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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SUMMIT ENVIRONMENTAL CORPORATION, INC.
(Name of small business issuer in its charter)
Texas 42269 73-1537206
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(state of (Primary Standard Industrial (IRS Employer
incorporation) Classification Code Number) I.D. Number)
4334 Northwest Expressway, Suite 202
Oklahoma City, OK 73116
405-840-1585
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(Address and telephone number of registrant's principal
executive offices and principal place of business)
Dave Dischiavo, 7312 Authon Drive,
Dallas, TX 75248 telephone: 972-233-6574
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(Name, address and telephone number of agent for service)
Copies to:
Thomas J. Kenan, Esq. B. Keith Parker
Suite 3300 Suite 14
100 North Broadway 414 East Loop 281
Oklahoma City, OK 73102-8805 Longview, TX 75605
Approximate date of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said section 8(a)
may determine.
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
each class maximum maximum
of securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per unit price fee
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Common Stock 500,000 $0.001 $500 $0.15(1)
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(1) The 500,000 shares being registered are owned by SuperCorp Inc., the
controlling shareholder of the Registrant, and are to be distributed
by SuperCorp Inc. to its shareholders as a stock dividend. The
registration fee is based upon the book value of the Registrant as of
March 28, 1998. Reg. 230.457(a).
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SUMMIT ENVIRONMENTAL CORPORATION, INC.
FORM SB-2
CROSS-REFERENCE SHEET
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The registrant is a "small business issuer," as defined in Regulation
Section 240.405.
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ITEM 1. FRONT OF REGISTRATION STATEMENT AND OUTSIDE
FRONT COVER PAGE OF PROSPECTUS.
Front S-B 501(1): name of small business issuer Outside front cover
cover
Front S-B 501(2): securities offered Outside front cover
cover
- S-B 501(3): selling shareholders Not applicable
Front S-B 501(4): cross-reference to risk factors Outside front cover
cover
Front S-B 501(5): cautionary statement Outside front cover
cover
- S-B 501(6): estimates of price and number of shares Not applicable
Front S-B 501(7): table Outside front cover
cover
- S-B 501(8): "Subject to completion" statement Not applicable
- S-B 501(9): state legends Not applicable
Front S-B 501(10): date Outside front cover
cover
Front S-B 501(11): other expenses Outside front cover
cover
ITEM 2. INSIDE FRONT AND OUTSIDE BACK COVERS OF
PROSPECTUS.
i,ii S-B 502(a): available information Inside front cover
ii S-B 502(b): reports to security holders Available Information
- S-B 502(c): incorporation by reference statement Not applicable
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- S-B 502(d): stabilization statement Not applicable
ii S-B 502(e): delivery of prospectus Inside front cover
iii S-B 502(f): table of contents Table of Contents
ITEM 3. RISK FACTORS, RATIO OF EARNINGS TO FIXED CHARGES
AND OTHER INFORMATION.
1 S-B 503(a): summary Summary Information
3 S-B 503(b): address and telephone number Summary Information
4 S-B 503(c): risk factors Risk Factors
ITEM 4. USE OF PROCEEDS.
- S-B 504 Not applicable
ITEM 5. DETERMINATION OF OFFERING PRICE.
- S-B 505(a): factors considered for common equity Not applicable
- S-B 505(b): factors considered for warrants, etc. Not applicable
ITEM 6. DILUTION.
- S-B 506(a): comparative prices Not applicable
- S-B 506(b): net tangible book value Not applicable
ITEM 7. SELLING SECURITY HOLDERS.
- S-B 507 Not applicable
ITEM 8. PLAN OF DISTRIBUTION.
- S-B 508(a): underwriters and underwriting obligation Not applicable
- S-B 508(b): new underwriters Not applicable
1,7, S-B 508(c): other distributions Summary Information - The Spinoff; Terms of
10 the Transaction - Terms of the Merger; Plan
of Distribution - The Escrow Arrangement
- S-B 508(d): underwriter's representative on board of Not applicable
directors
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- S-B 508(e): indemnification of underwriters Not applicable
- S-B 508(f): dealers' compensation Not applicable
2,9 S-B 508(g): finders Summary Information - Promoter and Insider to
the Transaction; Transactions with Insiders
- S-B 508(h): discretionary accounts Not applicable
- S-B 508(i): passive market making Not applicable
- S-B 508(j): stabilizing and other transactions Not applicable
ITEM 9. LEGAL PROCEEDINGS.
15,25 S-B 103(a): lawsuit information Information About the Company - Legal
Proceedings; Description of Summit
Technologies' Business - Legal Proceedings
- S-B 103(b): contemplated proceedings by governmental Not applicable
units
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND
CONTROL PERSONS.
30 S-B 401(a): directors and executive officers: Management Information - Directors, Executive
Officers and Significant Employees
30 S-B 401(a)(1): names and ages Management Information - Directors, Executive
Officers and Significant Employees
30 S-B 401(a)(2): positions Management Information - Directors, Executive
Officers and Significant Employees
30 S-B 401(a)(3): term Management Information - Directors, Executive
Officers and Significant Employees
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30 S-B 401(a)(4): experience Management Information - Directors, Executive
Officers and Significant Employees
- S-B 401(a)(5): other directorships in reporting Not applicable (none)
companies
- S-B 401(b): significant employees Not applicable (none)
30 S-B 401(c): family relationships Management Information - Directors, Executive
Officers and Significant Employees
25 S-B 401(d): legal proceedings Description of Summit Technologies' Business
- Legal Proceedings
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT.
26 S-B 403(a): security ownership of certain beneficial Management Information - Security Ownership
owners of Certain Beneficial Owners and Management
26 S-B 403(b): security ownership of management Management Information - Security Ownership
of Certain Beneficial Owners and Management
- S-B 403(c): changes in control Not applicable
ITEM 12: DESCRIPTION OF SECURITIES.
11 S-B 202(a): common or preferred stock Description of Securities
- S-B 202(b): debt securities Not applicable
- S-B 202(c): other securities to be registered Not applicable
ITEM 13. INTERESTS OF NAMED EXPERTS AND COUNSEL.
33 S-B 509 Interests of Named Experts and Counsel
ITEM 14. DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES.
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34 S-B 510 Indemnification
ITEM 15. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
32 S-B 404(a): certain relationships and transactions Management Information - Certain
Relationships and Related Transactions
- S-B 404(b): excluded transactions No information required
33 S-B 404(c): list parents Management Information - Parents of Summit
Technologies
2,9 S-B 404(d): transactions with promoters Summary Information - Promoter and Insider to
the Transaction; Transactions with Insiders
ITEM 16. DESCRIPTION OF BUSINESS.
S-B 101(a): business development:
17 S-B 101(a)(1): form and year of organization Information About Summit Technologies -
Overview
- S-B 101(a)(2): bankruptcy proceedings Not applicable
- S-B 101(a)(3): reclassifications, etc. Not applicable
S-B 101(b): business of issuer:
19 S-B 101(b)(1): principal products or services and their Information About Summit Technologies -
markets Description of Summit Technologies' Business
- Business Development; Principal Products
21 S-B 101(b)(2): distribution methods Description of Summit Technologies' Business
- Distribution Methods
- S-B 101(b)(3): new products or services Not applicable
22 S-B 101(b)(4): competition Description of Summit Technologies' Business
- Competition
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23 S-B 101(b)(5): sources of raw materials and suppliers Description of Summit Technologies' Business
- Raw Materials and Suppliers
23 S-B 101(b)(6): dependence on few customers Description of Summit Technologies' Business
- Dependence on Major Customers
23 S-B 101(b)(7): patents, trademarks Description of Summit Technologies' Business
- Patents, Trademarks and Licenses
- S-B 101(b)(8): governmental approval Not applicable
- S-B 101(b)(9): governmental regulations Not applicable
25 S-B 101(b)(10): research and development Description of Summit Technologies' Business
- Research and Development
25 S-B 101(b)(11): environmental costs Description of Summit Technologies' Business
- Environmental Controls
25 S-B 101(b)(12): number of employees Description of Summit Technologies' Business
- Number of Employees
ITEM 17. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATION.
17 S-B 303(a): plan of operation Information about Summit Technologies -
Management's Plan of Operation
- S-B 303(b): management's discussion and analysis - full Not applicable
fiscal years
- S-B 303(b): trends, events or uncertainties to impact Not applicable
liquidity
- S-B 303(b)(1)(ii): sources of liquidity Not applicable
- S-B 303(b)(1)(iii): commitments for and sources of funds Not applicable
for capital expenditures
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- S-B 303(b)(1)(iv): material trends, events or Not applicable
uncertainties to impact sales, revenue or income
- S-B 303(b)(1)(v): identify significant income or loss Not applicable
not arising from continuing operations
- S-B 303(b)(1)(vi): cause for material changes in line Not applicable
items of financial statements
- S-B 303(b)(1)(vii): seasonal aspects Not applicable
- S-B 303(b)(2): interim periods Not applicable
ITEM 18. DESCRIPTION OF PROPERTY.
24 S-B 102(a): description of property Description of Summit Technologies' Business
- Properties
- S-B 102(b): investment policies Not applicable
ITEM 19. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
32 S-B 404(a): certain relationships and transactions Management Information - Certain
Relationships and Related Transactions
- S-B 404(b): excluded transactions No information required
33 S-B 404(c): list parents Management Information - Parents of Summit
Technologies
- S-B 404(d): transactions with promoters Not applicable (none)
ITEM 20. MARKET FOR COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.
S-B 201(a): market information:
15 S-B 201(a)(1): identify public trading market Market for the Company's Capital Stock and
Related Stockholder Matters
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17 S-B 201(a)(2)(i): amount subject to options, warrants or Market for the Company's Capital Stock and
conversion Related Stockholder Matters - Rule 144 and
Rule 145 Restrictions on Trading
16 S-B 201(a)(2)(ii): amount sellable under Rule 144 or Market for the Company's Capital Stock and
agreed to be registered for security holders Related Stockholder Matters
- S-B 201(a)(2)(iii): amount proposed to be publicly Not applicable
offered that could have a material effect
17 S-B 201(b): holders of record Market for the Company's Capital Stock and
Related Stockholder Matters
17 S-B 201(c): dividends Market for the Company's Capital Stock and
Related Stockholder Matters - Dividends
ITEM 21. EXECUTIVE COMPENSATION.
S-B 402(a): general No executive officer's or other person's
salary and bonus exceeds $100,000.
32 S-B 402(b): summary compensation table Directors, Executive Officers and Significant
Employees - Remuneration of Directors and
Officers
- S-B 402(c): option/SAR grants table Not applicable
- S-B 402(d): aggregated option/SAR exercise and year-end Not applicable
value table
- S-B 402(e): LTIP awards table Not applicable
32 S-B 402(f): compensation of directors - standard and Directors, Executive Officers and Significant
other arrangements Employees - Remuneration of Directors and
Officers
32 S-B 402(g): employment contracts Directors, Executive Officers and Significant
Employees - Employment Contracts
- S-B 402(h): report on repricing of options/SARs Not applicable
ITEM 22. FINANCIAL STATEMENTS.
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F-1 S-B 310(a): annual financial statements Financial Statements
- S-B 310(b): interim financial statements Not applicable
F-5 S-B 310(c): financial statements of business acquired or Financial Statements
to be acquired
- S-B 310(d): pro forma financial statements Not applicable
- S-B 310(e): real estate operations Not applicable
- S-B 310(f): limited partnerships Not applicable
- S-B 310(g): age of financial statements Interim statements for Summit Technologies'
1st Quarter of 1998 will be filed with
Amendment No. 1
ITEM 23. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL STATEMENTS.
- S-B 304 Not applicable
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PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
II-1 S-B 702: indemnification of directors and officers Indemnification of Directors and Officers
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
II-1 S-B 511: itemized statement Other Expenses of Issuance and Distribution
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
II-1 S-B 701 Recent Sales of Unregistered Securities
ITEM 27. EXHIBITS.
II-2 S-B 601(a): exhibits and index of exhibits Exhibits and Financial Statements Schedules
S-B 601(a): description of exhibits
- (1) underwriting agreement Not applicable
- (2) plan of merger Appendix A - Agreement of Merger; Exhibit 2
- (3) articles of incorporation and bylaws Exhibits 3.1, 3.2, 3.3 and 3.4
- (4) instruments defining rights of securities holders Not applicable
- (5) opinion on legality Exhibit 5
- (8) opinion on tax matters Exhibit 8
- (9) voting trust agreements Not applicable
- (10) material contracts Exhibits 10, 10.1, 10.2 and 10.3
- (11) statements re: computation of per share earnings Not applicable
- (13) annual report to security holders Not applicable
- (15) letter on unaudited interim financial information Not applicable
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- (16) letter on changes in certifying accountant Not applicable
- (21) subsidiaries of the small business issuer Not applicable
- (23) consents of experts and counsel Exhibits 23.1 through 23.6
- (24) power of attorney Not applicable
- (25) statement of eligibility of trustee Not applicable
- (26) invitations for competitive bids Not applicable
- (27) financial data schedule Exhibit 27
- (99) additional exhibits Not applicable
- S-B 601(c): financial data schedule Filed
ITEM 28. UNDERTAKINGS.
II-4 S-B 512(a): Rule 415 offering Undertakings
- S-B 512(b): warrants and rights offerings Not applicable
- S-B 512(c): competitive bids Not applicable
- S-B 512(d): equity offerings of non-reporting small Not applicable
business issuers
II-4 S-B 512(e): request for acceleration Undertakings
- S-B 512(f): reliance on Rule 430A undertaking Not applicable
II-5 SIGNATURES Signatures
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PROSPECTUS
SUMMIT ENVIRONMENTAL CORPORATION, INC.
500,000 Shares of Common Stock
(For the account of a distributing shareholder, SuperCorp Inc.)
Summit Environmental Corporation, Inc. ("the Company") is a recently
formed, development-stage shell company without significant assets or any
business. It was formed by SuperCorp Inc., an Oklahoma corporation
("SuperCorp"), for the purpose of (i) creating a public market for the
Company's securities by distributing to SuperCorp's approximately 650
shareholders ("the Spinoff") 500,000 shares of the Company's Common Stock
("the Spinoff Shares"), (ii) merging with another Texas corporation, Summit
Technologies, Inc. ("Summit Technologies") ("the Merger"), which other
corporation is a viable company with significant assets and an ongoing
business, and (iii), following the Merger, engaging in the business and
activities now being conducted by Summit Technologies - marketing products
developed by other companies but under license to Summit Technologies. These
products include (i) a fire suppressant certified by the EPA as a replacement
for Halon 1211, (ii) environmentally safe industrial chemicals and cleaners,
(iii) a non-prescription, natural-substances pill designed to increase energy,
alleviate stress, and promote hormonal balances, and (iv) a weight-loss tablet
and a topical application that employ chitosan as their main ingredient.
In addition to the 500,000 Spinoff Shares registered herein and to be
distributed pro rata to SuperCorp's shareholders, an additional 125,000 shares
of the Company are held by each of two persons. One of those persons is a
SuperCorp shareholder and a SuperCorp "insider." The other is a "finder." Both
may be deemed to be "insiders" of the Company. Each received his 125,000
shares of the Company in connection with the Spinoff and Merger described
herein. Following the Merger, should it be approved by Summit Technologies'
shareholders, the SuperCorp shareholders receiving the 500,000 Spinoff Shares,
the SuperCorp "insider" and the "finder" would
(continued on next page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" ON PAGE 4.
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UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNTS AND OTHER
RECIPIENT COMMISSIONS PERSONS(1)
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Per Share $0.001(2) $0 $0.001
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500,000 Shares $500(3) $0 $500(4)
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The date of this Prospectus is __________________, 1998.
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(1) The estimated expenses of the transaction described herein are
$71,500, all of which are being borne by Summit Technologies, Inc., a
Texas corporation with whom the Company proposes to merge. These
expenses are federal and state registration fees - $100; filing
expenses (EDGAR) - $4,000; stock transfer agent's fee - $4,000; escrow
agent's fee - $500; printing and engraving - $10,000; legal fees -
$20,000; auditor's fee - $2,000; finder's fee - $18,500; mailing cost
- $5,400; and Standard & Poor's Corporation Records publication fee -
$5,000.
(2) Based upon the book value of Summit Environmental Corporation, Inc.
("the Company") on March 17, 1998.
(3) These 500,000 Shares ("the Spinoff Shares") of Common Stock are owned
by SuperCorp Inc. ("SuperCorp"), a shareholder of the Company.
Certificates evidencing these Spinoff Shares will be distributed to an
escrow agent ("the Spinoff") for delivery to the approximately 650
shareholders of SuperCorp at such time as (i) a proposed merger ("the
Merger") between the Company and Summit Technologies shall have been
effected, (ii) this Prospectus is supplemented to indicate the date
the Merger was effected, and (iii) information concerning the
surviving Company shall have been made available to the public and to
National Association of Securities Dealers member firms. See "Plan of
Distribution."
(4) These funds represent the aggregate book value, at $0.001 a Share, of
the Spinoff Shares at the time of the Spinoff (and before the proposed
Merger), which Shares shall be received by the shareholders of
SuperCorp.
own an aggregate of 750,000 shares of Common Stock or 13 percent of the
outstanding 5,750,000 shares of Common Stock of the Company. Of these
5,750,000 shares, the SuperCorp "insider" would own 2.6 percent, or 151,786
shares - 26,786 shares of which he would have received through the pro rata
spinoff distribution and 125,000 shares he would have received for services
rendered. The other SuperCorp shareholders would own 8.2 percent, or 473,214
shares, which they would have received as a dividend through the pro rata
spinoff distribution. See "Certain Insider Transactions."
Prior to the date of this Prospectus the Company was not a "reporting
company," as such term is employed in the Securities Exchange Act of 1934, and
its Common Stock was neither listed on any exchange nor eligible for quotation
on the Nasdaq Stock Market. There presently is no public market for the Common
Stock of the Company, and there can be no assurance that such a market will
develop or can be sustained should there be a completion of the proposed
Merger. Should the proposed Merger be approved and effected, it is expected
that the Common Stock of the Company will then be eligible for quotation on the
OTC Bulletin Board. Should the proposed Merger not be effected, there will be
no public market for the securities of the Company because of the
above-described escrow arrangement. See "Summary of Proposed Transaction -
Plan of Distribution."
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ADDITIONAL INFORMATION
REGISTRATION STATEMENT. The Company has filed with the Securities and
Exchange Commission in Washington, D.C., a Registration Statement under the
Securities Act of 1933, as amended, with respect to the Common Stock offered by
this Prospectus. For further information with respect to the Company and the
Common Stock offered hereby, reference is made to the Registration Statement
and the exhibits listed in the Registration Statement. The Registration
Statement can be examined at the Public Reference Room of the Securities and
Exchange Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies may be obtained upon payment of the prescribed fees. The Company is an
electronic filer, and the Securities and Exchange Commission maintains a Web
site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission.
The address of such site is http://www.sec.gov.
REPORTS TO SHAREHOLDERS. The Company will file reports with the
Securities and Exchange Commission and intends to furnish shareholders with
annual reports containing financial statements audited by independent public or
certified accountants and such other periodic reports as it may deem
appropriate or as required by law.
STOCK CERTIFICATES. It is expected that certificates for the
securities offered hereby will be ready for delivery within one week after the
date of this Prospectus (see "The Escrow Arrangement").
POST-EFFECTIVE AMENDMENT AND PROSPECTUS STICKERS CONCERNING PROPOSED
MERGER. Should the proposed merger described herein be approved by the
requisite shareholder vote and become effective, the Company will file a post-
effective amendment to the Registration Statement described above or a
supplement to the Prospectus, as appropriate, and cause stickers to be placed
on the front cover page of all copies of the Prospectus, which stickers will
describe the results of the vote and the effective date of the merger.
UNTIL _____________________, 1998 (90 DAYS AFTER THE EFFECTIVE DATE OF THE
MERGER), ALL U.S. DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES
MAY BE REQUIRED TO DELIVER A PROSPECTUS.
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TABLE OF CONTENTS
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Additional Information. . . . . . . . . . . . . . . . . . . . . . . . . ii
Summary Information . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. No Assurance of a Public Market and Likelihood
of a Volatile Market . . . . . . . . . . . . . . . . . 4
2. No Assurance of Success of Business . . . . . . . . . 4
3. Risk of Loss of Licenses to Sell Products . . . . . . 4
4. Reliance on Key Personnel . . . . . . . . . . . . . . 4
5. Management Control . . . . . . . . . . . . . . . . . . 5
6. Tax Consequences . . . . . . . . . . . . . . . . . . . 5
7. Dividends Not Likely . . . . . . . . . . . . . . . . . 5
8. Dependence on a Major Distributor . . . . . . . . . . 5
SuperCorp - The Distributing Shareholder . . . . . . . . . . . . . . . 5
SuperCorp May be Deemed to be an Underwriter . . . . . . . . . 6
SuperCorp's Exposure as a Control Person . . . . . . . 7
Terms of the Transaction . . . . . . . . . . . . . . . . . . . . . . 7
Terms of the Merger . . . . . . . . . . . . . . . . . . . . . 7
Reasons for the Merger and Spinoff . . . . . . . . . . . . . . 8
Accounting Treatment of Proposed Merger . . . . . . . . . . . 8
Degree of Management Control of Vote on Merger . . . . . . . . 8
Dissenters' Rights of Appraisal . . . . . . . . . . . . . . . 8
Compliance with Governmental Regulations . . . . . . . . . . . 9
Agreement and Plan of Merger . . . . . . . . . . . . . . . . . 9
Transactions with Insiders . . . . . . . . . . . . . . . . . . . . . . 9
Services Rendered by Insiders . . . . . . . . . . . . . . . . 9
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . 10
The Escrow Agreement . . . . . . . . . . . . . . . . . . . . . 10
Should the Merger Occur . . . . . . . . . . . . . . . 10
Consequences Should the Merger Not Occur . . . . . . . 10
Description of Securities . . . . . . . . . . . . . . . . . . . . . . . 11
Common Stock . . . . . . . . . . . . . . . . . . . . . . 11
Voting Rights . . . . . . . . . . . . . . . . . . . . 11
Dividend Rights . . . . . . . . . . . . . . . . . . . 11
Liquidation Rights . . . . . . . . . . . . . . . . . . 11
Preemptive Rights . . . . . . . . . . . . . . . . . . 11
Registrar and Transfer Agent . . . . . . . . . . . . . 11
Dissenters' Rights . . . . . . . . . . . . . . . . . . 12
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . 12
Federal Income Tax Consequences . . . . . . . . . . . . . . . . . . . . 12
The Merger . . . . . . . . . . . . . . . . . . . . . . 12
Shareholders of Summit Technologies . . . . . . . . . 12
The Spinoff . . . . . . . . . . . . . . . . . . . . . . 12
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Shareholders of SuperCorp . . . . . . . . . . . . . . . . . . 13
Other Financial Considerations . . . . . . . . . . . . . . . . . . . . 13
Pro Forma Information and Dilution . . . . . . . . . . . . . . 13
Material Contacts Among the Companies. . . . . . . . . . . . . 14
Information About the Company . . . . . . . . . . . . . . . . . . . . . 14
Description of Business and Properties . . . . . . . . . . . . 14
Course of Business Should the Merger Not Occur . . . . . . . . 14
Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . 15
Market for the Company's Common Stock
and Related Stockholder Matters . . . . . . . . . . . 15
Rule 144 and Rule 145 Restrictions on Trading . . . . . . . . 16
Dividends . . . . . . . . . . . . . . . . . . . . . . 17
Financial Statements . . . . . . . . . . . . . . . . . . . . . 17
Information About Summit Technologies . . . . . . . . . . . . . . . . . 17
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Management's Plan of Operation . . . . . . . . . . . . . . . . 17
Cash Requirements . . . . . . . . . . . . . . . . . . 18
Product Research and Development . . . . . . . . . . . 18
Purchases of Plant and Equipment . . . . . . . . . . . 18
Changes in Number of Employees . . . . . . . . . . . . 19
Description of Summit Technologies' Business . . . . . . . . . . . . . 19
Business Development . . . . . . . . . . . . . . . . . . . . . 19
Principal Products . . . . . . . . . . . . . . . . . . . . . . 19
FirePower 911(TM) and FlameOut(TM) . . . . . . . . . . 20
Stressex(TM) and Poder 24(TM) . . . . . . . . . . . . 20
Trim-Away(TM) . . . . . . . . . . . . . . . . . . . . 21
Industrial Chemicals and Cleaners . . . . . . . . . . 21
Distribution Methods . . . . . . . . . . . . . . . . . . . . . 21
Competition . . . . . . . . . . . . . . . . . . . . . . . . . 22
Raw Materials and Suppliers . . . . . . . . . . . . . . . . . 23
Dependence on Major Customers . . . . . . . . . . . . . . . . 23
Patents, Trademarks and Licenses . . . . . . . . . . . . . . . 23
Government Approval of Principal Products . . . . . . . . . . 24
Government Regulations . . . . . . . . . . . . . . . . . . . . 24
Properties . . . . . . . . . . . . . . . . . . . . . . 24
Office Facilities . . . . . . . . . . . . . . . . . . . . . . 25
Seasonality . . . . . . . . . . . . . . . . . . . . . . 25
Research and Development . . . . . . . . . . . . . . . . . . . 25
Environmental Controls . . . . . . . . . . . . . . . . . . . . 25
Year 2000 Computer Problem . . . . . . . . . . . . . . . . . 25
Number of Employees . . . . . . . . . . . . . . . . . . . . . 25
Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . 25
Market for Summit Technologies' Capital Stock
and Related Stockholder Matters . . . . . . . . . . . 25
Management Information . . . . . . . . . . . . . . . . . . . . . . 26
Security Ownership of Certain Beneficial Owners and
Management . . . . . . . . . . . . . . . . . . . . . . 26
Directors, Executive Officers and Significant
Employees . . . . . . . . . . . . . . . . . . . . . . 30
Summit Technologies . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
iv
<PAGE> 18
<TABLE>
<S> <C>
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . 30
Directors of Summit Technologies . . . . . . . . . . . . . . . 30
The Company . . . . . . . . . . . . . . . . . . . . . . . . . 31
Remuneration of Directors and Officers . . . . . . . . . . . . . . . . 32
The Company . . . . . . . . . . . . . . . . . . . . . . . . . 32
Summit Technologies . . . . . . . . . . . . . . . . . . . . . 32
Employment Contracts . . . . . . . . . . . . . . . . . . . . . 32
Stock Options. . . . . . . . . . . . . . . . . . . . . . . . . 32
Certain Relationships and Related Transactions . . . . . . . . . . . . 32
Company's Transactions with Insiders and Promoters 32
Summit Technologies' Transactions with Management. . . . . . . 33
Parents of Summit Technologies . . . . . . . . . . . . . . . . . . . . 33
Interests of Named Experts and Counsel . . . . . . . . . . . . . . . . 33
Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Financial Statements Index . . . . . . . . . . . . . . . . . . . . . . 34
Appendix A - Agreement of Merger . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
v
<PAGE> 19
SUMMARY INFORMATION
The following summary should be read in conjunction with, and is
qualified in its entirety by, the more detailed information and financial
statements (including the notes thereto) appearing elsewhere in this
Prospectus. All financial statements set forth herein for Summit
Environmental Corporation, Inc. (the "Company") and Summit Technologies, Inc.
have been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP").
The transaction - A Spinoff and a proposed Merger.
The proposed Merger - Subject to shareholder approval of
both companies, the Company will
merge with Summit Technologies,
Inc. ("Summit Technologies"), a
Texas corporation.
The survivor of the Merger - The Company, but the historical
financial statements of the
post-Merger Company shall be those
of Summit Technologies.
Business of the Company - None. A development-stage, shell
corporation, organized to merge
with Summit Technologies.
Business of Summit Technologies - Marketing products, under license
to it, through television
infomercials, radio spots, and a
national industrial distribution
company.
Terms of the Merger - Summit Technologies' shareholders
would exchange their existing
shareholdings in Summit
Technologies for 5,000,000 shares
of Common Stock of the Company.
Management of the Company Summit Technologies' management.
after the Merger -
The Spinoff - A pro rata distribution by
SuperCorp Inc. ("SuperCorp") to its
approximately 650 shareholders of
500,000 shares of Common Stock of
Summit Environmental Corporation,
Inc. ("the Company"), which
SuperCorp purchased for $0.001 a
share.
The Spinoff Shares - The 500,000 shares of Common Stock
of the Company held by SuperCorp.
1
<PAGE> 20
Terms of the Spinoff - 1 Spinoff Share for each 14 shares
of Common Stock of SuperCorp held
of record on the date of this
Prospectus.
Other securities of the Company - 250,000 shares of Common Stock held
by a "promoter" and by an "insider"
of both the Company and SuperCorp.
Promoter and Insider to
the transaction - George W. Cole may be deemed to be
an "insider" to the transaction,
and Dave Dischiavo may be deemed to
be a promoter of the transaction.
Each of them may be deemed to own,
directly or indirectly through
family members, 125,000 shares of
Common Stock of the Company.
George W. Cole, indirectly through
his spouse, may also be deemed to
receive 26,786 shares of Common
Stock through the pro rata
distribution of the Spinoff Shares.
See "Transactions with Insiders."
Securities to be outstanding
after the Merger - See table below:
<TABLE>
<CAPTION>
PROMOTER AND OTHER SUMMIT
TYPE OF SUPERCORP SUPERCORP TECHNOLOGIES
COMPANY'S SECURITY INSIDER SHAREHOLDERS SHAREHOLDERS TOTAL
<S> <C> <C> <C> <C>
Common Stock 276,786(1) 473,214(2) 5,000,000(3) 5,750,000
Percent 4.8% 8.2% 87% 100%
</TABLE>
(1) 26,786 of these shares are Spinoff Shares, registered with the
Securities and Exchange Commission ("the Commission"). 250,000 of
these shares are restricted securities and are held 125,000 by Dave
Dischiavo and 125,000 by George W. Cole's spouse, who is a
shareholder of SuperCorp.
(2) Registered with the Commission and unrestricted for transfer in the
stock market.
(3) Registered with the Commission and unrestricted for transfer in the
stock market; provided, however, that 2,789,225 of these 5,000,000
shares would be held by affiliates of the post-Merger Company
(officers and directors and controlling shareholders) and would be
subject to the limitations on resale imposed by Rule 145 of the
Commission. See "Information About the Company - Rule 144 and Rule
145 Restrictions on Trading."
2
<PAGE> 21
Plan of Distribution - Certificates representing the
500,000 shares of Common Stock to
be distributed to the SuperCorp
shareholders will be delivered to
Bank One Trust Company, NA,
Oklahoma City, Oklahoma, to be held
in escrow, pursuant to SEC
Regulation 230.419, until the
Merger should be approved by Summit
Technologies. Should it be so
approved, Bank One will then
transmit such certificates to their
owners.
Tax consequences of the Spinoff - Taxable both to SuperCorp and to
the SuperCorp shareholders
receiving the 500,000 Spinoff
Shares. Based upon the opinion of
counsel, SuperCorp believes the
value of the Spinoff Shares for
federal income tax purposes is
negligible - $0.001 a share. See
"Federal Income Tax Consequences."
Tax consequences of the Merger - Not taxable. See "Federal Income
Tax Consequences."
Address of SuperCorp - Suite 202
4334 Northwest Expressway
Oklahoma City, OK 73116
Telephone: 405-840-1585
Address of the Company - Suite 202
4334 Northwest Expressway
Texas City, OK 73116
Telephone: 405-840-1585
Address of Summit Technologies - Suite 14
414 East Loop 281
Longview, TX 75605
Telephone: 800-522-7841
RISK FACTORS.
Ownership of the Common Stock of the Company is speculative and involves
a high degree of risk, whether the Merger with Summit Technologies be effected
or not. See "Risk Factors" below.
3
<PAGE> 22
RISK FACTORS
Any person acquiring securities of the company in the open market is
making an investment decision that involves a high degree of risk and should
carefully consider the following factors:
1. No Assurance of a Public Market and Likelihood of a Volatile
Market. There is presently no public market for the Spinoff Shares and there
is no assurance that a public market for such securities will develop after the
occurrence of the Merger described in this Prospectus or, if one develops, that
it will be sustained. Until the Merger should be approved by Summit
Technologies - and no assurance can be or is given that such approval will be
given, certificates representing the Spinoff Shares will be placed in escrow
with Bank One Trust Company NA, Oklahoma City, Oklahoma ("the Escrow Agent").
See "Plan of Distribution." No market for the securities can be or will
develop as long as the escrow continues. Should the Merger be approved and
effected, the Escrow Agent will distribute the certificates to their owners,
but this will not in itself create an active market in the Company's Common
Stock. The Company anticipates that its Common Stock will be listed on the OTC
Bulletin Board, but no assurance can be given that this will occur or, if it
occurs, that such listing can be maintained. Further, should the Company's
common Stock trade on the OTC Bulletin Board at less than $5 a share - and no
assurance can be given that this will not be the case, many broker- dealer
firms will not allow their registered representatives to recommend the stock to
their customers because of certain administrative severities placed by the
Securities and Exchange Commission on so-called "penny stocks." Such a
disallowance would tend to further inhibit the creation of market interest in
the stock and act as a depressant on its price in the stock market. It is
likely that any market that develops for the Common Stock, should it develop,
will be highly volatile and that the trading volume in such market will be
limited.
2. No Assurance of Success of Business. Should the proposed
Merger occur, the post-Merger Company will be engaged in the business of
marketing products produced by others but under license to sell. This
business, only commenced in the second half of 1997 by Summit Technologies, is
operating at a profit. There can be however, and is, no assurance that this
business will continue to be run profitably. See "Information About Summit
Technologies."
3. Risk of Loss of Licenses to Sell Products. Summit
Technologies, with whom the Company proposes to merge, distributes products
owned by other companies. The continuation of the licenses to distribute these
products depends in most instances upon achievement of minimum, annual sales of
the licensed products. There can be no assurance that any of these required
levels of sales can be met. Factors not under the control of Summit
Technologies could affect its ability to meet these required levels of sales.
The loss of one or more rights to distribute products owned by other companies
could have a materially adverse effect upon the post-Merger Company.
4. Reliance on Key Personnel. Should the Merger occur, the
post-Merger Company will be reliant on the continued services of several key
personnel, and the loss of any of them could have a materially adverse effect
on the future operations of the Company. These persons are B. Keith
4
<PAGE> 23
Parker, chief executive officer of Summit Technologies; Don Hendon, president
and treasurer, and Paula Parker, corporate secretary. There can be no
assurance that the loss of key personnel will not materially and adversely
affect its operations and, particularly, its expansion. See "Management
Information - Directors, Executive Officers and Significant Employees."
5. Management Control. Should the proposed Merger be approved
and effected, after the Merger the Company's officers and directors and their
affiliates will own approximately 50.3 percent of the Common Stock of the
Company and thereby may be able to determine the outcome of any vote affecting
the control of the Company.
6. Tax Consequences. In the opinion of tax counsel to the
Company (see "Federal Income Tax Consequences"), the proposed Merger will be a
tax-free reorganization and the distribution of the 500,000 Spinoff Shares to
the SuperCorp shareholders will occasion negligible income taxes to the
SuperCorp shareholders and none to the Company. These anticipated favorable
tax consequences are not supported by an advance ruling by the Treasury
Department but are based upon the opinion of tax counsel to the Company and to
SuperCorp. Should the actual tax consequences be different than as represented
herein, SuperCorp's shareholders, to whom would be distributed 500,000 Spinoff
Shares, could recognize taxable dividend income equal to the fair market value
of the Spinoff Shares, which could range from as low as $________ a Spinoff
Share (the March 31, 1998, book value) to a higher price possibly set by
initial trading activity in the stock market.
7. Dividends Not Likely. Should the Merger be effected, for the
foreseeable future it is anticipated that any earnings which may be generated
from Operations of the emergent company will be used to finance the growth of
such company, and cash dividends will not be paid to holders of the Common
Stock.
8. Dependence on a Major Distributor. Summit Technologies
depends upon Newell Paper Company of Hattiesburg, Mississippi, a non-affiliated
Mississippi-based company, to distribute in the U.S. Summit Technologies'
"FirePower 911" brand fire suppressant. Should the Merger be approved and
effected, the business of the post-Merger Company could be materially affected
by conditions not under its control that should affect the ability of Newell
Paper Company to continue to distribute this product. Summit Technologies'
worldwide license to distribute this product is conditioned upon minimum,
annual sales of this product. The loss of this license would have a materially
adverse effect upon the post-Merger Company.
SUPERCORP - THE DISTRIBUTING SHAREHOLDER
SuperCorp Inc. ("SuperCorp") was organized under the laws of the State
of Oklahoma on October 21, 1988. SuperCorp has approximately 650 shareholders
in 48 states, almost all of whom it acquired in early 1989 when it purchased
all the assets of Naturizer, Inc., through a chapter 11 plan of reorganization,
in exchange for shares of common stock of SuperCorp, which shares were
distributed to the creditors and shareholders of Naturizer, Inc. One of the
purposes for which SuperCorp was organized
5
<PAGE> 24
is to engage in "spinoff" activities such as are described herein, such
spinoffs to involve the distribution, by way of stock dividends or otherwise,
of registered shares of stock of other companies.
SuperCorp has assets consisting of approximately $65,000 in cash.
Each of its five directors, Albert L. Welsh, John E. Adams, Ronald D. Wallace,
T.E. King, and Thomas J. Kenan, either directly or by attribution through
ownership by family members, owns 375,000 shares of common stock of SuperCorp,
which amount is less than six percent of the number of outstanding shares. See
"Management Information - Security Ownership of Certain Beneficial Owners and
Management."
SuperCorp is not subject to the reporting requirements imposed by
Section 15(d) of the Securities Act of 1933 or Section 13 of the Securities
Exchange Act of 1934. Its common stock does not trade in the stock market, and
it has never sought a market maker for its stock.
SuperCorp organized the Company in February 1998 as a vehicle
specifically for the proposed Merger. The Company has no business history,
$750 in assets, no liabilities, and three shareholders - SuperCorp; Dave
Dischiavo, a "finder"; and Marjorie Cole, a shareholder of SuperCorp who is the
spouse of George W. Cole, an "insider" of the Company and of SuperCorp. See
"Information About the Company." Should the proposed Merger not be effected,
see "Plan of Distribution - The Escrow Arrangement - Consequences Should the
Merger Not Occur" below for an explanation of what disposition would be made of
the Company.
SUPERCORP MAY BE DEEMED TO BE AN UNDERWRITER.
The 500,000 Spinoff Shares described herein are owned by SuperCorp and
are to be redistributed by SuperCorp, who might be deemed to be an underwriter
by reason of its intent to distribute such Shares.
After the distribution by SuperCorp of the Spinoff Shares to its
shareholders, SuperCorp will no longer own any shares of capital stock of the
Company, except to the extent that 232 Spinoff Shares, reserved for rounding-up
purposes, would not be allocated in the rounding-up process (see "Terms of the
Merger").
A consequence to SuperCorp, should it be deemed to be an underwriter
of the Shares to be distributed to its shareholders, is that any person who
purchases the registered Shares within three years after the distribution could
assert a claim against SuperCorp under Section 11 of the Securities Act of
1933. The purchase could be in the open market as long as the shares purchased
can be traced to the registered Shares SuperCorp distributes to its
shareholders. Such a claim, to be successful, must be based upon a showing
that statements in the registration statement were false or misleading with
respect to a material fact or that the registration statement omitted material
information required to be included therein.
Open market purchasers may have to prove reliance upon the alleged
misstatement or omission, but reliance may not necessarily require a showing
that the purchaser actually read the registration statement but,
6
<PAGE> 25
instead, that the misstatements or omissions in the registration statement were
a substantial factor in the purchase of the shares.
SUPERCORP'S EXPOSURE AS A CONTROL PERSON.
SuperCorp organized the Company and, since its organization and until
the proposed Merger should become effective, has been and will be a "control
person" of the Company, as that term is defined in Section 15 of the Securities
Act of 1933 ("the Act").
Section 15 of the Act imposes joint and several liability on persons
who control other persons substantively liable under other sections of the Act:
Section 11, for misrepresentations in a registration statement, Section 12(1) -
the unlawful sale of unregistered securities, and Section 12(2) -
misrepresentations in the sale of securities. A controlling person can avoid
liability by proving "he had no knowledge of or reasonable grounds to believe
in the existence of the facts by reason of which the liability of the
controlled person is alleged to exist."
TERMS OF THE TRANSACTION
The Company, SuperCorp, and Summit Technologies, pursuant to approval
by their respective boards of directors, have entered into an agreement of
merger between the Company and Summit Technologies, a copy of which is included
herein (see "Appendix A - Agreement of Merger"). In order for the merger
contemplated by the Agreement of Merger to become effective, it is necessary
that each of the following occur:
(i) a registration statement covering 500,000 Spinoff
Shares (for distribution pro rata to SuperCorp's securities holders)
must be filed with the Securities and Exchange Commission and with
appropriate state securities regulatory agencies and must become
effective;
(ii) the shareholders of each of the Company and of Summit
Technologies must, by a requisite vote of the shares outstanding,
approve the merger contemplated by the Agreement of Merger; and
(iii) certain documents evidencing the approved merger must be
prepared and filed with the Secretary of State of Texas.
TERMS OF THE MERGER.
The terms of the proposed merger ("the Merger") are as follows:
1. Summit Technologies shall merge into the Company.
2. Upon the effectiveness of the Merger, the outstanding shares
of common stock of Summit Technologies shall be exchanged for 5,000,000 shares
of Common Stock of the Company ("the Merger Shares"). See "Description of
Securities."
3. The business of Summit Technologies shall be conducted, after
the Merger, by the Company, into which Summit Technologies shall have merged,
but Summit Technologies' management and directors shall become the management
and directors of the Company. See "Management Information."
7
<PAGE> 26
4. Prior to the Merger, SuperCorp shall have distributed to its
shareholders ("the Spinoff"), on a basis proportionate to their shareholders in
SuperCorp, 500,000 Shares ("the Spinoff Shares") of Common Stock of the Company
now held by SuperCorp. Each SuperCorp shareholder shall receive one share of
the company for each fourteen shares of SuperCorp held of record on the date of
this Prospectus.
5. The historical financial statements of the post-Merger Company
shall be those of Summit Technologies. See "Financial Statements - Summit
Technologies."
6. Should the Merger not be approved by the shareholders of
Summit Technologies, none of Summit Technologies, the Company, or SuperCorp
shall be liable to any of the others, but it shall be the sole obligation of
Summit Technologies to pay all three parties' expenses relating to the
registration of the Shares described herein.
REASONS FOR THE MERGER AND SPINOFF.
The managements of the Company and of Summit Technologies believe that
Summit Technologies' shareholders will benefit from receiving shares of the
Company in exchange for their shares of capital stock of Summit Technologies.
They believe that the distribution of shares to the stockholders of SuperCorp
in the Spinoff will provide the basis for the creation of a public market for
the Common Stock of the post-Merger Company and that the existence of such a
public market will facilitate the raising of expansion funds for the
post-Merger Company. No assurance can be given, however, that a market will
develop for the Common Stock or, if it develops, that it will be sustained.
See "Risk Factors - No Assurance of a Public Market."
ACCOUNTING TREATMENT OF PROPOSED MERGER.
Because the Company is only a corporate shell and not an operating
entity, the proposed Merger will be accounted for as if Summit Technologies
recapitalized.
DEGREE OF MANAGEMENT CONTROL OF VOTE ON MERGER.
The Merger must be approved by an affirmative vote of the holders of
at least two-thirds of the outstanding shares of Common Stock of each of the
Company and Summit Technologies. With respect to such companies, the
percentage of outstanding shares entitled to vote and held by officers,
directors and their affiliates are as follows: the Company - 83.3%; and Summit
Technologies - 55.8%. Summit Technologies' officers, directors and affiliates,
even though they are recommending approval of the Merger, have agreed to vote
their shares to approve or disapprove the proposed Merger in accordance with
the majority vote of the other voting shareholders.
DISSENTERS' RIGHTS OF APPRAISAL.
Those shareholders of Summit Technologies who vote against the Merger
have the right to dissent and to exercise certain rights of appraisal, which,
if exercised, and if the Merger is effected, would cause Summit Technologies to
pay these dissenters the appraised value of their
8
<PAGE> 27
shareholdings. See "Voting and Management Information - Dissenters' Rights of
Appraisal."
COMPLIANCE WITH GOVERNMENTAL REGULATIONS.
No federal or state regulatory requirements, other than securities
laws and regulations, must be complied with or federal or state approval
obtained in connection with the Spinoff and Merger, other than the filing of
articles of merger with the Secretary of State of Texas after a favorable vote
might be obtained on the proposed merger.
AGREEMENT AND PLAN OF MERGER.
The complete Agreement of Merger among the Company, Summit
Technologies, and SuperCorp is included in this Prospectus. See "Appendix A -
Agreement of Merger."
TRANSACTIONS WITH INSIDERS
The 500,000 Spinoff Shares will be distributed pro rata to all
SuperCorp shareholders of record on the date of this Prospectus. An additional
250,000 shares of Common Stock of the Company are owned by two persons, either
directly or by attribution to their family members.
Both of these persons, by reason of their present ownership of
securities of the Company, may be deemed to be "promoters" or "insiders" of the
Company who will receive benefits from the transaction not received by
SuperCorp shareholders who are not insiders.
The identities of the "promoters" or "insiders," their positions with
the Company and with SuperCorp, and the securities of the Company each now owns
are as follows:
<TABLE>
<CAPTION>
Office or
Position with Company Shares of
Insider or SuperCorp Common Stock
------- ------------ ------------
<S> <C> <C>
David Dischiavo None 125,000
George W. Cole None 125,000(1)
</TABLE>
- -------------------
(1) These shares are held by Marjorie Cole, Mr. Cole's spouse, who will
also receive 26,786 shares of the Company as her pro rata share of the
Spinoff Shares.
SERVICES RENDERED BY INSIDERS.
Mr. Dischiavo and Mr. Cole may be deemed to be "insiders" or
"promoters" in connection with the purchase by each of 125,000 shares of Common
Stock of the Registrant for $125, or $0.001 a share. Each also performed
services for the Registrant and SuperCorp Inc.
For a comparison of the securities to be received by the promoters and
insiders and to be received by other SuperCorp shareholders, see the table
9
<PAGE> 28
under "Summary Information - Securities to be Outstanding After the Merger."
For details concerning the direct or attributed ownership of Company securities
by the promoters and insiders, see "Management Information - Security Ownership
of Certain Beneficial Owners and Management."
PLAN OF DISTRIBUTION
THE ESCROW ARRANGEMENT.
A vote to approve the Merger by the shareholders of the Company is
assured. After such vote but before any vote by the shareholders of Summit
Technologies, SuperCorp shall declare a dividend to its shareholders of the
500,000 shares of Common Stock of the Company held by it ("the Spinoff
Shares"). Certificates representing the 500,000 Spinoff Shares shall be
distributed by SuperCorp to Bank One Trust Company, N.A., Oklahoma City,
Oklahoma ("the Escrow Agent") to be held in escrow pursuant to the provisions
of Securities and Exchange Commission Regulation 230.419. Later distribution
by the Escrow Agent would be as follows:
SHOULD THE MERGER OCCUR. Upon the legal effectiveness of the Merger
(should Summit Technologies' shareholders approve the Merger), the Company
shall supplement this Prospectus to indicate the fact and date of the Merger.
At such time as the Company's Common Stock is declared eligible for quotation
on the OTC Bulletin Board, the Company shall provide to the Escrow Agent the
Company's representation that the requirements of Securities and Exchange
Commission Regulation Section 230.419(e) have been met, and the Escrow Agent
shall distribute the escrowed certificates representing the 500,000 Spinoff
Shares to the owners of such securities.
CONSEQUENCES SHOULD THE MERGER NOT OCCUR. There can be no assurance
that the proposed Merger between the Company and Summit Technologies will
occur, since a favorable shareholder vote of Summit Technologies' shareholders
must be obtained, and no assurance can be given that such will be obtained.
Should the Merger not become effective, (i) Summit
Technologies will continue as a separate corporation with its existing assets
and business, and (ii) the Company will have no significant assets or business,
and there will be no trading market for its securities, which will still be
held in escrow by the Escrow Agent. As long as this escrow continues, no
transfer or other disposition of the securities held in escrow shall be
permitted other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Internal
Revenue Code of 1986, as amended, or Title 1 of the Employee Retirement Income
Security Act or the rules thereunder. The Company's management has no specific
plans for an alternative to a rejection of the proposed Merger but would seek
to acquire a business or assets that would constitute a business, using funds
contributed by management to pay the costs of such search. Upon execution of
any agreement for the acquisition of a business or assets that would constitute
a business, the Company shall file a post-effective amendment to the
Registration Statement and shall supplement this Prospectus to disclose
information about the alternative business or assets acquisition, including
financial statements and other information required by the Securities and
Exchange Commission's Rule 419. Upon the legal
10
<PAGE> 29
effectiveness of the acquisition described in the amended registration
statement and supplemented Prospectus, an additional post-effective amendment
to the registration statement would be filed, and upon the effectiveness of
such post-effective amendment filed with the Commission, the Escrow Agent would
distribute the certificates held in escrow. Should no alternative to the
Merger be effected within eighteen months after the effective date of the
Registration Statement of which this Prospectus is a part, the holders of a
majority of the company's Common Stock will have voting rights to cause a
dissolution of the Company and persons who will constitute such a majority have
indicated their intentions to so exercise these voting rights to that effect at
that time. Such persons are Albert L. Welsh, president and a director of
SuperCorp; Nita Kaye Adams, Renee Adams, Chris Adams, and Meridyne Corp., all
of whom are related to or affiliated with John E. Adams, a director of
SuperCorp; the Marilyn C. Kenan Trust, which is under the control of the spouse
of Thomas J. Kenan, a director of SuperCorp, and Mary M. Kenan and Joseph N.
Kenan, the adult daughter and son of Thomas J. Kenan; Ronald D. Wallace, a
director of SuperCorp and the beneficial owner of SuperCorp shares held by
Sackville Advisors, Ltd., which is under his control; T.E. King, a director of
SuperCorp; Marjorie Cole; Judith Rader, Gary E. Bryant, Suzanne Kerr, and
Suzanne Peterson, shareholders of SuperCorp. See "The Escrow Arrangement."
DESCRIPTION OF SECURITIES
COMMON STOCK. Each of the Company and Summit Technologies is a Texas
corporation. The Company is authorized to issue 40 million shares of Common
Stock, $0.001 par value and has 750,000 shares of Common Stock issued and
outstanding. Summit Technologies is authorized to issue 10 million shares of
common stock, no par value, and has 5,000,000 shares of its Common Stock issued
and outstanding.
VOTING RIGHTS. Holders of the shares of Common Stock are
entitled to one vote per share on all matters submitted to a vote of the
shareholders. Shares of Common Stock do not have cumulative voting rights,
which means that the holders of a majority of the shares voting for the
election of the board of directors can elect all members of the board of
directors.
DIVIDEND RIGHTS. Holders of record of shares of Common Stock
are entitled to receive dividends when and if declared by the board of
directors out of funds of the Company legally available therefor.
LIQUIDATION RIGHTS. Upon any liquidation, dissolution or
winding up, holders of shares of Common Stock are entitled to receive pro rata
all of the assets of the Company available for distribution to shareholders,
subject to the prior satisfaction of the liquidation rights of the holders of
outstanding shares of Preferred Stock.
PREEMPTIVE RIGHTS. Holders of Common Stock do not have any
preemptive rights to subscribe for or to purchase any stock, obligations or
other securities of the Company.
REGISTRAR AND TRANSFER AGENT. Bank One Trust Company, NA,
Oklahoma City, Oklahoma, serves as the transfer agent and registrar of the
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Common Stock of the Company. Summit Technologies serves as its own registrar
and transfer agent.
DISSENTERS' RIGHTS. Under current Texas law, a shareholder is
afforded dissenters' rights which, if properly exercised, may require the
corporation to repurchase its shares. Dissenters' rights commonly arise in
extraordinary transactions such as mergers, consolidations, reorganizations,
substantial asset sales, liquidating distributions, and certain amendments to
the company's memorandum and articles of association.
PREFERRED STOCK. The Company is authorized to issue 10 million shares
of Preferred Stock, $0.001 par value. The Preferred Stock may be issued from
time to time by the directors as shares of one or more series. The description
of shares of each series of Preferred Stock, including any preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption shall be set
forth in resolutions adopted by the directors.
There are no shares of Preferred Stock of the Company issued and outstanding.
FEDERAL INCOME TAX CONSEQUENCES
THE MERGER. In the opinion of Thomas J. Kenan, counsel to the Company
and to SuperCorp, the Merger should qualify as a type "A" reorganization under
Section 368(a)(1) of the Internal Revenue Code. However, when consideration is
given to the fact that the Company is newly organized, the "step transaction
doctrine" might be applied and, accordingly, the Company might be considered a
continuation of Summit Technologies with only a change of name or place of
incorporation, a type "F" reorganization under Section 368(a)(1).
SHAREHOLDERS OF SUMMIT TECHNOLOGIES. Whether the Merger be
characterized as a type "A" or "F" reorganization, the Company believes that
there should be no recognition of taxable gain or loss to the shareholders of
Summit Technologies by reason of the Merger. Each shareholder of Summit
Technologies would have a carryover tax basis and a tacked holding period for
the Company's securities received in the Merger. Further, Summit Technologies
itself would not recognize any taxable gain or loss, since its liabilities are
not in excess of the tax basis of its assets.
It is anticipated that the distribution by SuperCorp to its
shareholders of the 500,000 Spinoff Shares will not adversely affect the
non-recognition of gain or loss to Summit Technologies or its shareholders in
the merger.
The above discussion is not based upon an advance ruling by
the Treasury Department but upon an opinion of Thomas J. Kenan, esquire, in his
capacity as tax counsel to the Company (which tax opinion is one of the
exhibits to the registration statement of which this Prospectus-Proxy Statement
is a part). See "Risk Factors - Tax Consequences."
THE SPINOFF. In the opinion of Thomas J. Kenan, counsel to SuperCorp
and to the Company, the distribution by SuperCorp to its shareholders of
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the 500,000 Spinoff Shares will be a taxable event to SuperCorp and to each of
its shareholders receiving any of the Spinoff Shares. Gain (but not loss)
would be recognized by SuperCorp under Section 311 of the Internal Revenue Code
for any excess of the fair market value of the Company's stock on the date of
actual distribution over the tax basis to SuperCorp of such stock.
SHAREHOLDERS OF SUPERCORP. As for SuperCorp's shareholders who
receive Spinoff Shares of the Company, the spinoff shall occur prior to the
vote by Summit Technologies' shareholders to accept or reject the Merger.
Since the result of the vote by Summit Technologies' shareholders cannot be
forecast, and since the Merger cannot and shall not become effective until
after a favorable vote is obtained on the Merger, it is Mr. Kenan's opinion
that it is more likely than not that the fair market value of the Spinoff
Shares on the date of the Spinoff should not have increased over the $0.001
price paid by SuperCorp for the 500,000 Spinoff Shares.
SuperCorp has no current or accumulated earnings, and the distribution
is being made from excess capital. Each shareholder of SuperCorp should reduce
the adjusted basis of his SuperCorp stock by the fair market value of the
distribution to him, and any remaining portion will be treated as capital gain
in the same manner as a sale or exchange of the stock. This fair market value
is assumed to be $0.001 per share. SuperCorp undertakes to advise its
shareholders in early 1999 should it deem the fair market value of the
distributed Spinoff Shares on the date of distribution to have been different
than $0.001 per share or should it have had earnings in 1998 which would cause
the distribution, to the extent of such earnings, to be taxed as a dividend and
as ordinary income.
The above discussion as to U.S. income tax consequences is not based
upon an advance ruling by the Treasury Department but upon the opinion of tax
counsel to the Company (which tax opinion is an exhibit to the registration
statement of which this Prospectus is a part). See "Risk Factors - Tax
Consequences."
OTHER FINANCIAL CONSIDERATIONS
PRO FORMA FINANCIAL INFORMATION AND DILUTION.
Due to the fact that the Company has no substance or operating history
- - it was organized as a shell to accommodate the desire of Summit Technologies'
management to provide for the issuance of securities registered under the
Securities Act to Summit Technologies' shareholders, pro forma financial
information giving effect to the Merger would not vary in any significant
respect from the financial information of Summit Technologies.
Essentially, the immediate effect of the Merger is to dilute by 13
percent the equity of the shareholders of Summit Technologies by transferring
this equity to the present shareholders of the Company and of SuperCorp. See
"Summary Information - Securities to be Outstanding After the Merger."
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MATERIAL CONTACTS AMONG THE COMPANIES.
Other than the proposed Spinoff and Merger described herein, there
have been no material contracts, arrangements, understandings, relationships,
negotiations or transactions among Summit Technologies, the Company, and
SuperCorp during the periods for which financial statements appear herein.
INFORMATION ABOUT THE COMPANY
The Company was incorporated under the laws of the State of Texas on
February 24, 1998. It is a development- stage company, has no business or
significant assets, and was organized for the purpose of entering into the
Merger proposed herein (see "Terms of the Transaction - Terms of the Merger").
It has no employees; its management will serve without pay until the Merger
should become effective.
DESCRIPTION OF BUSINESS AND PROPERTIES.
Should the Merger be approved and effected, the Company shall be the
surviving company, but the Company's management shall not remain as the
management of the Company. Control of the Company, through the voting power to
elect the entire board of directors and thereby to replace management, shall
pass to the present shareholders of Summit Technologies, and Summit
Technologies' present management shall become the management of the Company.
See "Management Information - Directors, Executive Officers, and Significant
Employees."
It is the intention of Summit Technologies' present management to
continue the business of Summit Technologies as the business of the Company
(see "Information about Summit Technologies - Description of Business and
Properties") after the Merger.
The Company's present management consists of one person, Albert L.
Welsh. Mr. Welsh is a registered representative of Birchtree Financial
Services, Inc., a broker-dealer firm with principal offices in Kansas City,
Missouri, and branch offices in several cities, including Texas City, Texas,
where Mr. Welsh is employed. Mr. Welsh is a director of SuperCorp.
COURSE OF BUSINESS SHOULD THE MERGER NOT OCCUR.
Should the Merger not be approved and effected, the Company will be
without any property or business. The Company's management would seek to
acquire, in exchange for stock of the Company, a business or assets that would
constitute a business. Should no acquisition that would cause the Company to
become a going concern be made within 18 months after the date of the
Registration Statement of which this Prospectus is a part, the holders of the
majority of the issued and outstanding shares of Common Stock will have the
voting power to cause a dissolution of the Company, and persons who are today
the holders of a majority of these shares have indicated their intention to do
so. See "Plan of Distribution - The Escrow Arrangements - Consequences Should
the Merger Not Occur."
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LEGAL PROCEEDINGS.
Neither the Company nor its property is a party to or the subject of
pending legal proceedings.
MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS.
As of the date of this Prospectus there is no public trading market in
the U.S. or elsewhere for the Company's Common Stock. After the Spinoff and
before any vote on the Merger by the shareholders of Summit Technologies, all
certificates representing the 500,000 Spinoff Shares shall be held in escrow by
the Escrow Agent.
Should the Merger be approved and effected, (i) the Escrow Agent will
release from escrow the certificates representing the ownership of the escrowed
securities, which certificates would be delivered to the approximately 650
persons owning the securities represented by the certificates, and (ii) the
shareholders of Summit Technologies will receive 5,000,000 Shares of Common
Stock of the Company in exchange for all the issued and outstanding shares of
capital stock of Summit Technologies.
Should the Merger be effected, the Common Stock is expected to be
eligible for quotation on the OTC Bulletin Board. There can be, and is, no
assurance that market makers will make or maintain a market in the stock or
that, even if a market is made and maintained in the stock, that the stock will
trade at prices deemed attractive or reasonable to the present shareholders of
Summit Technologies or the Company.
The Company's stock will not be eligible for quotation on the Nasdaq
SmallCap Market ("Nasdaq") (i) until it trades at a price of $3 per share or
higher and (ii) unless it meets other Nasdaq requirements regarding assets and
shareholders' equity, which it will not yet meet even if the Merger is approved
and effected. No assurance can be made that the Common Stock will ever become
eligible for quotation on Nasdaq.
The Company's stock is expected to be quoted on an NASD inter-dealer
system called "the Bulletin Board." While some Bulletin Board stocks are
actively traded, they do not draw the interest of the Nasdaq brokerage
community held by Nasdaq stocks or exchange-listed stocks. The eligibility
requirements for listing the Company's stock on exchanges are generally as high
or higher than the requirements for eligibility for quotation on Nasdaq, and
the Company has no present plans to list its stock on an exchange.
Further, holders of the Shares offered herein face the prospect,
should the Merger be approved and effected, of an indefinite period during
which the Shares will be subject to trading severities imposed on Bulletin
Board, so-called "penny stocks" (stocks that trade at less than $5 per share)
by regulations of the Securities and Exchange Commission. The effect of these
trading severities is to reduce broker-dealer and investor interest in trading
or owning "penny stocks" and, hence, could inhibit the ability of the Company's
stock to reach a trading level of $3 per share or higher and thereby become
eligible for quotation on Nasdaq even if the Company meets Nasdaq's assets and
shareholders' equity requirements in the future.
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RULE 144 AND RULE 145 RESTRICTIONS ON TRADING.
Should the Merger and Spinoff transaction described herein be approved
and effected, all outstanding shares of Common Stock of the Company, except the
250,000 shares held by the insider and the promoter, shall have been issued or
distributed pursuant to registration with the Commission. Nevertheless, some
of the Shares, even though deemed not to be "restricted securities," as such
term is used by the Commission, will be subject to certain restrictions on
their transfer for value.
Holders of the Shares who are deemed to be affiliates of Summit
Technologies at the time of the vote on the Merger, in order to sell their
Shares, must either register them for sale or comply with the resale provisions
set forth in paragraph (d) of the Commission's Rule 145, unless some other
exemption-from-registration provision is available. The resale provisions of
paragraph (d) of Rule 145 refer to certain provisions of the Commission's Rule
144 which require that:
o The Company must have been subject to the reporting
requirements of Section 15(d) of the Securities
Exchange Act for at least 90 days and must have filed
all reports with the Commission required by such rule
during the twelve months preceding such sale (or
shorter period that the Company was required to file
such reports), and
o Transfers for value by such affiliates can occur only
either through broker transactions not involving the
solicitation of buyers or directly to market-makers,
and
o Each such affiliate can transfer for value, during a
90-day period, no more Shares than the greater of one
percent of all issued and outstanding shares of
Common Stock of the Company (57,500 shares
immediately after the Merger) or the average weekly
volume of trading in such Common Stock reported
through the automated quotation system of Nasdaq or
the Bulletin Board during the four calendar weeks
prior to placing the sell order with a broker-dealer.
The above described resale provisions of Rule 145 shall continue, for
persons who are affiliates of Summit Technologies at the time of the vote on
the Merger, for one year after the Merger, at which time only the current
public information requirement shall continue. At such time as any such
affiliate has ceased to be an affiliate of the post- merger company for at
least three months, and provided at least two years have elapsed since the date
of the Merger, then even the current public information requirement will no
longer be required for such a former affiliate to sell any of the Shares
acquired in the Merger.
The Company believes that none of the 500,000 Spinoff Shares will be
subject to any restrictions on trading or transfers for value, by reason of
these Shares' being registered for the Spinoff. Further, none of the 5,000,000
Shares of the Company to be distributed in the Merger to Summit Technologies
shareholders other than 2,894,225 shares to Summit Technologies officers and
directors and to affiliates of Summit Technologies prior to the Merger will be
subject to any restrictions on
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transfer. Accordingly, after the effective date of the Merger and the
redistribution of the Spinoff Shares, there shall be 2,605,775 shares in the
"public float," i.e., subject to no Rule 144, Rule 145 or other applicable
securities law restrictions on their being traded or transferred for value. It
is estimated that approximately 650 persons will own these shares of record, the
offering of which for sale could have a materially adverse effect on the market
price of the Company's stock. Further, an additional 2,894,225 shares will be
held by affiliates of Summit Technologies who will be able to sell these shares
pursuant to Rule 144 and Rule 145 of the Securities Act.
There is no equity of the Company subject to outstanding options or
warrants to purchase, or securities convertible into, equity of the Company.
DIVIDENDS.
The Company has had no operations or earnings and has declared no
dividends on its capital stock. Should the Merger be approved and effected,
there are no restrictions that would, or are likely to, limit the ability of
the Company to pay dividends on its Common Stock, but the Company has no plans
to pay dividends in the foreseeable future and intends to use earnings for
business expansion purposes (see "Information about the Company - Description
of Business and Properties").
FINANCIAL STATEMENTS.
See "Financial Statements - Summit Environmental Corporation, Inc."
for the independent auditor's report dated March 17, 1998, with respect to the
Company's balance sheet as of March 17, 1998, such balance sheet, and the notes
to the balance sheet.
INFORMATION ABOUT SUMMIT TECHNOLOGIES
OVERVIEW.
Summit Technologies, Inc. ("Summit Technologies") was incorporated in
Texas on August 14, 1997. Its fiscal year ends December 31.
MANAGEMENT'S PLAN OF OPERATION.
The following plan of operation should be read in conjunction with the
financial statements and the accompanying notes thereto and is qualified in its
entirety by the foregoing and by more detailed financial information appearing
elsewhere. See "Financial Statements."
For the next twelve months, Summit Technologies plans to accomplish
the following:
o Introduce one of its fire suppressant products - FlameOut(TM)
- in ten pound and twenty pound fire extinguishers in the
Philippines through a joint venture there with Moonlighting
International (Philippines).
o Commence sales of FirePower 911(TM) and FlameOut(TM) in the
U.S. and Canada through the use of infomercials and through
the direct marketing efforts of Newell Paper Company of
Mississippi (for
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Mississippi and Western Alabama) and affiliated paper
companies (balance of U.S.).
o Introduce FirePower 911(TM) and FlameOut(TM) in Mexico through
infomercials.
o Introduce FirePower 911(TM) and FlameOut(TM) in China, South
America and South Africa and other Asian countries through
joint ventures with companies who have established a presence
in the region.
o Expand sales of its Stressex(TM) product - marketed under the
"Poder 24(TM)" brand name in Spanish- speaking areas - in the
U.S., Mexico and Central American countries, primarily through
infomercials.
o Develop marketing alliances with other companies for the
distribution of a chitosan-based weight management pill and
topical application.
o Develop marketing alliances, for the U.S. with the Newell
Paper Companies and for Spanish-speaking countries with other
companies, for bio-degradable and non-toxic industrial
chemicals and cleaning agents developed by BioGenesis
Enterprises, Inc. of Springfield, Virginia.
CASH REQUIREMENTS.
Summit Technologies estimates it will have to raise additional funds
- -approximately $1 million - in the next twelve months to satisfy the cash
requirements to fulfill all these objectives. Its current cash funds -
$600,000 - are sufficient to sustain its present operations and modest growth
indefinitely, but significant and quick growth are dependent upon obtaining the
additional funds described above to pay for television infomercial time.
PRODUCT RESEARCH AND DEVELOPMENT.
Summit Technologies' products are developed by other companies and are
distributed by it under license agreements. A significant licensor,
Moonlighting Distribution Corporation, is an affiliate of Summit Technologies
and is constantly engaged in research and development of products designed to
improve the quality of an individual's life. These products include the
Stressex(TM) and Poder 24(TM) lines, designed to increase energy, alleviate
stress and promote hormonal balance, and the Trim-Away(TM) chitosan-based pill
and topical-application products designed to assist in weight management. See
"- Principal Products."
PURCHASES OF PLANT AND EQUIPMENT.
Summit Technologies does not expect to purchase or sell any plant or
significant equipment during the next twelve months.
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CHANGES IN NUMBER OF EMPLOYEES.
Summit Technologies expects to increase the number of its employees in
the next twelve months by adding a full- time president and chief financial
officer (Don Hendon) and persons to fill the following positions: office
manager, fulfillment manager, and office secretary.
The annual addition to salaries and wages to fill these positions is
estimated to be $123,000.
Summit Technologies' future results of operations and the other
forward-looking statements contained in this Outlook and Offering Circular, in
particular the statements regarding projected operations for the next twelve
months, involve a number of risks and uncertainties. In addition to the
factors discussed above, among the other factors that could cause actual
results to differ materially are the following: the inability of Summit
Technologies to obtain its necessary capital; the loss of any of several key
personnel; unexpected costs in establishing joint ventures for distribution of
products; the emergence of competition not now detected; and a general economic
turndown.
DESCRIPTION OF SUMMIT TECHNOLOGIES' BUSINESS
BUSINESS DEVELOPMENT.
In 1993 Summit Technologies' organizers - B. Keith Parker and Paula
Parker - began to assess several products developed by BioGenesis Enterprises,
Inc. of Springfield, Virginia ("BioGenesis"). BioGenesis develops and
manufactures industrial products that are environmentally safe - generally,
products that are biodegradable and nontoxic. By middle 1997, Mr. and Mrs.
Parker concluded that BioGenesis's products merited commercial exploitation.
Summit Technologies was incorporated to organize, finance, and direct the
marketing of BioGenesis's products for which marketing licenses could be
obtained and for which marketing expenses could be raised.
Summit Technologies is affiliated with Moonlighting Distribution
Corporation, a closely held Texas corporation ("Moonlighting"). Moonlighting
is under the 52.5 percent ownership and control of B. Keith Parker and his
spouse, Paula Parker, who are directors and, respectively, the chief executive
officer and secretary of Summit Technologies. Moonlighting develops and
markets health and well-being products designed to improve the quality of an
individual's life and also markets other products. After the organization of
Summit Technologies, Moonlighting licensed to Summit Technologies the exclusive
right to market a product newly developed by Moonlighting and tested for
marketing - Stressex(TM) and Poder 24(TM) - and the non-exclusive right to
market a fire suppressant product - FirePower 911(TM) and FlameOut(TM) - for
which Moonlighting had certain distribution rights. See "- Principal Products"
below.
PRINCIPAL PRODUCTS. Summit Technologies distributes and markets or
has initiated activities to distribute and market the following licensed
products. All of the products are manufactured by the licensors of the
products.
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FirePower 911(TM) and FlameOut(TM). These products are fire
suppressants developed and manufactured by BioGenesis. They were developed by
BioGenesis to be a replacement for Halon 1211. Halon 1211 was a widely used
fire suppression and explosion protection agent. It is applied primarily as a
wetting agent and was the fire extinguishing agent of choice for many uses,
such as most fire extinguishers. Its production was halted in 1994 by the
Environmental Protection Agency ("EPA") primarily because Halon 1211 has one of
the higher ozone depletion potentials of any compound. Halon 1211 is still
approved for certain, limited mission-critical uses (such as ship- and
shore-based crash, fire and rescue), but existing installations of Halon 1211
that are not mission critical must switch to an approved, acceptable
alternative.
In March 1995 the first alternative to Halon 1211 was approved
by the EPA - BioGenesis's Surfactant Blend A. This product is marketed under
several trade names by companies licensed by BioGenesis. Two of these trade
names are FirePower 911(TM) and FlameOut(TM).
The EPA has now approved at least eleven other accepted
substitutes to Halon 1211. Three of these are water, foam and carbon dioxide.
Other than these three, BioGenesis's Surfactant Blend A is approved for all
wetting agent uses and is the only substitute approved for residential use.
Some of the substitutes were approved only for a limited time and then must be
phased out. Flameout(TM) was certified in May 1997 by Underwriter Laboratories
(listing number 7P21).
FirePower 911(TM) and FlameOut(TM) contain the same Surfactant
Blend A formula. FirePower 911(TM) is marketed at three percent strength for
use in fire extinguishers to fight, generally, Class A fires (wood, cloth,
paper, rubber and plastics) and is less concentrated than FlameOut(TM), which
is marketed at six percent strength for suppression of Class B fires
(combustible liquids, gases and greases). Surfactant Blend A is also effective
at ten percent strength in suppressing Class D fires (metals) but has not yet
been submitted to Underwriters Laboratory for certification for Class D fire
suppression.
FirePower 911(TM) and FlameOut(TM) suppress and extinguish
fire quickly. They reduce toxic smoke by encapsulating poisonous hydrocarbons,
reduce heat approximately 70 percent faster than water does, prevent reflash,
are safe to store and handle, leave virtually no residue, are biodegradable and
otherwise are environmentally safe. They are nontoxic but may irritate the
eyes. They store at between 32 degrees and 120 degrees Fahrenheit for
prolonged periods.
Stressex(TM) and Poder 24(TM).
These are the same products. Stressex(TM) is the English-language
brand name and Poder 24(TM) is the Spanish-speaking brand name. The product
combines six herbs - saw palmetto, sarsaparilla, nettle leaf, damiana, buckthorn
and avena sativa - in tablets marketed to women and substitutes Yohimbe for
damiana in the capsules marketed to men. Summit Technologies markets the
product as one that increases energy, alleviates stress and promotes hormonal
balance and libido.
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Trim-Away(TM).
This product was recently developed by Moonlighting
Distribution Corporation, an affiliate of Summit Technologies. Its main
ingredient is Chitosan, which is mixed with aloe vera, aminophylline, and other
botanical ingredients to make a topical product. Chitosan is a fat absorbent
agent. It is non-caloric and indigestible. After absorbing fat - up to ten
times its weight - it passes through the body. Aloe vera is a transportation
agent, enabling the topically applied Trim-Away(TM) ointment to penetrate the
fat reserve beneath the skin. Aminophylline signals the body to release fat
reserves for the Chitosan to absorb.
Chitosan is made from chitin. The most abundant source of
chitin is the shells of shellfish such as crab and shrimp. Chitosan is made by
cooking chitin in alkali. Chitosan binds fat to itself and acts like a "fat
sponge." Being indigestible and non-absorbable by the human body, it passes
through the body carrying with it any fat it has absorbed.
Moonlighting is developing a Chitosan-based chewable tablet to
be marketed as a diet supplement for weight loss. When developed, Summit
Technologies will market it.
Industrial Chemicals and Cleaners.
Summit Technologies distributes BioGenesis's industrial
chemicals and cleaners. BioGenesis concentrates its activities on developing
and then manufacturing, for marketing by other companies, industrial-use
products that are environmentally safe. BioGenesis has developed several
industrial chemicals and cleaners that Summit Technologies proposes to market
as soon as funds are available to launch marketing efforts.
DISTRIBUTION METHODS.
Summit Technologies has no sales force, as such - other than Keith
Parker, its chief executive officer, but markets products through joint
ventures with established marketing organizations, through infomercials and
radio "spots," through direct advertising, and internationally through a
network of persons and companies who contract with Summit Technologies for
distribution rights.
Summit Technologies markets FlameOut(TM) in the Philippines through a
joint venture with Moonlighting International Philippines ("Moonlighting
Philippines"). Neither Summit Technologies nor the Texas-based Moonlighting
Distribution Corporation ("Moonlighting") has any ownership interest in
Moonlighting Philippines, but Summit Technologies has a 40 percent net revenue
interest in the joint venture.
Moonlighting Philippines is under the direction, ownership, and
control of experienced Philippine marketers. It has obtained the approval and
endorsement of the Philippine National Bureau of Fire Protection for
FlameOut(TM). Surfactant Blend A is shipped, f.o.b. point of U.S. origin, to
the Philippines in concentrated form. It is there mixed with water and placed
in fire extinguishers.
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Summit Technologies is preparing to launch an infomercial campaign to
sell FirePower 911(TM) in the U.S. Summit Technologies recently purchased
$75,000 in prepaid infomercial advertising from Embassy Marketing Corporation
of Dallas, Texas ("Embassy") in exchange for 250,000 shares of Summit
Technologies common stock. Embassy will make available, for this purpose,
advertising time on the Family Network, CNBC and the Hispanic Television
Network as well as advertising space in Travel Host and Intrigue magazine,
which are found in most hotel rooms in the U.S.
Summit Technologies commenced marketing Poder 24(TM) through K-MEX, a
Spanish-speaking radio station in the Los Angeles area and in Mexico. Summit
Technologies is preparing a prime-time infomercial campaign through Hispanic
Television Network to be aired in 450 markets.
Summit Technologies has commenced distributing FirePower 911(TM),
FlameOut(TM) and BioGenesis industrial cleaners (for glass, carpets and
concrete and for odor control) through Newell Paper Company of Hattiesburg,
Mississippi ("Newell Mississippi"). Newell Mississippi is a 75-year-old
company that directly sells industrial products throughout Mississippi and
Western Alabama. It has 40 salesmen and annual sales of approximately $40
million. Under discussion with Newell Mississippi is a proposal for Newell
Mississippi to become a sub-distributor of Summit Technologies' fire
suppressant distribution rights for the U.S. (with the exception of any
existing agreements Summit Technologies has with other companies). In this
respect, Newell Mississippi proposes to use its business contacts with
approximately 300 affiliated paper companies who operate throughout the U.S.
Summit Technologies is negotiating with Home Depot, who proposes to
acquire from Summit Technologies the exclusive rights in Canada to distribute
FirePower 911(TM). Further, an initial sale of FirePower 911(TM) has been made
to Home Depot for it to test market this product in its Northeast U.S. Region.
COMPETITION.
BioGenesis has granted to other companies distribution rights of its
Surfactant Blend A fire suppressant for various parts of the world and under
two other trade names. Summit Technologies will potentially be in competition
with many of these companies. To the extent that any of these companies fails
to meet periodic sales requirements, Summit Technologies will acquire from
BioGenesis the expired licenses. See "- Patents, Trademarks and Licenses."
The demise of the former fire suppressant of choice, Halon 1211, is a
consequence of the 1992 Geneva Peace Conference, which mandated the phaseout of
Halon 1211 in all United Nations states participating in the Conference.
Summit Technologies believes that FirePower 911(TM) and FlameOut(TM)
are the finest fire suppressants in existence today and proposes to expand its
licensing agreement with BioGenesis to be exclusive in as many countries as it
can serve.
22
<PAGE> 41
In the Spanish-speaking countries in the Western Hemisphere, Summit
Technologies is in direct competition with Unispan with respect to Summit
Technologies' Poder 24(TM) product. Unispan is a large and well-capitalized
marketing company based in Mexico. Moonlighting contracted with Unispan in
1996 to test market Poder 24(TM) in Mexico through infomercials. Following a
successful test (33,000 bottles sold in a seven-week market test), Unispan
attempted to duplicate Poder 24(TM) and sells it under a similar brand name.
Summit Technologies and Moonlighting have served notice on Unispan that Summit
Technologies will sue Unispan for these activities when Summit Technologies can
afford such litigation.
Competition is intense throughout the world in the markets for diet
programs and industrial chemicals and cleaners. Summit Technologies'
Trim-Away(TM) topical fat reducer and BioGenesis's industrial chemicals and
cleaners will be in competition with products marketed by large companies with
established products with well-known brands. Summit Technologies is unable at
this time to predict the degree of market acceptance of these products or its
ability to successfully compete with the companies already established in these
markets.
RAW MATERIALS AND SUPPLIERS.
Summit Technologies buys from BioGenesis its FirePower 911(TM) and
FlameOut(TM) products.
Moonlighting manufactures Stressex(TM) and Poder 24(TM) from commonly
available herbs and natural substances. For infomercial sales, the products
are manufactured by Moonlighting after Summit Technologies receives credit card
orders from television viewers. Summit Technologies has available to it $2
million in prepaid infomercial television time.
Moonlighting also manufactures its Trim-Away(TM) product from readily
available materials. These products are shipped in concentrated form to
Houston, Texas, for bottling by Bishop's Original Products. Summit
Technologies' arrangement with this bottler allows bottling in any amounts -
small or large - for tests in each new market.
BioGenesis manufactures and supplies its industrial chemicals and
cleaners.
DEPENDENCE ON MAJOR CUSTOMERS.
Summit Technologies' markets are insufficiently developed to determine
if it will be dependent on one or a few major customers. Its initiatives in
the Philippines with Moonlighting Philippines and in the U.S. with Newell Paper
Company of Mississippi could result in such dependencies.
PATENTS, TRADEMARKS AND LICENSES.
Summit Technologies has a nearly worldwide license from BioGenesis for
its fire suppressant products and improvements. The excepted countries are
most Arabic countries and the Scandinavian countries. Should either of these
areas, now under exclusive license to other companies, become available due to
the existing licensees' failure to meet periodic sales
23
<PAGE> 42
quotas, Summit Technologies will acquire licenses in these areas, provided
Summit Technologies is meeting its own sales quotas.
Summit Technologies' fire suppressant license from BioGenesis is for a
four-year initial term, renewable annually for twenty years. The licensing fee
is $500,000, payable $200,000 by June 1998 and $100,000 on June 1 of each of
the next three years. Annual sales quotas are still being negotiated and are
to be set by June 1998.
Summit Technologies has an exclusive, perpetual license from an
affiliated company, Moonlighting Distribution Corporation, for its
Stressex(TM), Poder 24(TM) and Trim-Away(TM) products.
Summit Technologies has no written license from BioGenesis for its
industrial chemical and cleaner products.
GOVERNMENT APPROVAL OF PRINCIPAL PRODUCTS.
BioGenesis obtained EPA approval in 1995 and Underwriter Laboratories
certification in 1997 for FlameOut(TM) (Listing No. 7P21). Moonlighting
Philippines has obtained the approval of these products from the Philippine
National Bureau of Fire Protection.
No governmental approval is required in the U.S. or Mexico for
Stressex(TM) or Poder 24(TM). These products are made from natural herbs or
substances. They are not subject to Federal Drug Administration approval in
the U.S. and may be sold over-the-counter.
Similarly, the Trim-Away(TM) product is made from substances not
subject to FDA approval.
BioGenesis has obtained the necessary U.S. Government approvals for
its industrial chemical and cleaning products.
GOVERNMENT REGULATIONS.
As a distribution company, Summit Technologies is subject to no
regulation as such, but the products it distributes may be subject to
government regulation.
The fire suppressant products Summit Technologies distributes are
subject to government regulation in most countries of the world. The existence
of this regulation is of benefit to Summit Technologies, because the BioGenesis
fire suppressants are the favored substitute for Halon 1211, the fire
suppressant of choice in most of the world before most countries agreed at the
1992 Geneva Peace Conference to phase out its use.
Summit Technologies knows of no probable governmental regulations that
would affect the sale or use of its Stressex(TM), Poder 24(TM) and
Trim-Away(TM) products.
PROPERTIES.
Summit Technologies owns no plants or real property.
24
<PAGE> 43
OFFICE FACILITIES.
Summit Technologies leases 850 square feet of space in Longview,
Texas, which space will be expanded to 1,815 square feet on May 1, 1998.
SEASONALITY.
There is no known seasonal aspect to Summit Technologies' business.
RESEARCH AND DEVELOPMENT.
Summit Technologies conducts no research and development.
ENVIRONMENTAL CONTROLS.
Summit Technologies is subject to no environmental controls or
restrictions that require the outlay of capital or the obtaining of a permit in
order to engage in business operations.
YEAR 2000 COMPUTER PROBLEM.
Summit Technologies has determined that it does not face material
costs, problems or uncertainties about the year 2000 computer problem. This
problem affects many companies and organizations and stems from the fact that
many existing computer programs use only two digits to identify a year in the
date field and do not consider the impact of the year 2000. Summit
Technologies is newly organized, presently uses off-the-shelf and easily
replaceable software programs, and has yet to devise its own software programs.
NUMBER OF EMPLOYEES.
On March 28, 1998, Summit Technologies employed two persons full time
and no persons part time.
LEGAL PROCEEDINGS.
Neither Summit Technologies nor any of its property is a party to, or
the subject of, any material pending legal proceedings other than ordinary,
routine litigation incidental to its business.
MARKET FOR SUMMIT TECHNOLOGIES' CAPITAL STOCK AND RELATED STOCKHOLDER MATTERS.
There is no public trading market for Summit Technologies' capital
stock. There are twenty-two holders of record of Summit Technologies' issued
and outstanding capital stock. Should the Merger not be approved and effected,
no public trading market is expected to develop. Summit Technologies has
declared no dividends on its common stock. There are no restrictions that
would or are likely to limit the ability of Summit Technologies to pay
dividends on its common stock, but Summit Technologies has no plans to pay
dividends in the foreseeable future and intends to use earnings for the
expansion of its present business.
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<PAGE> 44
There are no shares of Common Stock subject to outstanding options or
warrants to purchase, or securities convertible into, Common Stock of Summit
Technologies.
Should the proposed Merger be approved, all of the 5,000,000 shares of
Common Stock of the Company that would be distributed to the shareholders of
Summit Technologies could be sold, either without any restrictions or pursuant
to Rule 144 and Rule 145 under the Securities Act. See "Information About the
Company - Rule 144 and Rule 145 Restrictions on Trading."
FINANCIAL STATEMENTS.
See "Financial Statements - Summit Technologies" for the financial
statements of Summit Technologies containing a balance sheet at December 31,
1997, and statements of income, cash flows, and changes in shareholders' equity
for the period August 14, 1997 to December 31, 1997, which have been prepared
in accordance with generally accepted accounting principles.
MANAGEMENT INFORMATION
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table shows information as of March 31, 1998 with respect to each
beneficial owner of more than 5% of each class of voting stock of the Company
and Summit Technologies, and to each of the officers and directors of the
Company and of Summit Technologies individually and as a group, and as of the
same date with respect to the same persons as adjusted to give effect to the
Spinoff and to the proposed Merger between the Company and Summit Technologies
(5,750,000 shares):
26
<PAGE> 45
<TABLE>
<CAPTION>
COMMON STOCK BENEFICIALLY OWNED
--------------------------------------------------
BEFORE COMPANY COMMON
SPINOFF-MERGER AFTER MERGER
---------------------- ----------------------
NO. OF % OF NO. OF % OF
THE COMPANY SHARES CLASS SHARES CLASS
----------- ------ ----- ------ -----
<S> <C> <C> <C> <C>
SuperCorp Inc.
100 North Broadway, Suite 3300
Oklahoma City, OK 73102 500,000 67 0 0(1)
Albert L. Welsh
3828 Northwest 69th
Oklahoma City, OK 73116 500,000(2) 67 26,786 0.5
John Adams
1205 Tedford
Oklahoma City, OK 73116 500,000(2) 67 26,786(3) 0.5
Thomas J. Kenan
8511 Glenwood Avenue
Oklahoma City, OK 73114 500,000(2) 67 55,119(4) 1.0
T.E. King
49 Strawberry Lane, Suite 200
Palos Verdes Peninsula, CA 90274 500,000(2) 67 26,786 0.5
Ronald D. Wallace
One Buckhead Plaza, 19th Floor
3060 Peachtree Street, NW
Atlanta, GA 30305 500,000(2) 67 26,786 0.5
George W. Cole
3535 Northwest 58th, Suite 770
Oklahoma City, OK 73112 125,000(5) 17 151,786(6) 2.7
David Dischiavo
7312 Authon Drive
Dallas, TX 75248 125,000 17 125,000 2.2
Officers and Directors as a Group (1 person
before Merger, 0 persons after Merger) 500,000 67 0 0
</TABLE>
- -------------------------
(1) After allocating one share of Common Stock of the Company for each
fourteen shares of common stock of SuperCorp, SuperCorp will have 232
shares available for rounding fractional shares.
(2) These shares are attributed to this person through his position as a
director of SuperCorp, which owns 500,000 shares of Common Stock of
the Company, and accordingly represents voting and investment power
shared with the other directors of SuperCorp.
(3) These shares are attributed to Mr. Adams by reason of his being a
controlling person of Meridyne, Inc., which will receive 13,393
Spinoff Shares, and by reason of his being the spouse of Nita Kay
27
<PAGE> 46
Adams, who will receive 13,393 Spinoff Shares. Mr. Adams disclaims
any beneficial ownership of the 13,393 Spinoff Shares to be owned by
his spouse.
(4) These shares would be owned by the Marilyn C. Kenan Trust, which trust
is under the control of Marilyn C. Kenan, its sole trustee and sole
beneficiary for her life. Mrs. Kenan is the spouse of Thomas J.
Kenan, an officer and director of SuperCorp. Mr. Kenan disclaims any
beneficial interest in shares of capital stock of the Company owned by
this trust, which is a testamentary trust established in the 1980s by
the estates of her deceased parents. The Marilyn C. Kenan Trust owns
375,000 shares of common stock of SuperCorp and 28,333 shares of
common stock of Summit Technologies and would receive 26,786 shares of
Common Stock of the Company in the Spinoff and 28,333 shares of Common
Stock of the Company in the Merger. Mr. Kenan provides legal services
to the Company and to SuperCorp.
(5) These shares are owned or will be owned of record by Marjorie Cole,
Mr. Cole's spouse. Mr. Cole disclaims any beneficial ownership in
shares of capital stock of the Company owned by his spouse. 125,000
of these shares were received for Mr. Cole's services as a "promoter"
of the Company. See "Transactions with Insiders."
(6) 26,786 of these shares would be received in the Spinoff, and 125,000
shares are owned now. See footnote (5).
28
<PAGE> 47
<TABLE>
<CAPTION>
COMMON STOCK BENEFICIALLY OWNED
-----------------------------------------------------
BEFORE COMPANY COMMON
SPINOFF-MERGER AFTER MERGER
----------------------- ------------------------
NO. OF % OF NO. OF % OF
SUMMIT TECHNOLOGIES SHARES CLASS SHARES CLASS
------------------- ------ ----- ------ -----
<S> <C> <C> <C> <C>
B. Keith Parker 2,331,125(1) 46.6 2,331,125(1) 40.5
414 East Loop 281, Suite 14
Longview, TX 75605
Don Hendon 107,100 2.1 107,100 1.9
414 East Loop 281, Suite 14
Longview, TX 75605
Paula Parker 350,000(2) 7.0 350,000(2) 6.1
414 East Loop 281, Suite 14
Longview, TX 75605
Dean Haws 249,200 5.0 249,200 4.3
P. O. Box 1071
Gilmer, TX 75644
Ty Bishop 206,800 4.1 206,800 4.0
Suite 194
660 Preston Forest Center
Dallas, TX 75230
Moonlighting Distribution 350,000 7.0 350,000 6.1
Corporation(3)
414 East Loop 281, Suite 14
Longview, TX 75605
Embassy Marketing Corporation(4) 250,000 5.0 250,000 4.3
13237 Montfort, Suite 424
Dallas, TX 75240
Officers and Directors 2,894,225 57.9 2,894,225 50.3
as a group (5 persons)
</TABLE>
- -------------------------
(1) Mr. Parker directly owns 1,981,125 shares of common stock of Summit
Technologies. He beneficially owns an additional 350,000 shares
through his controlling stock ownership and position as a director of
Moonlighting Distribution Corporation, which directly owns such
350,000 shares. These same 350,000 shares are attributed to Paula
Parker. See footnote (2).
(2) Mrs. Parker, who is the spouse of B. Keith Parker, is attributed these
350,000 shares through her controlling stock ownership and position as
a director of Moonlighting Distribution Corporation, the record owner
of the shares. These same 350,000 shares are attributed to Mr.
Parker.
(3) Some 52.5 percent of the stock of Moonlighting Distribution
Corporation is owned by B. Keith Parker and Paula Parker, husband and
29
<PAGE> 48
wife, who also are directors of such company. These 350,000 shares
are also attributed to Mr. and Mrs. Parker by reason of their
controlling stock ownership of such company and their positions as
directors of it.
(4) This company is under the control of Michael Stewart of the same
Dallas, Texas address, according to the best information available to
the Company.
DIRECTORS, EXECUTIVE OFFICERS AND SIGNIFICANT EMPLOYEES.
Set forth below are the names, and terms of office of each of the directors,
executive officers and significant employees of both the Company and Summit
Technologies and a description of the business experience of each.
SUMMIT TECHNOLOGIES:
<TABLE>
<CAPTION>
OFFICE HELD TERM OF
PERSON OFFICE SINCE OFFICE
------ ------ ------ ------
<S> <C> <C> <C>
B. Keith Parker, 49 Chief Executive Officer and 1997 4-99
Director
Don Hendon, 55 President, Treasurer and Director 1997 4-99
Paula Parker, 44 Secretary and Director 1997 4-99
Dean Haws, 28 Director 1997 4-99
Ty Bishop, 27 Director 1997 4-99
</TABLE>
THE COMPANY.
<TABLE>
<CAPTION>
OFFICE HELD TERM OF
PERSON OFFICE SINCE OFFICE
------ ------ ------ ------
<S> <C> <C> <C>
Albert L. Welsh, 66 President, Secretary and Director 1998 2-99
</TABLE>
DIRECTORS OF SUMMIT TECHNOLOGIES.
B. KEITH PARKER. Mr. Parker graduated from Texas A & M University and
pursued graduate studies in tax law, estate planning and philosophy at Southern
Methodist University and Southwest Texas State University. He began a career
in financial and tax planning in 1973, is a licensed financial planner and has
earned numerous industry awards for production. In 1995 he and Paula Parker,
his spouse, organized Moonlighting Distribution Corporation and began the
distribution of more than 30 products, many of which products they developed
themselves. In July 1997 they organized Summit Technologies, Inc.
DON HENDON. Mr. Hendon received a B.B.A. degree in 1965 from Sam
Houston State University and began a career in accounting. From July 1966
until September 1973 he was a field agent for the Internal Revenue Service.
From 1973 until 1978 he was a partner in the Longview, Texas accounting
30
<PAGE> 49
firm of Langston, Delouche, Hayes & Hendon. From 1978 until the present he has
been a partner in the Longview accounting firm of Hendon and Russell.
PAULA PARKER. Mrs. Parker received a bachelor of arts degree in 1975
and a master's degree in education, marketing and finance in 1977 from Stephen
F. Austin University and a master's of finance degree in 1980 from the
University of Colorado. While a runway model for seventeen years, she worked
also on numerous contract jobs, primarily in banking in the promotion of
automatic teller machines, and as an instructor for the American Banking
Association. She developed a franchise program for a restaurant and increased
the restaurant business from three units to 46 units in five states in two
years. She served as the liaison between then Arkansas Governor William J.
Clinton and the catfish industry in Arkansas. In 1995 she and Keith Parker,
her spouse, organized Moonlighting Distribution Corporation and began the
distribution of more than 30 products, many of which products they developed
themselves. In July 1997 they organized Summit Technologies, Inc.
DEAN HAWS. Mr. Haws has been the owner and operator of a satellite
dish sales and installation company, Gilmer Satellites of Gilmer, Texas, for
the last nine years. He has also been active in the oil field service business
and the ostrich business.
TY BISHOP. Mr. Bishop graduated from Texas Tech University in 1993
and majored in marketing and public relations. After graduation he organized
Ty Bishop Management, which managed an alternative musical band. In 1995 he
became a partner in Bishop Cellular Plus, an authorized agent for Southwestern
Bell Mobile Systems. In 1996 he organized and owned Global Cartridge Sales, a
reseller for new jumbo toner cartridges for laser printers and for re-
manufactured toner cartridges. In 1997 he became a partner in WorldWide Link,
an international trade company that represents inventors, manufacturers and
exclusive distributors of products and services that save lives and help the
world's environment.
THE COMPANY.
ALBERT L. WELSH. Mr. Welsh received a bachelor of arts degree in 1953
from the University of Oklahoma and a master of business administration degree
in 1958 from Stanford University. From 1958 until 1963 he was a financial
analyst for Ford Motor Company in Dearborn, Michigan. From 1967 until 1970 he
was a partner and principal of Parker Bishop & Welsh, an NASD-member
broker-dealer and underwriter. From 1970 to 1974 he was a private investor.
From 1974 through 1985 he was a real estate developer. From 1986 to 1989 he
was a registered investment adviser. From 1989 to 1991 he was an investor in
SuperCorp Inc. From 1991 until the present he has been the Oklahoma City,
Oklahoma branch manager of Birchtree Financial Services, Inc., a Kansas City,
Missouri-based broker-dealer firm with approximately 75 offices. In 1997 he
also began to serve as president of SuperCorp Inc.
31
<PAGE> 50
REMUNERATION OF DIRECTORS AND OFFICERS.
THE COMPANY.
Mr. Welsh, the sole officer and director of the Company, has received
and is receiving no compensation for his services for the Company. No
compensation is proposed to be paid to any officer or director of the Company
prior to the proposed Merger with Summit Technologies.
SUMMIT TECHNOLOGIES.
The directors of Summit Technologies receive no compensation for their
services. The officers of Summit Technologies received from it an aggregate of
$9,000 of compensation in the last fiscal year for their services in all
capacities. Should the Merger be effected, they shall become the officers of
the post- merger Company.
Mr. Parker, the chief executive officer of Summit Technologies,
receives a salary of $5,000 a month. Mr. Hendon, the president, receives a
salary of $3,000 a month.
EMPLOYMENT CONTRACTS.
Summit Technologies has no employment contracts with any of its
officers or other employees.
STOCK OPTIONS.
The Company has adopted a stock option plan ("the Plan") which shall
survive the Merger, the major provisions of which Plan are as follows:
The directors of the Company have adopted a "1998 Stock Option Plan"
pursuant to which options granted under the plan may be incentive stock options
as defined under Section 422 of the Internal Revenue Code or non-qualified
stock options, as determined by the Option Committee of the board of directors
at the time of grant of an option and subject to the applicable provisions of
Section 422 of the Internal Revenue Code and regulations promulgated
thereunder. The Plan enables the Option Committee of the board of directors to
grant up to 500,000 stock options to employees and consultants from time to
time. As of the date of this Offering Circular, the Option Committee has
granted no options.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
COMPANY'S TRANSACTIONS WITH INSIDERS AND PROMOTERS.
The following persons may be deemed to be a "promoter" or an "insider"
of the Company: Dave Dischiavo and George W. Cole. Each of such persons or
his spouse has purchased, at $0.001 a share, 125,000 shares of Common Stock of
the Company. George W. Cole's spouse shall receive 26,786 of the Spinoff
Shares, such Spinoff Shares to be received pro rata with all other shareholders
of SuperCorp. See "Transactions with Insiders" and "Management Information -
Security Ownership of Certain Beneficial Owners and Management." Each of Mr.
Dischiavo and Mr. Cole are to receive $18,500 from Summit Technologies by May
1, 1998, for finder's fees and consulting services rendered in connection with
the Spinoff and Merger.
32
<PAGE> 51
SUMMIT TECHNOLOGIES' TRANSACTIONS WITH MANAGEMENT.
Summit Technologies has obtained the exclusive license to distribute
products manufactured by Moonlighting Distribution Corporation - Stressex(TM),
Poder 24(TM) and Trim-Away(TM). B. Keith Parker and his spouse, Paula Parker,
who are officers and directors of Summit Technologies, own 52.5 percent of the
capital stock of Moonlighting. Summit Technologies will pay prices for these
products earlier established in arms' length transactions with non-affiliated
third parties.
Summit Technologies' distribution rights to BioGenesis's fire
suppression products were acquired not from BioGenesis but, rather, from
Moonlighting Distribution Corporation, which had acquired these rights before
Summit Technologies was formed. In exchange for the transfer of these rights
to Summit Technologies, it issued 350,000 shares of its common stock to
Moonlighting Distribution Corporation and will pay to Moonlighting a royalty of
$0.50 for each 16-ounce can of FirePower 911(TM) and $0.50 for each gallon of
FlameOut(TM).
PARENTS OF SUMMIT TECHNOLOGIES.
Summit Technologies and Moonlighting Distribution Corporation
("Moonlighting") are affiliated through the common control of them by B. Keith
Parker and Paula Parker, husband and wife, who are directors of each
corporation, own 52.5% of the capital stock of Moonlighting (which itself owns
seven percent of the capital stock of Summit Technologies) and own of record
37.5 percent of the capital stock of Summit Technologies.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Thomas J. Kenan, Esquire, counsel to the Company and a director of
SuperCorp, is named in this Prospectus as having given an opinion on legal
matters concerning the registration or offering of the securities described
herein. Mr. Kenan's spouse, Marilyn C. Kenan, is the trustee and sole
beneficiary of the Marilyn C. Kenan Trust, a testamentary trust which is the
beneficial owner (i) of 28,333 shares of Common Stock of Summit Technologies
and (ii) of 375,000 of the issued and outstanding shares of Common Stock of
SuperCorp and, by reason of these ownerships, shall become the beneficial owner
of 26,786 Shares of the Company by way of the Spinoff and 28,333 shares of
Common Stock of the Company by way of the Merger, should it be approved. Mr.
Kenan disclaims any beneficial ownership in the securities beneficially owned
by his spouse's trust.
INDEMNIFICATION
Under Texas corporation law, a corporation is authorized to indemnify
officers, directors, employees and agents who are made or threatened to be made
parties to any civil, criminal, administrative or investigative suit or
proceeding by reason of the fact that they are or were a director, officer,
employee or agent of the corporation or are or were acting in the same capacity
for another entity at the request of the corporation. Such indemnification
includes expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such persons if they
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the corporation
33
<PAGE> 52
or, with respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful. In the case of any
action or suit by or in the right of the corporation against such persons, the
corporation is authorized to provide similar indemnification, provided that,
should any such persons be adjudged to be liable for negligence or misconduct
in the performance of duties to the corporation, the court conducting the
proceeding must determine that such persons are nevertheless fairly and
reasonably entitled to indemnification. To the extent any such persons are
successful on the merits in defense of any such action, suit or proceeding,
Texas law provides that they shall be indemnified against reasonable expenses,
including attorney fees. A corporation is authorized to advance anticipated
expenses for such suits or proceedings upon an undertaking by the person to
whom such advance is made to repay such advances if it is ultimately determined
that such person is not entitled to be indemnified by the corporation.
Indemnification and payment of expenses provided by Texas law are not deemed
exclusive of any other rights by which an officer, director, employee or agent
may seek indemnification or payment of expenses or may be entitled to under any
by-law, agreement, or vote of shareholders or disinterested directors. In such
regard, an Texas corporation is empowered to, and may, purchase and maintain
liability insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation. As a result of such corporation law,
Summit Technologies or, should the proposed merger become effective, the
Company may, at some future time, be legally obligated to pay judgments
(including amounts paid in settlement) and expenses in regard to civil or
criminal suits or proceedings brought against one or more of its officers,
directors, employees or agents, as such, with respect to matters involving the
proposed Merger or, should the Merger be effected, matters that occurred prior
to the Merger with respect to Summit Technologies.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
34
<PAGE> 53
FINANCIAL STATEMENTS INDEX
The financial statements of the Company and of Summit Technologies
appear as follows:
<TABLE>
<S> <C>
SUMMIT ENVIRONMENTAL CORPORATION, INC.
Independent Auditors' Report . . . . . . . . . . . . . . . . . . F-1
Balance Sheet March 17, 1998 . . . . . . . . . . . . . . . . . . F-2
Notes to Balance Sheet March 17, 1998 . . . . . . . . . . . . . F-3
SUMMIT TECHNOLOGIES, INC.
Independent Auditors Report . . . . . . . . . . . . . . . . . . F-5
Statement of Financial Condition December 31, 1997 . . . . . . F-6
Statement of Income December 31, 1997 . . . . . . . . . . . . . F-7
Statement of Changes in Stockholders' Equity for the
Period August 14, 1997 to December 31, 1997 . . . . . . F-8
Statement of Cash Flows for the Period August 14, 1997
to December 31, 1997 . . . . . . . . . . . . . . . . . F-9
Notes to Financial Statements . . . . . . . . . . . . . . . . . F-10
</TABLE>
35
<PAGE> 54
INDEPENDENT AUDITORS' REPORT
To the Director and Stockholders
Summit Environmental Corporation, Inc.
We have audited the balance sheet of Summit Environmental Corporation,
Inc. (a Texas corporation), a majority- owned subsidiary of Supercorp, Inc. and
a development stage company, as of March 17, 1998. This balance sheet is the
responsibility of the Company's management. Our responsibility is to express
an opinion on this balance sheet based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statement is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosure in the balance sheet. An audit also
includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall balance sheet
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the balance sheet referred to above presents fairly,
in all material respects, the financial position of Summit Environmental
Corporation, Inc. as of March 17, 1998, in conformity with generally accepted
accounting principles.
/S/ HOGAN & SLOVACEK
Oklahoma City, Oklahoma
March 17, 1998
F-1
<PAGE> 55
SUMMIT ENVIRONMENTAL CORPORATION, INC.
(A Development Stage Company)
BALANCE SHEET
MARCH 17, 1998
<TABLE>
<S> <C>
ASSETS
Cash - on deposit in trust account $ 750
=====
STOCKHOLDER'S EQUITY
Preferred Stock - Authorized 10,000,000 shares,
$0.001 par value - none issued
Common Stock - 40,000,000 shares authorized,
$0.001 par value, 750,000 shares issued 750
-----
$ 750
=====
</TABLE>
The accompanying notes are an integral part
of this balance sheet.
F-2
<PAGE> 56
SUMMIT ENVIRONMENTAL CORPORATION, INC.
(A Development Stage Company)
NOTES TO BALANCE SHEET
MARCH 17, 1998
(1) ORGANIZATION
Summit Environmental Corporation, Inc. (the Company) was organized in
accordance with the Business Corporation Act of the State of Texas on February
24, 1998, for the purpose of merging (the "Merger") with Summit Technologies,
Inc. (Summit Technologies), a Texas corporation. The Company has no business
operations or significant capital and has no intention of engaging in any
active business until it merges with Summit Technologies. Should the Merger
not occur, the Company would seek other business opportunities, and if none
were found, could be dissolved within 18 months by a vote of the majority of
its common stockholders. The Company is a development-stage company organized
for the merger described below.
The sole officer and director of the Company is a shareholder,
president and director of SuperCorp Inc., the Company's parent.
Stock of the Company is owned by SuperCorp Inc. and will be
distributed to its shareholders upon the effectiveness of the registration
statements to be filed with the Securities and Exchange Commission and a
favorable vote of SuperCorp Inc.'s shareholders on the proposed merger. The
distributed stock will initially be held in escrow according to an Escrow
Agreement dated March 16, 1998, among SuperCorp Inc., the Company, and Bank One
Trust Company, NA, Oklahoma City, Oklahoma.
(2) MERGER AGREEMENT
The Company agreed on March 16, 1998, to merge with Summit
Technologies. Summit Technologies is an operating company in the business of
marketing products, under license to it, through television infomercials, radio
spots, and a national industrial distribution company. The Company will be the
surviving corporation (Survivor), but Summit Technologies will elect all
directors and officers of the Survivor. All currently outstanding stock of
Summit Technologies in the hands of its parent will be cancelled and converted
into 5,000,000 shares of common stock of the Company, all authorized but
unissued, to be owned by the shareholders of Summit Technologies, when the
Merger is effective. The Merger of Summit Technologies and the Company should
qualify as a nontaxable reorganization under the tax laws of the United States.
The Merger is contingent upon the effectiveness of the registration
statements, and upon the shareholders of the Company and Summit Technologies
approving the proposed Merger. Because the Company is only a corporate shell
and not an operating entity, the proposed Merger will be accounted for as if
Summit Technologies recapitalized. Additionally, the historical financial
statements for the Company prior to the Merger will be those of Summit
Technologies. Upon completion of the proposed Merger, the shareholders of
Summit Technologies will own 5,000,000 shares of Common
F-3
<PAGE> 57
Stock of the Company or 87% of its voting shares. The fiscal year of the
Company will be December 31.
(3) COMMON STOCK OPTIONS
The sole director and stockholders approved the 1998 Stock Option Plan
of the Company whereby, at the discretion of the directors or of a Stock Option
Committee appointed by the board of directors, invited employees of the Company
or directors of the Company or consultants to the Company will have the option
of subscribing to common shares of the Company based on a price determined by
the directors or Stock Option Committee. The number of shares subject to the
Plan are 500,000. No options have been granted in accordance with this Plan.
F-4
<PAGE> 58
[GARNER & LAWRENCE, LLP LETTERHEAD]
INDEPENDENT AUDITORS' REPORT
Mr. Keith Parker
Summit Technologies, Inc.
Longview, Texas
We have audited the accompanying statement of financial condition of Summit
Technologies, Inc. as of December 31, 1997, and the related statements of
income, retained earnings, and cash flows for the period August 14, 1997 to
December 31, 1997. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Summit Technologies, Inc. as of
December 31, 1997, and the results of its operations and its cash flows for the
period August 14, 1997 to December 31, 1997, in conformity with generally
accepted accounting principles.
/s/ GARNER & LAWRENCE, LLP
-----------------------------
Garner & Lawrence, LLP
January 5, 1998
F-5
<PAGE> 59
SUMMIT TECHNOLOGIES, INC.
STATEMENT OF FINANCIAL CONDITION
DECEMBER 31, 1997
<TABLE>
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash in banks $ 5,001
Accounts receivable 72,811
Inventory 14,576
--------
Total current assets $ 92,388
PROPERTY AND EQUIPMENT --
OTHER ASSETS
Licenses (Note 2) 10,000
Less: Accumulated amortization (500)
--------
Total other assets 9,500
----------
TOTAL ASSETS $ 101,888
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 7,874
Accrued income tax (Note 5) 7,252
--------
Total current liabilities $ 15,126
LONG TERM LIABILITIES --
----------
Total liabilities 15,126
STOCKHOLDERS' EQUITY
Capital stock (no par; 100,000 common shares authorized,
issued and outstanding; stated value $.01 per share) 1,000
Additional paid in capital 45,000
Retained earnings 40,762
--------
Total stockholders' equity 86,762
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 101,888
==========
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE> 60
SUMMIT TECHNOLOGIES, INC.
STATEMENT OF INCOME
FOR THE PERIOD AUGUST 14, 1997 TO DECEMBER 31, 1997
<TABLE>
<S> <C> <C>
SALES $74,349
COST OF SALES 9,465
-------
Gross profit $64,884
OPERATING EXPENSES
Advertising 600
Amortization 500
Automobile expense 600
Office expenses 1,730
Officer compensation 9,000
Marketing 900
Miscellaneous 995
Postage and delivery 1,361
Printing and reproduction 884
Professional fees 300
-------
Total operating expenses 16,870
-------
Net income from operations 48,014
Income tax expense (Note 5) 7,252
-------
NET INCOME $40,762
=======
</TABLE>
See accompanying notes to financial statements.
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<PAGE> 61
SUMMIT TECHNOLOGIES, INC.
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE PERIOD AUGUST 14, 1997 TO DECEMBER 31, 1997
<TABLE>
<CAPTION>
CAPITAL RETAINED
STOCK EARNINGS TOTAL
------------ ------------ ------------
<S> <C> <C> <C>
BALANCES - AUGUST 14, 1997 $ -- $ -- $ --
Stock issued (100,000 shares) 46,000 -- 46,000
Net income for the period -- 40,762 40,762
------------ ------------ ------------
BALANCES - DECEMBER 31, 1997 $ 46,000 $ 40,762 $ 86,762
============ ============ ============
</TABLE>
See accompanying notes to financial statements.
F-8
<PAGE> 62
SUMMIT TECHNOLOGIES, INC.
STATEMENT OF CASH FLOWS
FOR THE PERIOD AUGUST 14, 1997 TO DECEMBER 31, 1997
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 40,812
Adjustments to reconcile net income to cash used in
operating activities:
Amortization 500
Increase in accounts receivable (72,811)
Increase in inventory (14,576)
Increase in accounts payable 7,874
Increase in accrued income taxes 7,202
--------
Net cash used in operating activities (30,999)
CASH FLOWS FROM INVESTING ACTIVITIES
Acquisition of license (10,000)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds of stock issue 46,000
--------
Net increase in cash and cash equivalents 5,001
Cash and cash equivalents - August 14, 1997 --
========
CASH AND CASH EQUIVALENTS - DECEMBER 31, 1997 $ 5,001
========
Supplemental disclosure of cash flow information:
Cash paid during the year for :
Interest --
Income tax --
</TABLE>
See accompanying notes to financial statements.
F-9
<PAGE> 63
SUMMIT TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997
NOTE A - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business Activity - Summit Technologies, Inc. ("the Company") is a Texas
corporation formed on August 14, 1997, which is engaged in the business of
marketing technologically advanced products, including fire prevention and
extinguishment materials, various herbal health products, and others. The
products are proprietary or are under licensing contracts. Marketing efforts
include "infomercials" and other television promotion, videotapes, and personal
demonstrations. Products are marketed domestically and internationally.
Inventory - Inventory is reported at the lower of cost or market using the
first-in, first-out method.
Intangible Assets - Licenses are recorded at cost. Amortization is computed on
the straight-line method over sixty months.
Income Taxes - For federal income tax purposes, the Company uses the accrual
method of accounting. The tax year end is December 31. The only difference
between tax and financial reporting involves the length of the amortization
period for intangible assets. If the difference becomes material, deferred taxes
will be reported.
Cash and Cash Equivalents - For purposes of the statement of cash flows, cash
and cash equivalents include cash on hand and in banks and any short-term debt
securities purchased with a maturity of three months or less.
Advertising - Advertising costs are expensed as incurred.
Use of Estimates - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect certain reported amounts and disclosures.
Accordingly, actual results could differ from those estimates.
NOTE 2 - LICENSES
A license for limited exclusive marketing rights to various fire prevention and
extinguishment products has been acquired for a fee of $10,000. An annual
production quota, which is still being negotiated as of December 31, 1997, must
also be complied with to maintain the license.
NOTE 3 - RELATED PARTY TRANSACTIONS
The following transactions occurred between the Company and related parties
during the period :
- - Sales totaling $65,610 were made to Flameout International, with special
90-day payment terms not available to other customers. The Company and
Flameout International have common members of management.
- - Sales totaling $2,336 were made to various Company shareholders or their
related businesses.
- - Purchases of inventory items totaling $13,645 were made from the related
parties mentioned above.
- - The Company and another business with common shareholders share office
space and the related expenses.
At year end, receivables from related parties totaled $67,947, and payables to
related parties totaled $1,742.
NOTE 4 - CONCENTRATIONS
Approximately 88% of sales during the period were made to Flameout
International. As of the year end, approximately 90% of accounts receivable were
due from Flameout International.
F-10
<PAGE> 64
SUMMIT TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997
NOTE 5 - FEDERAL INCOME TAX
Significant components involved in the calculation of income tax for the period
August 14, 1997 through December 31, 1997 are shown below:
<TABLE>
<S> <C>
Net financial income before income tax $ 48,014
Adjustments to arrive at regular taxable income:
Amortization adjustment 333
---------
Regular taxable income $ 48,347
=========
Regular tax at statutory rates $ 7,252
Alternative minimum tax --
---------
Net current income tax expense 7,252
Less tax deposits --
---------
Net tax liability $ 7,252
=========
</TABLE>
F-11
<PAGE> 65
APPENDIX A
AGREEMENT OF MERGER
This Agreement of Merger ("the Agreement") is made and entered into as
of March 16, 1998, by and among Summit Environmental Corporation, Inc., a Texas
corporation ("the Company"); Summit Technologies, Inc., a Texas corporation
("Summit Technologies"); and SuperCorp Inc., an Oklahoma corporation
("SuperCorp").
WHEREAS, the Directors of the Company and the Directors of Summit
Technologies have each agreed to submit to their respective shareholders, for
such shareholders' approval or rejection, the merger of Summit Technologies
into the Company ("the Merger") in accordance with the provisions of the Texas
General Corporation Act, other applicable law and the provisions of this
Agreement; and
WHEREAS, SuperCorp is the controlling shareholder of the Company;
NOW, THEREFORE, in consideration of the promises, undertakings and
mutual covenants set forth herein, the Company, Summit Technologies, and
SuperCorp agree as follows:
1. Merger; Effective Date. Pursuant to the terms and provisions
of this Agreement and of the Texas Business Corporation Act, and subject to the
prior approval by the shareholders of each of the Company and Summit
Technologies, Summit Technologies shall be merged with and into the Company, as
confirmed by the filing of articles of merger with the Secretary of State of
the State of Texas ("the Effective Date"). The Company shall be the surviving
corporation ("the Surviving Corporation"). The Company and Summit Technologies
shall be referred to hereinafter collectively as the "Constituent
Corporations." On the Effective Date, the separate existence and corporate
organization of Summit Technologies, except insofar as it may be continued by
statute, shall cease and the Company shall continue as the Surviving
Corporation, which shall succeed, without other transfer or further act or deed
whatsoever, to all the rights, property and assets of the Constituent
Corporations and shall be subject to and liable for all the debts and
liabilities of each, including, without limitation, (i) the obligation to make
payment for the fair value of any shares held by a shareholder of either of the
Constituent Corporations who has complied with the requirements of Article 5.12
of the Texas Business Corporation Act for the recovery of the fair value of his
shares, and (ii) the obligation to make payment for all fees and franchise
taxes as required by law; otherwise, the Company's identity, existence,
purposes, rights, immunities, properties, liabilities and obligations shall be
unaffected and unimpaired by the Merger except as expressly provided herein.
This Agreement supersedes all previous agreements among the parties hereto
relating to the Merger.
2. Articles of Incorporation and Bylaws. The Articles of
Incorporation and Bylaws of the Surviving Corporation shall be the Articles of
Incorporation and Bylaws of the Company as in effect on the Effective Date.
A-1
<PAGE> 66
3. Directors. The directors of Summit Technologies on the
Effective Date shall become the directors of the Surviving Corporation from and
after the Effective Date, who shall hold office subject to the provisions of
the Articles of Incorporation and Bylaws of the Surviving Corporation, until
their successors are duly elected and qualified.
4. Officers. The officers of Summit Technologies on the Effective
Date shall become the officers of the Surviving Corporation from and after the
Effective Date, subject to such powers with respect to the designation of
officers as the directors of the Surviving Corporation may have under its
Articles of Incorporation and Bylaws.
5. Manner of Conversion. The manner of converting the shares of
capital stock of the Constituent Corporations into shares of the Surviving
Corporation shall be as follows:
5.1. The shares of capital stock of Summit Technologies
which shall be issued and outstanding on the Effective Date shall, on the
Effective Date, be cancelled and exchanged for 5,000,000 shares of Common Stock
("the Merger Shares") of the Company.
5.2. There shall be 500,000 shares of Common Stock, $0.001
par value, of the Company issued and outstanding prior to the Effective Date
("the Spinoff Shares") and held of record by SuperCorp, which shares shall, on
the Effective Date, continue to be outstanding and which shall have been
distributed by the record holder thereof, SuperCorp, to its shareholders ("the
Spinoff").
5.3 There shall be 250,000 shares of Common Stock of the
Company issued and outstanding prior to the Effective Date and held by Dave
Dischiavo and George W. Cole or their designees or assignees ("the Consultants'
Shares"), which shares, on the Effective Date, shall continue to be issued and
outstanding.
5.4 There shall be no options or warrants to purchase
shares of Common Stock of the Company or Summit Technologies outstanding on the
Effective Date.
6. Representations and Warranties. SuperCorp and the Company
jointly represent and warrant to, and agree with, Summit Technologies that:
6.1 The Company has been duly organized and is validly
existing under the Texas Business Corporation Act. The Company has no
subsidiary and does not own an equity interest in any entity.
6.2 The authorized capital of the Company is 50,000,000
shares of capital stock, which is of two classes as follows:
<TABLE>
<CAPTION>
Number of Par value
Class Series Shares of shares
----- ------ --------- ---------
<S> <C> <C> <C>
Common None 40,000,000 $0.001
Preferred To be designated 10,000,000 $0.001
by the directors
</TABLE>
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<PAGE> 67
6.3 As of the Effective Date but immediately before giving
effect to the Merger, the Company has outstanding capital as follows: 750,000
shares of Common Stock, $0.001 par value. No other shares, options, warrants
or any rights to acquire the Company's capital stock will be issued and
outstanding as of the Effective Date but immediately before giving effect to
the Merger. The shares of Common Stock to be issued in connection with the
Merger, when issued, delivered and sold, will be duly and validly issued and
outstanding, fully paid and non-assessable, will not have been issued in
violation of or subject to any preemptive or similar rights and will be free
from any lien, charge, encumbrance or other security interest or third party
right or interest.
6.4 The Company has no liabilities or obligations, whether
absolute, contingent or otherwise.
6.5 As of the Effective Date, the financial statements of
the Company shall not vary in any particular from the Company's financial
statements that appear in the registration statement described in paragraph 7
below.
6.6 As of the Effective Date, the Merger and the Agreement
will have been duly authorized and approved by the Company's directors and
shareholders.
6.7 The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
United States Investment Company Act of 1940, as amended.
7. Conditions of Summit Technologies' obligations. The
obligations of Summit Technologies to complete the Merger as provided herein
shall be subject to the accuracy of the representations and warranties of
SuperCorp and the Company herein contained as of the Effective Date, to the
performance by the Company and SuperCorp of their obligations hereunder and to
the following additional conditions:
7.1 The Merger Shares and the Spinoff Shares of Common
Stock of the Company to be distributed pursuant to the provisions of paragraph
5.1 and 5.2 above shall, prior to the distribution thereof, be registered
pursuant to the provisions of the Securities Act of 1933, as amended, by virtue
of the filing of the appropriate registration statements with the U.S.
Securities and Exchange Commission.
7.2 SuperCorp shall have distributed the Spinoff Shares to
an escrow agent, as described in the registration statements filed with the
SEC.
7.3 The directors and the shareholders of Summit Technologies
are free to approve or disapprove the Merger in their full discretion.
8. Tax Treatment. The merger of the Company and Summit
Technologies shall be accomplished as a tax-free reorganization.
9. Certificate of Merger. Upon the approval of the merger by the
shareholders of the Company and of Summit Technologies, the officers of the
Company shall file with the Secretary of State, State of Texas either a
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<PAGE> 68
certified copy of this Agreement, Articles of Merger, or other required filing
containing terms and provisions consistent with this Agreement of Merger;
provided, however, that at any time prior to the filing of this Agreement (or a
certificate in lieu thereof) with the Secretary of State, State of Texas, the
Agreement may be terminated by the board of directors of Summit Technologies
notwithstanding approval of this Agreement by the shareholders of Summit
Technologies or of the Company.
Summit Environmental Corporation,
a Texas corporation
By: /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, President
Summit Technologies, Inc.,
a Texas corporation
By: /s/ B. Keith Parker
---------------------------------
B. Keith Parker, Chief Executive
Officer
SuperCorp Inc.
By: /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, President
A-4
<PAGE> 69
PART II
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are all expenses of this issuance and distribution.
There are no underwriting discounts or commissions. None of the expenses are
being paid by the distributing security holder, SuperCorp Inc. All expenses
are being paid by Summit Technologies, Inc., the company with which the
Registrant proposes to merge.
<TABLE>
<CAPTION>
Item Amount
---- ------
<S> <C>
Registration fees $ 100
Escrow agent's fee 500
Filing expenses (EDGAR) 4,000
Stock transfer agent's fee 4,000
Printing and engraving 10,000
Postage 5,400
Legal 20,000
Accounting and auditors 4,000
Finder's fee 18,500
Standard & Poor's Corporation Records
publication fee 5,000
--------
Total Expenses $ 71,500
</TABLE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There is set forth in the Prospectus under "Terms of the Transaction
- -Indemnification for Securities Act Liabilities" a description of the laws of
the State of Texas with respect to the indemnification of officers, directors,
and agents of corporations incorporated in the State of Texas.
Both the Company and Summit Technologies, Inc. have articles of
incorporation and bylaws provisions that insure or indemnify, to the full
extent allowed by the laws of the State of Texas, directors, officers,
employees, agents or persons serving in similar capacities in other enterprises
at the request either of the Company or Summit Technologies, Inc., as the case
may be.
To the extent of the indemnification rights provided by the State of
Texas statutes and provided by the Company's and Summit Technologies, Inc.'s
articles of incorporation and bylaws, and to the extent of Summit Technologies,
Inc.'s and the Company's abilities to meet such indemnification obligations,
the officers, directors and agents of Summit Technologies, Inc. or the Company
would be beneficially affected.
RECENT SALES OF UNREGISTERED SECURITIES.
On March 12, 1998, the Registrant issued 500,000 shares of its Common
Stock to its corporate parent, SuperCorp, Inc., a Texas corporation, for a cash
consideration of $500, or $0.001 a share, and on March 12, 1998, issued 125,000
shares of its Common Stock to Dave Dischiavo and 125,000 shares of its Common
Stock to Marjorie Cole, the spouse of George W. Cole for a cash consideration
in each instance of $125, or $0.001 a share.
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<PAGE> 70
SERVICES RENDERED BY INSIDERS.
Mr. Dischiavo and Mr. Cole may be deemed to be "insiders" or
"promoters" in connection with the purchase by each of 125,000 shares of Common
Stock of the Registrant for $125, or $0.001 a share. Each also performed
services for the Registrant and SuperCorp Inc.
Mr. Dischiavo's and Mr. Cole's services consisted of introducing
Summit Technologies to SuperCorp in early 1998 and in advising Summit
Technologies of the advantages to it of entering into the Agreement of Merger
with the Company (see "Appendix A - Agreement of Merger").
There was no underwriter, and none of the above-described securities
were offered to any persons other than the present holders of these securities.
The securities were not registered under the Securities Act of 1933 in
reliance upon the exemption from registration provided by Section 4(2) of the
Securities Act and by Regulation D, Rule 506.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Separately bound but filed as part of this Registration Statement are
the following exhibits:
<TABLE>
<CAPTION>
Exhibit Item
------- ----
<S> <C> <C>
2 - Agreement of Merger of March 16, 1998, between Summit Environmental Corporation, Inc.
and Summit Technologies, Inc.
3.1 - Articles of Incorporation of Summit Environmental Corporation, Inc.
3.2 - Bylaws of Summit Environmental Corporation, Inc.
3.3 - Amended Articles of Incorporation of Summit Technologies, Inc.
3.4 - Bylaws of Summit Technologies, Inc.
5 - Opinion of Thomas J. Kenan, Esq., as to the legality of the securities covered by the
Registration Statement.
8 - Opinion of Thomas J. Kenan, Esq., as to tax matters and tax consequences.
10 - Escrow Agreement among Summit Environmental Corporation, Inc.; SuperCorp Inc.; and
Bank One Trust Company, NA, Oklahoma City, Oklahoma.
10.1 - 1998 Stock Option Plan adopted by Summit Environmental Corporation, Inc.
</TABLE>
II-2
<PAGE> 71
<TABLE>
<S> <C> <C>
10.2 - Representative agreement among certain shareholders of SuperCorp relating to
compliance with SEC Rule 419.
10.3 - Limited Exclusive Marketing Bilateral Agreement between Moonlighting Distribution
Corporation-USA and Summit Technologies, Inc. (Poder Sexual, Ultimate Stressex and/or
Poder 24)
10.4 - Limited Exclusive Marketing Bilateral Agreement among B. Keith Parker, individually
and as Chairman of the Board and CEO of Moonlighting Distribution Corporation-USA,
d/b/a Moonlighting International, and Summit Technologies, Inc. (FireKare, FirePower
911, Super Cold Fire, and Flame Out)
23 - Consent of Thomas J. Kenan, Esq. to the reference to him as an attorney who has passed
upon certain information contained in the Registration Statement.
23.1 - Consent of Garner & Lawrence, LLP, independent auditors of Summit Technologies, Inc.
23.2 - Consent of Hogan & Slovacek, independent auditors of Summit Environmental Corporation,
Inc.
23.3 - Consent of B. Keith Parker to serve as a director of Summit Environmental Corporation,
Inc. should the proposed Merger with Summit Technologies, Inc. become effective.
23.4 - Consent of Don Hendon to serve as a director of Summit Environmental Corporation, Inc.
should the proposed Merger with Summit Technologies, Inc. become effective.
23.5 - Consent of Paula Parker to serve as a director of Summit Environmental Corporation,
Inc. should the proposed Merger with Summit Technologies, Inc. become effective.
23.6 - Consent of Dean Haws to serve as a director of Summit Environmental Corporation, Inc.
should the proposed Merger with Summit Technologies, Inc. become effective.
23.7 - Consent of Ty Bishop to serve as a director of Summit Environmental Corporation, Inc.
should the proposed Merger with Summit Technologies, Inc. become effective.
27 - Financial Data Schedule.
</TABLE>
II-3
<PAGE> 72
UNDERTAKINGS.
Summit Environmental Corporation, Inc. will:
1. File, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(a) include any prospectus required by Section
10(a)(3) of the Securities Act;
(b) reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
Registration Statement; and
(c) include any additional or changed material
information on the plan of distribution.
2. For determining liability under the Securities Act,
treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
3. File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
4. File a post-effective amendment to the registration
statement to include any financial statements required by Regulation 210.3-19
under the Securities Act of 1933 at the start of a delayed offering or
throughout a continuous offering.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 ("the Act") may be permitted to directors, officers and
controlling persons of Summit Environmental Corporation, Inc. pursuant to the
foregoing provisions, or otherwise, Summit Environmental Corporation, Inc. has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Summit Environmental
Corporation, Inc. of expenses incurred or paid by a director, officer or
controlling person of Summit Environmental Corporation, Inc. in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, Summit Environmental Corporation, Inc. will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to
a court of jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
Summit Environmental Corporation, Inc. hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject to
and included in the Registration Statement when it became effective.
II-4
<PAGE> 73
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Oklahoma City,
Oklahoma.
Date: March 24, 1998 Summit Environmental Corporation, Inc.
By /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, president
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: March 24, 1998 /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, president, sole
director, principal financial officer,
and authorized representative of the
Registrant
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<PAGE> 74
SUMMIT ENVIRONMENTAL CORPORATION, INC.
COMBINED EXHIBIT INDEX (SB-2 AND S-4)
<TABLE>
<CAPTION>
Exhibit Item
------- ----
<S> <C> <C>
2 - Agreement of Merger of March 16, 1998, between Summit
Environmental Corporation, Inc. and Summit
Technologies, Inc.
3.1 - Articles of Incorporation of Summit Environmental
Corporation, Inc.
3.2 - Bylaws of Summit Environmental Corporation, Inc.
3.3 - Amended Articles of Incorporation of Summit
Technologies, Inc.
3.4 - Bylaws of Summit Technologies, Inc.
5 - Opinion of Thomas J. Kenan, Esq., as to the legality of
the securities covered by the Registration Statement.
8 - Opinion of Thomas J. Kenan, Esq., as to tax matters and
tax consequences.
10 - Escrow Agreement among Summit Environmental Corporation,
Inc.; SuperCorp Inc.; and Bank One Trust Company, NA,
Oklahoma City, Oklahoma.
10.1 - 1998 Stock Option Plan adopted by Summit Environmental
Corporation, Inc.
10.2 - Representative agreement among certain shareholders of
SuperCorp relating to compliance with SEC Rule 419.
10.3 - Limited Exclusive Marketing Bilateral Agreement between
Moonlighting Distribution Corporation-USA and Summit
Technologies, Inc. (Poder Sexual, Ultimate Stressex
and/or Poder 24)
10.4 - Limited Exclusive Marketing Bilateral Agreement among
B. Keith Parker, individually and as Chairman of the
Board and CEO of Moonlighting Distribution
Corporation-USA, d/b/a Moonlighting International, and
Summit Technologies, Inc. (FireKare, FirePower 911,
Super Cold Fire, and Flame Out)
</TABLE>
<PAGE> 75
<TABLE>
<S> <C> <C>
23 - Consent of Thomas J. Kenan, Esq. to the reference to
him as an attorney who has passed upon certain information
contained in the Registration Statement.
23.1 - Consent of Garner & Lawrence, LLP, independent auditors of
Summit Technologies, Inc.
23.2 - Consent of Hogan & Slovacek, independent auditors of Summit
Environmental Corporation, Inc.
23.3 - Consent of B. Keith Parker to serve as a director of Summit
Environmental Corporation, Inc. should the proposed Merger
with Summit Technologies, Inc. become effective.
23.4 - Consent of Don Hendon to serve as a director of Summit
Environmental Corporation, Inc. should the proposed
Merger with Summit Technologies, Inc. become effective.
23.5 - Consent of Paula Parker to serve as a director of
Summit Environmental Corporation, Inc. should the
proposed Merger with Summit Technologies, Inc. become
effective.
23.6 - Consent of Dean Haws to serve as a director of Summit
Environmental Corporation, Inc. should the proposed
Merger with Summit Technologies, Inc. become effective.
23.7 - Consent of Ty Bishop to serve as a director of Summit
Environmental Corporation, Inc. should the proposed
Merger with Summit Technologies, Inc. become effective.
27 - Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 2
AGREEMENT OF MERGER
This Agreement of Merger ("the Agreement") is made and entered into as
of March 16, 1998, by and among Summit Environmental Corporation, Inc., a Texas
corporation ("the Company"); Summit Technologies, Inc., a Texas corporation
("Summit Technologies"); and SuperCorp Inc., an Oklahoma corporation
("SuperCorp").
WHEREAS, the Directors of the Company and the Directors of Summit
Technologies have each agreed to submit to their respective shareholders, for
such shareholders' approval or rejection, the merger of Summit Technologies into
the Company ("the Merger") in accordance with the provisions of the Texas
General Corporation Act, other applicable law and the provisions of this
Agreement; and
WHEREAS, SuperCorp is the controlling shareholder of the
Company;
NOW, THEREFORE, in consideration of the promises, undertakings and
mutual covenants set forth herein, the Company, Summit Technologies, and
SuperCorp agree as follows:
1. Merger; Effective Date. Pursuant to the terms and provisions of this
Agreement and of the Texas Business Corporation Act, and subject to the prior
approval by the shareholders of each of the Company and Summit Technologies,
Summit Technologies shall be merged with and into the Company, as confirmed by
the filing of articles of merger with the Secretary of State of the State of
Texas ("the Effective Date"). The Company shall be the surviving corporation
("the Surviving Corporation"). The Company and Summit Technologies shall be
referred to hereinafter collectively as the "Constituent Corporations." On the
Effective Date, the separate existence and corporate organization of Summit
Technologies, except insofar as it may be continued by statute, shall cease and
the Company shall continue as the Surviving Corporation, which shall succeed,
without other transfer or further act or deed whatsoever, to all the rights,
property and assets of the Constituent Corporations and shall be subject to and
liable for all the debts and liabilities of each, including, without limitation,
(i) the obligation to make payment for the fair value of any shares held by a
shareholder of either of the Constituent Corporations who has complied with the
requirements of Article 5.12 of the Texas Business Corporation Act for the
recovery of the fair value of his shares, and (ii) the obligation to make
payment for all fees and franchise taxes as required by law; otherwise, the
Company's identity, existence, purposes, rights, immunities, properties,
liabilities and obligations shall be unaffected and unimpaired by
Exhibit 2
Page 1 of 5 Pages
<PAGE> 2
the Merger except as expressly provided herein. This Agreement supersedes all
previous agreements among the parties hereto relating to the Merger.
2. Articles of Incorporation and Bylaws. The Articles of Incorporation
and Bylaws of the Surviving Corporation shall be the Articles of Incorporation
and Bylaws of the Company as in effect on the Effective Date.
3. Directors. The directors of Summit Technologies on the Effective
Date shall become the directors of the Surviving Corporation from and after the
Effective Date, who shall hold office subject to the provisions of the Articles
of Incorporation and Bylaws of the Surviving Corporation, until their successors
are duly elected and qualified.
4. Officers. The officers of Summit Technologies on the Effective Date
shall become the officers of the Surviving Corporation from and after the
Effective Date, subject to such powers with respect to the designation of
officers as the directors of the Surviving Corporation may have under its
Articles of Incorporation and Bylaws.
5. Manner of Conversion. The manner of converting the shares of capital
stock of the Constituent Corporations into shares of the Surviving Corporation
shall be as follows:
5.1. The shares of capital stock of Summit Technologies which
shall be issued and outstanding on the Effective Date shall, on the Effective
Date, be cancelled and exchanged for 5,000,000 shares of Common Stock ("the
Merger Shares") of the Company.
5.2. There shall be 500,000 shares of Common Stock, $0.001 par
value, of the Company issued and outstanding prior to the Effective Date ("the
Spinoff Shares") and held of record by SuperCorp, which shares shall, on the
Effective Date, continue to be outstanding and which shall have been distributed
by the record holder thereof, SuperCorp, to its shareholders ("the Spinoff").
5.3 There shall be 250,000 shares of Common Stock of the
Company issued and outstanding prior to the Effective Date and held by Dave
Dischiavo and George W. Cole or their designees or assignees ("the Consultants'
Shares"), which shares, on the Effective Date, shall continue to be issued and
outstanding.
5.4 There shall be no options or warrants to purchase shares
of Common Stock of the Company or Summit Technologies outstanding on the
Effective Date.
Exhibit 2
Page 2 of 5 Pages
<PAGE> 3
6. Representations and Warranties. SuperCorp and the
Company jointly represent and warrant to, and agree with, Summit
Technologies that:
6.1 The Company has been duly organized and is validly
existing under the Texas Business Corporation Act. The Company has no subsidiary
and does not own an equity interest in any entity.
6.2 The authorized capital of the Company is 50,000,000 shares
of capital stock, which is of two classes as follows:
<TABLE>
<CAPTION>
Number of Par value
Class Series Shares of shares
----- ------ ---------- ---------
<S> <C> <C> <C>
Common None 40,000,000 $0.001
Preferred To be designated 10,000,000 $0.001
by the directors
</TABLE>
6.3 As of the Effective Date but immediately before giving
effect to the Merger, the Company has outstanding capital as follows: 750,000
shares of Common Stock, $0.001 par value. No other shares, options, warrants or
any rights to acquire the Company's capital stock will be issued and outstanding
as of the Effective Date but immediately before giving effect to the Merger. The
shares of Common Stock to be issued in connection with the Merger, when issued,
delivered and sold, will be duly and validly issued and outstanding, fully paid
and non-assessable, will not have been issued in violation of or subject to any
preemptive or similar rights and will be free from any lien, charge, encumbrance
or other security interest or third party right or interest.
6.4 The Company has no liabilities or obligations, whether
absolute, contingent or otherwise.
6.5 As of the Effective Date, the financial statements of the
Company shall not vary in any particular from the Company's financial statements
that appear in the registration statement described in paragraph 7 below.
6.6 As of the Effective Date, the Merger and the Agreement
will have been duly authorized and approved by the Company's directors and
shareholders.
6.7 The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the United
States Investment Company Act of 1940, as amended.
Exhibit 2
Page 3 of 5 Pages
<PAGE> 4
7. Conditions of Summit Technologies' obligations. The obligations of
Summit Technologies to complete the Merger as provided herein shall be subject
to the accuracy of the representations and warranties of SuperCorp and the
Company herein contained as of the Effective Date, to the performance by the
Company and SuperCorp of their obligations hereunder and to the following
additional conditions:
7.1 The Merger Shares and the Spinoff Shares of Common Stock
of the Company to be distributed pursuant to the provisions of paragraph 5.1 and
5.2 above shall, prior to the distribution thereof, be registered pursuant to
the provisions of the Securities Act of 1933, as amended, by virtue of the
filing of the appropriate registration statements with the U.S. Securities and
Exchange Commission.
7.2 SuperCorp shall have distributed the Spinoff Shares to an
escrow agent, as described in the registration statements filed with the SEC.
7.3 The directors and the shareholders of Summit Technologies
are free to approve or disapprove the Merger in their full discretion.
8. Tax Treatment. The merger of the Company and Summit Technologies
shall be accomplished as a tax-free reorganization.
9. Certificate of Merger. Upon the approval of the merger by the
shareholders of the Company and of Summit Technologies, the officers of the
Company shall file with the Secretary of State, State of Texas either a
certified copy of this Agreement, Articles of Merger, or other required filing
containing terms and provisions consistent with this Agreement of Merger;
provided, however, that at any time prior to the filing of this Agreement (or a
certificate in lieu thereof) with the Secretary of State, State of Texas, the
Agreement may be terminated by the board of directors of Summit Technologies
notwithstanding approval of this Agreement by the shareholders of Summit
Technologies or of the Company.
Summit Environmental Corporation,
a Texas corporation
By: /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, President
Exhibit 2
Page 4 of 5 Pages
<PAGE> 5
Summit Technologies, Inc.,
a Texas corporation
By: /s/ B. Keith Parker
----------------------------------
B. Keith Parker, Chief Executive
Officer
SuperCorp Inc.
By: /s/ Albert L. Welsh
----------------------------------
Albert L. Welsh, President
Exhibit 2
Page 5 of 5 Pages
<PAGE> 1
EXHIBIT 3.1
(Seal)
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
SUMMIT ENVIRONMENTAL CORPORATION, INC.
CHARTER NUMBER 01480512
THE UNDERSIGNED, AS SECRETARY OF STATE OF THE STATE OF TEXAS, HEREBY
CERTIFIES THAT THE ATTACHED ARTICLES OF INCORPORATION FOR THE ABOVE NAMED
CORPORATION HAVE BEEN RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, AS SECRETARY OF STATE, AND BY
VIRTUE OF THE AUTHORITY VESTED IN THE SECRETARY BY LAW, HEREBY
ISSUES THIS CERTIFICATE OF INCORPORATION.
ISSUANCE OF THIS CERTIFICATE OF INCORPORATION DOES NOT AUTHORIZE THE
USE OF A CORPORATE NAME IN THIS STATE IN VIOLATION OF THE RIGHTS OF ANOTHER
UNDER THE FEDERAL TRADEMARK ACT OF 1946, THE TEXAS TRADEMARK LAW, THE ASSUMED
BUSINESS OR PROFESSIONAL NAME ACT OR THE COMMON LAW.
DATED FEB. 24, 1998
EFFECTIVE FEB. 24, 1998
(Seal) /s/ Alberto R. Gonzales
----------------------------------------
Alberto R. Gonzales, Secretary of State
Exhibit 3.1
Page 1 of 3 Pages
<PAGE> 2
FILED in the Office of the
Secretary of State of Texas
FEB 24 1998
Corporations Section
ARTICLES OF INCORPORATION
OF
SUMMIT ENVIRONMENTAL CORPORATION, INC.
ARTICLE ONE
The name of the Corporation is SUMMIT ENVIRONMENTAL CORPORATION, INC.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is the transaction
of any and all lawful business for which a corporation may be incorporated under
the Texas Business Corporation Act.
ARTICLE FOUR
The Corporation is authorized to issue two classes of stock, both of
which shall be voting. One class of stock shall be Common Stock, par value
$0.001. The second class of stock shall be Preferred Stock, par value $0.001.
The Preferred Stock, or any series thereof, shall have such designations,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof as shall be expressed in the
resolution or resolutions providing for the issue of such stock adopted by the
board of directors and may be made dependent upon facts ascertainable outside
such resolution or resolutions of the board of directors, provided that the
manner in which such facts shall operate upon such designations, preferences,
rights and qualifications, limitations or restrictions of such class or series
of stock is clearly and expressly set forth in the resolution or resolutions
providing for the issuance of such stock by the board of directors.
The total number of shares of stock of each class which the corporation
shall have authority to issue and the par value of each share of each class of
stock are as follows:
<TABLE>
<CAPTION>
Number of
Par Authorized
Class Value Shares Total
----- ----- ---------- ------
<S> <C> <C> <C>
Common $0.001 40,000,000 $40,000
Preferred $0.001 10,000,000 10,000
---------- -------
Totals: 50,000,000 $50,000
</TABLE>
Exhibit 3.1
Page 2 of 3 Pages
<PAGE> 3
ARTICLE FIVE
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of $1,000.00, consisting
of money, labor done, or property actually received.
ARTICLE SIX
The street address of the Corporation's registered office, and the name
of its Registered Agent at that address, is as follows:
Dave Dischiavo
7312 Authon Drive
Dallas, TX 75248
ARTICLE SEVEN
The number of initial directors is one. The name and address of the
initial director is:
Albert L. Welsh
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
ARTICLE EIGHT
The name and address of the incorporator is:
Thomas J. Kenan
100 North Broadway, Suite 3300
Oklahoma City, OK 73102
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of
February, 1998.
/s/ Thomas J. Kenan
---------------------------------
Thomas J. Kenan, Incorporator
Exhibit 3.1
Page 3 of 3 Pages
2
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
SUMMIT ENVIRONMENTAL CORPORATION, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office
of the corporation shall be established and maintained at
7312 Authon Drive, Dallas, Texas 75248.
SECTION 2. OTHER OFFICES. The corporation may have other
offices, either within or without the State of Texas, at such place or places as
the Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders
for the election of directors and for such other business as may be stated in
the notice of the meeting, shall be held at such place, either within or without
the State of Texas, and at such time and date as the Board of Directors, by
resolution, shall determine and as set forth in the notice of the meeting. In
the event the Board of Directors fails to so determine the time, date and place
of meeting, the annual meeting of stockholders shall be held at the registered
office of the corporation in Texas on the second Tuesday of May of each year at
11 a.m., local time.
Exhibit 3.2
Page 1 of 16 Pages
<PAGE> 2
If the date of the annual meeting shall fall upon a legal
holiday, the meeting shall be held on the next succeeding business day. At each
annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be stated
in the notice of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for
any purpose other than the election of directors may be held at
such time and place as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation and in accordance
with the provisions of these Bylaws shall be entitled to one vote, in person or
by proxy, for each share of stock entitled to vote held by such stockholder, but
no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. Upon the demand of any stockholder, the vote for
directors and the vote upon any question before the meeting, shall be by ballot.
All elections for directors shall be decided by plurality vote of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors; and all other questions shall be decided by the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter, except as
otherwise provided by the Certificate of Incorporation or the laws of the State
of Texas.
Exhibit 3.2
Page 2 of 16 Pages
<PAGE> 3
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each, and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 4. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these Bylaws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting until the requisite amount of stock entitled to vote
shall be present. At any such adjourned meeting at which the requisite amount of
stock entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed; but only
those stockholders entitled to vote at
Exhibit 3.2
Page 3 of 16 Pages
<PAGE> 4
the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the
stockholders for any purpose or purposes may be called by the
President or Secretary, or by resolution of the directors.
SECTION 6. NOTICE OF MEETINGS. Written notice, stating the
place, date and time of the meeting, and the general nature of the business to
be considered, shall be given to each stockholder entitled to vote thereat at
his address as it appears on the records of the corporation, not less than ten
(10) nor more than sixty (60) days before the date of the meeting. No business
other than that stated in the notice shall be transacted at any meeting without
the unanimous consent of all the stockholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting, 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
Exhibit 3.2
Page 4 of 16 Pages
<PAGE> 5
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors shall be
one or more. The directors shall be elected at the annual meeting of the
stockholders and each director shall be elected to serve until his or her
successor shall be elected and shall qualify. Directors need not be
stockholders.
SECTION 2. RESIGNATIONS. Any director, member of a committee
or other office may resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of
a committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
SECTION 4. REMOVAL. Any director or directors may be
removed either for or without cause at any time by the affirmative
vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote, at a special meeting of the
stockholders called for the purpose and the vacancies thus created
Exhibit 3.2
Page 5 of 16 Pages
<PAGE> 6
may be filled, at the meeting held for the purpose of removal, by the
affirmative vote of a majority in interest of the stockholders entitled to vote.
SECTION 5. INCREASE OF NUMBER. The number of directors may be
increased by amendment of these Bylaws by the affirmative vote of a majority
vote of a majority in interest of the stockholders, at the annual meeting or at
a special meeting called for that purpose, and by like vote the additional
directors may be chosen at such meeting to hold office until the next annual
election and until their successors are elected and qualify.
SECTION 6. POWERS. The Board of Directors shall exercise all
of the powers of the corporation except such as are by law, or by the
Certificate of Incorporation of the corporation or by these Bylaws conferred
upon or reserved to the stockholders.
SECTION 7. COMMITTEES. The Board of Directors may, by
resolution or resolutions 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. Any such committee, to the extent provided in the resolution of
the Board of Directors, or in these Bylaws, 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
Exhibit 3.2
Page 6 of 16 Pages
<PAGE> 7
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 a dissolution, or amending the
Bylaws of the corporation; and, unless the resolution, these Bylaws or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 8. ANNUAL MEETINGS. The annual meeting of the Board
may be held at such time and place as shall be fixed by a vote of the
shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute such
meeting.
SECTION 9. REGULAR MEETINGS. Regular meetings of the
directors may be held without notice at such places and times as
shall be determined from time to time by resolution of the
directors.
SECTION 10. SPECIAL MEETINGS. Special meetings of the board
may be called by the President or by the Secretary on the written request of any
two (2) directors on at least two (2) days' notice to each director and shall be
held at such place or places as may be determined by the directors, or as shall
be stated in the call of the meeting.
SECTION 11. QUORUM. A majority of the directors shall
constitute a quorum for the transaction of business. If at any
meeting of the board there shall be less than a quorum present, a
Exhibit 3.2
Page 7 of 16 Pages
<PAGE> 8
majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned.
SECTION 12. COMPENSATION. Directors shall not receive any
stated salary for their services as directors or as members of committees, but
by resolution of the board a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 13. ACTION WITHOUT MEETING. 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 prior to such action a
written consent thereto is signed by all members of the board, or of such
committee as the case may be, and such written consent is filed with the minutes
of proceedings of the board or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be
a President, a Treasurer, and a Secretary, all of whom shall be elected by the
Board of Directors and who shall hold office until their successors are elected
and qualified. In addition, the Board of Directors may elect a Chairman, one (1)
or more Vice Presidents and such Assistant Secretaries and Assistant
Exhibit 3.2
Page 8 of 16 Pages
<PAGE> 9
Treasurers as they may deem proper. None of the officers of the corporation need
be directors. The officers shall be elected at the first meeting of the Board of
Directors after each annual meeting. More than two (2) offices may be held by
the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors
may appoint such other officers and agents as it may deem advisable, 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 3. CHAIRMAN. The Chairman of the Board of Directors,
if one be elected, shall preside at all meetings of the Board of Directors and
he shall have and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the chief
executive officer of the corporation and shall have the general powers and
duties of supervision and management usually vested in the office of President
of a corporation. He shall preside at all meetings of the stockholders if
present thereat, and in the absence or non-election of the Chairman of the Board
of Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the corporation. Except as
the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages and other contracts in behalf of the
corporation, and shall cause the seal to be affixed to any instrument requiring
it
Exhibit 3.2
Page 9 of 16 Pages
<PAGE> 10
and when so affixed the seal shall be attested by the signature of
the Secretary or an Assistant Secretary.
SECTION 5. VICE PRESIDENT. Each Vice President shall
have such powers and shall perform such duties as shall be assigned
to him by the directors.
SECTION 6. 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. He shall
deposit all monies and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
SECTION 7. SECRETARY. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and directors, and all other
notices required by law or by these Bylaws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the President, or by the directors, or stockholders, upon
whose requisition the meeting is called as provided in these Bylaws. He shall
record all the proceedings of the meetings of the corporation and of the
directors in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the directors or the President. He shall
have custody of the seal of the corporation and shall affix the same to all
instruments requiring it, when authorized by the directors or the President, and
attest the same.
Exhibit 3.2
Page 10 of 16 Pages
<PAGE> 11
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
Assistant Treasurers and Assistant Secretaries, if any, shall be elected and
shall have such powers and shall perform such duties as shall be assigned to
them, respectively, by the directors.
SECTION 9. SALARIES. The salaries of all officers of
the corporation shall be fixed by the Board of Directors.
SECTION 10. REMOVAL. Any officer elected or appointed by the
Board of Directors may be removed from office, with or without cause, at any
time by the affirmative vote of a majority of the directors present at any
meeting of the Board at which a quorum is present.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Certificates of stock,
signed by the President or Vice President, and the Treasurer or an Assistant
Treasurer, or Secretary or an Assistant Secretary, shall be issued to each
stockholder certifying the number of shares owned by him in the corporation. Any
of or all the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may
be issued in the place of any certificate theretofore issued by the corporation,
alleged to have been lost or destroyed, and the directors may, in their
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the corporation a bond, in such sum as they may direct,
not
Exhibit 3.2
Page 11 of 16 Pages
<PAGE> 12
exceeding double the value of the stock, to indemnify the corporation against
any claim that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the
corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the directors may designate, by whom they
shall be cancelled, and new certificates shall thereupon be issued. A record
shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. STOCKHOLDERS 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
corporation action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other
Exhibit 3.2
Page 12 of 16 Pages
<PAGE> 13
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 5. REGISTERED STOCKHOLDERS. The corporation shall be
entitled to treat the holder of record of any share or shares as the holder in
fact thereof, and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, except as may be
otherwise expressly provided by the laws of Texas.
SECTION 6. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from or
as a reserve fund to meet contingencies or for equalizing dividends or for such
other purposes as the directors shall deem conducive to the interests of the
corporation.
SECTION 7. SEAL. The corporate seal shall be circular in form
and shall contain the name of the corporation and the words "CORPORATE SEAL."
Said seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Exhibit 3.2
Page 13 of 16 Pages
<PAGE> 14
SECTION 8. FISCAL YEAR. The fiscal year of the
corporation shall be determined by resolution of the Board of
Directors.
SECTION 9. CHECKS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 10. NOTICE. Whenever any notice is required by these
Bylaws to be given, personal notice is not meant unless expressly so stated, and
any notice so required shall be deemed to be sufficient if given by depositing
the same in the United States mail, postage prepaid, addressed to the person
entitled thereto at his address as it appears on the records of the corporation,
and such notice shall be deemed to have been given on the day of such mailing.
Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by Statute.
SECTION 11. WAIVER OF NOTICE. Whenever any notice whatever is
required to be given under the provisions of any law, or under the provisions of
the Certificate of Incorporation of the corporation or 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.
Exhibit 3.2
Page 14 of 16 Pages
<PAGE> 15
ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
To the extent and in the manner permitted by the laws of the
State of Texas, and specifically as is permitted under the general corporation
act, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the corporation, by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement.
ARTICLE VII
AMENDMENTS
These Bylaws may be altered or repealed and Bylaws may be made
at any annual meeting of the stockholders or at any special meeting thereof if
notice of the proposed alteration or repeal or Bylaw or Bylaws to be made be
contained in the notice of such special meeting, by the affirmative vote of a
majority of the stock issued and outstanding and entitled to vote thereat, or by
the affirmative vote of a majority of the Board of Directors, at any regular
meeting of the Board of Directors, or at any special
Exhibit 3.2
Page 15 of 16 Pages
<PAGE> 16
meeting of the Board of Directors, if notice of the proposed alteration or
repeal, or Bylaw or Bylaws to be made, be contained in the notice of such
special meeting.
DATED: February 24, 1998
Exhibit 3.2
Page 16 of 16 Pages
<PAGE> 1
EXHIBIT 3.3
[THE STATE OF TEXAS SEAL]
CERTIFICATE OF AMENDMENT
FOR
SUMMIT TECHNOLOGIES, INC.
CHARTER NUMBER 01455846
THE UNDERSIGNED, AS SECRETARY OF STATE OF THE STATE OF TEXAS, HEREBY
CERTIFIES THAT THE ATTACHED ARTICLES OF AMENDMENT FOR THE ABOVE NAMED ENTITY
HAVE BEEN RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY THE UNDERSIGNED, AS SECRETARY OF STATE, AND BY VIRTUE OF THE
AUTHORITY VESTED IN THE SECRETARY BY LAW, HEREBY ISSUES THIS CERTIFICATE OF
AMENDMENT.
DATED JAN. 23, 1998
EFFECTIVE JAN. 23, 1998
[THE STATE OF TEXAS SEAL]
/s/ ALBERTO R. GONZALES
---------------------------------------
Alberto R. Gonzales, Secretary or State
Exhibit 3.3
Page 1 of 5 Pages
<PAGE> 2
AMENDMENT TO THE ARTICLES OF INCORPORATION
-SUMMIT TECHNOLOGIES, INC.- [FILED IN THE OFFICE
OF THE SECRETARY OF
STATE OF TEXAS
1. Article four is amended to read as follows: JAN 23 1998
CORPORATIONS SECTIONS]
"The aggregate number of shares which
the corporation shall have authority to
issue is ten million (10,000,000) shares."
2. The shares have no par value.
3. This amendment is adopted by the board of directors as of January 20,
1998.
4. As of the above date no shares have been issued.
5. This amendment is adopted by the corporations' board of directors.
6. This amendment does not effect a change in stated capital.
/s/ B. KEITH PARKER January 20, 1998
--------------------------------- --------------------------
B. Keith Parker
Chairman/CEO
Corporate Seal
State of Texas
County of Gregg
Before me, the undersigned, a Notary Public on this day personally appeared B.
Keith Parker, known to me, to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said Summit Technologies, Inc. a corporation, and that he had
executed the same as the act of such corporation for the purpose and
consideration therein expressed, and in the capacity therein stated.
Given under my hand and seal of office, this 20th day of January, A.D. 1998
[NOTARY PUBLIC SEAL] /s/ JENNIFER L. WOOLBERT
-------------------------------
JENNIFER L. WOOLBERT Notary Public, State of Texas
NOTARY PUBLIC
STATE OF TEXAS Jennifer L. Woolbert
COMM. EXP. 07-25-2001 -------------------------------
Print name of Notary Public
My commission expires the 25th day of July, 2001.
Exhibit 3.3
Page 2 of 5 Pages
<PAGE> 3
[THE STATE OF TEXAS SEAL]
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
SUMMIT TECHNOLOGIES, INC.
CHARTER NUMBER 01455846
THE UNDERSIGNED, AS SECRETARY OF STATE OF THE STATE OF TEXAS, HEREBY
CERTIFIES THAT THE ATTACHED ARTICLES OF INCORPORATION FOR THE ABOVE NAMED
CORPORATION HAVE BEEN RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, AS SECRETARY OF STATE, AND BY VIRTUE OF THE
AUTHORITY VESTED IN THE SECRETARY BY LAW, HEREBY ISSUES THIS CERTIFICATE OF
INCORPORATION.
ISSUANCE OF THIS CERTIFICATE OF INCORPORATION DOES NOT AUTHORIZE THE USE
OF A CORPORATE NAME IN THIS STATE IN VIOLATION OF THE RIGHTS OF ANOTHER UNDER
THE FEDERAL TRADEMARK ACT OF 1946, THE TEXAS TRADEMARK LAW, THE ASSUMED
BUSINESS OR PROFESSIONAL NAME ACT OR THE COMMON LAW.
DATED AUG. 14, 1997
EFFECTIVE AUG. 14, 1997
[THE STATE OF TEXAS SEAL]
/s/ ANTONIO O. GARZA
- -----------------------------------------
Antonio O. Garza, Jr., Secretary of State
EXHIBIT 3.3
page 3 of 5 Pages
<PAGE> 4
FILED
In the Office of the
Secretary of State of Texas
AUG 14 1997
Corporations Section
==================================================
ARTICLES OF INCORPORATION
OF
SUMMIT TECHNOLOGIES, INC.
==================================================
ARTICLE ONE
The name of the Corporation is SUMMIT TECHNOLOGIES, INC.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is the transaction of
any and all lawful business for which a corporation may be incorporated under
the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares which the Corporation shall have authority
to issue is One Hundred Thousand (100,000). The shares shall have no par value.
ARTICLE FIVE
The Corporation will not commence business until it has received for the
issuance of its shares consideration of the value of $1,000.00, consisting of
money, labor done or property actually received.
--------------------------------------------------
ARTICLES OF INCORPORATION OF
SUMMIT TECHNOLOGIES, INC., PAGE 1
Exhibit 3.3
Page 4 of 5 Pages
<PAGE> 5
ARTICLE SIX
The street address of its initial Registration Office, and the name of its
initial Registered Agent at this address, is as follows:
B. Keith Parker
414 East Loop 281 Suite 14
Longview, Texas 75605
ARTICLE SEVEN
The number of initial Directors is two. The names and addresses of the
initial directors are:
B. Keith Parker
414 East Loop 281 Suite 14
Longview, Texas 75605
E. J. SULA
20430 Imperial Valley Drive Suite 1515
Houston, Texas 77073
ARTICLE EIGHT
The name and address of the Incorporator is:
Marilyn S. Hershman
408 W. 17th Street, Suite 101
Austin, Texas 78701-1207
(512) 474-2002
IN WITNESS WHEREOF: I have hereunto set my hand this 14th day of August,
1997.
/s/ MARILYN S. HERSHMAN
---------------------------------
Marilyn S. Hershman, Incorporator
-------------------------------------------------------
ARTICLES OF INCORPORATION OF
SUMMIT TECHNOLOGIES, INC., PAGE 2
EXHIBIT 3.3
PAGE 5 OF 5 PAGES
<PAGE> 1
EXHIBIT 3.4
================================================================================
BYLAWS OF
SUMMIT TECHNOLOGIES, INC
================================================================================
CONTENTS OF INITIAL BYLAWS
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C> <C>
1.00 CORPORATE CHARTER AND BYLAWS
1.01 Corporate Charter Provisions . . . . . . . . . . . . . . . . . . 3
1.02 Registered Agent or Office--Requirement
of Filing Changes with Secretary of State . . . . . . . . . . . 3
1.03 Initial Business Office . . . . . . . . . . . . . . . . . . . . 4
1.04 Amendment of Bylaws . . . . . . . . . . . . . . . . . . . . . . 4
2.00 DIRECTORS AND DIRECTORS' MEETINGS
2.01 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . 4
2.02 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . 4
2.03 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 4
2.04 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . 5
2.05 Call of Special Meeting . . . . . . . . . . . . . . . . . . . . 5
2.06 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.07 Adjournment--Notice of Adjourned Meetings . . . . . . . . . . . 5
2.08 Conduct of Meetings . . . . . . . . . . . . . . . . . . . . . . 6
2.09 Powers of the Board of Directors . . . . . . . . . . . . . . . . 6
2.10 Board Committees--Authority to Appoint . . . . . . . . . . . . . 6
2.11 Transactions with Interested Directors . . . . . . . . . . . . . 6
2.12 Number of Directors . . . . . . . . . . . . . . . . . . . . . . 7
2.13 Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.14 Removal of Directors . . . . . . . . . . . . . . . . . . . . . . 7
2.15 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.15(a) Declaration of Vacancy . . . . . . . . . . . . . . . . 7
2.15(b) Filling Vacancies by Directors . . . . . . . . . . . . 8
2.15(c) Filling Vacancies by Shareholders . . . . . . . . . . . 8
2.16 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.17 Indemnification of Directors and Officers . . . . . . . . . . . 8
2.18 Insuring Directors, Officers, and Employees. . . . . . . . . . . 8
</TABLE>
- --------------------------------------------------------------------------------
BYLAWS, PAGE 1
<PAGE> 2
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C> <C>
3.00 SHAREHOLDERS' MEETINGS
3.01 Action without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.02 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.03 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.04 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.05 Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.06 Votes per Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.07 Cumulative Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.08 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.09 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.09(a) Quorum of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . 11
3.09(b) Adjourn for Lack or Loss of Quorum . . . . . . . . . . . . . . . . . . 11
3.10 Voting by Voice or Ballot . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.11 Conduct of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.12 Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.13 Failure to Hold Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . 12
3.14 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.00 OFFICERS
4.01 Title and Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.01(a) Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.01(b) President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.01(c) Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.01(d) Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.01(e) Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.01(f) Assistant Secretary or
Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.02 Removal and Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.03 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.04 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.00 AUTHORITY TO EXECUTE INSTRUMENTS
5.01 No Authority Absent Specific Authorization . . . . . . . . . . . . . . . . . . 16
5.02 Execution of Certain Instruments . . . . . . . . . . . . . . . . . . . . . . . 16
6.0 ISSUANCE AND TRANSFER OF SHARES
6.01 Classes and Series of Shares . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.02 Certificates for Fully Paid Shares . . . . . . . . . . . . . . . . . . . . . . 16
6.03 Consideration for Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.04 Replacement of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.05 Signing Certificates--Facsimile Signatures . . . . . . . . . . . . . . . . . . 17
6.06 Transfer Agents and Registrars . . . . . . . . . . . . . . . . . . . . . . . . 17
6.07 Conditions of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.08 Reasonable Doubts as to Right to Transfer. . . . . . . . . . . . . . . . . . . 18
</TABLE>
- --------------------------------------------------------------------------------
BYLAWS, PAGE 2
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C>
7.00 CORPORATE RECORDS AND ADMINISTRATION 18
7.01 Minutes of Corporate Meetings............................ 18
7.02 Share Register........................................... 18
7.03 Corporate Seal........................................... 19
7.04 Books of Account......................................... 19
7.05 Inspection of Corporate Records.......................... 19
7.06 Fiscal Year.............................................. 19
7.07 Waiver of Notice......................................... 20
8.00 ADOPTION OF INITIAL BYLAWS..................................... 20
</TABLE>
ARTICLE ONE--CORPORATE CHARTER AND BYLAWS
1.01 CORPORATE CHARTER PROVISIONS
The Corporation's Charter authorized 10,000,000 shares to be issued. The
officers and transfer agents issuing shares of the Corporation shall ensure that
the total number of shares outstanding at any given time does not exceed this
number. Such officers and agents shall advise the Board at least annually of the
authorized shares remaining available to be issued. No shares shall be issued
for less than the par value stated in the Charter. Each Charter provision shall
be observed until amended by Restated Articles of Articles of Amendment duly
filed with the Secretary of State.
1.02 REGISTERED AGENT AND OFFICE--REQUIREMENT OF FILING CHANGES WITH SECRETARY
OF STATE
The address of the Registered Office provided in the Articles of
Incorporation, as duly filed with the Secretary of State for the State of
Texas, is:
414 E Loop 281 Suite 14, Longview TX 75605
The name of the Registered Agent of the Corporation at such address, as
set forth in its Articles of Incorporation, is: Keith Parker, 414 E Loop 281
Suite 14, Longview TX 75605
The Registered Agent or Office may be changed by filing a Statement of
Change of Registered Agent or Office or Both with the Secretary of State, and
not otherwise. Such filing shall be made promptly with each change. Arrangements
for each change in Registered Agent or Office shall ensure that the Corporation
is not exposed to the possibility of a default judgment. Each successive
Registered Agent shall be of reliable character and well informed of the
necessity of immediately furnishing the papers of any lawsuit against the
Corporation to its attorneys.
- --------------------------------------------------------------------------------
BYLAWS, PAGE 3
<PAGE> 4
1.03 INITIAL BUSINESS OFFICE
The address of the initial principal business office of the
Corporation is hereby established as:
414 E Loop 281 Suite 14, Longview TX 75605
The Corporation may have additional business offices within the State
of Texas, and where it may be duly qualified to do business outside of Texas, as
the Board of Directors may from time to time designate or the business of the
Corporation may require.
1.04 AMENDMENT OF BYLAWS
The Shareholders or Board of Directors, subject to any limits imposed
by the Shareholders, may amend or repeal these Bylaws and adopt new Bylaws. All
amendments shall be upon advice of counsel as to legality, except in emergency.
Bylaw changes shall take effect upon adoption unless otherwise specified. Notice
of Bylaws changes shall be given in or before notice given of the first
Shareholders' meeting following their adoption.
ARTICLE TWO--DIRECTORS AND DIRECTORS' MEETINGS
2.01 ACTION BY CONSENT OF BOARD WITHOUT MEETING
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, and shall have the same force and
effect as a unanimous vote of Directors, if all members of the Board consent in
writing to the action. Such consent may be given individually or collectively.
2.02 TELEPHONE MEETINGS
Subject to the notice provisions required by these Bylaws and by the
Business Corporation Act, Directors may participate in and hold a meeting by
means of conference call or similar communication by which all persons
participating can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting, except participation for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
2.03 PLACE OF MEETINGS
Meetings of the Board of Directors shall be held at the business
office of the Corporation or at such other place within or without the State of
Texas as may be designated by the Board.
- --------------------------------------------------------------------------------
BYLAWS, PAGE 4
<PAGE> 5
2.04 REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held, without call
or notice, immediately following each annual Shareholders' meeting, and at such
other regularly repeating times as the Directors may determine.
2.05 CALL OF SPECIAL MEETING
Special meetings of the Board of Directors for any purpose may be
called at any time by the President or, if the President is absent or unable or
refuses to act, by any Vice President or any two Directors. Written notices of
the special meetings, stating the time and place of the meeting, shall be mailed
ten days before, or telegraphed or personally delivered so as to be received by
each Director not later than two days before, the day appointed for the meeting.
Notice of meetings need not indicate an agenda. Generally, a tentative agenda
will be included, but the meeting shall not be confined to any agenda included
with the notice.
Meetings provided for in these Bylaws shall not be invalid for lack of
notice if all persons entitled to notice consent to the meeting in writing or
are present at the meeting and do not object to the notice given. Consent may be
given either before or after the meeting.
Upon providing notice, the Secretary or other officer sending notice
shall sign and file in the Corporate Record Book a statement of the details of
the notice given to each Director. If such statement should later not be found
in the Corporate Record Book, due notice shall be presumed.
2.06 QUORUM
The presence throughout any Directors' meeting, or adjournment
thereof, of a majority of the authorized number of Directors shall be necessary
to constitute a quorum to transact any business, except to adjourn. If a quorum
is present, every act done or resolution passed by a majority of the Directors
present and voting shall be the act of the Board of Directors.
2.07 ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS
A quorum of the Directors may adjourn any Directors' meeting to meet
again at a stated hour on a stated day. Notice of the time and place where an
adjourned meeting will be held need not be given to absent Directors if the time
and place is fixed at the adjourned meeting. In the absence of a quorum, a
majority of the Directors present may adjourn to a set time and place if notice
is duly given to the absent members, or until the time of the next regular
meeting of the Board.
- --------------------------------------------------------------------------------
BYLAWS, PAGE 5
<PAGE> 6
2.08 CONDUCT OF MEETINGS
At every meeting of the Board of Directors, the Chairman of the Board,
if there is such an officer, and if not, the President, or in the President's
absence, a Vice President designated by the President, or in the absence of such
designation, a Chairman chosen by a majority of the Directors present, shall
preside. The Secretary of the Corporation shall act as Secretary of the Board of
Directors' meetings. When the Secretary is absent from any meeting, the Chairman
may appoint any person to act as Secretary of that meeting.
2.09 POWERS OF THE BOARD OF DIRECTORS
The business and affairs of the Corporation and all corporate powers
shall be exercised by or under authority of the Board of Directors, subject to
limitations imposed by law, the Articles of Incorporation, any applicable
Shareholders' agreement, and these Bylaws.
2.10 BOARD COMMITTEES--AUTHORITY TO APPOINT
The Board of Directors may designate an executive committee and one or
more other committees to conduct the business and affairs of the Corporation to
the extent authorized. The Board shall have the power at any time to change the
powers and membership of, fill vacancies in, and dissolve any committee.
Members of any committee shall receive such compensation as the Board of
Directors may from time to time provide. The designation of any committee and
the delegation of authority thereto shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law.
2.11 TRANSACTIONS WITH INTERESTED DIRECTORS
Any contract or other transaction between the Corporation and any of
its Directors (or any corporation or firm in which any of its Directors are
directly or indirectly interested) shall be valid for all purposes
notwithstanding the presence of that Director at the meeting during which the
contract or transaction was authorized, and notwithstanding the Director's
participation in that meeting. This section shall apply only if the contract or
transaction is just and reasonable to the Corporation at the time it is
authorized and ratified, the interest of each Director is known or disclosed to
the Board of Directors, and the Board nevertheless authorizes or ratifies the
contract or transaction by a majority of the disinterested Directors present.
Each interested Director is to be counted in determining whether a quorum is
present, but shall not vote and shall not be counted in calculating the majority
necessary to carry the vote. This section shall not be construed to invalidate
contracts or transactions that would be valid in its absence.
- --------------------------------------------------------------------------------
BYLAWS, PAGE 6
<PAGE> 7
2.12 NUMBER OF DIRECTORS
The number of Directors of this Corporation shall be 6. No Director
need be a resident of Texas or a Shareholder. The number of Directors may be
increased or decreased from time to time by amendment to these Bylaws. Any
decrease in the number of Directors shall not have the effect of shortening the
tenure which any incumbent Director would otherwise enjoy.
2.13 TERM OF OFFICE
Directors shall be entitled to hold office until their successors are
elected and qualified. Election for all Director positions, vacant or not
vacant, shall occur at each annual meeting of the Shareholders and may be held
at any special meeting of Shareholders called specifically for that purpose.
2.14 REMOVAL OF DIRECTORS
The entire Board of Directors or any individual Director may be
removed from office by a vote of Shareholders holding a 66 2/3% majority of the
outstanding shares entitled to vote at an election of Directors. However, if
less than the entire Board is to be removed, no one of the Directors may be
removed if the votes cast against his removal would be sufficient to elect him
if then cumulatively voted at an election of the entire Board of Directors. No
director may be so removed except at an election of the class of Directors of
which he is a part. If any or all Directors are so removed, new Directors may
be elected at the same meeting. Whenever a class or series of shares is
entitled to elect one or more Directors under authority granted by the Articles
of Incorporation, the provisions of this Paragraph apply to the vote of that
class or series and not to the vote of the outstanding shares as a whole.
2.15 VACANCIES
Vacancies on the Board of Directors shall exist upon the occurrence of
any of the following events: (a) the death, resignation, or removal of any
Director; (b) an increase in the authorized number of Directors; or (c) the
failure of the Shareholders to elect the full authorized number of Directors to
be voted for at any annual, regular, or special Shareholders' meeting at which
any Director is to be elected.
2.15(a) DECLARATION OF VACANCY
A majority of the Board of Directors may declare vacant the office of
a Director if the Director: (a) is adjudged incompetent by a court order; (b) is
convicted of a crime involving moral turpitude; (c) or fails to accept the
office of Director, in
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<PAGE> 8
writing or by attending a meeting of the Board of Directors, within thirty (30)
days of notice of election.
2.15(b) FILLING VACANCIES BY DIRECTORS
Vacancies other than those caused by an increase in the number of
Directors may be filled temporarily by majority vote of the remaining Directors,
though less than a quorum, or by a sole remaining Director. Each Director so
elected shall hold office until a qualified successor is elected at a
Shareholders' meeting.
2.15(c) FILLING VACANCIES BY SHAREHOLDERS
Any vacancy on the Board of Directors, including those caused by an
increase in the number of Directors shall be filled by the Shareholders at the
next annual meeting or at a special meeting called for that purpose. Upon the
resignation of a Director tendered to take effect at a future time, the Board or
the Shareholders may elect a successor to take office when the resignation
becomes effective.
2.16 COMPENSATION
Directors shall receive such compensation for their services as
Directors as shall be determined from time to time by resolution of the Board.
Any Director may serve the Corporation in any other capacity as an officer,
agent, employee, or otherwise, and receive compensation therefor.
2.17 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Board of Directors shall authorize the Corporation to pay or
reimburse any present or former Director or officer of the Corporation any costs
or expenses actually and necessarily incurred by that officer in any action,
suit, or proceeding to which the officer is made a party by reason of holding
that position, provided, however, that no officer shall receive such
indemnification if finally adjudicated therein to be liable for negligence or
misconduct in office. This indemnification shall extend to good-faith
expenditures incurred in anticipation of threatened or proposed litigation. The
Board of Directors may, in proper cases, extend the indemnification to cover the
good-faith settlement of any such action, suit, or proceeding, whether formally
instituted or not.
2.18 INSURING DIRECTORS, OFFICERS, AND EMPLOYEES
The Corporation may purchase and maintain insurance on behalf of any
Director, officer, employee, or agent of the Corporation, or on behalf of any
person serving at the request of the Corporation as a Director, officer,
employee, or agent of
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<PAGE> 9
another corporation, partnership, joint venture, trust, or other enterprise,
against any liability asserted against that person and incurred by that person
in any such corporation, whether or not the Corporation has the power to
indemnify that person against liability for any of those acts.
ARTICLE THREE--SHAREHOLDERS' MEETINGS
3.01 ACTION WITHOUT MEETING
Any action that may be taken at a meeting of the Summit Shareholders
under any provision of the Texas Business Corporation Act may be taken without a
meeting if authorized by a consent or waiver filed with the Secretary of the
Corporation and signed by all persons who would be entitled to vote on that
action at a Shareholders' meeting. Each such signed consent or waiver, or a true
copy thereof, shall be placed in the Corporate Record Book.
3.02 TELEPHONE MEETINGS
Subject to the notice provisions required by these Bylaws and by the
Business Corporation Act, Shareholders may participate in and hold a meeting by
means of conference call or similar communication by which all persons
participating can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting, except participation for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
3.03 PLACE OF MEETINGS
Shareholders' meetings shall be held at the business office of the
Corporation, or at such other place within or without the State of Texas as may
be designated by the Board of Directors or the Shareholders.
3.04 NOTICE OF MEETINGS
The President, the Secretary, or the officer or persons calling a
Shareholders' Meeting, shall give notice, or cause it to be given, in writing to
each Director and to each Shareholder entitled to vote at the meeting at least
ten (10) but not more than sixty (60) days before the date of the meeting. Such
notice shall state the place, day, and hour of the meeting, and, in case of a
special meeting, the purpose or purposes for which the meeting is called. Such
written notice may be given personally, by mail, or by other means. Such notice
shall be addressed to each recipient at such address as appears on the Books of
the Corporation or as the recipient has given to the Corporation for
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<PAGE> 10
the purpose of notice. Meetings provided for in these Bylaws shall not be
invalid for lack of notice if all persons entitled to notice consent to the
meeting in writing or are present at the meeting in person or by proxy and do
not object to the notice given. Consent may be given either before or after the
meeting. Notice of the reconvening of an adjourned meeting is not necessary
unless the meeting is adjourned more than thirty days past the date stated in
the notice, in which case notice of the adjourned meeting shall be given as in
the case of any special meeting. Notice may be waived by written waivers signed
either before or after the meeting by all persons entitled to the notice.
3.05 VOTING LIST
At least ten (10), but not more than sixty (60), days before each
Shareholders' meeting, the officer or agent having charge of the Corporation's
share transfer books shall make a complete list of the Shareholders entitled to
vote at that meeting or any adjournment thereof, arranged in alphabetical order,
with the address and the number of shares held by each. The list shall be kept
on file at the Registered Office of the Corporation for at least ten (10) days
prior to the meeting, and shall be subject to inspection by any Director,
officer, or Shareholder at any time during usual business hours. The list shall
also be produced and kept open at the time and place of the meeting and shall be
subject, during the whole time of the meeting, to the inspection of any
Shareholder. The original share transfer books shall be prima facie evidence
as to the Shareholders entitled to examine such list or transfer books or to
vote at any meeting of Shareholders. However, failure to prepare and to make the
list available in the manner provided above shall not affect the validity of any
action taken at the meeting.
3.06 VOTES PER SHARE
Each outstanding share, regardless of class, shall be entitled to one
(1) vote on each matter submitted to a vote at a meeting of Shareholders, except
to the extent that the voting rights of the shares of any class or classes are
limited or denied pursuant to the Articles of Incorporation. A Shareholder may
vote in person or by proxy executed in writing by the Shareholder, or by the
Shareholder's duly authorized attorney-in-fact.
3.07 CUMULATIVE VOTING
Subject to any limitation stated in the Articles of Incorporation,
every Shareholder entitled to vote at any election of Directors may cumulate
votes. For this purpose, each Shareholder shall have a number of votes equal to
the number of
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<PAGE> 11
Directors to be elected multiplied by the number of votes to which the
Shareholder's shares are entitled. The Shareholder may cast all these votes for
one candidate or may distribute the votes among any number of candidates. The
candidates receiving the highest number of votes are elected, up to the number
of vacancies to be filled. No Shareholder may cumulate votes unless that
Shareholder gives written notice of his or her intention to do so to the
Secretary of the Corporation on or before the day preceding the election at
which the votes will be cumulated. If any Shareholder gives written notice as
provided above, all Shareholders may cumulate their votes.
3.08 PROXIES
A Shareholder may vote either in person or by proxy executed in
writing by the Shareholder or his or her duly authorized attorney in fact.
Unless otherwise provided in the proxy or by law, each proxy shall be revocable
and shall not be valid after eleven (11) months from the date of its execution.
3.09 QUORUM
3.09(a) QUORUM OF SHAREHOLDERS
As to each item of business to be voted on, the presence (in person or
by proxy) of the persons who are entitled to vote a majority of the outstanding
voting shares on that matter shall constitute the quorum necessary for the
consideration of the matter at a Shareholders' meeting. The vote of the holders
of a majority of the shares entitled to vote on the matter and represented at a
meeting at which a quorum is present shall be the act of the Shareholders'
meeting.
3.09(b) ADJOURNMENT FOR LACK OR LOSS OF QUORUM
No business may be transacted in the absence of a quorum, or upon the
withdrawal of enough Shareholders to leave less than a quorum, other than to
adjourn the meeting from time to time by the vote of a majority of the shares
represented at the meeting.
3.10 VOTING BY VOICE OR BALLOT
Elections for Directors need not be by ballot unless a Shareholder
demands election by ballot before the voting begins.
3.11 CONDUCT OF MEETINGS
Meetings of the Shareholders shall be chaired by the President, or, in
the President's absence, a Vice President designated by the President, or, in
the absence of such designation, any other person chosen by a majority of the
Shareholders of the Corporation present in person or by proxy and
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<PAGE> 12
entitled to vote. The Secretary of the Corporation, or, in the Secretary's
absence, an Assistant Secretary, shall act as Secretary of all meetings of the
Shareholders. In the absence of the Secretary or Assistant Secretary, the
Chairman shall appoint another person to act as Secretary of the meeting.
3.12 ANNUAL MEETINGS
The time, place, and date of the annual meeting of the Shareholders of
the Corporation, for the purpose of electing Directors and for the transaction
of any other business as may come before the meeting, shall be set from time to
time by a majority vote of the Board of Directors. If the day fixed for the
annual meeting shall be on a legal holiday in the State of Texas, such meeting
shall be held on the next succeeding business day. If the election of Directors
is not held on the day thus designated for any annual meeting, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the Shareholders as soon thereafter as possible.
3.13 FAILURE TO HOLD ANNUAL MEETING
If, within any 13-month period, an annual Shareholders' Meeting is not
held, any Shareholder may apply to a court of competent jurisdiction in the
county in which the principal office of the Corporation is located for a summary
order that an annual meeting be held.
3.14 SPECIAL MEETINGS
A special Shareholders' meeting may be called at any time by: (a) the
President; (b) the Board of Directors; or (c) one or more Shareholders holding
in the aggregate one-tenth or more of all the shares entitled to vote at the
meeting. Such meeting may be called for any purpose. The party calling the
meeting may do so only by written request sent by registered mail or delivered
in person to the President or Secretary. The officer receiving the written
request shall within ten (10) days from the date of its receipt cause notice of
the meeting to be sent to all the Shareholders entitled to vote at such a
meeting. If the officer does not give notice of the meeting within ten (10) days
after the date of receipt of the written request, the person or persons calling
the meeting may fix the time of the meeting and give the notice. The notice
shall be sent pursuant to Section 3.04 of these Bylaws. The notice of a special
Shareholders' meeting must state the purpose or purposes of the meeting and,
absent consent of every Shareholder to the specific action taken, shall be
limited to purposes plainly stated in the notice, notwithstanding other
provisions herein.
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<PAGE> 13
ARTICLE FOUR--OFFICERS
4.01 TITLE AND APPOINTMENT
The officers of the Corporation shall be a President and a Secretary,
as required by law. The Corporation will have, at the discretion of the Board of
Directors, a Chairman of the Board, Chief Executive Officer, a Treasurer, one
or more Vice Presidents, and one or more Assistant Secretaries. Any two or
more offices, including President and Secretary, may be held by one person. All
officers shall be elected by and hold office at the pleasure of the Board of
Directors, which shall fix the compensation and tenure of all officers.
4.01(a) CHAIRMAN OF THE BOARD
The Chairman, if there shall be such an officer, shall, if present,
preside at the meetings of the Board of Directors and exercise and perform such
other powers and duties as may from time to time be assigned to the Chairman by
the Board of Directors or prescribed by these Bylaws. The Chairman shall be the
Chief Executive Officer.
4.01(b) PRESIDENT
Subject to such supervisory powers, if any, as may be given to the
Chairman, if there is one, by the Board of Directors, the Chairman shall be the
Chief Executive Officer of the Corporation and shall, subject to the control of
the Board of Directors, have general supervision, direction, and control of the
business and officers of the Corporation. The President shall have the general
powers and duties of management usually vested in the office of President of a
corporation; shall have such other powers and duties as may be prescribed by the
Board of Directors or the Bylaws; and shall be ex officio a member of all
standing committees, including the executive committee, if any. In addition, the
President shall preside at all meetings of the Shareholders and in the absence
of the Chairman, or if there is no Chairman, at all meetings of the Board of
Directors.
4.01(c) VICE PRESIDENT
Any Vice President shall have such powers and perform such duties as
from time to time may be prescribed by these Bylaws, by the Board of Directors,
or by the President. In the absence or disability of the President, the senior
or duly appointed Vice President, if any, shall perform all the duties of the
President, pending action by the Board of Directors. When so acting, such Vice
President shall have all the powers of, and be subject to all the restrictions
on, the President.
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<PAGE> 14
4.01(d) SECRETARY
The Secretary shall:
(1) See that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law. In case of the absence or
disability of the Secretary, or the Secretary's refusal or neglect to act,
notice may be given and served by an Assistant Secretary or by the Chairman, the
President, any Vice President, or by the Board of Directors.
(2) Keep the minutes of corporate meetings, and the Corporate Record
Book, as set out in Section 7.01 hereof.
(3) Maintain, in the Corporate Record Book, a record of all share
certificates issued or cancelled and all shares of the Corporation cancelled or
transferred.
(4) Be custodian of the Corporation's records and of any seal which
the Corporation may from time to time adopt. When the Corporation exercises its
right to use a seal, the Secretary shall see that the seal is embossed on all
share certificates prior to their issuance and on all documents authorized to be
executed under seal in accordance with the provisions of these Bylaws.
(5) In general, perform all duties incident to the office of
Secretary, and such other duties as from time to time may be required by
Sections 7.01, 7.02, and 7.03 of these Bylaws, by these Bylaws generally, by the
Board of Directors, or by the President.
4.01(e) TREASURER
The Treasurer shall:
(1) Have charge and custody of, and be responsible for, all funds and
securities of the Corporation, and deposit all funds in the name of the
Corporation in those banks, trust companies, or other depositories that shall be
selected by the Board of Directors.
(2) Receive, and give receipt for, monies due and payable to the
Corporation.
(3) Disburse or cause to be disbursed the funds of the Corporation as
may be directed by the Board of Directors, taking proper vouchers for those
disbursements.
(4) If required by the Board of Directors or the President, give to
the Corporation a bond to assure the faithful performance of the duties of the
Treasurer's office and the restoration to the Corporation of all corporate
books, papers, vouchers, money, and other property of whatever kind in the
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<PAGE> 15
Treasurer's possession or control, in case of the Treasurer's death,
resignation, retirement, or removal from office. Any such bond shall be in a sum
satisfactory to the Board of Directors, with one or more sureties or a surety
company satisfactory to the Board of Directors.
(5) In general, perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to the
Treasurer by Sections 7.04 and 7.05 of these Bylaws, by these Bylaws generally,
by the Board of Directors, or by the President.
4.01(f) ASSISTANT SECRETARY AND ASSISTANT TREASURER
The Assistant Secretary or Assistant Treasurer shall have such powers
and perform such duties as the Secretary or Treasurer, respectively, or as the
Board of Directors or President may prescribe. In case of the absence of the
Secretary or Treasurer, the senior Assistant Secretary or Assistant Treasurer,
respectively, may perform all of the functions of the Secretary or Treasurer.
4.02 REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by vote of
a majority of the Directors at any regular or special meeting of the Board, or,
except in case of an officer chosen by the Board of Directors, by any committee
or officer upon whom that power of. removal may be conferred by the Board of
Directors. Such removal shall be without prejudice to the contract rights, if
any, of the person removed. Any officer may resign at any time by giving written
notice to the Board of Directors, the President, or the Secretary of the
Corporation. Any resignation shall take effect on the date of the receipt of
that notice or at any later time specified therein, and, unless otherwise
specified therein, the acceptance of that resignation shall not be necessary to
make it effective.
4.03 VACANCIES
Upon the occasion of any vacancy occurring in any office of the
Corporation, by reason of death, resignation, removal, or otherwise, the Board
of Directors may elect an acting successor to hold office for the unexpired term
or until a permanent successor is elected.
4.04 COMPENSATION
The compensation of the officers shall be fixed from time to time by
the Board of Directors, and no officer shall be prevented from receiving a
salary by reason of the fact that the officer is also a Shareholder or a
Director of the Corporation, or both.
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ARTICLE FIVE--AUTHORITY TO EXECUTE INSTRUMENTS
5.01 NO AUTHORITY ABSENT SPECIFIC AUTHORIZATION
These Bylaws provide certain authority for the execution of
instruments. The Board of Directors, except as otherwise provided in these
Bylaws, may additionally authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances. Unless expressly authorized by these Bylaws or the Board of
Directors, no officer, agent, or employee shall have any power or authority to
bind the Corporation by any contract or engagement nor to pledge its credit nor
to render it pecuniarily liable for any purpose or in any amount.
5.02 EXECUTION OF CERTAIN INSTRUMENTS
Formal contracts of the Corporation, promissory notes, deeds, deeds of
trust, mortgages, pledges, and other evidences of indebtedness of the
Corporation, other corporate documents, and certificates of ownership of liquid
assets held by the Corporation shall be signed or endorsed by the President or
any Vice President and by the Secretary or the Treasurer, unless otherwise
specifically determined by the Board of Directors or otherwise required by law.
ARTICLE SIX--ISSUANCE AND TRANSFER OF SHARES
6.01 CLASSES AND SERIES OF SHARES
Any time the Corporation has on file with the IRS an active election
of Subchapter S status, the Corporation shall issue only one class and one
series of shares. At other times, the Corporation may issue one or more classes
or series of shares, or both. All shares of any one class if the class is not
divided into series, and all shares of any one series, shall have the same
voting, conversion, redemption, and other rights, preferences, privileges, and
restrictions. Any of these classes or series may have full, limited, or no
voting rights, and may have such other preferences, rights, privileges, and
restrictions as authorized in the Articles of Incorporation. There shall always
be a class or series of shares outstanding that has complete voting rights
except as limited or restricted by voting rights conferred on some other class
or series of outstanding shares.
6.02 CERTIFICATES FOR FULLY PAID SHARES
Neither shares nor certificates representing shares may be
issued by the Corporation until the full amount of the
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<PAGE> 17
consideration has been received. When the consideration has been paid to the
Corporation, the shares shall be deemed to have been issued and the certificate
representing the shares shall be issued to the shareholder.
6.03 CONSIDERATION FOR SHARES
Shares may be issued for such consideration as may be fixed from time
to time by the Board of Directors, but not less than the par value stated in the
Articles of Incorporation. The consideration paid for the issuance of shares
shall consist of money paid, labor done, or property actually received, and
neither promissory notes nor the promise of future services shall constitute
payment nor partial payment for shares of the Corporation.
6.04 REPLACEMENT OF CERTIFICATES
No replacement share certificate shall be issued until the former
certificate for the shares represented thereby shall have been surrendered and
cancelled, except that replacements for lost or destroyed certificates may be
issued, upon such terms, conditions, and guarantees as the Board may see fit to
impose, including the filing of sufficient indemnity.
6.05 SIGNING CERTIFICATES--FACSIMILE SIGNATURES
All share certificates shall be signed by the officer(s) designated by
the Board of Directors. The signatures of the foregoing officers may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar, either of which is not the Corporation itself or an employee of
the Corporation. If the officer who has signed or whose facsimile signature has
been placed on the certificate has ceased to be such officer before the
certificate issued, the certificate may be issued by the Corporation with the
same effect as if he or she were such officer on the date of its issuance.
6.06 TRANSFER AGENTS AND REGISTRARS
The Board of Directors may appoint one or more transfer agents or
transfer clerks, and one or more registrars, at such times and places as the
requirements of the Corporation may necessitate and the Board of Directors may
designate. Each registrar appointed, if any, shall be an incorporated bank or
trust company, either domestic or foreign.
6.07 CONDITIONS OF TRANSFER
The party in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof as regards the Corporation,
provided that whenever any transfer of shares
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<PAGE> 18
shall be made for collateral security, and not absolutely, and prior written
notice thereof shall be given to the Secretary of the Corporation, or to its
transfer agent, if any, such fact shall be stated in the entry of the transfer.
6.08 REASONABLE DOUBTS AS TO RIGHT TO TRANSFER
When a transfer of shares is requested and there is reasonable doubt
as to the right of the person seeking the transfer, the Corporation or its
transfer agent, before recording the transfer of the shares on its books or
issuing any certificate therefor, may require from the person seeking the
transfer reasonable proof of that person's right to the transfer. If there
remains a reasonable doubt of the right to the transfer, the Corporation may
refuse a transfer unless the person gives adequate security or a bond of
indemnity executed by a corporate surety or by two individual sureties
satisfactory to the Corporation as to form, amount, and responsibility of
sureties. The bond shall be conditioned to protect the Corporation, its
officers, transfer agents, and registrars, or any of them, against any loss,
damage, expense, or other liability for the transfer or the issuance of a new
certificate for shares.
ARTICLE SEVEN--CORPORATE RECORDS AND ADMINISTRATION
7.01 MINUTES OF CORPORATE MEETINGS
The Corporation shall keep at the principal office, or such other
place as the Board of Directors may order, a book recording the minutes of all
meetings of its Shareholders and Directors, with the time and place of each
meeting, whether such meeting was regular or special, a copy of the notice given
of such meeting, or of the written waiver thereof, and, if it is a special
meeting, how the meeting was authorized. The record book shall further show the
number of shares present or represented at Shareholders' meetings, and the names
of those present and the proceedings of all meetings.
7.02 SHARE REGISTER
The Corporation shall keep at the principal office, or at the office
of the transfer agent, a share register showing the names of the Shareholders,
their addresses, the number and class of shares issued to each, the number and
date of issuance of each certificate issued for such shares, and the number and
date of cancellation of every certificate surrendered for cancellation. The
above information may be kept on an information storage device such as a
computer, provided that the device is capable of reproducing the information in
clearly legible form. If the Corporation is taxed under Internal Revenue Code
Section 1244 or
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<PAGE> 19
Subchapter S, the Officer issuing shares shall maintain the appropriate
requirements regarding issuance.
7.03 CORPORATE SEAL
The Board of Directors may at any time adopt, prescribe the use of, or
discontinue the use of, such corporate seal as it deems desirable, and the
appropriate officers shall cause such seal to be affixed to such certificates
and documents as the Board of Directors may direct.
7.04 BOOKS OF ACCOUNT
The Corporation shall maintain correct and adequate accounts of its
properties and business transactions, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus, and
shares. The corporate bookkeeping procedures shall conform to accepted
accounting practices for the Corporation's business or businesses. Subject to
the foregoing, the chart of financial accounts shall be taken from, and designed
to facilitate preparation of, current corporate tax returns. Any surplus,
including earned surplus, paid-in surplus, and surplus arising from a reduction
of stated capital, shall be classed by source and shown in a separate account.
If the Corporation is taxed under Internal Revenue Code Section 1244 or
Subchapter S, the officers and agents maintaining the books of account shall
maintain the appropriate requirements.
7.05 INSPECTION OF CORPORATE RECORDS
A Director or Shareholder demanding to examine the Corporation's books
or records may be required to first sign an affidavit that the demanding party
will not directly or indirectly participate in reselling the information and
will keep it confidential other than in use for proper purposes reasonably
related to the Director's or Shareholder's role. A Director who insists on
examining the records while refusing to sign this affidavit thereby resigns as a
Director.
7.06 FISCAL YEAR
The fiscal year of the Corporation shall be as determined by the Board
of Directors and approved by the Internal Revenue Service. The Treasurer shall
forthwith arrange a consultation with the Corporation's tax advisers to
determine whether the Corporation is to have a fiscal year other than the
calendar year. If so, the Treasurer shall file an election with the Internal
Revenue Service as early as possible, and all correspondence with the IRS,
including the application for the Corporation's Employer Identification Number,
shall reflect such non-calendar year election.
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<PAGE> 20
7.07 WAIVER OF NOTICE
Any notice required by law or by these Bylaws may be waived by
execution of a written waiver of notice executed by the person entitled to the
notice. The waiver may be signed before or after the meeting.
ARTICLE EIGHT--ADOPTION OF INITIAL BYLAWS
The foregoing bylaws were adopted by the Board of Directors on
/s/ KEITH PARKER
---------------------------------------
Keith Parker Director
/s/ MARSHALL SOUTHERLAND
---------------------------------------
Marshall Southerland Director
/s/ PAULA PARKER
---------------------------------------
Paula Parker Director
---------------------------------------
Director
Attested to, and certified by:
Corporate
Seal
/s/ PAULA PARKER
- ---------------------------------------
Secretary, Paula Parker
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BYLAWS, PAGE 20
<PAGE> 1
EXHIBIT 5
FULLER, TUBB, POMEROY,
KIRSCHNER, BICKFORD & STOKES
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
100 NORTH BROADWAY, SUITE 3300
OKLAHOMA CITY, OK 73102-8805
THOMAS J. KENAN TELEPHONE 405-239-3300
Of Counsel FACSIMILE 405-235-3352
E-MAIL [email protected]
March 20, 1998
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
Suite 202
4334 Northwest Expressway
Oklahoma City, OK 73112
Re: Summit Environmental Corporation,
Inc.
Dear Mr. Welsh:
I have reviewed the Forms SB-2 and S-4 Registration Statements of
Summit Environmental Corporation, Inc. and am of the opinion that the
securities being registered in the Form SB-2 Registration Statement have been
legally issued, are fully paid, and are non-assessable and the securities being
registered in the Form S-4 Registration Statement, when issued, will have been
legally issued and fully paid and will be non-assessable.
Sincerely,
/s/ Thomas J. Kenan
Thomas J. Kenan
Exhibit 5
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 8
FULLER, TUBB, POMEROY,
KIRSCHNER, BICKFORD & STOKES
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
100 NORTH BROADWAY, SUITE 3300
OKLAHOMA CITY, OK 73102-8805
THOMAS J. KENAN TELEPHONE 405-239-3300
Of Counsel FACSIMILE 405-235-3352
E-MAIL [email protected]
March 20, 1998
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
Suite 202
4334 Northwest Expressway
Oklahoma City, OK 73112
Re: Spinoff and transaction merger
by and among Summit
Environmental Corporation, Inc.,
Summit Technologies, Inc., and
SuperCorp Inc.
Dear Mr. Welsh:
In connection with the preparation and filing of a Form SB-2
Registration Statement under the Securities Act of 1933 ("the Act") to be filed
by Summit Environmental Corporation, Inc. ("the Company") for the purpose of
registering 500,000 shares of its Common Stock ("the Spinoff Shares"), which
shares are presently owned by SuperCorp Inc., an Oklahoma corporation, and in
connection with the preparation and filing of a Form S-4 Registration Statement
under the Act, to be filed by the Company for the purpose of registering
5,000,000 shares of its Common Stock ("the Merger Shares"), to be available for
a proposed merger with Summit Technologies, Inc., a Texas corporation ("Summit
Technologies"), I have been asked to express my opinion with respect to certain
U.S. federal income tax matters.
I have examined the Form SB-2 Registration Statement, the Form S-4
Registration Statement, corporate proceedings reflected in the minutes of the
Company as certified by the secretary of the Company, an agreement of merger
between the Company, Summit Technologies and SuperCorp effective as of March
16, 1998, and an escrow agreement entered into on March 16, 1998, by the
Company, SuperCorp, and Bank One Trust Company, NA, Oklahoma City, Oklahoma
("Bank One").
Exhibit 8
Page 1 of 4 Pages
<PAGE> 2
Albert L. Welsh, President 2 March 20, 1998
Based upon my examination of the above-described documents, relevant
sections of the Internal Revenue Code of 1986 as amended ("the Code"), and
applicable regulations thereunder, I am of the following opinion:
1. The proposed merger between the Company and Summit
Technologies will qualify as a type "A" reorganization under Section 368(a)(1)
of the Code; provided, however, when consideration is given to the fact that
the Company is newly organized, the step-transaction doctrine could be applied
and the Company could be considered a continuation of Summit Technologies with
only a change of name or place of incorporation, a type "F" reorganization. In
either case, there will be no recognition of taxable gain or loss to the
shareholders of Summit Technologies or to the shareholders of the Company. The
Summit Technologies shareholders will have a carryover tax basis and a tacked
holding period for the stock received by them in the Company. Further, Summit
Technologies will not recognize any taxable gain or loss, provided its
liabilities are not in excess of the tax basis of its assets.
2. The analysis of the income tax effects of the Spinoff is
somewhat different. Section 316 of the Code provides that, for purposes of the
income tax provisions of the Code (except subchapter L, which concerns
insurance companies), a dividend is any corporate distribution to shareholders
made in the normal course of business out of earnings and profits. Section
301(c) of the Code provides that a distribution by a corporation which has no
current or accumulated earnings or profits is not taxable as a dividend.
Instead, the amount of the distribution must first be used to reduce the
adjusted basis of a stockholder's stock and any remaining portion will be
treated as capital gain in the same manner as a sale or exchange of the stock.
The distributing corporation, SuperCorp, advises the undersigned that it has no
current or accumulated earnings or profits. Even so, whether it will have
earnings during the current tax year cannot be determined until the end of the
tax year. Because SuperCorp advises the undersigned that the distribution is
being made from excess capital, the amount of the distribution to each
SuperCorp shareholder must first be used to reduce the adjusted basis of each
shareholder's stock and, should the adjusted basis be reduced to zero, any
remaining portion of the value of the distribution will be treated as capital
gain in the same manner as a sale or exchange of the stock. Should SuperCorp
determine later that it does have earnings in the year of the distribution, the
distribution would be deemed to be a dividend to the extent of such earnings
and taxed as ordinary income.
Exhibit 8
Page 2 of 4 Pages
<PAGE> 3
Albert L. Welsh, President 3 March 20, 1998
3. The basis of the stock in the Company to be received by the
SuperCorp shareholders in the distribution is the fair market value of the
property. Section 301(d) of the Code. Fair market value is determined as of
the date of the distribution. Section 301(b)(3). The principal question
raised by the escrow arrangement with Bank One is whether the date of the
distribution occurs when the stock certificates are delivered to Bank One or,
alternatively, later when Bank One delivers the stock certificates to the
SuperCorp shareholders. Regulation Section 1.301-1(b) provides that a
distribution made by a corporation to its shareholders is to be included in
gross income of the distributees when the cash or other property is
"unqualifiedly made subject to their demands." When the distribution is in
property other than cash, this regulation provides that the valuation of the
property is to be made on the date of distribution without regard to whether
such date is the same as that on which the distribution is includable in gross
income. An example is given in the regulation of a corporation's distributing
a taxable dividend in property on December 31 which is received by, or
unqualifiedly made subject to the demand of, its shareholders two days later on
January 2. In this example, the amount to be included in the gross income of
the shareholders will be the fair market value of the property on December 31,
although such amount will not be includable in the gross income of the
shareholders until January 2 of the next year.
The important fact concerning the escrow with Bank One is that
the escrow is required by a regulation of the Securities and Exchange
Commission. The distributees of the stock (the SuperCorp shareholders) have
full voting rights over the distributed stock, the right to receive dividends,
and the right in certain circumstances to transfer the stock. SuperCorp itself
has no right to recall the distribution. The distributees will have the same
type of constructive receipt of the stock as existed in Carnahan, 21 BTA 893
(1930) (Acq.), and the principles set forth in Reed v. Commissioner, 723 F.2d
138 (1st Cir. 1983) would apply in the same way and support the determination
that the date of distribution is the date the stock certificates are delivered
to Bank One pursuant to the escrow agreement.
Based on the above, the value of the shares of the Company
will be valued at their fair market value no later than the time the
certificates representing the shares of the Company are received by the escrow
agent, Bank One. Because the delivery of these certificates to Bank One is to
take place before the shareholders of Summit Technologies vote on the merger,
and because the outcome of the merger vote is uncertain, SuperCorp and its
shareholders may reasonably take the position that the value of the shares of
the Company at the time of the distribution is the book value of such shares on
the date of such delivery to Bank One
Exhibit 8
Page 3 of 4 Pages
<PAGE> 4
Albert L. Welsh, President 4 March 20, 1998
without giving effect to any increase in book value that might occur should the
merger be later approved and effected.
There is the possibility that the Internal Revenue Service
might successfully argue under the step- transaction or substance-versus-form
doctrines that the delivery of the certificates to Bank One should be
disregarded and the stock valued only when and if the merger is approved. The
concept that might be asserted by the Service would be that the transfer of
stock to Bank One has no independent significance unless the merger is approved
and, therefore, should be disregarded. As stated in Minnesota Tea Co. v.
Helvering, 302 U.S. 609 (1938), a case in which the shareholders were obligated
to pay over to creditors cash received by the shareholders, "the preliminary
distribution to the stockholders was a meaningless and unnecessary step in the
transmission of the fund to the creditors." However, the distribution of
shares of the Company by SuperCorp to its shareholders involves a situation
where such shareholders will receive something of significance from SuperCorp
even if the merger is not consummated, because the management of the Company
will continue to exert efforts to find a business or property for acquisition
by the Company. Accordingly, it is more likely than not that the
step-transaction or substance-versus-form doctrines will not be applicable.
Further, these concepts are ordinarily applied only to determine the
characterization of an entire transaction, not to determine the time for
evaluation of property.
4. SuperCorp should undertake to advise its shareholders
that it has no current or accumulated earnings or profits, that the amount of
the distribution must first be used to reduce the adjusted basis of a
shareholder's SuperCorp stock and any remaining portion is to be treated as
capital gain in the same manner as a sale or exchange of the stock. SuperCorp
should further advise its shareholders what it considers to be the fair market
value of the stock of the Company on the date of the distribution. Finally,
SuperCorp should undertake to advise its shareholders, after the end of
SuperCorp's taxable year in which the distribution is made, that it had current
earnings during such year, if such be the case, which would cause it to alter
its earlier statement that no part of the distribution would be taxed as a
dividend and as ordinary income.
Sincerely,
/s/ Thomas J. Kenan
Thomas J. Kenan
Exhibit 8
Page 4 of 4 Pages
<PAGE> 1
EXHIBIT 10
ESCROW AGREEMENT
This Escrow Agreement is entered into effective March 16, 1998, by and
among Summit Environmental Corporation, Inc., a Texas corporation ("Summit
Environmental Corporation, Inc."); SuperCorp Inc., an Oklahoma corporation
("SuperCorp"); and Bank One Trust Company, NA, Oklahoma City, N.A. ("Bank One").
In consideration of the representations, undertakings, and promises set
forth below, the parties agree as follows:
1. REPRESENTATIONS BY SUMMIT ENVIRONMENTAL CORPORATION, INC..
Summit Environmental Corporation, Inc. represents as follows:
1.1. Summit Environmental Corporation, Inc. is preparing for
filing a Form SB-2 Registration Statement ("the SB-2") with the Securities and
Exchange Commission ("the Commission"). A copy of the most recent draft of the
SB-2 is delivered herewith to Bank One, and Summit Environmental Corporation,
Inc. undertakes to deliver to Bank One the final form of the SB-2 as filed with
the Commission and any amendments thereto.
1.2. Summit Environmental Corporation, Inc. and Summit
Technologies, Inc., a Texas corporation, have entered into an agreement of
merger ("the Agreement of Merger"), which merger is described in the SB-2.
1.3. Summit Environmental Corporation, Inc. has three
shareholders - SuperCorp, which is the owner of record of 500,000 shares of
Summit Environmental Corporation, Inc.'s common stock ("the Spinoff Shares"),
and two individuals who, together, own 250,000 shares of Summit Environmental
Corporation, Inc.'s common stock.
2. REPRESENTATIONS BY SUPERCORP. As soon as permitted by law or
regulation or as soon as possible after the Commission has declared effective
the SB-2, SuperCorp shall vote its 500,000 Spinoff Shares to approve the
proposed merger described in the Agreement of Merger. Immediately thereafter,
SuperCorp shall declare a dividend to its shareholders of the 500,000 Spinoff
Shares.
3. REPRESENTATIONS OF BANK ONE. Bank One represents that it is an
"insured depository institution," as that term is defined in Section 3(c)(2) of
the Federal Deposit Insurance Act.
4. ESCROW OF SPINOFF SHARES. The 500,000 Spinoff Shares shall be
escrowed with Bank One pursuant to the following terms and conditions:
4.1. After declaration by SuperCorp of the dividend to its
shareholders of the 500,000 Spinoff Shares, either SuperCorp or its
Exhibit 10
Page 1 of 6 Pages
<PAGE> 2
registrar-transfer agent shall deliver to Bank One stock certificates
representing the 500,000 Spinoff Shares, which certificates shall evidence on
their faces the identity of the owners of the shares represented by each
certificate.
4.2. Until such time as the escrowed certificates are released
from escrow in accordance with the terms of this Escrow Agreement, Summit
Environmental Corporation, Inc. shall declare no cash dividends on the shares
represented by such certificates.
4.3. Bank One shall hold the escrowed certificates solely for
the benefit of the owners of the shares represented by such certificates, which
owners shall have all voting rights with respect to such shares as are provided
by Texas law. However, no transfer or other disposition of the escrowed
securities or any interest related to such securities shall be permitted by
Summit Environmental Corporation, Inc. or recognized by Bank One other than by
will or the law of descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986 as amended or to
Title 1 of the Employee Retirement Income Security Act.
5. RELEASE OF THE ESCROWED SECURITIES. The certificates placed in
escrow with Bank One shall be released from escrow and delivered by Bank One to
Summit Environmental Corporation, Inc.'s stock registrar-transfer agent for
delivery by it to the owners of the certificates at such time as or after Bank
One has received a signed representation from Summit Environmental Corporation,
Inc., together with any other evidence acceptable to Bank One, that the
conditions and requirements set forth either in paragraph 5.1 or 5.2 below have
been met.
5.1. Should the merger described in the Agreement of Merger be
approved by the shareholders of Summit Environmental Corporation, Inc., and
should the necessary merger documents be filed with the Secretary of State of
Texas, Summit Environmental Corporation, Inc. shall so represent this to Bank
One and shall state the date the merger became effective.
5.2. Should the proposed merger described in the Plan of
Merger not be approved and effected, Summit Environmental Corporation, Inc.
proposes to search for an alternative merger partner or for a suitable business
or assets to be acquired. At such time as Summit Environmental Corporation, Inc.
should execute an agreement of merger or for the acquisition of a business or
assets that would constitute the business of Summit Environmental Corporation,
Inc., Summit Environmental Corporation, Inc. shall file a post-effective
amendment to the SB-2 disclosing the information specified by the SB-2
registration statement form and Industry Guides, including financial statements
of Summit Environmental Corporation, Inc. and the company to be acquired, and
the post-effective amendment must become effective at the Commission. Then, the
alternative merger or
Exhibit 10
Page 2 of 6 Pages
<PAGE> 3
acquisition of a business or assets must be approved and legally effected, at
which time Summit Environmental Corporation, Inc. shall represent to Bank One
that this has occurred and that all requirements of the Commission for the
release from escrow of the certificates have been met.
6. TERM OF ESCROW AGREEMENT. This Escrow Agreement shall
terminate 18 months after the effective date of the initial SB-2, unless the
certificates have been earlier released from escrow according to the provisions
set forth above. Should no such release from escrow have occurred by the
termination date, Bank One shall deliver, for cancellation, all escrowed stock
certificates to Summit Environmental Corporation, Inc.'s stock
registrar-transfer agent.
7. DEPOSITORY DUTY. Bank One will be liable as a depository only
and will not be responsible for the sufficiency or accuracy of the form,
execution or validity of any certificate or document delivered to Bank One
hereunder or any description of the property or other thing contained therein or
the identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any such certificate or document. Bank One's
duties hereunder are limited to the safekeeping of the instruments or other
documents received, and the delivery of the same in accordance with this
Agreement.
8. STANDARD OF CARE. Bank One will not be liable for any act or
omission done in good faith, or for any claim, demand, loss or damage made or
suffered by any party to this Agreement, excepting such as may arise through or
be caused by Bank One's willful misconduct or gross negligence.
9. RELIANCE. Bank One is authorized to rely on any document
believed by Bank One to be authentic in making any delivery of
certificates, funds or property hereunder.
10. ESCROW CHARGES. A $500 fee will be paid by Summit
Environmental Corporation, Inc. to Bank One for services to be rendered
hereunder. Bank One, however, may employ attorneys for reasonable protection of
the escrow property and of itself, and Summit Environmental Corporation, Inc.
will reimburse Bank One on demand. All sums due Bank One under this Agreement
will bear interest at the rate of 10 percent per annum from the date due until
Bank One is reimbursed in full.
11. LIABILITY OF BANK ONE. In accepting any securities or
documents delivered hereunder, it is agreed and understood by the undersigned
that Bank One will not be called on to construe any contract or instrument
deposited herewith and, in the event of a dispute, will be required to act in
respect to the deposit herein made only on the consent in writing of the
undersigned. In the event of its failure to obtain such consent in writing, Bank
One reserves the right to hold all papers in connection with or concerning this
escrow until a mutual agreement in writing has been
Exhibit 10
Page 3 of 6 Pages
<PAGE> 4
reached between all parties and delivered to Bank One or until delivery is
legally authorized and ordered by final judgment or decree of a court of
competent jurisdiction. If Bank One obeys or complies with any judgment, order
or decree of a court of competent jurisdiction, Bank One will not be liable to
any of the parties hereto nor to any other person, firm or corporation by reason
of such compliance, notwithstanding any such judgement, order or decree be
subsequently reversed, modified, annulled, set aside or vacated.
12. RESIGNATION OR REMOVAL OF BANK ONE.
12.1. Bank One may resign hereunder following the giving of 30
days prior written notice to Summit Environmental Corporation, Inc.. Similarly,
Bank One may be removed and replaced following the giving of 30 days prior
written notice to Bank One by Summit Environmental Corporation, Inc.. In either
event, the duties of Bank One will terminate 30 days after the date of such
notice (or as of such earlier date as may be mutually agreeable), and Bank One
will then deliver all certificates then in its possession to a successor escrow
agent as will be appointed by Summit Environmental Corporation, Inc., as
evidenced by a written notice filed with Bank One.
12.2. If Summit Environmental Corporation, Inc. shall have
failed to appoint a successor escrow agent prior to the expiration of 30 days
following the date of the notice, resignation or removal of Bank One, Bank One
may petition any court of competent jurisdiction for the appointment of a
successor escrow agent, or other appropriate relief, and any such resulting
appointment will be binding upon Summit Environmental Corporation, Inc.. The
cost of such proceeding including attorneys fees will be reimbursed by Summit
Environmental Corporation, Inc. on demand.
12.3. Upon acknowledgement by any successor escrow agent of
the receipt of all certificates that had prior to such notice been in the
possession of Bank One, Bank One will be fully released and relieved of all
duties, responsibilities, and obligations under this agreement.
13. NOTICE. Any request, direction, notice or other service
required or permitted to be made or given by any party hereto will be in writing
and will be deemed sufficiently given or served for all purposes if delivered in
person or via certified mail, return receipt requested, to the parties hereto at
the addresses set forth below or at such other address as any party will
specify, from time to time, by written notice given to the other party hereto:
Exhibit 10
Page 4 of 6 Pages
<PAGE> 5
(a) To Summit Environmental Corporation, Inc. and to
SuperCorp: Thomas J. Kenan
100 North Broadway, Suite 3300
Oklahoma City, OK 73102-8805
(b) To Bank One: Bank One Trust Company, NA,
Oklahoma City, Oklahoma
ATTN CORPORATE TRUST DEPT
100 North Broadway
P. O. Box 25848
Oklahoma City, OK 73125
IN WITNESS WHEREOF, this Escrow Agreement is executed as of the date
set forth above.
SUMMIT ENVIRONMENTAL CORPORATION, INC.
By /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, President
BANK ONE TRUST COMPANY, NA,
OKLAHOMA CITY, OKLAHOMA
By /s/ M. E. Allan
---------------------------------
M. E. Allan, Vice President
SUPERCORP INC.
By /s/ Albert L. Welsh
---------------------------------
Albert L. Welsh, President
Exhibit 10
Page 5 of 6 Pages
<PAGE> 6
RELEASE
All moneys, documents and papers relative to this escrow
deposit have been delivered in accordance with the provisions of this Escrow
Agreement this ______ day of _____________________, 19______, and Bank One
herein is relieved from all further liability or responsibility with reference
hereto.
SUMMIT ENVIRONMENTAL CORPORATION, INC.
By
-------------------------------------
Albert L. Welsh, President
SUPERCORP INC.
By -------------------------------------
Albert L. Welsh, President
Exhibit 10
Page 6 of 6 Pages
<PAGE> 1
EXHBIT 10.1
SUMMIT ENVIRONMENTAL CORPORATION, INC.
1998 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this 1998 Stock Option Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to Employees and
Consultants of the Company and its Subsidiaries and to promote the success of
the Company's business. Options granted under this Plan may be incentive stock
options (as defined under Section 422 of the Code) or nonqualified stock
options, as determined by the Option Committee at the time of grant of an option
and subject to the applicable provisions of Section 422 of the Code, as amended,
and the regulations promulgated thereunder.
2. DEFINITIONS. As used herein, the following definitions shall apply:
2.1 "Option Committee" means the Board or any of its committees, as
applicable, that is administering the Plan pursuant to Section 4 of the Plan.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Company" means SUMMIT ENVIRONMENTAL CORPORATION, INC., a Texas
corporation.
2.5 "Consultant" means any consultant or advisor to the Company or
any Parent or Subsidiary and any director of the Company whether compensated for
such services or not, but not including any Employee.
2.6 "Continuous Status as an Employee" means the absence of any
interruption or termination of the employment relationship by the Company or any
Subsidiary. Continuous Status as an Employee shall not be considered interrupted
in the case of: (i) any leave of absence approved by the Board, including sick
leave, military leave, or any other personal leave; provided, however, that for
purposes of Incentive Stock Options, such leave is for a period of not more than
90 days, unless reemployment upon the expiration of such leave is guaranteed by
contract or statute, or unless provided otherwise pursuant to Company policy
adopted from time to time; or
Exhibit 10.1
Page 1 of 14 Pages
<PAGE> 2
(ii) in the case of transfers between locations of the Company or between the
Company, its Subsidiaries or its successors.
2.7 "Employee" means any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
2.8 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.9 "Fair Market Value" means, as of any date, the value of Stock
determined as follows:
2.9.1 If the Stock is listed on any established stock exchange
or a national market system including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") System, its Fair Market Value shall be the closing sales
price for such stock (or the closing bid, if no sales were reported, as quoted
on such system or exchange or the exchange with the greatest volume of trading
in Stock for the last market trading day prior to the time of determination) as
reported in the Wall Street Journal or such other source as the Option Committee
deems reliable;
2.9.2 If the Stock is quoted on Nasdaq SmallCap (but not on the
National Market System) or regularly quoted by a recognized securities dealer
but selling prices are not reported, its Fair Market Value shall be the mean
between the high and low asked prices for the Stock; or
2.9.3 In the absence of an established market for the Stock, the
Fair Market Value thereof shall be determined in good faith by the Option
Committee.
2.10 "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
2.11 "Nonqualified Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
2.12 "Option" means a stock option granted pursuant to the Plan.
2.13 "Optioned Stock" means the Stock subject to an Option.
2.14 "Optionee" means an Employee or Consultant who receives an
Option.
2.15 "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
Exhibit 10.1
Page 2 of 14 Pages
<PAGE> 3
2.16 "Plan" means this 1998 Stock Option Plan.
2.17 "Share" means a share of the Stock, as adjusted in accordance
with Section 13 of the Plan.
2.18 "Stock" means the Common Stock, par value $.001 per share, of
the Company.
2.19 "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 13
of the Plan, the maximum number of shares of Stock which may be optioned and
sold under the Plan is 500,000 shares. The shares may be authorized, but
unissued, or reacquired Stock. If an Option should expire or become
unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan shall have
been terminated, become available for future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
4.1 ADMINISTRATION BY BOARD OR COMMITTEE. The Plan shall be
administered by (a) the Board or (b) a committee designated by the Board to
administer the Plan, which committee shall be constituted in such a manner as to
permit the Plan to comply with Rule 16b-3 promulgated under the Exchange Act or
any successor thereto ("Rule 16b-3") with respect to a plan intended to qualify
thereunder as a discretionary plan. Once appointed, such committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the committee and
appoint additional members thereof, remove members (with or without cause) and
appoint new members in substitution therefor, fill vacancies, however caused,
and remove all members of the committee and thereafter directly administer the
Plan, all to the extent permitted by Rule 16b-3 with respect to a plan intended
to qualify thereunder as a discretionary plan.
4.2 LIMITATION ON ADMINISTRATION BY BOARD. Notwithstanding the
foregoing, the Plan shall not be administered by the Board if (a) the Company
and its officers and directors are then subject to the requirements of Section
16 of the Exchange Act and (b) the Board's administration of the Plan would
prevent the Plan from complying with Rule 16b-3.
4.3 MULTIPLE ADMINISTRATIVE BODIES. If permitted by Rule 16b-3, the
Plan may be administered by different bodies with respect to directors,
non-director officers and Employees who are neither directors nor officers.
Exhibit 10.1
Page 3 of 14 Pages
<PAGE> 4
4.4 POWERS OF THE OPTION COMMITTEE. Subject to the provisions of the
Plan and in, the case of a committee, the specific duties delegated by the Board
to such committee, the Option Committee shall have the authority, in its
discretion:
4.4.1 to determine whether and to what extent Options shall be
granted hereunder;
4.4.2 to select the officers, Consultants and Employees to whom
Options may from time to time be granted hereunder;
4.4.3 to determine the number of shares of Stock to be covered
by each such award granted hereunder;
4.4.4 to determine the Fair Market Value of the Stock, in
accordance with Section 2.9 of the Plan;
4.4.5 to approve forms of agreement for use under the Plan;
4.4.6 to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder (including, but not
limited to, the per share exercise price for the Shares to be issued pursuant to
the exercise of an Option and any restriction or limitation, or any vesting,
acceleration or waiver of forfeiture restrictions regarding any Option or other
award and/or the shares of Stock relating thereto, based in each case on such
factors as the Option Committee shall determine, in its sole discretion);
4.4.7 to determine whether and under what circumstances an
Option may be bought-out for cash under subsection 10.4;
4.4.8 to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an award under
this Plan shall be deferred either automatically or at the election of the
participant (including providing for and determining the amount, if any, of any
deemed earnings on any deferred amount during any deferral period); and
4.4.9 to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Stock covered by such
Option shall have declined since the date the Option was granted.
4.5 EFFECT OF OPTION COMMITTEE'S DECISION. All decisions,
determinations and interpretations of the Option Committee shall be final and
binding on all Optionees and any other holders of any Options. Neither the
Board, the Committee, nor any
Exhibit 10.1
Page 4 of 14 Pages
<PAGE> 5
member thereof shall be liable for any act, omission, interpretation,
construction or determination made in connection with the Plan in good faith,
and the members of the Board and of the Committee shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage or expense (including counsel fees) arising therefrom to the full extent
permitted by law.
5. ELIGIBILITY.
5.1 Nonqualified Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if he is otherwise
eligible, be granted an additional Option or Options.
5.2 Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonqualified Stock Option. However,
notwithstanding such designations to the extent that the aggregate Fair Market
Value of the Shares, with respect to which Options designated as Incentive Stock
Options are exercisable for the first time by any Optionee during any calendar
year (under all plans of the Company or any Parent or Subsidiary), exceeds
$100,000, such excess Options shall be treated as Nonqualified Stock Options.
For this purpose, Incentive Stock Options shall be taken into account in the
order in which they were granted, and the Fair Market Value of the Shares shall
be determined as of the time the Option with respect to such Shares is granted.
5.3 The Plan shall not confer upon any Optionee any right with
respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his right or the Company's right
to terminate his employment or consulting relationship at any time, with or
without cause, unless otherwise agreed in writing by the Company and such
Optionee.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board of Directors subject only to approval by the holders of a majority of
the outstanding Shares within 12 months after such date. Should the Plan not be
approved by a vote of shareholders as specified above, the Plan shall terminate
12 months after the effective date, all options issued prior to that termination
date shall continue in effect but without the benefits that would accrue under
the Code or the Act from such shareholder approval. Otherwise, it shall continue
in effect until ten years from the effective date, unless extended by the Board
or sooner terminated under Section 15 of the Plan. No grants of Options will be
made pursuant to the Plan after termination of the Plan.
Exhibit 10.1
Page 5 of 14 Pages
<PAGE> 6
7. TERM OF OPTION. The term of each Option shall be the term stated in
the Option Agreement; provided, however, that in the case of an Incentive Stock
Option, the terms shall be no more than 10 years from the date of grant thereof
or such shorter term as may be provided in the Option Agreement. However, in the
case of an Option granted to an Optionee who, at the time the Option is granted,
owns Stock representing more than 10% of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Option shall
be five years from the date of grant thereof or such shorter term as may be
provided in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
8.1 The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Option Committee; provided, however, that as to an Incentive Option:
8.1.1 granted to an Employee who, at the time of the grant of
such Incentive Stock Option, owns stock representing more than 10% of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than 110% of the Fair Market Value per
Share on the date of grant.
8.1.2 granted to any other Employee, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share on the date
of grant.
8.2 The consideration to be paid for the Shares to be issued upon
exercise of an Option may be paid by certified or cashier's check. In the
discretion of the Option Committee as set forth in the Option Agreement or,
except for Incentive Options, determined at the time of exercise, payment may
also be made by any or all of the following:
8.2.1 check,
8.2.2 promissory note,
8.2.3 other shares of the Company's capital stock which (a) in
the case of shares of the Company's capital stock acquired upon exercise of an
Option either have been owned by the Optionee for more than six months on the
date of surrender or were not acquired, directly or indirectly, from the
Company, and (b) have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares to which said Option shall be exercised,
Exhibit 10.1
Page 6 of 14 Pages
<PAGE> 7
8.2.4 authorization for the Company to retain from the total
number of Shares as to which the Option is exercised that number of Shares
having a Fair Market Value on the date of exercise equal to the exercise price
for the total number of Shares as to which the Option is exercised,
8.2.5 delivery of a properly executed exercise notice together
with irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds required to pay the exercise price, or
8.2.6 such other consideration and method of payment for the
issuance of Shares to the extent permitted under applicable laws.
9. LIMITATION ON EXERCISE. The following limitations on exercise of
Options shall apply to all Incentive Options and, except to the extent waived by
the Option Committee and stated in the Option Agreement, to all other Options.
9.1 TERMINATION OF EMPLOYMENT. In the event of termination of an
Optionee's relationship as a Consultant (unless such termination is for purposes
of becoming an Employee of the Company) or on termination of an Optionee's
Continuous Status as an Employee with the Company (as the case may be), such
Optionee may, but only within 90 days (or, as to Options other than Incentive
Options, such longer period of time as is determined by the Option Committee)
after the date of such termination, but in no event later than the expiration
date of the term of such Option as set forth in the Option Agreement, exercise
his Option to the extent that Optionee was entitled to exercise it at the date
of such termination. To the extent that Optionee was not entitled to exercise
the Option at the date of such termination, or if Optionee does not exercise
such Option to the extent so entitled within the time specified herein, the
Option shall terminate.
9.2 DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 9.1 above, in the event of termination of an Optionee's relationship as
a Consultant or Continuous Status as an Employee as a result of his total and
permanent disability (as defined in Section 22(e)(3) of the Code), Optionee may,
but only within 12 months from the date of such termination and in no event
later than the expiration date of the term of such Option as set forth in the
Option Agreement, exercise the Option to the extent otherwise entitled to
exercise it at the date of such termination. To the extent that Optionee was not
entitled to exercise the Option at the date of termination, or if Optionee does
not exercise such Option to the extent so entitled within the time specified
herein, the Option shall terminate.
Exhibit 10.1
Page 7 of 14 Pages
<PAGE> 8
9.3 DEATH OF OPTIONEE. In the event of the death of an Optionee, the
Option may be exercised, at any time within 12 months following the date of
death (but in no event later than the expiration date of the term of such Option
as set forth in the Option Agreement), by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent the Optionee was entitled to exercise the Option at the date
of death. To the extent that the Optionee was not entitled to exercise the
Option at the date of termination, or if the Optionee's estate (or such other
person who acquired the right to exercise the Option) does not exercise such
Option to the extent so entitled within the time specified herein, the Option
shall terminate.
10. EXERCISE OF OPTION.
10.1 PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. An Option
shall be deemed to be exercised, and the Optionee deemed to be a stockholder of
the Shares being purchased upon exercise, when written notice of such exercise
has been given to the Company in accordance with the terms of the Option by the
person entitled to exercise the Option and full payment for the Shares with
respect to which the Option is exercised has been received by the Company. Full
payment may, as authorized by the Board, consist of any consideration and method
of payment allowable under Section 8.2 of the Plan. An Option may not be
exercised for a fraction of a Share.
10.2 EFFECT ON NUMBER OF SHARES. Exercise of an Option in any manner
shall result in a decrease in the number of shares which thereafter may be
available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
10.3 RULE 16B-3. Options granted to persons subject to Section 16(b)
of the Exchange Act must comply with the Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
10.4 BUYOUT PROVISIONS. The Option Committee may at any time offer
to buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Option Committee shall establish and
communicate to the Optionee at the time that such offer is made.
11. NON-TRANSFERABILITY OF OPTIONS. The Options may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee.
Exhibit 10.1
Page 8 of 14 Pages
<PAGE> 9
12. STOCK WITHHOLDING TO SATISFY WITHHOLDING TAX OBLIGATIONS.
12.1 At the discretion of the Option Committee, Optionees may
satisfy withholding tax obligations as provided in this paragraph. When an
Optionee incurs tax liability in connection with an Option, which tax liability
is subject to tax withholding under applicable tax laws, and the Optionee is
obligated to pay the Company an amount required to be withheld under applicable
tax laws, the Optionee may satisfy the withholding tax obligation by electing to
have the Company withhold from the Shares to be issued upon exercise of the
Option, that number of Shares having a Fair Market Value equal to the amount
required to be withheld. The Fair Market Value of the Shares to be withheld
shall be determined on the date that the amount of tax to be withheld is to be
determined (the "Tax Date").
12.2 All elections by an Optionee to have Shares withheld for this
purpose shall be made in writing in a form acceptable to the Option Committee
and shall be subject to the following restrictions:
12.2.1 the election must be made on or prior to the applicable
Tax Date;
12.2.2 once made, the election shall be irrevocable as to the
particular Shares of the Option as to which the election is made;
12.2.3 all elections shall be subject to the consent or
disapproval of the Option Committee; and
12.2.4 if the Optionee is subject to Rule 16b-3, the election
must comply with the applicable provisions of Rule 16b-3 and shall be subject to
such additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
12.3 In the event the election to have Shares withheld is made by an
Optionee, the Tax Date is deferred under Section 83 of the Code and no election
is filed under Section 83(b) of the Code, the Optionee shall receive the full
number of Shares with respect to which the Option is exercised but such Optionee
shall be unconditionally obligated to tender back to the Company the proper
number of Shares on the Tax Date.
13. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure Exhibit 10.1 Page 9 of 14 Pages
EXHIBIT 10.1
Page 9 of 14 Pages
<PAGE> 10
or its business, or any merger or consolidation of the Company, or any issue of
bond, debentures, preferred or prior preference stock ahead of or affecting the
Stock or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise;
subject to the following:
13.1 If the Company shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock dividend, or other
increase or reduction of the number of shares of the Stock outstanding, without
receiving compensation therefor in money, services or property, then (a) the
number, class, and per share price of shares of Stock subject to outstanding
Options hereunder shall be appropriately adjusted in such a manner as to entitle
an Optionee to receive upon exercise of an Option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received had he exercised his Option; (b) the number and class of shares of
Stock then reserved for issuance under the Plan shall be adjusted by
substituting for the total number and class of shares of Stock then reserved
that number and class of shares of stock that would have been received by the
owner of an equal number of outstanding shares of each class of Stock as the
result of the event requiring the adjustment.
13.2 Unless otherwise expressly provided in an Option Agreement,
upon a Corporate Change (as defined below), notwithstanding any other term of
this Plan, any and all outstanding Options not fully vested and exercisable
shall vest in full and be immediately exercisable, and any other restrictions on
such Options including, without limitation, requirements concerning the
achievement of specific goals shall terminate. The foregoing shall apply to
Incentive Options, unless stated to the contrary in the Option Agreement, even
though the effect may be to convert part of the Option to a Nonqualified Option.
13.3 As used in this Plan, a "Corporate Change" shall be deemed to
have occurred upon, and shall mean (a) the acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 80% or more of either (i) the then
outstanding shares of Stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
the following transactions shall not constitute a Corporate Change: (u) any
acquisition by virtue of the conversion of preferred stock of the Company
outstanding on the effective date hereof; (v) customary
Exhibit 10.1
Page 10 of 14 Pages
<PAGE> 11
transactions with and between underwriters and selling group members with
respect to a bona fide public offering of securities, (w) any acquisition
directly from the Company (excluding an acquisition by virtue of the exercise of
a conversion privilege), (x) any acquisition by the Company, (y) any acquisition
by any employee benefit plan(s) (or related trust(s)) sponsored or maintained by
the Company or any corporation controlled by the Company or (z) any acquisition
by any entity pursuant to a reorganization, merger or consolidation, if,
immediately following such reorganization, merger or consolidation the
conditions described in clauses (i), (ii) and (iii) of clause (b) of this
paragraph are satisfied; or (b) the approval by the stockholders of the Company
of a reorganization, merger or consolidation, in each case, unless immediately
following such reorganization, merger or consolidation (i) more than 60% of,
respectively, the then outstanding shares of common stock (or other equivalent
securities) of the entity resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding voting
securities of such entity entitled to vote generally in the election of
directors (or other similar governing body) is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Company Common Stock and
Outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or consolidation of
the Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding the Company, any employee benefit
plan(s) (or related trust(s)) of the Company and/or its subsidiaries or such
entity resulting from such reorganization, merger or consolidation and any
Person beneficially owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 80% or more of the Outstanding Company
Common Stock or Outstanding Company Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 80% or more of, respectively, the
then outstanding shares of common stock (or other equivalent securities) of the
entity resulting from such reorganization, merger or consolidation or the
combined voting power of the then outstanding voting securities of such entity
entitled to vote generally in the election of directors (or other similar
governing body) and (iii) at least a majority of the members of the board of
directors (or other similar governing body) of the entity resulting from such
reorganization, merger or consolidation were members of the Incumbent Board (as
defined below) at the time of the execution of the initial agreement providing
for such reorganization, merger on consolidation. The "Incumbent Board" shall
mean individuals who as of the effective date hereof constitute the Company's
Board of Directors; provided, however, that any individual becoming a director
subsequent to such date whose election, or nomination for election by the
Company's stockholders, was approved by a vote of
Exhibit 10.1
Page 11 of 14 Pages
<PAGE> 12
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either (i) an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act), or an actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Company's Board of Directors or (ii) a
plan or agreement to replace a majority of the members of the Board of Directors
then comprising the Incumbent Board.
13.4 The Company intends that this Section shall comply with the
requirements of Rule 16b-3 and any future rules promulgated in substitution
therefor under the Exchange Act during the term of the Plan. Should any
provision of this Section not be necessary to comply with the requirements of
Rule 16b-3 or should any additional provisions be necessary for this Section to
comply with the requirements of Rule 16b-3, the Board of Directors may amend the
Plan to add to or modify the provisions of the Plan accordingly.
13.5 Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number, class, or price of
shares of Stock then subject to outstanding Options.
14. TIME OF GRANTING OPTIONS. The date of grant of an Option shall,
for all purposes, be the date on which the Option Committee makes the
determination granting such Option, or such other date as is determined by the
Option Committee. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
15. AMENDMENT AND TERMINATION OF THE PLAN.
15.1 AMENDMENT AND TERMINATION. The Board may at any time amend,
alter, suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made which would impair the rights of any Optionee
under any grant theretofore made, without his or her consent. In addition, to
the extent necessary and desirable to comply with Rule 16b-3 under the Exchange
Act or with Section 422 of the Code (or any other applicable law or regulation,
including the applicable requirements of the NASD or an established stock
exchange), the Company shall
Exhibit 10.1
Page 12 of 14 Pages
<PAGE> 13
obtain stockholder approval of any Plan amendment in such a manner and to such a
degree as required.
15.2 EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
16. CONDITIONS UPON ISSUANCE OF SHARES.
16.1 Shares shall not be issued pursuant to the exercise of an
Option unless the exercise of such Option and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
16.2 As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
17. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
18. INFORMATION TO OPTIONEES. The Company shall provide to each
Optionee, during the period for which such Optionee has one or more Options
outstanding, copies of all annual reports and other information which are
generally provided to all stockholders of the Company. The Company shall not be
required to provide such information to persons whose duties in connection with
the Company assure their access to equivalent information.
19. GOVERNING LAW; CONSTRUCTION. All rights and obligations under the
Plan shall be governed by, and the Plan shall be construed in accordance with,
the laws of the State of Texas without regard to the principals of conflicts of
laws. Titles and headings to Sections herein are for purposes of reference only,
and shall in no way limit, define or otherwise affect the meaning or
interpretation of any provisions of the Plan.
Exhibit 10.1
Page 13 of 14 Pages
<PAGE> 14
ADOPTED by the Directors on March 16, 1998.
APPROVED by the Shareholders on March 16, 1998.
Exhibit 10.1
Page 14 of 14 Pages
<PAGE> 1
EXHIBIT 10.2
FULLER, TUBB, POMEROY,
KIRSCHNER, BICKFORD & STOKES
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
100 NORTH BROADWAY, SUITE 3300
OKLAHOMA CITY, OK 73102-8805
THOMAS J. KENAN TELEPHONE 405-239-3300
Of Counsel FACSIMILE 405-235-3352
E-MAIL [email protected]
March 16, 1998
Ms. Suzanne Peterson
424 NW 21 Street
Oklahoma City, OK 73103
Dear Ms. Peterson:
Re: SuperCorp Inc. and Summit
Technologies, Inc. merger-spinoff
I earlier advised you of a proposed merger-spinoff transaction pursuant
to an agreement that SuperCorp has entered into with Summit Technologies, Inc.,
a Texas company that distributes products manufactured by others, including a
fire suppressant.
We shall soon be filing the necessary registration statements with the
Securities and Exchange Commission.
There is a requirement that I must address at this time. It concerns
the possibility - which is not the probability - that the shareholders of Summit
Technologies, Inc. should vote to disapprove the merger-spinoff proposal.
I enclose several pages of the present draft of the registration
statements being prepared for filing with the Securities and Exchange
Commission. You will see a section entitled "Consequences Should the Merger Not
Occur." Described in this section is a rather complex arrangement which is
required by Rule 419 of the Securities and Exchange Commission. Such rule
relates to companies known as "blank check companies." While the company created
by Supercorp (referred to in the enclosed draft as "the Company") is not a
classic "blank check company" as envisioned by the Securities and Exchange
Commission, I do believe that the Company, prior to the merger, falls under the
requirements of
Exhibit 10.2
Page 1 of 2 Pages
<PAGE> 2
Ms. Suzanne Peterson 2 March 16, 1998
Rule 419. Accordingly, it will be necessary to comply with such rule, and the
rule requires that if the Company does not acquire a business or assets that
would constitute a business within eighteen months after the registration
statement becomes effective, the shares of stock of the Company are not to be
let loose into the public market. I believe that a satisfactory way of complying
with the rule is to have the holders of the majority of the Company's common
stock agree at this time that they will vote to dissolve the Company (remember:
the Company is not SuperCorp but a company created by SuperCorp) if no merger
or business acquisition occurs within eighteen months after the effective date
of the registration statement.
I believe that the enclosed materials explain this matter. A letter
identical to this letter is being sent to persons whose shareholdings of
SuperCorp aggregate more than 50 percent of its outstanding shares and who will
receive more than 50 percent of the shares of the Company whose shares are being
spun off.
I ask that you and each of such persons execute where indicated below a
copy of this letter and return it to me, indicating thereby that, should the
proposed merger between Summit Environmental Corporation, Inc. and Summit
Technologies, Inc. not be effected, and should Summit Environmental Corporation,
Inc. not acquire a business or assets that would constitute a business within
eighteen months after the effective date of the registration statement to be
filed with the Securities and Exchange Commission, you will vote to cause a
dissolution of Summit Environmental Corporation, Inc. or comply with any similar
alternative requirement that might be proposed by the Securities and Exchange
Commission to effect compliance with its Rule 419.
I appreciate your cooperation. Should you not agree to the matters set
forth herein, it is likely that the transaction with Summit Environmental
Corporation, Inc. will have to be abandoned.
Sincerely,
/s/ Thomas J. Kenan
Thomas J. Kenan
The undersigned agrees to the matters set forth in the above letter.
/s/ Suzanne Peterson
- -----------------------------------
Suzanne Peterson
Exhibit 10.2
Page 2 of 2 Pages
<PAGE> 1
EXHIBIT 10.3
LIMITED EXCLUSIVE MARKETING
BILATERAL AGREEMENT
BE IT RESOLVED, that in consideration of the desire of Moonlighting
Distribution Corporation-USA, hereinafter referred to as Grantor, and Summit
Technologies, Inc., hereinafter referred to as Licensee, the parties to this
agreement do hereby agree to the mutual promises and covenants contained herein;
1. Grantor agrees to assign to Licensee limited exclusive
marketing rights to the product Poder Sexual, Ultimate
Stressex and/or Poder 24. The limitation herewith shall be
dependent on a license fee being paid to the Grantor in the
amount of $10,000 by Licensee, and meeting the annual
production schedule contained in exhibit A to this agreement.
Grantor agrees that any new technology or product enhancements
shall transfer in product improvements to the Licensee.
2. Grantor agrees that Licensee may utilize the names Grantor is assigning
Licensee. Further, Grantor gives Licensee the right to develop new
names by which to market the "unique Ultimate Stressex Formulation".
3. Grantor agrees to a unit (Bottle-120 tablets) price of $3.65
for the female formulation and $3.85 for the male formulation.
Grantor retains the right to increase pricing to Licensee only
in the event that such increase would result from increased
manufacturing cost of product because of increased pricing
from one or more of the several ingredients in the formula or
packaging costs. Such increase, if any, would be verifiable
to Licensee.
4. Grantor warrants to Licensee that there shall be no other
sales of this unique formulation except to Licensee, unless
Licensee fails to meet the production quota (Exhibit A
attached hereto) or grandfathered accounts. Those
grandfathered accounts are Moonlighting International-
Philippines, Pannache Salons Limited and a small group of
distributors under a single downline of Dave Price of
Indianapolis, Indiana.
5. Licensee represents that the $10,000 license fee has been solicited for
the purpose of and is being paid for the sole purpose of marketing
exclusively this "unique Stressex formulation." (Subject to the
conditions of paragraph 4) Grantor expressly grants to Licensee the
rights of electronic media, direct sales, retail, mail-order and/or
multi-level sales opportunities.
6. Grantor agrees that this agreement shall remain in effect with
Licensee, their heirs, successors or assigns so long as the
Exhibit 10.3
Page 1 of 2 Pages
<PAGE> 2
production requirements of Exhibit A (attached hereto) are
continually met.
7. In the event of any dispute in connection herewith, THE AMERICAN
ARBITRATION ASSOCIATION, and the laws thereof shall prevail. Court
costs and attorneys fees shall be paid by the non-prevailing party.
8. Grantor agrees that Licensee shall have the first right of refusal on
all products manufactured by Moonlighting Distribution Corporation-USA.
Grantor's role to Licensee shall be that of manufacturer/supplier for
Licensee.
9. Each party hereto stipulates that any and all names, telex,
faxes, or telephone numbers and fax numbers, and any other
matters, arising between the parties and properly identified
as confidential in accordance with paragraph 7, hereto shall
be kept totally confidential and not be further distributed
without permission by the other party to do so. A separate
license fee will be payable for each line (i.e. skin care,
weight loss, herbal, aromatherapy and auto products.)
10. For this agreement to be applicable to a specific matter, the providing
party shall identify the matter to the receiving party in writing
citing this agreement.
11. This agreement may be terminated for just cause as outlined herein and
only by the stipulation set forth in this agreement.
In witness thereof, we have subscribed our names thereto and agree that this
agreement became effective the 6th day of October, 1997.
For Moonlighting Distribution For Summit Technologies, Inc.
Corporation-USA
/s/ Paula Parker /s/ B. Keith Parker
Paula Parker, President B. Keith Parker, Chairman/CEO
State of Texas
County of Gregg
This Instrument was acknowledged before me on 10-6-97 by Keith Parker and Paula
Parker.
/s/ Jennifer L. Woolbert
(Seal) Notary Public, State of Texas
My commission expires 7-25-2001
Exhibit 10.3
Page 2 of 2 Pages
<PAGE> 1
EXHIBIT 10.4
LIMITED EXCLUSIVE MARKETING
BILATERAL AGREEMENT
BE IT RESOLVED, that in consideration of the desire of B. Keith Parker,
individually and as Chairman-of-the-board and CEO of Moonlighting Distribution
Corporation-USA dba Moonlighting International, hereinafter referred to as
Grantor, and Summit Technologies, Inc., hereinafter referred to as Licensee, the
parties to this agreement do hereby agree to the mutual promises and covenants
contained herein;
1. Grantor agrees to assign to Licensee limited exclusive
marketing rights to the product FireKare, FirePower 911, Super
Cold Fire, Flame Out. The limitation herewith shall be
dependent on a license fee being paid to the Grantor in the
amount of $10,000 by Licensee, and meeting the annual
production schedule contained in exhibit A to this agreement.
Grantor agrees that any new technology or product enhancements
shall transfer in product improvements to the Licensee.
(Exhibit A shall consist of the exact provisions granted Keith
Parker/Moonlighting International by BioGenesis Enterprises,
Inc.)
2. Grantor agrees that Licensee may utilize the names Grantor is assigning
to Licensee, more specifically Moonlighting International. Further,
Grantor gives Licensee the right to develop new names by which to
market the product. Names being assigned by virtue of this agreement
are FireKare, FirePower 911TM, Super Cold FireTM and/or Flame OutTM.
3. Grantor agrees to a unit pricing based on the Pricing Schedule
Exhibit B. Grantor retains the right to increase pricing to
Licensee only in the event that such increase would result
from increased manufacturing cost of product because of
increased pricing from BioGenesis Inc. or packaging costs.
Such increase, if any, would be verifiable to Licensee.
Exhibit B shall consist of the exact same pricing provision
granted Keith Parker/Moonlighting International by BioGenesis
Enterprises, Inc.
4. Grantor warrants to Licensee that there shall be no other sales of this
unique formulation except to Licensee, unless Licensee fails to meet
the production quota or grandfathered accounts. This grandfathered
account is Moonlighting International-Philippines for FirePower 911TM
cans.
5. Licensee represents that the $10,000 license fee has been solicited and
is being paid for the sole purpose of marketing exclusively this
FireKare, FirePower 911TM, Super Cold FireTM and/or FlameOutTM.
(subject to conditions in paragraph 4) Grantor expressly grants to
Licensee the rights of electronic
Exhibit 10.4
Page 1 of 3 Pages
<PAGE> 2
media, direct sales, retail, mail-order and/or multi-level sales
opportunities. Direct Sales shall be so broad in scope that this will
cover any type of marketing endeavor.
6. Grantor agrees that this agreement shall remain in effect with
Licensee, their heirs, successors or assigns so long as the production
requirements of Exhibit A are continually met.
7. In the event of any dispute in connection herewith, The AMERICAN
ARBITRATION ASSOCIATION, and the laws thereof shall prevail. Court
costs and attorneys fees shall be paid by the non-prevailing party.
8. Grantor agrees that Licensee shall have the first right of refusal on
all products manufactured by Moonlighting Distribution Corporation-USA
with exception of the Pannache by Paula skin care line. Grantor's role
to Licensee shall be that of manufacturer/supplier for Licensee.
9. Each party hereto stipulates that any and all names, telex, faxes, or
telephone numbers and fax numbers, and any other matters, arising
between the parties and properly identified as confidential in
accordance with paragraph 7, hereto shall be kept totally confidential
and not be further distributed without permission by the other party to
do so.
10. For this agreement to be applicable to a specific matter, the providing
party shall identify the matter to the receiving party in writing
citing this agreement.
11. This agreement may be terminated for just cause as outlined herein and
only by the stipulations set forth in this agreement.
In witness thereof, we have subscribed our names thereto and agree that this
agreement became effective the 6th of October, 1997.
For Moonlighting Distribution For Summit Technologies, Inc.
Corporation-USA
/s/ Paula Parker /s/ B. Keith Parker
Paula Parker, President B. Keith Parker, Chairman/CEO
Individually
/s/ B. Keith Parker
B. Keith Parker, Individually
Exhibit 10.4
Page 2 of 3 Pages
<PAGE> 3
State of Texas
County of Gregg
This Instrument was acknowledged before me on 10-6-97 by Keith Parker and Paula
Parker.
/s/ Jennifer L. Woolbert
(Seal) Notary Public, State of Texas
My commission expires 7-25-2001
Exhibit 10.4
Page 3 of 3 Pages
<PAGE> 1
EXHIBIT 23
FULLER, TUBB, POMEROY,
KIRSCHNER, BICKFORD & STOKES
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
100 NORTH BROADWAY, SUITE 3300
OKLAHOMA CITY, OK 73102-8805
THOMAS J. KENAN TELEPHONE 405-239-3300
Of Counsel FACSIMILE 405-235-3352
E-MAIL [email protected]
March 20, 1998
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
Suite 202
4334 Northwest Expressway
Oklahoma City, OK 73112
Re: Summit Environmental Corporation, Inc.
Dear Mr. Welsh:
The undersigned is named in the Forms SB-2 and S-4 Registration
Statements of Summit Environmental Corporation, Inc. (the "Company"), a Texas
corporation, which registration statements are to be filed with the Securities
and Exchange Commission in connection with a proposed merger with Summit
Technologies, Inc., a Texas corporation, and a distribution by SuperCorp Inc.,
an Oklahoma corporation, of certain of the shares of common stock of the
Company to the shareholders of SuperCorp Inc. The capacity in which the
undersigned is named in such SB-2 and S-4 Registration Statements is that of
counsel to the Company and as a person who has given an opinion on the validity
of the securities being registered and upon other legal matters concerning the
registration or offering of the securities described therein.
The undersigned hereby consents to being named in such SB-2 and S-4
Registration Statements in the capacity therein described.
Sincerely,
/s/ Thomas J. Kenan
Thomas J. Kenan
Exhibit 23
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.1
GARNER & LAWRENCE, LLP
Certified Public Accountants
3445 Highland Road
Dallas, TX 75228
214-324-3457
Fax 214-324-9975
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 5, 1998, with
respect to the financial statements of Summit Technologies, Inc. included in
two Registration Statements (Form SB-2 and Form S-4) and related Prospectus of
Summit Environmental Corporation, Inc. for the registration of 500,000 common
shares (Form SB-2) and five million common shares (Form S-4).
/s/ Garner & Lawrence, LLP
by Brett Lawrence, Partner
----------------------------------------
Garner & Lawrence, LLP
March 17, 1998
Exhibit 23.1
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.2
HOGAN & SLOVACEK
A Professional Corporation
Certified Public Accountants
Harvey Parkway
301 N.W. 63rd, Suite 290
Oklahoma City, OK 73116
Office (405) 848-2020 Fax (405) 848-7359
INDEPENDENT AUDITOR'S CONSENT
We consent to the use of our report dated March 17, 1998, with respect
to the financial statements of Summit Environmental Corporation, Inc. included
in two Registration Statements (Forms SB-2 and Form S-4) of Summit
Environmental Corporation, Inc.
/S/ HOGAN & SLOVACEK
Oklahoma City, Oklahoma
March 17, 1998
Exhibit 23.2
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.3
B. KEITH PARKER
414 East Loop 281, Suite 14
Longview, TX 75605
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
Dear Mr. Welsh:
The undersigned consents to serve as a director of Summit Environmental
Corporation, Inc. should the proposed merger between it and Summit
Technologies, Inc. be approved and effected. Further, the undersigned consents
to being named in Form SB-2 and Form S-4 Registration Statements filed with the
Securities and Exchange Commission as a person who will so serve as a director.
Sincerely,
/s/ B. Keith Parker
B. Keith Parker
Dated: March 17, 1998
Exhibit 23.3
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.4
DON HENDON
414 East Loop 281, Suite 14
Longview, TX 75605
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
Dear Mr. Welsh:
The undersigned consents to serve as a director of Summit Environmental
Corporation, Inc. should the proposed merger between it and Summit
Technologies, Inc. be approved and effected. Further, the undersigned consents
to being named in Form SB-2 and Form S-4 Registration Statements filed with the
Securities and Exchange Commission as a person who will so serve as a director.
Sincerely,
/s/ Don Hendon
Don Hendon
Dated: March 17, 1998
Exhibit 23.4
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.5
PAULA PARKER
414 East Loop 281, Suite 14
Longview, TX 75605
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
Dear Mr. Welsh:
The undersigned consents to serve as a director of Summit Environmental
Corporation, Inc. should the proposed merger between it and Summit
Technologies, Inc. be approved and effected. Further, the undersigned consents
to being named in Form SB-2 and Form S-4 Registration Statements filed with the
Securities and Exchange Commission as a person who will so serve as a director.
Sincerely,
/s/ Paula Parker
Paula Parker
Dated: March 17, 1998
Exhibit 23.5
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.6
DEAN HAWS
P. O. Box 1071
Gilmer, TX 75644
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
Dear Mr. Welsh:
The undersigned consents to serve as a director of Summit Environmental
Corporation, Inc. should the proposed merger between it and Summit
Technologies, Inc. be approved and effected. Further, the undersigned consents
to being named in Form SB-2 and Form S-4 Registration Statements filed with the
Securities and Exchange Commission as a person who will so serve as a director.
Sincerely,
/s/ Dean Haws
Dean Haws
Dated: March 18, 1998
Exhibit 23.6
Page 1 of 1 Page
<PAGE> 1
EXHIBIT 23.7
TY BISHOP
Suite 194
660 Preston Forest Center
Dallas, TX 75230
Albert L. Welsh, President
Summit Environmental Corporation, Inc.
4334 N.W. Expressway, Suite 202
Oklahoma City, OK 73116
Dear Mr. Welsh:
The undersigned consents to serve as a director of Summit Environmental
Corporation, Inc. should the proposed merger between it and Summit
Technologies, Inc. be approved and effected. Further, the undersigned consents
to being named in Form SB-2 and Form S-4 Registration Statements filed with the
Securities and Exchange Commission as a person who will so serve as a director.
Sincerely,
/s/ Ty Bishop
Ty Bishop
Dated: March 17, 1998
Exhibit 23.7
Page 1 of 1 Page
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