<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1 to
Annual Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1997
Commission file number 0-15960
U.S. TECHNOLOGIES INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 73-1284747
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3901 Roswell Road, Suite 300, Marietta, Georgia 30062
- ----------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (770) 565-4311
--------------
Securities registered pursuant to Section 12(b) of the Act: None
----
Securities registered pursuant to Section 12(g) of the Act: Common Stock $.02
par value
---------------------------
(Title of class)
<PAGE> 2
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) 1. Financial Statements and Auditors' Report.
The following financial statements and auditors' report have been filed
as Item 8 in Part II of this report:
Report of Independent Auditors
Consolidated Balance Sheets - December 31, 1997 and 1996
Consolidated Statements of Operations - Years ended December
31, 1997, 1996 and 1995
Consolidated Statements of Stockholders' Equity (Capital
Deficit) - Years ended December 31, 1997, 1996 and 1995
Consolidated Statements of Cash Flows - Years ended December
31, 1997, 1996 and 1995
Notes to Consolidated Financial Statements
2. Financial Statement Schedules.
The following supporting financial statement schedule is filed with
this report:
II - Valuation and Qualifying Accounts - Years Ended December
31, 1997, 1996 and 1995
All other schedules are omitted as the required information is
inapplicable, or the information is presented in the consolidated financial
statements or related notes.
<PAGE> 3
3. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this report. The exhibits which are denominated by an asterisk (*) were
previously filed as a part of, and are hereby incorporated by reference from
either (i) the Amendment No. 1 to the Registration Statement on Form S-1 under
the Securities Act of 1933, as filed with the Securities and Exchange Commission
on March 26, 1987, Registration No. 33-11720, ("Amendment No. 1 to S-1"); (ii)
the Annual Report on Form 10-K for the year ended December 31, 1988 ("1988
10-K"); (iii) the Current Report on Form 8-K as filed with the Securities and
Exchange Commission on July 14, 1989 ("1989 8-K"); (iv) the Registration
Statement on Form S-8 as filed with the SEC on May 30, 1989, Registration No.
33-29048 ("1989 S-8"); (v) the Registration Statement on Form S-8 as filed with
the SEC on May 13, 1993, Registration No. 33-62686 ("May 1993 S-8"); (vi) the
Registration Statement on Form S-8 as filed with the SEC on September 22, 1993,
Registration No. 33-69200 ("September 1993 S-8"); (vii) the Registration
Statement on Form S-8 as filed with the SEC on May 13, 1994, Registration No.
33-78892 ("1994 S-8"); (viii) the Registration Statement on Form S-8 as filed
with the SEC on November 15, 1996, Registration No. 333-16199 ("1996 S-8"); (ix)
the Registration Statement on Form S-8 as filed with the SEC on November 15,
1996, Registration No. 333-16203 ("1996 Non-Qualified S-8") and (x) the Annual
Report on Form 10-K for the year ended December 31, 1997 ("1997 10-K").
<TABLE>
<CAPTION>
Exhibit # Description of Exhibit
- --------- -----------------------------------------------------------------
<S> <C> <C>
3.1 - Amended and Restated Certificate of Incorporation of the Registrant
3.2 - Restated By-Laws of the Registrant
*4.1 - Form of certificate evidencing Common Stock of the Company
(Exhibit 3.1 to Amendment No. 1 to S-1)
*4.1.1 - Revised form of certificate evidencing Common Stock of the
Company reflecting the change of the name to U.S. Technologies
Inc. (Exhibit to 1989 8-K)
*10.1 - 1988 Employee Stock Option Plan (Exhibit 10(e), 1988 10-K and
1989 S-8)
*10.2 - 1990 Employee Stock Option Plan (Exhibit 10, 1989 8-K)
*10.3 - 1993 Non-Qualified Stock Option Plan (Exhibit 10.1, May 1993 S-8)
*10.4 - 1993A Non-Qualified Stock Option Plan (Exhibit 10.1, September
1993 S-8)
*10.5 - 1994 Non-Qualified Stock Option Plan (Exhibit 10.1, 1994 S-8)
*10.6 - 1995 Employee Stock Option Plan (Exhibit 10.1, 1996 S-8)
*10.7 - 1996 Non-Qualified Stock Option Plan (Exhibit 10.1, 1996
Non-Qualified S-8)
10.8 - Agreement with Wackenhut Corrections Corporation, dated June 30,
1997
10.8.1 - Amendment to Agreement with Wackenhut Corrections Corporation,
dated January 28, 1998
*21.1 - Subsidiaries of the Registrant (1997 10-K)
23.1 - Consent of BDO Seidman, LLP
23.2 - Consent of Brown, Graham & Company, P.C.
*27.1 - Financial Data Schedule (1997 10-K)
</TABLE>
<PAGE> 4
(b) Reports on Form 8-K.
The following reports on Form 8-K have been filed during the period from
October 1, 1997 to date:
On November 25, 1997, the Company filed a report on Form 8-K describing the
adoption, on November 14, 1997, of a plan under which certain anti-takeover
measures would become effective should a hostile acquisition of 15% or more of
the Company's common stock occur.
On November 26, 1997, the Company filed a report on Form 8-K describing the
dismissal of its independent auditors, Brown, Graham & Company, P.C. and the
appointment of BDO Seidman, LLP, as its new independent auditors. This report
was amended on Form 8-K/A in December 3, 1997.
On January 27, 1998, the Company filed a report on Form 8-K describing the
issuance on January 12, 1998, of $275,000 of 4% convertible debentures and of
275,000 warrants exercisable at a price of $1.00 in a private placement to
certain non-U.S. investors, exempt from registration under "Regulation S."
<PAGE> 5
SIGNATURES
Pursuant to the requirement of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this amendment to be signed
on its behalf by the undersigned, thereunto duly authorized.
U.S. TECHNOLOGIES INC.
By: /s/ Kenneth H. Smith
----------------------------------------
Kenneth H. Smith
Chairman of the Board, President
and Chief Executive Officer
Dated: May 19, 1998
<PAGE> 6
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation
of the Registrant
3.2 Restated Bylaws of the Registrant
10.8 Agreement with Wackenhut Corrections Corporation,
dated June 30, 1997
10.8.1 Amendment to Agreement with Wackenhut Corrections
Corporation, dated January 28, 1998
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Brown, Graham & Company, P.C.
<PAGE> 1
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION OF
U.S. TECHNOLOGIES INC.
* * * *
The following is a Restated Certificate of Incorporation of U.S.
Technologies Inc. (the "Corporation"), a corporation incorporated under the laws
of the State of Delaware. The name under which the Corporation was originally
incorporated is CareAmerica Inc., and the date of filing the original
Certificate of Incorporation of the Corporation with the Secretary of State of
the State of Delaware was September 9, 1986. The Corporation changed its name to
U.S. Technologies Inc. by amendment to its Certificate of Incorporation filed on
July 14, 1989. This Restated Certificate of Incorporation was duly adopted by
the directors of the Corporation on October 31, 1997, in accordance with the
provisions of Section 245 of the General Corporation Law of the State of
Delaware. This Restated Certificate of Incorporation integrates all previous
amendments of the Certificate of Incorporation of the Corporation. The
Corporation, therefore, in accordance with Section 245 of the Delaware
Corporation Law, does hereby restate the Certificate of Incorporation as
follows:
1. The name of the Corporation is U.S. Technologies Inc.
2. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle 19801. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is fifty million (50,000,000) shares
of which ten million (10,000,000) shall be Preferred Stock, par value $0.02 per
share, issuable in one or more series and forty million (40,000,000) shall be
Common Stock, par value $0.02 per share.
The Board of Directors of the Corporation is hereby expressly authorized
at any time and from time to time to divide the shares of Preferred Stock into
one or more series, to issue from time to time in whole or in part the shares of
Preferred Stock or the shares of any series thereof, and in the resolution or
resolutions providing for the issue of shares of Preferred Stock or of a
particular series to fix and determine the voting powers, full or limited, or no
voting powers, and such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof that may be desired, to the fullest extent now or hereafter
permitted by the laws of the State of Delaware; subject, in the case of
preferential amounts payable in the event of involuntary liquidation, to the
limitation set forth in the next paragraph of this Article Four.
<PAGE> 2
In the resolution or resolutions providing for the issues of shares of a
series of Preferred Stock, the Board of Directors may fix and determine a
preferential amount payable upon such shares in the event of the involuntary
liquidation of the Corporation, provided that, at the time of the adoption of
such resolution or resolutions, the aggregate preferential amount (excluding
accrued unpaid dividends) payable, in the event of involuntary liquidation of
the Corporation, pursuant to the terms of shares of Preferred Stock (including
the shares proposed to be issued pursuant to such resolution or resolutions but
excluding canceled shares) for which such amount is fixed shall not exceed
twenty-five percent of the sum of Preferred Stock, Common Stock, capital surplus
and earned surplus, less treasury shares, of the Corporation determined on a
consolidated basis, as reflected on the most recent year-end consolidated
balance sheet of the Corporation and its Consolidated Subsidiaries which has
been certified by the principal accounting officer of the Corporation, adjusted
to reflect any changes in Preferred Stock, Common Stock, capital surplus and
treasury shares since the date of such balance sheet, including the proposed
issue of such shares of Preferred Stock pursuant to such resolution or
resolutions.
Except for and subject to those rights expressly granted to the holders
of Preferred Stock, or any series thereof, pursuant hereto or pursuant to the
authority hereby vested in the Board of Directors or except as may be provided
by the laws of the State of Delaware, the holders of Common Stock shall have
exclusively all rights of stockholders. The holders of Common Stock shall be
entitled to one vote per share.
5. The Corporation shall have perpetual existence.
6. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the bylaws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. The bylaws may provide that in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, or in the bylaws of the Corporation, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it, but no
such committee shall have such power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
<PAGE> 3
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the bylaws of the Corporation; and, unless the resolution or bylaws
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the property and
assets of the Corporation, including its good will and its corporate franchises,
upon such terms and conditions and for such consideration, which may consist in
whole or in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors
may deem expedient and for the best interests of the Corporation.
7. Elections of directors need not be by written ballot unless the
bylaws of the Corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the bylaws of the Corporation.
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
8. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
9. To the full extent that the Delaware General Corporation Law, as
it exists on the date hereof or may hereafter be amended, permits the limitation
or elimination of the liability of directors, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Any amendment to or repeal of this
Article 9 shall not adversely affect any right or protection of a director of
the Corporation for or with respect to any acts or omission of such director
occurring prior to such amendment or repeal.
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has executed these Restated Articles
of Incorporation on this 24th day of November, 1997.
/s/ Kenneth H. Smith
----------------------------------------
Kenneth H. Smith
President and Chief Executive Officer
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
Sworn to and subscribed before me on the 24th day of November, 1997 by
Kenneth H. Smith.
Notary Public
My Commission Expires:
(SEAL)
<PAGE> 1
EXHIBIT 3.2
* * * * *
RESTATED BYLAWS
OF
U.S. TECHNOLOGIES, INC.
(A DELAWARE CORPORATION)
* * * * *
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. MEETINGS GENERALLY. All meetings of the stockholders for the
election of directors shall be held in the City of Atlanta, State of Georgia, at
such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors. Meetings of stockholders
for any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. ANNUAL MEETINGS. Annual meetings of stockholders commencing in
1998 and each year thereafter, shall be held on the third Friday of April, if
not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 a. m., or at such other date and time as shall be designated
from time to time by the Board of Directors, at which meeting the stockholders
shall elect a Board of Directors, and transact such other business as may
properly be brought before the meeting.
Section 3. NOTICE OF ANNUAL MEETING. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less ten (10) nor more than
sixty (60) days before the date of the meeting.
Section 4. SHAREHOLDERS ENTITLED TO VOTE AND SHAREHOLDER LIST. The
officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged
<PAGE> 2
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder entitled to vote at the meeting, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present and entitled to vote at the meeting.
Section 5. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the Chairman of the Board and
shall be called by the Chairman of the Board, President or Secretary at the
request in writing of a majority of the whole Board of Directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. NOTICE OF SPECIAL MEETING. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten (10) nor more
sixty (60) than days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
Section 7. BUSINESS AT SPECIAL MEETING. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
Section 8. QUORUM AND ADJOURNMENT. The holders of one-third of the stock
of the Corporation issued and outstanding and entitled to vote thereat, present
in person or represented by proxy, shall constitute a quorum at all meetings of
the stockholders for the transaction of business unless a greater number is
required by statute or by the certificate of incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. VOTE REQUIRED. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation, a greater number is required in
which case such express provision shall govern and control the decision of such
question.
Section 10. ONE VOTE PER SHARE; PROXIES. Unless otherwise provided in the
certificate of incorporation each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder,
<PAGE> 3
but no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
Section 11. SHAREHOLDER ACTION BY CONSENT IN LIEU OF MEETING. Unless
otherwise provided in the certificate of incorporation, any action required to
be taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, 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.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 12. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 13. RIGHTS OF REGISTERED STOCKHOLDER. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE III
BOARD OF DIRECTORS
Section 1. NUMBER. The number of directors which shall constitute the
whole board shall be not less than one nor more than fifteen. Within the limits
above specified, the number of directors shall be determined by resolution of
the Board of Directors or by the stockholders at the annual meeting. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. 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 then in office, though
less than a quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their successors are
duly elected and shall qualify, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any
<PAGE> 4
newly created directorship, the directors then in office shall constitute less
than a majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 3. POWERS. The business of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these bylaws directed or required
to be exercised or done by the stockholders.
Section 4. MEETINGS OF THE BOARD OF DIRECTORS. The Board of Directors of
the Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 5. ANNUAL MEETING. The first meeting of each newly elected Board
of Directors shall be held promptly at such time and place as shall be fixed by
the vote of the stockholders at the annual meeting and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or the place of such first meeting of the newly
elected Board of Directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board on three (3) days' notice to each
director, either personally or by mail or by facsimile communication; special
meetings shall be called by the Chairman of the Board, President or Secretary in
like manner and on like notice on the written request of two directors.
Section 8. QUORUM. At all meetings of the Board, a majority of the whole
Board shall constitute a quorum for the transaction of business and the
affirmative vote of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, unless a greater
number is otherwise specifically required by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. As used in these bylaws, "whole board" means the total number
of directors which this Corporation would have if there were no vacancies.
Section 9. ACTION WITHOUT A MEETING. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
<PAGE> 5
Section 10. MEETINGS BY TELEPHONIC COMMUNICATION. Unless otherwise
restricted by the certificate of incorporation or these bylaws, members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 11. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of
dissolution, or amending the bylaws of the Corporation; and, unless the
resolution or the certificate of incorporation expressly so provided, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 12. MINUTES OF MEETINGS. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
Section 13. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
Section 14. REMOVAL OF DIRECTORS. Unless otherwise restricted by the
certificate of incorporation or by law, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
shares entitled to vote at an election of directors.
<PAGE> 6
ARTICLE IV
INDEMNIFICATION
The Corporation shall indemnify its officers, directors, employees and
agents to the extent permitted by the General Corporation Law of Delaware.
ARTICLE V
NOTICES
Section 1. MANNER OF NOTICE. Whenever, under the provisions of the
statutes or of the certificate of incorporation or of these bylaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail with proper postage prepaid thereon. Notice to directors may also be
given by facsimile telecommunication.
Section 2. WAIVERS OF NOTICE. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate of incorporation or
of these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VI
OFFICERS
Section 1. APPOINTMENT AND SALARIES. The officers of the Corporation
shall from time to time be chosen by the Board of Directors and shall be a
Chairman of the Board, a President, a Secretary and a Treasurer. The Board of
Directors may also choose one or more Vice-Presidents, and one or more Assistant
Secretaries and Assistant Treasurers. Any number of officers may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide. However, no person shall hold the office of Secretary while also
holding the office of President.
Section 2. FIRST MEETING. The Board of Directors at its first meeting,
after each annual meeting of stockholders shall choose a Chairman of the Board,
President, a Secretary and a Treasurer.
Section 3. OTHER APPOINTMENTS. The Board of Directors may appoint such
other officers, agents and employees as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
Section 4. COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 5. REMOVAL. The officers of the Corporation shall hold office at
the pleasure of the Board of Directors and may be removed at any time by the
affirmative vote of a majority of the whole board. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors.
<PAGE> 7
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors
shall, when present, preside at all meeting of the stockholders and Board of
Directors, either annual or special. The Chairman of the Board of Directors, or
such member of the Board of Directors as may be so designated by the Board of
Directors, shall be the Chief Executive Officer of the Corporation. The Chairman
shall assist the Board of Directors in the formulation of policies to be pursued
by the executive management of the Corporation, and he shall study and make
reports and recommendations with respect to major problems, policies, and
activities of the Corporation, and it shall be his responsibility to see that
the policy established be the Board of Directors is carried into effect by the
executive officers. The Chairman may sign and deliver on behalf of the
Corporation any deed, mortgages, bonds, contracts, powers of attorney, or other
instruments which the Board of Directors have authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these bylaws to some other officer or agent of the
Corporation or shall be required by law to be otherwise signed or executed, and
he shall perform such other duties as may be prescribed by the Board of
Directors from time to time.
Section 7. PRESIDENT. The President shall be the Chief Operating Officer
of the Corporation and, in the absence of the Chairman of the Board of Directors
or with the consent of the Chairman of the Board of Directors, shall have
general charge of the business of the Corporation. He shall from time to time
obtain information concerning the affairs and business of the Corporation and
shall promptly lay such information before the Chairman of the Board of
Directors or, in the absence of the Chairman or with the consent, before the
Board of Directors, or the President shall communicate to the Chairman of the
Board of Directors or, in the absence of the Chairman or with the consent of the
Chairman, to the Board of Directors, all matters presented by any officer of the
Corporation for its consideration and shall from time to time communicate to the
officers such action of the Board of Directors as may in the President's
judgment affect the performance of their official duties.
Section 8. OTHER PRESIDENTIAL POWERS. The President may execute and
deliver on behalf of the Corporation any deeds, bonds, mortgages, contracts,
powers of attorney or any other instruments which the Board of Directors have
authority to be executed, except in cases where the signing and execution shall
be expressly delegated by the Board of Directors or these bylaws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed. The President may employ all agents and employees of the
Corporation and may discharge any such agent or employee and shall perform all
other duties as may from time to time be delegated to him by the Chairman of the
Board of Directors.
Section 9. VICE PRESIDENTS. In the absence of the president or in the
event of the inability or refusal to act of the President, the Vice-President
(or in the event there be more than one Vice- President, the Vice-Presidents in
the order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice-President shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 10. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and special meetings of the Board
of Directors, and shall perform such other
<PAGE> 8
duties as may be prescribed by the Board of Directors or President, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation and the Secretary, or an Assistant Secretary
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the signature of the Secretary or by the
signature of such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 11. ASSISTANT SECRETARY. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act of the Secretary perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Section 12. TREASURER AND ASSISTANT TREASURER. The Treasurer shall have
the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors.
Section 13. DISBURSEMENTS. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all transactions as Treasurer and of the financial condition of
the Corporation.
Section 14. SURETY BOND. If required by the Board of Directors, the
Treasurer shall give the Corporation bond (which shall be renewed every six
years) in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of office of
Treasurer and for the restoration to the Corporation, in case of death,
resignation, retirement or removal from office of the Treasurer, of all books,
papers, vouchers, money and other property of whatever kind in the possession or
under the control of the Treasurer belonging to the Corporation.
Section 15. ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
ARTICLE VII
CERTIFICATES FOR SHARES
Section 1. FORM OF CERTIFICATES. The shares of the Corporation shall be
represented by a certificate or shall be uncertificated. Certificates shall be
signed by, or in the name of the Corporation by, the Chairman or Vice-Chairman
of the Board of Directors, or the President or a Vice-President,
<PAGE> 9
and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation.
Upon the face or back of each stock certificate issued to
represent any partly paid shares, or upon the books and records of the
Corporation in the case of uncertificated partly paid shares, shall be set forth
the total amount paid thereon shall be stated.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. FACSIMILE CERTIFICATES. Any of or all the signatures on a
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates or uncertificated shares to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 4. TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the Corporation.
<PAGE> 10
ARTICLE VIII
GENERAL PROVISIONS
Section 1. DECLARATION. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. SET ASIDE FUNDS. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. ANNUAL STATEMENT. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders a full and clear statement of the business and
condition of the Corporation.
Section 4. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 5. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year or as fixed by resolution of the Board of Directors.
Section 6. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENTS. These bylaws may be altered, amended or repealed
or new bylaws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the certificate of
incorporation at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the Board of Directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
<PAGE> 1
EXHIBIT 10.8
AGREEMENT
THIS AGREEMENT, is made and entered into this 30th day of June, 1997, by
and between WACKENHUT CORRECTIONS CORPORATION (hereinafter referred to as "WCC")
and U.S. TECHNOLOGIES INC. (hereinafter referred to as "USXX").
WHEREAS, USXX, through its wholly-owned subsidiary LTI, is an industry
partner with WCC under a 1979 federal government program known as the Prison
Industrial Enhancement program, or PIE; and
WHEREAS, the only present location that USXX and WCC are industry
partners is in the Lockhart Work Program Facility located in Lockhart, Texas, a
facility managed by WCC; and
WHEREAS, it is the intent of the parties to expand their industry partner
relationship in other facilities and in other states, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein, and the performance of each, the parties hereto
intending to be legally bound hereby, agree as follows:
1. That USXX and WCC will enter into this Agreement for one (1) year,
effective the above date, said one year term automatically renewable year to
year thereafter, unless canceled in writing by either party within 90 days prior
to its anniversary date.
2. That USXX agrees during the contract period of time not to operate
in any other prison programs, including but not limited to the PIE program, with
any other companies except WCC.
3. That WCC agrees during the contract period of time to allow USXX
to operate as its industry partner (under the PIE program or otherwise) in any
prison facility managed by WCC.
4. That WCC agrees during this period of time to determine what
products they are purchasing outside of WCC for use inside WCC facilities and
locations. WCC may, to the extent possible, purchase said products from USXX.
USXX must be able to match the existing terms, quality, and shipping schedules
of WCC's current suppliers with regard to those products.
5. Both WCC and USXX acknowledge they will derive a joint benefit
from this arrangement, and agree it is in the best interest of the PIE program.
6. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered on
the date personally delivered or on the date deposited in a receptacle
maintained by the United States Postal Service for such purpose, postage
prepaid, by certified mail, return receipt requested, addressed to the
respective parties as follows:
<PAGE> 2
If to WCC: Patricia McNair Persante
Senior Vice President, Contract Compliances
Wackenhut Corrections Corporation
4200 Wackenhut Drive
Suite 100
Palm Beach Garden, Florida 33410
If to USXX: K.H. Smith
President/CEO
U.S. Technologies Inc.
One Buckhead Plaza
3060 Peachtree Road, N.W.
Suite 1890
Atlanta, Georgia 30305
7. This Agreement shall be binding and effective upon the parties
hereto and their successors and permitted assigns, provided, however, that the
parties should not assign this Agreement without the written consent of each
other.
8. This Agreement in all respects shall be construed according to the
laws of the State of Florida.
9. 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
but one and the same instrument.
10. This instrument contains the entire Agreement of the parties and
all prior representations, understanding and agreements, either oral or in
writing, between the parties hereto with respect to the subject matter and all
such prior or contemporaneous representations, understandings and agreements,
both oral and written, are hereby terminated. This Agreement may not be
modified, altered or amended except by written agreement of the parties.
<PAGE> 3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written effective as of the effective date.
U.S. TECHNOLOGIES INC.
By: /s/ K.H. Smith
------------------------------------------
K.H. Smith
President and CEO
WACKENHUT CORRECTIONS CORPORATION
By: /s/ Patricia McNair Persante
------------------------------------------
Patricia McNair Persante
Senior Vice President, Contracts
<PAGE> 1
EXHIBIT 10.8.1
[U.S. TECHNOLOGIES INC. LETTERHEAD]
AMENDMENT TO AGREEMENT DATED JUNE 30, 1997
THIS AMENDMENT, is made and entered into this 28th day of January, 1998, by and
between WACKENHUT CORRECTIONS CORPORATION (hereinafter referred to as "WCC") and
U.S. TECHNOLOGIES INC. (hereinafter referred to as "USXX") in order to clarify
and restate Paragraph 2 of the AGREEMENT between the parties dated June 30,
1997.
Since it was the original intention and agreement of the above-referenced
parties that USXX, during the contract period not operate in any other
privatized prison programs, except with WCC, Paragraph 2 is amended to read as
follows:
2. That USXX agrees during the contract period of time not to
operate in any other privatized prison programs, including
but not limited to the PIE program, with any other
privatized companies except WCC. USXX is permitted and is
not precluded from operating in any state or federal prison
programs, including the PIE program, as long as those
programs are not privatized.
All other clauses and provisions of the previous AGREEMENT dated June 30, 1997
shall remain in full force and effect, and that this AMENDMENT shall be
effective as if original written in the June 30, 1997 AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this amendment to the original
agreement as of the day and year first above written.
U.S. TECHNOLOGIES INC. WACKENHUT CORRECTIONS CORPORATION
By: /s/ K.H. Smith By: /s/ Patricia McNair Persante
- ------------------------------------ -------------------------------------
K.H. Smith Patricia McNair Persante
President and CEO Senior Vice President, Contracts
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of
U.S. Technologies Inc.
Marietta, Georgia
We hereby consent to the use in this Annual Report on Form 10-K of our
reports dated February 13, 1998, except for Note 15 which is dated as of March
5, 1998, relating to the consolidated financial statements and schedule of U.S.
Technologies Inc. and subsidiaries for the year ended December 31, 1997.
/s/ BDO Seidman, LLP
----------------------------------------
BDO Seidman, LLP
Atlanta, Georgia
May 12, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of
U.S. Technologies Inc.
Marietta, Georgia
We hereby consent to the use in this Annual Report on Form 10-K of our
report dated April 8, 1997, relating to the consolidated financial statements
and schedule of U.S. Technologies Inc. and subsidiaries for the years ended
December 31, 1996 and 1995.
/s/ Brown, Graham and Company P.C.
----------------------------------------
Brown, Graham and Company P.C.
Atlanta, Georgia
May 14, 1998
