PART II
ITEM. 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON STOCK AND
OTHER SHAREHOLDER MATTERS.
The Company's Common Stock is traded on the NASDAQ's OTC Bulletin Board
under the symbol "ALIM". The high and low closing bid information for the
Company's Common Stock during the years ended May 31, 1997 and 1998, as well as
the interim nine-month period ended February 28, 1999, is based on information
received from Bloomberg, L.P.
High Low
---- ---
Year Ended May 31, 1997: .0001 .0001
Quarter ended May 31, 1997....................... * *
Quarter ended February 28, 1997.................. .0001 .0001
Quarter ended November 30, 1996.................. * *
Quarter ended August 31, 1996.................... * *
Year Ended May 31, 1998: * *
Quarter ended May 31, 1998....................... * *
Quarter ended February 28, 1998.................. * *
Quarter ended November 30, 1997.................. * *
Quarter ended August 31, 1997.................... * *
Nine Months ended February 28, 1999: .13 1/32
Quarter ended February 28, 1999.................. .13 1/32
Quarter ended November 28, 1998.................. * *
Quarter ended August 31, 1998.................... * *
* Indicates a period in which no trades took place and for which no
bid prices were posted.
II-1
<PAGE>
The quotations reflect inter-dealer price, without mark-up, mark-down
or commission and may not represent actual transactions. The stock is thinly
traded and transactions in the stock are sporadic and infrequent.
As of March 31, 1999, there were 773 shareholders of record of the
Company's common stock and 0 holders of the Company's preferred stock.
The Company has not declared or paid any cash dividends on its common
stock and does not intend to declare or pay any cash dividends in the
foreseeable future. The payment of dividends, if any, is within the discretion
of the Board of Directors and will depend on the Company's earnings, if any, its
capital requirements, and financial condition and other such factors as the
Board of Directors may consider.
ITEM 2. LEGAL PROCEEDINGS.
None
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS.
Effective April 13, 1999 the Company's Board of Directors approved the
engagement of BDO Seidman, LLP to serve as the Company's independent public
accountants and to conduct the audit of the Company's financial statements for
the ensuing fiscal year end. In connection with the engagement of BDO Seidman,
LLP, the Company dismissed Corbin & Wertz, who had been engaged to audit the
Company's financial statements for the prior fiscal years. The audit reports
provided by Corbin & Wertz for the fiscal years ended May 31, 1998 and 1997 did
not contain any adverse opinion or disclaimer of opinion nor was any report
modified as to uncertainty, audit scope or accounting principles. There have
been no past disagreements between the Company and Corbin & Wertz on any matter
of accounting principles or practices, financial statement disclosure or
auditing, scope or procedure.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During fiscal 1999 the Company issued 1,916,429 shares of common stock
to Biomerica in exchange for debt of $134,150. The shares were issued in private
transactions pursuant to the exemption available under Section 4(2) of the
Securities Act of 1933, as amended, and other applicable exemptions from
registration and qualification under federal and state securities laws.
During fiscal 1998 the Company issued 30,000 shares of common stock to
the then president of the Company for services rendered and 5,000 to an employee
for services rendered. The shares were issued in private transactions pursuant
to the exemption from registration available under Section 4(2) of the
Securities Act of 1933, as amended, and other applicable exemptions from
registration and qualification under federal and state securities laws.
During fiscal 1997 the Company issued 400,000 shares of common stock to
directors of the Company for services rendered. The shares were issued in
private transactions pursuant to the exemption from registration available under
Section 4(2) of the Securities Act of 1933, as amended, and other applicable
exemptions from registration and qualification under federal and state
securities laws.
II-2
<PAGE>
ITEM 5. INDEMNIFICATION AND LIMITATION OF LIABILITY OF DIRECTORS
The Certificate of Incorporation limits the liability of directors and
officers to the fullest extent permitted under Delaware General Corporation Law.
As allowed by Delaware Revised Statutes, the Certificate of Incorporation and
Bylaws of the Company provide that the liability of the directors of the Company
for monetary damages shall be eliminated to the fullest extent permissible under
Delaware law. This is intended to eliminate the personal liability of a director
for monetary damages in an action brought by or in the right of the Company for
breach of a director's duties to the Company or its shareholders except for
liability for acts or omissions that involve intentional misconduct or knowing
and culpable violation of law, for acts or omissions that a director believes to
be contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, for any
transaction from which a director derived an improper personal benefit, for acts
or omissions that show a reckless disregard for the director's duty to the
Company or its shareholders in circumstances in which the director was aware, or
should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Company or its shareholders, for acts
or omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its shareholders, with
respect to certain contracts in which a director has a material financial
interest and for approval of certain improper distributions to shareholders or
certain loans or guarantees. This provision does not limit or eliminate the
rights of the Company or any shareholder to seek non-monetary relief such as an
injunction or rescission in the event of a breach of a director's duty of care.
II-3
<PAGE>
PART F/S
FINANCIAL STATEMENTS
See "Index to Consolidated Financial Statements" for a listing of the
consolidated financial statements filed with this Form 10-SB.
II-4
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
FINANCIAL STATEMENTS
AS OF FEBRUARY 28, 1999 (UNAUDITED) AND MAY 31, 1998 AND 1997
AND FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED)
AND 1998 (UNAUDITED) AND EACH OF
THE YEARS ENDED MAY 31, 1998 AND 1997
WITH
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT THEREON
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors
Allergy Immuno Technologies, Inc.
We have audited the accompanying balance sheets of Allergy Immuno Technologies,
Inc. (the "Company") as of May 31, 1998 and 1997, and the related statements of
operations, shareholders' equity (deficit) and cash flows for the years then
ended. 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 audits.
We conducted our audits 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 audits provide 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 Allergy Immuno Technologies,
Inc. as of May 31, 1998 and 1997, and the results of its operations and its cash
flows for the years then ended in conformity with generally accepted accounting
principles.
CORBIN & WERTZ
Irvine, California
June 29, 1998
3
<PAGE>
<TABLE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
BALANCE SHEET
=================================================================================================================
<CAPTION>
FEBRUARY 28,
1999 May 31, May 31,
(UNAUDITED) 1998 1997
----------------- ----------------- -----------------
ASSETS
<S> <C> <C> <C>
CURRENT ASSETS
Cash $ - $ 3,562 $ 3,385
Accounts receivable, less allowance
for doubtful accounts of $11,185 at
February 28, 1999 (unaudited), $11,482
and $19,833, at May 31, 1998 and 1997,
respectively, 13,410 24,542 21,319
Inventory 7,029 7,011 8,607
Prepaid and other current assets 1,907 3,471 5,066
----------------- ----------------- -----------------
TOTAL CURRENT ASSETS 22,346 38,586 38,377
----------------- ----------------- -----------------
Fixed assets, net of accumulated
depreciation of $43,720 at February 28,
1999 (unaudited), and $42,304 and $41,640
at May 31, 1998 and 1997, respectively 220 1,636 1,764
Land held for investment 46,000 46,000 46,000
Patents, net of accumulated amortization of $4,466 at February 28, 1999
(unaudited), $3,746 and $2,800 at May 31, 1998 and
1997, respectively 12,804 13,524 11,009
----------------- ----------------- -----------------
$ 81,370 $ 99,746 $ 97,150
================= ================= =================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS.
<PAGE>
<TABLE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
BALANCE SHEET
=================================================================================================================
<CAPTION>
FEBRUARY 28,
1999 May 31, May 31,
(UNAUDITED) 1998 1997
----------------- ----------------- -----------------
LIABILITIES AND SHAREHOLDERS' DEFICIT
<S> <C> <C> <C>
CURRENT LIABILITIES
Bank overdraft $ 690 $ - $ -
Accounts payable and accrued expenses 5,603 5,581 15,340
Due to affiliate 183,366 143,605 134,816
----------------- ----------------- -----------------
TOTAL LIABILITIES 189,659 149,186 150,156
----------------- ----------------- -----------------
SHAREHOLDERS' DEFICIT
Preferred stock, par value $1.00 per share;
100,000 shares authorized; no shares
issued and outstanding - - -
Common stock, par value $.001 per share;
50,000,000 shares authorized; 17,170,390, 15,253,961 and 15,218,961 shares
issued and outstanding at February 28, 1999 (unaudited),
May 31, 1998 and 1997, respectively 17,170 15,254 15,219
Common stock subscribed, 1,916,429 shares
subscribed at May 31, 1998 - 1,916 -
Additional paid-in capital 1,777,388 1,777,388 1,642,739
Accumulated deficit (1,902,847) (1,843,998) (1,710,964)
----------------- ----------------- -----------------
Total shareholders' deficit (108,289) (49,440) (53,006)
----------------- ----------------- -----------------
$ 81,370 $ 99,746 $ 97,150
================= ================= =================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS.
4
<PAGE>
<TABLE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
STATEMENT OF OPERATIONS
====================================================================================================================
<CAPTION>
FOR THE NINE MONTHS ENDED For the Years Ended
FEBRUARY 28, May 31,
----------------------------------- -----------------------------------
1999 1998
(UNAUDITED) (UNAUDITED) 1998 1997
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
NET SALES $ 53,619 $ 69,425 $ 99,071 $ 151,162
COST OF SALES 64,465 79,344 106,051 127,858
----------------- ----------------- ----------------- -----------------
GROSS PROFIT (LOSS) (10,846) (9,919) (6,980) 23,304
----------------- ----------------- ----------------- -----------------
OPERATING EXPENSES:
General and administrative 47,982 103,210 125,708 95,192
Research and development 300 - 39 12,933
----------------- ----------------- ----------------- -----------------
TOTAL OPERATING EXPENSES 48,282 103,210 125,747 108,125
----------------- ----------------- ----------------- -----------------
OPERATING LOSS (59,128) (113,129) (132,727) (84,821)
OTHER INCOME, NET 279 15 493 7,785
----------------- ----------------- ----------------- -----------------
LOSS BEFORE INCOME TAXES (58,849) (113,114) (132,234) (77,036)
INCOME TAX EXPENSE - - 800 800
----------------- ----------------- ----------------- -----------------
NET LOSS $ (58,849) $ (113,114) $ (133,034) $ (77,836)
================= ================= ================= =================
PER SHARE DATA:
NET LOSS $ (.00) $ (.01) $ (.01) $ (.01)
================= ================= ================= =================
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 17,170,390 15,220,419 15,389,080 14,885,628
================= ================= ================= =================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS.
5
<PAGE>
<TABLE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
STATEMENTS OF SHAREHOLDERS' DEFICIT
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
====================================================================================================================================
<CAPTION>
COMMON STOCK COMMON STOCK SUBSCRIBED
-------------------------- -------------------------- ADDITIONAL TOTAL
PAID-IN ACCUMULATED SHAREHOLDERS'
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT EQUITY(DEFICIT)
------------- ------------ -------------- ------------- ------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balances at June 1, 1996 14,818,961 $ 14,819 - $ - $ 1,639,139 $ (1,633,128) $ 20,830
Issuance of stock for services 400,000 400 - - 3,600 - 4,000
Net loss - - - - - (77,836) (77,836)
------------- ------------ -------------- ------------- ------------- ------------- ---------------
Balances at May 31, 1997 15,218,961 15,219 - - 1,642,739 (1,710,964) (53,006)
Issuance of stock for services 35,000 35 - - 2,415 - 2,450
Common stock subscribed
in exchange for debt - - 1,916,429 1,916 132,234 - 134,150
Net loss - - - - - (133,034) (133,034)
------------- ------------ -------------- ------------- ------------- ------------- ---------------
Balances at May 31, 1998 15,253,961 15,254 1,916,429 1,916 1,777,388 (1,843,998) (49,440)
Issuance of stock (unaudited) 1,916,429 1,916 (1,916,429) (1,916) - - -
Net loss (unaudited) (58,849) (58,849)
------------- ------------ -------------- ------------- ------------- ------------- ---------------
Balances at February 28,
1999 (unaudited) 17,170,390 $ 17,170 - $ - $ 1,777,388 $ (1,902,847) $ (108,289)
============= ============ ============== ============= ============= ============= ===============
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS.
6
<PAGE>
<TABLE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
STATEMENTS OF CASH FLOWS
============================================================================================================================
<CAPTION>
For the Nine Months Ended For the Years Ended
February 28, May 31,
---------------------------------- ----------------------------------
1999 1998
(Unaudited) (Unaudited) 1998 1997
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (58,849) $ (113,114) $ (133,034) $ (77,836)
Adjustments to reconcile net loss to
net cash used in operating activities:
Depreciation and amortization 2,136 2,188 1,609 2,835
Stock issued for services - 2,450 2,450 4,000
Provision for allowance for
doubtful accounts (297) 1,000 (8,351) -
Changes in operating assets
and liabilities:
Accounts receivable 11,429 (9,218) 5,128 2,374
Inventory (18) - 1,596 (2,163)
Prepaid and other current assets 1,564 (938) 1,595 (28)
Accounts payable and accrued
Expenses 22 (7,604) (9,759) 3,732
--------------- --------------- --------------- ---------------
Net cash used in operating activities (44,013) (125,236) (138,766) (67,086)
--------------- --------------- --------------- ---------------
Cash flows from investing activities:
Purchase of property - (535) (535) -
Increase in patents - (3,461) (3,461) -
--------------- --------------- --------------- ---------------
Net cash used in investing activities - (3,996) (3,996) -
--------------- --------------- --------------- ---------------
Cash flows from by financing activities:
Bank overdraft 690 - - -
Advances from affiliate 39,761 126,827 142,939 45,404
--------------- --------------- --------------- ---------------
Net cash provided by financing activities 40,451 126,827 142,939 45,404
--------------- --------------- --------------- ---------------
Net change in cash (3,562) (2,405) 177 (21,682)
Cash at beginning of period 3,562 3,385 3,385 25,067
--------------- --------------- --------------- ---------------
Cash at end of period $ - $ 980 $ 3,562 $ 3,385
=============== =============== =============== ===============
Supplemental disclosure of cash Information : Cash paid during the period for:
Interest $ - $ - $ - $ -
=============== =============== =============== ===============
Income taxes $ - $ - $ 800 $ 800
=============== =============== =============== ===============
</TABLE>
Supplemental schedule of non-cash financing activities:
During 1998, the Company agreed to issue 1,916,429 common shares as partial
repayment of amounts owed to Biomerica totaling $134,150. Such shares were
issued during the nine month period ended February 28, 1999 (unaudited).
See accompanying notes to financial statements
7
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
- ---------------------------------------------------
Organization
- ------------
Allergy Immuno Technologies, Inc. (the "Company") provides specialized
diagnostic testing services to physicians and clinics located throughout the
United States. The Company is a majority-owned subsidiary of Biomerica and has
historically received support for operations and management from Biomerica.
Biomerica has agreed to provided continued financial and management support, if
necessary, through the end of the Company's 2000 fiscal year.
Accounts Receivable
- -------------------
Accounts receivable consists of fees due the Company for testing provided to
various physicians, clinics and unrelated companies. The Company extends credit
to its customers and generally performs ongoing credit evaluations of such
customers. The Company does not require collateral to secure its accounts
receivable. The Company maintains reserves for potential credit losses based on
the Company's historical experience related to credit losses.
Inventory
- ---------
Inventory, comprised principally of various chemicals and testing kits, is
stated at the lower of cost (first-in, first-out method) or market. Market is
determined by comparison with recent purchases or net realizable value.
Fixed Assets
- ------------
Fixed assets, which are primarily comprised of furniture and fixtures, are
recorded at cost and depreciated using the straight-line method over the
estimated useful lives of the assets, which are generally from three to five
years. Depreciation expense included in the accompanying statements of
operations totaled $1,416 and $1,482, for the nine months ended February 28,1999
(unaudited) and 1998 (unaudited), respectively, and $663 and $2,235 for the
years ended May 31, 1998 and 1997, respectively. Expenditures for additions and
major improvements are capitalized. Repairs and maintenance costs are charged to
operations as incurred.
8
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
Patents
- -------
The Company holds certain patents which are amortized on a straight-line basis
over 17 years. Amortization expense included in the accompanying statements of
operations amounted to $720 and $706, for the nine months ended February 28,
1999 (unaudited) and 1998 (unaudited) respectively, and $946 and $600 for the
years ended May 31, 1998 and 1997, respectively.
Revenue Recognition
- -------------------
Revenue is recognized upon completion of the diagnostic testing services.
Advertising Costs
- -----------------
The Company reports the costs of all advertising as expense in the period in
which those costs are incurred. Advertising costs were $0 for the nine months
ended February 28, 1999 (unaudited) and 1998 (unaudited), and $63 and $0 for the
years ended May 31, 1998 and 1997, respectively.
Income Taxes
- ------------
The Company accounts for income taxes in accordance with Statement of Financial
Accounting Standards No. 109, "ACCOUNTING FOR INCOME TAXES." Under the asset and
liability method of Statement No. 109, deferred tax assets and liabilities are
recognized for the future tax consequences attributable to differences between
the financial statement carrying amounts of existing assets and liabilities and
their respective tax bases. Deferred tax assets and liabilities are measured
using enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. Under
Statement No. 109, the effect on deferred tax assets and liabilities of a change
in tax rates is recognized in income in the period that includes the enactment
date. A valuation allowance is provided for certain deferred tax assets if it is
more likely than not that the Company will not realize tax assets through future
operations.
9
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
Accounting Estimates
- --------------------
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reported period. Actual
results could materially differ from those estimates.
Stock-based Compensation
- ------------------------
During 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 123 ("SFAS 123"), "ACCOUNTING FOR STOCK-BASED
COMPENSATION", which defines a fair value based method of accounting for
stock-based compensation. However, SFAS 123 allows an entity to continue to
measure compensation cost related to stock and stock options issued to employees
using the intrinsic method of accounting prescribed by Accounting Principles
Board Opinion No. 25 ("APB 25"), "ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES".
Entities electing to remain with the accounting method of APB 25 must make pro
forma disclosures of net income and earnings per share, as if the fair value
method of accounting defined in SFAS 123 had been applied. The Company has
elected to account for its stock-based compensation to employees under APB 25.
Fair Value of Financial Instruments
- -----------------------------------
The Company has financial instruments whereby the fair market value of the
financial instruments could be different than that recorded on a historical
basis on the accompanying balance sheets. The Company's financial instruments
consist of cash, accounts receivable and accounts payable. The carrying amounts
of the Company's financial instruments approximate their fair values at May 31,
1998.
10
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
Interim Accounting Policy
- -------------------------
In the opinion of the Company's management, the accompanying unaudited financial
statements include all adjustments, consisting of only normal recurring
adjustments, necessary for a fair presentation of the balance sheet of the
Company and the statement of operations and cash flows as of and for the nine
months ended February 28, 1999 and 1998, respectively. The statement of
operations for the nine months ended February 28, 1999 are not necessarily
indicative of results of operations to be expected for the year ended May 31,
1999.
Accounting for the Impairment of Long-lived Assets
- --------------------------------------------------
The Company follows the guidance under Statement of Financial Accounting
Standards 121, "ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND FOR
LONG-LIVED ASSETS TO BE DISPOSED OF", ("SFAS 121"). SFAS 121 requires impairment
losses to be recorded on long-lived assets used in operations when indicators of
impairment are present and the undiscounted cash flows estimated to be generated
by those assets are less than the assets' carrying amount. SFAS 121 also
addresses the accounting for long-lived assets that are expected to be disposed
of. Management has determined that there is no impairment of long-lived assets
as of May 31, 1998, and February 28, 1999.
Concentration of Credit Risk
- ----------------------------
The Company provides credit in the normal course of business to customers
throughout the United States and foreign markets. The Company performs ongoing
credit evaluations of its customers. The Company does not obtain collateral with
which to secure its accounts receivable. The Company maintains reserves for
potential credit losses based upon the Company's historical experience related
to credit losses.
11
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
During the nine months ended February 28, 1999, the Company had one major
customer that accounted for approximately 29% of net sales (unaudited). During
the nine months ended February 28, 1998, the Company had one major customer that
accounted for approximately 20% of net sales (unaudited). During the year ended
May 31, 1998, the Company had two major customers which accounted for
approximately 33% and 20% of net sales, respectively. During the year ended May
31, 1997, the Company had three major customers which accounted for
approximately 11%, 11% and 23% of net sales, respectively.
At February 28, 1999, the Company was owed $4,235 and $2,814 or 32% and 21%,
respectively of net accounts receivable from two customers (unaudited). At May
31, 1998, the Company was owed $13,427 or 55% of net accounts receivable from
one customer. At May 31, 1997, the Company was owed $11,510 or 54% of net
accounts receivable from one customer.
Loss Per Share
- --------------
Loss per share is computed using the weighted average number of common and
common equivalent shares, if any, outstanding during each year.
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standards No. 128, "EARNINGS PER SHARE" ("SFAS 128"). SFAS 128 is
primarily a disclosure standard which requires public companies to present basic
earnings per share (EPS) and, if applicable, diluted earnings per share, instead
of primary and fully diluted earnings per share. Basic EPS is computed by
dividing net income for the year by the weighted average number of shares of
common stock outstanding during the year. The weighted average number of shares
of common stock outstanding for the nine months ended February 28, 1999 totaled
17,170,390 (unaudited) and the weighted average number of shares of common stock
outstanding and subscribed for the nine months ended February 28, 1998 totaled
15,220,419 (unaudited). The weighted average number of shares of common stock
outstanding and subscribed for fiscal 1998 totaled 15,389,080 and the weighted
average number of shares of common stock outstanding for fiscal 1997 totaled
14,885,628. Diluted EPS is computed by dividing net income for the year by the
weighted average number of shares of common stock and common stock equivalents
outstanding during the year. The diluted EPS for fiscal 1998 and 1997 are equal
to the basic EPS for these periods.
12
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
Limitations On Dividends
- ------------------------
Pursuant to state laws, the Company is currently restricted, and may be
restricted for the foreseeable future, from making dividends to its stockholders
as a result of its accumulated deficit as of May 31, 1998.
Hazardous Materials
- -------------------
The Company's research and development involves the controlled use of hazardous
materials and chemicals. Although the Company believes that safety procedures
for handling and disposing of such materials comply with the standards
prescribed by state and Federal regulations, the risk of accidental
contamination or injury from these materials cannot be completely eliminated. In
the event of such an accident, the Company could be held liable for any damages
that result and any such liability could exceed the resources of the Company.
The Company may incur substantial costs to comply with environmental
regulations.
13
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued
- --------------------------------------------------------------
New Accounting Pronouncements
- -----------------------------
In June 1997, the FASB issued SFAS No. 130,"REPORTING COMPREHENSIVE INCOME", and
SFAS No. 131, "DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED
INFORMATION". SFAS No. 130 requires that an enterprise report, by major
components and as a single total, the change in its net assets during the period
from nonowner sources; and SFAS No. 131 establishes annual and interim reporting
standards for an enterprise's operating segments and related disclosures about
its products, services, geographic areas and major customers. Adoption of these
statements will not impact the Company's financial position, results of
operations or cash flows and any effect will be limited to the form and content
of its disclosures. Both statements are effective for fiscal years beginning
after December 15, 1997, with earlier application permitted. SFAS No. 130 is
applicable to interim financial statements. However, the Company has no elements
of other comprehensive income.
NOTE 2 - LAND HELD FOR INVESTMENT
- ---------------------------------
Land held for investment consists of a parcel of land located in the state of
Utah, and is stated at the lower of cost or market.
NOTE 3 - SHAREHOLDERS' EQUITY
- -----------------------------
The Company's authorized equity capitalization consists of 50,000,000 shares of
voting Common Stock, par value $.001 and 100,000 shares of preferred stock, par
value $1.00 per share. As of May 1, 1999, there were 17,170,390 shares of Common
Stock issued and outstanding.
Holders of common stock are entitled to receive dividends when, as and if
declared by the board of directors, out of funds legally available therefor.
There have been no dividends declared and management does not anticipate any
dividends in the near future due to lack of funds. Dividends on any outstanding
shares of preferred stock may be required to be paid in full before payment of
any dividends on the common stock. Upon liquidation, dissolution or winding up
of the Company, holders of common stock are entitled to share ratably in assets
available for distribution after payment of all debts and other liabilities and
subject to the prior rights of any holders of any preferred stock then
outstanding.
Holders of common stock are entitled to one vote per share with respect to all
matters submitted to a vote of shareholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the common stock entitled to vote
in any election of directors may elect all of the directors standing for
election, subject to the voting rights (if any) of any preferred stock that may
be outstanding. The Company's Articles of Incorporation and Bylaws contain no
restrictions on the repurchase by the company of shares of the common stock or
preferred stock. All the outstanding shares of common stock are, and additional
shares of common stock will be, when, issued, validly issued, fully paid and
nonassessable.
The Company is authorized to issue up to 100,000 shares of Preferred Stock, par
value $1.00 per share, the rights, preference and privileges of which may be
determined from time to time by the Board of Directors. The Board of directors
is authorized to designate with respect to each series of preferred stock the
number of shares in each such series, the dividend rates and dates of payment,
voluntary and involuntary liquidation preferences, redemption prices, if any,
whether or not dividends shall be cumulative and, if cumulative, the date or
dates from which the same shall be cumulative, the sinking fund provisions if
any, and the terms and conditions on which shares can be converted into or
14
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 3 - SHAREHOLDERS' EQUITY, continued
- ----------------------------------------
exchanged for shares of another class or series, and the voting rights, if any.
As of the date hereof, there were no shares of Preferred Stock issued and
outstanding. Any preferred stock issued will rank prior to the common stock as
to dividends and as to distributions in the event of liquidation, dissolution or
winding up of the Company. The ability of the Board of Directors to issue
preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other things, adversely
affect the voting powers of holders of Common Stock. The Preferred Stock will,
when issued, be fully paid and nonassessable.
Stock Option Plan
- -----------------
The Company has an incentive stock option plan under which the Company may grant
options to employees, directors, technical advisors and consultants to purchase
up to an aggregate of 1,500,000 shares of the Company's common stock at prices
not less than the fair market value of the common stock at the date of grant.
The plan expired in fiscal 1996.
Stock Issuances
- ---------------
During fiscal 1997, the Company issued 400,000 shares of common stock for
services. The services were valued at $4,000.
During fiscal 1998, the Company issued 35,000 shares of common stock for
services. The services were valued at $2,450.
During fiscal 1998, 1,916,429 shares of the Company's previously unissued common
stock were issued to Biomerica, Inc., the Company's parent, as partial repayment
of amounts loaned to the Company (see Note 5).
Stock Options
- -------------
During fiscal 1998, the Company agreed to grant options to purchase
1,135,000 shares of common stock to various employees and directors of AIT,
including an option to purchase 250,000 shares granted to Biomerica, Inc., the
parent company. The exercise price will be the fair value of AIT's common stock
on the date granted when certain conditions are met, as defined. The options
will be exercisable over five years beginning on the grant date.
NOTE 4 - INCOME TAXES
- ---------------------
The tax effect of temporary differences that give rise to significant portions
of the deferred tax assets are presented below:
15
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 4 - INCOME TAXES, continued
- --------------------------------
<TABLE>
<CAPTION>
FEBRUARY 28, 1999 MAY 31, MAY 31,
(unaudited) 1998 1997
------------------ ------------------ -------------------
<S> <C> <C> <C>
Deferred tax assets:
Accounts receivable, principally
Due to allowance for doubtful
accounts $ 4,492 $ 4,574 $ 7,961
State net operating loss
carryforwards 34,515 32,922 20,089
Federal net operating loss
carryforwards 610,589 590,480 547,864
Research and development tax
credit carryforwards 29,395 29,395 28,655
------------------ ------------------ -------------------
Total gross deferred tax assets 679,531 657,371 604,569
Less valuation allowance (679,531) (657,371) (604,569)
------------------ ------------------ -------------------
Net deferred tax asset $ - $ - $ -
================== ================== ===================
</TABLE>
Income tax expense attributable to loss from operations consists of the
following current provisions:
<TABLE>
<CAPTION>
For the Nine Months Ended For the Years Ended
February 28, May 31,
1999 1998
(unaudited) (unaudited) 1998 1997
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
U.S. Federal $ - $ - $ - $ -
State and Local - - 800 800
-------------- -------------- -------------- --------------
$ - $ - $ 800 $ 800
============== ============== ============== ==============
</TABLE>
Income tax expense attributable to income from operations was $800 for each of
the years ended May 31, 1998 and 1997, and differs from the amounts computed by
applying the U.S. Federal income tax rate of 34 percent to pretax income from
operations as a result of the following: <TABLE> <CAPTION>
For the Nine Months Ended For the Years Ended
February 28, May 31,
1999 1998
(unaudited) (unaudited) 1998 1997
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Computed "expected" tax benefit $ (20,009) $ (38,458) $ (44,960) $ (26,192)
Increase (reduction) in income taxes resulting from:
Change in the beginning-of-the year balance
of the valuation allowance for deferred tax
assets allocated to income tax expense 20,009 38,458 44,960 26,192
State and local income taxes - - 800 800
-------------- -------------- -------------- --------------
$ - $ - $ 800 $ 800
============== ============== ============== ==============
</TABLE>
16
<PAGE>
ALLERGY IMMUNO TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS-CONTINUED
FOR THE NINE MONTHS ENDED FEBRUARY 28, 1999 (UNAUDITED) AND 1998 (UNAUDITED)
AND EACH OF THE YEARS ENDED MAY 31, 1998 AND 1997
NOTE 4 - INCOME TAXES, Continued
- --------------------------------
As of February 28, 1999, the Company has available Federal and state net
operating loss carryforwards for tax purposes of approximately $1,796,000 and
$384,000, respectively (unaudited), and research and development tax credit
carryforwards of approximately $29,000. The aforementioned carryforwards expire
in various years throughout 2018.
The Tax Reform Act of 1986 includes provisions which limit the Federal net
operating loss carryforwards available for use in any given year if certain
events, including a significant change in stock ownership, occur.
NOTE 5 - RELATED PARTY TRANSACTIONS
- -----------------------------------
Biomerica, Inc. paid expenses on behalf of the Company of approximately $39,761
and $126,827 for the nine month period ended February 28, 1999 and 1998,
respectively, and $142,939 and $45,404 during fiscal 1998 and 1997,
respectively. The due to affiliate represents the related unpaid amounts due to
Biomerica. The advances are non-interest bearing and have no stated due date.
Biomerica does not intend to require repayment of such advances in fiscal 2000.
During fiscal 1998, the Company issued 1,916,429 shares of its common stock to
Biomerica, Inc. as partial repayment of amounts due. The shares were valued at
$0.07 per common share or $134,150 (see Note 3).
The Company facilities are leased on a month-to-month basis at $1,400 per month
and are owned by a shareholder's of the Company. Rent expenses was $12,600 for
each of the nine months period ending February 28, 1999 and 1998 (unaudited).
Rent expense was $16,800 for each of the years ended May 31, 1998 and 1997.
NOTE 6 - RETIREMENT SAVINGS PLAN
- --------------------------------
Effective September 1, 1986, the Company established a 401(k) plan for the
benefit of its employees. The plan permits eligible employees to contribute to
the plan up to the maximum percentage of total annual compensation allowable
under the limits of Internal Revenue Code Sections 415, 401(k) and 404. The
Company, at the discretion of its Board of Directors, may make contributions to
the plan in amounts determined by the Board each year. No contributions by the
Company have been made since the plan's inception.
17
<PAGE>
PART III
ITEM 2. DESCRIPTION OF EXHIBITS
See "Exhibit Index".
III-1
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED
- ------ ----------- --------
<S> <C> <C>
2.1 Agreement and Plan of Merger by and between
Advanced Allergy Research Center Inc., and
Allergy Immuno Technologies, Inc., as filed
with the Secretaries of State of Delaware
and Utah on January 20, 1987.*
3.1 Certificate of Incorporation.*
3.1.1 Certificate of Amendment to Certificate of
Incorporation filed on February 10, 1995.*
3.2 Bylaws of the registrant.*
16.1 Letter on changes in certifying accountants.*
23.1 Consent of Corbin & Wertz**
27.1 Financial Data Schedule**
99.1 Press Release dated September 4, 1997.*
99.1.1 Press Release dated January 6, 1999.*
</TABLE>
- ----------
* To be filed with an amendment to this Registration Statement.
** Being filed herewith.
III-2
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant has caused this Form-10SB to be signed on behalf by the undersigned,
thereunto duly authorized.
ALLERGY IMMUNO TECHNOLOGIES, INC.
(Registrant)
Date: May 25, 1999
By /s/ Zackary S. Irani
---------------------------------------
Zackary S. Irani, Chairman of the Board
III-3
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
ADVANCED ALLERGY RESEARCH CENTER, INC.
(a Utah corporation)
AND
ALLERGY IMMUNO TECHNOLOGIES, INC.
(a Delaware corporation)
Agreement and Plan of Merger dated as of November 28, 1986, between
ALLERGY IMMUNO TECHNOLOGIES, INC., a Delaware corporation (hereinafter sometimes
called the "Surviving Corporation") and ADVANCED ALLERGY RESEARCH CENTER, INC. ,
a Utah corporation (hereinafter sometimes' called the "Absorbed Corporation").
STIPULATIONS AND RECITALS
-------------------------
A. WHEREAS, ALLERGY IMMUNO TECHNOLOGIES, INC. (the "Surviving
Corporation") is a corporation duly organized and existing under the laws of the
State of Delaware, with its registered office located at 229 South State Street,
Dover, Delaware.
The Surviving Corporation has a capitalization of 20,000,000 authorized
shares of common stock, par value $.001 per share, of which 100 shares of common
stock are issued and outstanding and are owned by the Absorbed Corporation, and
100,000 authorized shares of preferred stock, par value $1.00 per share, none of
which are issued or outstanding.
B. WHEREAS, ADVANCED ALLERGY RESEARCH CENTER, INC. (the "Absorbed
Corporation") is a corporation duly organized and existing under the laws of the
State of Utah, with its principal office located at 1533 Monrovia Avenue,
Newport Beach, California.
The Absorbed Corporation has a capitalization of 50,000,000 authorized
shares of common stock, par value $.004 per share, of which 15,620,128 shares
are issued and outstanding (before giving effect to a one-for-four reverse stock
split effected on December 6, 1983).
C. WHEREAS, the Surviving Corporation and the Absorbed Corporation have
entered into this Agreement and Plan of Merger acknowledged by each of the
constituent corporations in accordance with Section 252 of the General
Corporation Law of the State of Delaware (the "Agreement and Plan") providing
for the merger of the Absorbed Corporation into the Surviving Corporation (the
"Merger") which has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with Section 252 of the
General Corporation Law of the State of Delaware.
<PAGE>
D. WHEREAS, the boards of directors of the constituent corporations deem
it desirable and in the best interests of the corporations and their
shareholders that ADVANCED ALLERGY RESEARCH CENTER, INC. be merged into ALLERGY
IMMUNO TECHNOLOGIES, INC. in accordance with the provisions of Section 252 of
the General Corporation Law of the State of Delaware and Section 16-10-68 of the
Utah Business Corporations Act of the State of Utah, in order that the
transaction qualify as a "reorganization" within the meaning of Sections 368(a)
(1)(A) and 368(a)(1)(F) of the Internal Revenue Code of 1954, as amended.
E. WHEREAS, the Utah Business Corporations Act of the State of Utah
permits a merger of a business corporation of the State of Utah with and into a
business corporation of another jurisdiction.
F. WHEREAS, the General Corporation Law of the State of Delaware permits
the merger of a business corporation of another jurisdiction with and into a
business corporation of the State of Delaware.
G. WHEREAS, the Agreement and Plan of Merger have been approved and
adopted by a majority of the issued and outstanding Common Stock of the
Surviving Corporation and by a majority of the issued and outstanding Common
Stock of the Absorbed Corporation.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by the
Surviving Corporation and approved by resolutions adopted by its Board of
Directors and stockholders and being thereunto duly entered into by the Absorbed
Corporation and approved by a resolution adopted by its Board of Directors and
shareholders, the Merger and the terms and conditions thereof and the mode of
carrying the same into effect, together with any provisions required or
permitted to be set forth therein, are hereby determined and agreed upon as
follows:
SECTION ONE - MERGER
--------------------
ADVANCED ALLERGY RESEARCH CENTER, INC., a Utah corporation
(hereinafter sometimes called the "Absorbed Corporation") and ALLERGY IMMUNO
TECHNOLOGIES, INC., a Delaware corporation(hereinafter sometimes called the
"Surviving Corporation") shall, pursuant to the provisions of the General
Corporation Law of the State of Delaware, be merged with and into a single
corporation (hereinafter sometimes called the "resulting corporation") in which
the Surviving Corporation shall be the resulting corporation from and after the
effective time of the Merger, and which shall continue to exist as said
resulting corporation pursuant to the provisions of the General Corporation Law
of the State of Delaware.
SECTION TWO - TERMS AND CONDITIONS
----------------------------------
On the effective date of the Merger, the separate existence of the
Absorbed Corporation shall cease, and the resulting corporation shall succeed to
all the rights, privileges, immunities and franchises, and all the property,
real, personal and mixed, of the Absorbed Corporation, without the necessity for
any separate transfer. The resulting corporation shall thereafter be responsible
and liable for all liabilities and obligations of the Absorbed Corporation, and
neither the rights of creditors nor any liens on the property of the Absorbed
Corporation shall be impaired by the Merger.
<PAGE>
SECTION THREE - CONVERSION OF SHARES
------------------------------------
The manner and basis of converting the shares of the Absorbed Corporation
into shares of the resulting corporation upon the effective date of the Merger
shall be as follows:
(a) Each share of the 15,620,128 shares of common stock of the Absorbed
Corporation issued and outstanding on the effective date of the Merger (other
than shares held by persons who make timely demands as dissenting shareholders
in accordance with Section 16-10-75 of the Utah Business Corporations Act and
whose right to payment does not cease as provided in said Section) shall be
converted into one-quarter (1/4) of one share of the common stock of the
resulting corporation, which shall thereafter be issued and outstanding shares
of common stock of the resulting corporation. (If any share certificates of the
Absorbed Corporation remain outstanding which were issued prior to its
one-for-four reverse stock split effected as of December 16, 1983, each of such
certificates when surrendered shall be converted in one-sixteenth (1/16) of one
share of the common stock of the resulting corporation.) No fractional shares of
common stock of the Surviving Corporation shall be issued in connection with
such conversion and exchange, but in lieu thereof, each such fractional interest
shall be rounded up to a full share.
(b) Each share of the 100 shares of common stock of the Surviving
Corporation issued and outstanding on the effective date of the Merger shall be
cancelled and shall cease to exist.
(c) After the effective date of the Merger, the conversion and exchange of
shares provided by this Section Three shall be effected as follows:
(i) After the effective date of the merger, each holder of
certificates for shares of common stock in ADVANCED ALLERGY RESEARCH CENTER,
INC. shall surrender them to the Surviving Corporation or to its duly appointed
agent, in such manner as the Surviving Corporation shall legally require. On
receipt of such share certificates, the Surviving Corporation shall issue and
exchange therefor certificates for shares of common stock in the Surviving
Corporation, representing the number of shares of such stock to which such
holder is entitled as provided above.
(ii) Holders of certificates of common stock of the Absorbed
Corporation shall not be entitled to dividends payable on shares of stock in the
Surviving Corporation until certificates have been issued to such shareholders.
Thereafter, each such shareholder shall be entitled to receive any dividends on
shares of stock of the Surviving Corporation issuable to them hereunder that may
have been declared and paid between the effective date of the Merger and the
issuance to such shareholder of the certificate for his shares in the Surviving
Corporation.
(iii) The Absorbed Corporation, as the holder of certificates for
shares of common stock in the Surviving Corporation described in paragraph (b)
of this Section Three shall surrender such certificates for cancellation.
<PAGE>
(d) Each option outstanding under the Absorbed Corporation's Incentive
Stock Option Plan and each common stock purchase warrant of the Absorbed
Corporation outstanding immediately prior to the Merger shall, by virtue of the
Merger and without any action of the part of the holer thereof, be converted
into and become an option or purchase warrant to purchase one-quarter (1/4) of
the number of shares of the resulting corporation common stock at four (4) times
the price per share and otherwise upon the same terms and conditions.
SECTION FOUR - CERTIFICATE OF INCORPORATION
-------------------------------------------
The certificate of incorporation of the resulting corporation shall
continue to be the certificate of incorporation of the Surviving Corporation
following the effective date of the Merger until the same shall be thereafter
altered or amended.
SECTION FIVE - BYLAWS
---------------------
The bylaws of the resulting corporation shall continue to be the bylaws of the
Surviving Corporation following the effective date of the Merger until the same
shall be thereafter altered or amended.
SECTION SIX - DIRECTORS
-----------------------
The directors of the resulting corporation as of the effective date of the
Merger shall be the directors of the Absorbed Corporation.
All of such directors shall hold their directorships until the election
and qualification of their respective successors, or until their prior
resignation, removal or death.
SECTION SEVEN - OFFICERS
------------------------
The officers of the resulting corporation as of the effective date of the
Merger shall be the officers of the Absorbed Corporation. All of such officers
shall hold their offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the By-Laws of the resulting corporation or until their prior
resignation or death.
SECTION EIGHT - PROHIBITED TRANSACTIONS
---------------------------------------
Neither of the constituent corporations shall, prior to the effective date
of the Merger, engage in any activity or transaction other than in the ordinary
course of business, except that the Absorbed Corporation and Surviving
Corporation may take all action necessary or appropriate under the laws of the
State of Utah and the State of Delaware to consummate this Merger.
SECTION NINE - CONDITIONS, DEFERRAL,
------------------------------------
TERMINATION AND AMENDMENT
-------------------------
(a) The obligation of the Absorbed Corporation and Surviving Corporation
to effect the transactions contemplated herein is subject to satisfaction of the
following conditions:
<PAGE>
(i) Absorbed Corporation, as sole stockholder of the Surviving
Corporation, shall have approved the Merger in accordance with the General
Corporation Law of the State of Delaware;
(ii) Shareholders of the Absorbed Corporation shall have approved
the Merger at a meeting thereof duly held in accordance with the Utah Business
Corporations Act;
(iii) The number of shares of Absorbed Corporation common stock as
to which holders thereof have dissented pursuant to Utah law shall not be
excessive in the judgment of the Board of Directors of Absorbed Corporation; and
(iv) An Agreement and Plan of Merger shall have been filed with
the Secretary of State of the States of Utah and Delaware.
(b) The parties hereto may amend, modify or supplement this Agreement in
such manner as may be agreed upon by them in writing.
SECTION TEN
-----------
An executed copy of this Agreement and Plan Merger is on file at the
principal place of business of the resulting corporation located in the State of
California, 1533 Monrovia Avenue, Newport Beach, California 92660.
SECTION ELEVEN - FURTHER ASSURANCES
-----------------------------------
In the event that this Agreement and Plan shall have been fully approved
and adopted upon behalf of the Absorbed Corporation in accordance with the
provisions of the Utah Business Corporations Act of the State of Utah and upon
behalf of the Surviving Corporation in accordance with the provisions of the
General Corporation Law of the State of Delaware, the said corporations agree
that they will cause to be executed and filed and recorded any document or
documents prescribed by the laws of the State of Utah and by the laws of the
State of Delaware, and that they will cause to be performed all necessary acts
within the State of Utah and the State of Delaware and elsewhere to effectuate
the merger herein provided for.
The Board of Directors and the proper officers of the Absorbed Corporation
and of the Surviving Corporation are hereby authorized, empowered and directed
to do any and all acts and things, and to make, execute, deliver, file and
record any and all instruments, papers and documents which shall be or become
necessary, proper or convenient to carry out or put into effect any of the
provisions of this Agreement and Plan of Merger herein provided for.
SECTION TWELVE - EFFECTIVE DATE
-------------------------------
The effective date of the Merger shall be the date upon which this
Agreement and Plan of Merger has been duly executed on behalf of the constituent
corporations and filed with the Secretary of State of Delaware.
<PAGE>
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
this 28th day of November, 1986 on behalf of each of the constituent
corporations as parties hereto.
ADVANCED ALLERGY RESEARCH
CENTER, INC.,
a Utah corporation,
(the "Absorbed Corporation")
By: /S/ GEOFFRY P. CHEUNG
----------------------
GEOFFRY P. CHEUNG,
President
Attest:
/S/ JANET MOORE
- ---------------------------
JANET MOORE, Secretary
ALLERGY IMMUNO TECHNOLOGIES,
INC., a Delaware corporation
(the "Surviving Corporation")
By: /S/ GEOFFRY P. CHEUNG
---------------------
GEOFFRY P. CHEUNG,
President
Attest:
/S/ JANET MOORE
- ---------------------------
JANET MOORE, Secretary
<PAGE>
CERTIFICATE OF SECRETARY
OF
ADVANCED IMMUNO TECHNOLOGIES, INC.
(A Delaware corporation)
The undersigned, being the duly elected and, acting Secretary of ADVANCED
IMMUNO TECHNOLOGIES, INC., a Delaware corporation, does hereby certify that the
foregoing, Agreement and Plan of Merger was submitted to the stockholders of
said corporation entitled to vote at a special meeting. Due-notice of the time,
place, and purpose of said meeting was mailed to each stockholder of said
corporation at least 20 days prior to the date of the meeting. At said meeting,
the Agreement and Plan of Merger was considered by the stockholders entitled to
vote thereon, and, a vote having been taken for the adoption or rejection by
them of the Agreement and Plan of Merger, more than fifty percent (50%) of the
outstanding common stock of ADVANCED IMMUNO TECHNOLOGIES, INC. entitled to vote
of the corporation was voted for the adoption of the Agreement and Plan of
Merger.
Dated: December 15, 1986
-----------
/S/ JANET MOORE
----------------------------------------
Secretary of ADVANCED IMMUNO
TECHNOLOGIES INC.
<PAGE>
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
ADVANCED ALLERGY RESEARCH CENTER, INC.
(A UTAH CORPORATION)
AND
ALLERGY IMMUNO TECHNOLOGIES, INC.
(A DELAWARE CORPORATION)
Agreement and Plan of Merger dated as of November 28, 1986, between ALLERGY
IMMUNO TECHNOLOGIES, INC. a Delaware corporation (hereinafter sometimes, called
the Surviving Corporation") and ADVANCED ALLERGY RESEARCH CENTER, INC., a Utah
corporation (hereinafter sometimes called the Corporation").
STIPULATIONS AND RECITALS
A. WHEREAS, ALLERGY IMMUNO TECHNOGIES, INC. (the "Surviving Corporation")
is a corporation duly organized and existing under the laws of the State of
Delaware, with its registered office located at 229 South State Street, Dover,
Delaware.
The Surviving Corporation has a capitalization of 20,000,000 authorized
shares of common stock, par value $.001 .per share, of which 100 shares Of
common stock are issued and outstanding and are owned by the Absorbed
Corporation., and 100,000 authorized shares of preferred stock, par value $1.00
per share, none of which are issued or outstanding.
B. WHEREAS, ADVANCED ALLERGY RESEARCH CENTER, INC. (the "Absorbed
Corporation") is a corporation duly organized and existing under the laws of the
State of Utah, with its principal office located at 1533 Monrovia Avenue,
Newport Beach, California.
The Absorbed Corporation has a capitalization of 50,000,000 authorized
shares of common stock, par value $.004 per share, of which 15,620,128 shares
are issued and outstanding (before giving effect to a one-for-four reverse stock
split effected on December 6, 1983).
C. WHEREAS, the Surviving Corporation and the Absorbed Corporation have
entered into this Agreement and plan of Merger acknowledged by each of the
constituent corporations in the accordance with Section 252 of the General
Corporation Law of the State of Delaware (the "Agreement and Plan") providing
for the merger of the Absorbed Corporation into the Surviving Corporation (the
"Merger") which has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with Section 2S2 of the
General Corporation Law of the State of Delaware.
<PAGE>
D. WHEREAS, the boards of directors of the constituent corporations deem
it desirable and in the best interests of the corporations and their
shareholders that ADVANCED ALLERGY RESEARCH CENTER, INC. be merged into ALLERGY
IMMUNO TECHNOLOGIES, INC. in accordance with the provisions of Section 252 of
the General Corporation Law of the State of Delaware and Section 16-10-68 of the
Utah Business Corporations Act of the State of Utah, in order that the
transaction qualify as a "reorganization" within the meaning of Sections 368(a)
(1)(A) and 368(a)(1)(F) of the Internal Revenue Code of 1954, as amended.
E. WHEREAS, the Utah Business Corporations Act of the State of Utah
permits a merger of a business corporation of the State of Utah with and into a
business corporation of another jurisdiction.
F. WHEREAS, the General Corporation Law of the State of Delaware permits
the merger of a business corporation of another jurisdiction with and into a
business corporation of the State of Delaware.
G. WHEREAS, the Agreement and Plan of Merger have been approved and
adopted by a majority of the issued and outstanding Common Stock of the
Surviving Corporation and by a majority of the issued and outstanding Common
Stock of the Absorbed Corporation.
NOW, THEREFORE, in consideration of the premises and of the mutual agreement
of the parties hereto, being thereunto duly entered into by the Surviving
Corporation and approved by resolutions adopted by its Board of Directors and
stockholders and being thereunto duly entered into by the Absorbed Corporation
and approved by a resolution adopted by its Board of Directors and shareholders,
the Merger and the terms and conditions thereof and the mode of carrying the
same into effect, together with any provisions required or permitted to be set
forth therein, are hereby determined and agreed upon as follows:
SECTION ONE - MERGER
--------------------
ADVANCED ALLERGY RESEARCH CENTER, INC., a Utah corporation (hereinafter
sometimes called the "Absorbed Corporation") and ALLERGY IMMUNO TECHNOLOGIES,
INC., a Delaware corporation (hereinafter sometimes called the "Surviving
Corporation") shall, pursuant to the provisions of the General Corporation Law
of the State of Delaware, be merged with and into a single corporation
(hereinafter sometimes called the "resulting corporation") in which the
Surviving Corporation shall be the resulting corporation from and after the
effective time of the Merger, and which shall continue to exist as said
resulting corporation pursuant to the provisions of the . General Corporation
Law of the State of Delaware.
SECTION TWO - TERMS AND CONDITIONS
----------------------------------
On the effective date of the Merger, the separate existence of the
Absorbed Corporation shall cease, and the resulting corporation shall succeed to
all the rights, privileges, immunities and franchises, and all the property,
real, personal and mixed, of the Absorbed Corporation, without the necessity for
any separate transfer. The resulting corporation shall thereafter be responsible
and liable for all liabilities and obligations of the Absorbed Corporation, and
neither the rights of creditors nor any liens on the property of the Absorbed
Corporation shall be impaired by the Merger.
<PAGE>
SECTION THREE - CONVERSION OF SHARES
------------------------------------
The manner and basis of converting the shares of the Absorbed Corporation
into shares of the resulting corporation upon the effective date of the Merger
shall be as follows:
(a) Each share of the 15,620,128 shares of common stock of the Absorbed
Corporation issued and outstanding on the effective date of the Merger (other
than shares held by persons who make timely demands as dissenting shareholders
in accordance with Section 16-10-75 of the Utah Business Corporations Act and
whose right to payment does not cease as provided in said Section) shall be
converted into one-quarter (114) of one share of the common stock of the
resulting corporation, which shall thereafter be issued and outstanding shares
of common stock of the resulting corporation. (If any share certificates of the
Absorbed Corporation remain outstanding which were issued prior to its
one-for-four reverse stock split effected as of December 16, 1983, each of such
certificates when surrendered shall be converted in one-sixteenth (1/16) of one
share of the common stock of the resulting corporation.) No fractional shares of
common stock of the Surviving Corporation shall be issued in connection with
such conversion and exchange, but in lieu thereof, each such fractional interest
shall be rounded up to a full share.
(b) Each share of the 100 shares of common stock of the Surviving
Corporation issued and outstanding on the effective date of the Merger shall be
cancelled and shall cease to exist.
(c) After the effective date of the Merger, the conversion and exchange of
shares provided by this Section Three shall be effected as follows:
(i) After the effective date of the merger, each holder of
certificates for shares of common stock in ADVANCED ALLERGY RESEARCH CENTER,
INC. shall surrender them to the Surviving Corporation or to its duly appointed
agent, in such manner as the Surviving Corporation shall legally require. On
receipt of such share certificates, the Surviving Corporation shall issue and
exchange therefor certificates for shares of common stock in the Surviving
Corporation, representing the number of shares of such stock to which such
holder is entitled as provided above.
(ii) Holders of certificates of common stock of the Absorbed
Corporation shall not be entitled to dividends payable on shares of stock in the
Surviving Corporation until certificates have been issued to such shareholders.
Thereafter, each such shareholder shall be entitled to receive any dividends on
shares of stock of the Surviving Corporation issuable to them hereunder that may
have been declared and paid between the effective date of the Merger and the
issuance to such shareholder of the certificate for his shares in the Surviving
Corporation.
(iii) The Absorbed Corporation, as the holder of certificates for
shares of common stock in the Surviving Corporation described in paragraph (b)
of this Section Three shall surrender such certificates for cancellation.
<PAGE>
(d) Each option outstanding under the Absorbed Corporation's Incentive
Stock Option Plan and each common stock purchase warrant of the Absorbed
Corporation outstanding immediately prior to the Merger shall, by virtue of the
Merger and without any action of the part of the holer thereof, be converted
into and become an option or purchase warrant to purchase one-quarter (1/4) of
the number of shares of the resulting corporation common stock at four (4) times
the price per share and otherwise upon the same terms and conditions.
SECTION FOUR - CERTIFICATE OF INCORPORATION
-------------------------------------------
The certificate of incorporation of the resulting corporation shall
continue to be the certificate of incorporation of the Surviving Corporation
following the effective date of the Merger until the same shall be thereafter
altered or amended.
SECTION FIVE - BYLAWS
---------------------
The bylaws of the resulting corporation shall continue to be the bylaws of
the Surviving Corporation following the effective date of the Merger until the
same shall be thereafter altered or amended.
SECTION SIX - DIRECTORS
-----------------------
The directors of the resulting corporation as of the effective date of the
Merger shall be the directors of the Absorbed Corporation.
All of such directors shall hold their directorships until the election
and qualification of their respective successors, or until their prior
resignation, removal or death.
SECTION SEVEN - OFFICERS
------------------------
The officers of the resulting corporation as of the effective date of the
Merger shall be the officers of the Absorbed Corporation. All of such officers
shall hold their offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the By-Laws of the resulting corporation, or until their prior
resignation or death.
SECTION EIGHT - PROHIBITED TRANSACTIONS
---------------------------------------
Neither of the constituent corporations shall, prior to the effective date
of the Merger, engage in any activity or transaction other than in the ordinary
course of business. except that the Absorbed Corporation and Surviving
Corporation may take all action necessary or appropriate under the laws of the
State of Utah and the State of Delaware to consummate this Merger.
<PAGE>
SECTION NINE - CONDITIONS, DEFERRAL,
------------------------------------
TERMINATION AND AMENDMENT
-------------------------
(a) The obligation of the Absorbed Corporation and Surviving Corporation
to effect the transactions contemplated herein is subject to satisfaction of the
following conditions:
(i) Absorbed Corporation, as sole stockholder of the Surviving
Corporation, shall have approved the Merger in accordance with the General
Corporation Law of the State of Delaware;
(ii) Shareholders of the Absorbed Corporation shall have approved
the Merger at a meeting thereof duly held in accordance with the Utah Business
Corporations Act;
(iii) The number of shares of Absorbed Corporation common stock as
to which holders thereof have dissented pursuant to Utah law shall not be
excessive in the judgment of the Board of Directors of Absorbed Corporation; and
(iv) An Agreement and Plan of Merger shall have been filed with
the Secretary of State of the States of Utah and Delaware.
(b) The parties hereto may amend, modify or supplement this Agreement in
such manner as may be agreed upon by them in writing.
SECTION TEN
-----------
An executed copy of this Agreement and Plan Merger is on file at the
principal place of business of the resulting corporation located in the State of
California, 1533 Monrovia Avenue, Newport Beach, California 92660.
SECTION ELEVEN - FURTHER ASSURANCES
-----------------------------------
In the event that this Agreement and Plan shall have been fully approved
and adopted upon behalf of the Absorbed Corporation in accordance with the
provisions of the Utah Business Corporations Act of the State of Utah and upon
behalf of the Surviving Corporation in accordance with the provisions of the
General Corporation Law of the State of Delaware, the said corporations agree
that they will cause to be executed and filed and recorded any document or
documents prescribed by the laws of the State of Utah and by the laws of the
State of Delaware, and that they will cause to be performed all necessary acts
within the State of Utah and the State of Delaware and elsewhere to effectuate
the merger herein provided for.
The Board of Directors and the proper officers of the Absorbed Corporation
and of the Surviving Corporation are hereby authorized, empowered and directed
to do any and all acts and things, and to make, execute, deliver, file and
record any and all instruments, papers and documents which shall be or become
necessary, proper or convenient to carry out or put into effect any of the
provisions of this Agreement and Plan of Merger herein provided for.
<PAGE>
(1) ALLERGY IMMUNO TECHNOLOGIES, INC. hereby agrees that it may be served
with process in this state in any proceeding for the enforcement of any
obligation of any domestic corporation which is a party to such a merger or
consolidation and in any proceeding for the enforcement of the rights of a
dissenting shareholder of any such domestic corporation against the
surviving or new corporation.
(2) ALLERGY IMMUNO TECHNOLOGIES, INC. irrevocably appoints the Director of
Corporations of this state as its agent to accept service of process in any
such proceeding and to send said service in care of ALLERGY IMMUNO
TECHNOLOGIES, INC., 1533 Monrovia Avenue, Newport Beach, California 92660.
(3) ALLERGY IMMUNO TECHNOLOGIES, INC. agrees that it will promptly pay to
the dissenting shareholders of any such domestic corporation the amount, if
any, to which they shall be entitled under the provisions of the Utah
Business Corporation Act with respect to the rights of dissenting
shareholders.
SECTION TWELVE - EFFECTIVE DATE
-------------------------------
The effective date of the Merger shall be the date upon which this
Agreement and Plan of Merger has been duly executed on behalf of the constituent
corporations and filed with the Secretary of State of Delaware.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
this 28th day of November, 1986 on behalf of each of the constituent
corporations as parties hereto.
ADVANCED ALLERGY RESEARCH
CENTER, INC.,
a Utah corporation,
(the "Absorbed Corporation")
By: /S/ GEOFFREY P. CHEUNG
---------------------------
GEOFFREY P. CHEUNG,
President
Attest:
/S/ JANET MOORE
- ---------------------------
JANET MOORE, Secretary
ADVANCED ALLERGY RESEARCH
CENTER, INC.,
a Utah corporation,
(the "Absorbed Corporation")
By: /S/ GEOFFREY P. CHEUNG
---------------------------
GEOFFREY P. CHEUNG,
President
Attest:
/S/ JANET MOORE
- ---------------------------
JANET MOORE, Secretary
<PAGE>
CERTIFICATE OF SECRETARY
OF
ADVANCED ALLERGY RESEARCH CENTER, INC.
(A Utah corporation)
The undersigned, being the duly elected and acting Secretary of ADVANCED
ALLERGY RESEARCH CENTER, INC., a Utah corporation, does hereby certify that the
foregoing Agreement and Plan of Merger was submitted to the stockholders of said
corporation entitled to vote at a special meeting. Due notice of the time,
place, and purpose of said meeting was mailed to each stockholder of said
corporation at least 20 days prior to the date of the meeting. At said meeting,
the Agreement and Plan of Merger was considered by the stockholders entitled to
vote thereon, and, a vote having been taken for the adoption or rejection by
them of the Agreement and Plan of Merger, more than fifty percent (50%) of the
outstanding common stock of ADVANCED ALLERGY RESEARCH CENTER, INC. entitled to
vote of the corporation was voted for the adoption of the Agreement and Plan of
Merger. Such vote was 11,811,417 shares of common stock in FAVOR and -no- shares
----------
of common stock OPPOSED to the adoption of the Agreement and Plan of Merger.
Dated: December 15, 1986 /S/ JANET MOORE
----------- -------------------------------------
Secretary of ADVANCED ALLERGY
RESEARCH CENTER, INC.
<PAGE>
CERTIFICATE OF SECRETARY
OF
ADVANCED IMMUNO TECHNOLOGIES, INC.
(A Delaware corporation)
The undersigned, being the duly elected and acting Secretary of ADVANCED
IMMUNO TECHNOLOGIES, INC., a Delaware corporation, does hereby certify that the
foregoing Agreement and Plan of Merger was submitted to the stockholders of said
corporation entitled to vote at a special meeting. Due-notice of the time,
place, and purpose of said meeting was mailed to each stockholder of said
corporation at least 20 days prior to the date of the meeting. At said meeting,
the Agreement and Plan of Merger was considered by the stockholders entitled to
vote thereon, and, a vote having been taken for the adoption or rejection by
them of the Agreement and Plan of Merger, more than fifty percent (50%) of the
outstanding common stock of ADVANCED IMMUNO TECHNOLOGIES, INC. entitled to vote
of the corporation was voted for the adoption of the Agreement and Plan of
Merger.
Dated: December 15, 1986 /S/ JANET MOORE
----------- ----------------------------------
Secretary of ADVANCED ALLERGY
RESEARCH CENTER, INC.
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
ALLERGY IMMUNO TECHNOLOGIES, INC.
The undersigned, for the purpose of establishing a corporation for the
transaction of the business and the promotion and conduct of the objects and
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware (particularly Chapter 1, Title
8 of the 1967 Delaware Code, and known as the "General Corporation Law of the
State of Delaware"), does make and file this Certificate of Incorporation in
writing and does hereby certify as follows, to wit:
FIRST: The name of the corporation (hereinafter called the Corporation) is
ALLERGY IMMUNO TECHNOLOGIES, INC.
SECOND: The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent; and the name of the registered agent of
the Corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or promoted
by it is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is TWENTY MILLION ONE HUNDRED THOUSAND (20,100,000)
shares, TWENTY MILLION of which shall be of a class designated as Common Stock
with a par value of ONE-TENTH OF ONE CENT ($0.001) per share and ONE HUNDRED
THOUSAND of which shall be of a class designated as Preferred Stock with a par
value of ONE DOLLAR ($1.00) per share. All or any part of the authorized capital
stock of the Corporation may be issued and sold, from time to time by the
Corporation, without further action by stockholders, for such consideration (but
not less than the par value thereof) and to such persons and on such terms and
conditions as may, from time to time, be fixed or determined by the Board of
Directors. The voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the classes of stock of the corporation
which are fixed by this Certificate of Incorporation, and the authority vested
in the Board of Directors to fix by resolution or resolutions providing for the
issue of Preferred Stock the voting powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of Preferred
Stock which are not fixed by the Certificate of Incorporation, are as follows:
<PAGE>
1. The Preferred Stock may be issued from time to time in one or more
series, each such series to have such distinctive designation or title as may be
fixed by the Board of Directors prior to the issuance of any shares thereof.
Each such series may differ from every other series already outstanding as may
be determined from time to time by the Board of Directors prior to the issuance
of any shares thereof, in any or all of the following, but in no other,
respects:
(a) The rate of dividend which the Preferred Stock of any such series
shall be entitled to receive, whether the dividends of such series shall be
cumulative or non-cumulative and, if such dividends shall be cumulative, the
date from which they shall be cumulative.
(b) The right or obligation, if any, of the corporation to redeem
shares of Preferred Stock of any series and the amount per share which the
Preferred Stock of any such series shall be entitled to receive in case of the
redemption thereof, and the right of the corporation, if any, to reissue any
such shares after the same shall have been redeemed.
(c) The amount per share which the Preferred Stock of any such series
shall be entitled to receive in case of the voluntary liquidation, distribution
or sale of assets, dissolution or winding up of the corporation, or in case of
the involuntary liquidation, distribution or sale of assets, dissolution or
winding up of the corporation.
(d) The right, if any, of the holders of Preferred Stock of any such
series to convert the same into other classes of stock, and the terms and
conditions of such conversion.
(e) The voting power, if any, of the holders of Preferred Stock of any
series, and the terms and conditions under which they may exercise such voting
power.
(f) The terms of the sinking fund or fund of a similar nature, if any,
to be provided for the Preferred Stock of any such series.
The description and terms of the Preferred Stock of each series in respect
of the foregoing particulars shall be fixed and determined by the Board of
Directors by appropriate resolution or resolutions at or prior to the time of
the authorization of the issue of the original shares of each such series.
2. In case the stated dividends and the amounts payable on liquidation,
distribution or sale of assets, dissolution or winding up of the corporation are
not paid in full, the shareholders of all series of the Preferred Stock shall
share ratably in the payment of dividends, including accumulations, if any, in
accordance with the sums which would be payable on such shares if all dividends
were declared and paid in full and in any distribution of assets other than by
way of dividends, in accordance with the sums which would be payable on such
distribution if all sums payable were discharged and paid in full.
3. The holders of the Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of funds legally available
therefor, preferential dividends in cash at, but not exceeding, the annual rate
fixed for each particular series. The holders of the Preferred Stock shall not
be entitled to receive any dividends thereon other than dividends referred to in
this Subdivision 3.
<PAGE>
4. So long as any of the Preferred Stock remains outstanding, in no event
shall any dividend whatever, whether in cash or other property (other than
shares of Common Stock), be paid or declared or any distribution be made on the
Common Stock, nor shall any shares of the Common Stock be purchased, retired or
otherwise acquired for a consideration by the corporation unless (a) the full
dividends of the Preferred Stock for all past dividend periods from the
respective date or then current quarter-yearly dividend period shall have been
paid or declared and a sum set apart sufficient for the payment thereof, and (b)
if at any time the corporation is obligated to retire shares of any series of
the Preferred Stock pursuant to a sinking fund or a fund of a similar nature,
all arrears, if any, in respect of the retirement of the Preferred Stock of all
such series shall have been made good. Subject to the foregoing provisions and
not otherwise, such dividends (payable in cash, stock or otherwise) as may be
determined by the Board of Directors may be declared and paid on the Common
Stock from time to time out of the remaining funds of the corporation legally
available therefor, and the Preferred Stock shall not be entitled to
participate in any such dividend, whether payable in cash, stock or otherwise.
5. In the event of any liquidation, distribution or sale of assets,
dissolution or winding up of the corporation, whether voluntary or involuntary,
before any distribution or payment shall be made to the holders of the Common
Stock, the holders of the Preferred Stock of each series shall be entitled to be
paid in cash the applicable liquidation price per share fixed at the time of the
original authorization of issuance of shares of such respective series, together
with a sum, in the case of each share of the Preferred Stock, computed at the
annual dividend rate for the series of which the particular share is a part from
the date on which dividends on such share became cumulative to the date fixed
for such distribution or payment less the aggregate amount of all dividends
theretofore and on such distribution or payment date paid thereon. If such
payment shall have been made in full to the holders of the Preferred Stock, the
remaining assets and funds of the corporation shall be distributed among the
holders of the Common Stock according to their respective shares.
6. Subject to the powers, preferences and rights and the qualifications,
limitations and restrictions thereof, with respect to each class of capital
stock of the corporation having any preference or priority over the Common
Stock, the holders of the Common Stock shall have and possess all rights
appertaining to capital stock of the corporation.
FIFTH: The name and mailing address of the incorporator is as follows:
William M. Curtis One Newport Place
Suite 700
Newport Beach, CA 92660
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders,
further provided:
<PAGE>
1. The number of directors of the Corporation shall not be less than three
nor more than twelve, the exact number within said limits to be fixed from time
to time by a vote of a majority of the directors then in office. In case of any
vacancies, by reason of an increase in the number of directors, resignation or
otherwise, directors to fill such vacancies shall be elected by a majority of
the directors then in office, and any such director so elected shall hold office
until the next succeeding annual election of stockholders.
2. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
and empowered:
(a) To make, alter, amend, and repeal Bylaws, subject to the power of
the stockholders to alter or repeal the Bylaws made by the Board of Directors.
(b) Subject to the applicable provisions of the Bylaws then in effect,
to determine, from time to time, whether and to what extent and at what times
and places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any . right to inspect any account
or book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
(c) Without the assent or vote of the stockholders, to authorize and
issue obligations of the Corporation, secured or unsecured, to include therein
such provisions as to redeemability, convertibility or otherwise, as the Board
of Directors, in its sole discretion, may determine, and to authorize the
mortgaging or pledging, as security therefor, of any property of the
corporation, real or personal, including after-acquired property.
(d) To determine whether any, and, if any, what part, of the net
profits of the Corporation or of its net assets in excess of its capital shall
be declared in dividends and paid to the stockholders, and to direct and
determine the use and disposition of any such net profits or such net assets in
excess of capital.
(e) To fix from time to time the amount of profits of the Corporation
to be reserved as working capital or for any other lawful purpose.
(f) To establish bonus, profit-sharing or other types of incentive or
compensation plans for the employees (including officers and directors) of the
Corporation and to fix the amount of profits to be distributed or shared and to
determine the persons to participate in any such plans and the amounts of their
respective participations.
(g) By resolution passed by a majority of the whole Board to designate
one or more committees to consist of three or more directors of the Corporation
which, to the extent provided in the resolution or in the By-Laws of the
Corporation, shall have and may exercise the powers 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,
such committee or committees to have such name or names as may be stated in the
By-Laws of the Corporation or as determined from time to time by resolution
adopted by the Board of Directors. In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon it, the Board of Directors
may exercise all such powers and do all such acts and things as may be exercised
<PAGE>
or done by the Corporation, subject, nevertheless, to the provisions of the laws
of the State of Delaware, of the Certificate of Incorporation and of the By-Laws
of the Corporation.
3. Any director or any officer elected or appointed by the stockholders,
or by the Board of Directors, may be removed at any time in such manner as shall
be provided in the By-Laws of the Corporation.
4. No contract or other transaction between the Corporation and any other
corporation and no other act of the Corporation shall, in the absence of fraud,
in any way be affected or invalidated by the fact that any of the directors of
the Corporation are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation. Any director of the Corporation
individually or any firm or association of which any director may be a member,
may be a party to, or may be pecuniarily or otherwise interested in, any
contract or transaction of the Corporation, provided that the fact that he
individually or such firm or association is so interested shall be disclosed or
shall have been known to the Board of Directors or a majority of such members
thereof as shall be present at any meeting of the Board of Directors at which
action upon any such contract or transaction shall be taken. Any director of the
Corporation who is also a director or officer of such other corporation or who
is so interested may be counted in determining the existence of a quorum at any
meeting of the Board of Directors which shall authorize any such contract or
transaction, and may vote thereat at authorize any such contract or transaction,
with like force and effect as if he were not such director or officer of such
other corporation or not so interested. Any director of the Corporation may vote
upon any contract or other transaction between the Corporation and any
subsidiary or affiliated corporation without regard to the fact that he is also
a director of such subsidiary or affiliated corporation.
Any contract, transaction or act of the Corporation or of the directors.,
which shall be ratified by a majority of a quorum of the stockholders of the
Corporation at any annual meeting, or at any special meeting called for such
purpose, shall, insofar as permitted by law or by the Certificate of
Incorporation, of the Corporation, be as valid and as binding as though ratified
by every stockholder of the Corporation; provided, however, that any failure of
the stockholders to approve or ratify any such contract, transaction or act,
when and if submitted, shall not be deemed in any way to invalidate the same or
deprive the Corporation, its directors, officers or employees of its or their
right to proceed with such contract, transaction or act.
5. Subject to any limitation in the By-Laws, the members of the Board of
Directors shall be entitled to reasonable fees, salaries or other compensation
for their services and to reimbursement for their expenses as such members.
Nothing contained herein shall preclude any director from serving the
Corporation, or any subsidiary or affiliated corporation, in any other capacity
and receiving proper compensation therefor.
6. If the By-Laws so provide, the stockholders and Board of Directors of
the Corporation shall have power to hold their meetings, to have an office or
offices and to keep the books of the Corporation, subject to the provisions of
the laws of Delaware, outside of said State at such place or places as may from
time to time be designated by them.
<PAGE>
7. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any courts of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code, or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs.
If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors and/or on
all the stockholders or class of stockholders of this Corporation, as the case
may be, and also on this Corporation.
8. Elimination of Certain Liability of Directors. A director of the
---------------------------------------------
corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
9. Indemnification and Insurance.
-----------------------------
(a) Right to Indemnification. Each person who was or is made a party or
------------------------
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
<PAGE>
as provided in paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in defend-
ing any such proceeding in advance of its final disposition: provided, however,
that, if the Delaware General Corporation Law requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
-------------------------------
this Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
-------------------------
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense,
---------
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
<PAGE>
SEVENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article SEVENTH.
IN WITNESS WHEREOF, the undersigned, being the incorporator hereinabove
named, does hereby further certify that the facts hereinabove stated are truly
set forth and accordingly have hereunto set my hand and seal.
Dated: October 27, 1986 ________________________
WILLIAM M. CURTIS
<PAGE>
Exhibit 3.1.1
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
ALLERGY IMMUNO TECHNOLOGIES, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation").
DOES HEREBY CERTIFY:
FIRST, that resolutions were duly adopted by the Board of Directors of the
Corporation setting forth a proposed amendment of the Certificate of
Incorporation of the Corporation, declaring said amendment to be advisable and
recommended for approval by the stockholders of the Corporation. The resolution
setting forth the proposed amendment as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Incorporation of
this Corporation be amended by changing the Article thereof numbered "IV"
to increase the number of shares of stock which the Corporation shall have
authority to issue from TWENTY MILLION ONE HUNDRED THOUSAND (20,100,000)
shares to FIFTY MILLION ONE HUNDRED THOUSAND (50,100,000) shares, FIFTY
MILLION of which shall be of a class designated as Common Stock with a par
value of ONE-TENTH OF ONE CENT ($.001) per share and ONE HUNDRED THOUSAND
of which shall be of a class designated as Preferred Stock with a par value
of ONE DOLLAR ($1.00) per share.
SECOND: That, thereafter, the stockholders of the Corporation approved
the amendment at the Annual Meeting of Stockholders duly called and held,
upon notice to the stockholders of the Corporation in accordance with said
Section 228 of the General Corporation Law of the State of Delaware.
<PAGE>
Exhibit 3.2
BYLAWS
OF
ALLERGY IMMUNO TECHNOLOGIES,
(a Delaware corporation)
ARTICLE I
Offices
1. The principal office of the corporation shall be at 229 South State
Street, in the City of Dover, County of Kent, State of Delaware, and the name of
the resident agent in charge thereof is The Prentice-Hall Corporation System,
Inc.
2. The corporation may also have an office or offices at such other place
or places, within or without the State of Delaware, as the Board of Directors
may from time to time designate or the business of the corporation may require.
ARTICLE II
Stockholders' Meeting
1. The annual meeting of the stockholders of the corporation shall be
held at the offices of the corporation in the City of Newport Beach and State of
California, or at such other place within or without the State of California as
may be determined by the Board of Directors and as shall be designated in the
notice of said meeting, for the purpose of electing directors and for the
transaction of such other business as may properly be brought before the
meeting. The annual meeting of stockholders shall be held on the 15th day of the
sixth month after the close of this corporation's fiscal year (or if said day be
a legal holiday, then on the next succeeding day not a legal holiday) at 3:00
o'clock P.M. or on such other date or time as may be determined by the Board of
Directors.
If the election of directors shall not be held on the day designated
herein 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
stockholders as soon thereafter as conveniently may be. At such meeting the
stockholders may elect the directors and transact other business with the same
force and effect as at an annual meeting duly called and held.
2. Special meetings of the stockholders shall be held at the principal
office of the corporation in the State of Delaware, or at such other place
within or without the State of Delaware as may be designated in the notice of
said meetings, upon call of the Board of Directors, and shall be called by the
Chairman of the Board or the President or the Secretary at the request in
writing of the stockholders owning of record at least twenty-five percent of the
issued and outstanding capital stock of the corporation entitled to vote
thereat.
<PAGE>
3. Notice of the purpose or purposes and of the time and place within or
without the State of Delaware of every meeting of stockholders shall be given by
the Chairman of the Board or the President or the Secretary or an Assistant
Secretary either personally or by mail or by telegraph or by any other lawful
means of communication not less than ten nor more than fifty days before the
meeting, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be directed to each stockholder at his address as it
appears on the stock book unless he shall have filed with the Secretary of the
corporation a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed or transmitted to the address
designated in such request. Such further notice shall be given as may be
required by law. Except as otherwise expressly provided by statute no
publication of any notice of meeting of stockholders shall be required to be
given any stockholder who shall attend such meeting in person or by proxy, or
who shall, in person or by attorney thereunto authorized, waive notice in
writing or by telegraph, cable, radio, or wireless either before or after of any
adjourned meeting of the stockholders of the corporation shall not be required
to be given.
4. A quorum at all meetings of stockholders shall consist of the holders
of record of a majority of the shares of stock of the corporation, issued and
outstanding, entitled to vote at the meeting, present in person or by proxy,
except as otherwise provided by statute or the Certificate of Incorporation. In
the absence of a quorum at any meeting or any adjournment thereof, a majority of
those present in person or by proxy and entitled to vote may adjourn such
meeting from time to time. At any such adjourned meeting at which a quorum is
present any business may be transacted which might have been transacted at the
meeting as originally called.
5. Meetings of the stockholders shall be presided over by the Chairman of
the Board. If there shall be no Chairman of the Board or if he is not present,
meetings of stockholders shall be presided over by the President. If either of
such officers are not present, meetings of the stockholders shall be presided
over by a chairman to be chosen by a majority of the stockholders entitled to
vote who are present in person or by proxy at the meeting. The Secretary of the
corporation, or in his absence, an Assistant Secretary, shall act as secretary
of every meeting, but if neither the Secretary nor an Assistant Secretary is
present, the meeting shall choose any person present to act as secretary of the
meeting.
6. Except as otherwise provided in the Bylaws, the Certificate of
Incorporation, or in the laws of the State of Delaware, at every meeting of the
stockholders, each stockholder of the corporation entitled to vote at such
meeting shall have one vote in person or by proxy for each share of stock having
voting rights held by him and registered in his name on the books of the
corporation at the time of such meeting. Any vote on shares of stock of the
corporation may be given by the stockholder entitled thereto in person or by his
proxy appointed by an instrument in writing, subscribed by such stockholder or
by his attorney thereunto authorized and delivered to the secretary of the
meeting. Except as otherwise required by statute, by the Certificate of
Incorporation or these Bylaws, all matters coming before any meeting of the
stockholders shall be decided by a plurality vote of the stockholders of the
corporation present in person or by proxy at such meetings and entitled to vote
thereat, a quorum being present. At all elections of directors the voting may
but need not be by ballot and a plurality of votes cast thereat shall elect.
<PAGE>
7. A complete list of the stockholders entitled to vote at the ensuing
election of directors, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder shall be prepared by the Secretary or other officer of the
corporation having charge of the stock ledger. Such list shall be open to the
examination of any stockholder during ordinary business hours, for a period of
at least ten days prior to the election, either at a place within the city, town
or village where the election is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at a place where said
meeting is to be held, and the list shall be produced and kept at the time and
place of election during the whole time thereof, and subject to the inspection
of any stockholder who may be present.
8. At all elections of directors, or in any other case in which
inspectors may act, two inspectors of election shall be appointed by the
chairman of the meeting, except as otherwise provided by law. The inspectors of
election shall take and subscribe an oath faithfully to execute the duties of
inspectors at such meeting with strict impartiality, and according to the best
of their ability and shall take charge of the polls and after the vote shall
have been taken shall make a certificate of the result thereof. If there be a
failure to appoint inspectors or if any inspector appointed be absent or refuse
to act, or if his office become vacant, the stockholders present at the meeting,
by a per capita vote, may choose temporary inspectors of the number required.
ARTICLE III
Directors
1. The property, affairs and business of the corporation shall be managed
by its Board of Directors consisting of not less than three (3) nor more than
twelve (12) persons. The exact number of directors within the maximum and
minimum limitations specified shall be fixed from time to time by resolution of
the Board of Directors. Except as hereinafter provided, directors shall be
elected at the annual meeting of the stockholders by plurality vote and each
director shall be elected to serve for one year and until his successor shall be
elected and shall qualify. Directors need not be stockholders.
2. Meetings of the Board of Directors shall be held at such place within
or outside the State of Delaware as may from time to time be fixed by resolution
of the Board of Directors, or as may be specified in the notice of the meeting.
Regular meetings of the Board of Directors shall be held at such times as may
from time to time be fixed by resolution of the Board of Directors, and special
meetings may be held at any time upon the call of the Chairman of the Board or
the President or a majority of the directors by oral, telegraphic or written
notice duly served on or sent or mailed to each director not less than one day
before such meeting. A meeting of the Board of Directors may be held without
notice immediately after the annual meeting of the stockholders. Notice need not
be given of regular meetings of the Board of Directors. Meetings may be held at
any time without prior notice if all of the directors are present, or if at any
time before or after the meeting those not present waive notice of the meeting
in writing.
3. A majority of the members of the Board of Directors then acting, but
in no event less than three (3) directors, acting at a meeting duly assembled,
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors there shall be less than a quorum present, a majority
of those present may adjourn the meeting, without further notice, from time to
time until a quorum shall have been obtained.
<PAGE>
4. In case one or more vacancies shall occur in the Board of Directors by
reason of death, resignation, increase in the number of directors or otherwise
except insofar as otherwise provided in these Bylaws, the remaining directors,
although less than a quorum, may, by a majority vote, elect a successor or
successors for the unexpired term or terms.
5. At any special meeting of the stockholders, duly called as provided in
these Bylaws, any director or directors may by the affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote for election of directors be removed from office, either with or without
cause, and his successor or their successors may be elected at such meeting; or
the remaining directors may, to the extent vacancies are not filled by such
election, fill any vacancy or vacancies created by such removal.
6. Any action required or permitted to be taken at any meeting of the
Board of Directors or 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 of Directors or of the committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
the committee.
7. Directors may, by resolution of the Board of Directors, be allowed a
fixed sum and expenses of attendance for attendance at regular or special
meetings of the Board of Directors; provided that nothing herein contained shall
be construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees, and others who attend pursuant to direction, may, by vote of the
Board of Directors, be allowed a like fixed sum and expenses of attendance for
attending committee meetings.
ARTICLE IV
Officers
1. The officers of the corporation shall be chosen by the Board of
Directors at its first meeting after the election of the directors by the
stockholders and shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary and a Treasurer. From time to time the Board of
Directors may appoint such Assistant Secretaries, Assistant Treasurers and such
other officers, agents and employees as it may deem proper. Any number of
offices, except the offices of President and Secretary, may be held by the same
person. The Chairman of the Board, if such office exists, shall be chosen from
among the directors.
2. The term of office of all officers shall be one year and until their
respective successors are elected and qualify, but any officer may be removed
from office, either with or without cause, at any time by the affirmative vote
of a majority of the members of the Board of Directors then in office. A vacancy
in any office arising from any cause may be filled for the unexpired portion of
the term by the Board of Directors.
<PAGE>
3. Unless otherwise ordered by the Board of Directors, the President
shall have full power and authority on behalf of the corporation to attend and
to act and to vote at any meetings of security holders of the corporations in
which the corporation may hold securities, and at such meeting shall possess and
may exercise any and all rights and powers incident to the ownership of such
securities, in which as the owner thereof the corporation might have possessed
and exercised, if present. The Board of Directors by resolution from time to
time may confer like power upon any other person or persons.
ARTICLE V
Duties of Officers
1. The Chairman of the Board shall chair the meetings of the Board of
Directors and shall have such other duties and powers as may be assigned to him
from time to time by the Board of Directors and shall preside at all meetings of
the stockholders and Board of Directors.
2. The President shall be chief executive officer of the corporation and
as such shall have general and active direction of the management and
supervision of the business operations of the corporation subject to any
limitations imposed by the Board of Directors. He shall have such other duties
and powers as may be assigned to him from time to time by the Board of Directors
and shall in the absence of the Chairman of the Board, preside at all meetings
of the stockholders and Board of Directors.
3. During the absence or disability of the President, the Vice
Presidents, in the order designated by the Board of Directors, shall exercise
all the functions of the President. Each Vice President shall have such powers
and discharge such duties as may be assigned to him from time to time by the
Board of Directors.
4. The Treasurer shall have the custody of all the funds and securities
of the corporation. When necessary or proper he shall endorse on behalf of the
corporation, for collection, checks, notes and other obligations and shall
deposit the same to the credit of the corporation in such bank, or banks, or
depositories as may be designated by the Board of Directors, or by any officer
acting under authority conferred by the Board of Directors. He shall enter
regularly in books to be kept for the purpose a full and accurate account of all
monies received and paid by him on account of the corporation. Whenever required
by the Board of Directors, he shall render an account of all his transactions as
Treasurer and of the financial condition of the corporation. He shall at all
reasonable times exhibit his books and accounts to any director of the corpora-
tion upon application at the office of the corporation during business hours and
he shall perform all things incident to the position of Treasurer, subject to
the control of the Board of Directors. He shall give bond for the faithful
discharge of his duties if the Board of Directors so require. He shall do and
perform such other duties as may be assigned to him from time to time by the
Board of Directors.
5. The Assistant Treasurers, in the order of their seniority, shall, in
the absence of or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties as the Board of
Directors shall prescribe.
<PAGE>
6. The Secretary shall attend all meetings of the stockholders and all
meetings of the Board of Directors, and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for other committees when so required. He shall give, or cause to be given,
notice of all meetings of stockholders and the Board of Directors and of
committees and shall perform such other duties as may be prescribed by the Board
of Directors. He shall keep in safe custody the seal of the corporation and
affix the same to any instrument whose execution has been authorized. He shall
be sworn to the faithful discharge of his duties. He shall do and perform such
other duties as may be assigned to him from time to time by the Board of
Directors.
7. The Assistant Secretaries, in the order of their seniority, shall, in
the absence of or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as the Board of
Directors shall prescribe.
8. In the case of absence or inability to act of any officer of the
corporation and of any person herein authorized to act in his place, the Board
of Directors may from time to time delegate the powers and duties of such
officer to any other officer or any director or any other person whom it may
select.
ARTICLE VI
Certificates of Stock
1. The interest of each stockholder of the corporation shall be evidenced
by certificates for shares of stock certifying the number of shares represented
thereby and in such form not inconsistent with the Certificate of Incorporation
as the Board may from time to time prescribe.
Except as otherwise required by law, transfers of shares of stock of
the corporation shall be made only on the books of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the corporation, or with
a transfer clerk or a transfer agent appointed as in Section 4 of this Article
provided, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the corporation shall be deemed the owner
thereof for all purposes as regards the corporation. The Board may, from time to
time, make such additional rules and regulations as it may deem expedient, not
inconsistent with these Bylaws, concerning the issue, transfer, and registration
of certificates for shares of the capital stock of the corporation.
The certificates of stock shall be signed by the Chairman of the Board or
the President or a Vice President and by the Secretary or an Assistant Secretary
or the Treasurer or an Assistant Treasurer, and sealed with the seal of the
corporation. Such seal may be a facsimile, engraved or printed. Where any such
certificate is signed by a transfer agent other than the corporation or its
employee, or by a registrar other than the corporation or its employee, the
signatures of the Chairman of the Board, President, Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer upon such certificate may
be facsimiles, engraved or printed. In case any such officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such before such certificate is issued, it may be issued by the
corporation with the same effect as if such officer had not ceased to be such at
the time of its issue.
<PAGE>
2. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders of any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may f ix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If no record date is fixed:
The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
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
adjournment meeting.
3. No certificate for shares of stock of the corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or stolen,
except on production of such evidence of such loss, destruction or theft and on
delivery to the corporation, if the Board of Directors shall so require, of a
bond of indemnity in such amount (not exceeding twice the value of the shares
represented by such certificate), upon such terms and secured by such surety as
the Board of Directors may in its discretion require.
4. The Board of Directors may appoint one or more transfer clerks or one
or more transfer agents and one or more registrars, and may require all
certificates for shares of stock to bear the signature or signatures of any of
them.
5. The books, accounts and records of the corporation, except as may
otherwise be required by statute, may be kept outside of the State of Delaware,
at such place or places as the Board of Directors may from time to time appoint.
The Board of Directors shall determine whether and to what extent the books,
accounts and records of the corporation, or any of them, other than the stock
ledger, shall be open to the inspection of stockholders, and no stockholder
shall have any right to inspect any book, account or record of the corporation
except as conferred by statute or by resolution of the Board of Directors.
<PAGE>
ARTICLE VII
Corporate Seal
The corporate seal of the corporation shall consist of two concentric
circles, between which shall be the name of the corporation, and its state of
incorporation, and in the center shall be inscribed the words, "Corporate Seal".
ARTICLE VIII
Amendments
The Bylaws of the corporation shall be subject to alteration, amendment or
repeal, and new Bylaws not inconsistent with any provision of the Certificate of
Incorporation or statute, may be made, either by the affirmative vote of the
holders of a majority in interest of the stockholders of the corporation present
in person or by proxy at any annual or special meeting of the stockholders and
entitled to vote thereat a quorum being present, provided that notice of such
proposed action shall have been given in the call for the meeting, or by the
affirmative vote of a majority of the whole Board, given at any regular or
special meeting of the Board of Directors.
Exhibit 16.1
CORBIN & WERTZ
Certified Public Accountants / Business Consultants
An Acounting Corporation
June 10, 1999
Office of the Chief Accountant
SECPS Letter File
Securities and Exchange Commission
Mail Stop 9-5
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: General Form for Registration of Securities on Form 10-SB for Allergy
Immuno Technologies, Inc.
We have read Part II, Item 3 included in the quarterly report on Form 10-SB for
Allergy Immuno Technologies, Inc. (Commission File No. 000-26189) dated May 25,
1999 filed with the Securities and Exchange Commission and are in agreement with
the statements contained therein.
CORBIN & WERTZ
cc: Ms. Janet Moore
Exhibit 99.1
ALLERGY IMMUNO TECHNOLOGIES, INC.
1527 Monrovia Avenue
Newport Beach, CA 92663
714-645-3703
FAX (714) 722-6674
For Immediate Release
September 4, 1997
PRESS RELEASE Howard Wertheim, D.M.D.
Phone: 714-645-3703
ALLERGY IMMUNO TECHNOLOGIES, INC. ANNOUNCES THE LAUNCHING OF ITS
WORLD WIDE WEB SITE
Newport Beach, California - September 4, 1997 -Allergy Immuno Technologies
(symbol: ALIM), a biotechnology company, engaged in both research and
development of new treatments for allergy patients as well as a specialized
allergy testing laboratory, announced today that the Company can now be accessed
via the World Wide Web at http://www.allerqyimmuno.com
----------------------------
An Allergy Newsletter containing current allergy news is available on the site
as well as a schedule of laboratory services, corporate, and investor
information.
# # #
Allergy Immuno Technologies, Inc. is a biopharmaceutical company developing new
therapies for allergy treatment. The Company's laboratory division provides
specialized testing services to doctors, clinical labs and pharmaceutical
companies. AIT has several patents including new technology for the treatment of
allergies via oral application.
<PAGE>
Exhibit 99.1.1
ALLERGY IMMUNO TECHNOLOGIES, INC.
1527 Monrovia Avenue
Newport Beach, CA 92663
714-645-3703
FAX (714) 722-6674
NEWS
FOR IMMEDIATE RELEASE
---------------------
CONTACT: PUBLIC RELATIONS
949-645-3703
WALK-IN LOW COST ALLERGY SCREENS NOW OFFERED
THROUGH UCI HEALTH SYSTEMS
Newport Beach, California - January 6, 1999 - Allergy Immuno Technologies
(symbol: ALIM), is proud to announce an agreement with UCI HealthSystem to
provide low cost allergy screens to the public. Screening for five common foods
and/or twelve inhalants can be performed from a single blood sample for only
$25 each or $40 for both.
If screen is positive, the same specimen can be used to pinpoint the specific
allergen for an additional charge. "Our low cost screening will give the general
public an opportunity for allergy screening without the high costs or
discomfort of traditional skin testing" said Zackary S. Irani, AIT CEO.
# # #
Allergy Immuno Technologies, Inc. is a biopharmaceutical company developing new
therapies for allergy treatment. The Company's laboratory division provides
specialized testing services to doctors, clinical labs and pharmaceutical
companies. AIT has several patents including new technology for the treatment of
allergies via oral application.
