----------------- -----------------
Total Current Liabilities 2,311 0
Total Liabilities 2,311 0
----------------- -----------------
Stockholders' Deficit:
Preferred stock, $.001 par value;
authorized 10,000,000 shares; issued and
outstanding, 0 - shares
Common Stock, $.015 par value;
authorized 30,000,000 shares; issued and
outstanding, 1,015,453 shares 10,155 29,993
Paid-in Capital 1,281,892 1,235,786
Accumulated Deficit (1,271,090) (1,265,779)
----------------- -----------------
Total Stockholders' Deficit 20,957 0
----------------- -----------------
Total Liabilities and Stockholders' Deficit $ 23,268 $ 0
================= =================
</TABLE>
NOTE TO FINANCIAL STATEMENTS: Interim financial statements reflect all
adjustments which are, in the opinion of management, necessary to a fair
statement of the results for the periods. The December 31, 1998 balance sheet
has been derived from the audited financial statements. These interim financial
statements conform with the requirements for interim financial statements and
consequently do not include all the disclosures normally required by generally
accepted accounting principles.
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
STATEMENTS OF OPERATIONS
For the Three and Six Month Periods Ended June 30, 1999 and 1998
<S> <C> <C> <C> <C> <C> <C>
Three Months Three Months Six Months Six Months
Ended Ended Ended Ended
6/30/99 6/30/98 6/30/99 6/30/98
---------------- --------------- ------------- -------------
[Unaudited] [Unaudited] [Unaudited] [Unaudited]
REVENUE
Income $ 0 $ 0 $ 0 $ 0
---------------- --------------- ------------- -------------
NET REVENUE 0 0 0 0
Operating Expenses
Office Expenses 0 367 657 367
Professional Fees 3,160 0 4,654 0
---------------- --------------- ------------- -------------
Total Operating Expenses 3,160 367 5,311 367
---------------- --------------- ------------- -------------
Net Income Before Taxes $ (3,160) $ (367)$ (5,311)$ (367)
================ =============== ============= =============
Income/Franchise taxes 0 0 0 100
Net loss (3,160) (367) (5,311) (467)
Loss Per Share $ (0.01) $ (0.01)$ (0.01)$ (0.01)
================ =============== ============= =============
Weighted Average Shares Outstanding 1,676,731 2,999,288 2,338,010 2,999,288
================ =============== ============= =============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
AMALGAMATED ENTERTAINMENT, INC.
STATEMENTS OF CASH FLOWS
For the Three and Six Month Periods Ended June 30, 1999 and 1998
<S> <C> <C> <C> <C>
Three Months Three Months Six Months Six Months
Ended Ended Ended Ended
6/30/99 6/30/98 6/30/99 6/30/98
-------------- -------------- --------------- ---------------
[Unaudited] [Unaudited] [Unaudited] [Unaudited]
Cash Flows Used For Operating Activities
- ---------------------------------------------------
Net Loss $ (3,160) $ (367) $ (5,311) $ (467)
Adjustments to reconcile net loss to net cash
used in operating activities:
Shares issued for forgiveness of debt 0 0 3,000 0
Increase/(Decrease) in loans from shareholder 3,160 367 2,311 467
-------------- -------------- --------------- ---------------
Net Cash Used For Operating Activities 0 0 (0) 0
============== ============== =============== ===============
Cash Flows Provided by Financing Activities 0 0 0 0
- -------------------------------------------------------
Net Increase In Cash 0 0 23,268 0
Beginning Cash Balance 0 0 0 0
Ending Cash Balance $ 0 $ 0 $ 23,268 $ 0
-------------- -------------- --------------- ---------------
</TABLE>
<PAGE>
Item 14. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
- ---------------------
There have been no changes in the Company's principal independent
accountant in the past two fiscal years or as of the date of this Registration
Statement. The current accountant for the Company audited its last financial
statements for the year ended December 31, 1998.
Index to Financial Statements
Report of Certified Public Accountants
Item 15. Financial Statements
- -------------------------------------
Audited Financial Statements for the year
December 31, 1998
---------------------------------------
Independent Auditors' Report
Balance Sheet for the year ending December 31, 1998
Statements of Operations for the years ending December 31, 1998 and 1997.
Statements of Stockholders' Equity for the years ending December 31, 1998
and 1997. Statements of Cash Flows for the years ending December 31, 1998
and 1997
Notes to the Financial Statements
Unaudited Financial Statements for the period
June 30, 1999
------------------
Balance Sheet
Statement of Operations
Statements of Cash Flows
PART III
Item 1. Index to Exhibits.
- ---------------------------
The following exhibits are filed as a part of this Registration
Statement:
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description*
- ------ ------------
<S> <C>
3.1 Initial Articles of Incorporation, Ace Investments, Inc. a Utah
corporation, as filed on March 26, 1986
3.2 By-laws, as adopted on May 27, 1999.
3.3i Articles of Amendment to the Articles of Incorporation, name change to
Matlock Communications, Inc., as filed on August 28, 1986.
3.3ii Articles of Amendment to the Articles of Incorporation, name change to
Persimmon Corporation, as filed on June 28, 1989.
3.3iii Articles of Incorporation, Amalgamated Entertainment, Inc., a Delaware
corporation, as filed on December 20, 1991.
3.3iv Articles of Merger of Persimmon Corporation into Amalgamated
Entertainment, Inc., as filed on January 30, 1992.
3.3v Articles of Amendment to the Articles of Incorporation, reverse split
on a basis of 1 for 30, as filed on April 6, 1999.
27 Financial Data Schedule
</TABLE>
* Summaries of all exhibits contained within this Registration
Statement are modified in their entirety by reference to these Exhibits.
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the Registrant has caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized.
AMALGAMATED ENTERTAINMENT, INC.
Date: 7/22/99 /S/ JAMES P. DOOLIN
-----------------------------
James P. Doolin, Director and President
Date: 7/22/99 /S/ TRAVIS T. JENSON
-----------------------------
Travis T. Jenson, Director and Vice President
<PAGE>
ARTICLES OF INCORPORATION
OF
ACE INVESTMENTS
WE, THE UNDERSIGNED natural persons of the age of twenty-one years
or more, acting as incorporators of a corporation under the Utah
Business Corporation Act adopt the following Articles of Incorporation
for such corporation.
ARTICLE I
CORPORATE NAME
The name of this corporation is Ace Investments.
ARTICLE II
DURATION OF CORPORATION
The duration of this corporation is "perpetual".
ARTICLE III
CORPORATE PURPOSES
The purpose for which this corporation is organized is for investment and
to acquire other business entities or investments, and all matters related or
ancillary thereto and to do all things and engage in all lawful transactions
which a corporation organized under the laws of the State of Utah might do or
engage in, even though not expressly stated herein.
<PAGE>
ARTICLE IV
CAPITALIZATION
The aggregate number of shares which this corporation shall have authority
to issue is FIFTY MILLION (50,000,000) shares of $0.001 par value common stock.
All stock of the corporation shall be of the same class and shall have the same
rights and preferences. Fully paid stock of this corporation shall not be liable
to any further call or assessment.
ARTICLE V
PRE-EMPTIVE RIGHTS ABOLISHED
The authorized and treasury stock of this corporation may be issued at such
time, upon such terms and conditions and for such consideration as the Board of
Directors shall determine. Shareholders shall not have pre-emptive rights to
acquire unissued shares of the stock of this corporation.
ARTICLE VI
COMMENCING BUSINESS
This corporation will not commence business until consideration of a value
of at least $l,000 has been received for the issuance of shares.
ARTICLE VII
INTERNAL AFFAIRS
The Directors shall adopt Bylaws which are not inconsistent with law or
these Articles for the regulation and management of the affairs of the
corporation. These Bylaws may be amended from time to time or repealed pursuant
to laws.
<PAGE>
ARTICLE VIII
REGISTERED OFFICE AND AGENT
The address of this corporation's initial registered office and name of its
original registered agent at such address is:
Richard J. Lawrence
Suite 777
175 South West Temple
Salt Lake City, UT 84101
ARTICLE IX
DIRECTORS
The Board of Directors shall consist of not less than three (3) nor more
than nine (9) members as the Board of Directors may itself from time to time
determine. The names and addresses of persons who are to serve as Directors
until the first meeting of stockholders, or until their successors be elected
and qualify are:
NAME ADDRESS
R. Kirk Blosch 2686 S. Filmore
Salt Lake City, Utah 84106
Jeff W. Holmes 9834 S. Riggs Circle
Sandy, Utah 84092
Richard J. Lawrence 1532 S. Charlene Drive
Bountiful, Utah 84010
-3-
<PAGE>
ARTICLE X
INCORPORATORS
The name and address of each Incorporator is:
NAME ADDRESS
R. Kirk Blosch 2686 S. Filmore
Salt Lake City, Utah 84106
Jeff W. Holmes 9834 S. Riggs Circle
Sandy, Utah 84092
Richard J. Lawrence 1532 S. Charlene Drive
Bountiful, Utah 84010
ARTICLE XI
OFFICERS AND DIRECTORS CONTRACTS
No contract or other transaction between this corporation and any other
corporation shall be affected by the fact that a Director or officer of this
corporation is interested in or is a Director or officer of such other
corporation; and any Director, individually or jointly, may be a party to or may
be interested in any corporation or transaction of this corporation or in which
this corporation is interested; and no contract or other transaction of this
corporation with any person, firm or corporation shall be affected by the fact
that any Director of this corporation is a party to or is interested in such
contract, act or transaction or any way connected with such person, firm or
corporation, and every person who may become a Director of this corporation is
hereby relieved from liability that might otherwise exist from contracting with
the corporation for the benefit of himself or any firm, association or
corporation in which he may be in any way interested, provided said Director
acts in good faith.
<PAGE>
DATED this 26th day of March, 1985.
/S/ R. KIRK BLOSCH
R. KIRK BLOSCH
/S/ JEFF W. HOLMES
JEFF W. HOLMES
/S/ RICHARD J. LAWRENCE
RICHARD J. LAWRENCE
STATE OF UTAH )
:ss.
COUNTY OF SALT LAKE )
I, THE UNDERSIGNED, a Notary public, hereby certify that on the 26th day
of March, 1985, R. Kirk Blosch, Jeff W. Holmes and Richard J. Lawrence
personally appeared before me who being by me first duly sworn severally
declared that they are the persons who signed the foregoing document as
incorporators and that the statements therein contained are true.
DATED this 26th day of March, 1985.
/S/ VALERIE WANLASS
Notary Public
My commission expires: Residing at:
/S/ 11-21-87 /S/ Salt Lake City, UT
-5-
<PAGE>
BYLAWS
OF
AMALGAMATED ENTERTAINMENT, INC..
ARTICLE I
OFFICES
Section 1.01 Location of Office. The corporation may maintain such offices
within or without the State of Delaware as the Board of Directors may from time
to time designate or require.
Section 1.02 Principal Office. The address of the principal office of the
corporation shall be at the address of the registered office of the corporation
as so designated in the office of the Lieutenant Governor/Secretary of State of
the state of incorporation, or at such other address as the Board of Directors
shall from time to time determine.
ARTICLE II
SHAREHOLDERS
Section 2.0 Annual Meeting. The annual meeting of the shareholders shall be
held in May of each year or at such other time designated by the Board of
Directors and as is provided for in the notice of the meeting, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting. If the election of directors shall not be held on the day
designated for the annual meeting of the shareholders, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as may be convenient.
Section 2.02 Special Meetings. Special meetings of the shareholders may be
called at any time by the chairman of the board, the president, or by the Board
of Directors, or in their absence or disability, by any vice president, and
shall be called by the president or, in his or her absence or disability, by a
vice president or by the secretary on the written request of the holders of not
less than one-tenth of all the shares entitled to vote at the meeting, such
written request to state the purpose or purposes of the meeting and to be
delivered to the president, each vice-president, or secretary. In case of
failure to call such meeting within 60 days after such request, such shareholder
or shareholders may call the same.
Section 2.03 Place of Meetings. The Board of Directors may designate any
place, either within or without the state of incorporation, as the place of
meeting for any annual meeting or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the
<PAGE>
state of incorporation, as the place for the holding of such meeting. If no
designation is made, or if a special meeting be otherwise called, the place of
meeting shall be at the principal office of the corporation.
Section 2.04 Notice of Meetings. The secretary or assistant secretary, if
any, shall cause notice of the time, place, and purpose or purposes of all
meetings of the shareholders (whether annual or special), to be mailed at least
ten (10) days, but not more than fifty (50) days, prior to the meeting, to each
shareholder of record entitled to vote.
Section 2.05 Waiver of Notice. Any shareholder may waive notice of any
meeting of shareholders (however called or noticed, whether or not called or
noticed and whether before, during, or after the meeting), by signing a written
waiver of notice or a consent to the holding of such meeting, or an approval of
the minutes thereof. Attendance at a meeting, in person or by proxy, shall
constitute waiver of all defects of call or notice regardless of whether waiver,
consent, or approval is signed or any objections are made. All such waivers,
consents, or approvals shall be made a part of the minutes of the meeting.
Section 2.06 Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any annual meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors of the corporation may provide
that the share transfer books shall be closed, for the purpose of determining
shareholders entitled to notice of or to vote at such meeting, but not for a
period exceeding fifty (50) days. If the share transfer books are closed for the
purpose of determining shareholders entitled to notice of or to vote at such
meeting, such books shall be closed for at least ten (10) days immediately
preceding such meeting.
In lieu of closing the share transfer books, the Board of Directors may fix
in advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than fifty (50) 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.
If the share transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting 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. 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. Failure to comply
with this Section shall not affect the validity of any action taken at a meeting
of shareholders.
<PAGE>
Section 2.07 Voting Lists. The officer or agent of the corporation having
charge of the share transfer books for shares of the corporation shall make, at
least ten (10) days before each meeting of the shareholders, a complete list of
the shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of, and the number of shares
held by each, which list, for a period of ten (10) days prior to such meeting,
shall be kept on file at the registered office of the corporation and shall be
subject to inspection by any shareholder during the whole time of the meeting.
The original share transfer book shall be prima facia evidence as to the
shareholders who are entitled to examine such list or transfer books, or to vote
at any meeting of shareholders.
Section 2.08 Quorum. One-half of the total voting power of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of the shareholders. If a quorum is
present, the affirmative vote of the majority of the voting power represented by
shares at the meeting and entitled to vote on the subject shall constitute
action by the shareholders, unless the vote of a greater number or voting by
classes is required by the laws of the state of incorporation of the corporation
or the Articles of Incorporation. If less than one-half of the outstanding
voting power is represented at a meeting, a majority of the voting power
represented by shares so present may adjourn the meeting from time to time
without further notice. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed.
Section 2.09 Voting of Shares. Each outstanding share of the corporation
entitled to vote shall be entitled to one vote on each matter submitted to vote
at a meeting of shareholders, except to the extent that the voting rights of the
shares of any class or series of stock are determined and specified as greater
or lesser than one vote per share in the manner provided by the Articles of
Incorporation.
Section 2.10 Proxies. At each meeting of the shareholders, each shareholder
entitled to vote shall be entitled to vote in person or by proxy; provided,
however, that the right to vote by proxy shall exist only in case the instrument
authorizing such proxy to act shall have been executed in writing by the
registered holder or holders of such shares, as the case may be, as shown on the
share transfer of the corporation or by his or her or her attorney thereunto
duly authorized in writing. Such instrument authorizing a proxy to act shall be
delivered at the beginning of such meeting to the secretary of the corporation
or to such other officer or person who may, in the absence of the secretary, be
acting as secretary of the meeting. In the event that any such instrument shall
designate two or more persons to act as proxies, a majority of such persons
present at the meeting, or if only one be present, that one shall (unless the
instrument shall otherwise provide) have all of the powers conferred by the
instrument on all persons so designated. Persons holding stock in a fiduciary
capacity shall be entitled to vote the shares so
<PAGE>
held and the persons whose shares are pledged shall be entitled to vote,
unless in the transfer by the pledge or on the books of the corporation he or
she shall have expressly empowered the pledgee to vote thereon, in which case
the pledgee, or his or her proxy, may represent such shares and vote thereon.
Section 2.11 Written Consent to Action by Shareholders. Any action required
to be taken at a meeting of the shareholders, or any other action which may be
taken at a meeting of the shareholders, may be taken without a meeting, if a
consent in writing, setting forth the action so taken, shall be signed by all of
the shareholders entitled to vote with respect to the subject matter thereof.
ARTICLE III DIRECTORS
Section 3.01 General Powers. The property, affairs, and business of the
corporation shall be managed by its Board of Directors. The Board of Directors
may exercise all the powers of the corporation whether derived from law or the
Articles of Incorporation, except such powers as are by statute, by the Articles
of Incorporation or by these Bylaws, vested solely in the shareholders of the
corporation.
Section 3.02 Number, Term, and Qualifications. The Board of Directors shall
consist of three to nine persons. Increases or decreases to said number may be
made, within the numbers authorized by the Articles of Incorporation, as the
Board of Directors shall from time to time determine by amendment to these
Bylaws. An increase or a decrease in the number of the members of the Board of
Directors may also be made upon amendment to these Bylaws by a majority vote of
all of the shareholders, and the number of directors to be so increased or
decreased shall be fixed upon a majority vote of all of the shareholders of the
corporation. Each director shall hold office until the next annual meeting of
shareholders of the corporation and until his or her successor shall have been
elected and shall have qualified. Directors need not be residents of the state
of incorporation or shareholders of the corporation.
Section 3.03 Classification of Directors. In lieu of electing the entire
number of directors annually, the Board of Directors may provide that the
directors be divided into either two or three classes, each class to be as
nearly equal in number as possible, the term of office of the directors of the
first class to expire at the first annual meeting of shareholders after their
election, that of the second class to expire at the second annual meeting after
their election, and that of the third class, if any, to expire at the third
annual meeting after their election. At each annual meeting after such
classification, the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the second succeeding annual meeting, if there be two classes, or until the
third succeeding annual meeting, if there be three classes.
<PAGE>
Section 3.04 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately following, and at
the same place as, the annual meeting of shareholders. The Board of Directors
may provide by resolution the time and place, either within or without the state
of incorporation, for the holding of additional regular meetings without other
notice than such resolution.
Section 3.05 Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the president, vice president, or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the state of
incorporation, as the place for holding any special meeting of the Board of
Directors called by them.
Section 3.06 Meetings by Telephone Conference Call. Members of the Board of
Directors may participate in a meeting of the Board of Directors or a committee
of the Board of Directors by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
Section 3.07 Notice. Notice of any special meeting shall be given at least
ten (10) days prior thereto by written notice delivered personally or mailed to
each director at his or her regular business address or residence, or by
telegram. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail so addressed, with postage thereon prepaid. If notice
be given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Any director may waive notice of
any meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting solely for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 3.08 Quorum. A majority of the number of directors shall constitute
a quorum for the transaction of business or any meeting of the Board of
Directors, but if less than a majority is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Section 3.09 Manner of Acting. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, and the individual directors shall have no power as such.
Section 3.10 Vacancies and Newly Created Directorship. If any vacancies
shall occur in the Board of Directors by reason of death, resignation or
otherwise, or if the number of directors
<PAGE>
shall be increased, the directors then in office shall continue to act and
such vacancies or newly created directorships shall be filled by a vote of the
directors then in office, though less than a quorum, in any way approved by the
meeting. Any directorship to be filled by reason of removal of one or more
directors by the shareholders may be filled by election by the shareholders at
the meeting at which the director or directors are removed.
Section 3.11 Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 3.12 Presumption of Assent. 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 shall be presumed to have assented to the action taken unless
his or her dissent shall be entered in the minutes of the meeting, unless he or
she shall file his or her written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof, or shall forward
such dissent by registered or certified mail to the secretary of the corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
Section 3.13 Resignations. A director may resign at any time by delivering
a written resignation to either the president, a vice president, the secretary,
or assistant secretary, if any. The resignation shall become effective on its
acceptance by the Board of Directors; provided, that if the board has not acted
thereon within ten days (10) from the date presented, the resignation shall be
deemed accepted.
Section 3.14 Written Consent to Action by Directors. Any action required to
be taken at a meeting of the directors of the corporation or any other action
which may be taken at a meeting of the directors or of a committee, may be taken
without a meeting, if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors, or all of the members of the committee,
as the case may be. Such consent shall have the same legal effect as a unanimous
vote of all the directors or members of the committee.
Section 3.15 Removal. At a meeting expressly called for that purpose, one
or more directors may be removed by a vote of a majority of the shares of
outstanding stock of the corporation entitled to vote at an election of
directors.
<PAGE>
ARTICLE IV
OFFICERS
Section 4.01 Number. The officers of the corporation shall be a president,
one or more vice-presidents, as shall be determined by resolution of the Board
of Directors, a secretary, a treasurer, and such other officers as may be
appointed by the Board of Directors. The Board of Directors may elect, but shall
not be required to elect, a chairman of the board and the Board of Directors may
appoint a general manager.
Section 4.02 Election, Term of Office, and Qualifications. The officers
shall be chosen by the Board of Directors annually at its annual meeting. In the
event of failure to choose officers at an annual meeting of the Board of
Directors, officers may be chosen at any regular or special meeting of the Board
of Directors. Each such officer (whether chosen at an annual meeting of the
Board of Directors to fill a vacancy or otherwise) shall hold his or her office
until the next ensuing annual meeting of the Board of Directors and until his or
her successor shall have been chosen and qualified, or until his or her death,
or until his or her resignation or removal in the manner provided in these
Bylaws. Any one person may hold any two or more of such offices, except that the
president shall not also be the secretary. No person holding two or more offices
shall act in or execute any instrument in the capacity of more than one office.
The chairman of the board, if any, shall be and remain a director of the
corporation during the term of his or her office. No other officer need be a
director. Section 4.03 Subordinate Officers, Etc. The Board of Directors from
time to time may appoint such other officers or agents as it may deem advisable,
each of whom shall have such title, hold office for such period, have such
authority, and perform such duties as the Board of Directors from time to time
may determine. The Board of Directors from time to time may delegate to any
officer or agent the power to appoint any such subordinate officer or agents and
to prescribe their respective titles, terms of office, authorities, and duties.
Subordinate officers need not be shareholders or directors.
Section 4.04 Resignations. Any officer may resign at any time by delivering
a written resignation to the Board of Directors, the president, or the
secretary. Unless otherwise specified therein, such resignation shall take
effect on delivery.
Section 4.05 Removal. Any officer may be removed from office at any special
meeting of the Board of Directors called for that purpose or at a regular
meeting, by vote of a majority of the directors, with or without cause. Any
officer or agent appointed in accordance with the provisions of Section 4.03
hereof may also be removed, either with or without cause, by any officer on whom
such power of removal shall have been conferred by the Board of Directors.
Section 4.06 Vacancies and Newly Created Offices. If any vacancy shall
occur in any office by reason of death, resignation, removal, disqualification,
or any other cause, or if a new office shall be created, then such vacancies or
newly created offices may be filled by the Board of Directors at a regular or
special meeting.
<PAGE>
Section 4.07 The Chairman of the Board. The Chairman of the Board, if there
be such an officer, shall have the following powers and duties:
(a) He or she shall preside at all shareholders' meetings;
(b) He or she shall preside at all meetings of the Board of Directors;
and
(c) He or she shall be a member of the executive committee, if any.
Section 4.08 The President. The president shall have the following powers
and duties:
(a) If no general manager has been appointed, he or she shall be the
chief executive officer of the corporation, and, subject to the direction
of the Board of Directors, shall have general charge of the business,
affairs, and property of the corporation and general supervision over its
officers, employees, and agents;
(b) If no chairman of the board has been chosen, or if such officer is
absent or disabled, he or she shall preside at meetings of the shareholders
and Board of Directors;
(c) He or she shall be a member of the executive committee, if any;
(d) He or she shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been authorized
by the Board of Directors; and
(e) He or she shall have all power and shall perform all duties
normally incident to the office of a president of a corporation, and shall
exercise such other powers and perform such other duties as from time to
time may be assigned to him or her by the Board of Directors.
Section 4.10 The Secretary. The secretary shall have the following powers
and duties:
(a) He or she shall keep or cause to be kept a record of all of the
proceedings of the meetings of the shareholders and of the Board of
Directors in books provided for that purpose;
(b) He or she shall cause all notices to be duly given in accordance
with the provisions of these Bylaws and as required by statute;
(c) He or she shall be the custodian of the records and of the seal of
the corporation, and shall cause such seal (or a facsimile thereof) to be
affixed to all certificates representing shares of the corporation prior to
the issuance thereof and to all instruments, the execution of which on
<PAGE>
behalf of the corporation under its seal shall have been duly
authorized in accordance with these Bylaws, and when so affixed, he or she
may attest the same;
(d) He or she shall assume responsibility that the books, reports,
statements, certificates, and other documents and records required by
statute are properly kept and filed;
(e) He or she shall have charge of the share books of the corporation
and cause the share transfer books to be kept in such manner as to show at
any time the amount of the shares of the corporation of each class issued
and outstanding, the manner in which and the time when such stock was paid
for, the names alphabetically arranged and the addresses of the holders of
record thereof, the number of shares held by each holder and time when each
became such holder or record; and he or she shall exhibit at all reasonable
times to any director, upon application, the original or duplicate share
register. He or she shall cause the share book referred to in Section 6.04
hereof to be kept and exhibited at the principal office of the corporation,
or at such other place as the Board of Directors shall determine, in the
manner and for the purposes provided in such Section;
(f) He or she shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been authorized
by the Board of Directors; and
(g) He or she shall perform in general all duties incident to the
office of secretary and such other duties as are given to him or her by
these Bylaws or as from time to time may be assigned to him or her by the
Board of Directors or the president.
Section 4.11 The Treasurer. The treasurer shall have the following powers
and duties:
(a) He or she shall have charge and supervision over and be
responsible for the monies, securities, receipts, and disbursements of the
corporation;
(b) He or she shall cause the monies and other valuable effects of the
corporation to be deposited in the name and to the credit of the
corporation in such banks or trust companies or with such banks or other
depositories as shall be selected in accordance with Section 5.03 hereof;
(c) He or she shall cause the monies of the corporation to be
disbursed by checks or drafts (signed as provided in Section 5.04 hereof)
drawn on the authorized depositories of the corporation, and cause to be
taken and preserved property vouchers for all monies disbursed;
(d) He or she shall render to the Board of Directors or the president,
whenever requested, a statement of the financial condition of the
corporation and of all of this transactions as
1
<PAGE>
treasurer, and render a full financial report at the annual meeting of
the shareholders, if called upon to do so;
(e) He or she shall cause to be kept correct books of account of all
the business and transactions of the corporation and exhibit such books to
any director on request during business hours;
(f) He or she shall be empowered from time to time to require from all
officers or agents of the corporation reports or statements given such
information as he or she may desire with respect to any and all financial
transactions of the corporation; and
(g) He or she shall perform in general all duties incident to the
office of treasurer and such other duties as are given to him or her by
these Bylaws or as from time to time may be assigned to him or her by the
Board of Directors or the president.
Section 4.12 General Manager. The Board of Directors may employ and appoint
a general manager who may, or may not, be one of the officers or directors of
the corporation. The general manager, if any, shall have the following powers
and duties;
(a) He or she shall be the chief executive officer of the corporation
and, subject to the directions of the Board of Directors, shall have
general charge of the business affairs and property of the corporation and
general supervision over its officers, employees, and agents;
(b) He or she shall be charged with the exclusive management of the
business of the corporation and of all of its dealings, but at all times be
subject to the control of the Board of Directors;
(c) Subject to the approval of the Board of Directors or the executive
committee, if any, he or she shall employ all employees of the corporation,
or delegate such employment to subordinate officers, and shall have
authority to discharge any person so employed; and
(d) He or she shall make a report to the president and directors as
often as required, setting forth the results of the operations under his or
her charge, together with suggestions looking toward improvement and
betterment of the condition of the corporation, and shall perform such
other duties as the Board of Directors may require.
Section 4.13 Salaries. The salaries and other compensation of the officers
of the corporation shall be fixed from time to time by the Board of Directors,
except that the Board of Directors may delegate to any person or group of
persons the power to fix the salaries or other compensation of any subordinate
officers or agents appointed in accordance with the provisions
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of Section 4.03 hereof. No officer shall be prevented from receiving any
such salary or compensation by reason of the fact that he or she is also a
director of the corporation.
Section 4.14 Surety Bonds. In case the Board of Directors shall so require,
any officer or agent of the corporation shall execute to the corporation a bond
in such sums and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful performance of his or her duties to the
corporation, including responsibility for negligence and for the accounting of
all property, monies, or securities of the corporation which may come into his
or her hands.
ARTICLE V
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
Section 5.01 Execution of Instruments. Subject to any limitation contained
in the Articles of Incorporation or these Bylaws, the president or any vice
president or the general manager, if any, may, in the name and on behalf of the
corporation, execute and deliver any contract or other instrument authorized in
writing by the Board of Directors. The Board of Directors may, subject to any
limitation contained in the Articles of Incorporation or in these Bylaws,
authorize in writing any officer or agent to execute and deliver any contract or
other instrument in the name and on behalf of the corporation; any such
authorization may be general or confined to specific instances.
Section 5.02 Loans. No loans or advances shall be contracted on behalf of
the corporation, no negotiable paper or other evidence of its obligation under
any loan or advance shall be issued in its name, and no property of the
corporation shall be mortgaged, pledged, hypothecated, transferred, or conveyed
as security for the payment of any loan, advance, indebtedness, or liability of
the corporation, unless and except as authorized by the Board of Directors. Any
such authorization may be general or confined to specific instances.
Section 5.03 Deposits. All monies of the corporation not otherwise employed
shall be deposited from time to time to its credit in such banks and or trust
companies or with such bankers or other depositories as the Board of Directors
may select, or as from time to time may be selected by any officer or agent
authorized to do so by the Board of Directors.
Section 5.04 Checks, Drafts, Etc. All notes, drafts, acceptances, checks,
endorsements, and, evidences of indebtedness of the corporation, subject to the
provisions of these Bylaws, shall be signed by such officer or officers or such
agent or agents of the corporation and in such manner as the Board of Directors
from time to time may determine. Endorsements for deposit to
the credit of the corporation in any of its duly authorized depositories
shall be in such manner as the Board of Directors from time to time may
determine.
Section 5.05 Bonds and Debentures. Every bond or debenture issued by the
corporation shall be evidenced by an appropriate instrument which shall be
signed by the president or vice president and by the secretary and sealed with
the seal of the corporation. The seal may be a facsimile, engraved or printed.
where such bond or debenture is authenticated with the manual signature of an
authorized officer of the corporation or other trustee designated by the
indenture of trust or other agreement under which such security is issued, the
signature of any of the corporation's officers named thereon may be a facsimile.
In case any officer who signed, or whose facsimile signature has been used on
any such bond or debenture, should cease to be an officer of the corporation for
any reason before the same has been delivered by the corporation, such bond or
debenture may nevertheless be adopted by the corporation and issued and
delivered as through the person who signed it or whose facsimile signature has
been used thereon had not ceased to be such officer.
Section 5.06 Sale, Transfer, Etc. of Securities. Sales, transfers,
endorsements, and assignments of stocks, bonds, and other securities owned by or
standing in the name of the Incorporation, and the execution and delivery on
behalf of the corporation of any and all instruments in writing incident to any
such sale, transfer, endorsement, or assignment, shall be effected by the
president, or by any vice president, together with the secretary, or by an
officer or agent thereunto authorized by the Board of Directors.
Section 5.07 Proxies. Proxies to vote with respect to shares of other
corporations owned by or standing in the name of the corporation shall be
executed and delivered on behalf of the corporation by the president or any vice
president and the secretary or assistant secretary of the corporation, or by any
officer or agent thereunder authorized by the Board of Directors.
ARTICLE VI
CAPITAL SHARES
Section 6.01 Share Certificates. Every holder of shares in the corporation
shall be entitled to have a certificate, signed by the president or any vice
president, and the secretary or assistant secretary, and sealed with the seal
(which may be a facsimile, engraved or printed) of the corporation, certifying
the number and kind, class or series of shares owned by him or her in the
corporation; provided, however, that where such a certificate is countersigned
by (a) a transfer agent or an assistant transfer agent, or (b) registered by a
registrar, the signature of any such president, vice president, secretary, or
assistant secretary may be a facsimile. In case any officer who shall have
signed, or whose facsimile signature or signatures shall have been used on any
such certificate, shall cease to be officer of the corporation, for any reason,
before the delivery of
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such certificate by the corporation, such certificate may nevertheless be
adopted by the corporation and be issued and delivered as though the person who
signed it, or whose facsimile signature or signatures shall have been used
thereon, has not ceased to be such officer. Certificates representing shares of
the corporation shall be in such form as provided by the statutes of the state
of incorporation. There shall be entered on the share books of the corporation
at the time of issuance of each share, the number of the certificate issued, the
name and address of the person owning the shares represented thereby, the number
and kind, class or series of such shares, and the date of issuance thereof.
Every certificate exchanged or returned to the corporation shall be marked
"Canceled" with the date of cancellation.
Section 6.02 Transfer of Shares. Transfers of shares of the corporation
shall be made on the books of the corporation by the holder of record thereof,
or by his or her attorney thereunto duly authorized by a power of attorney duly
executed in writing and filed with the secretary of the corporation or any of
its transfer agents, and on surrender of the certificate or certificates,
properly endorsed or accompanied by proper instruments or transfer, representing
such shares. Except as provided by law, the corporation and transfer agents and
registrars, if any, shall be entitled to treat the holder of record of any stock
as the absolute owner thereof for all purposes, and accordingly, shall not be
bound to recognize any legal, equitable, or other claim to or interest in such
shares on the part of any other person whether or not it or they shall have
express or other notice thereof.
Section 6.03 Regulations. Subject to the provisions of this Article VI and
of the Articles of Incorporation, the Board of Directors may make such rules and
regulations as they may deem expedient concerning the issuance, transfer,
redemption, and registration of certificates for shares of the corporation.
Section 6.04 Maintenance of Stock Ledger at Principal Place of Business. A
share book (or books where more than one kind, class, or series or stock is
outstanding) shall be kept at the principal place of business of the
corporation, or at such other place as the Board of Directors shall determine,
containing the names, alphabetically arranged, of original shareholders of the
corporation, their addresses, their interest, the amount paid on their shares,
and all transfers thereof and the number and class of shares held by each. Such
share books shall at all reasonable hours be subject to inspection by persons
entitled by law to inspect the same.
Section 6.05 Transfer Agents and Registrars. The Board of Directors may
appoint one or more transfer agents and one or more registrars with respect to
the certificates representing shares of the corporation, and may require all
such certificates to bear the signature of either or both. The Board of
Directors may from time to time define the respective duties of such transfer
agents and registrars. No certificate for shares shall be valid until
countersigned by a transfer agent, if at
the date appearing thereon the corporation had a transfer agent for such
shares, and until registered by a registrar, if at such date the corporation had
a registrar for such shares.
Section 6.06 Closing of Transfer Books and Fixing of Record Date.
(a) The Board of Directors shall have power to close the share books
of the corporation for a period of not to exceed fifty (50) days preceding
the date of any meeting of shareholders, or the date for payment of any
dividend, or the date for the allotment of rights, or capital shares shall
go into effect, or a date in connection with obtaining the consent of
shareholder for any purpose.
(b) In lieu of closing the share transfer books as aforesaid, the
Board of Directors may fix in advance a date, not exceeding fifty (50) days
preceding the date of any meeting of shareholders, or the date for the
payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital shares shall go
into effect, or a date in connection with obtaining any such consent, as a
record date for the determination of the shareholders entitled to a notice
of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment
of rights, or exercise the rights in respect of any such change, conversion
or exchange of capital stock, or to give such consent.
(c) If the share transfer books shall be closed or a record date set
for the purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall be closed for, or such
record date shall be, at least ten (10) days immediately preceding such
meeting.
Section 6.07 Lost or Destroyed Certificates. The corporation may issue a
new certificate for shares of the corporation in place of any certificate
theretofore issued by it, alleged to have been lost or destroyed, and the Board
of Directors may, in its discretion, require the owner of the lost or destroyed
certificate or his or her legal representatives, to give the corporation a bond
in such form and amount as the Board of Directors may direct, and with such
surety or sureties as may be satisfactory to the board, to indemnify the
corporation and its transfer agents and registrars, if any, against any claims
that may be made against it or any such transfer agent or registrar on account
of the issuance of such new certificate. A new certificate may be issued without
requiring any bond when, in the judgement of the Board of Directors, it is
proper to do so.
Section 6.08 No Limitation on Voting Rights; Limitation on Dissenter's
Rights. To the extent permissible under the applicable law of any jurisdiction
to which the corporation may become subject by reason of the conduct of
business, the ownership of assets, the residence of
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shareholders, the location of offices or facilities, or any other item, the
corporation elects not to be governed by the provisions of any statute that (i)
limits, restricts, modifies, suspends, terminates, or otherwise affects the
rights of any shareholder to cast one vote for each share of common stock
registered in the name of such shareholder on the books of the corporation,
without regard to whether such shares were acquired directly from the
corporation or from any other person and without regard to whether such
shareholder has the power to exercise or direct the exercise of voting power
over any specific fraction of the shares of the corporation or from any other
person and without regard to whether such shareholder has the power to exercise
or direct the exercise of voting power over any specific fraction of the shares
of common stock of the corporation issued and outstanding or (ii) grants to any
shareholder the right to have his or her stock redeemed or purchased by the
corporation or any other shareholder on the acquisition by any person or group
of persons of shares of the corporation.
ARTICLE VII
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 7.01 How Constituted. The Board of Directors may designate an
executive committee and such other committees as the Board of Directors may deem
appropriate, each of which committees shall consist of two or more directors.
Members of the executive committee and of any such other committees shall be
designated annually at the annual meeting of the Board of Directors; provided,
however, that at any time the Board of Directors may abolish or reconstitute the
executive committee or any other committee. Each member of the executive
committee and of any other committee shall hold office until his or her
successor shall have been designated or until his or her resignation or removal
in the manner provided in these Bylaws.
Section 7.02 Powers. During the intervals between meetings of the Board of
Directors, the executive committee shall have and may exercise all powers of the
Board of Directors in the management of the business and affairs of the
corporation, except for the power to fill vacancies in the Board of Directors or
to amend these Bylaws, and except for such powers as by law may not be delegated
by the Board of Directors to an executive committee.
Section 7.03 Proceedings. The executive committee, and such other
committees as may be designated hereunder by the Board of Directors, may fix its
own presiding and recording officer or officers, and may meet at such place or
places, at such time or times and on such notice (or without notice) as it shall
determine from time to time. It will keep a record of its proceedings and shall
report such proceedings to the Board of Directors at the meeting of the Board of
Directors next following.
Section 7.04 Quorum and Manner of Acting. At all meetings of the executive
committee, and of such other committees as may be designated hereunder by the
Board of Directors, the
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presence of members constituting a majority of the total authorized
membership of the committee shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the members
present at any meeting at which a quorum is present shall be the act of such
committee. The members of the executive committee, and of such other committees
as may be designated hereunder by the Board of Directors, shall act only as a
committee and the individual members thereof shall have not powers as such.
Section 7.05 Resignations. Any member of the executive committee, and of
such other committees as may be designated hereunder by the Board of Directors,
may resign at any time by delivering a written resignation to either the
president, the secretary, or assistant secretary, or to the presiding officer of
the committee of which he or she is a member, if any shall have been appointed
and shall be in office. Unless otherwise specified herein, such resignation
shall take effect on delivery.
Section 7.06 Removal. The Board of Directors may at any time remove any
member of the executive committee or of any other committee designated by it
hereunder either for or without cause.
Section 7.07 Vacancies. If any vacancies shall occur in the executive
committee or any other committee designated by the Board of Directors hereunder,
by reason of disqualification, death, resignation, removal, or otherwise, the
remaining members shall, until the filling of such vacancy, constitute the then
total authorized membership of the committee and, provided that two or more
members are remaining, continue to act. Such vacancy may be filled at any
meeting of the Board of Directors.
Section 7.07 Compensation. The Board of Directors may allow a fixed sum and
expenses of attendance to any member of the executive committee, or of any other
committee designated by it hereunder, who is not an active salaried employee of
the corporation for attendance at each meeting of said committee.
ARTICLE VIII
INDEMNIFICATION, INSURANCE, AND
OFFICER AND DIRECTOR CONTRACTS
Section 8.01 Indemnification: Third Party Actions. The corporation shall
have the power to 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 judgement in its favor by reason of
the fact that he or she 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 attorneys' fees) judgments, fines,
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with any such action, suit or proceeding, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her 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 he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, he or she had reasonable cause to believe that
his or her conduct was unlawful.
Section 8.02 Indemnification: Corporate Actions. The corporation shall have
the power to 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 or she 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 attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit, if he or she acted in good faith
and in a manner he or she 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 a person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the corporation, unless and only to the extent that the court
in which the action or suit was brought shall determine on application that,
despite the adjudication of liability but in view of all circumstances of the
case, the person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
Section 8.03 Determination. To the extent that a director, officer,
employee, or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in Sections
8.01 and 8.02 hereof, or in defense of any claim, issue, or matter therein, he
or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith. Any
other indemnification under Sections 8.01 and 8.02 hereof, shall be made to the
corporation upon a determination that indemnification of the officer, director,
employee, or agent is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 8.01 and 8.02 hereof. Such
determination shall be made either (i) by the Board of Directors by a majority
of a quorum consisting of directors who were not parties to such action, suit,
or proceeding; or (ii) by independent legal counsel on a written opinion; or
(iii) by the shareholders by a majority vote of a quorum of shareholders at any
meeting duly called for such purpose.
Section 8.04 General Indemnification. The indemnification provided by this
Section shall not be deemed exclusive of any other indemnification granted under
any provision of any statute, in the corporation's Articles of Incorporation,
these Bylaws, agreement, vote of shareholders 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, 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 the heirs and legal representatives of such a person.
Section 8.05 Advances. Expenses incurred in defending a civil or criminal
action, suit or proceeding as contemplated in this Section may be paid by the
corporation in advance of the final disposition of such action, suit, or
proceeding upon a majority vote of a quorum of the Board of Directors and upon
receipt of an undertaking by or on behalf of the director, officers, employee,
or agent to repay such amount or amounts unless if it is ultimately determined
that he or she is to be indemnified by the corporation as authorized by this
Section.
Section 8.06 Scope of Indemnification. The indemnification authorized by
this Section shall apply to all present and future directors, officers,
employees, and agents of the corporation and shall continue as to such persons
who cease to be directors, officers, employees, or agents of the corporation,
and shall inure to the benefit of the heirs, executors, and administrators of
all such persons and shall be in addition to all other indemnification permitted
by law.
8.07 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, 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 him
or her and incurred by him or her 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 him or her against any such liability and under the laws of the state
of incorporation, as the same may hereafter be amended or modified.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE X
DIVIDENDS
The Board of Directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and on the terms and
conditions provided by the Articles of Incorporation and these Bylaws.
ARTICLE XI
AMENDMENTS
All Bylaws of the corporation, whether adopted by the Board of Directors or
the shareholders, shall be subject to amendment, alteration, or repeal, and new
Bylaws may be made, except that;
(a) No Bylaws adopted or amended by the shareholders shall be altered
or repealed by the Board of Directors;
(b) No Bylaws shall be adopted by the Board of Directors which shall
require more than a majority of the voting shares for a quorum at a meeting
of shareholders, or more than a majority of the votes cast to constitute
action by the shareholders, except where higher percentages are required by
law; provided, however that (I) if any Bylaw regulating an impending
election of directors is adopted or amended or repealed by the Board of
Directors, there shall be set forth in the notice of the next meeting of
shareholders for the election of directors, the Bylaws so adopted or
amended or repealed, together with a concise statement of the changes made;
and (ii) no amendment, alteration or repeal of this Article XI shall be
made except by the shareholders.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that he or she is the secretary of
Amalgamated Entertainment, Inc., a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware; that the above
and foregoing bylaws of said corporation were duly and regularly adopted as
such by the Board of Directors of the corporation at a meeting of the board
of Directors, which was duly and regularly held on the ___ day of ________,
19__ and that the above and foregoing Bylaws are now in full force and
effect.
DATED this 15th day of May, 1996.
/s/ TRAVIS JENSON
Travis Jenson, Secretary
<PAGE>
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
ACE INVESTMENTS
WE, THE UNDERSIGNED, pursuant to the Utah Business Corporation Act, hereby
adopt the following Articles of Amendment as a revision of the Articles of
Incorporation of Ace Investments.
ARTICLE I
The name of the Corporation is Ace Investments.
ARTICLE II
The duration of the corporation is perpetual.
ARTICLE III
The following amendments to the Articles of Incorporation were approved by
the shareholders:
Article I of the Articles of Incorporation of this Corporation is amended
so that it will read in its entirety as follows:
The name of this Corporation is Matlock Communications Companies, Inc.
Article IV of the Articles of Incorporation of this Corporation is amended
so that it will read in its entirety as follows:
The aggregate number of shares which this corporation shall have
authority to issue is ONE HUNDRED MILLION (100,000,000) shares of
$0.001 par value common stock. All stock of the corporation shall have
the same rights and preferences. Fully paid stock of the corporation
shall not be liable to any further call or assessment.
<PAGE>
ARTICLE IV
The amendments set forth in Article III were adopted August 27, 1986.
ARTICLE V
The number of shares issued and outstanding and entitled to vote on said
amendments on August 27, 1986 was 11,250,000.
ARTICLE VI
7,657,500 shares voted for said amendments, and 0 shares voted against said
amendments.
DATED this 27th day of August, !986.
ACE INVESTMENTS
/S/ STEPHEN J. MATLOCK
President
/S/ MELANIE R. MATLOCK
Secretary
STATE OF UTAH
SS.
COUNTY OF SALT LAKE
I, THE UNDERSIGNED, a Notary Public, hereby certify that on the 27th day of
August, 1986, Stephen J. Matlock and Melanie R. Matlock personally appeared
before me, who, being by me first sworn, severally declared that they are the
persons who signed the foregoing document as corporate officers and that the
statements therein contained are true.
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<PAGE>
DATED this 27th day of August, 1986.
NOTARY PUBLIC
Residing at: Salt Lake County
My Commission Expires:
Oct. 15, 1988
- 3 -
<PAGE>
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
MATLOCK COMMUNICATIONS COMPANIES, INC.
WE, THE UNDERSIGNED, pursuant to the Utah Business Corporation Act, hereby
adopt the following Articles of Amendment as a revision of the Articles of
Incorporation of Matlock Communications Companies, Inc.
ARTICLE I
The name of the Corporation is Matlock Communications Companies, Inc.
ARTICLE II
The duration of the Corporation is perpetual.
ARTICLE III
The following amendments to the Articles of Incorporation were approved by
the shareholders:
Article I of the Articles of Incorporation is proposed to be amended so
that it will read in its entirety as follows:
ARTICLE I
NAME
The name of this corporation is Persimmon Corporation.
ARTICLE IV
CAPITALIZATION
The total number of shares of all classes of capital stock which this
Corporation shall have authority to issue is ONE HUNDRED TEN MILLION
(110,000,000@ shares of par value stock; TEN MILLION (10,000,000) shares of
$0.001 (One-Tenth Cent) par value to be preferred shares and ONE HUNDRED MILLION
(100,000,000) shares of $0.015 par value be common shares. All or any part of
the shares of the preferred or common stock
<PAGE>
may be issued by the Corporation from time to time and for such
consideration as may be determined and fixed by the Board of Directors, as
provided by law, with due regard to the interest of the existing shareholders;
and when such consideration has been received by the Corporation, such shares
shall be deemed fully paid and non-assessable.
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article, to provide for the issuance of the
shares of preferred stock in series, and by filing a certificate pursuant to the
applicable law of the State of Utah, to establish from time to time the number
of shares to be included in each such series, and to fix the designations,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each such series shall include,
but not be limited to, determination of the following:
(a)The number of shares constituting that series and the distinctive
designation of that series;
(b)The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares
of that series;
(c)Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d)Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
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(e)Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series,and, if so, theterms and amount of
such sinking fund;
(g)The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series; and
(h) Any other relative rights, preferences and limitations of that
series. Article XII is proposed to be added to the Articles of
Incorporation, such Article to read in its entirety as follows:
ARTICLE XII
LIMITATION ON DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii-) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 16-10-44 of the Utah Business Corporation Act, or (iv)
for any transaction from which the director derived any improper
personal benefit. If the Utah Business Corporation Act is amended
after approval by the stockholders of this Article to authorize
corporate action further eliminating or limiting the personal
liability of directors,
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then the liability of a director of the Corporation shall be
eliminated to the fullest extent permitted by the Utah Business
Corporation Act, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of
such repeal or modification.
ARTICLE IV
The amendments set forth in Article III were adopted day 16, 1989.
ARTICLE V
The number of shares issued and outstanding and entitled to vote on said
amendments on May 16, 1989 was 13,730,168.
ARTICLE VI
shares voted for the said amendments to Articles 1, IV and Xlll and 0
shares voted against said amendments.
EXECUTED this 16th day of May, 1989 under penalty of perjury.
MATLOCK COMMUNICATIONS COMPANIES, INC.
By:
/S/ Richard H. Nordlund, President
By:
/S/ Gregory Stuart, Secretary
4
<PAGE>
CERTIFICATE OF INCORPORATION
of
AMALGAMATED ENTERTAINMENT, INC.
The undersigned, a natural person, for the Purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
1. NAME. The name of the corporation is Amalgamated Entertainment, Inc,
2. ADDRESS: REGISTERED AGENT. The address of the Corporation's registered
office in the State of Delaware is 32 Loockerman Square, L-100, City of Dover
19901, County of Kent, State of Delaware; and its registered agent at such
address is The Prentice-Hall Corporation System, Inc.
3. PURPOSES. The nature of the business and purposes to be conducted or
Promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware,
4. NUMBER OF SHARES. The total number of shares of stock which the
Corporation shall have authority to issue is: Twenty Six Million (26,000,000),
of which Twenty Five Million (25,000,000) shall be shares of Common Stock of the
par value of one cent ($.01) per share (the "Common Stock"), and One Million
(1,000,000) shall be shares of Preferred Stock of the par value of One Cent
($.01) per share (the "Preferred Stock").
a)Common Stock.
(i) Dividends The holders of Common Stock shall be entitled to
receive dividends, to the extant permitted under the General
Corporation Law of the State of Delaware, when and as declared by the
Board of Directors.
1
<PAGE>
(ii) Voting. The holders of shares of common Stock shall be
entitled to one vote for each such share held. Except as otherwise
provided in the Certificate of incorporation or By-laws, or as
required by law, the holders of all shares of Common Stock entitled to
vote shall vote together as a single class on all matters submitted to
a vote of the stockholders.
(b)Preferred-stock. The shares of Preferred Stock may be issued
from time to time in one or more series of any number of shares,
provided that the aggregate number of shares issued and not canceled
of any and all such series shall not exceed the total number of shares
of Preferred stock herainabove authorized, and with distinctive serial
designations, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such shares of
Preferred Stock from time to time adopted by the Board of Directors
pursuant to the authority to do so which is hereby vested in the Board
of Directors. Subject to any applicable law, the shares of Preferred
Stock shall have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative,
participating, optional or other special rights I and qualifications,
limitations or restrictions, and shall be issued in such numbers, as
shall be stated in said resolution or resolutions, providing for the
issue of such shares of Preferred Stock, adopted by the Board of
Directors pursuant to the authority hereinabove vested therein.
5. NAME AND ADDRESS OF INCORPORATOR. The name and mailing address of the
Incorporator are: Herbert H. Sommer, Esq., 600 Old Country Road, Suite 535,
Garden City, New York 11530.
6. ELECTION OF DIRECTORS. Members of the Board of Directors may be elected
either by written ballot or by voice vote.
7. PERPETUAL EXISTENCE. The corporation is to have perpetual existence.
8. COMPROMISE OR ARRANGMENT. Whenever a compromise or arrangement is
proposed between this corporation and its creditors or any class of them and/or
between this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State Of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder
<PAGE>
thereof or on the application of any receiver or receivers appointed for
this corporation under the provisions of S 291 of Title 8 of the Delaware code
or on the application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of 5 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of the corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the came may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
9. MANAGEMENT. For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
(a)The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of directors
need be by written ballot,
(b)After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of S 109 of the General Corporation Law of the
<PAGE>
State of Delaware, and, after the corporation has received any payment
for any of its stock, the power to adopt, amend, or repeal the Bylaws of
the corporation provided, however, that any provision for the
classification of directors of the corporation for staggered terms pursuant
to the provisions of subsection (d) of 1 141 of the General Corporation Law
of the State of Delaware shall be set forth in an initial Bylaw or in a
Bylaw adopted by the stockholders entitled to vote of the corporation
unless provisions for such classification shall be set forth in this
certificate of incorporation.
(c)Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions paragraph (2) of subsection (b) of S 242 of the General
Corporation Law of the State of Delaware shall otherwise require; provided,
that no share of any such class which is otherwise denied voting power
shall entitle the holder thereof to vote upon the increase or decrease in
the number of authorized shares of said class.
10. PERSONAL LIABILITY OF DIRECTORS. The Personal liability Of the
directors of the corporation is hereby eliminated to the fullest extent
permitted by the provisions of paragraph (7) of subsection (b) of S 102 of the
General Corporation of the State of Delaware, as the same may be amended and
supplemented.
11. INDEMNIFICATION. The corporation shall, to the fullest extent permitted
by the provisions of S 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have 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, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under the Bylaw, 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 an to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
12. ADOPTION, AMENDMENT AND/OR REPEAL OF BYLAWS. The Board of Directors may
from time to time (after adoption by the undersigned of the original by-laws of
the Corporation) make, alter or
<PAGE>
repeal the by-laws of the Corporation; provided, that any by-laws made,
amended or repealed by the Board of Directors may be amended or repealed, and
any by-laws may be made, by the stockholders of the Corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this 19th day of
December, 1991.
/S/ HERBERT H. SOMER
<PAGE>
ARTICLES OF MERGER OF
PERSIMMON CORPORATION:
a Utah Corporation into
AMALGAMATED ENTERTAINMENT, INC.
a Delaware Corporation
Pursuant to the provisions of Section 16-10-72 of the Utah Business
Corporation Act, Persimmon Corporation, a Utah Corporation (hereafter the "Utah
Corporation") , and Amalgamated Entertainment, Inc., a Delaware Corporation
(hereafter "Surviving Corporation" or the "Delaware Corporation") , adopt the
following Articles of Merger for the purpose of merging the Utah Corporation
into the Delaware Corporation.
W I T N E S S E T H
I
PLAN OF MERGER
Pursuant to these Articles of Merger, it is intended and agreed that the
Utah Corporation will be merged into the Delaware Corporation and the Delaware
Corporation shall be the Surviving Corporation. The name of the Surviving
Corporation shall be Amalgamated Entertainment, Inc. The terms, conditions, and
understandings of the merger are set forth in the Plan and Agreement of Merger
between the Delaware Corporation and the Utah Corporation, dated as of December
23, 1991, a copy of which is attached hereto as Exhibit "A" and incorporated
herein by this reference. The sole purpose of such merger is to change the
domicile of the Utah corporation to the State of Delaware.
II
ARTICLES OF INCORPORATION AND BYLAWS
On the consummation of the merger, the Articles of Incorporation and Bylaws
of the Surviving Corporation shall be the Articles of Incorporation and Bylaws
of the Delaware Corporation.
III
AUTHORIZED AND OUTSTANDING SHARES OF THE UTAH CORPORATION
The Utah Corporation has 100, 000, 000 shares of $.015 par value voting
common stock, authorized, of which 915,333 are issued and outstanding. Each of
the common shares is entitled to one vote. The Utah Corporation has 10,000,000
shares of $.001 par value preferred stock, authorized, none of which are issued
or outstanding.
IV
AUTHORIZED AND OUTSTANDING SHARES OF THE DELAWARE
CORPORATION
The Delaware Corporation has 24,000,000 shares of $.01 par value common
stock, authorized, of which 10,000 shares are issued and outstanding. Each share
is entitled to one vote. The Delaware Corporation has 1,000,000 shares of $.01
par value common stock, authorized, none of which are issued or outstanding.
V
APPROVAL BY SHAREHOLDERS OF THE UTAH CORPORATION
Of the 915,333 issued and outstanding shares of the Utah Corporation
entitled to vote on the Plan and Agreement of Merger, a total of ________ of
such shares were voted in favor of entering into the Plan and Agreement of
Merger, with shares of common stock of the Utah Corporation dissenting. This
represents a majority in interest of the issued and outstanding shares of common
stock. Such shares were voted individually and not as a class.
VI
APPROVAL BY SHAREHOLDERS OF THE DELAWARE
CORPORATION
All 10,000 shares of common stock of the Delaware Corporation were voted in
favor of entering into the Plan and Agreement of Merger with no shares of common
stock of the Delaware Corporation dissenting. Such shares were voted
individually and not as a class.
VII
UNDERTAKINGS OF THE DELAWARE CORPORATION
A. The Delaware Corporation hereby agrees that it may be served with
process in the State of Utah in any proceeding for the enforcement of any
obligation of the Utah Corporation and in any proceeding for the enforcement of
the rights of any dissenting shareholder of the Utah Corporation against the
Delaware Corporation.
B. The Delaware Corporation hereby irrevocably appoints the Secretary of
State of the State of Utah its agent to accept service of process in any
proceeding referred to in paragraph "All above.
C. The Delaware Corporation will promptly pay to the dissenting
shareholders of the Utah Corporation, the amount, if any, to which they shall be
entitled under the provisions of the Utah Business Corporation Act with regard
to the rights of dissenting shareholders.
IN WITNESS WHEREOF, the undersigned corporations, acting by their
respective presidents and secretaries, have executed these Articles of Merger on
the 27th day of January, 1992
Attest: AMALGAMATED ENTERTAINMENT, INC.
a Delaware corporation
By /S/ Gregory A. Stuart By /S/ Richard H. Nordlund
Secretary President
Attest:
PERSIMMON CORPORATION
a Utah corporation
By /S/ Gregory A. Stuart By /S/ Richard H. Nordlund
Secretary President
State of Utah )
) ss
County of Salt Lake )
On the 27th day of January, 1992, personally appeared before me, a Notary
Public, Richard H. Nordlund and Gregory A. Stuart, the president and secretary
respectively of Persimmon Corporation, a Utah corporation, and the president and
secretary respectively of Amalgamated Entertainment, Inc., a Delaware
corporation, who duly acknowledged to me that they executed these Articles of
Merger.
/S/ A. O. Headman
Notary Public
Residing: /S/ Salt Lake County
3
<PAGE>
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
AMALGAMATED ENTERTAINMENT, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Amalgamated Entertainment, Inc.
2. The certificate of incorporation of the Corporation is hereby
amended by adopting the following amendment authorized by directors'
resolution and the written consent of the majority shareholder of the
Corporation whom owns 3,000,000 of the 5,999,288 shares of outstanding
common stock of the Corporation.
RESOLVED, that the Company effect a revenge split of its
outstanding voting securities on a basis of 1 for 30, effective as of
the date of filing with the State of Delware, while retaining the
current authorized capital and par value, with appropriate adjustments
in the stated capital accounts and capital surplus accounts; provided,
however, that no stockholder, computed on a per stockholder of record
basis on the effective date, currently owning 100 or more shares shall
be reduced to less than 100 shares as a result of the reverse split
and that no stockholder owning less than 100 shares, on the per
stockholder of record basis on the effective date hereof, shall be
affected by the reverse split; such additional shares required to
provide the minimum of 100 shares shall be conveyed to the Company by
the consenting majority shareholder; and provided, further, that all
fractional shares shall be rounded up to the nearest whole share, and
that these shares for rounding to the nearest whole share, and that
these shares for rounding to the nearest whole share shall be provided
by the Corporation, as stated below, the reverse split will become
effective as of the filing date of the Articles of Amendment with the
state of Delaware; and
3. The amendment of the certificate of incorporation herein certified
have been duly adopted in accordance with provisions of Section 228
and 242 of the General Corporation Law of the State of Delaware.
The effective time of the amendments herein certified shall be the
date of filing with Secretary of State of the State of Delaware.
Signed on /S/ 4-1-99 /S/ JAMES P. DOOLIN
James P. Doolin
President and Director
<PAGE>
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