UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 8-K/A
Amendment No. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: November 4, 1996
(Date of Earliest Event Reported): __________
NOTE BANKERS OF AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Texas 0 - 12240 84-0882076
(state or other (Commission File (I.R.S. Employer
jurisdiction of Number) identification No.)
incorporation)
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
(Address of Principal Executive Offices)(Zip Code)
(713) 840-0230
(Registrant's telephone number, including area code)
GENERAL GENETICS CORPORATION
(Former name or former address, if changed since last report.)
<PAGE>
NOTE: Unless otherwise indicated, hereafter all references to common shares
give effect to a 1 for 20 reverse stock split described herein.
ITEM 1. Changes in Control of Registrant.
On September 15, 1996, Note Bankers of America, Inc. f/k/a General Genetics
Corporation (the "Registrant") consummated an exchange (the "Exchange") of
securities with Private Mortgage Bankers, Inc. ("PMB") pursuant to which
control of the Registrant shifted to Allen E. Meyers and E. Donald DeYoung,
the principal shareholders (the "Principal Shareholders") of PMB. 20, 313,000
shares of the Registrant's "unregistered" and "restricted" common stock was
issued to the holders of stock interests in PMB. Such shares were issued in
exchange for common stock of PMB held by the Principal Shareholders and
representing an aggregate of 100% of the outstanding common stock of PMB at
the time of Exchange. 1,529,000 of these shares were conveyed to certain
consultants retained by the PMB shareholders to assist in the Exchange.
Messrs. Meyers and DeYoung each received 9,392,000 shares of common stock of
the Registrant pursuant to the Exchange, representing approximately 42.6% each
of the outstanding stock of the registrant following the Exchange.
Pursuant to the terms of the Exchange, Messrs. Allen E. Meyers, E. Donald
DeYoung and Louis Blenderman were elected to the board of directors of the
Registrant, each of whom were nominees designated by PMB.
ITEM 2. Acquisition or Disposition of Assets.
On September 15, 1996, the Registrant consummated the acquisition of 100% of
the common stock of Private Mortgage Bankers, Inc. pursuant to an Agreement
for Exchange of Stock and Plan of Reorganization ("Exchange") dated July 31,
1996 between (i) the Registrant,(ii) PMB, and (iii) Allen E. Myers, the record
owner of 40,000 shares of capital stock of PMB which constituted 100% of the
issued and outstanding capital stock of PMB ("PMB Shareholders"). NBA
exchanged, in a stock for stock exchange, a total of 20,313,000 shares of its
$.001 par value per share common stock for 100% of the issued and outstanding
shares of capital stock of PMB, making PMB a wholly owned subsidiary of NBA.
No cash or other consideration was tendered in connection with the Exchange.
Upon completion of the Exchange NBA had a total of 21,790,000 of its $.001 par
value per share common stock issued and outstanding, of which a total of
18,784,000 shares or 86.1% are held by the PMB Shareholders and 2,906,000 were
held by non-PMB shareholders.
PMB is a Texas corporation in the business of purchasing discounted real
estate mortgage notes. PMB has a wholly owned subsidiary, Life Today, Inc.
("LTI"), a Texas corporation, that is a multi-state registered viatical
settlement broker in the purchase of the death benefit of life insurance
policies from terminally ill individuals ("viatical settlements").
The shares of Common Stock received by the stockholders of PMB are not
registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon Section 4(2) of the Securities Act.
The transaction was accomplished through arms-length negotiations between
NBA's former management and PMB's management. There was no material
relationship between the stockholders of PMB or any of PMB's affiliates, any
of Registrant's directors or officers, or any associate of any such Registrant
director or officer, prior to this transaction.
<PAGE>
Registrant's press release issued October 17, 1996 regarding the consummation
of the Acquisition is attached as an exhibit to this report and is
incorporated herein by reference.
The Registrant's acquisition of Private Mortgage Bankers, Inc. represents a
reverse acquisition, whereby for accounting purposes, Private Mortgage
Bankers, Inc. was the acquiror. For financial statement purposes, the
historical financial statements of the Registrant will be those of Private
Mortgage Bankers, Inc. beginning on the closing date of the acquisition.
In connection with the completion of the Exchange, at a special meeting of GGC
shareholders held on August 30, 1996, the shareholders approved and authorized
the merger of GGC into Note Bankers of America, Inc., its wholly owned Texas
subsidiary, for the purpose of changing the company's name and changing its
state of domicile to Texas. The merger of GGC into NBA was effected September
24, 1996 with the simultaneous filing of certificates of merger in Texas and
Delaware. Pursuant to the Merger, each post-reverse split common share of GGC
is to be exchanged for one common share of NBA, so that the capitalization of
NBA is the same as post-reverse split GGC.
ITEM 4. Changes in registrant's Certifying Accountant.
(a) On September 11, 1996, the Board of Directors of the Registrant
engaged the accounting firm of Hein + Associates LLP as independent
accountants for Registrant for the fiscal year ending June 30, 1996.
The work of Paul Rosenberg, C.P.A. was terminated at the same meeting.
(b) During the two fiscal years ended June 30, 1995 and 1994 and interim
periods, there have been no disagreements with Paul Rosenberg, C.P.A.
on any matter of accounting principles or practices, financial
statement disclosure, or auditing scope or procedure or any reportable
events.
(c) Paul Rosenberg's report on the financial statements for the two fiscal
years ended June 30, 1995 and 1994 contained no adverse opinion or
disclaimer of opinion and was not qualified or modified as to
uncertainty, audit scope or accounting principles.
(d) The Registrant has requested that Paul Rosenberg, C.P.A., furnish it
with a letter addressed to the Securities and Exchange Commission
stating whether or not it agrees with the statements made by the
Registrant in response to this item 4 and if not, stating the respects
in which it does not agree. The Registrant delivered a copy of this
Form 8-K/A report to Paul Rosenberg, C.P.A. on November 4, 1996. The
Registrant will file by amendment, as an exhibit to this Form 8-K/A
report, a copy of such letter when received.
ITEM 5. Other Events.
In connection with the Exchange and the change in control of Registrant, the
Registrant (1) relocated its principal executive offices to the offices of PMB
located at 770 S. Post Oak Lane, Suite 690, Houston, Texas 77056; (2) amended
its Articles of Incorporation; (3) approved a 1-for-20 reverse stock split
(post Exchange) and increased its authorized shares to 500,000,000 with a par
value of $.001. Additionally, Hans Morkner, President of the Registrant prior
to the Exchange resigned and the Registrant appointed the following officers:
Allen E. Myers Chairman and CEO
E. Donald DeYoung President
William T. Herndon Secretary/Treasurer
<PAGE>
Unless otherwise indicated, hereafter all references to common shares gives
effect to the 1 for 20 reverse stock split.
As of July 31, 1996, Registrant had issued and outstanding 250,000 (5,000,000
pre-reverse split) shares of its $.001 par value common stock. The issued and
outstanding shares included 23,000 (460,000 pre-reverse split) shares issued
in partial fulfillment of a subscription for 1,250,000 (25,000,000 pre-reverse
split) shares in a private placement pursuant to Regulations S completed on
July 11, 1996. On July 31, 1996, GGC entered into the Exchange with PMB. The
Exchange required GGC to submit the Exchange to its shareholders for approval,
including ratifying an increase of its authorized common stock from 5,000,000
authorized to 500,000,000 authorized; the issuing of 20,313,000 (406,260,000
pre-reverse split) shares of GGC in exchange for 100% of the issued and
outstanding share interests of PMB; approving and effecting a 1 for 20 reverse
split of its common stock outstanding; and changing the name of GGC to Note
Bankers of America, Inc.
At a special meeting of GGC shareholders held on August 30, 1996, the
shareholders approved the Exchange; approved and ratified the increase of
authorized common shares to 500,000,000 shares; approved creation of
150,000,000 "blank check" preferred shares; approved the 1 for 20 reverse
split of its outstanding common stock; and authorized the merger of GGC into
Note Bankers of America, Inc., a wholly owned Texas subsidiary, for the
purpose of changing the company's name and changing its state of domicile to
Texas. At a meeting held on August 30, 1996 immediately after the shareholder
meeting, the newly elected board of directors approved the issuance of all
shares necessary to effect the Exchange and approved the 1 for 20 reverse
stock split effective the opening of business September 25, 1996. The merger
of GGC into its wholly owned subsidiary, Note Bankers of America, Inc., was
effected September 24, 1996 with the simultaneous filing of certificates of
merger in Texas and Delaware. Pursuant to the Merger, each post-reverse split
common share o GGC is to be exchanged for one common share of NBA, so that the
capitalization of NBA is the same as post-reverse split GGC. As of the
opening of business September 25, 1996 NBA traded in the over-the-counter
market and was quoted in the National Association of Securities Dealers
Inter-dealer Quotation ("NASDAQ") system giving effect to the 1 for 20 reverse
stock split under the name Note Bankers of America, Inc., NASDAQ symbol
"NBAI", and under the new cusip number 669 75L 105.
Giving effect to the consummation of the Exchange, the reverse stock split of
GGC, the merger of GGC into NBA, and subsequent private placements, there are
currently 22,430,000 shares outstanding in NBA.
ITEM 6. Resignations of Registrant's Directors.
In connection with the Exchange and the change in control of Registrant, Ty
Porier, the sole remaining director declined to stand for re-election and
resigned effective September 30, 1996. The letter of resignation did not
request the disclosure of any disagreement with Registrant regarding the
resignation or refusal to stand for re-election.
ITEM 7. Financial Statements and Exhibits.
Registrant is an eligible Small Business Issuer and elects to make required
disclosures pursuant to Regulation S-B and prepare financial statements in
accordance with Item 310 of Regulation S-B.
<PAGE>
(a) Financial Statements of Businesses Acquired
It is impractical to provide the required financial statements
for Private Mortgage Bankers, Inc. at the time this report is
being filed. The required financial statements of PMB will be
filed as an amendment to this report on Form 8-K/A as soon as
practicable but not later than 60 days after the date this
report must be filed .
(b) Pro Forma Financial Information
It is impractical to provide the required pro forma financial
information for Private Mortgage Bankers, Inc. at the time this
report is being filed. The required pro forma financial
information of PMB will be filed as an amendment to this report
on Form 8-K/A as soon as practicable but not later than 60 days
after the date this report must be filed.
(c) Exhibits
2.1 Agreement for Exchange of Stock and Plan of
Reorganization ("Exchange") dated July 31, 1996.
2.2 Plan of Consolidation Merging General Genetics
Corporation (Parent) Into Note Bankers of America,
Inc. (Subsidiary) dated September 30, 1996.
3(i) Articles of Incorporation of Note Bankers of
America, Inc.
3(ii) Bylaws of Note Bankers of America, Inc.
16.1 Letter from Paul Rosenberg on change in certifying
accountant (1)
99.1 Press Release issued October 17, 1996 announcing
the consummation of the Exchange.
(1) To be filed by amendment.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NOTE BANKERS OF AMERICA, INC.
Dated: November 4, 1996 BY: /S/ E. Donald DeYoung
E. DONALD DEYOUNG, President
<PAGE>
NOTE BANKERS OF AMERICA, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
<C> <S> <C>
2.1 Agreement for Exchange of Stock and Plan of 8
Reorganization dated July 31, 1996.
2.2 Plan of Consolidation Merging General Genetics 15
Corporation (Parent) Into Note Bankers of
America, Inc. (Subsidiary) dated September 30,
1996.
3(i) Articles of Incorporation of Note Bankers of 20
America, Inc.
3(ii) Bylaws of Note Bankers of America, Inc. 26
16.1 Letter from Paul Rosenberg on change in
certifying accountant (1)
99.1 Press Release issued October 17, 1996 44
announcing the consummation of the Exchange.
</TABLE>
(1) To be filed by amendment.
<PAGE>
EXHIBIT 2.1
AGREEMENT FOR EXCHANGE OF STOCK
-------------------------------
AND
---
PLAN OF REORGANIZATION
----------------------
THIS AGREEMENT, made this ____ day of August 1996, between GENERAL
GENETICS CORPORATION, a publicly traded, Delaware Corporation, hereinafter
referred to as "GENG" and PRIVATE MORTGAGE BANKERS, INC. AND ITS WHOLLY OWNED
SUBSIDIARIES, Texas based Corporations, hereinafter referred to as "PMB."
1. PLAN OF REORGANIZATION: STOCKHOLDER is the owner of all
of the issued and outstanding capital stock of PMB. It is the intention of
the parties hereto that all of the issued and outstanding capital stock of PMB
be acquired by GENG in exchange for certain of its capital stock, as
hereinafter set forth.
2. GENG CAPITALIZATION: The authorized capital stock of
GENG consists of five million (5,000,000) shares of common stock, with a par
value of one one-thousandth of a dollar ($0.001) per share, of which, as of
the date hereof, and as of the closing date, five million (5,000,000) shares
are issued and outstanding and owned of record by stockholders as appears in
the records of the Continental Stock Transfer and Trust Co. of New York, NY
(Transfer Agent), and no other shares of GENG have been issued or are
outstanding.
On or before fifteen (15) days prior to the closing date as hereinafter
set forth, a stockholder list, certified as accurate by the Transfer Agent,
shall be furnished to PMB and STOCKHOLDER.
All issued and outstanding shares of the capital stock of GENG have been
duly authorized, validly issued and are fully paid and non-assessable. At the
closing date, there will exist no pre-emptive rights on the part of any holder
of any class of securities of GENG and no options, warrants, conversions or
other rights, agreements or commitments of any kind obligating GENG, or its
stockholders, contingently or otherwise, to issue or sell any shares of GENG
stock of any class or any securities convertible into or exchangeable for any
such shares OTHER THAN WHAT IS COVERED IN PARAGRAPH 9 (B). All issued and
outstanding shares shall contain no liens, claims or encumbrances of any kind.
The shares of GENG are trading in the "over the counter" market and the
bid and ask price on the date of this Agreement as quoted by NASDAQ Bulletin
Board is; ask,bid. It is the representation of GENG that GENG is a
publicly-trading company and that all filings required by state and federal
agencies have been complied with and are current. This matter is further
addressed in Paragraph 7 (i) hereof.
3. EXCHANGE OF SHARES AND ACQUISITION OF PMB: As set forth
above, GENG capitalization consists of five million (5,000,000) shares of
common stock with five million (5,000,000) shares issued and outstanding. It
is a specific representation by GENG that the officers, directors and
shareholders of GENG shall forthwith do such things as are incidental and
necessary to cause a change in the authorized capital from 5,000,000 to
500,000,000 common shares with a par value of $.001, add 100 million
Preferred Class A shares; 50 million Class B Preferred shares; and 150 million
warrants to purchase common stock and a twenty-to-one (20:1) reverse stock
split, which will result in two hundred fifty thousand (250,000) new shares
being exchanged for the five million (5,000,000) shares presently outstanding.
In this connection, the officers and directors will be instructed to do all
things necessary to accomplish this end, including, but not limited to the
following:
<PAGE>
(a) adopt appropriate reorganization resolutions in compliance with
the Articles of Incorporation and the appropriate Bylaw provisions which will
amend the Articles of Incorporation in a manner necessary to accommodate the
change in the authorized capital from 5,000,000 Common Shares par value $.001
to 500,000,000 Common Shares par value $.001, add 100 million Preferred Class
A shares; 50 million Class B Preferred shares; and 150 million warrants to
purchase common stock, the issuance of four hundred six million two hundred
sixty thousand (406,260,000) pre-rollback (20:1) shares to STOCKHOLDER in
compliance with the Plan of Reorganization as set forth herein, and the
reverse split of twenty-to-one (20:1);
(b) adopt a resolution calling a special shareholders meeting, in
compliance with all Articles of Incorporation and Bylaw provisions, to present
the Plan of Reorganization contemplated herein which will include all
necessary authority for the reverse split provisions, including an amendment
to the Articles of Incorporation in a form and manner necessary and provide
for the acquisition of PMB by the issuance of four hundred six million two
hundred sixty thousand (406,260,000) pre-rollback (20:1) shares to
STOCKHOLDER;
(c) thereafter provide the Transfer Agent with appropriate notices to
be sent to all shareholders and to otherwise ensure that proper notice and
information filings be done to comply with any and all state and federal
regulatory agencies to ensure the continuity of the publicly tradable share
characterization, including but not limited to the maintenance of the original
stock issue date and to cause a notice of this action to be communicated to
any GENG market maker and published in a securities publication in a manner
that will provide due diligence notice to the securities industry.
(d) the four hundred six million two hundred sixty thousand
(406,260,000) pre-rollback (20:1) shares mentioned herein, which shall be
issued to STOCKHOLDER at the closing as hereinafter defined, shall be
delivered to STOCKHOLDER in such denominations as STOCKHOLDER may instruct,
solely in exchange for STOCKHOLDER's forty thousand (40,000) shares of
no par stock value in PMB as set forth herein. Such shares shall be issued
and certificates delivered in such denomination amount(s) and name(s) as may
be requested by STOCKHOLDER. STOCKHOLDER represents and warrants that the
shares will be held for investment and not for resale, and in this connection
STOCKHOLDER if required will execute an Investment Letter prepared by GENG's
attorney and made a part hereof. The certificates shall contain the transfer
restriction legend prepared by GENG's attorney.
4. DELIVERY OF PMB SHARES: On the closing date,
STOCKHOLDER will deliver, at its expense, certificates for the forty
thousand (40,000) common shares of no par stock value of PMB duly
endorsed with signature(s) guaranteed and, if GENG's counsel requires,
document stamps will be affixed thereto so as to make GENG the sole owner
thereof, free and clear of all claims and encumbrances. On such closing date,
delivery of the duly endorsed four hundred six million two hundred sixty
thousand (406,260,000) pre-rollback (20:1) GENG shares on which documentary
stamp taxes, if the opinion of counsel requires, will have been paid by GENG.
Delivery of these shares will be made to STOCKHOLDER as above set forth.
<PAGE>
5. REPRESENTATIONS OF STOCKHOLDER: STOCKHOLDER represents and
warrants as follows:
(a) At this date and on the closing date, STOCKHOLDER will be the
sole owner of all outstanding shares of PMB. Such shares will be free from
claims, liens or other encumbrances and STOCKHOLDER will have unqualified
right to transfer such shares.
(b) The shares constitute validly issued shares of PMB, fully paid
and non-assessable. There is attached hereto, marked Exhibit "B" and made a
part hereof, a Financial Statement of PRIVATE MORTGAGE BANKERS, INC. AND ITS
WHOLLY OWNED SUBSIDIARIES. These Financial Statements have been prepared in
compliance with and in accordance with generally accepted accounting practices
and procedures in the state of Texas.
(c) Since the date of Exhibit "B" there have not been, and prior to
the closing date there will not be, any material changes in the financial
position of PMB except changes arising in the ordinary course of business.
The Financial Statement as above set forth shall reasonably reflect the
statement (Exhibit "B") delivered herewith.
(d) PMB is not involved in any pending litigation or governmental
investigation or proceeding not reflected in such Financial Statement or
otherwise disclosed in writing to GENG and to the knowledge of PMB or
STOCKHOLDER, no litigation or governmental investigation or proceeding is
threatened against PMB.
(e) As of the closing date, PMB will be in good standing as an Texas
corporation and a closing document will reflect this status.
6. OPINION OF COUNSEL: At closing, PMB shall deliver an
attorney's opinion reflecting that PMB is a Texas corporation in good standing
and the person executing this document and any other document(s) necessary to
complete this transaction has been duly authorized by the board of directors
and STOCKHOLDER to do so and that such action is taken in compliance with all
of the terms and conditions of the Articles of Incorporation and Bylaws of
PMB.
7. REPRESENTATIONS OF GENG:GENG represents and warrants as follows:
(a) GENG has delivered to STOCKHOLDER and PMB form 10KSB, which does
not reflect a transition period covered by the 10KSB, but contains Financial
Statements prepared by, Paul Rosenberg Certified public accountants,
dated, June 30, 1995, and form 10Q for the quarter ended, March
31, 1996 which contains an unaudited Financial Statement dated March 31,
1996 . The 10KSB and 10Q referred to are by reference made a part of this
Agreement. The Financial Statement of GENG will be delivered at closing and
will reflect substantially the financial information as contained in said
10KSB and 10Q.
<PAGE>
(b) GENG's board of directors and shareholders will adopt resolutions
as set forth in Paragraph Three (3) hereof and will thereafter immediately
call a shareholders meeting pursuant to the Articles of Incorporation and
Bylaws of GENG and within the least period of time provided in said Bylaws
present all of the matters contained in this Agreement to a vote of the
shareholders with recommendation of passage. In addition to the matters set
forth in said Paragraph Three (3) above, a resolution shall be presented
ratifying and confirming all actions taken by the officers and directors of
GENG in the furtherance of this Agreement.
(c) As of the closing date, GENG's shares to be delivered to
STOCKHOLDER will constitute the valid and legally issued shares of GENG, fully
paid and non-assessable, and will be legally equivalent in all respects to the
common stock of GENG issued and outstanding as of the date hereof, except as
reflected in the reverse split provision.
(d) The officers of GENG are duly authorized to execute this
Agreement pursuant to authorization of its shareholders.
(e) GENG's Financial Statements as reflected in the forms 10KSB and
10Q are true and complete statements of its financial condition as of those
dates. Prior to the closing, 10Qs for March 1996, be provided. There
are no substantial liabilities, either fixed or contingent, not reflected in
such Financial Statements and the corporation will have done nothing that will
alter its financial condition as reflected in such Financial Statements.
(f) GENG is not involved in any pending litigation or governmental
investigation or proceeding not reflected in such Financial Statement or
otherwise disclosed in writing to STOCKHOLDER and PMB and to the knowledge of
GENG, no litigation or governmental investigation or proceeding is threatened
against GENG.
(g) As of the closing date, GENG will be in good standing as a
Delaware corporation and as a closing document, a Certificate of Good Standing
will be delivered.
(h) The shares of PMB are being acquired by GENG as an investment and
there is no present intention on the part of GENG to dispose of such shares.
(i) The company attorney representing GENG shall deliver to
STOCKHOLDER and PMB at closing an opinion acceptable to STOCKHOLDER and PMB
that all actions taken by GENG in connection with the Plan of Reorganization,
including a duly called shareholders meeting and ratification and confirmation
of such plan; its standing as a publicly-traded company is in good standing
with all filings current; and that all actions taken in connection with
complying with the provisions of this Agreement, including but not limited to
the Plan of Reorganization, the issuance of the four hundred six million two
hundred sixty thousand (406,260,000) pre-rollback shares to STOCKHOLDER, the
compliance with the Bylaws and Articles of Incorporation in the adoption of
the Plan of Reorganization, the amendment to the Articles of Incorporation and
any other action taken incidental to this Agreement, have complied with the
laws of Delaware, CONFORM TO THE RULES AND REGULATIONS OF THE SECURITIES AND
EXCHANGE COMMISSION, and are in compliance with the terms, conditions and
provisions of the Articles of Incorporation and the Bylaws of GENG and that
the person(s) executing the documents have the legal authority to do so.
Copies of all reorganization documents will be available at closing.
<PAGE>
8. CONDITIONS AND CLOSING DATE: The closing date hereof
and referred to variously herein shall be a date not later than, September
15, 1996 unless extended by written mutual consent of the parties. All
representations and covenants herein shall survive the closing. At the
closing, STOCKHOLDER and PMB hereby designate, nominate, constitute and
appoint E. Donald DeYoung as agent and attorney-in-fact to accept delivery
of the certificate of GENG's stock, to be issued in such manner as said
attorney-in-fact may designate, to acknowledge compliance with the closing
provisions contained herein, to give a good and sufficient receipt for the
same, and in connection therewith, to make delivery of PMB's stock to GENG and
to do such other things as may be incidental or necessary in the closing of
this transaction. This Power of Attorney shall cease and be of no further
force and effect in the event STOCKHOLDER shall be available at closing.
9. PROHIBITED ACTS: GENG and PMB agree not to do any of
the following things prior to the closing date and STOCKHOLDER agrees that
prior to the closing date STOCKHOLDER will not request or permit PMB to do any
of the following things:
(a) Declare or pay any dividends or other distribution on its stock
or purchase or redeem any of its stock.
(b) Issue any stock or other securities, including any right or
option to purchase or otherwise acquire any of its stock or issue any notes or
other evidence of indebtedness not in the usual course of business. OTHER THAN
GENG ISSUING 24,540,000 MILLION PRE-ROLLBACK SHARES OF REG S TO A GROUP OF
EUROPEAN INVESTORS AND 5,000,000 MILLION PRE-ROLL BACK RESTRICTED UNDER RULE
144 TO COVER CONSULTING FEES.
10. DELIVERY OF RECORDS: STOCKHOLDER and PMB agree that on or
before the closing date they will cause to be delivered to GENG such corporate
records or other documents as GENG may request. GENG shall deliver to
STOCKHOLDER and PMB a certified shareholder list prepared by the Transfer
Agent. The Transfer Agent's certification must reflect any restrictions of
any kind or nature placed on the transferability or otherwise with respect to
any of the shares of GENG outstanding.
11. NOTICES: Any notice which any of the parties hereto may
desire to serve upon any of the other parties hereto shall be in writing and
shall be conclusively deemed to have been received by the party to whom
addressed if mailed, postage prepaid, United States certified mail, to the
following addresses:
GENG 3170 De La Cruz Suite 108
-----------------------------
Santa Clara, CA 95054
-----------------------------
PMB 770 South Post Oak Lane, #690
-----------------------------
Houston, TX 77056-1913
-----------------------------
<PAGE>
12. CONSTRUCTION: This Agreement shall be construed under the
laws of the State of Texas and any action taken by any party shall be brought
in the State of Texas and the execution hereof confers jurisdiction in Texas
to all of the parties to this Agreement.
13. BINDING NATURE: This Agreement shall be binding upon and
insure to the benefit of the heirs, personal representatives, successors and
assigns of the parties.
14. CONFIDENTIALITY: All matters contained in this Agreement
are to be held confidential except as is necessary to accomplish the purposes
of this Agreement. There shall be no news releases or announcements of any
kind until such time as GENG and PMB's counsel advises the parties that such
publication and notice is in compliance with security trading rules generally
relating to the contents, execution and culmination of the terms of this
Agreement. Provided further that any release of any kind by either party
prior to closing must be approved by all parties to this Agreement.
15. FAX TRANSMISSIONS: Fax transmissions of executed documents
with hard copies mailed per this Agreement shall be considered as binding on
the parties from the time of such fax transmission.
16. MULTIPLE ORIGINALS: This Agreement shall be executed
in multiple counterparts, each of which shall be deemed duplicate originals as
of the date first above written.
17. EXPENSES: Each party hereto shall pay its own expenses
incurred in connection with this Agreement.
18. BROKERS: The parties certify and agree that there were no
brokers involved in this transaction and there are no fees payable to brokers
as a result of this transaction.
19. NON-ASSIGNABILITY: Each party agrees that it will not
assign, sell, transfer, delegate or otherwise dispose of any right or
obligation under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
<PAGE>
GENERAL GENETICS CORPORATION PRIVATE MORTGAGE BANKERS, INC.
By /S/ Hans Morkner By /S/ Allen E. Myers
- ---------------------------- -----------------------------------
PRESIDENT ALLEN E. MYERS/PRESIDENT
STOCKHOLDERS
By /S/ Allen E. Myers
-----------------------------------
ALLEN E. MYERS/40,000 SHARES - 100%
<PAGE>
EXHIBIT 2.2
PLAN OF CONSOLIDATION
MERGING
GENERAL GENETICS CORPORATION
(PARENT)
INTO
NOTE BANKERS OF AMERICA, INC.
(SUBSIDIARY)
AGREEMENT OF MERGER entered into as of the 30th day of August, 1996, made
by and between Note Bankers of America, Inc. ("NBA"), a corporation organized
and existing under the laws of the State of Texas, and General Genetics
Corporation ("GGC"), a corporation organized and existing under the laws of
the State of Delaware.
WHEREAS, Note Bankers of America, Inc. is a wholly owned subsidiary of
General Genetics Corporation.
WHEREAS, General Genetics Corporation does deem it advisable and
generally to the welfare of said corporation and their respective stockholders
that it merge into Note Bankers of America, Inc. for the purposes of changing
its name and its state of incorporation.
WHEREAS, General Genetics Corporation has an authorized capital of
500,000,000 shares of $.001 common stock, of which 5,000,000 are now issued
and outstanding.
WHEREAS, the registered office of said Note Bankers of America, Inc. in
the state of Texas is located at 770 S. Post Oak Lane, Suite 690, Houston,
County of Harris, Texas and the registered office of General Genetics
Corporation is located in the city of Dover, County of Kent, State of
Delaware.
NOW THEREFORE, the corporations, parties to this agreement, by and
between their respective boards of directors, in consideration of the mutual
covenants, agreements and provisions hereinafter contained, have agreed that
General Genetics Corporation shall be merged into its wholly owned subsidiary,
Note Bankers of America, Inc., pursuant to section 253 of the General
Corporation Law of the State of Delaware, and Article 5.16 of the Texas
Business Corporation Act, and do hereby agree upon and prescribe the terms and
conditions of said merger and of carrying the same into effect as follows:
FIRST: General Genetics Corporation shall be and hereby is merged
into Note Bankers of America, Inc., which shall be the surviving corporation,
hereinafter usually referred to as "the corporation" which shall be governed
by the laws of the State of Texas;
<PAGE>
SECOND: The Articles of Incorporation of Note Bankers of America,
Inc. as in effect on the effective date of the merger, shall continue in full
force and effect as the Articles of Incorporation of the Surviving
Corporation;
THIRD: The manner of converting the outstanding shares of the capital
stock of the constituent corporations into the shares or other securities of
the surviving corporation shall be as follows:
(A) Upon the Effective Date, each of the issued and
outstanding shares of common stock of General Genetics Corporation and all
rights in respect thereof shall be converted into one fully paid and
nonassessable share of common stock of Note Bankers of America, Inc., and each
certificate nominally representing shares of common stock of General Genetics
Corporation shall for all purposes be deemed to evidence the ownership of a
like number of shares of common stock of Note Bankers of America, Inc. The
holders of such certificates shall not be required immediately to surrender
the same in exchange for certificates of common stock of Note Bankers of
America, Inc. but, as certificates nominally representing shares of General
Genetics Corporation are surrendered for transfer, Note Bankers of America,
Inc. will cause to be issued certificates representing shares of common stock
of Note Bankers of America, Inc. and, at any time upon surrender by any holder
of certificates nominally representing shares of common stock of General
Genetics Corporation, Note Bankers of America, Inc. will cause to be issued
therefor certificates for a like number of shares of common stock of Note
Bankers of America, Inc
(B) As soon as practicable after the Effective Date, Note
Bankers of America, Inc. shall mail written notice of the consummation of the
consolidation. The written notice will instruct the shareholders of General
Genetics Corporation of the above information and that they may deliver their
shares in General Genetics Corporation to the offices of Note Bankers of
America, Inc. at 770 S. Post Oak Lane, Suite 515, Houston, Texas 77056.
Upon receipt of the stock certificate in General Genetics
Corporation, Note Bankers of America, Inc. shall, as soon as reasonably
practicable, issue new certificates of the common stock of Note Bankers of
America, Inc. in the appropriate amounts and enter said issuance of shares in
the stock record book of Note Bankers of America, Inc
FOURTH: The terms and conditions of the merger provided for herein are
as follows:
Until altered, amended or repealed, as herein provided, the
bylaws of Note Bankers of America, Inc. as in effect at the date of the
execution of this agreement, shall be the bylaws of the surviving corporation.
<PAGE>
The first board of directors of the surviving corporation after
the date when the merger provided for herein shall become effective shall be
the directors of General Genetics Corporation in office at the date when this
agreement becomes effective, who are as follows:
Allen E. Myers
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
E. Donald DeYoung
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
Louis J. Blenderman
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
The officers of the surviving corporation shall be after the
date when the merger provided for herein shall become effective shall be the
officers of General Genetics Corporation in office at the date when this
agreement becomes effective, who are as follows:
Chairman/CEO: Allen E. Meyers
President/COO: E. Donald DeYoung
Secretary/Treasurer: William Herndon
The surviving corporation shall pay all expenses of carrying
this agreement of merger into effect and of accomplishing the merger.
The surviving corporation may be served with process in the
State of Delaware in any proceeding for enforcement of any obligation of
General Genetics Corporation as well as for enforcement of any obligations of
the surviving corporation arising from the merger, including any suit or other
proceeding to enforce the right of any stockholder as determined in appraisal
proceedings pursuant to the provisions of section 262 of the General
Corporation Law of the State of Delaware, and it does hereby irrevocably
appoint the secretary of State of Delaware as its agent to accept service of
process in any such suit or other proceeding. The address to which a copy of
such process shall be mailed by the Secretary of State is Attention: E. Donald
DeYoung, President, 770 S. Post Oak Lane, Suite 690, Houston, Texas 77056.
<PAGE>
ARTICLES OF MERGER and any other appropriate documentation
shall be filed in the office of the Secretary of State, State of Texas, and a
Certificate of Ownership and Merger and any other appropriate documentation in
the office of the Secretary of State of Delaware, and a copy duly certified by
said Secretary of State of Delaware shall be recorded in the office of the
recorder of deeds for Kent County, and upon the filing such documents as
required by law in the office of the Secretary of State of Delaware, the
merger herein provided for shall be effective.
/S/ E. Donald DeYoung
-------------------------------
E. Donald DeYoung, President
General Genetics Corporation
<PAGE>
CERTIFICATE OF SECRETARY
OF
GENERAL GENETICS CORPORATION
The undersigned, being the Secretary of GENERAL GENETICS CORPORATION,
("GGC"), a corporation organized and existing under the laws of the State of
Delaware, does hereby certify under the seal of the corporation that the
foregoing Plan of Consolidation to which this certificate is attached was duly
submitted to the stockholders entitled to vote of said General Genetics
Corporation, at a special meeting thereof for the purpose of acting on the
Plan of Consolidation. 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 Plan of Consolidation
was considered by the vote of stockholders entitled to vote of the
corporation. And, a vote having been taken for the adoption or rejection by
them of the Plan of Consolidation, at least a majority of the outstanding
stock entitled to vote of the corporation was voted for the adoption of the
Plan.
DATED:Sept. 19, 1996
/S/ W. T. Herndon
_____________________________________________
SECRETARY
<PAGE>
EXHIBIT 3(i)
FILED
In the Office of the
Secretary of State of Texas
September 6, 1996
Corporations Section
ARTICLES OF INCORPORATION
OF
NOTE BANKERS OF AMERICA, INC.
ARTICLE I
---------
The name of the Corporation is NOTE BANKERS OF AMERICA, INC.
ARTICLE II
----------
The Corporation shall have perpetual existence.
ARTICLE III
-----------
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Texas Business Corporation
Act, as amended ("TBCA"), of the State of Texas.
ARTICLE IV
----------
The Corporation will not commence business until it has received, for the
issuance of shares, consideration of $1,000.00.
ARTICLE V
---------
(A) The maximum number of shares of all classes of stock which the
Corporation is authorized to have outstanding at any one time is 650,000,000
shares, of which 150,000,000 shares shall be issuable in one or more series,
without par value ("Preferred Stock"), and 500,000,000 shares shall be common
stock, $.001 par value per share ("Common Stock"). All or any part of the
Common Stock and Preferred Stock may be issued by the Corporation from time to
time and for such consideration as the Board of Directors may determine. All
of such shares, if and when issued, and upon receipt of such consideration by
the Corporation, shall be fully paid and non-assessable.
(B) The Board of Directors is authorized at any time and from time to
time to divide the Preferred Stock into one or more series and to fix and
determine the relative rights, preferences, qualifications, limitations and
restrictions of the shares of any series so established. All shares of any
one series of Preferred Stock shall be identical, except as to the dates of
issue and the dates from which dividends on shares of the series issued on
different dates will cumulate, if cumulative. The Board of Directors is
hereby expressly authorized to adopt a resolution establishing and designing
each such series, determining the number of shares which shall constitute such
series, and determining the relative rights, preferences, qualifications,
limitations and restrictions thereof, which relative rights, preferences,
qualifications, limitations and restrictions may differ with respect to each
series as to:
(i) The rate or manner of dividends, including whether and to the
extent such dividends shall be cumulative, participating, or both, the
conditions and dates upon which such dividends shall be payable, and the
preference or relation which such dividends shall bear to the dividends
payable on any other class or classes of stock or any other series of any
class or classes of stock of the Corporation;
<PAGE>
(ii) Whether the shares of such series shall be subject to redemption
by the Corporation and, if so, the redemption price, the time or times of
redemption and the terms and conditions of redemption, which price, times of
redemption and terms and conditions may differ in the event of mandatory
redemption or permissive redemption;
(iii) The amount payable upon shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(iv) Sinking fund provisions, if any, for the redemption or purchase
of shares of such series;
(v) Whether the shares of such series shall be convertible into or
exchangeable for shares of any other class or classes of stock or any other
series of any class or classes of stock of the Corporation, and, if provision
be made for conversion or exchange, the times, prices, rates, adjustments and
other terms and conditions of such conversion or exchange;
(vi) The restrictions, if any, on the issue of any additional shares
or reissue of shares of such series of Preferred Stock;
(vii) Voting rights, if any; and
(viii) Any other such relative rights, preferences, qualifications,
limitations or restrictions for such series which Texas law now or hereafter
empowers or permits the Board of Directors to determine.
Except as the TBCA requires or may hereafter be amended to require separate
voting by classes of stock or by series of any class of stock of the
Corporation or as otherwise required by these Articles of Incorporation, the
holders of any series of Preferred Stock with voting rights, if any, and the
holders of Common Stock shall vote together as a single class on any matters
submitted to vote of the stockholders of the Corporation.
(C) Except as otherwise required by law, each holder of Common Stock
shall be entitled to one (1) vote for each share of such Common Stock standing
in his name on the books of the Corporation. Subject to the rights and
preferences of the Preferred Stock, if any is outstanding, holders of the
Common Stock are entitled to such dividends as may be declared by the Board of
Directors out of funds lawfully available therefor. Upon liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary
or involuntary, holders of the Common Stock are entitled to receive pro rata
the remaining assets of the Corporation after the holders of the Preferred
Stock have been paid in full the sums to which they are entitled.
(D) A majority vote of the outstanding shares shall be sufficient to
approve any matter which requires the vote or concurrence of shareholders.
ARTICLE VI
----------
<PAGE>
No stockholder of the Corporation shall, by reason of his holding shares
of any class of stock or series of any class of stock, have any preemptive or
preferential right to purchase or subscribe for any shares of capital stock of
the Corporation, now or hereafter authorized, any notes, debentures, bonds or
other securities convertible into or carrying warrants, rights or options to
purchase, shares of any class of stock or series of any class of stock of the
Corporation, now or hereafter authorized, or any warrants, rights or options
to purchase, subscribe to or otherwise acquire any such new or additional
shares of any class of stock or series of any class of stock of the
Corporation, now or hereafter authorized, whether or not the issuance of such
shares, such notes, debentures, bonds or other securities, or such warrants,
rights or options would adversely affect the dividend, voting or any other
rights of such stockholder.
ARTICLE VII
-----------
Cumulative voting for the election of directors shall not be permitted.
ARTICLE VIII
------------
The holders of any bonds, debentures or other obligations outstanding or
hereafter issued by the Corporation shall have no power to vote in respect to
corporate affairs and management of the Corporation by reason thereof, nor
shall such holders by reason thereof have any right of inspection of the
books, accounts and other records of the Corporation and any other rights
which the stockholders of the Corporation have by reason of the TBCA of the
State of Texas as the same exists or may hereafter be amended.
ARTICLE IX
----------
(A) These Articles of Incorporation shall not be amended unless, in
addition to any other requirements therefor imposed by law, the holders of at
least two-thirds of the shares of stock of the Corporation entitled to vote
thereon shall have voted in favor of the proposed amendment.
(B) The Board of Directors is expressly authorized to alter, amend or
repeal the Bylaws of the Corporation or to adopt new Bylaws.
ARTICLE X
---------
The Board of Directors of the Corporation may, if it deems advisable,
oppose a tender or other offer for the Corporation's securities, whether the
offer is in cash or in the securities of another corporation or otherwise.
When considering whether to oppose an offer, the Board of Directors may, but
is not legally obligated to, consider any pertinent issues; by way of
illustration, but not of limitation, the Board of Directors may, but shall not
be legally obligated to, consider all or any of the following:
(i) Whether the offer price is acceptable based on the historical and
present operating results or financial condition of the Corporation;
(ii) Whether a more favorable price could be obtained for the
Corporation's securities in the future;
(iii) The impact which an acquisition of the Corporation would have
on the employees, customers, suppliers and creditors of the Corporation and
its subsidiaries and the communities which they serve;
<PAGE>
(iv) The reputation and business practices of the offeror and its
management and affiliates as they would affect the employees, customers,
suppliers and creditors of the Corporation and its subsidiaries and the future
value of the Corporation's stock by the value of the securities, if any, that
the offeror is offering in exchange for the Corporation's securities, based on
an analysis of the worth of the Corporation as compared to the offeror or any
other entity whose securities are being offered, and the financial condition
of the offeror or such other entity; and
(v) Any antitrust or other legal or regulatory issues that are raised
by the offer.
ARTICLE XI
----------
(A) No director of the Corporation shall be liable to the Corporation or
any of its stockholders for monetary damages for an act or omission in the
director's capacity as a director; provided that this Article XI shall not
eliminate or limit the liability of a director of the Corporation:
(i) for any breach of such director's duty of loyalty to the
Corporation or its stockholders;
(ii) for acts or omissions not in good faith that constitute a breach
of duty of the director to the Corporation or that involve intentional
misconduct or a knowing violation of law;
(iii) for any transaction from which such director derived an
improper personal benefit, whether the benefit resulted from an action taken
within the scope of the director's office; or
(iv) for an act or omission for which liability of a director is
expressly provided by an applicable statute.
(B) If Article 1302-7.06 of the Texas Miscellaneous Corporation Laws Act
("TMCLA") hereafter is amended to authorize the further elimination or
limitation of the liability of directors of the Corporation, then the
liability of a director of the Corporation shall be limited to the fullest
extent permitted by the TMCLA, as so amended, and such limitation of liability
shall be in addition to, and not in lieu of, the limitation on the liability
of a director of the Corporation provided by the foregoing provisions of this
Article XI.
(C) Any repeal of or amendment to this Article XI shall be prospective
only and shall not adversely affect any limitation on the liability of a
director of the Corporation existing at the time of such repeal or amendment.
ARTICLE XII
-----------
The Corporation shall indemnify every director or officer, their heirs,
executors and administrators, to the full extent as provided by, and in
accordance with, Article 2.02-1 of the TBCA, as it presently exists and as it
is amended, against expenses actually and reasonably incurred by him, as well
as any amount paid upon a judgment in connection with any action, suit or
proceeding, civil or criminal, to which he may be made a party by reason of
his being or having been a director or officer of the Corporation, or at the
request of the Corporation, having been a director or officer of any other
corporation of which the Corporation was at such time a shareholder or
creditor and from which other corporation he is not entitled to be
indemnified, except in relation to matters as to which he is found liable on
the basis that personal benefit was improperly received by him, or in which he
shall be found liable to the Corporation. In the event of a settlement,
indemnification shall be provided only in connection with such matters covered
by the settlement as to which the Corporation is advised by its special legal
counsel that the person to be indemnified did not commit such a breach of
duty. The foregoing shall not be exclusive of other rights to which the
officer or director may be entitled.
<PAGE>
ARTICLE XIII
------------
No contract or other transaction between the Corporation and any other
corporation shall be affected by the fact that one (1) or more of the
directors or officers of this Corporation is interested in or is a director or
officer of such other corporation and any director or officer individually may
be a party to or may be interested in any contract or transaction of this
Corporation. No contract or transaction of this Corporation with any person
or persons, firm or association shall be affected by the fact that any
director or officer of this Corporation is a party or interested in such
contract or transaction, or in any way connected with such person or persons,
firm or association, provided that the interest in any such contract or other
transaction of any such director or officer shall be fully disclosed and that
such contract or other transaction shall be authorized or ratified by the vote
of a sufficient number of Directors of the Corporation not so interested. In
the absence of fraud, no director or officer having such adverse interest
shall be liable to the Corporation or to any shareholder or creditor thereof,
or to any other person for any loss incurred by it under or by reason of such
contract or transaction, nor shall any such director or officer be accountable
for any gains or profits realized thereon. In any case described in this
Article XIII any such director may be counted in determining the existence of
a quorum at any meeting of the board of directors which shall authorize or
ratify any such contract or transaction.
ARTICLE XIV
-----------
The address of the initial registered office of the Corporation is 770 S.
Post Oak Lane, Suite 690, Houston, Texas 77056. The name of the initial
registered agent of the Corporation at such address is E. Donald DeYoung.
ARTICLE XV
----------
The number of directors of the Corporation shall be no fewer than one nor
more than nine. The exact number of directors shall be fixed from time to
time by this Article or by a controlling bylaw, or by the Board of Directors.
The initial Board of Directors shall consist of three directors. The
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and qualified are:
Allen E. Myers
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
E. Donald DeYoung
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
Louis J. Blenderman
770 S. Post Oak Lane, Suite 690
Houston, Texas 77056
<PAGE>
ARTICLE XVI
------------
Special meetings of the shareholders may be called by (i) the president,
the board of directors, or (ii) the holders of not less than fifty percent
(50%) of shares entitled to vote at the proposed special meeting.
ARTICLE XVII
------------
Any action required by the TBCA to be taken at any annual or special
meeting of shareholders, or any action which may be taken at any annual or
special meeting of shareholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holder or holders of shares
bearing not less than the minimum number of votes that would be necessary to
take such action at a meeting at which the holders of all shares entitled to
vote on the actions were present and voted.
ARTICLE XVIII
-------------
The name and address of the incorporator of the Corporation
is as follows:
M. Stephen Roberts
770 S. Post Oak Lane, Suite 515
Houston, Texas 77056
IN WITNESS WHEREOF, the undersigned, being the incorporator designated in
Article XVIII, executes these Articles of Incorporation and certifies to the
truth of the facts stated therein this the 6th day of September, 1996.
/S/ M. Stephen Roberts
--------------------------
M. STEPHEN ROBERTS
<PAGE>
EXHIBIT 3(ii)
_________________________________________________________________
BYLAWS
OF
NOTE BANKERS OF AMERICA, INC.
_________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
Article 1: Offices
1.01 Registered Office & Agent
1.02 Other Offices
Article 2: Shareholders
2.01 Place of Meetings
2.02 Annual Meetings
2.03 Voting List
2.04 Special Meetings
2.05 Notice
2.06 Quorum
2.07 Majority Vote; Withdrawal of Quorum
2.08 Method of Voting
2.09 Record Date; Closing of Transfer Books
2.10 Action Without Meeting
2.11 Telephone and Similar Meetings
2.12 Order of Business at Meetings
Article 3: Directors
3.01 Management
3.02 Number; Qualification; Election; Term
3.03 Change in Number
3.04 Removal
3.05 Vacancies
3.06 Election of Directors
3.07 Place of Meetings
3.08 First Meetings
3.09 Regular Meetings
3.10 Special Meetings
3.11 Quorum; Majority Vote
3.12 Compensation
3.13 Procedure
3.14 Action without Meeting
3.15 Telephone and Similar Meetings
3.16 Interested Directors; Officers and Shareholders
Article 4: Executive Committee
4.01 Designation
4.02 Number; Qualification; Term
4.03 Authority
4.04 Change in Number
4.05 Removal
4.06 Vacancies
4.07 Meetings
4.08 Quorum; Majority Vote
4.09 Compensation
4.10 Procedure
4.11 Action Without Meeting
4.12 Telephone and Similar Meetings
4.13 Responsibility
Article 5: Notice
5.01 Method
5.02 Waiver
<PAGE>
Article 6: Officers & Agents
6.01 Number; Qualification; Election; Term
6.02 Removal
6.03 Vacancies
6.04 Authority
6.05 Compensation
6.06 President
6.07 Vice President
6.08 Secretary
6.09 Assistant Secretary
6.10 Treasurer
6.11 Assistant Treasurer
Article 7: Certificates and Shareholders
7.01 Certificates
7.02 Issuance
7.03 Payment for Shares
7.04 Subscriptions
7.05 Lien
7.06 Lost, Stolen or Destroyed Certificates
7.07 Registration of Transfer
7.08 Registered Owner
7.09 Pre-Emptive Rights
Article 8: General Provisions
8.01 Dividends and Reserves
8.02 Books and Records
8.03 Annual Statement
8.04 Checks and Notes
8.05 Fiscal Year
8.06 Seal
8.07 Indemnification; Insurance
8.08 Resignation
8.09 Amendment of Bylaws
8.10 Construction
8.11 Table of Contents; Headings
8.12 Relation to Articles of Incorporation
<PAGE>
ARTICLE 1: OFFICES
1.01 Registered Office & Agent. The registered office of the
corporation shall be at such address within the State of Texas as may be
specified from time to time by the board of directors. The name of the
registered agent at such address shall be designated from time to time by the
board of directors.
1.02 Other Offices. The corporation may also have offices at such
other places both within and without the State of Texas as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE 2: SHAREHOLDERS
2.01 Place of Meetings. Meetings of shareholders shall be held at
the time and place, within or without the State of Texas, stated in the notice
of the meeting or in a waiver of notice.
2.02 Annual Meetings. An annual meeting of the shareholders shall
be held each year at 10 a.m. on a day during the fourth month of the
corporation's fiscal year to be selected by the board of directors. If such a
day is a legal holiday, then the meeting shall be on the next business day
following. At the meeting, the shareholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.03 Voting List. At least ten days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, with the address of each and the
number of voting shares held by each, shall be prepared by the officer or
agent having charge of the stock transfer books. The list, for a period of ten
days prior to the meeting, shall be kept on file at the principal office of
the corporation and shall be subject to inspection by any shareholder at any
time during usual business hours. The list shall also be produced and kept
open at the time and place of the meeting during the whole time thereof, and
shall be subject to the inspection of any shareholder during the whole time of
the meeting.
2.04 Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
articles of incorporation, or by these bylaws, may be called by the president,
the board of directors, or the holders of not less than one-tenth of all the
shares entitled to vote at the meetings. Business transacted at a special
meeting shall be confined to the purposes stated in the notice of the meeting.
2.05 Notice. Written or printed notice stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be delivered not less than ten nor more
than fifty days before the date of the meeting, either personally or by mail,
by or at the direction of the president, the secretary, or the officer or
person calling the meeting, to each shareholder of record entitled to vote at
the meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid. (See also Bylaws 5.01 and 5.02.)
2.06 Quorum. The holders of a majority of the shares issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite and shall constitute a quorum at meetings of the
shareholders for the transaction of business except as otherwise provided by
statute, by the articles of incorporation or by these bylaws. If a quorum is
not present or represented at a meeting of the shareholders, the shareholders
entitled to vote, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present or represented. At an
adjourned meeting at which a quorum is present or represented, any business
may be transacted which might have been transacted at the meeting as
originally notified.
<PAGE>
2.07 Majority Vote; Withdrawal of Quorum. When a quorum is
present at a meeting, the vote of the holders of a majority of the shares
having voting power, present in person or represented by proxy, shall decide
any question brought before the meeting, unless the question is one on which,
by express provision of the statutes, the articles of incorporation, or these
bylaws, a higher vote is required in which case the express provision shall
govern. The shareholders present at a duly constituted meeting may continue to
transact business until adjournment, despite the withdrawal of enough
shareholders to leave less than a quorum.
2.08 Method of Voting. Each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the articles of
incorporation. At any meeting of the shareholders, every shareholder having
the right to vote may vote either in person, or by proxy executed in writing
by the shareholder or by his duly authorized attorney-in-fact. No proxy shall
be valid after eleven months from the date of its execution, unless otherwise
provided in the proxy. Each proxy shall be revocable unless expressly provided
therein to be irrevocable and unless otherwise made irrevocable by law. Each
proxy shall be filed with the secretary of the corporation prior to or at the
time of the meeting. Voting for directors shall be in accordance with Section
3.06 of these bylaws. Any vote may be taken by voice or by show of hands
unless someone entitled to vote objects, in which case written ballots shall
be used.
2.09 Record Date, Closing Transfer Books. The board of directors
may fix in advance a record date for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of the shareholders, the record
date to be not less than ten nor more than fifty days prior to the meeting; or
the board of directors may close the stock transfer books for such purpose for
a period of not less than ten nor more than fifty days prior to such meeting.
In the absence of any action by the board of directors, the date upon which
the notice of the meeting is mailed shall be the record date.
2.10 Action Without Meeting. Any action required by statute to be
taken at a meeting of the shareholders, or any action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof and
such consent shall have the same force and effect as a unanimous vote of the
shareholders. The signed consent, or a signed copy shall be placed in the
minute book.
2.11 Telephone and Similar Meetings. Shareholders, directors and
committee members may participate in and hold a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at the meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
2.12 Order of Business at Meetings. The order of business at
annual meetings and so far as practicable at other meetings of shareholders
shall be as follows unless changed by the board of directors:
<PAGE>
(1) call to order
(2) proof of due notice of meeting
(3) determination of quorum and examination of proxies
(4) announcement of availability of voting list
(See Bylaw 2.03)
(5) announcement of distribution of annual statement
(See Bylaw 8.03)
(6) reading and disposing of minutes of last meeting of shareholders
(7) reports of officers and committees
(8) appointment of voting inspectors
(9) unfinished business
(10) new business
(11) nomination of directors
(12) opening of polls for voting
(13) recess
(14) reconvening; closing of polls
(15) report of voting inspectors
(16) other business
(17) adjournment
ARTICLE 3: DIRECTORS
3.01 Management. The business and affairs of the corporation
shall be managed by the board of directors who may exercise all such powers of
the corporation and do all such lawful acts and things as are not (by statute
or by the articles of incorporation or by these bylaws) directed or required
to be exercised or done by the shareholders.
3.02 Number; Qualification; Election; Term. The board of
directors shall consist of three (3) persons; provided however, that the board
of directors may, in its discretion, increase or decrease the number of
directors constituting the board of directors to not less than one (1) person
nor more than nine (9) persons, who need not be a shareholder or resident of
any particular state. The directors named in the Articles of Incorporation
shall hold office until the first annual meeting of shareholders and until
their successors are elected and qualified, either at an annual or a special
meeting of shareholders. Directors other than those named in the Articles of
Incorporation shall hold office until the next annual meeting and until their
successors are elected and qualified.
3.03 Change in Number. The number of directors may be increased
or decreased from time to time by amendment to these bylaws but no decrease
shall have the effect of shortening the term of any incumbent director. Any
directorship to be filled by reason of an increase in the number of directors
shall be filled by election at an annual meeting or at a special meeting of
shareholders called for that purpose.
3.04 Removal. Any director may be removed either for or without
cause at any special or annual meeting of shareholders, by the affirmative
vote of a majority in number of shares of the shareholders present, in person
or by proxy, at such meeting and entitled to vote for the election of such
director if notice of intention to act upon such matter shall have been given
in the notice calling such meeting.
3.05 Vacancies. Any vacancy occurring in the board of directors
(by death, resignation, removal or otherwise) may be filled by an affirmative
vote of a majority of the remaining directors though less than a quorum of the
board of directors. A director elected to fill a vacancy shall be elected for
the unexpired term of his predecessor in office.
3.06 Election of Directors. Directors shall be elected by
plurality vote. Cumulative voting shall not be permitted.
<PAGE>
3.07 Place of Meetings. Meetings of the board of directors,
regular or special, may be held either within or without the State of Texas.
3.08 First Meetings. The first meeting of a newly elected board
shall be held without further notice immediately following the annual meeting
of shareholders, and at the same place, unless by unanimous consent of the
directors then elected and serving the time or place is changed.
3.09 Regular Meetings. Regular meetings of the board of directors
may be held without notice at such time and place as shall from time to time
be determined by the board.
3.10 Special Meetings. Special meetings of the board of directors
may be called by the president on three days' notice to each director, either
personally or by mail or by telegram. Special meetings shall be called by the
president or secretary in like manner and on like notice on the written
request of two directors. Except as otherwise expressly provided by statute,
articles of incorporation, or these bylaws, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice.
3.11 Quorum; Majority Vote. At meetings of the board of directors
a majority of the number of directors fixed by these bylaws shall constitute a
quorum for the transaction of business; provided however, that in the event
there are vacancies occurring in the board that are not filled then a majority
of the directors then serving shall constitute a quorum for the transaction of
business. The act of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the board of directors, except as
otherwise specifically provided by statute, the articles of incorporation, or
these bylaws. If a quorum is not present at a meeting of the board of
directors, the directors present may adjourn the meeting from time to time,
without notice other than announcement at the meting, until a quorum is
present.
3.12 Compensation. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of the executive
committee or of special or standing committees may, by resolution of the board
of directors, be allowed like compensation for attending committee meetings.
3.13 Procedure. The board of directors shall keep regular minutes
of its proceedings. The minutes shall be placed in the minute book of the
corporation.
3.14 Action Without Meeting. Any action required or permitted to
be taken at a meeting of the board of directors may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by all
of the members of the board of directors. Such consent shall have the same
force and effect as a unanimous vote at a meeting. The signed consent, or a
signed copy, shall be placed in the minute book.
3.15 Telephone and Similar Meetings. Directors and committee
members may participate in and hold a meeting by means of conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at the meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
<PAGE>
3.16 Interested Directors; Officers and Security Holders.
(A) Validity. If paragraph (B) is satisfied, no contract or other
transaction between the corporation and any of its directors, officers or
security holders, or any corporation or firm in which any of them are directly
or indirectly interested, shall be invalid solely because of this relationship
or because of the presence of the director, officer or security holder at the
meeting authorizing the contract or transaction, or his participation or vote
in the meeting or authorization.
(B) Disclosure, Approval; Fairness. Paragraph (A) shall apply only
if:
(l) the material facts of the relationship or interest of each such
director, officer or security holder are known or disclosed:
(a) to the board of directors and it nevertheless authorizes or
ratifies the contract or transaction by a majority of the directors present,
each such interested director to be counted in determining whether a quorum is
present but not in calculating the majority necessary to carry the vote; or
(b) to the shareholders and they nevertheless authorize or ratify
the contract or transaction by a majority of the shares present, each such
interested person to be counted for quorum and voting purposes; or
(2) the contract or transaction is fair to the corporation as of the
time it is authorized or ratified by the board of directors or the
shareholders.
(C) Non-Exclusive. This provision shall not be construed to
invalidate a contract or transaction which would be valid in the absence of
this provision.
ARTICLE 4: EXECUTIVE COMMITTEE
4.01 Designation. The board of directors may, by resolution
adopted by a majority of the whole board, designate an executive committee.
4.02 Number; Qualification; Term. The executive committee shall
consist of one or more directors, one of whom shall be the president. The
executive committee shall serve at the pleasure of the board of directors.
4.03 Authority. The executive committee, to the extent provided
in such resolution, shall have and may exercise all of the authority of the
board of directors in the management of the business and affairs of the
corporation, including authority over the use of the corporate seal. However,
the executive committee shall not have the authority of the board in reference
to:
(a) amending the articles of incorporation;
(b) approving a plan of merger or consolidation;
(c) recommending to the shareholders the sale, lease or exchange of
all or substantially all of the property and assets of the
corporation otherwise than in the usual and regular course
of its business;
(d) recommending to the shareholders a voluntary dissolution of the
corporation or a revocation thereof;
(e) amending, altering, or repealing these bylaws or adopting new
bylaws;
(f) filling vacancies in or removing members of the board of
directors or of any committee appointed by the board of
directors;
(g) fixing the compensation of any member of such committee;
(h) altering or repealing any resolution of the board of directors
which by its terms provides that it shall not be so amendable
or repealable;
(i) declaring a dividend; or
(j) authorizing the issuance of shares of the corporation.
<PAGE>
4.04 Change in Number. The number of executive committee members
may be increased or decreased from time to time by resolution adopted by a
majority of the whole board of directors.
4.05 Removal. Any member of the executive committee may be
removed by the board of directors by the affirmative vote of a majority of the
whole board, whenever in its judgment the best interests of the corporation
will be served thereby.
4.06 Vacancies. A vacancy occurring in the executive committee
(by death, resignation, removal or otherwise) may be filled by the board of
directors in the manner provided for original designation in Bylaw 4.01.
4.07 Meetings. Time, place and notice, (if any) of executive
committee meetings shall be determined by the executive committee.
4.08 Quorum; Majority Vote. At meetings of the executive
committee, a majority of the number of members designated by the board of
directors shall constitute a quorum for the transaction of business. The act
of a majority of the members present at any meeting at which a quorum is
present shall be the act of the executive committee, except as otherwise
specifically provided by statute, the articles of incorporation, or these
bylaws. If a quorum is not present at a meeting of the executive committee,
the members present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present.
4.09 Compensation. By resolution of the board of directors, the
members of the executive committee may be paid their expenses, if any, of
attendance at each meeting of the executive meeting and may be paid a fixed
sum for attendance at each meeting of the executive committee or a stated
salary as member. No such payment shall preclude any member from serving the
corporation in any other capacity and receiving compensation therefor.
4.10 Procedure. The executive committee shall keep regular
minutes of its proceedings and report the same to the board of directors when
required. The minutes of the proceedings of the executive committee shall be
placed in the minute book of the corporation.
4.11 Action Without Meeting. Any action required or permitted to
be taken at a meeting of the executive committee may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed
by all the members of the executive committee. Such consent shall have the
same force and effect as a unanimous vote at a meeting. The signed consent, or
a signed copy, shall be placed in the minute book.
4.12 Telephone and Similar Meetings. Committee members may
participate in and hold a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meeting shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
<PAGE>
4.13 Responsibility. The designation of an executive committee
and the delegation of authority to it shall not operate to relieve the board
of directors, or any member thereof, of any responsibility imposed upon it or
him by law.
ARTICLE 5: NOTICE
5.01 Method. Whenever by statute, the articles of incorporation,
these bylaws, or otherwise, notice is required to be given to a director,
committee member, or security holder, and no provision is made as to how the
notice shall be given, it shall not be construed to mean personal notice, but
any such notice may be given: (a) in writing, by mail, postage prepaid,
addressed to the director, committee member, or security holder at the address
appearing on the books of the corporation; or (b) in any other method
permitted by law. Any notice required or permitted to be given by mail shall
be deemed given at the time when the same is thus deposited in the United
States mails.
5.02 Waiver. Whenever, by statute or the articles of
incorporation or these bylaws, notice is required to be given to a security
holder, a committee member, or director, a waiver thereof in writing signed by
the person or persons entitled to such notice, whenever before or after the
time stated in such notice, shall be equivalent to the giving of such notice.
Attendance at a meeting shall constitute a waiver of notice of such meeting,
except where a person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE 6: OFFICERS AND AGENTS
6.01 Number; Qualification; Election; Term.
(a) The corporation shall have: (l) a president, a vice president, a
secretary and a treasurer; and (2) such other officers (including a chairman
of the board and additional vice presidents) and assistant officers and agents
as the board of directors may think necessary.
(b) No officer or agent need be a shareholder, a director or a
resident of any particular state.
(c) Officers named in Bylaw 6.01(a)(1) shall be elected by the board
of directors on the expiration of an officer's term or whenever a vacancy
exists. Officers and agents named in Bylaw 6.01(a)(2) may be elected by the
board of any meeting.
(d) Unless otherwise specified by the board at the time of election
or appointment, or in an employment contract approved by the board, each
officer's and agent's term shall end at the first meeting of directors after
the next annual meeting of shareholders. He shall serve until the end of his
term or, if earlier, his death, resignation, or removal.
(e) Any two or more offices may be held by the same person, except
that the president and the secretary shall not be the same person.
6.02 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation will be served thereby. Such
removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not of
itself create contract rights.
<PAGE>
6.03 Vacancies. Any vacancy occurring in any office of the
corporation (by death, resignation, removal or otherwise) may be filled by the
board of directors.
6.04 Authority. Officers and agents shall have such authority and
perform such duties in the management of the corporation as are provided in
these bylaws or as may be determined by resolution of the board of directors
not inconsistent with these bylaws.
6.05 Compensation. The compensation of officers and agents shall
be fixed from time to time by the board of directors.
6.06 President. The president shall be the chief executive
officer of the corporation; he shall preside at all meetings of the
shareholders and the board of directors, shall have general and active
management of the business and affairs of the corporation, shall see that all
orders and resolutions of the board are carried into effect. He shall perform
such other duties and have such other authority and powers as the board of
directors may from time to time prescribe.
6.07 Vice President. The vice presidents in the order of their
seniority, unless otherwise determined by the board of directors, shall, in
the absence or disability of the president, perform the duties and have the
authority and exercise the powers of the president. They shall perform such
other duties and have such other authority and powers as the board of
directors may from time to time prescribe or as the president may from time to
time delegate.
6.08 Secretary.
(a) The secretary shall attend all meetings of the board of directors
and all meetings of the shareholders and record all votes, actions and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the executive and other committees when required.
(b) He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors.
(c) He shall keep in safe custody the seal of the corporation and,
when authorized by the board of directors or the executive committee, affix it
to any instrument requiring it. When so affixed, it shall be attested by his
signature or by the signature of the treasurer or an assistant secretary.
(d) He shall be under the supervision of the president. He shall
perform such other duties and have such other authority and powers as the
board of directors may from time to time prescribe or as the president may
from time to time prescribe.
6.09 Assistant Secretary. The assistant secretaries in the order
of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
have the authority and exercise the powers of the secretary. They shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe or as the president may from time to time
prescribe.
6.10 Treasurer.
(a) The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements of the corporation and shall deposit all moneys and other
valuables in the name and to the credit of the corporation in depositories
designated by the board of directors.
<PAGE>
(b) He shall disburse the funds of the corporation as ordered by the
board of directors, and prepare financial statements as they direct.
(c) If required by the board of directors, he shall give the
corporation a bond (in such form, in such sum, and with such surety or
sureties as shall be satisfactory to the board) for the faithful performance
of the duties of his office and for the restoration to the corporation,
in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
(d) He shall perform such other duties and have such other authority
and powers as the board of directors may from time to time prescribe or as the
president may from time to time delegate.
6.11 Assistant Treasurers. The assistant treasurers in the order
of their seniority, unless otherwise determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
have the authority and exercise the powers of the treasurer. They shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe or the president may from time to time
delegate.
ARTICLE 7: CERTIFICATES AND SHAREHOLDERS
7.01 Certificates. Certificates in the form determined by the
board of directors shall be delivered representing all shares to which
shareholders are entitled. Certificates shall be consecutively numbered and
shall be entered in the books of the corporation as they are issued. Each
certificate shall state on its face the holder's name, the number and class of
shares, the par value of shares or a statement that such shares are without
par value, and such other matters as may be required by law. It shall be
signed by the president or a vice president and such other officer or officers
as the board of directors shall designate, and may be sealed with the seal of
the corporation or a facsimile thereof. If a certificate is countersigned by a
transfer agent, or an assistant transfer agent or registered by a registrar
(either of which is other than the corporation or an employee of the
corporation), the signature of any officer may be facsimile.
7.02 Issuance. Shares (both treasury and authorized but unissued)
may be issued for such consideration (not less than par value) and to such
persons as the board of directors may determine from time to time. Shares may
not be issued until the full amount of the consideration, fixed as provided by
law, has been paid.
7.03 Payment for Shares.
(a) Kind. The consideration for this issuance of shares shall
consist of money paid, labor done, (including services actually performed for
the corporation), property (tangible or intangible) actually received,
promissory notes or the promise of future services.
(b) Valuation. In the absence of fraud in the transaction, the
judgment of the board of directors as to the value of consideration received
shall be conclusive.
<PAGE>
(c) Effect. When consideration, fixed as provided by law, has
been paid, the shares shall be deemed to have been issued and shall be
considered fully paid and nonassessable.
(d) Allocation of Consideration. The consideration received for
shares shall be allocated by the board of directors, in accordance with law,
between stated capital and capital surplus accounts.
7.04 Subscription. Unless otherwise provided in the subscription
agreement, subscriptions for shares, whether made before or after organization
of the corporation, shall be paid in full at such time or in such installments
and at such times as shall be determined by the board of directors. Any call
made by the board of directors for payment on subscriptions shall be uniform
as to all shares of the same series. In case of default in the payment on any
installment or call when payment is due, the corporation may proceed to
collect the amount due in the same manner as any debt due to the corporation.
7.05 Lien. For any indebtedness of a shareholder to the
corporation, the corporation shall have a first and prior lien on all shares
of its stock owned by him and on all dividends or other distributions declared
thereon.
7.06 Lost, Stolen or Destroyed Certificates. The corporation
shall issue a new certificate in place of any certificate for shares
previously issued if the registered owner of the certificate:
(a) Claim. Makes proof in affidavit form that it has been lost,
destroyed or wrongfully taken; and
(b) Timely Request. Requests the issuance of a new certificate
before the corporation has notice that the certificate has been acquired by a
purchaser for value in good faith and without notice of an adverse claim; and
(c) Bond. Gives a bond in such form, and with such surety or
sureties, with fixed or open penalty, as the corporation may direct, to
indemnify the corporation (and its transfer agent and registrar, if any)
against any claim that may be made on account of the alleged loss,
destruction, or theft of the certificate; and
(d) Other Requirements. Satisfies any other reasonable
requirements imposed by the corporation. When a certificate has been lost,
apparently destroyed or wrongfully taken, and the holder of record fails to
notify the corporation within a reasonable time after he has notice of it, and
the corporation registers a transfer of the shares represented by the
certificate before receiving such notification, the holder of record is
precluded from making any claim against the corporation for the transfer or
for a new certificate.
7.07 Registration of Transfer. The corporation shall register the
transfer of a certificate for shares presented to it for transfer if:
(a) Endorsement. The certificate is properly endorsed by the
registered owner or by his duly authorized attorney; and
(b) Guarantee and Effectiveness of Signature. The signature of
such person has been guaranteed by a national banking association or member of
New York Stock Exchange, and reasonable assurance is given that such
endorsements are effective; and
(c) Adverse Claims. The corporation has no notice of an adverse
claim or has discharged any duty to inquire into such a claim; and
<PAGE>
(d) Collection of Taxes. Any applicable law relating to the
collection of taxes has been complied with.
7.08 Registered Owner. Prior to due presentment for registration
of transfer of a certificate for shares, the corporation may treat the
registered owner as the person exclusively entitled to vote, to receive
notices and otherwise to exercise all the rights and powers of a shareholder.
7.09 Pre-Emptive Rights. No shareholder or other person shall
have any pre-emptive right whatsoever.
ARTICLE 8: GENERAL PROVISIONS
8.01 Dividends and Reserves.
(a) Declaration and Payment. Subject to statute and the articles
of incorporation, dividends may be declared by the board of directors at any
regular or special meeting and may be paid in cash, in property, or in shares
of the corporation. The declaration and payment shall be at the discretion of
the board of directors.
(b) Record Date. The board of directors may fix in advance a
record date for the purpose of determining shareholders entitled to receive
payment of any dividend, the record date to be not more than fifty days prior
to the payment date of such dividend, or the board of directors may close the
stock transfer books for such purpose for a period of not more than fifty days
prior to the payment date of such dividend. In the absence of any action by
the board of directors, the date upon which the board of directors adopts the
resolution declaring the dividend shall be the record date.
(c) Reserves. By resolution the board of directors may create
such reserve or reserves out of the earned surplus of the corporation as the
directors from time to time, in their discretion, think proper to provide for
contingencies, or to equalize dividends, or to repair or maintain any property
of the corporation, or for any other purpose they think beneficial to the
corporation. The directors may modify or abolish any such reserve in the
manner in which it was created.
8.02 Books and Records. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of its shareholders and board of directors, and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving the names
and addresses of all shareholders and the number and class of the shares held
by each.
8.03 Annual Statement. The board of directors shall mail to each
shareholder of record, at least 10 days before each annual meeting, a full and
clear statement of the business and condition of the corporation, including a
reasonably detailed balance sheet, income statement, surplus statement, and
statement of changes in financial position, for the last fiscal year and for
the prior fiscal year, all prepared in conformity with generally accepted
accounting principles applied on a consistent basis and certified by
independent public accountants.
8.04 Checks and Notes. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
8.05 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
<PAGE>
8.06 Seal. The corporation seal (of which there may be one or
more exemplars) shall contain the name of the corporation and the name of the
state of incorporation. The seal may be used by impressing it or reproducing a
facsimile of it, or otherwise.
8.07 Indemnification; Insurance.
(a) Persons. The corporation shall indemnify, to the extent
provided in paragraphs (b), (d) or (f):
(l) any person who is or was director, officer, agent or employee of
the corporation, and
(2) any person who serves or served at the corporation's request as
a director, officer, agent, employee, partner or trustee of another
corporation or of a partnership, joint venture, trust or other enterprise.
(b) Extent--Derivative Suits. In case of a suit by or in the
right of the corporation against a person named in paragraph (a) by reason of
his holding a position named in paragraph (a), the corporation shall indemnify
him if he satisfies the standard in paragraph (c), for expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred by him in connection with the defense or settlement of the
suit.
(c) Standard--Derivative Suits. In case of a suit by or in the
right of the corporation, a person named in paragraph (a) shall be indemnified
only if:
(l) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject
of the suit, and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation. However, he shall not be
indemnified in respect of any claim, issue or matter as to which he has been
adjudged liable for negligence or misconduct in the performance of his duty to
the corporation unless (and only to the extent that) the court in which the
suit was brought shall determine, upon application, that despite the
adjudication but in view of all the circumstances, he is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper.
(d) Extent--Nonderivative Suits. In case of a suit, action or
proceeding, (whether civil, criminal, administrative or investigative), other
than a suit by or in the right of the corporation, together hereafter referred
to as a nonderivative suit, against a person named in paragraph (a) by reason
of his holding a position named in paragraph (a), the corporation shall
indemnify him if he satisfies the standard in paragraph (e), for amounts
actually and reasonably incurred by him in connection with the defense or
settlement of the nonderivative suit as
(1) expenses (including attorney's fees),
(2) amounts paid in settlement,
(3) judgments, and
(4) fines.
(e) Standard--Non-derivative Suits. In case of a non-derivative
suit, a person named in paragraph (a) shall be indemnified only if:
(l) he is successful on the merits or otherwise, or
<PAGE>
(2) he acted in good faith in the transaction which is the subject
of the non-derivative suit, and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, he had no reason to believe his conduct
was unlawful. The termination of a non-derivative suit by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person failed to satisfy
the standard of this paragraph (e)(2).
(f) Determination That Standard Has Been Met. A determination
that the standard of paragraph (c) or (e) has been satisfied may be made by a
court. Or, except as stated in paragraph (c)(2)(2nd sentence), the
determination may be made by:
(l) a majority of the directors of the corporation (whether
or not a quorum) who were not parties to the action, suit or proceeding, or
(2) independent legal counsel (appointed by a majority of the
directors of the corporation, whether or not a quorum, or elected by the
shareholders of the corporation) in a written opinion, or
(3) he shareholders of the corporation.
(g) Proration. Anyone making a determination under paragraph (f)
may determine that a person has met the standards as to some matters but not
as to others, and may reasonably prorate amounts to be indemnified.
(h) Advance Payment. The corporation may pay in advance any
expenses (including attorneys' fees) which may become subject to
indemnification under paragraphs (a)-(g) if:
(l) the board of directors authorizes the specific payment, and
(2) the person receiving the payment undertakes in writing to repay
unless it is ultimately determined that he is entitled to indemnification by
the corporation under paragraphs (a)-(g).
(i) Nonexclusive. The indemnification provided by paragraphs
(a)-(g) shall not be exclusive of any other rights to which a person may be
entitled by law, bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise.
(j) Continuation. The indemnification and advance payment
provided by paragraphs (a)-(g) shall continue as to a person who has ceased to
hold a position named in paragraph (a) and shall inure to his heirs, executors
and administrators.
(k) Insurance. The corporation may purchase and maintain
insurance on behalf of any person who holds or who has held any position named
in paragraph (a), against any liability incurred by him in any such position,
or arising out of his status as such, whether or not the corporation would
have power to indemnify him against such liability under paragraphs (a)-(h).
(l) Reports. Indemnification payments, advance payments, and
insurance purchases and payments made under paragraphs (a)-(k) shall be
reported in writing to the shareholders of the corporation with the next
notice of annual meeting, or within six months, whichever is sooner.
<PAGE>
8.08 Resignation. Any director, committee member, officer or
agent may resign by giving written notice to the president or the secretary.
The resignation shall take effect at the time specified therein, or
immediately if no time is specified. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
8.09 Amendment of Bylaws.
(a) These bylaws may be altered, amended, or repealed at any meeting
of the board of directors at which a quorum is present, by the affirmative
vote of a majority of the directors present at such meeting, provided notice
of the proposed alteration, amendment, or repeal is contained in the notice of
the meeting.
(b) These bylaws may also be altered, amended, or repealed at any
meeting of the shareholders at which a quorum is present or represented, by
the affirmative vote of the holders of a majority of the shares present or
represented at the meeting and entitled to vote thereat, provided notice of
the proposed alteration, amendment or repeal is contained in the notice of the
meeting.
8.10 Construction. Whenever the context so requires, the
masculine shall include the feminine and neuter, and the singular shall
include the plural, and conversely. If any portion of these bylaws shall be
invalid or inoperative, then, so far as is reasonable and possible:
(a) The remainder of these bylaws shall be considered valid and
operative, and
(b) Effect shall be given to the intent manifested by the portion
held invalid or inoperative.
8.11 Table of Contents; Headings. The table of contents and
headings are for organization, convenience and clarity. In interpreting these
bylaws, they shall be subordinated in importance to the other written
material.
8.12 Relation to Articles of Incorporation. These bylaws are
subject to and governed by, the articles of incorporation.
We the undersigned, president and secretary of the Corporation do hereby
certify that the foregoing bylaws are the true and legal bylaws of NOTE
BANKERS OF AMERICA, INC., a Texas Corporation, and that the same were adopted
unanimously by Action of Board of Directors Without Organizational Meeting on
the 6th day of September, 1996.
/S/ E. Donald DeYoung
-------------------------------
E. Donald DeYoung, President
ATTEST:
/S/ W. T. Herndon
--------------------------------
William T. Herndon, Secretary
<PAGE>
EXHIBIT 99.1
(Letterhead)
For Immediate Release
Date: November 7, 1996
Contact: E. Donald De Young
Phone: (713)840-0230
Fax: (713)892-5435
Note Bankers of America, Inc. Formerly General Genetics Corporation
Houston, Texas- NASD Bulletin Board Listed symbol NBAI. Allen E. Myers,
Chairman & CEO announced that Note Bankers of America, Inc. (NBAI), formerly
General Genetics Corporation (GENG) had completed transactions resulting in
the acquisition of Private Mortgage Bankers, Inc. and its subsidiaries,
including a 1 for 20 reverse stock split effective September 24, 1996 and a
recapitalization. As part of the acquisition, the company elected a new board
of directors and appointed new officers including, Allen E. Myers, CEO, and E.
Donald De Young, President. The companies accounting firm is Hein +
Associates, LLP, Houston, Texas and its transfer agent is Continental Stock
Transfer & Trust Company.
Mr. Myers, has over fifteen years experience in the originating and real
estate note purchasing industries continues as President of Private Mortgage
Bankers, Inc. and Mr. De Young, President, was appointed President of Life
Today, Inc. where he formerly served as EX. V.P., and has over thirty years in
the life insurance and securities industries.
NBAI, will operate and provide funding for two wholly owned companies;
Private Mortgage Bankers, Inc., which for the past five years has purchased
"Owner Financed" First Mortgages on residential properties nationwide, and
Life Today, Inc., a Texas registered Viatical Settlement company, arranges to
purchase life insurance policies nationwide from individuals living with a
terminal illness.
Two additional, wholly owned subsidiaries are scheduled to begin
marketing in the first quarter of 1997; PennieMae, Inc., which will market to
the "Light Commercial" "Owner Financed" market, and Life Today Financial
Services, Inc., which will market to the NASD, NYSE, Certified Financial
Planners (CFP), and the life insurance distributions channels.
Additional information can be obtained from the company by calling or
writing; 800-467-2518, Attn: E. Donald De Young, President, 770 S. Post Oak
Lane, #690, Houston, Texas 77056.
