SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
JANUARY 25, 2000
Date of Report
(Date of Earliest Event Reported)
INTECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-28437 95-4702570
--------------- ----------- --------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
321 NORTH MALL DRIVE, SUITE K-102, ST. GEORGE, UT 84790
(Address of principal executive offices)
(435) 656-3677
(Registrant's telephone number)
JETCO, INC.
860 VIA DE LA PAZ, SUITE E-1, PACIFIC PALISADES, CA 90272
(Former name and former address)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
(a) On January 25, 2000, Jetco, Inc. ("Jetco" or the "Registrant"), a
Delaware Corporation, entered into a Merger Agreement (the "Merger Agreement")
with AmeriStar Corp. ("AmStar"), a Nevada corporation. Pursuant to the terms of
the Merger Agreement, and subject to the conditions set forth therein (including
approval of the transactions by the stockholders), AmStar will be merged with
and into Jetco (the "Merger"). The Merger was effective as of January 25, 2000.
The separate existence of AmStar ceased. Jetco is the surviving corporation, the
name of which was changed to "InTechnologies, Inc."
As of January 25, 2000, 25,000,000 shares of Registrant's common stock were
issued and outstanding. 23,750,000 common shares are held by the shareholders of
AmStar and 1,250,000 common shares are held by the existing shareholders of
Jetco.
The Merger Agreement was adopted by the unanimous consent of the Board of
Directors and shareholders of Registrant on January 25, 2000. The Merger
Agreement was adopted by the unanimous consent of the Board of Directors and
shareholders of AmStar on January 25, 2000.
The sole consideration transferred by the AmStar Shareholders for shares of
Registrant's common stock was the exchange of their respective AmStar shares.
On the effective date of the Merger, the officers and director of Jetco, Inc.
resigned and new officers and directors of Registrant were elected. (See Item 2,
Acquisition or Disposition of Assets - "Management" below.)
AmStar is a newly formed company. It will attempt to acquire interests in
businesses that develop and distribute information technology products and
services to the federal, state and local governments and industrial firms in
North America. AmStar has executed agreements with an investor to borrow up to
$65 million for these purposes. These agreements require the conversion of all
or portions of the debt into Registrant's shares, provided certain terms and
conditions are met. These agreements are binding upon Registrant.
A copy of the Merger Agreement is filed as an exhibit to this Form 8-K and is
incorporated herein in its entirety. The description of each exhibit contained
in this report is modified by such reference.
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(b) The following table contains information regarding the shareholdings of
Registrant's current directors and executive officers and those persons or
entities who have the right to vote or direct the vote or beneficially own more
than 5% of the Registrant's common stock or rights to acquire common stock:
Percent Of
Amount of Common Common Stock
Stock Beneficially Beneficially Owned
Owned or Right to Or Right to
Name Direct vote Direct Vote (1)
- ----------------- ----------------- ------------------
O. Russell Crandall, Jr. 500,000 (2)(3) 2.0%
William M. Noe 500,000 (3) 2.0%
S. Allen Selby 125,000 (3) *
James F. Walters 280,710 (3)(4) 1.1%
James R. Herbert 500,000 (3)(5) 2.0%
John H. Dunmar 125,000 (3) *
Gregory J. Layton 125,000 (3) *
Tracy Gnagy 500,000 (3) 2.0%
Hartley J. Chazen 250,000 (3) 1.0%
AmeriStar Network, Inc. 12,000,000 (6)(2) 48.0%
* less than 1%
- ------------------------
(1) Based upon 25,000,000 outstanding shares of common stock.
(2) Shares held by Oscar Russell Crandall, Jr. Family Trust, of which Mr.
Crandall is a trustee. Mr. Crandall disclaims beneficial ownership of any
of said shares. Does not include 12,000,000 shares owned by AmeriStar
Network, Inc., of which Mr. Crandall is chief executive officer and
chairman (see note (6) below).
(3) The officers and directors of AmStar purchased shares of the AmStar stock
at its par value. The consideration paid in each case was nominal.
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(4) Includes 22,918 shares of common stock held by PageOne Business
Productions, LLC ("PageOne"), a Delaware limited liability company, of
which Mr. Walters is a managing member and which has entered into a
consulting agreement with Registrant (see Exhibit 10.1). Includes 2,792
shares previously owned by Mr. Walters and 250,000 shares received in
exchange for his shares in AmStar, per footnote (3) above. Does not include
879,583 shares held by AppleTree Investment Company, Ltd. ("AppleTree"), a
European investment group domiciled in the Isle of Man. AppleTree is owned
by an Isle of Man trust. AppleTree owns approximately 60% of PageOne.
PageOne and Mr. Walters disclaim beneficial ownership of any of said
shares.
(5) Does not include 12,000,000 shares owned by AmeriStar Network, Inc.
("AMWK"), of which Mr. Herbert is a director (see note (6) below).
(6) AmeriStar Network, Inc. received 12,000,000 shares of common stock in
return for the assignment of a loan commitment from a private investor
dated August 5, 1999 (see pp 3-5). Subsequently, portions of this agreement
were modified by negotiation between AmStar and the investor. (The final
agreement is annexed hereto as Exhibit 10.2).
O. Russell Crandall, Jr., the Chairman and Chief Executive Officer of
Registrant, is also the Chairman and Chief Executive Officer of AMWK. In
addition, James R. Herbert, a Senior Vice President and Director of
Registrant is also Senior Vice President and a member of the Board of
Directors of AMWK. As a result of the interrelated board memberships, AMWK
has the indirect ownership of a majority of the outstanding shares of
Registrant and can elect all of the directors of Registrant. Therefore, the
possibility exists that conflicts of interest may arise (see Risk Factors
in Item 2).
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
The Registrant intends to continue the business development formerly undertaken
by AmeriStar Corp., a Nevada corporation ("AmStar").
Business
- --------
Registrant is seeking to acquire businesses or interests therein that develop
and distribute information technology products and services to federal, state
and local governments and industrial firms in North America. Registrant expects
to initially fund its activities through funds derived from a private investor.
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AmStar executed agreements with an investor to borrow up to $65 million. All or
portions of this debt are required to be converted into shares of the
Registrant, provided certain terms and conditions are met, the principal one of
which relates to the market price of Registrant's stock on the maturity date of
each debt advance.
A copy of the Loan Agreement and Subscription Agreement are filed as exhibits to
this Form 8-K (Exhibits 10.2 and 10.3, respectively) and are incorporated herein
in their entirety. The description of each exhibit contained in this report is
modified by such reference.
Registrant intends to make investments in early stage companies that have
developed computer, communication and Internet technologies that can be
distributed through businesses in which Registrant holds an interest or can
benefit from the expertise of Registrant's management or the management of one
of such acquired businesses. Senior executives of Registrant have identified a
number of companies which have developed cutting edge technologies in the fields
of computer and telephone technologies, although no discussions are now underway
with any of them. The identity of these target businesses has been approved by
the investor.
Up to $65 million of the financing for Registrant's intended acquisitions,
investments and working capital may be obtained from a Florida resident. The
entire amount of the loan is dependent upon the happening of certain conditions.
The loan agreement requires the advance to Registrant of $3.5 million upon
either (a) Registrant's common stock closing at a price of at least $5.00 per
share on at least 20 days out of 30 days with an average trading volume of at
least 15,000 shares per day, or (b) when Registrant has agreements with at least
three companies approved by the investor with the only remaining condition to
closing with such companies being the actual advance to Registrant of $3.5
million.
Subsequent to this first advance, the loan agreement provides for three closings
in the amount of $10,500,000 each and, then, three closings each in the amount
of $10,000,000 scheduled in sequence. Each closing is subject to the daily
closing market price of Registrant's common stock being at least $5.00 per share
and trading at an average volume of at least 15,000 shares per day for at least
20 out of the preceding 30 days. The individual loans funded in this manner bear
interest at the rate of 6% per annum (18% per annum after maturity) and each is
for a term of one year.
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Simultaneously with the execution of the loan agreement, the investor subscribed
to shares of Registrant's common stock. Under the subscription agreement, the
investor is required to purchase 5,000,000 shares at a price of $7.00 per share
and 3,000,000 shares at a price of $10.00 per share, for an aggregate investment
of $65 million. As each loan is closed (after the first loan), the investor is
obligated to deliver to Registrant the note received by the investor at the
preceding loan closing. Therefore, in order to obtain cancellation of the loans
made to Registrant and receive the Registrant's shares to which the investor
subscribed, Registrant's common stock must continue to trade at a price of $5.00
per share with an average trading volume of at least 15,000 shares for at least
20 out of 30 days between each loan closing. In the event the closing price of
Registrant's common stock does not reach $5.00 for the required period of time
prior to the maturity of an outstanding loan (approximately one year),
Registrant would be required to pay such outstanding loan. In such case, it is
not likely that Registrant will have sufficient funds with which to meet the
obligation, resulting in Registrant being forced to sell assets at below market
prices or allow the loan obligation to go into default. (See Risk Factors.)
Management
- ----------
Upon completion of the merger, the officers and directors of AmStar became the
officers and directors of Registrant. The management of Registrant consists of:
Name Position
- ---- --------
O. Russell Crandall, Jr. Chairman, Chief Executive Officer
William M. Noe Director, President and Chief Operating Officer
S. Allen Selby Executive Vice President
James F. Walters Director, Senior Vice President -- Finance,
Treasurer and Chief Financial Officer
James R. Herbert Director, Senior Vice President -- Acquisitions
John H. Dunmar Vice President -- Marketing
Gregory J. Layton Vice President -- Business Development
Tracy Gnagy Vice President -- Administration
Hartley J. Chazen Secretary
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O. RUSSELL CRANDALL, JR. is the Chairman of the Board and Chief Executive
Officer of Registrant. Mr. Crandall is also founder, President and CEO of
Registrant's affiliate, AmeriStar Network, Inc. In that capacity, Mr. Crandall
secured financing for the Company by issuing common stock to the public in an
offering under Section 504 promulgated by the Securities & Exchange Commission.
He also negotiated the acquisition of CVS Technologies, Inc., the licensing of
the Vlender.com Wholesale Lending Center (an Internet network of mortgage
lenders) and the funding for a business development affiliate in the amount of
$65 million.
Prior to founding AmStar, Mr. Crandall was the co-founder, Executive Vice
President and author of the Business Plan for CompuLoan Financial Services
Group, a nationwide mortgage broker based in Salt Lake City, and Executive Vice
President of CompuLoan Originators, Inc., a computer loan origination company.
He was responsible for the development of the software system and general
management of the business. He developed participating mortgage lender lists in
excess of 65 lenders and was responsible for RESPA compliance. Mr. Crandall has
served as Corporate Secretary and Board Member of Preferred Employee Benefit
Association, a third party administration company for health insurance benefits.
Mr. Crandall attended Boise State College and the University of Utah and has his
Utah Real Estate Certification.
WILLIAM M. NOE is the President and Chief Operating Officer of Registrant and a
member of the Board. Based in New York City, Mr. Noe has 35 years' experience in
real estate development and venture capital finance. He founded Asset
Development Corporation in 1974 and serves as Chief Executive Officer of this
company, which provides financial consulting services to new business ventures
and real estate developments. Asset Development Corporation is currently
financial advisor to the Board of Directors of three public companies and two
private companies.
Since 1997 to present, Mr. Noe has also served as Chairman of Caribbean Building
Systems Ltd., a construction company based in the West Indies. Commencing in
August 1999, Mr. Noe became the Managing Director of Techtanica Enterprises, a
building materials company based in Canada, and the Chief Financial Officer of
Interactive Entertainment Development, Inc., an Internet portal and content
development company. Mr. Noe was Chief Financial Officer of Dynamatic
Corporation during 1995, and Vice President of Finance of Maxwell Dynamometer
Systems Inc. from 1991 to 1995. During 1989 he served as Executive Vice
President of MicroComputer Publishing Center Inc., and from 1986 to 1987 he was
the Director of Communications for Kidder, Peabody & Co., Inc., a member firm of
the New York Stock Exchange. Mr. Noe holds an M.B.A. (Finance) from the Harvard
Business School and a B.A. (Economics) from the University of Southern
California.
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S. ALLEN SELBY is the Executive Vice President of Registrant. Since 1990, Mr.
Selby has been principal of his own consulting business specializing in the
acquisition of private companies and their operational reorganization and
marketing repositioning. A graduate of Yale University with a degree in
Engineering, Mr. Selby joined Radio Shack upon graduation designing high
fidelity equipment. After a decade in the consumer electronics business, during
which time he represented such innovative products as Neumann Microphones, Dolby
B, Braun Audio, Dahlquist and Bose loudspeakers and companies such as Harman
Kardon and Citation Electronics and designed and built major audio facilities
for the film industry, Mr. Selby rejoined Radio Shack and became Merchandise
Manager responsible for $370 million in sales of audio equipment.
In 1980, Mr. Selby was recruited by Columbia Broadcasting Company, Inc. as Vice
President of Advertising and Merchandising of Pacific Stereo, a 115-store chain
with revenues from hi-fi and video products of $175 million. Promoted to Vice
President - Technical Development, developing product for CBS video games, and
then Corporate Vice President, he was involved in asset acquisitions and
dispositions and business development for all divisions of CBS worldwide. From
1985 to 1988, Mr. Selby was the Vice President for Marketing of Buffton
Corporation, where his primary responsibility was the acquisition of businesses
to complement Buffton's core business activities in computer cable assemblies.
From 1988 to 1990, he was Executive Vice President - Corporate Development for
Brinkman Corporation, responsible for all acquisition activities, which resulted
in seven acquisitions and bids for such well-known brands as Thermos and Genie.
JAMES F. WALTERS served as the Senior Vice President - Finance, Treasurer
and Chief Financial Officer of AmStar since December 1999 and is a member of the
Board of Directors. Mr. Walters joined Kellogg & Andelson as an accountant in
1976, was elected a partner in 1980, was promoted to Managing Partner in 1984
and elected Chairman of the Board of Kellogg & Andelson Accountancy Corporation
in 1995. As Chairman, Mr. Walters is currently responsible for the overall
management of the 80-person firm. Mr. Walters has assisted the firm's clients in
connection with the preparation of their initial public offerings, private
finance, merger, acquisition and restructuring strategies. He continues to be an
active consultant in the many phases of client business operations, such as
operational control systems, general management and capital funding, servicing
middle market companies in many different industries, including aerospace, mail
order, entertainment, high tech, retail, import/export, graphic design, business
management, plastics and publishing.
Mr. Walters previously served as a member of the Board of Directors of Kistler
Aerospace, a manufacturer of reusable rockets that deliver satellites into
orbit, and was instrumental in the initial financing of that company. He also
serves as a member of the Board of directors of California Fitnuts, Inc., a
start-up company that produces, through a patented process, nuts that have 50%
less fat. In addition, Mr. Walters has founded, owned and managed companies in
the commercial photography, corporate events, auto repair and concrete molding
industries. Mr. Walters received an M.B.A. degree from Pepperdine University in
1981 and a B.S. degree in Accounting from California State University,
Northridge, in 1976.
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Mr. Walters devotes part of his time to the Registrant and the balance to his
other responsibilities. Mr. Walters intends to execute an employment agreement
which will be filed as an exhibit by amendment to this Report on Form 8-K.
JAMES R. HERBERT is Senior Vice President - Acquisitions of AmStar and a member
of the Board of Directors. Mr. Herbert has more than thirty years of experience
in real estate development and financing activities. He was a founder and
principal of CVS Technologies, Inc. and negotiated its acquisition by the
Company. Mr. Herbert is a principal in STS Power pedal and World Power Bike,
Inc., a company which holds the exclusive world rights to a new scientifically
proven crank system for pedaling bicycles, exercise stationary bicycles and
physiotherapy bicycles. He is also co-principal of Venture Holdings, Inc., a
venture capital consulting company, and was a major shareholder and Director of
Sedona Industries, Ltd., a Canadian public company listed on the Toronto Stock
Exchange, until that company's exclusive rights to proprietary technology
allowing fresh, crisp french fries to be dispensed by vending machines were sold
four years ago.
During the 1980s, Mr. Herbert was a real estate developer active in Arizona (a
947-acre development in Cave Creek, Arizona) and Texas (a 1,500-acre
development, including a Tom Fazio-designed 18-hole championship golf course, a
destination resort hotel and conference center, residential lots and townhouses,
that was built-out and sold off by 1988). During the 1970s, Mr. Herbert formed
Mather Oil & Gas, Inc. with Mather Corporation, with each holding a 50% interest
in the venture. This company raised $30 million through the Vancouver Stock
Market and was one of the most successful oil and gas programs underwritten in
Canada. Mr. Herbert holds a certification as AACI (Appraisal Institute of
Canada) from the University of British Columbia.
JOHN H. DUNMAR is Vice President - Marketing for AmStar. From 1992 to August
1999 Mr. Dunmar has served as Vice President and Director of Account Services of
Coe & Co. Inc., an advertising consulting company, where he was responsible for
providing project management and consulting services to various market-driven
businesses. During the same period, Mr. Dunmar founded and served as principal
of The Dunmar Consulting Group, which also provides project management and
consulting services. Prior thereto, he served as Executive Vice President and
Director of Client Services for W. Pfaff Inc. from 1989 to 1992.
From 1979 to 1988, Mr. Dunmar served as Senior Vice President and Management
Supervisor, and subsequently as Senior Vice President and Director of Business
Development at Saatchi & Saatchi Worldwide Inc. From 1970 to 1980 he worked in
various capacities at J. Walter Thompson Co., finishing as Vice President and
Management Supervisor. Mr. Dunmar holds an M.B.A. from American Graduate School
of International Management and a B.S. in Engineering from the University of
California Los Angeles.
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GREGORY J. LAYTON is AmStar's Vice President - Business Development. Mr. Layton
has a wide and varied background in successfully managing, growing and turning
around companies both private and public. Mr. Layton's experience includes
preparing companies for mergers, acquisitions and public offerings. From 1997 to
the present, Mr. Layton has been a consultant to several companies in high-tech
industries and is a syndicated partner with Boles, Knop & Company, investment
bankers specializing in high-tech mergers and acquisitions.
In 1996 and 1997, Mr. Layton was engaged by Sysorex Information Systems, Inc., a
$150 million PC systems integrator to restructure its business. As vice
President Sales and Marketing, he developed and implemented a new Strategic
Plan, rebuilt the company's sales staff and web site. Within seven months, the
company won over $2 billion in contracts and Mr. Layton engineered the sale of
the company in 1997 for over $46 million to VANSTAR, a $2.5 billion computer
company. In 1994 until he joined Sysorex, Mr. Layton was Vice President Business
Development for government Technology Magazine, a nation periodical and
conference organizer for the state and local government information technology
market. He restructured the company for more efficient expansion, established
the corporate offices in Washington, D.C. and led the company's efforts to
develop marketing strategies for such major computer companies as IBM, EDS,
Oracle, Xerox, Compaq, Bay Networks, BTG and GTSI to address the state and local
government markets.
From 1992 until 1994, Mr. Layton was the Executive Vice President of Maxwell
Dynamometers, Inc. He co-authored a business plan for the company to take
advantage of the newly enacted EPA Clean Air Act by designing vehicle emissions
testing equipment for the EPA-mandated program and was instrumental in raising
$1.5 million in venture capital funding for the company. In addition, Mr. Layton
was responsible for sales of the old product line, as well as the new emissions
testing equipment. In 1983, Mr. Layton was a founding executive of Government
Technology Services, Inc. (GTSI) and a key member of the executive team which
grew the business from a start-up company with four employees to over $400
million with 500 employees. He held several positions at the Vice President
level, including VP Marketing, VP Sales, VP Business Development and VP
Marketing Communications, and was directly responsible for the company's Federal
Government GSA contract which grew to over $140 million under his supervision.
He had a primary role in preparing the company for its successful public
offering in 1991 and retired shortly thereafter.
TRACY GNAGY is the Vice President - Administration for AmStar. With an extensive
educational and business background in accounting, Ms. Gnagy is co-founder of
CVS Technologies, Inc. and co-principal of Venture Holdings, Inc. For nearly two
decades, Ms. Gnagy has been the accountant for Mather Oil & Gas, Inc., Mather
Corporation, Texacan Investments, Inc., Venture Holdings, Inc. and Venture
Properties, Ltd. In addition to being the Chief Administrative Officer of the
Company, Ms. Gnagy is also President of S.C.R.E Development Corporation,
developer of a successful subdivision, consisting of 40 2.5-acre lots, known as
Saddle Club Ranch Estates.
HARTLEY J. CHAZEN is Registrant's secretary. Mr. Chazen has practiced corporate
and securities law for more than 30 years. He is Of Counsel to McLaughlin &
Stern, LLP, New York City, which acts as Registrant's general counsel.
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RISK FACTORS RELATED TO THE MARKET FOR REGISTRANT'S SECURITIES
NO CURRENT TRADING MARKET FOR THE COMPANY'S SECURITIES. There is currently no
established public trading market for the securities of the Company. The Company
intends to apply for admission to quotation of its securities on the NASD OTC
Bulletin Board and, if and when qualified, it intends to apply for admission to
quotation on the NASDAQ SmallCap Market. There can be no assurance that an
active or regular trading market for the common stock will develop or that, if
developed, will be sustained. Various factors, such as the Company's operating
results, changes in laws, rules or regulations, general market fluctuations,
changes in financial estimates by securities analysts and other factors may have
a significant impact on the market price of the Company's securities. The market
price for the securities of public companies often experience wide fluctuations
which are not necessarily related to the operating performance of such public
companies such as high interest rates or impact of overseas markets.
PENNY STOCK REGULATION. Upon commencement of trading in the Company's stock, if
such occurs (of which there can be no assurance) the Company's common stock may
be deemed a penny stock. Penny stocks generally are equity securities with a
price of less than $5.00 per share other than securities registered on certain
national securities exchanges or quoted on the NASDAQ Stock Market, provided
that current price and volume information with respect to transactions in such
securities is provided by the exchange or system. The Company's securities may
be subject to "penny stock rules" that impose additional sales practice
requirements on broker-dealers who sell such securities to persons other than
established customers and accredited investors (generally those with assets in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together
with their spouse). For transactions covered by these rules, the broker-dealer
must make a special suitability determination for the purchase of such
securities and have received the purchaser's written consent to the transaction
prior to the purchase. Additionally, for any transaction involving a penny
stock, unless exempt, the "penny stock rules" require the delivery, prior to the
transaction, of a disclosure schedule prescribed by the Commission relating to
the penny stock market. The broker-dealer also must disclose the commissions
payable to both the broker-dealer and the registered representative and current
quotations for the securities. Finally, monthly statement must be sent
disclosing recent price information on the limited market in penny stocks.
Consequently, the "penny stock rules" may restrict the ability of broker-dealers
to sell the Company's securities. The foregoing required penny stock
restrictions will not apply to the Company's securities if such securities
maintain a market price of $5.00 or greater. There can be no assurance that the
price of the Company's securities will reach or maintain such a level.
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PRESENT FUNDING ARRANGEMENTS
As earlier described (see discussion on pages 3-5), the Registrant entered
into an agreement with a Florida investor for the loan of a maximum of $65
million. The initial advance ($3.5 million) is for one year and depends on
either the existence of a stable market for the Registrant's shares (trading for
15 days during any 20 trading days for $5.00 per share at volumes of at least
15,000 shares) or the completion of negotiations and entrance into definitive
contracts for the acquisition of or investment in three companies having
information technology businesses, upon terms acceptable to the investor.
Further advances are to be made if Registrant's shares maintain a market price
and duration described above. Each loan advance is for one year. At the maturity
of each advance, the loan is to be converted into shares of Registrant's stock
(at a predetermined price per share), if, but only if, the market price for such
shares is in excess of $5.00 per share, which market has been maintained for the
periods and in the trading depth described above. As a result, Registrant is now
entirely dependent upon not only the development of a market for its shares, but
a trading market of the foregoing character and extent. It is possible, for
example, for Registrant to have received initial and some subsequent fundings,
all of which were used to acquire target companies or interests therein. Those
shares or interests would be illiquid. If one or more of the target companies
does poorly, the market price of Registrant's stock might become adversely
impacted. Since each advance is due in one year, unless the market price of
Registrant's stock is at or above $5.00 per share for a period of time and in an
average trading volume as described above, the debt will not be exchanged for
common stock, and the Registrant may be in default of its obligation. Under
those circumstances, unless the Registrant obtained further financing or sold
its interests in one or more of its investments or holdings, the holder of the
debt could foreclose, with the result that the other stockholders may suffer a
loss of all of their investment.
MARKET PRICE MAY BE ADVERSELY AFFECTED BY EXISTING CONTRACT ARRANGEMENTS.
The former holders of Registrant's stock will have the right to sell their
shares during the first year subsequent to the merger date. In addition, the
subscription agreement pursuant to which the Florida investor is required to
exchange Registrant's shares for matured debt borrowed from the investor
provides for the registration of such shares upon the happening of certain
events, including the investor's demand. Even if a substantial trading market
for Registrant's common stock develops, the mere existence of these shares as
potential additions to the supply of shares at any time may adversely affect
both the market price of the shares or the ability to attract a sufficient
number of investors to maintain the market price and trading range and volume
necessary to require the conversion of the investor's debt into Registrant's
common stock.
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THE CONCENTRATED OWNERSHIP OF REGISTRANT'S SHARES MAY RESULT IN CONFLICTS OF
INTEREST TO REGISTRANT'S POSSIBLE DETRIMENT
As indicated below ("Ownership of Registrant is Concentrated," page 15), a
separate corporation, AmeriStar Network, Inc. ("AMWK"), a company engaged in the
mortgage business, indirectly controls a majority of Registrant's outstanding
shares. As a result of its control, it may cause Registrant to take or fail to
take certain corporate actions which may be beneficial to AMWK but
disadvantageous to Registrant. In addition, the person who is advancing funds to
Registrant will own more than one-third of Registrant's outstanding shares
(after all $65 million of debt has been exchanged for shares of Registrant's
common stock). As Registrant's primary (and, now, only) lender and as a major
shareholder, the investor may have an influence on Registrant not necessarily
shared by other stockholders. For example, the investor might strongly suggest
investment in or purchase or other acquisition of companies in which he or
others associated with him have an interest. It would be the responsibility of
Registrant's Board of Directors to determine whether such a relationship exists,
and if it does, whether the proposed transaction is on terms and conditions
advantageous to Registrant.
FACTORS THAT MAY AFFECT FUTURE RESULTS
The Company operates in a rapidly changing environment that involves a
number of risks, some of which are beyond Registrant's control. Forward- looking
statements in this document and those made from time to time by the Company
through its senior management are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Forward- looking
statements concerning the expected future revenues or earnings or concerning
projected plans, performance, product development, product release or product
shipment, as well as other estimates related to future operations are
necessarily only estimates of future results and there can be no assurance that
actual results will not materially differ from expectations.
Factors that could cause actual results to differ materially from results
anticipated in forward-looking statements include, but are not limited to, the
following:
REGISTRANT MAY NOT HAVE OPERATING INCOME OR NET INCOME IN THE FUTURE.
REGISTRANT MAY INCUR SIGNIFICANT COSTS TO AVOID INVESTMENT COMPANY STATUS AND
MAY SUFFER ADVERSE CONSEQUENCES IF DEEMED TO BE AN INVESTMENT COMPANY.
Registrant may incur significant costs to avoid investment company status
and may suffer other adverse consequences if deemed to be an investment company
under the Investment Company Act of 1940. Some equity investments in other
businesses made by Registrant (directly or through its venture subsidiaries may
constitute investment securities under the 1940 Act. A company may be deemed to
be an investment company if it owns investment securities with a value exceeding
40% of its total assets, subject to certain exclusions. Investment companies are
12
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subject to registration under, and compliance with, the 1940 Act unless a
particular exclusion or SEC safe harbor applies. If Registrant were to be deemed
an investment company, it would become subject to the requirements of the 1940
Act. As a consequence, Registrant would be prohibited from engaging in business
or issuing its securities as it has in the past and might be subject to civil
and criminal penalties for noncompliance. In addition, certain of Registrant's
contracts might be voidable, and a court-appointed receiver could take control
of Registrant and liquidate its business.
Although it is now intended that Registrant's investment securities will
comprise less than 40% of its assets, fluctuations in the value of these
securities or of Registrant other assets may cause this limit to be exceeded.
This would require Registrant to attempt to reduce its investment securities as
a percentage of its total assets. This reduction can be attempted in a number of
ways, including the disposition of investment securities and the acquisition of
non-investment security assets. If Registrant sells investment securities, it
may sell them sooner than it otherwise would. These sales may be at depressed
prices and Registrant may never realize anticipated benefits from, or may incur
losses on, these investments. Some investments may not be sold due to
contractual or legal restrictions or the inability to locate a suitable buyer.
Moreover, Registrant may incur tax liabilities when it sells assets. Registrant
may also be unable to purchase additional investment securities that may be
important to its operating strategy. If Registrant decides to acquire
non-investment security assets, it may not be able to identify and acquire
suitable assets and businesses.
REGISTRANT DEPENDS ON CERTAIN IMPORTANT EMPLOYEES, AND THE LOSS OF ANY OF THOSE
EMPLOYEES MAY HARM REGISTRANT'S BUSINESS.
The loss of the services of any of Registrant's executive officers or key
employees may harm its business. Registrant's success also depends on its
continuing ability to attract, train, and motivate other highly qualified
technical and managerial personnel.
REGISTRANT'S STRATEGY OF EXPANDING ITS BUSINESS THROUGH ACQUISITIONS OF OTHER
BUSINESSES AND TECHNOLOGIES PRESENTS SPECIAL RISKS.
Registrant intends to continue to expand through the acquisition of
businesses, technologies, products, and services from other businesses.
Acquisitions involve a number of special problems, including:
. difficulty integrating acquired technologies, operations, and
personnel with the existing business;
. diversion of management attention in connection with both negotiating
the acquisitions and integrating the assets;
. strain on managerial and operational resources as management tries to
oversee larger operations;
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. exposure to unforeseen liabilities of acquired companies;
. potential issuance of securities in connection with the acquisition
which securities lessen the rights of holders of REGISTRANT's
currently outstanding securities;
. the need to incur additional debt;
. the requirement to record additional future operating costs for the
amortization of goodwill and other intangible assets, which amounts
could be significant.
Registrant may not be able to successfully address these problems.
Moreover, Registrant's future operating results will depend to a significant
degree on its ability to successfully manage growth and integrate acquisitions.
In addition, many of Registrant's investments may be in early-stage companies
with limited operating histories and limited or no revenues. Registrant may not
be able to successfully develop these young companies.
REGISTRANT IS SUBJECT TO INTENSE COMPETITION.
The market for information technology products and services is highly
competitive. Moreover, the market for Internet products and services lacks
significant barriers to entry, enabling new businesses to enter this market
relatively easily. Competition in the market for Information Technology products
and services may intensify in the future. Numerous well-established companies
and smaller entrepreneurial companies are focusing significant resources on
developing and marketing products and services that will compete with
Registrant's products and services. In addition, many of Registrant's current
and potential competitors have greater financial, technical, operational, and
marketing resources. Registrant may not be able to compete successfully against
these competitors in selling its goods and services. Competitive pressures may
also force prices for Information Technology goods and services down and such
price reductions may reduce Registrant's revenues.
REGISTRANT'S STRATEGY OF SELLING ASSETS OF OR INVESTMENTS IN THE COMPANIES THAT
REGISTRANT HAS ACQUIRED AND DEVELOPED PRESENTS RISKS.
An element of Registrant's business plan involves selling, in public or
private offerings, the companies or portions of the companies that it has
acquired and developed (while retaining those which have been successfully
integrated into its core information technology business). Market and other
conditions largely beyond Registrant's control affect Registrant's ability to
engage in such sales; the timing of such sales; and the amount of proceeds from
such sales.
As a result, Registrant may not be able to sell some of these assets. In
addition, even if Registrant is able to sell, it may not be able to sell at
favorable prices. If Registrant is unable to sell these assets at favorable
prices, its business will be harmed.
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OWNERSHIP OF REGISTRANT IS CONCENTRATED.
AmeriStar Networks, Inc. beneficially owned 48% of Registrant's outstanding
common stock and has indirect control over an additional 4% through
interconnected boards of directors as of January 25, 2000. As a result, AMWK
possesses significant influence over Registrant on matters including the
election of directors. Additionally, a private investor owned approximately 32%
as of January 25, 2000. The concentration of Registrant's share ownership may:
delay or prevent a change in control of Registrant; impede a merger,
consolidation, takeover, or other business involving Registrant; or discourage a
potential acquiror from making a tender offer or otherwise attempting to obtain
control of Registrant.
ITEM 5. OTHER EVENTS
On January 25, 2000, Jetco received and accepted the resignations of George
Todt as President and Director and Mary Elizabeth Rowbottom as Secretary. On the
same date, the officers and directors of AmStar were designated to serve in
their same capacities for the Registrant until the next annual meeting of
stockholders and until their respective successors are elected and qualified or
until their prior resignation or termination.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Business Acquired.
It is impracticable to provide the required financial statements for the
acquired business referred to in Item 2 above. The registrant intends to file
such financial statements as soon as practicable but not later than 60 days
after the report on Form 8-K must be filed with respect to such acquisition.
(b) Pro forma Financial Information.
Not applicable.
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(c) Exhibits.
There is attached hereto the following exhibits:
Exhibit
No. Description
- ------- -----------
2.1 Agreement of Merger by and between Jetco, Inc. and AmeriStar
Corporation dated January 25, 2000.
3.(i) Certificate of Incorporation of Registrant (Amended and Restated)
3.(ii) Bylaws of Registrant (Amended and Restated)
10.1 Consulting Agreement between PageOne Business Productions LLC and
Registrant dated January 25, 2000
10.2 Loan Agreement dated January 12, 2000
10.3 Subscription Agreement dated January 12, 2000
99.1 Press Release issued by Jetco, Inc. on January 27, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
InTechnologies, Inc.
By /s/ William M. Noe
-------------------
President
Date: February 9, 2000
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EXHIBIT INDEX
2.1 Agreement of Merger by and between JETCO, INC. and Ameristar
Corporation dated January 25, 2000.
3.(i) Certificate of Incorporation of Registrant (Amended and Restated)
3.(ii) Bylaws of Registrant (Amended and Restated)
10.1 Consulting Agreement between PageOne Business Productions LLC and
Registrant dated January 25, 2000
10.2 Loan Agreement dated January 12, 2000
10.3 Subscription Agreement dated January 12, 2000
99.1 Press Release issued by JETCO, INC. on January 27, 2000.
18
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER ("this Agreement") made and
entered into this 25th day of January, 2000, by and between JETCO, INC., herein
sometimes referred to as "Jetco" or the "Surviving Corporation", a Delaware
corporation, and AMERISTAR CORP., herein sometimes referred to as "Amstar" or
the "Disappearing Corporation", a Nevada corporation.
WHEREAS:
A. Jetco and Amstar (together sometimes referred to as the
"Constituent Corporations"), desire to merger pursuant to the
applicable statutes of the States of Delaware and Nevada, in
accordance with the terms and conditions hereinafter set forth.
The Constituent Corporations also desire that this be a
reorganization free of tax and be governed by Section 368 (a) (1)
(A) of the Internal Revenue Code.
B. Jetco is duly organized and existing under the General
Corporation Law of the State of Delaware, having been
incorporated on April 27, 1998.
C. Amstar is duly organized and existing under the laws of the State
of Nevada, having been incorporated on October 27, 1999.
D. Jetco has an authorized capital stock consisting of 8,000,000
shares of preferred stock of the par value of $0.001 per share
(the "Jetco Preferred"), of which none of the shares have been
issued, and 100,000,000 shares of common stock of the par value
of $0.001 per share (the "Jetco Stock"), of which 1,250,000
shares are now issued and outstanding.
E. Amstar has an authorized capital stock consisting of 10,000
shares of common stock of the par value of $0.01 per share (the
"Amstar stock"), of which 9,500 are now issued and outstanding.
NOW, THEREFORE, the Constituent Corporations do hereby agree each with the other
that Amstar be merged into Jetco as the Surviving Corporation, pursuant to the
applicable states of the States of Delaware and Nevada, subject to the following
terms and conditions:
1. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. On the merger
date, as that term is defined in Paragraph 18 below, the Certificate of
Incorporation of Jetco, Inc., amended and restated in its entirety in the
form set forth in Exhibit "A" hereto (which restatement shall become
effective only upon consummation of the Merger) shall be the Articles of
Incorporation of the Surviving Corporation. As set forth in the Certificate
of Incorporation of the Surviving Corporation, the name of the Surviving
Corporation shall be "InTec, Inc."
2. BYLAWS OF THE SURVIVING CORPORATION: The Bylaws of Jetco in force on the
Merger Date shall be the Bylaws of the Surviving Corporation until altered,
amended or repealed.
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3. DIRECTORS OF THE SURVIVING CORPORATION: Until changed, the number of
persons who shall constitute the Board of Directors of the Surviving
Corporation shall be five. The names and address of the persons who shall
be directors of the Surviving Corporation on and after the Merger Date are:
Name Address
---
O. Russell Crandall, Jr. 203 South 1430 West
Hurricane, UT 84737
William M. Noe 138 East 94th Street
New York, NY 10128
James R. Herbert 5612 Wickersham Lane
Houston, TX 77056
James F. Walters 14724 Ventura Blvd., 2nd Fl.
Sherman Oaks, CA 91403
David M. Barrett 8521 Warde Terrace
Potomac, MD 20854
Each of the aforesaid shall hold such office until the Jetco annual meeting
of the shareholders of the Surviving Corporation and until their respective
successors shall have been duly elected and qualified.
4. OFFICERS OF THE SURVIVING CORPORATION. On the Merger Date, the following
persons shall be the officers of the Surviving Corporation , whose names and
address are set forth below:
Name Office Address
- ---- ------ -------
O. Russell Crandall, Jr. Chief Executive Officer 203 South 1430 West
Hurricane, UT 84737
William M. Noe President 138 East 94th Street
New York, NY 10128
S. Allen Selby Executive Vice President 1525 Merrimac Circle
Ft. Worth, TX 76107
James F. Walters Senior Vice President - 14724 Ventura Blvd.,
Finance, Treasurer 2nd Fl.
Sherman Oaks, CA 91403
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James R. Herbert Senior Vice President - 5612 Wickersham Lane
Acquisitions Houston, TX 77056
John H. Dunmar Vice President - 1586 First Avenue
Marketing New York, NY 10028
Gregory J. Layton Vice President - Business 2950 Chichester Lane
Development Fairfax, VA 22031
Tracy Gnagy Vice President - 21 Rippling Creek Drive
Administration Sugar Land, TX 77479
Hartley J. Chazen Secretary 65 Perkins Road
Greenwich, CT 08630
Each of the aforesaid shall hold the office set forth after his or her
respective name until a successor shall be elected or appointed in the manner
provided by the Surviving Corporation's Bylaws.
5. Conversion of shares of the Constituent Corporations. The manner of
converting shares of the Constituent Corporations into shares of the Surviving
Corporation shall be as follows:
(A) Each share of the Jetco Stock issued and outstanding on the
Merger Date shall continue to be one share of Jetco Stock.
(B) Each share of the Amstar Stock issued and outstanding on the
Merger Date shall, without any action by the holders there, be changed
and converted into 2,500 Jetco Shares; provided, however, that no
fractional shares of the Surviving Corporation shall be issued. In
lieu thereof, the Surviving Corporation shall round-up fractional
shares to the next highest number.
(C) All outstanding warrants, option and all other outstanding
rights to purchase shares of Amstar Stock shall be adjusted, pursuant
to the terms contained in such option, warrant or other rights
documents, for conversion to warrants, options or rights to purchase
stock of the Surviving Corporation on the same ratio as provided
herein for holders of the Amstar Stock.
(D) The number of Jetco Shares to be issued in exchange for
shares of the Amstar Stock hereunder shall be proportionately reduced
by any shares owned by Amstar shareholders who shall have timely
objected to the merger (the "Dissenting Shares") in accordance with
the provisions of the laws of Nevada, which objections will be dealt
with as provided in those sections.
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(E) On the Merger Date, the capital of the Surviving Corporation
shall be an amount equal to the aggregate par value of all of the
issued shares of capital stock of the Surviving Corporation, after
giving effect to the terms and provisions of this Agreement. Each
certificate evidencing ownership of shares of Jetco Stock issued and
outstanding on the Merger Date, or held by the Surviving Corporation
in its treasury shall continue to evidence ownership of the same
number of shares of Jetco Stock.
6. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger Date,
each holder of an outstanding certificate or certificates theretofore
representing Amstar Stock (other than certificates representing Dissenting
Shares) shall surrender such certificate(s) for cancellation to the party
designated by the Surviving Corporation to handle such exchange (the
"Exchange Agent"), and shall receive in exchange a certificate or
certificates representing the number of full shares of the Jetco Stock into
which the shares of the Amstar Stock represented by the certificate or
certificates so surrendered shall have been converted.
7. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding certificate
that prior to the Merger Date represented the Amstar Stock (other than
certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Amstar Stock into which it
was converted. No dividend or other distribution payable to holders of the
Surviving Corporation common stock as of any date subsequent to the Merger
Date shall be paid to the holders of outstanding certificates of the Amstar
Stock; provided, however, that upon surrender and exchange of such
outstanding certificates (other than certificates representing Dissenting
Shares), there shall be paid to the record holders of the certificates
issued in exchange therefor the amount, without interest thereon, of
dividends and other distributions that would have been payable subsequent
to the Merger Date with respect to the shares of Jetco Stock represented
thereby.
8. EFFECT OF THE MERGER. On the Merger Date, the separate existence of the
Disappearing Corporation shall cease (except insofar as continued by
statute), and it shall be merged with and into the Surviving Corporation.
All the property, real, personal, and mixed, of each of the Constituent
Corporations, and all debts due to either of them, shall be transferred to
and vested in the Surviving Corporation, without further act or deed. The
Surviving Corporation shall thenceforth be responsible and liable for all
the liabilities and obligations, including liabilities to holders of
Dissenting Shares, of each of the Constituent Corporations, and any claim
or judgment against either of the Constituent Corporations may be enforced
against the Surviving Corporation.
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9. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such
shareholders called for that purpose or by written consent pursuant to the
laws applicable thereto. There shall be required for the adoption of this
Agreement the affirmative vote of the holders of at least a majority of the
holders of all the shares of the common stock issued and outstanding and
entitled to vote for each of the Constituent Corporations.
10. Representations and Warranties of Jetco. Jetco represents and warrants to
Amstar that:
(A) Corporate Organization and Good Standing. Jetco is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification. Jetco does
not have any subsidiaries nor any direct or indirect interest in any
corporation, firm or unincorporated association. (
B) Capitalization. Jetco's authorized capital stock consists of
8,000,000 shares of preferred stock, $0.001 par value, of which none
of the shares have been issued, and 100,000,000 shares of common
stock, $.001 par value, of which 1,250,000 shares are issued and
outstanding.
(C) Issued Stock. All the outstanding shares of the Jetco Stock
are duly authorized and validly issued, fully paid and nonassessable.
(D) Corporate Authority. Jetco has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
(E) Authorization. Execution of this Agreement has been duly
authorized and approved by Jetco's board of directors.
(F) Financial Statements. Jetco's balance sheet and the related
statements of income and retained earnings for and as at the periods
ended August 31, 1999, and December 31, 1999 (the "Jetco Financial
Statements"), audited by Weinberg & Co., PA (Jetco's accountant),
annexed hereto as Exhibit B fairly present the financial condition of
Jetco as of the dates thereof and the results of operations for the
periods then ended all conformity with generally accepted accounting
principles consistently applied.
(G) Title. Jetco has good and marketable title to all the real
property and good and valid title to all other property included in
the Jetco Financial Statements. Except as set out in the balance
sheets thereof, the properties of Jetco are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances
that do not materially interfere with the use of the property in the
conduct of the business of Jetco
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(H) Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved in the Jetco Financial Statements, Jetco did not
have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) or any liability or obligation for taxes,
federal, state or foreign.
(I) No Material Changes. There has been no material adverse
change in the business, properties, or condition, financial or
otherwise, of Jetco since the date of the Jetco Financial Statements.
(J) Litigation. There is not, to the knowledge of Jetco, any
pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or
contemplated against Jetco or against any of its officers.
(K) Contracts. Except for a one-year employment agreement between
Jetco and James F. Walters (the "Walters Agreement") for his services
as the chief financial officer of the surviving corporation, Jetco is
not a party to any contract that is to be performed in whole or in
part at or after the date of this Agreement.
(L) Tax Returns. All federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such
amounts, have been properly prepared and filed by Jetco for all years
to and including the taxable year ending December 31, 1998. The
provisions for federal and state taxes reflected in the Jetco
Financial Statements are adequate to cover any such taxes that may be
assessed against Jetco in respect of its business and its operations
during the periods covered by the Jetco Financial Statements and all
prior periods.
(M) No Violation. Consummation of the merger will not constitute
or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Jetco is
subject or by which Jetco is bound.
(N) Reporting Company. Jetco has filed with the Securities and
Exchange Commission ("SEC") a registration statement on Form 10 which
was became effective pursuant to the Securities Exchange Act of 1934
and is a reporting company pursuant to ss.12 thereunder.
(O) Reporting Company Status. Jetco has timely filed and is
current on all reports required to be filed by it pursuant to ss.12(g)
of the Securities Exchange Act of 1934, and until the Merger Date,
shall continue to file all such reports when each shall become due.
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11. REPRESENTATIONS AND WARRANTIES OF AMSTAR. Amstar represents and warrants to
Jetco that:
(A) Corporate Organization and Good Standing. Amstar is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada and is qualified to do business
as a foreign corporation in each jurisdiction, if any, in which its
property or business requires such qualification. Amstar has no
subsidiaries, nor any direct or indirect interest in any other
corporation, firm or other unincorporated entity.
(B) Capitalization. Amstar's authorized capital stock consists of
10,000 shares of common stock, $0.01 par value, of which 9,500 shares
are issued and outstanding.
(C) Stock Rights. Except as set forth in Exhibit C hereto, there
are no stock grants, options, rights, warrants or other rights to
purchase or obtain shares of the Amstar Stock issued or committed to
be issued.
(D) Issued Stock. All the outstanding shares of Amstar Stock were
duly authorized and are validly issued, fully paid and non-assessable.
(E) Corporate Authority. Amstar has all requisite corporate power
and authority to own, operate and lease its properties, to carry on
its business as it is now being conducted and to execute, deliver,
perform and conclude the transactions contemplated by this Agreement
and all other agreements and instruments related to this Agreement.
(F) Authorization. Execution of this Agreement has been duly
authorized and approved by Amstar's board of directors.
(G) Financial Statement. Amstar has not conducted any business
activities except to issue shares of the Amstar Stock and to enter
into a Loan Agreement and a Subscription Agreement with [Investor]
(the "[Investor] Agreements"), true copies of which has been delivered
to Jetco. Within thirty (30) days of the Merger Date, Amstar will have
prepared audited financial statements as at and for the period
December 31, 1999 (the "Amstar Financial Statement"). The Amstar
Financial Statement will fairly present the financial condition of
Amstar as of December 31, 1999 and the results of its operations for
the periods then ended all in conformity with generally accepted
accounting principles consistently applied.
(H) Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved against in the Amstar Financial Statement,
Amstar did not have at that date any liabilities or obligations
(secured, unsecured, contingent, or otherwise) of a nature customarily
reflected in a corporate balance sheet prepared in accordance with
generally accepted accounting principles.
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(I) No Material Changes. There has been no material adverse
change in the business, properties, or financial condition of Amstar
since the date of the Amstar Financial Statement.
(J) Litigation. There is not, to the knowledge of Amstar, any
pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or
contemplated against Amstar or against any of its officers.
(K) Contracts. Except for the [Investor] Agreements, Amstar is
not a party to any material contract not in the ordinary course of
business that is to be performed in whole or in part at or after the
date of this Agreement.
(L) Title. Amstar has good and marketable title to all the real
property and good and valid title to all other property included in
the Amstar Financial Statement. Except as set out in the balance sheet
thereof, the properties of Amstar are not subject to any mortgage,
encumbrance, or lien of any kind except as disclosed in the Amstar
Financial Statement.
(M) Tax Returns. Amstar has not filed and is now not required to
file any federal, state or local tax returns. The provisions for
federal and state taxes reflected in the Amstar Financial Statement
will be adequate to cover all such taxes that may be assessed against
Amstar in respect of its business and its operations during the period
covered by the Amstar Financial Statement and all prior periods.
(N) No Violation. Consummation of the merger will not constitute
or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Amstar
is subject or by which Amstar is bound.
12. Binding Nature of Certain Contracts. Jetco and Amstar agree that the
[Investor] Agreements and the Walters Agreement shall survive the merger
and shall be carried out by the Surviving Corporation in accordance with
the terms and tenor of each said contract.
13. Conduct of Jetco Pending the Merger Date. Jetco covenants and agrees with
Amstar that between the date of this Agreement and the Merger Date:
(A) No change will be made in Jetco's articles of incorporation
or bylaws.
(B) Jetco will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital
stock other than as provided herein.
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(C) Jetco will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and
will use its best efforts to obtain the requisite shareholder
approval.
(D) Jetco will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact,
and will not enter into any material commitment except in the ordinary
course of its business which commitment can be canceled without
penalty on not more than 30 days' notice.
14. Conduct of Amstar Pending the Merger Date Amstar covenants to and agrees
with Jetco that between the date of this Agreement and the Merger Date:
(A) No change will be made in Amstar's certificate of
incorporation or bylaws.
(B) Amstar will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital
stock otherwise than as provided herein.
(C) Amstar will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and
will use its best efforts to obtain the requisite shareholder
approval.
(D) Amstar will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact,
and will not enter into any material commitment except in the ordinary
course of business.
15. CONDITIONS PRECEDENT TO OBLIGATION OF JETCO. Jetco's obligation to
consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing
by Jetco:
(A) Amstar's Representations and Warranties. The representations
and warranties of Amstar set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby.
(B) Amstar's Covenants. Amstar shall have performed all covenants
required by this Agreement to be performed by it on or before the
Merger Date.
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(C) Shareholder Approval. This Agreement shall have been approved
by the required number of shareholders of Jetco.
(D) Amstar Financial Statements. Amstar shall have delivered the
Amstar Financial Statements.
(E) Supporting Documents of Amstar. Amstar shall have delivered
to Jetco supporting documents in form and substance satisfactory to
Jetco, to the effect that:
(i) Amstar is a corporation duly organized, validly
existing, and in good standing;
(ii) Amstar's authorized and issued capital stock is as set
forth herein; and
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by Amstar's board of directors.
16. CONDITIONS PRECEDENT TO OBLIGATION OF AMSTAR. Amstar's obligation to
consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing
by Amstar:
(A) Jetco's Representations and Warranties. The representations
and warranties of Jetco set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby and shall be applicable
to the Jetco's financial statements referred to in subparagraph (C)
hereof.
(A) Jetco's Covenants. Jetco shall have performed all covenants
and agreements required by this Agreement to be performed by it on or
before the Merger Date.
(B) Shareholder Approval. This Agreement shall have been approved
by the required number of shareholders of Amstar.
(C) Financial Statements; SEC Reports. Jetco shall have delivered
to Amstar:
(i) the financial statements of Jetco as at and for the
period ended December 31, 1999, certified by Jetco's accountants;
and
(ii) a true copy of each report filed or required to be
filed by Jetco with the SEC.
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(D) Supporting Documents of Jetco. Jetco shall have delivered to
Amstar supporting documents in form and substance satisfactory to
Amstar to the effect that:
(i) Jetco is a corporation duly organized, validly existing,
and in good standing;
(ii) Jetco's authorized and issued capital stock is as set
forth herein; and
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by Jetco's board of directors.
17. ACCESS. From the date hereof to the Merger Date, Amstar and Jetco shall
provide each other with such information and permit each other's officers
and representatives such access to its properties and books and records as
the other may from time to time reasonably request. If the merger is not
consummated, all documents received in connection with this Agreement shall
be returned to the party furnishing such documents, and all information so
received shall be treated as confidential.
18. MERGER DATE. The Merger shall become effective (the "Merger Date") on
January 25, 2000.
19. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver
of the terms and conditions herein.
20. CLOSING. The transfers and deliveries to be made pursuant to this Agreement
(the "Closing") shall be made by and take place at the offices of the
Exchange Agent or such place agreed upon by Jetco and Amstar without
requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall
be deemed taken nor documents deemed executed or delivered until all have
been taken, delivered and executed.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission required by this Agreement or any signature required
thereon may be used in lieu of an original writing or transmission or signature
for any and all purposes for which the original could be used, provided that
such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission or original
signature.
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21. Amstar's Closing Documents. At the Closing, Amstar shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to Surviving
Corporation:
(A) A list of the holders of the shares of the Amstar Stock being
exchanged with an itemization of the number of shares held by each,
the address of each holder, and the aggregate number of shares of
Jetco Stock to be issued to each such holder.
(B) Evidence of the consent of shareholders of Amstar to this
Agreement.
(C) Certificate of the Secretary of State of Nevada as of a
recent date as to Amstar's good standing.
(D) Certified copies of the resolutions of Amstar's board of
directors authorizing the execution of this Agreement and the
consummation of the Merger.
(E) Secretary's certificate of incumbency of Amstar's officers
and directors.
(F) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
22. JETCO'S CLOSING DOCUMENTS. At the Closing, Jetco shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to Amstar
(A) A list of Jetco's shareholders of record, including, wherever
available, addresses and telephone numbers.
(B) Evidence of the consent of Jetco's shareholders to this
Agreement.
(C) Certificate of the Secretary of State of Delaware as of a
recent date as to the good standing of Jetco.
(D) Certified copies of the resolutions of Jetco's board of
directors authorizing the execution of this Agreement and the
consummation of the merger.
(E) Secretary's certificate of incumbency of Jetco's officers and
directors.
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(F) The opinion of counsel for Jetco to the effect that:
(i) based upon such examination as such counsel shall state,
such counsel has no knowledge that the representations and
warranties made by Jetco herein are incorrect or fail to state a
material fact necessary in order to make such statement correct
and not misleading;
(ii) the merger is effective and Jetco is the surviving
corporation; and
(iii) all shares of the Jetco Stock issued and outstanding
following the merger have been duly authorized and are fully paid
and non-assessable under applicable Delaware law.
(G) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
24. TERMINATION. Unless the Merger Date shall have occurred prior to March 31,
2000, and unless such date has been extended by a writing signed by each
party, this Agreement and the obligations of the parties hereto shall be
void, and each of the parties shall pay for all of the costs and expenses
incurred by such party in the negotiation and consummation of this
Agreement and the transactions herein contemplated.
25. ARBITRATION
(A) Scope and Situs. The parties hereby agree that any and all
claims (except only for requests for injunctive or other equitable
relief) whether existing now, in the past or in the future as to which
the parties or any affiliates may be adverse parties, and whether
arising out of this agreement or from any other cause, will be
resolved by arbitration before the American Arbitration Association in
the State of California. Any award in arbitration may be entered in
any domestic or foreign court having jurisdiction over the enforcement
of such awards
(B) Applicable Law. The law applicable to the arbitration and
this agreement shall be that of the State of Delaware, determined
without regard to its provisions which would otherwise apply to a
question of conflict of laws. Any dispute as to the applicable law
shall be decided by the arbitrator.
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(C) Disclosure and Discovery. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply with
all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by
the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration.
(D) Application of Governing Law. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules of
contract and other law of the jurisdiction whose law applies to the
arbitration so that the decision of the arbitrator will be, as much as
possible, the same as if the dispute had been determined by a court of
competent jurisdiction.
(E) Finality and Fees. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable
except as to errors of law. Each party to the arbitration shall pay
its own costs and counsel fees.
(F) Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and no claims
shall be made by any party or affiliate for lost profits, punitive or
multiple damages.
(G) No Suit. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever
arising, from whatever cause, based on whatever law, rule or
regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that
no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or
equitable relief. This Agreement shall be interpreted in conformance
with this stated intent of the parties and their affiliates.
26. General Provisions
(A) Further Assurances. From time to time, each party will
execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this
Agreement.
(B) Waiver. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed.
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(C) Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by
brokers or finders employed or alleged to have been employed by the
indemnifying party; provided, however, that any claim made to a party
shall be promptly conveyed by notice to the other and the party
against whom the claim is made shall have the right to defend the
claim and any action arising therefrom, at its own expense and by
counsel selected by it.
(D) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first class certified mail, return receipt
requested, or recognized commercial courier service, as follows:
If to Jetco:
Jetco, Inc.
860 Via de la Paz, Suite E-1
Pacific Palisades, CA 90272
If to Amstar, to:
AmeriStar Corp.
c/o AmeriStar Network, Inc.
321 North Mall Drive, Suite K-102
St. George, UT 84790
(D) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware for agreements entered into and intended to be carried out
entirely in Delaware.
27. Assignment. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this
Agreement without the written consent of the other party shall be void.
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28. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Signatures sent by facsimile
transmission shall be deemed to be evidence of the original execution
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
JETCO, INC.
/s/ George A. Todt
-------------------------------
By: George A. Todt
President
AMERISTAR CORP.
/s/ O. Russell Crandall, Jr.
-------------------------------
By: O. Russell Crandall, Jr.
Chairman of the Board & CEO
16
EXHIBIT 3.(i)
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 02/01/2000
001051315 - 2888886
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
JETCO, INC.
Pursuant to Sections 242 and 245 of the General Corporation Law
of the State of Delaware
Jetco, Inc. was incorporated on April 27, 1998.
FIRST: The name of the corporation is InTechnologies, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 686 North Dupont Boulevard #302, Milford DE 19963 Kent
County. The name of the registered agent of the Corporation at that address is
Corporate Creations Enterprises, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law").
FOURTH: (a) Capital Stock: The number of shares of capital stock that the
Corporation is authorized to have at any one time is one hundred eight million
(108,000,000) shares, consisting of: (i) one hundred million (100,000,000)
shares of Common Stock, par value $0.001 per share (the "Common Stock") and (ii)
eight million (8,000,000) shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock").
(b) Preferred Stock: Authority is hereby expressly vested in the Board of
Directors of the Corporation, subject to the provisions of this ARTICLE FOURTH
and to the limitations prescribed by law, to authorize the issuance from time to
time of one or more series of Preferred Stock. The authority of the Board of
Directors with respect to each series shall include, but not be limited to, the
determination or fixing of the following by resolution or resolutions adopted by
the affirmative vote of a majority of the total number of the Directors then in
office:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the relation which such dividends
shall bear to the dividends payable on any other class or classes or series
of the Corporation's capital stock and whether such dividends shall be
cumulative or non-cumulative;
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(iii) Whether the shares of such series shall be subject to redemption
for cash, property or rights, including securities of any other
corporation, by the Corporation or upon the happening of a specified event
and, if made subject to any such redemption, the times or events, prices,
rates, adjustments and other terms and conditions of such redemptions;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be convertible
into, or exchangeable for, at the option of either the holder or the
Corporation or upon the happening of a specified event, shares of any other
class or classes or of any other series of the same class of the
Corporation's capital stock and, if provision be made for conversion or
exchange, the times or events, prices, rates, adjustments and other terms
and conditions of such conversions or exchanges;
(vi) The restrictions, if any, on the issue or reissue of any
additional Preferred Stock;
(vii) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(viii) The provisions as to voting, optional and/or other special
rights and preferences, if any, including, without limitation, the right to
elect one or more Directors.
(c) Common Stock: Except as otherwise provided by the Delaware General
Corporation Law or this Restated Certificate of Incorporation, the holders of
Common Stock (i) subject to the rights of holders of any series of Preferred
Stock, shall share ratably in all dividends payable in cash, stock or otherwise
and other distributions, whether in respect of liquidation or dissolution
(voluntary or involuntary) or otherwise and (ii) are subject to all the powers,
rights, privileges, preferences and priorities of any series of Preferred Stock
as provided herein or in any resolution or resolutions adopted by the Board of
Directors pursuant to authority expressly vested in it by the provisions of
Section (c) of this ARTICLE FOURTH.
(i) The Common Stock shall not be convertible into, or exchangeable
for, shares of any other class or classes or of any other series of the
same class of the Corporation's capital stock.
(ii) No holder of Common Stock shall have any preemptive,
subscription, redemption, conversion or sinking fund rights with respect to
the Common Stock, or to any obligations convertible (directly or
indirectly) into stock of the Corporation whether now or hereafter
authorized.
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(iii) Except as otherwise provided by the Delaware General Corporation
Law or this Certificate, and subject to the rights of holders of any series
of Preferred Stock, all of the voting power of the stockholders of the
Corporation shall be vested in the holders of the Common Stock, and each
holder of Common Stock shall have one vote for each share held by such
holder on all matters voted upon by the stockholders of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors of the Corporation is
expressly authorized to make, alter, amend, change, add to or repeal the By-laws
of the Corporation by the affirmative vote of a majority of the total number of
Directors then in office. Any alteration or repeal of the By-laws of the
Corporation by the stockholders of the Corporation shall require the affirmative
vote of at least a majority of the voting power of the then outstanding shares
of capital stock of the Corporation entitled to vote on such alteration or
repeal, subject to ARTICLE NINTH hereof and applicable provisions of the
Corporation's By-laws.
SEVENTH: (a) Stockholder Action. Election of Directors need not be by
written ballot unless the By-laws of the Corporation so provide. Subject to any
rights of holders of any series of Preferred Stock, from and after the date on
which the Common Stock of the Corporation is registered pursuant to the Exchange
Act, (i) any action required or permitted to be taken by the stockholders of the
Corporation must be effected at an annual or special meeting of stockholders of
the Corporation and may not be effected in lieu thereof by any consent in
writing by such stockholders, (ii) special meetings of stockholders of the
Corporation may be called only by either the Board of Directors pursuant to a
resolution adopted by the affirmative vote of the majority of the total number
of Directors then in office or by the chief executive officer of the
Corporation, and (iii) advance notice of stockholder nominations of persons for
election to the Board of Directors of the Corporation and of business to be
brought before any annual meeting of the stockholders by the stockholders of the
Corporation shall be given in the manner provided in the By-laws of the
Corporation.
(b) Number of Directors and Term of Office. Subject to any
rights of holders of any series of Preferred Stock to elect additional Directors
under specified circumstances, the number of Directors which shall constitute
the Board of Directors of the Corporation shall be fixed from time to time in
the manner set forth in the By-laws of the Corporation.
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(c) Removal and Resignation. No Director may be removed from
office without cause and without the affirmative vote of the holders of a
majority of the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of Directors voting
together as a single class; provided, however, that if the holders of any class
or series of capital stock are entitled by the provisions of this Certificate
(it being understood that any references to this Certificate shall include any
duly authorized certificate of designation) to elect one or more Directors, such
Director or Directors so elected may be removed without cause only by the vote
of the holders of a majority of the outstanding shares of that class or series
entitled to vote. Any Director may resign at any time upon written notice to the
Corporation.
(d) Vacancies and Newly Created Directorships. Subject to any
rights of holders of any series of Preferred Stock to fill such newly created
Directorships or vacancies, any newly created Directorships resulting from any
increase in the authorized number of Directors and any vacancies in the Board of
Directors resulting from death, resignation, disqualification or removal from
office for cause shall, unless otherwise provided by law or by resolution
approved by the affirmative vote of a majority of the total number of Directors
then in office, be filled only by resolution approved by the affirmative vote of
a majority of the total number of Directors then in office. Any Director so
chosen shall hold office until the next election of the class for which such
Director shall have been chosen, and until his successor shall have been duly
elected and qualified, unless he shall resign, die, become disqualified or be
removed for cause.
EIGHTH: (a) Dividends. The Board of Directors shall have authority from
time to time to set apart out of any assets of the Corporation otherwise
available for dividends a reserve or reserves as working capital or for any
other purpose or purposes, and to abolish or add to any such reserve or reserves
from time to time as said Board may deem to be in the interest of the
Corporation; and said Board shall likewise have power to determine in its
discretion, except as herein otherwise provided, what part of the assets of the
Corporation available for dividends in excess of such reserve or reserves shall
be declared in dividends and paid to the stockholders of the Corporation.
(b) Issuance of Stock. The shares of all classes of stock of
the Corporation may be issued by the Corporation from time to time for such
consideration as from time to time may be fixed by the Board of Directors of the
Corporation, provided that shares of stock having a par value shall not be
issued for a consideration less than such par value, as determined by the Board.
At any time, or from time to time, the Corporation may grant rights or options
to purchase from the Corporation any shares of its stock of any class or classes
to run for such period of time, for such consideration, upon such terms and
conditions, and in such form as the Board of Directors may determine. The Board
of Directors shall have authority, as provided by law, to determine that only a
part of the consideration which shall be received by the Corporation for the
shares of its stock which it shall issue from time to time, shall be capital;
provided, however, that, if all the shares issued shall be shares having a par
value, the amount of the part of such consideration so determined to be capital
shall be equal to the aggregate par value of such shares. The excess, if any, at
any time, of the total net assets of the Corporation over the amount so
determined to be capital, as aforesaid, shall be surplus. All classes of stock
of the Corporation shall be and remain at all times nonassessable.
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The Board of Directors is hereby expressly authorized, in its
discretion, in connection with the issuance of any obligations or stock of the
Corporation (but without intending hereby to limit its general power so to do in
other cases), to grant rights or options to purchase stock of the Corporation of
any class upon such terms and during such period as the Board of Directors shall
determine, and to cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
(c) Inspection of Books and Records. The Board of Directors
shall have power from time to time to determine to what extent and at what times
and places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
(d) Location of Meetings, Books and Records. Except as
otherwise provided in the By-laws, the stockholders of the Corporation and the
Board of Directors may hold their meetings and have an office or offices outside
of the State of Delaware and, subject to the provisions of the laws of said
State, may keep the books of the Corporation outside of said State at such
places as may, from time to time, be designated by the Board of Directors.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate in the manner now or hereinafter
prescribed herein and by the laws of the State of Delaware, and all rights
conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding anything contained in this Certificate to the contrary, Sections
(a), (c) and (d) of ARTICLE FOURTH, ARTICLE TENTH, ARTICLE SEVENTH, and this
ARTICLE NINTH of this Certificate shall not be altered, amended or repealed and
no provision inconsistent therewith shall be adopted without the affirmative
vote of the holders of at least a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote on such
alteration, amendment or repeal, voting together as a single class.
TENTH: (a) Limitation of Liability.
(i) To the fullest extent permitted by the Delaware General
Corporation Law as it now exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted
prior thereto), and except as otherwise provided in the Corporation's
By-laws, no Director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages arising from a breach of fiduciary
duty owed to the Corporation or its stockholders.
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(ii) 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.
(b) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the Corporation or, while
a Director or officer of the Corporation, is or was serving at the request of
the Corporation as a Director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a Director or
officer or in any other capacity while serving as a Director or officer, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section (c) of this ARTICLE TENTH
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section (b) of this ARTICLE TENTH shall be
a contract right and shall include the obligation of the Corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (an "advance of expenses"); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an advance of
expenses incurred by an indemnitee in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking (an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section (b) or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
Directors and officers.
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(c) Procedure for Indemnification. Any indemnification of a
Director or officer of the Corporation or advance of expenses under Section (b)
of this ARTICLE TENTH shall be made promptly, and in any event within forty-five
(45) days (or, in the case of an advance of expenses, twenty (20) days), upon
the written request of the Director or officer. If a determination by the
Corporation that the Director or officer is entitled to indemnification pursuant
to this ARTICLE TENTH is required, and the Corporation fails to respond within
sixty (60) days to a written request for indemnity, the Corporation shall be
deemed to have approved the request. If the Corporation denies a written request
for indemnification or advance of expenses, in whole or in part, or if payment
in full pursuant to such request is not made within forty-five (45) days (or, in
the case of an advance of expenses, twenty (20) days), the right to
indemnification or advances as granted by this ARTICLE TENTH shall be
enforceable by the Director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for the
advance of expenses where the undertaking required pursuant to Section (b) of
this ARTICLE TENTH, if any, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct. The procedure for indemnification of other employees and agents for
whom indemnification is provided pursuant to Section (b) of this ARTICLE TENTH
shall be the same procedure set forth in this Section (c) for Directors or
officers, unless otherwise set forth in the action of the Board of Directors
providing indemnification for such employee or agent.
(d) Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation 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
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
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(e) Service for Subsidiaries. Any person serving as a
Director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture or other enterprise, at least 50% of
whose equity interests are owned by the Corporation (a "subsidiary" for this
ARTICLE TENTH) shall be conclusively presumed to be serving in such capacity at
the request of the Corporation.
(f) Reliance. Persons who after the date of the adoption of
this provision become or remain Directors or officers of the Corporation or who,
while a Director or officer of the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE TENTH in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
ARTICLE TENTH shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
(g) Non-Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in this ARTICLE TENTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under this Certificate or under any statute, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
(h) Merger or Consolidation. For purposes of this ARTICLE
TENTH, references to the "Corporation" shall include, in addition to the
resulting Corporation, any constituent Corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this ARTICLE
TENTH with respect to the resulting or surviving Corporation as he or she would
have with respect to such constituent Corporation if its separate existence had
continued.
ELEVENTH: The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law with respect to business
combinations with interested stockholders.
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IN WITNESS WHEREOF, the undersigned hereby executed this
instrument and affirms, under penalty of perjury, that this instrument is the
act and deed of the undersigned and that the facts stated herein are true, and
accordingly have hereunto set our hands as of January 25, 2000.
/s/ William M. Noe
---------------------------------
William M. Noe, President
/s/ Hartley J. Chazen
-------------------------------
Hartley J. Chazen, Secretary
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EXHIBIT 3.(ii)
AMENDED AND RESTATED BYLAWS
OF
INTECHOLOGIES, INC.
A DELAWARE CORPORATION
(Formerly Known as Jetco, Inc.)
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of Intechnologies,
Inc. (the "Company") in the State of Delaware is located at 686 North Dupont
Boulevard #302, City of Milford, County of Kent. The name of the registered
agent of the Corporation at that address is Corporate Creations Enterprises,
Inc.
SECTION 1.2. PRINCIPAL OFFICE. The principal office of the Company will be
in 321 North Mall Drive, St. George, UT 04790, or at such other place as the
Board of Directors may from time to time determine.
SECTION 1.3. OTHER OFFICES. The Company may also have offices at such other
places as the Board of Directors may from time to time determine or the business
of the Company may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 2.1. PLACE OF MEETINGS. All meetings of stockholders will be held
at the principal office of the Company, or at such other place as will be
determined by the Board of Directors and specified in the notice of the meeting.
SECTION 2.2. ANNUAL MEETING. The annual meeting of stockholders will be
held at such date and time as will be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which meeting the
stockholders will elect by written ballot a Board of Directors and transact such
other business as may properly be brought before the meeting of stockholders.
The Board of Directors may postpone the time of holding the annual meeting of
stockholders for such period not exceeding ninety (90) days, as they may deem
advisable. Failure to hold the annual meeting at the designated time shall not
work a dissolution of the Company nor impair the powers, rights and duties of
the Company's officers and Directors. At annual meetings, the stockholders shall
elect Directors and transact such other business as may properly be brought
before the meeting. If the election of Directors shall not be held on the day
designated herein for any annual meeting of the stockholders or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the stockholders as soon thereafter as is convenient.
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SECTION 2.3. NOTICE OF ANNUAL MEETING. Written or printed notice of the
annual meeting, stating the place, day and hour thereof, will be delivered
personally to each stockholder at his residence or usual place of business or
mailed to each stockholder entitled to vote at such address as appears on the
books of the Company, not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Waiver by a stockholder (or his duly authorized
attorney) in writing of notice of a stockholders' meeting, signed by the
stockholder, whether before or after the time of such meeting, shall be
equivalent to the giving of such notice. Attendance by a stockholder, whether in
person or by proxy, at a stockholders' meeting shall constitute a waiver of
notice of such meeting of which the stockholder has had no notice.
SECTION 2.4. SPECIAL MEETING. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chief Executive Officer or the Board of Directors, and will be called by the
Chief Executive Officer or Secretary at the request in writing of the
stockholders owning ten percent (10%) of the outstanding shares of capital stock
of the Company entitled to vote at such meeting. Such request will state the
purpose(s) of the proposed meeting, and any purpose so stated will be
conclusively deemed to be a "proper" purpose.
SECTION 2.5. NOTICE OF SPECIAL MEETING. Written or printed notice of a
special meeting stating the place, day, hour and purpose(s) thereof, will be
personally delivered to each stockholder at his residence or usual place of
business or mailed to each stockholder entitled to vote at such address as
appears on the books of the Company, not less than ten (10) nor more than sixty
(60) days before the date of the meeting.
SECTION 2.6. ADJOURNMENT. At any meeting of stockholders of the Company, if
less than a quorum be present, a majority of the stockholders entitled to vote,
present in person or by proxy, shall have the power to adjourn the meeting from
time to time without notice other than announcement at the meeting until a
quorum shall be present. Any business may be transacted at the adjourned meeting
which might have been transacted at the meeting originally noticed. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date, as provided for in Section 2.7 of these Bylaws, is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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SECTION 2.7. FIXING OF DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
The Board of Directors may, by resolution, fix in advance a date as the record
date for the purpose of determining stockholders entitled to notice of, or to
vote at, any meeting of stockholders or any adjournment thereof, or stockholders
entitled to receive payment of any dividend or the allotment of any rights, or
in order to make a determination of stockholders for any other purposes (other
than determining stockholders entitled to consent to action by stockholders
proposed to be taken without a meeting of stockholders). Such date, in any case,
shall not be more than sixty (60) days and not less than ten (10) days prior to
the date on which the particular action requiring such determination of
stockholders is to be taken. If no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders, or
stockholders entitled to receive payment of a dividend, such date shall be at
the close of business on the day 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, and shall be the record date for such
determination of stockholders. When a determination of stockholders entitled to
vote at any meeting of stockholders has been made as provided in this section,
such determination shall apply to any adjournment thereof except where the
determination has been made through the closing of the stock transfer records
and the stated period of closing has expired.
SECTION 2.8. STOCKHOLDER LIST. At least ten (10) days before each meeting
of stockholders, a complete list of stockholders entitled to vote at each such
meeting or in any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, will be prepared by the
Secretary or the officer or agent having charge of the stock transfer ledger of
the Company. Such list will be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours for such ten
(10) day period either at a place within the city where the meeting is to be
held, or, if not so specified, the place where the meeting is to be held. Such
list will also be produced and kept open at the time and place of the meeting.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to vote in person or by proxy at any meeting of stockholders.
SECTION 2.9. QUORUM. The holders of a majority of the shares of capital
stock issued and outstanding and entitled to vote, represented in person or by
proxy, will constitute a quorum at all meetings of the stockholders for the
transaction of business. The stockholders present may adjourn the meeting
despite the absence of a quorum. When a meeting is adjourned for less than
thirty (30) days in any one adjournment, it will not be necessary to give any
notice of the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken, and at
the adjourned meeting any business may be transacted which might have been
transacted on the original date of the meeting. When a meeting is adjourned for
thirty (30) days or more, notices of the adjourned meeting will be given as in
the case of an original meeting. The vote of the holders of a majority of the
shares entitled to vote and thus represented at a meeting at which a quorum is
present shall be the act of the stockholders' meeting unless the vote of a
greater number is required by law, the Certificate of Incorporation or these
Bylaws, in which case the vote of such greater number shall be requisite to
constitute the act of the meeting. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
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SECTION 2.10. PROXIES AND VOTING. Stockholders entitled to vote shall have
the number of votes specified in the Certificate of Incorporation for each share
of stock owned by them and a proportionate vote for a fractional share.
Stockholders may vote in person or by written proxy dated not more than six
months before the meeting named therein. Proxies shall be filed with the
Secretary of the meeting, or of any adjournment thereof, before being voted.
Except as otherwise limited therein, proxies shall entitle the person named
therein to vote at any meeting or adjournment of such meeting but shall not be
valid after final adjournment of such meeting. A proxy with respect to stock
held in the name of two or more persons shall be valid if executed by any one of
them unless at or prior to its exercise the Company receives a specific written
notice to the contrary from any one of them. A proxy purporting to be executed
by or on behalf of a stockholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger.
When a quorum is present at any meeting, the holders of a majority of
the stock represented and entitled to vote on any question (or if there are two
or more classes of stock entitled to vote as separate classes, then in the case
of each such class, the holders of a majority of the stock of that class
represented and entitled to vote on any question) other than an election by
stockholders shall, except where a larger vote is required by law, by the
articles of organization or by these bylaws, decide any question brought before
such meeting. Any election by stockholders shall be determined by a plurality of
the votes cast.
SECTION 2.11. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action that
may be taken at any annual or special meeting of the stockholders of the
Company, may be taken without a meeting, without prior notice, and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted,
provided that a consent must bear the date of each stockholder's signature and
no consent will be effective unless written consents received by a sufficient
number of stockholders to take the contemplated action are delivered to the
Company within sixty days of the date that the earliest consent is delivered to
the Company. Prompt notice of the taking of corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing. In the event that the action which is consented
to is such as would have required the filing of a certificate under any section
of Delaware law, if such action had been voted on by stockholders at a meeting
thereof, the certificate filed under such other section shall state, in lieu of
any statement required by such section concerning any vote of stockholders, that
written consent and that written notice have been given in accordance with
Section 228 of the General Corporation Law of the State of Delaware.
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SECTION 2.12. PRESIDING OFFICER AND CONDUCT OF MEETINGS. The Chairman of
the Board of Directors shall preside at all meetings of the stockholders and
shall automatically serve as Chairman of such meetings. In the absence of the
Chairman of the Board of Directors, or if the Directors neglect or fail to elect
a Chairman, then the President of the Company shall preside at the meetings of
the stockholders and shall automatically be the Chairman of such meeting, unless
and until a different person is elected by a majority of the shares entitled to
vote at such meeting. The Secretary of the Company shall act as Secretary at all
meetings of the stockholders. In the absence or disability of the Secretary, the
Chairman of the Board of Directors, the Chief Executive Officer, or the
President shall appoint a person to act as Secretary at such meetings.
SECTION 2.13. INSPECTORS. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting may, or if inspectors shall not have
been appointed, the Chairman of the meeting shall, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Company outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No directors or candidate for the
office of director shall act as an inspector of an election of directors.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 3.1. FUNCTIONS AND NUMBER. The property, business and affairs of
the Company shall be managed and controlled by a board of directors, who need
not be stockholders, citizens of the United States or residents of the State of
Delaware. The number of members which shall constitute the Board of Directors
shall be determined by resolution of the Board of Directors or by the
stockholders at an annual or special meeting held for that purpose, but no
decrease in the Board of Directors shall have the effect of shortening the term
of an incumbent director. The Board of Directors shall consist of not less than
one (1) nor more than nine (9) members. Except as otherwise provided by law or
in these Bylaws or in the Certificate of Incorporation, the directors shall be
elected by the stockholders entitled to vote at the annual meeting of
stockholders of the Company, and shall be elected to serve until the next annual
meeting of stockholders and until their successors shall be elected and shall
qualify.
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SECTION 3.2. ELECTION AND TERM. Except as provided in Section 3.3 of this
Article, Directors will be elected at the annual meeting of the stockholders,
and each Director will be elected to serve until the next annual meeting or
until his successor will have been elected and qualified, unless sooner removed
in accordance with these Bylaws or until the Company has received a written
resignation from a Director. Directors need not be stockholders of the Company.
SECTION 3.3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies and newly
created directorships resulting from any increase in the authorized number of
Directors may be filled by a majority of the Directors, although less than a
quorum, and the Directors so elected shall hold office for the unexpired term of
their predecessor in office until the next annual meeting and until their
successors are elected and have qualified. Vacancies created by the removal of
Directors by the owners of a majority of the outstanding shares of capital stock
will be filled by the owners of the majority of the outstanding shares of
capital stock. A vacancy shall be deemed to exist by reason of the death or
resignation of any Director or upon the failure of stockholders to elect
Directors to fill the unexpired terms of any Directors removed in accordance
with the provisions of these Bylaws.
SECTION 3.4. RESIGNATION; REMOVAL. Any Director may resign at any time by
giving written notice thereof to the Board of Directors. Any such resignation
will take effect as of its date unless some other date is specified therein, in
which event it will be effective as of that date. The acceptance of such
resignation will not be necessary to make it effective.. The holders of a
majority of the outstanding shares of capital stock may remove any Director or
the entire Board of Directors, with or without cause, either by a vote at a
special meeting or annual meeting, or by written consent.
SECTION 3.5. COMPENSATION. The Board of Directors shall have the authority
to fix the compensation of directors for their services. A director may also
serve the Company in other capacities and receive compensation therefor.
ARTICLE IV.
MEETINGS OF THE BOARD
SECTION 4.1. REGULAR MEETINGS. The Board of Directors will meet each year
immediately following the annual meeting of the stockholders to appoint the
members of such committees of the Board of Directors as the Board may deem
necessary or advisable, to elect officers for the ensuing year, and to transact
such other business as may properly come before the Board of Directors at such
meeting. No notice of such meeting will be necessary to the newly elected
Directors in order legally to constitute the meeting provided a quorum will be
present. Regular meetings may be held at such other times as shall be designated
by the Board of Directors without notice to the Directors.
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SECTION 4.2. SPECIAL MEETINGS. Special meetings of the Board of Directors
will be held whenever called by the Chairman of the Board, Chief Executive
Officer, chairman of the Executive Committee or by two or more Directors. Notice
of each meeting will be given at least two (2) days prior to the date of the
meeting either personally or by telephone, facsimile or telecopy (with proof of
transmission) to each Director, and will state the purpose, place, day and hour
of the meeting. Waiver by a Director in writing of notice of a Directors
meeting, signed by the Director, whether before or after the time of said
meeting, shall be equivalent to the giving of such notice. Except as provided in
Section 9.3, attendance by a Director, whether in person or by proxy, at a
Directors' meeting shall constitute a waiver of notice of such meeting of which
the Director had no notice.
SECTION 4.3. QUORUM AND VOTING. At all meetings of the Board of Directors
(except in the case of a meeting convened for the purpose specified in Section
3.3 of these Bylaws) a majority of the number of the Directors will be necessary
and sufficient to constitute a quorum for the transaction of business and the
act of a majority of the Directors present at any meeting at which there is a
quorum will be the act of the Board of Directors. If a quorum will not be
present at any such meeting of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum will be present.
SECTION 4.4. TELEPHONE MEETINGS. Subject to the provisions of applicable
law and these Bylaws regarding notice of meetings, the Directors may participate
in and hold a meeting using conference telephone or similar communications
equipment by means of which all persons participating in a meeting can hear each
other simultaneously, and participation in a meeting pursuant to this Section
shall constitute presence in person at such meeting. A Director so attending
will be deemed present at the meeting for all purposes including the
determination of whether a quorum is present except when a person participates
in the meeting for the express purpose of objecting to the transaction of any
business on the ground the meeting was not lawfully called or convened.
SECTION 4.5. ACTION BY WRITTEN CONSENT. Any action required or permitted to
be taken at a meeting of the Board of Directors may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors.
SECTION 4.6. ATTENDANCE FEES. Directors will not receive any stated salary,
as such, for their services, but by resolution of the Board of Directors a fixed
sum and expenses of attendance may be allowed for attendance at each regular or
special meeting of the Board of Directors; however, this provision will not
preclude any Director from serving the Company in any other capacity and
receiving compensation therefor.
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SECTION 4.7. INTEREST OF DIRECTORS IN CONTRACTS. Any contract or other
transaction between the Company and one (1) or more of its Directors, or between
the Company and any firm of which one or more of its Directors are members or
employees, or in which they are interested, or between the Company and any
corporation or association of which one or more of its Directors are
shareholders, members, directors, officers or employees, or in which they are
interested, shall be valid for all purposes, notwithstanding the presence of
such Director or Directors at the meeting of the Board of Directors of the
Company, which acts upon, or in reference to, such contract or transaction, and
notwithstanding their participation in such action, if the fact of such interest
shall be disclosed or known to the Board of Directors and the Board of Directors
shall, nevertheless, authorize, approve, and ratify such contract or transaction
by a vote of a majority of the Directors present, such interested Director or
Directors to be counted in determining whether a quorum is present, but not to
be counted in calculating the majority of such quorum necessary to carry such
vote. This Section shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common and statutory law
applicable thereto.
ARTICLE V.
COMMITTEES
SECTION 5.1. EXECUTIVE COMMITTEE. The Board of Directors by resolution may
designate one or more Directors to constitute an Executive Committee, which
committee, to the extent provided in such resolution, will have and may exercise
all of the powers and authority of the Board of Directors in the management of
the business and affairs of the Company, except where action of the Board of
Directors is required by statute. Unless expressly authorized by resolution of
the Board of Directors, no committee shall have the power or authority to (a)
amend the Certificate of Incorporation, (b) adopt an agreement of merger or
consolidation, (c) recommend to the shareholders the sale, lease or exchange of
all or substantially all of the Company's property and assets, (d) recommend to
the stockholders a dissolution of the Company or a revocation of a dissolution,
or (e) amend the Bylaws of the Company.
SECTION 5.2. OTHER COMMITTEES. The Board of Directors may by resolution
create other committees for such terms and with such powers and duties as the
Board shall deem appropriate.
SECTION 5.3. ORGANIZATION OF COMMITTEES. The chairman of each committee of
the Board of Directors will be chosen by the members thereof. Each committee
will elect a Secretary, who will be either a member of the committee or the
secretary of the Company. The chairman of each committee will preside at all
meetings of such committee.
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SECTION 5.4. MEETINGS. Regular meetings of each committee may be held
without the giving of notice of time and a place will have been established by
the committee for such meetings. Special meetings (and, if the requirements of
the preceding sentence have not been met, regular meetings) will be called in
the manner provided as respect to notices of special meetings of the Board of
Directors.
SECTION 5.5. QUORUM AND MANNER OF ACTING. Subject to the provisions of
applicable law and these Bylaws regarding notice of meetings, the member of each
committee may participate in and hold a meeting using conference telephone or
similar communications equipment by means of which all persons participating in
a meeting can hear each other simultaneously, and participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting. A
member so attending will be deemed present at the meeting for all purposes
including the determination of whether a quorum is present except when a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground the meeting was not lawfully called or
convened. The act of a majority of the members so present at a meeting at which
a quorum is present will be the act of such committee. The members of each
committee will act only as a committee, and will have no power or authority, as
such, by virtue of their membership on the committee.
SECTION 5.6. ACTION BY WRITTEN CONSENT. Any action required or permitted to
be taken by any committee may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all the members of the
committee.
SECTION 5.7. RECORD OF COMMITTEE ACTION; REPORTS. Each committee will
maintain a record, which need not be in the form of complete minutes, of the
action taken by it at each meeting, which record will include the date, time,
and place of the meeting, the names of the members present and absent, the
action considered, and the number of votes cast for and against the adoption of
the action considered. All action by each committee will be reported to the
Board of Directors at its meeting next succeeding such action, such report to be
in sufficient detail as to enable the Board to be informed of the conduct of the
Company's business and affairs since the last meeting of the Board.
SECTION 5.8. REMOVAL. Any member of any committee may be removed from such
committee, either with or without cause, at any time, by resolution adopted by a
majority of the whole Board of Directors at any meeting of the board.
SECTION 5.9. VACANCIES. Any vacancy in any committee will be filled by the
Board of Directors in the manner prescribed by these Bylaws for the original
appointment of the members of such committee.
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ARTICLE VI.
OFFICERS
SECTION 6.1. APPOINTMENT AND TERM OF OFFICE. The officers of the Company
may consist of a President, a Secretary, and a Treasurer, and there may be a
Chief Executive Officer, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers as may be
appointed by the Board in its discretion. One of the Directors may also be
chosen Chairman of the Board. Each of such officers will be chosen annually by
the Board of Directors at its regular meeting immediately following the annual
meeting of stockholders and, subject to any earlier resignation or removal, will
hold office until the next annual meeting of stockholders or until his earlier
death, resignation, retirement, disqualification, or removal from office and
until his successor shall have been duly elected and qualified. Two or more
offices may be held by the same person.
SECTION 6.2. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors, with or without
cause, whenever in its judgment the best interests of the Company will be served
thereby, but such removal will be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
will not of itself create contract rights.
SECTION 6.3. VACANCIES. Whenever any vacancy shall occur in any office of
any officer by death, resignation, increase in the number of officers of the
Company, or otherwise, the same shall be filled by vote of a majority of the
Directors for the unexpired portion of the term.
SECTION 6.4. COMPENSATION. The compensation of all officers of the Company
shall be determined by the Board of Directors and may be altered by the Board
from time to time, except as otherwise provided by contract, and no officer
shall be prevented from receiving such compensation by reason of the fact such
officer is also a Director of the Company. All officers shall be entitled to be
paid or reimbursed for all costs and expenditures incurred in the Company's
business.
SECTION 6.5. POWERS AND DUTIES. The powers and duties of the officers will
be those usually pertaining to their respective offices, subject to the general
direction and supervision of the Board of Directors. Such powers and duties will
include the following:
a. Chairman of the Board. The Chairman of the Board, if one is
designated, shall be selected among the members of the Board of Directors
and will preside when present at all meetings of the Board of Directors and
of the stockholders. The Chairman of the Board shall be available to
consult with and advise the officers of the Corporation with respect to the
conduct of the business and affairs of the Corporation and shall have such
other powers and duties as designated in accordance with these Bylaws and
as from time to time may be assigned by the Board of Directors. The
Chairman of the Board shall be the highest officer of the Corporation and,
subject to the control of the Board of Directors, shall in general
supervise and control all business and affairs of the Corporation.
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b. President. The President, if one is designated, shall be the Chief
Executive Officer of the Company unless a Chief Executive Officer is
otherwise designated by the Board of Directors. The President will be
responsible for general supervision of the affairs, properties, and
operations of the Company, and over its several officers and be the
Company's general manager responsible for the management and control in the
ordinary course of the business of the Company. The President may execute
and deliver in the name and on behalf of the Company, deeds, mortgages,
leases, assignments, bonds, notes, bills of sale, assignments, releases,
receipts, contracts or other instruments of any kind or character
authorized by the Board of Directors. Unless otherwise directed by the
Board, the President shall attend in person or by substitute or by proxy
and act and vote on behalf of the Company at all meetings of the
stockholders of any corporation in which the Company holds stock. The
President may appoint or employ and discharge employees and agents of the
Company and fix their compensation.
c. Vice Presidents. Each Vice President, if any are designated, will
perform the duties prescribed or delegated by the President or by the Board
of Directors, and at the request of the President or the Board of
Directors, will perform as well the duties of the President's office.
d. Secretary. The Secretary, if one is designated, will give notice to
and attend all meetings and keep the minutes of all of the proceedings at
all meetings of the Board of Directors and all meetings of the stockholders
and will be the custodian of all corporate records and of the seal of the
Company. The Secretary will see that all notices required to be given to
the stockholders and to the Board of Directors are duly given in accordance
with these Bylaws or as required by law. It shall also be the duty of the
Secretary to attest, by personal signature and the seal of the Company, all
stock certificates issued by the Company and to keep a stock ledger in
which shall be correctly recorded all transactions pertaining to the
capital stock of the Company. The Secretary shall also attest, by personal
signature and the seal of the Company, all deeds, conveyances, or other
instruments requiring the seal of the Company. The person holding the
office of Secretary shall also perform, under the direction and subject to
the control of the President and the Board of Directors, such other duties
as may be assigned to such officer. Unless a transfer agent is appointed,
the Secretary shall also keep or cause to be kept at any such office the
stock and transfer records, which shall contain the names of all
stockholders and the record address and the amount of stock held by each,
for inspection by stockholders. Any such inspection by a stockholder of the
articles of organization, bylaws, records of meetings of the incorporators
or stockholders, or the stock and transfer records must be at a reasonable
time and for a proper purpose, but not to secure a list of stockholders for
the purpose of selling said list or copies thereof or of using the same for
a purpose other than in the interest of the applicant, as a stockholder,
relative to the affairs of the Company. Said copies and records need not
all be kept in the same office. In the absence of the appointment of a
Treasurer for the Company, the Secretary shall perform the duties of the
Treasurer.
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e. Any Assistant Secretary shall have the powers and perform the
duties of the Secretary in his absence or in case of his inability to act
and shall have such other powers and duties as the directors may from time
to time prescribe. If neither the Secretary nor any Assistant Secretary is
present at any meeting of the stockholders, a temporary Secretary to be
designated by the person presiding at the meeting shall perform the duties
of the Secretary.
f. Treasurer. The Treasurer will be the principal accounting and
financial officer of the Company and will have active control of and shall
be responsible for all matters pertaining to the accounts and finances of
the Company. The Treasurer will have charge of the corporate funds and
securities and will keep a record of the property and indebtedness of the
Company. If required by the Board of Directors, the Treasurer will give
bond for the faithful discharge of duties in such sum and with such surety
or sureties as the Board may require. The Treasurer shall keep such monies
and securities of the Company as may be entrusted to his keeping and
account for the same. The Treasurer shall be prepared at all times to give
information as to the condition of the Company and shall make a detailed
annual report of the entire business and financial condition of the
Company. The person holding the office of Treasurer shall also perform,
under the direction and subject to the control of the President and the
Board of Directors, such other duties as may be assigned by either of such
officers. The duties of the Treasurer may also be performed by any
Assistant Treasurer.
g. Other Officers. The Board of Directors may appoint such other
officers, agents or employees as it may deem necessary for the conduct of
the business of the Company. In addition, the Board may authorize the
President or other officers to appoint such agents or employees as they
deem necessary for the conduct of the business of the Company.
SECTION 6.6. RESIGNATIONS. Any officer may resign at any time by giving
written notice thereof to the Board of Directors. Any such resignation will take
effect as of its date unless some other date is specified therein, in which
event it will be effective as of that date. The acceptance of such resignation
will not be necessary to make it effective.
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ARTICLE VII.
SHARES OF STOCK AND THEIR TRANSFER; BOOKS
SECTION 7.1. FORMS OF CERTIFICATES. Shares of the capital stock of the
Company will be represented by certificates in such form, not inconsistent with
law or with the Certificate of Incorporation of the Company, as will be approved
by the Board of Directors, and will be signed by the Chairman of the Board,
President or a Vice President and the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer and sealed with the seal of the Company.
Such seal may be facsimile, engraved or printed. Where any such certificate is
countersigned by a transfer agent or by a registrar, the signature of such
Chairman of the Board, President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer upon such certificate may be
facsimiles, engraved or printed. Such certificates shall be delivered
representing all shares to which stockholders are entitled.
SECTION 7.2. ISSUANCE. Shares of stock with par value (both treasury and
authorized but unissued) may be issued for such consideration (not less than par
value) and to such persons as the Board of Directors may determine from time to
time. Shares of stock without par value may be issued for such consideration as
is determined from time to time by the Board of Directors. Shares may not be
issued until the full amount of the consideration, fixed as provided by law, has
been paid.
SECTION 7.3. PAYMENT FOR SHARES.
a. The consideration for the issuance of shares shall consist of cash,
services rendered (including services actually performed for the Company)
or real or personal property (tangible or intangible) or any combination
thereof actually received. Neither promissory notes nor the promise of
future services shall constitute payment for shares.
b. In the absence of actual fraud in the transaction, the judgment of
the Board of Directors as to the value of consideration received shall be
conclusive.
c. When consideration, fixed as provided by law, has been paid, the
shares shall be deemed to have been issued and shall be considered fully
paid and nonassessable.
d. The consideration received for shares shall be allocated by the
Board of Directors, in accordance with law, between stated capital and
capital surplus accounts.
SECTION 7.4. TRANSFER OF SHARES. Shares of stock of the Company will be
transferred only on the stock books of the Company by the holder of record
thereof in person, or by a duly authorized attorney, upon the endorsement and
surrender of the certificate therefor.
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SECTION 7.5. STOCKHOLDERS OF RECORD. Stockholders of record entitled to
vote at any meeting of stockholders or entitled to receive payment of any
dividend or to any allotment of rights or to exercise the rights in respect of
any change or conversion or exchange of capital stock will be determined
according to the Company's stock ledger and, if so determined by the Board of
Directors in the manner provided by statute, will be such stockholders of record
(a) at the date fixed for closing the stock transfer books, or (b) as of the
date of record.
SECTION 7.6. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors
may direct the issuance of new or duplicate stock certificates in place of lost,
stolen or destroyed certificates, upon being furnished with evidence
satisfactory to it of the loss, theft or destruction and upon being furnished
with indemnity satisfactory to it. The Board of Directors may delegate to any
officer authority to administer the provisions of this Section.
SECTION 7.7. CLOSING OF STOCK TRANSFER BOOKS. The Board of Directors will
have power, in its discretion, either (a) to close the stock transfer books of
the Company (i) for a period not exceeding sixty (60) days nor less than ten
(10) days preceding (A) the date of any meeting of stockholders, (B) the date
for the payment of any dividend, (C) the date for the allotment of rights, or
(D) the date when change or conversion or exchange of capital stock will go into
effect, (ii) for a period not exceeding sixty (60) days nor less than ten (10)
days in connection with obtaining the consent of stockholders for any purpose;
or (b) to fix a date, not more than sixty (60) days nor less than ten (10) days
before (i) any stockholders' meeting, (ii) the date for the payment of any
dividend, (iii) the date for the allotment of rights, or (iv) the date when any
change or conversion or exchange of capital stock will go into effect as a
record date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting and at any adjournment thereof, or entitled to
receive payment of any such dividend, (B) to any such allotment of rights, (C)
to exercise the rights in respect of such change, conversion, or exchange of
capital stock, or (D) to give such consent, and in such case such stockholders
and only such stockholders as will be stockholders of record on the date so
fixed will be entitled to notice of and to vote at such meeting and at any
adjournment thereof, or to receive payment of such dividend, or to exercise
rights, or to give such consent as the case may be, notwithstanding any transfer
of any stock on the books of the Company after such record date fixed as
aforesaid.
SECTION 7.8. REGULATIONS. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issuance, transfer and
registration of certificates of stock. The Board of Directors may appoint one or
more transfer agents or registrars, or both, and may require all certificates of
stock to bear the signature of either or both.
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SECTION 7.9. EXAMINATION OF BOOKS BY STOCKHOLDERS. The original or
duplicate stock ledger of the Company containing the names and addresses of the
stockholders and the number of shares held by them and the other books and
records of the Company will, at all times during the usual hours of business, be
available for inspection at its principal office, and any stockholder, upon
compliance with the conditions set forth in and to the extent authorized by
Section 220 of the General Corporation Law of the State of Delaware, will have
the right to inspect such books and records.
ARTICLE VIII.
INDEMNIFICATION; INSURANCE
SECTION 8.1. INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action suit or proceeding, whether civil, criminal or investigative (a
"proceeding"), by reason of the fact that he or a person for whom he is the
legal representative is or was a director, officer, employee or agent of the
Company or is or was serving at the request of the Corporation as a director,
officer, employee, trustee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise (including service with respect to
employee benefit plans) whether the basis of such proceeding is alleged action
in his official capacity as a director, officer, employee or agent, or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent permitted by
the General Corporation Law of the State of Delaware against all expenses,
liability and loss (including attorneys' fees, judgments, fines, special excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith. Such right shall be
a contract right and shall include the right to require advancement by the
Company of attorneys' fees and other expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that the
payment of such expenses incurred by a Director or officer of the Company in his
capacity as a Director or officer (and not in any other capacity in which
service was or is rendered by such person while a Director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made by the Company only
upon delivery to the corporation of an undertaking, by or on behalf of such
Director or officer, to repay all amount so advanced if it should be determined
ultimately that such Director or officer is not entitled to be indemnified under
this section or otherwise.
SECTION 8.2. INDEMNIFICATION NOT EXCLUSIVE. The indemnification and
advancement of expenses provided by this Article VIII shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under the Certificate of Incorporation, any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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SECTION 8.3. INSURANCE. By action of its Board of Directors,
notwithstanding any interest of the Directors in the action, to the full extent
permitted by the General Corporation Law of the State of Delaware, the Company
may purchase and maintain insurance, in such amounts and against such risks as
the Board of Directors deems appropriate, on behalf of any person who is or was
a Director, advisory Director, officer, employee or agent of the Company, or of
any entity a majority of the voting stock of which is owned by the Company, or
who is or was serving at the request of the Company as a Director, advisory
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of the
status as such, whether or not the Company would have the power or would be
required to indemnify such person against such liability under the provisions of
this Article, or of the Certificate of Incorporation or of the General
Corporation Law of the State of Delaware.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. AMENDMENTS. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted at any regular meeting of the stockholders or at
any special meeting of the stockholders at which a quorum is present or
represented, provided notice of the proposed alteration or repeal be contained
in the notice of such special meeting, by the affirmative vote of a majority of
the shares entitled to vote at such meeting and present or represented, or by a
majority vote of the Board of Directors at any regular meeting of the Board or
at any special meeting of the Board if notice of proposed alteration or repeal
be contained in the notice of such special meeting.
SECTION 9.2. METHODS OF NOTICE. Whenever any notice is required to be given
in writing to any stockholder pursuant to any statute, the Certificate of
Incorporation or these Bylaws, it will not be construed to require personal or
actual notice, and such notice will be deemed for all purposes to have been
sufficiently given at the time the same is deposited in the United States mail
or recognized overnight courier service with postage thereon prepaid, addressed
to the stockholder at such address as appears on the books of the Company.
Whenever any notice may be or is required to be given as (a) personally to any
Director, it will be for all purposes to have been sufficiently given either (i)
three (3) days following the date the same is deposited in the United States
mail with postage prepaid thereon (ii) the day following the date the same is
delivered to any recognized overnight courier service, or (iii) to the date the
same is personally delivered, or (b) by facsimile to any Director, it will be
deemed for all purposes to have been sufficiently given at the time the same is
properly transmitted (with proof of transmission).
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SECTION 9.3. WAIVER OF NOTICE. The giving of any notice of the time, place
or purpose of holding any meeting of stockholders or Directors and any
requirement as to publication thereof, whether statutory or otherwise, will be
waived by the attendance at such meeting by any person entitled to receive such
notice except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and may be waived by such
person by an instrument in writing executed and filed with the records of the
meeting, either before or after the holding thereof.
SECTION 9.4. SEAL. The seal of the Company shall be in such form as shall
be adopted and approved from time to time by the Board of Directors. The seal
may be used by causing it, or a facsimile thereof, to be impressed, affixed,
imprinted or in any manner reproduced. The Board of Directors may determine not
to adopt a seal for the Company, in which case any documents or instruments
providing for the use of a seal shall be valid despite the lack of a corporate
seal.
SECTION 9.5. SECURITIES OF OTHER CORPORATION. The President or any Vice
President of the Company shall have power and authority to transfer, endorse for
transfer, vote, consent or take any other action with respect to any securities
of another issuer which may be held or owned by the Company and to make, execute
and deliver any waiver, proxy or consent with respect to any such securities.
SECTION 9.6. FISCAL YEAR. The fiscal year of the Company shall be fixed by
resolution of the Board of Directors.
SECTION 9.7. DIVIDENDS. Dividends upon the outstanding stock of the
Company, subject to the provisions of the statutes and the Certificate of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting. Dividends may be declared and paid in cash, in property or in
shares of the Company, or in any combination thereof.
SECTION 9.8. RESERVES. There may be created from time to time by resolution
of the Board of Directors, out of funds of the Company available for dividends,
such reserve or reserves as the Directors from time to time in their discretion
think proper (a) to provide for contingencies, (b) to equalize dividends, (c) to
repair or maintain any property of the Company, or (d) for such other purpose as
the Directors shall think beneficial to the Company, and the Directors may
modify or abolish any such reserve in the manner in which it was created.
SECTION 9.9. SIGNATURE OF NEGOTIABLE INSTRUMENTS. All bills, notes, checks
or other instruments for the payment of money shall be signed or countersigned
by such officer, officers, agent or agents, and in such manner, as are
prescribed by resolution (whether general or special) of the Board of Directors
or the executive committee.
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SECTION 9.10. SURETY BONDS. Such officers and agents of the Company (if
any) as the Board of Directors may direct from time to time shall be bonded for
the faithful performance of their duties and for the restoration to the Company,
in case of their death, resignation, disqualification or removal from office, of
all books, papers, vouchers, money and other property of whatever kind in their
possession or under their control belonging to the Company, in such amounts and
by such surety companies as the Board of Directors may determine. The premiums
on such bonds shall be paid by the Company, and the bonds so furnished shall be
in the custody of the Secretary.
SECTION 9.11. LOANS AND GUARANTIES. The Company may lend money to, guaranty
obligations of, and otherwise assist its Directors, officers and employees if
the Board of Directors determines such loans, guaranties or assistance
reasonably may be expected to benefit, directly or indirectly, the Company.
SECTION 9.12. RELATION TO CERTIFICATE OF INCORPORATION. These Bylaws are
subject to, and governed by, the Certificate of Incorporation.
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EXHIBIT 10.1
CONSULTING AGREEMENT
This AGREEMENT sets forth the terms and conditions upon which PageOne
Business Productions, LLC, a Delaware Limited Liability Company, ("PAGEONE") is
engaged by AmeriStar Corp, a Nevada Corporation, together with any successors
(collectively "AMSTAR") to effect a transaction ("the Transaction") intended to
merge or otherwise combine AMSTAR with a United States reporting company and for
related matters.
1.0 SERVICES PROVIDED.
Following its engagement, PAGEONE and its affiliates will:
1.1. Advise AMSTAR on the structure of the Transaction and actions to be
taken by AMSTAR in preparation for the completion of the Transaction;
1.2. Merge AMSTAR or exchange its stock with or assist in transferring its
assets into a United States reporting company ("the Business Combination"),
which is or will become a reporting company underss.12(g) of the Securities
Exchange Act of 1934 ("the 1934 Act"), as amended;
1.3. Prepare, assist in preparing or review the agreement for the Business
Combination ("Merger Agreement");
1.4. Prepare and file with the Securities and Exchange Commission a Form 10
or Form 8-K describing the Business Combination with the Company ("the Company"
hereinafter shall mean the United States reporting company following the
Business Combination, unless the context requires otherwise);
1.5. Introduce the Company to one or more market makers for the purpose of
making an orderly and efficient market in the Company's securities;
1.6. Assist the Company with listing its securities on the NASD OTC
Bulletin Board or, if the Company meets such requirements, apply for admission
to quotation of the Company's securities on the NASDAQ Stock Market and/or their
listing on a regional or national stock exchange, if requested by the Company;
1.7. Take any other actions reasonably required of it to complete the
Transaction as contemplated by this agreement.
2.0 BUSINESS COMBINATION.
2.1. PAGEONE will provide, at its expense, a United States corporation with
audited financial statements showing no material assets or liabilities which is
or which PAGEONE will cause to become a reporting company underss.12(g) of the
Securities Exchange Act of 1934 ("the 1934 Act").
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2.2. AMSTAR, at its election, will merge into, exchange its stock with, or
transfer its assets to the United States corporation provided by PAGEONE. Upon
the effective date of the Business Combination, the officers and directors
selected by AMSTAR will become the officers and directors of such United States
corporation. The name of such United States corporation upon the effective date
of or following the Business Combination will be chosen by AMSTAR
2.3. The United States corporation will have authorized capital of
100,000,000 shares of common stock, $.001 par value per share, and
8,000,000shares of preferred stock, $.001 par value per share.
2.4. Upon the effective date of the Business Combination, there will be
issued and outstanding by the Company (i) 1,250,000 common shares issued to
PAGEONE or its designees and (ii) 23,750,000 common shares as designated by
AMSTAR.
3.0 PAYMENTS.
3.1. Subject to Section 5.2, AMSTAR will pay PAGEONE $240,000 for its
services and the services of its affiliates in regard to the Transaction.
Payment of this amount will be made $20,000 monthly commencing on the first day
of the month following the effective date of the Business Combination; provided,
however, that if PAGEONE fails to carry out its obligations hereunder, AMSTAR
need not make any further payments to PAGEONE.
3.2. AMSTAR will not at any time take or allow any action (whether by
reverse stock split or otherwise) which would have the effect of reducing the
absolute number of common shares owned or to be owned by PAGEONE or its designee
under this agreement.
4.0 EXPENSES.
4.1. PAGEONE will bear its expenses incurred in regard to the Transaction,
including, without limitation, travel, telephone, duplication costs, and
postage.
4.2. AMSTAR will pay its own and third-party expenses (other than those of
PAGEONE) including, without limitation, Federal, state and NASDAQ filing fees,
underwriting costs, corporate financial relations, accounting fees, duplicating
costs and other expenses of the Company.
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5.0 AGREEMENT TO COMPLETE TRANSACTIONS.
5.1. AMSTAR agrees that it will timely take all steps necessary to complete
the Transaction to include, without limitation, causing audited financial
statements to be prepared in proper form for AMSTAR; obtaining consents of the
Board of Directors and the shareholders of AMSTAR, as required; causing all
necessary documents to be properly and timely prepared, executed, approved or
ratified, and filed, as appropriate; making timely and fully all required
payments related to the registration and listing of the Company's securities for
public trading, including filing fees; and timely taking all other actions
reasonably required of it to complete the Transactions.
5.2. In the event that at any time AMSTAR determines not to continue with
the Transaction, PAGEONE hereby grants to AMSTAR the right to buyout the
interest of PAGEONE in this agreement on the terms contained herein, in which
case PAGEONE agrees not to seek specific enforcement of this agreement. In the
event that AMSTAR elects not to continue with the Transaction (or if AMSTAR does
not timely take all such steps and do all such things as may be reasonably
required of it to complete the Transaction) PAGEONE will be entitled to (i)
retain the securities in AMSTAR acquired or to be acquired by PAGEONE or its
affiliates under this agreement as though the Business Combination had occurred
and (ii) receive in full all payments to be due to it or its affiliates through
and upon completion of the Transaction as though those events had occurred;
provided, however, that PAGEONE will not be entitled to retain any AMSTAR
securities, nor receive any payment under this paragraph if the failure to
complete the Transaction is due solely to the actions or failure to act by
PAGEONE or its affiliates. Upon payment of the buyout fee provided for herein,
all obligations of the parties under this agreement will cease except for
obligations which expressly or by their nature survive termination.
5.3. PAGEONE represents and warrants that it will timely take all steps
reasonable and necessary to complete the Transaction and to cause the securities
of the Company to trade in the United States secondary market..
6.0 PERFORMANCE OF SERVICES BY OTHERS.
From time to time, the achievement of certain results desired by the
Company, including the promotion of interest in its public securities, may be
enhanced by the services of other parties. These parties may include
consultants, advertising agencies, financial analysts and similar persons who
may, directly or indirectly, assist in creating interest in the Company's
securities. All compensation, costs and expenses of such parties, if engaged by
the Company, will be borne by it.
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7.0 ACTIONS AND UNDERSTANDINGS FOLLOWING THE BUSINESS COMBINATION.
7.1. AMSTAR understands the obligations and responsibilities that will
arise in regard to its becoming a reporting company and the trading of its
securities in the public market. AMSTAR understands that in order to achieve the
greatest market interest in its securities it, its officers and its directors,
all or some, will be required to continuously interact with the financial
community. This interaction will include, without limitation, timely filing of
reports under the 1934 Act, including audited financial statements; annual
reports to shareholders and shareholder meetings; issuing periodic press
releases, when appropriate; and meetings and discussions with existing and
prospective brokers, market makers, investment bankers and institutions.
7.2. AMSTAR understands that the completion of the Transactions will not,
in itself, result in capital investment in the Company. The public status of the
Company and its introduction to market makers and others in the financial
community may result in investment interest. However, investment interest will
depend upon the success of the Company, market conditions and other factors over
which neither PAGEONE, nor its affiliates, have any control.
7.3. AMSTAR understands that the ultimate judgment of the financial
community of the investment merits of the Company will depend upon the Company's
ability to successfully carry out its business plans and operations, to operate
at a profit and similar business considerations. AMSTAR represents in good faith
that it currently has no reason to believe that it will not be able to complete
the Transactions and to achieve its business objectives.
8.0 COMPLIANCE WITH SECURITIES LAW.
Now and following the Business Combination, as applicable, AMSTAR
represents and warrants that:
8.1. AMSTAR and its affiliates will at all times observe and comply with
Federal and State securities laws, rules and regulations incident to the
issuance and trading of the securities of the Company.
8.2. AMSTAR and its affiliates will furnish all information and documents
concerning it and its affiliates required for the preparation and filing of a
Form 8-K and/or Form 10-KSB by the Company and will assure that such information
is complete and accurate and does not contain any material misstatement or omit
any material information. Toward that end and in order to permit PAGEONE or its
designees to assist in the preparation of Form 8K and/or Form 10-KSB, AMSTAR and
its affiliates will timely provide all requested information and documents,
including officers' and directors' questionnaires.
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8.3. AMSTAR and its affiliates will not at any time knowingly engage in any
activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within its
control to prohibit any officer, director, other affiliate, agent or employee
from engaging in such conduct.
8.4. The Company will not at any time issue securities registered on Form
S-8 or issued pursuant to Regulation S of the General Rules and Regulations of
the Securities and Exchange Commission without (i) prior written notification to
PAGEONE and (ii) a written opinion of qualified counsel that the issuance of
such securities will violate any law, rule, or regulation under the Securities
Act of 1933 or the Securities Exchange Act of 1934.
8.5. For not less than thirty-six (36) months following execution of this
agreement, the Company will timely make all required Federal, state and other
filings necessary to allow the public trading of the Company's securities and,
if the Company's securities are then quoted on the NASDAQ Stock Market or listed
on any regional or national exchange, will take all actions necessary to
maintain such status for the Company's securities.
8.6. During the term of this agreement, PAGEONE shall have the right to
enforce the provisions of this paragraph and to seek damages for any violation
thereof by the Company.
Now and following the Business Combination, as applicable, PAGEONE
represents and warrants that:
8.7. PAGEONE and its affiliates will at all times observe and comply with
Federal and State securities laws, rules and regulations incident to the
issuance and trading of the securities of the Company.
8.8. PAGEONE and its affiliates will not at any time knowingly engage in
any activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within its
control to prohibit any officer, director, other affiliate, agent or employee
from engaging in such conduct.
9.0 NOTICES.
Any notices required or permitted under this agreement shall be deemed to
have been given when delivered in writing by hand, certified mail (return
receipt requested) or commercial courier, such as FedEx, to the following
addresses or to such other addresses as may have been given to each party in the
manner provided for in this paragraph.
In the case of AMSTAR, to:
AmeriStar Corp.
c/o AmeriStar Network, Inc.
321 North Mall Drive, Suite K-102
St. George, UT 84790
To the Attention of its Chairman
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In the case of PAGEONE to
PageOne Business Productions, LLC
860 Via de la Paz , Suite E-1
Pacific Palisades, CA 90272
To the Attention of its Managing Member
10.0 ARBITRATION.
10.1.SCOPE. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the state of California.
10.2. CONSENT TO JURISDICTION, SITUS AND JUDGMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration within the state of California. Any award in
arbitration may be entered in any domestic or foreign court having jurisdiction
over the enforcement of such awards.
10.3.APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the state of California, determined without regard to
its provisions which would otherwise apply to a question of conflict of laws.
10.4.DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion, allow
the parties to make reasonable disclosure and discovery in regard to any matters
which are the subject of the arbitration and to compel compliance with such
disclosure and discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the Federal Rules
of Civil Procedure, as they then exist, as may be modified by the arbitrator
consistent with the desire to simplify the conduct and minimize the expense of
the arbitration.
10.5.RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
10.6.FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable, except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
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10.7.MEASURE OF DAMAGES. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and/or securities issued or to be
issued and no claims shall be made by any party or affiliate for lost profits,
punitive or multiple damages.
10.8.COVENANT NOT TO SUE. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
10.9.INTENTION. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this agreement or any other matter, from whatever cause, based on
whatever law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
10.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
11.0 ASSIGNMENT.
In order to better carry out the Transactions, PAGEONE may assign all or
parts of this agreement provided that the assignee agrees to all the terms and
conditions of this agreement pertaining to such assignment. An assignment will
not relieve PAGEONE of any of its obligations under this agreement.
12.0 CONFIDENTIALITY.
As a result of entering into this agreement AMSTAR will have access to
information which PAGEONE regards as confidential and proprietary regarding
PAGEONE's methods of carrying out the Transactions (collectively the "Business
of PAGEONE"). AMSTAR agrees that it will not, except as reasonably required
pursuant to this Agreement, by law or the rules or regulations of any state or
federal securities commission, use itself, or divulge, furnish, or make
accessible to any person any knowledge, know-how, techniques, or information
with respect to PAGEONE or the Business of PAGEONE without the prior written
agreement of PAGEONE.
13.0 TERMINATION.
PAGEONE may terminate this agreement, without further obligation or
liability, at any time if the Company fails to meet its obligations under this
agreement in a manner which would constitute a material breach.
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14.0 MISCELLANEOUS.
14.1. COVENANT OF FURTHER ASSURANCES. The parties agree to take any further
actions and to execute any further documents which may from time to time be
necessary or appropriate to carry out the purposes of this agreement.
14.2. SCOPE OF AGREEMENT. This agreement constitutes the entire
understanding of the parties. No undertakings, warranties or representations
have been made other than as contained herein, and no party shall assert
otherwise. This agreement may not be changed or amended orally.
14.3. CURRENCY. All references to currency in this agreement are to United
States Dollars.
14.4. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
15.0 EFFECTIVE DATE.
The effective date of this agreement is January 25, 2000.
IN WITNESS WHEREOF, the parties have approved and executed this
agreement.
PageOne Business Productions, LLC
/s/ George Todt
-------------------------------------
George Todt, Managing Member
AmeriStar Corp.
/s/ O. Russell Crandall
-------------------------------------
O. Russell Crandall, Chairman of the Board
8
EXHIBIT 10.2
LOAN AGREEMENT
This Agreement (the "Agreement") is made and entered into this 12th day of
January, 2000, by and between -------------- ("Lender"), an individual residing
at -----------------------------------------------, and AmeriStar Corp. and/or
assigns ("Borrower"), with offices located in care of AmeriStar Network, Inc.,
321 North Mall Drive, Suite K-102, St. George, UT 84790.
Lender and Borrower may collectively be referred to herein as the "Parties".
RECITALS
WHEREAS, Borrower is simultaneously entering into a Subscription Agreement with
Lender under which Lender is purchasing an aggregate of Eight Million
(8,000,000) shares of the common stock of Borrower (the shares of common stock
of Borrower shall be referred to hereinafter as the "Stock"), and Lender expects
to utilize the value of the Stock to obtain capital for the acquisition of
assets and/or securities of other businesses in connection with the operations
of Borrower;
WHEREAS, Lender has represented to Borrower that Lender may be able to utilize
the Stock to obtain the funds aggregating Sixty-Five Million U.S. Dollars
(US$65,000,000) to loan to Borrower in accordance with the terms and conditions
of this Agreement; and
WHEREAS, Borrower and Lender are willing to comply with the herein contained
terms and conditions for the aforesaid loan to Borrower;
NOW, THEREFORE, in consideration of the herein contained recitals, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. RECITALS
The foregoing recitals shall be deemed to be a part of this agreement for
all purposes and not merely recitals.
2. TERMS OF LOAN
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a. Lender shall loan an aggregate of Thirty-Five Million Dollars
($35,000,000) to Borrower in an initial funding (the "Initial
Funding") in accordance with the terms and conditions of this
Agreement. The Initial Funding shall be made in four increments in the
respective amounts of $3,500,000 ("First Traunche"), $10,500,000
("Second Traunche"), $10,500,000 ("Third Traunche") and $10,500,000
("Fourth Traunche") and in the manner set forth herein.
b. Lender shall loan an additional Thirty Million Dollars ($30,000,000)
to Borrower in a subsequent funding (the "Second Funding") in
accordance with the terms and conditions of this Agreement. The Second
Funding shall be made in three increments, each in the amount of
$10,000,000 and in the manner set forth herein.
c. Lender will provide the First Traunche of the Initial Funding no later
than twenty (20) business days after the Borrower shall have deposited
the Stock into the Designated Account, but in no event prior to
Borrower having furnished to Lender documentation substantiating that
either (i) the daily closing market price for Borrower's Stock shall
have been a price of at least $5.00 per share and trading at an
average volume of at least fifteen thousand (15,000) shares per day
for twenty (20) business days in a period of thirty (30) business days
or less, or (ii) three of the Targets (as that term is defined in
Paragraph 3.a. below) are ready to close with Borrower and all that is
necessary to close same is the cash provided by the Initial Funding;
and Lender shall have three (3) business days thereafter in which to
make such payment. Subsequent to the provision of the First Traunche,
Lender shall not be required to provide any other funding required
hereunder on its respective due date if condition (i) immediately
above shall not have been met, instead providing such funding on the
day subsequent to condition (i) above having been met. The remaining
increments of the Initial Funding shall be provided monthly thereafter
on the same day of each calendar month as the First Traunche shall
have been made, commencing on the next calendar month after the First
Traunche shall have been made and continuing for consecutive calendar
months until all four increments shall have been provided, or as
otherwise deemed necessary by mutual agreement to close Target
Transactions, subject to condition (i) above having been met.
d. Lender will provide the first increment of the Second Funding no later
than thirty (30) business days after Lender has made the Fourth
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Traunche; PROVIDED, HOWEVER, prior to the provision of the first
increment of such Second Funding, Borrower shall submit to Lender for
Lender's approval, such approval to be not unreasonably withheld, the
Targets (as that term is defined in Paragraph 3.a below) in which
Borrower intends to acquire or invest on the securities thereof with
the funds provided by such Second Funding. Lender shall not be
required to provide any increment of the Second Funding required
hereunder on its respective due date if the daily closing market price
for Borrower's Stock shall not have been at a price of at least $5.00
per share price and trading at an average volume of at least fifteen
thousand (15,000) shares per day for twenty (20) business during the
thirty (30) days preceding the due date of an increment of the Second
Funding, instead providing such funding on the day subsequent to
condition (i) set forth in Paragraph 2.c above having been met. The
remaining increments of the Second Funding shall be provided monthly
thereafter on the same day of each calendar month as the first
increment of the Second Funding shall have been made, commencing on
the next calendar month after the first increment of the Second
Funding shall have been made and continuing for consecutive calendar
months until all three increments shall have been provided, or as
otherwise deemed necessary by mutual agreement to close Target
Transactions.
e. Simultaneously with execution of this Agreement by the Parties,
Borrower shall execute a series of promissory notes payable to the
order of Lender (the "Notes") and deliver same to Lender's Attorney to
be held in escrow in accordance with the provisions of the
Subscription Agreement. The Notes shall be prepared by Lender's
Attorney, shall bear interest at 6% per annum before maturity and 18%
per annum after maturity, shall be for a term of one (1) year and
shall otherwise be in form acceptable to Lender. The Notes are
identified as follows:
NOTE PRINCIPAL AMOUNT
---- ----------------
Series A $ 3,500,000
Series B $10,500,000
Series C $10,500,000
Series D $10,500,000
Series E $10,000,000
Series F $10,000,000
Series G $10,000,000
f. Upon receipt by Borrower of the First Traunche, the Series A Note
shall be deemed delivered to Lender and such date shall be deemed to
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<PAGE>
be the date on which the Series A Note was made. The due date of the
Series A Note shall be the first anniversary of the Series A Note.
g. Upon receipt by Borrower of the Second Traunche, the Series B Note
shall be deemed delivered to Lender and such date shall be deemed to
be the date on which the Series B Note was made. The due date of the
Series B Note shall be first anniversary of the Series B Note.
h. Upon receipt by Borrower of the Third Traunche, the Series C Note
shall be deemed delivered to Lender and such date shall be deemed to
be the date on which the Series C Note was made. The due date of the
Series C Note shall be the first anniversary of the Series C Note.
i. Upon receipt by Borrower of the Fourth Traunche, the Series D Note
shall be deemed delivered to Lender and such date shall be deemed to
be the date on which the Series D Note was made. The due date of the
Series D Note shall be the first anniversary of the Series D Note.
j. Upon receipt by Borrower of the first increment of the Second Funding,
the Series E Note shall be deemed delivered to Lender and such date
shall be deemed to be the date on which the Series E Note was made.
The due date of the Series E Note shall be the first anniversary of
the Series E Note.
k. Upon receipt by Borrower of the second increment of the Second
Funding, the Series F Note shall be deemed delivered to Lender and
such date shall be deemed to be the date on which the Series F Note
was made. The due date of the Series F Note shall be the first
anniversary of the Series F Note.
l. Upon receipt by Borrower of the third increment of the Second Funding,
the Series G Note shall be deemed delivered to Lender and such date
shall be deemed to be the date on which the Series G Note was made.
The due date of the Series G Note shall be the first anniversary of
the Series G Note.
m. Lender's Attorney is hereby authorized and instructed to enter the
dates of the making of the Notes and their respective due dates as
determined in the preceding subparagraphs.
n. In the event any funds are held or to be held in escrow pursuant to
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<PAGE>
this Agreement, the escrow agent for such funds shall be Lender's
Attorney, who shall hold and maintain such funds pursuant to this
Agreement. Lender's Attorney shall be permitted to establish such
accounts as are reasonable under the circumstances so that the party
or parties entitled to the income therefrom will be able to derive
such income. Lender's Attorney shall be entitled to reimbursement for
all expenses incurred and a reasonable fee for the management of such
accounts and shall be paid for such fee and expenses, if any, out of
the funds in the accounts.
3. CONDITIONS, REQUIREMENTS, EXCLUSIVE REMEDIES
a. Borrower represents that the purpose of the transfer of Borrower's
Stock to Lender is to enable Lender to raise capital to loan to
Borrower to engage in the acquisition of assets and/or investment in
businesses (the "Targets") or merger with such Targets related to and
in connection with the operations of Borrower and its plan for growth.
Borrower represents that the following Targets constitute the entirety
of the Targets and their respective projected acquisition costs that
Borrower has identified and disclosed to Lender and that Borrower
intends to acquire or make an investment in the securities of such
Targets:
5
<PAGE>
b. No later than thirty (30) business days after Lender's Stock shall
have been deposited to the Designated Accounts, Borrower shall provide
to Lender an executed contract between Borrower and Targets confirming
their agreement to the following:
(i) that each such Target identified in this Agreement is considering
being acquired by Borrower or is prepared to accept an investment
by Borrower and that the projected acquisition cost or investment
are approximately as stated in this Agreement;
(ii) that Lender shall have the option of disbursing loan proceeds set
forth hereunder to Borrower or directly to a Target on behalf of
Borrower.
c. No later than sixty (60) business days after Lender's Stock shall have
been deposited to the Designated Accounts, Borrower shall produce to
Lender letters of intent executed by the Borrower and by each Target
confirming and acknowledging (i) the intent of the Borrower to acquire
or invest in such Target, (i) the intent of the Target to be acquired
by or sell its securities to Borrower, (iii) the financial details of
each acquisition or investment, and (iv) the projected closing date of
each acquisition or investment.
d. If at any time during the period of funding of this loan, any
projected closing date for these acquisitions shall not have occurred
as stated in the letters of intent, or any such closing is not ready
to occur by the time a funding is to be made, a pro rata portion of
such funding may, at Lender's sole option, be held in escrow and not
disbursed or deemed disbursed to Borrower unless and until such
delayed closings shall have occurred or are about to occur and for
which such funds are necessary. The purpose of the last sentence is to
assure that the proceeds from this transaction are utilized for the
intended acquisitions or investments; provided, however, that up to
ten (10%) percent of the total loan, as funded, may be directed and
disbursed by Borrower, at its sole discretion, to be used in the
general operations of Borrower. Borrower shall have the right to
substitute new targets for the Targets identified herein; provided,
however, the acquisition or investment transactions contemplated
hereby shall not change in any substantial or material aspect as a
result of substitutions.
e. Until the First Traunche shall have been made, all of Lender's Stock
shall remain in the Designated Accounts, except only in the event
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<PAGE>
Lender is required to move same for use as collateral in raising the
funds for this loan. After each funding shall have been made, Lender
shall be entitled to transfer, alienate, hypothecate or encumber that
number of shares equal to the amount of each such funding at the
conversion value of such shares. At such time as the Lender shall have
funded $14,000,000 of the loan, Lender shall thereafter be free to
transfer, alienate, hypothecate or encumber all or any portion of the
Stock.
f. Borrower shall have the option, so long as Borrower is not in default
of any of the notes, to repurchase Lender's Stock for the price of
$14.00 per share.
g. The following remedies are designed to give neither party any
incentive, reason or advantage for breaching or terminating this
transaction, but instead to give both parties every reason to complete
the performance of this Agreement:
(i) BORROWER'S REMEDY. In the event any funding of the loan is not
made within ten (10) days after its due date, Borrower shall have
the option to terminate further performance of this transaction
and obtain return of Lender's Stock remaining encumbered pursuant
to the Subscription Agreement executed simultaneously with this
Agreement after written notice to the Lender and three (3)
business days shall have thereafter passed without cure of the
failure to fund. Upon receipt of such notice and lapse of the
cure period without cure, Lender and Borrower shall instruct the
depository institution at which the Designated Accounts are
located to immediately begin to effect the release of said
Lender's Stock and transfer and return of same to Borrower in the
same proportionate ownership as in effect immediately prior to
execution of this Agreement. The Parties understand that return
of said Lender's Stock may require certain time as dictated by
law and/or by the depository institution. The termination of
further performance of this transaction and return of said
Lender's Stock shall be the exclusive remedy of the Borrower for
Lender's breach of this Agreement, and the Borrower waives any
other remedies at law or in equity. If Borrower must resort to
judicial process in order to obtain return of such Stock, then
Lender shall be responsible to Borrower for reasonable attorneys
fees and court costs incurred thereby. In order to facilitate the
return of said Lender's Stock to the Borrower, the Parties agree
that such of Lender's Stock to which Borrower shall be entitled
to obtain return shall be deemed invalid and wrongfully endorsed
by mutual consent (with no liability between or among the Parties
7
<PAGE>
for such invalidity or wrongful endorsement), and the Parties
shall take all reasonable actions to obtain return thereof,
including notice of a stop order cancellation.
(ii) LENDER'S REMEDY. In the event Borrower shall for any reason or
for no reason fail or refuse to close the acquisition of or
investment in the Targets in the manner established by the
letters of intent, fundings of the loan may, as stated elsewhere
herein, be held in escrow until such time as the acquisition or
merger shall be closed. If any of said closings do not occur
within a reasonable time after they were initially scheduled,
then the portion of the moneys held in escrow that were earmarked
for such failed closings shall be returned to Lender and the
total loan amount shall be deemed to be reduced by the amount of
such return.
h. From the time this Agreement is executed until such time as Lender
shall have funded $14,000,000 of the Loan, Lender's name shall not be
set forth in any press releases or other documents intended for
general dissemination or circulation unless dictated by regulatory
requirements, and all releases shall first be made available to Lender
for review prior to release.
i. The chronology of events and requirements hereunder shall be deemed to
establish a series of conditions precedent to events and requirements
subsequent thereto. In other words, any event or requirement that is
to occur before any other event or requirement shall be a condition
precedent to such other event or requirement, and the failure or delay
of such condition shall be good reason for the failure or delay of
such other event or requirement.
4. CONTINUING REPRESENTATIONS AND WARRANTIES, SAVINGS CLAUSE, INDEMNIFICATION
a. Borrower represents and warrants, which representations and warranties
shall continue so long as there remains any performance hereunder due
by any of the Parties and which shall survive this transaction and its
full performance, as follows:
(i) that Lender's Stock shall be shares of the capital stock of
Borrower that are non-assessable and non-callable and that
Borrower will produce proof of such no later than the time for
8
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producing letters of intent regarding acquisition of or
investment in Targets as provided elsewhere herein;
(ii) that the transactions set forth herein and contemplated hereby
are fully and completely authorized by Borrower, do not conflict
with and are not in violation of any of the minutes or
organizational documents of Borrower or any contracts to which
the Borrower may be a party;
(iii)that Borrower is and shall be in full compliance with all
requirements of applicable jurisdictions and the Securities
Exchange Act of 1934, as amended and all applicable securities
laws;
(iv) that the transaction set forth herein and contemplated hereby is
not in violation of the provisions of the Securities Exchange Act
of 1934, as amended; and
(v) that Borrower has reviewed this Agreement in its entirety and has
obtained independent advice of counsel before executing same, or
has decided of its own volition not to seek such counsel and/or
to follow advice of such counsel.
b. If any term, covenant, condition or provision of this agreement or the
application thereof, at any time or to any extent, is held invalid or
unenforceable, the remainder of this agreement shall not be affected,
and each other term, covenant, condition, and provision of this
agreement shall be valid and enforceable to the fullest extent
permitted by law.
c. Borrower hereby holds Lender harmless and indemnifies Lender from and
against any and all claims, assertions, actions, causes of action,
damages, losses, costs and attorneys fees that may arise in connection
with this Agreement and this transaction and which may be claimed or
asserted by persons or entities not party to this Agreement, except as
may be asserted by Lender or any persons or entities claiming by,
through, under or against Lender. For purposes of this paragraph,
Lender shall be deemed to include Lender's officers, agents,
directors, stockholders, employees and attorneys.
5. NOTICES
a. Any notice required or advisable hereunder, from Borrower to Lender or
9
<PAGE>
from Lender to Borrower, shall be deemed served effective upon receipt
by the intended recipient and shall be given only by personal delivery
or by registered or certified mail return receipt requested, addressed
to the Borrower or to the Lender. The Parties may communicate by
facsimile transmission, but notices given in this manner shall be
deemed as received only if such receipt is explicitly or implicitly
acknowledged by the intended recipient. Notices received by a majority
of the persons and entities in the Borrower group shall be deemed as
received by all of them if such notices have been sent to all of them.
For purposes hereof, the following addresses and fax numbers are
furnished:
(i) Borrower:
AmeriStar Corp., c/o AmeriStar Network, Inc., 321 North Mall
Drive, Suite K-102, St. George, Utah; Fax: 435-656-1207.
(ii) Lender:
--------------------
6. CONFIDENTIALITY
a. This agreement will be maintained confidential and will not be
reproduced in any manner whatsoever to any person or entity not a
Party hereto, excluding attorneys engaged by any of the Parties, court
order or government order. Both Parties agree not to circumvent the
legitimate interests of the other, and to maintain strict
confidentiality regarding the transaction.
b. Each Party shall maintain the confidentiality of trade secrets,
techniques and contacts of the other Party.
7. BROKERS
The Parties represent and agree that there are no brokers or finders or any
other persons or entities who may be entitled to brokerage or finder's or
introducer's fees, with the sole exception of Jay Bonds, for whom Lender
agrees to be solely responsible for the payment of any and all fees that
may inure to him as a result of the transaction contemplated herein; Lender
holds Borrower harmless in connection with same. In all other events, each
10
<PAGE>
party hereto hereby indemnifies and holds the other harmless in the event
any person or entity claims or asserts a claim to brokerage or finder's or
introducer's fees or the like, and each indemnitor shall provide such
indemnification in the event a claim is made through that indemnitor. All
such indemnification shall include liability, loss, damage, costs and
attorneys fees.
8. MISCELLANEOUS
a. This agreement constitutes the sole agreement between the Parties
hereto, with respect to the subject matter herein and cannot be
amended or waived except by an instrument in writing signed by the
Party to be bound thereby. Unless and except as otherwise provided
herein, no prior or contemporaneous discussions between or among or
representations of any of the Parties shall be admissible to change,
modify or amend the provisions hereof.
b. This agreement shall be governed and construed in accordance with the
laws of the State of Florida.
c. Borrower acknowledges that Lender is not acting as a mortgage or
securities broker or dealer or acting in any capacity as an investment
advisor as defined under the Investment Advisors Act of 1940 or other
similar law. This agreement is not intended for the purpose of buying
or trading securities, or offering counsel or advice with respect to
any such activities. This agreement is a single private transaction.
Borrower has sought or agrees to seek the advice of counsel in
connection with the negotiation and consummation of any transaction
contemplated hereunder, or has waived such as provided otherwise
herein.
d. All references herein to dollars shall be deemed to mean currency of
the United States of America, United States Dollars.
e. All references herein to the singular, plural, or any gender, shall be
deemed to include the singular, plural, and any or all genders, as
applicable.
f. All references herein to the Stock shall be deemed to include Lender's
Stock and all certificates representing Lender's Stock.
11
<PAGE>
g. This agreement is the result of negotiation between and among the
Parties. There shall not be applied a rule of construction which
construes any provision hereof or the entirety hereof against the
party who prepared or whose counsel prepared this agreement.
h. The Parties recognize that Borrower is contemplating a merger with
another entity, and it is intended that this Agreement shall follow
such merger so that the surviving entity is bound to this Agreement as
Borrower.
i. This agreement may be executed in counterparts, and each counterpart
will be deemed as if signed by all signatories who have signed a
counterpart.
j. Facsimile copies hereof, containing facsimile signatures of the
signatories, shall be deemed as originals and given the same operative
effect and have the same enforceability as originals.
9. PRIOR AGREEMENTS
All prior documents that may appear to be or be deemed to be agreements or
contracts between the Parties related in any way to the stock of the
Corporation are void and of no effect. The Parties acknowledge that other
such documents may have been signed but were never delivered or deemed
delivered by one party to the other or considered by the Parties to have
created a binding obligation among them. The Parties agree and acknowledge
that this Agreement is the first and final agreement between them in
relation to the Notes and Lender's Stock, unless and except as this
Agreement may be amended or modified in the manner permitted herein.
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SIGNATURE PAGE
IN WITNESS THEREOF, the Parties have caused this Agreement to be executed as of
the day first above written.
Borrower: Lender:
AMERISTAR CORP.
/s/ Oscar Russell Crandall, Jr.
- ------------------------------- ----------------------------
Oscar Russell Crandall, Jr. --------------, Individually
Chairman of the Board
Lender's Attorney, as Escrow Agent:
/s/ Mark A. Marder
- -----------------------------------
Mark A. Marder, Esquire
13
EXHIBIT 10.3
SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Subscription Agreement") is made and entered
into this 12th day of January, 2000, by and between ----------------
("Purchaser"), an individual residing at ---------------------------------------
- -----, and AmeriStar Corp. and/or assigns (the "Company"), with offices located
in care of AmeriStar Network, Inc., 321 North Mall Drive, Suite K-102, St.
George, UT 84790.
Purchaser and the Company may collectively be referred to herein as the
"Parties".
RECITALS
WHEREAS, Purchaser desires to purchase and the Company desires to sell Eight
Million (8,000,000) shares of the common stock of the Company (the "Stock"), and
the Parties are simultaneously entering into a Loan Agreement (the "Loan
Agreement"), which is attached hereto and incorporated herein, pursuant to which
Purchaser intends to loan the Company an aggregate of Sixty-Five Million U.S.
Dollars (US$65,000,000);
WHEREAS, Purchaser has represented to the Company that Purchaser may be able to
utilize the Stock to obtain the funds aggregating Sixty-Five Million U.S.
Dollars (US$65,000,000) to loan to the Company in accordance with the terms and
conditions of this Agreement; and
WHEREAS, the Company and Purchaser are willing to comply with the herein
contained terms and conditions for the transfer and delivery of the Company's
Stock to Purchaser as hereinafter set forth with the understanding by the
Parties that such Stock as is so transferred to Purchaser will be under the
control and ownership of the Purchaser during the term of and conditioned upon
the performance of this Agreement.
NOW, THEREFORE, in consideration of the herein contained recitals, the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. RECITALS
The foregoing recitals shall be deemed to be a part of this agreement for
all purposes and not merely recitals.
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2. TRANSFER OF THE STOCK
a. The Company acknowledges that it is concurrently herewith delivering
its certificates representing an aggregate of Eight Million
(8,000,000) shares of the Company's Stock, which shall be issued as
sixteen certificates each representing 500,000 shares (the Stock and
the certificates issued in Purchaser's name shall be hereinafter
referred to as the "Purchaser's Stock"). Purchaser shall have the
right to cause the Company to issue any such new certificate in the
name of Purchaser's assignee(s), and for purposes hereof, such
certificates shall be considered to be issued in Purchaser's name.
b. The purchase price for the first Five Million (5,000,000) shares of
the Company's Stock purchased hereunder shall be Seven U.S. Dollars
($7.00) per share, and the purchase price for the balance of Three
Million (3,000,000) shares of the Company's Stock purchased hereunder
shall be Ten U.S. Dollars ($10.00) per share, such purchase price paid
in accordance with the provisions of subparagraph e of this Paragraph
2.
c. Upon execution of this Agreement and the issuance of the stock
certificates in Purchaser's name, said certificates shall be delivered
to Purchaser's attorney, Mark A. Marder ("Purchaser's Attorney"), for
subsequent deposit in Purchaser's account or accounts at a bank or
other depository located in the United States to be designated by
Purchaser ("Designated Accounts"). Purchaser shall have and enjoy all
incidents and indices of ownership of Purchaser's Stock. Purchaser
intends to utilize the Designated Accounts and the Stock to raise the
funds for the loan to the Company. Upon deposit of Purchaser's Stock
into the Designated Accounts, Purchaser shall advise the Company of
the location of the Designated Accounts and the depository institution
at which they are located; PROVIDED, HOWEVER, the Company agrees to
not contact said institution or cause or permit same
to be contacted in any way on its behalf, except as is set forth in
Paragraph 3.g.(i) of the Loan Agreement.
d. The Parties intend for the transfer and deposit of the Stock into the
Designated Accounts to be effectuated immediately upon, or within
three (3) business days after, execution of this Agreement, or in the
event the Company has entered into an agreement to merge with a
publicly-held company, then three (3) business days after that merger
has become effective. However, the Parties understand that the
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transfer agent and the depository institution may be governed by
procedures, guidelines and laws that may cause these steps to take
additional time. The Parties shall cooperate and take all reasonable
measures to see that these steps are accomplished as quickly as the
transfer agent and depository institution can effect same, shall not
hamper these procedures in any way, and shall instruct and direct the
transfer agent and depository institution to act with all due and
reasonable haste.
e. Payment shall be made by delivery to the Company of the Notes issued
in accordance with Paragraph 2 of the Loan Agreement, which the
Company shall have delivered into escrow with Purchaser's Attorney, in
accordance with the following schedule:
(i) The Series A Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the Second Traunche and delivery of the Series B Note
to Purchaser (which shall remain in escrow with Purchaser's
Attorney).
(ii) The Series B Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the Third Traunche and delivery of the Series C Note
to Purchaser (which shall remain in escrow with Purchaser's
Attorney).
(iii)The Series C Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the Fourth Traunche and delivery of the Series D Note
to Purchaser (which shall remain in escrow with Purchaser's
Attorney).
(iv) The Series D Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the first increment of the Second Funding and delivery
of the Series E Note to Purchaser (which shall remain in escrow
with Purchaser's Attorney).
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(v) The Series E Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the second increment of the Second Funding and
delivery of the Series F Note to Purchaser (which shall remain in
escrow with Purchaser's Attorney).
(vi) The Series F Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
funding of the third increment of the Second Funding and delivery
of the Series G Note to Purchaser (which shall remain in escrow
with Purchaser's Attorney).
(vii)The Series G Note shall be endorsed to the Company as paid in
full and delivered to the Company by Purchaser's Attorney upon
the latter of (i) thirty (30) business days of the delivery of
the Series G Note to Purchaser's Attorney, or (ii) on the day
subsequent to condition (i) set forth in Paragraph 2.c of the
Loan Agreement has been met.
3. RIGHTS AND PRIVILEGES INCIDENT TO OWNERSHIP OF STOCK
a. At all times, unless provided otherwise herein, Purchaser shall have
and enjoy all rights of ownership and possession of Purchaser's Stock
free and clear of any claim of the Company or any person or entity
claiming by, through, under or against the Company or any of the
persons or entities comprising the Company. This includes the right to
vote, the right to receive dividends, and the right to alienate or
encumber Purchaser's Stock.
b. In the event of the termination of performance hereunder such that the
Company will be receiving return of any of Purchaser's Stock, such
Purchaser's Stock as the Company receives back shall be free and clear
of any claim of the Purchaser or any person or entity claiming by,
through, under or against the Purchaser.
c. The Company shall include, at its sole expense, Purchaser's Stock in
any registration statement filed with the Securities and Exchange
Commission (the "SEC") pursuant to a public offering. Purchaser shall
have the right, at any time and at its sole expense, to require the
Company to file a registration statement with the SEC to register
Purchaser's Stock, and in the event the Company does not file such a
registration statement within a reasonable time, Purchaser shall be
provided with injunctive relief, as well as money damages, and the
expense of such registration shall be borne solely by the Company.
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4. CONTINUING REPRESENTATIONS AND WARRANTIES, SAVINGS CLAUSE, INDEMNIFICATION
a. The Company represents and warrants, which representations and
warranties shall continue so long as there remains any performance
hereunder due by any of the Parties and which shall survive this
transaction and its full performance, as follows:
(i) that Purchaser's Stock shall be shares of the capital stock of
the Company that are non-assessable and non-callable and that the
Company will produce proof of such no later than the time for
producing letters of intent regarding acquisition of or
investment in Targets as provided elsewhere herein;
(ii) that the transactions set forth herein and contemplated hereby
are fully and completely authorized by the Company, do not
conflict with and are not in violation of any of the minutes or
organizational documents of the Company or any contracts to which
the Company may be a party;
(iii)that the Company is and shall be in full compliance with all
requirements of applicable jurisdictions and the Securities
Exchange Act of 1934, as amended and all applicable securities
laws;
(iv) that the transaction set forth herein and contemplated hereby is
not in violation of the provisions of the Securities Exchange Act
of 1934, as amended; and
(v) that the Company has reviewed this Agreement in its entirety and
has obtained independent advice of counsel before executing same,
or has decided of its own volition not to seek such counsel
and/or to follow advice of such counsel.
b. If any term, covenant, condition or provision of this agreement or the
application thereof, at any time or to any extent, is held invalid or
unenforceable, the remainder of this agreement shall not be affected,
and each other term, covenant, condition, and provision of this
agreement shall be valid and enforceable to the fullest extent
permitted by law.
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c. The Company hereby holds Purchaser harmless and indemnifies Purchaser
from and against any and all claims, assertions, actions, causes of
action, damages, losses, costs and attorneys fees that may arise in
connection with this Agreement and this transaction and which may be
claimed or asserted by persons or entities not party to this
Agreement, except as may be asserted by Purchaser or any persons or
entities claiming by, through, under or against Purchaser. For
purposes of this paragraph, Purchaser shall be deemed to include
Purchaser's officers, agents, directors, stockholders, employees and
attorneys.
5. NOTICES
Any notice required or advisable hereunder, from the Company to Purchaser
or from Purchaser to the Company, shall be deemed served effective upon
receipt by the intended recipient and shall be given only by personal
delivery or by registered or certified mail return receipt requested,
addressed to the Company or to the Purchaser. The Parties may communicate
by facsimile transmission, but notices given in this manner shall be deemed
as received only if such receipt is explicitly or implicitly acknowledged
by the intended recipient. Notices received by a majority of the persons
and entities in the Company group shall be deemed as received by all of
them if such notices have been sent to all of them. For purposes hereof,
the following addresses and fax numbers are furnished:
The Company:
AmeriStar Corp., c/o AmeriStar Network, Inc., 321 North Mall
Drive, Suite K-102, St. George, Utah; Fax: 435-656-1207.
Purchaser:
-----------------------------------
6. CONFIDENTIALITY
a. This agreement will be maintained confidential and will not be
reproduced in any manner whatsoever to any person or entity not a
Party hereto, excluding attorneys engaged by any of the Parties, court
order or government order. Both Parties agree not to circumvent the
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legitimate interests of the other, and to maintain strict
confidentiality regarding the transaction.
b. Each Party shall maintain the confidentiality of trade secrets,
techniques and contacts of the other Party.
7. BROKERS
The Parties represent and agree that there are no brokers or finders or any
other persons or entities who may be entitled to brokerage or finder's or
introducer's fees, with the sole exception of Jay Bonds, for whom Purchaser
agrees to be solely responsible for the payment of any and all fees that
may inure to him as a result of the transaction contemplated herein;
Purchaser holds the Company harmless in connection with same. In all other
events, each party hereto hereby indemnifies and holds the other harmless
in the event any person or entity claims or asserts a claim to brokerage or
finder's or introducer's fees or the like, and each indemnitor shall
provide such indemnification in the event a claim is made through that
indemnitor. All such indemnification shall include liability, loss, damage,
costs and attorneys fees.
8. ACCREDITED INVESTOR REPRESENTATIONS
a. DISCLAIMER: THE SECURITIES BEING PURCHASED PURSUANT TO THIS
SUBSCRIPTION AGREEMENT HAVE NOT BEEN FILED OR REGISTERED WITH OR
APPROVED BY THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), NOR
HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION SUPPLIED TO PURCHASER. NO STATE SECURITIES LAW
ADMINISTRATOR HAS PASSED ON OR ENDORSED THE MERITS OF THIS TRANSACTION
OR THE ACCURACY OR THE ADEQUACY OF THE INFORMATION SUPPLIED TO
PURCHASER. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
b. Purchaser has received all materials relating to the Company which
Purchaser has requested. The Company has answered all inquiries that
Purchaser or his or her representatives have put to it relating to
this transaction. Purchaser has taken all the steps necessary to
evaluate the merits and risks of an investment in the Company.
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c. Purchaser has such knowledge and experience in finance, securities,
investments and other business matters so as to be able to protect his
interests in connection with this transaction, ad his investment in
the Company is not material when compared to his total financial
capacity.
d. Purchaser understands the various risks of an investment in the
Company and can afford to bear such risks, including, but not limited
to, the risks of losing his entire investment. Purchaser is aware that
the purchase of the Stock is a speculative investment involving a high
degree of risk, that there is no guarantee that he will realize any
gain from this investment and that he could lose the entire amount of
his investment.
e. Purchaser has no need for liquidity of his investment in the Company
and can afford to hold Purchaser's Stock for a substantial period of
time. Purchaser is fully aware that an investment in the Company
involves significant risks which he may have to bear for an indefinite
period of time because (i) the Company has no operating history; (ii)
the transfer of Purchaser's Stock is subject to restrictions; (iii)
the Stock has not been registered under the Securities Act of 1933
(the "Act") or under the securities laws of any state and, therefore,
cannot be resold unless they are subsequently so registered or an
exemption from such registration is available; and (iv) he is
acquiring the Purchaser's Stock for investment and not with a view to
resale or distribution thereof.
f. Purchaser represents that: (i) his commitment to the investment is
reasonable in relation to his net worth; (ii) he has the requisite
knowledge with regard to all of the considerations involved in making
this investment; (iii) he can bear the economic risk of losing his
entire investment; and (iv) his overall commitment to investments
which are not readily marketable is not disproportionate to his net
worth and his investment in Purchaser's Stock will not cause such
overall commitment to become excessive.
g. Purchaser represents that the funds provided for this investment are
either separate property of Purchaser, community property over which
Purchaser has the right of control or are otherwise funds as to which
Purchaser has the sole right of management and that the source of the
funds are not from any criminal enterprise.
h. Purchaser is a natural person who qualifies as an "accredited
investor" as that term is defined in Section 501(a) of Regulation D
promulgated under the Act.
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9. MISCELLANEOUS
a. This agreement constitutes the sole agreement between the Parties
hereto, with respect to the subject matter herein and cannot be
amended or waived except by an instrument in writing signed by the
Party to be bound thereby. Unless and except as otherwise provided
herein, no prior or contemporaneous discussions between or among or
representations of any of the Parties shall be admissible to change,
modify or amend the provisions hereof.
b. This agreement shall be governed and construed in accordance with the
laws of the State of Florida.
c. The Company acknowledges that Purchaser is not acting as a mortgage or
securities broker or dealer or acting in any capacity as an investment
advisor as defined under the Investment Advisors Act of 1940 or other
similar law. This agreement is not intended for the purpose of buying
or trading securities, or offering counsel or advice with respect to
any such activities. This agreement is a single private transaction.
The Company has sought or agrees to seek the advice of counsel in
connection with the negotiation and consummation of any transaction
contemplated hereunder, or has waived such as provided otherwise
herein.
d. All references herein to dollars shall be deemed to mean currency of
the United States of America, United States Dollars.
e. All references herein to the singular, plural, or any gender, shall be
deemed to include the singular, plural, and any or all genders, as
applicable.
f. All references herein to the Stock shall be deemed to include
Purchaser's Stock and all certificates representing Purchaser's Stock.
g. This agreement is the result of negotiation between and among the
Parties. There shall not be applied a rule of construction which
construes any provision hereof or the entirety hereof against the
party who prepared or whose counsel prepared this agreement.
h. The Parties recognize that the Company is contemplating a merger with
another entity, and it is intended that this Agreement shall follow
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such merger so that the surviving entity is bound to this Agreement as
the Company. It is the intent of the Parties that the Stock to be
issued to the Purchaser is the Stock of the surviving entity of such
merger. Purchaser shall be furnished with an executed copy of such
merger agreement which shall contain explicit assumption by the
surviving entity of the rights and duties of the Company under this
Agreement.
i. This agreement may be executed in counterparts, and each counterpart
will be deemed as if signed by all signatories who have signed a
counterpart.
j. Facsimile copies hereof, containing facsimile signatures of the
signatories, shall be deemed as originals and given the same operative
effect and have the same enforceability as originals.
10. PRIOR AGREEMENTS
All prior documents that may appear to be or be deemed to be agreements or
contracts between the Parties related in any way to the Stock are void and
of no effect. The Parties acknowledge that other such documents may have
been signed but were never delivered or deemed delivered by one party to
the other or considered by the Parties to have created a binding obligation
among them. The Parties agree and acknowledge that this Agreement is the
first and final agreement between them in relation to the Notes and
Purchaser's Stock, unless and except as this Agreement may be amended or
modified in the manner permitted herein.
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SIGNATURE PAGE
IN WITNESS THEREOF, the Parties have caused this Agreement to be executed as of
the day first above written.
The Company: Purchaser:
AmeriStar Corp.
/s/ Oscar Russell Crandall, Jr.
- ------------------------------- ------------------------
Oscar Russell Crandall, Jr. -------------
Chairman of the Board Individually
Purchaser's Attorney, as Escrow Agent:
/s/ Mark A. Marder
- -------------------------------------
Mark A. Marder, Esquire
EXHIBIT 99.1
Immediate Release Southern California January 27, 2000
PRESS RELEASE
PageOne Business Productions, LLC. Pacific Palisades, CA (www.invbank.com),
financial consultant to JETCO, Inc. announced today that JETCO has merged with
AmeriStar, Corp. (a Nevada corporation). The new name selected for the merged
companies will be InTec, Inc.
InTec, Inc. has focused on the opportunity of providing government and
multi-national corporations with the most advanced Information Technology
products and services, and intends to match that with investments in
entrepreneurial companies in the early stages of developing and commercializing
cutting edge technologies. The significant difference InTec will bring to these
companies is an active participation by senior management in the development of
the marketing, financing and operating strategies and a distribution capacity in
the Information Technology sector unique to InTec, Inc. This business model is
not, with rare exceptions, currently utilized by business incubators and venture
capitalists.
Senior executives of InTec, Inc. have identified a number of companies that are
at the forefront of developed sophisticated technologies in the fields of
computer hardware and software, telephony and medical technologies, many of
which utilize the Internet for communication with the marketplace.
InTec, Inc. has received a funding commitment through an assignment from
AmeriStar Network, Inc. (Symbol: AMWK; Webpage at www.ameristarnetwork.com) of a
commitment by a private investor to invest $65 million in InTec, Inc. for the
contemplated acquisitions, investment capital and operating capital. The merger
and assignment of the funding commitment was negotiated by PageOne and JETCO's
President, Mr. George A. Todt. Mr. Todt stated, "This business combination is
another example of matching capital with Internet-powered entrepreneurs, but
with seasoned executives and a clear distribution strategy usually missing from
early stage companies." InTec, Inc. will operate as an affiliate of AmeriStar
Network, Inc. and will be managed by a team of senior executives with extensive
experience in early stage company development and growth.
This press release may contain forward-looking statements. Forward-looking
statements are subject to risks and uncertainties, including the risk factors
listed in the company's reports filed with the Securities and Exchange
Commission that could cause actual results to differ materially from those
projected.
Contact: Betsy Rowbottom
Vice President
PageOne Business Productions, LLC
310.230.6101
